The Cultural Defense

The Cultural Defense

The Cultural Defense

The Cultural Defense

Synopsis

In a trial in California, Navajo defendants argue that using the hallucinogen peyote to achieve spiritual exaltation is protected by the Constitution's free exercise of religion clause, trumping the states' right to regulate them. An Ibo man from Nigeria sues Pan American World Airways for transporting his mother's corpse in a cloth sack. Her arrival for the funeral facedown in a burlap bag signifies death by suicide according to the customs of her Ibo kin, and brings great shame to the son. In Los Angeles, two Cambodian men are prosecuted for attempting to eat a four month-old puppy. The immigrants' lawyers argue that the men were following their own "national customs" and do not realize their conduct is offensive to "American sensibilities." What is the just decision in each case? When cultural practices come into conflict with the law is it legitimate to take culture into account? Is there room in modern legal systems for a cultural defense? In this remarkable book, Alison Dundes Renteln amasses hundreds of cases from the U.S. and around the world in which cultural issues take center stage-from the mundane to the bizarre, from drugs to death. Though cultural practices vary dramatically, Renteln demonstrates that there are discernible patterns to the cultural arguments used in the courtroom. The regularities she uncovers offer judges a starting point for creating a body of law that takes culture into account. Renteln contends that a systematic treatment of culture in law is not only possible, but ultimately more equitable. A just pluralistic society requires a legal system that can assess diverse motivations and can recognize the key role that culture plays in influencing human behavior. The inclusion of evidence of cultural background is necessary for the fair hearing of a case. An invaluable resource for practitioners, students, and the merely curious, this comprehensive treatment of cultural conflicts in diverse societies will spark lively debate.

Excerpt

The cultural defense cases that have attracted the greatest attention are those involving killing. Individuals lose self-control for different reasons, which sometimes, unfortunately, leads to violent acts. What precipitates the loss of control can vary from one society to the next. This chapter presents an overview of homicide cases in which defendants raised cultural defenses. Despite the lack of a formal cultural defense, in a surprisingly large number of cases, courts have been willing to entertain arguments based on culture.

Even though taking a life is certainly a most reprehensible act, it is necessary in many cases to consider cultural factors to determine the appropriate level of culpability and corresponding punishment. In homicide cases prosecutors must decide upon the charge, judges must evaluate proffered defenses, accepting only those for which the defense can lay a proper foundation, and juries must decide of which offenses, if any, the defendant is guilty. The point is that criminal justice is not an exact science, and the cultural information enables legal actors to make wise judgments about responsibility and punishment. This kind of analysis requires the consideration of context, and culture is one part of the equation.

One major obstacle to the consideration of cultural defenses in homicide cases is that judges frequently consider culture to be “irrelevant.” Although most of the time they could admit cultural evidence without difficulty, they exclude it instead. Evidence codes specify that anything relevant is admissible, provided it is not prejudicial. Nothing stipulates that culture is not relevant. The real difficulty defendants have faced in Western legal systems has been how to link culture to the legal categories of crimes, each of which has its own particular elements. In homicide cases . . .

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