The DANGERS of the Cultural Defense

By Morgan, J. Tom; Parker, Laurel | Judicature, March/April 2009 | Go to article overview

The DANGERS of the Cultural Defense

Morgan, J. Tom, Parker, Laurel, Judicature

Dalias, Texas. Sarah and Amina Said, 17 and 18, were beautiful, popular, intelligent high school students. The sisters were Muslim, but their Western clothes and non-Muslim, non-Egyptian boyfriends, upset their father, Yaser Said. After years of physical and sexual abuse and death threats, he lured them into the back of his taxi on New Year's Day, drove them 14 miles outside of Dallas, and shot them. Sarah was shot nine times, and Amina was killed with two bullets. As Sarah lay dying, she called 911 and said, "I'm dying . . . Oh, my God. Stop it. Stop it." Yaser Said is currendy a fugitive.1

Jonesboro, Georgia. Sandeela Kanwal, 25, had an arranged marriage, but was unhappy, had an affair, and filed divorce papers. Her father was angry with her for her attitude toward her marriage, and when Sandeela said she would not reconsider ending it, he strangled her in her bedroom with a bungee cord.2

The acts of these fathers are undeniably horrific. The United Nations estimates that at least 5,000 of these "honor killings" take place each year around the world when women are killed by relatives for "bringing shame" on their families. Yet because these terrible murders could be considered to be a cultural practice, some argue that sentences for these crimes should be lessened. But allowing criminal defendants to rely on a cultural defense for a crime such as honor killing is unequivocally wrong.

The idea of the cultural defense violates principles of equal protection, the idea that whatever protections are provided by government must be provided to all equally, without regard to race, gender, or national origin. It would therefore be wrong for courts to recognize this defense for immigrants but not to recognize it for nonimmigrants. Furthermore, the cultural defense argument violates the fundamental principle that society has a right to government protection against crime.3

Additionally, although academics use the term cultural defense, no official body has recognized such as a defense.4 Immigrants who live in America should abide by American laws and customs; lex loci, the law of the land, should apply. They should not be allowed to hide behind their cultural traditions. If an American goes to Singapore and breaks one of Singapore's laws, he will be punished under Singaporean law. The same standard should apply to a Singaporean in this country. Ignorance of the law is no defense or excuse.

Defining culture

The idea of "culture" is also complicated. Not every person who is part of a culture adheres to that culture's tra- ditions; many cultural practices are under attack even in their own countries. One scholar has noted that "[c]ulture is not some monolithic, fixed, and static exis- tence."5 The actual definition of "culture" also prompts several further questions, as neither courts nor anthro- pologists have been able to come up with an exact defini- tion: the definitions and meanings of both "culture" and "tradition" evolve over time and depend on context. How common or widespread in a country would a practice or custom have to be to qualify as a cultural defense? For example, female genital mutilation has been criticized in many countries in which it occurs, and it would never be accepted in America. Courts absolutely should never accept a cultural defense argument for such a horrific act.

Where would a court draw the line as to who is a member of a certain culture? How far removed from one's cultural heritage would one have to be to be unable to use this defense: first-generation, second generation, third generation? People could falsely claim that they were members of a culture or that they adhered to that culture's beliefs even if they did not. For example, in State v. Bauer, Rastafarians were not allowed to raise a religious defense when they were prosecuted for possession of marijuana and conspiracy to run a multi-million dollar marijuana farm. The court, in wondering if there were truly any Rastafarians in Montana, stated that just because defendants wanted to claim that defense "as a protective cloak," the court did not have to accept "the defendants' mere say-so.

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