The VIRTUES of the Cultural Defense
Ramirez, Linda Friedman, Judicature
Kennebec, Maine. Michelle Ramirez, a Dominican immigrant, was charged with child sexual abuse for her practice of touching and kissing the genitals of her toddler son while bathing him and changing his diaper. At trial, defense witnesses testified to "describe the relationship between a mother and her young child in the Dominican Republic."' The Maine court found that "the culture of the Dominican Republic recognizes an extremely nurturing relationship among mothers and their young children," and that "[m]others interact physically and emotionally on a regular basis with their children. Touching and kissing all parts of a child's body are common ways for a mother to express her love and affection." The court further recognized that, in Dominican culture, "[t]ouching and kissing a child's genitals are not intended as sexual and are not sexual. Dominican Republic society considers the mother's conduct as normal and not harmful to the child. In fact, this behavior signifies the love and trust of a mother for her child and is a method of making bathing and diaper changing an enjoyable occasion for the child." Michelle Ramirez was acquitted of all charges.
Dallas, Texas. Sadri ("Sam") Krasniqi, a Muslim from Albania, was arrested and accused of sexually molesting his four-year-old daughter in a crowded high school gymnasium, where they were watching his nine-year-old son's tae kwon do match.2 Besides bringing criminal charges against Sam Krasniqi, authorities also removed both children from the home and immediately placed them in foster care. The family was never reunited.
The judge in Mr. Krasniqi's criminal trial admitted the testimony of one of the country's foremost experts on peasant customs in the Balkans. That anthropologist explained that, in traditional Albanian culture, families commonly touch or caress young children intimately, as a means of soothing them or showing affection, with no sexual intent whatsoever. Mr. Krasniqi was acquitted of the criminal charges.
The result in the criminal cases was appropriate. Would anyone seriously contend that either Ms. Ramirez or Mr. Krasniqi should have been convicted of child sexual abuse, most likely resulting in imprisonment? And at the very least, requiring them to register as sexual offenders? (And in the case of Mr. Krasniqi, did it make sense for the family court to terminate Mr. Krasniqi and his wife's parental rights as actually happened in spite of the exoneration in the criminal case?)
A compelling need
The United States is a nation of immigrants. But U.S. law has never been culture-neutral, any more than the law of any country is culture-neutral. Justice requires looking at the context of a defendant's conduct - "focus [ing] on the actor as well as the act, and on motive as well as intent."8 Where the judge and jury share a defendant's cultural background, there is generally an implicit understanding of much of the context of the defendant's behavior. But the situation may be very different when the defendant is an immigrant from a very different culture. Viewed through the lens of U.S. cultural norms, an immigrant defendant's actions may seem not merely unreasonable, but completely nonsensical. Absent cultural evidence, it may be simply impossible for a judge and jury even to grasp what actually happened in a particular case.
As a result, there is a compelling need for official recognition of the cultural defense in this multi-cultural society. Although it may be correct that a cultural defense perse has not yet been recognized in this country, cultural customs and traditions are being implicated every day in courtrooms throughout the United States. The issue of culture arises in a wide range of state and federal criminal prosecutions, ranging from sexual assault and child abuse and neglect, to arson, bribery, narcotics violations, animal cruelty, and hunting out of season. However, while some courts admit cultural evidence, others have rejected it under very similar circumstances. …