Academic journal article Duke Law Journal

The Implications of Memetics for the Cultural Defense

Academic journal article Duke Law Journal

The Implications of Memetics for the Cultural Defense

Article excerpt

INTRODUCTION

The cultural defense has been the subject of a great deal of recent scholarship. Much of this analysis has concerned the consequences of the cultural defense, both for defendants and victims.(1) Scholars differ on what these unintended consequences may be, however, and identify effects ranging from encouraging American ideals(2) to spreading racism,(3) to legitimizing violence against women.(4) Although seemingly contradictory, these analyses are warranted as they address a legal strategy that often draws from culturally specific norms concerning marriage and domestic relations.(5) Because norms are central to every culture, use of the cultural defense potentially has a profound effect on many immigrant communities.

Few commentators focus on the philosophical foundation of the cultural defense and whether it forms an adequate basis for excuse from punishment, however. Retribution often is a primary justification for punishment.(6) The cultural defense concludes that because a defendant acted in a "culturally motivated manner," he is not morally blameworthy and hence should be partially excused.(7) The cultural defense makes use of a common assumption in criminal law: if the defendant cannot control her actions, she generally should not be held responsible for them.(8)

This Note challenges this common assumption in the specific context of the cultural defense. By seeking to exculpate a defendant for culturally influenced behavior, the volitional cultural defense(9) denies the defendant's ability to resist the compulsions of his culture. I do not argue that the defendant can or should be able to act independently of his cultural background; rather I submit that the cultural defense fails to draw any significant distinctions between defendants and the general populace. Everyone is at the mercy of the ideas he encounters; the cultural defense just arbitrarily defines culture narrowly enough to shut out most of these compulsions. From a moral--and hence retributivist--viewpoint, the source of these irresistible impulses should make no difference.

Part I examines the cultural defense in greater detail and delineates its cognitive component (in which a defendant may not recognize a law or fact) from its volitional component (in which a defendant recognizes an action is legally wrong but cannot overcome the cultural impulses to act regardless). This part also attempts the important--but difficult--task of separating a pure cultural defense from the mere use of cultural evidence within an existing defense. Part II presents a new theory of cultural evolution, memetics,(10) that eliminates any volition free from broadly defined cultural and genetic influences. This theory posits that every person, and hence every action, is the result of influences beyond an individual's control. Part III demonstrates that the volitional cultural defense can make no meaningful distinctions, as everyone is acting under cultural compulsions. This part also investigates the roles of deterrence and rehabilitation in a system largely void of retribution. The Note concludes by employing the memetic perspective to reexamine some of the existing consequentialist analyses of the cultural defense.

I. THE CULTURAL DEFENSE

The cultural defense has not been formalized(11)--an attorney cannot walk into a courtroom and plead "the cultural defense." Hence it will not fit neatly into one definition. It has been defined as "a legal strategy that defendants use in attempts to excuse criminal behavior or to mitigate culpability based on a lack of requisite mens rea,"(12) "[t]he affirmative presentation of foreign customs as exonerating evidence in criminal cases,"(13) and "a defense asserted by immigrants, refugees, and indigenous people based on their customs or customary law."(14) This lack of specificity in the defense leads to its application in a number of diverse cases without a clear statement of what it is trying to prove or disprove. …

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