Immigrants and Other Cultural Minorities as Non-Traditional Plaintiffs: Culture as a Factor in Determining Tort Damages

By Donald, Bernice Bouie; Brooks, Brennan Tyler | Judicature, March/April 2009 | Go to article overview
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Immigrants and Other Cultural Minorities as Non-Traditional Plaintiffs: Culture as a Factor in Determining Tort Damages


Donald, Bernice Bouie, Brooks, Brennan Tyler, Judicature


The "cultural defense" has increasingly entered the nation's legal consciousness in recent years, as growing numbers of foreign-born defendants seek to have the customs, traditions, and mores of their homelands consid- ered in the evaluation of their alleged offenses.1 In such cases, a defendant charged with a crime typically attempts to show that her actions, although criminal under U.S. law, were entirely con- sistent with - and perhaps even compelled by - the norms of her native cul- ture. The defendant's hope is that this cultural defense will excuse her offense, or at least be treated as a mitigating circumstance, resulting in lesser charges or a reduced sentence.

To date, cultural issues have been raised most frequently in the context of criminal justice. But, in today's pluralistic society, the cultural norms of other countries have relevance well beyond the criminal arena. "Cultural evidence" is now being proffered in a wide range of civil matters as well.

Many of the civil cases raising cultural issues have involved families and children.2 How, for instance, should the law respond when serious culturally based religious beliefs compel Hmong parents to refuse life-saving surgery for their four-month-old son, who has been diagnosed with cancer (malignant retinoblastoma) in both eyes? After much legal wrangling, the parents finally consented to the surgery under the threat of criminal prosecution for felony child endangerment.'

Similarly, what legal standards should govern the amount of child support to be paid by a father in the U.S. for a child living abroad? In Nischal v. Nis- chal, the father protested that application of U.S. child support guidelines would effectively render his wife and daughter in India "millionaires."4 The court nevertheless ruled that the daughter's residence over- seas provided no basis for a "downward deviation" from the U.S. guidelines.

Further, in what manner should the law treat a "temporary marriage" that does not meet the legal formalities of the jurisdiction in which it occurred, but which the Muslim parties considered binding under Islamic law?5 In In re Marriage of Vryonis, the California Court of Appeal held that the woman's belief that she had entered into a valid marriage was not objectively reasonable, because the ceremony did not even begin to approximate the formalities required by California law. Therefore, when the relationship ended, she could not avail herself of the legal protections that divorce affords a putative wife, such as spousal support and a division of property.6

Tort cases

But perhaps the most interesting of the civil actions raising cultural issues are the tort cases. Cultural considerations may have an impact even in a so-called "ordinary" tort case, profoundly affecting the measure of damages. As Alison Dundes Renteln explains in her 2004 book The Cultural Defense, "[t]he argument is that, because of the plaintiff's cultural background, he or she was more adversely affected by the error [or the harm was magnified] and hence is entitled to a larger award."7 A familiar concept in modern tort law is the "eggshell plaintiff."8 In light of the hoary legal maxim that "you take your victim as you find him," tortfeasors may discover that foreign-born victims and victims from minority cultures are the ultimate "eggshell plaintiffs."

The facts of Onyeanusi v. Pan Am are particularly compelling.9 Mr. Onyeanusi arranged to have his mother's corpse flown from the United States to Nigeria for a timely traditional burial in accordance with the customs of their Ibo tribe. Some 20,000 members of the tribe gathered in Nigeria to await the arrival of the body. After a nine-day delay, the body that the airline delivered to Mr. Onyeanusi was not the body of his mother, but that of a complete stranger. When his mother's body finally arrived in Nigeria, the "airtray" (used for shipping human remains) was broken, allowing the body to be exposed to the elements.

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