When Ignorance May Be the Defense: IMMIGRANTS and KNOWLEDGE of U.S. LAW
Veazey, Linda, Judicature
It is a well-established tenet of American law that igno- rance of the law is no defense, or that "all men are pre- sumed to know the law," but what is left unexamined in that legal maxim is the extent to which people unfa- miliar with American culture and law, namely immigrants and refugees, may actually be unaware. Education may seem like the natural solution to this problem, but it is not clear how much education about the legal norms of American society is done and, ultimately, how much can be done. The extent to which this may be the case and whether or not the legal system should take it into account are the issues to be considered here.
Although the extent to which the citizenry as a whole fully understands the intricacies of the laws and legal processes of a country is unclear, the legal system reflects the norms of society and those raised in that society will be familiar with its basic tenets. But immigrants, by definition, have not been raised in this same society. They arrive from nations with differences in language, history, and general worldview. They may come from similar legal systems or vasdy different societal norms and laws. While the adage "when in Rome, do as the Romans do" is often invoked to explain why anyone arriving in a country is responsible to abide by the local rules and norms, this can oversimplify the issue. People may well wish to abide by the rules of society, but for a newcomer these can be very difficult to decipher and unlearning the culture of one's former society can be equal to the task of learning a new culture.
Cultural differences that can give rise to legal disputes are vast, ranging from the treatment of children, to drugs, marriage, the slaughter of animals, and the treat- ment of the dead. When coming into conflict with the legal system over these mat- ters, defendants may wish to employ a cultural defense - a motivation for action based on cultural difference. However, this type of claim can be met with resistance because of what has been termed the "presumption of assimilation," the expectation that all inhabitants of a society, no matter their backgrounds, should know and abide by the law.1 Even defenders of cultural rights often contend that the protections of cultural difference are for well-established cultural minorities, such as indigenous people or longstanding communities, such as the Amish, and not immigrants.2 When an individual moves to another country, he or she has voluntarily given up the laws and traditions of the former society.
Cultural orientation in the U. S.
The International Organization for Migration estimates the United States to host the greatest number of immigrants.3 Each year individuals arrive in the U.S. as voluntary immigrants, political asylum-seekers, or refugees. Although all are new arrivals, the U.S. has legal responsibilities to refugees to assist with resettlement that it does not have to voluntary immigrants. In 2007 alone, the United States accepted 48,281 refugees, with the largest numbers arriving from Burma, followed by Somalia.'1 Individuals from these societies may have legal conflicts involving culture. For example, Somalis in the United States may run afoul of the law due to practices such as female genital mutilation (FGM) or the use of khat, a substance chewed like tobacco that is illegal in the U.S.
What is necessary, it may appear, is education for new arrivals that explains what is and is not illegal in their new home. Cultural Orientation programs, as they are known, are the manner in which most newly arrived individuals learn about the American way of life. Although administered through the Office of Refugee Resettiement in the U.S. Department of Health and Human Services, funds are distributed to states, and, in turn, many states distribute funds to nongovernmental and community organizations focused on resettlement.5 This system creates, in many states, organizations committed to assisting refugees and uniquely positioned to help them in orienting to their new surroundings. …