Cultural Defense

In pluralistic societies, individuals belonging to ethnic minority groups sometimes find that their traditions [Page 356]clash with the law of the state. When individuals involved in legal proceedings are asked to explain their conduct, they raise what jurists and scholars call the cultural defense. Immigrants, for example, attempt to persuade the court that it should understand their behavior in the proper cultural context; the premise of their argument is that their enculturation shaped their perceptions and predisposed them to act in particular ways that conflicted with the law. Such a defense, if recognized, allows the consideration of cultural evidence in the courtroom in both civil and criminal matters. The basic question is whether legal systems should take into account evidence concerning a litigant's cultural or religious background.

A cultural defense can influence legal proceedings in many ways. Cultural factors can affect a police officer's decision whether to arrest a person; a prosecutor's decision whether to charge a defendant, and if so, for what offense; and the decisions of the judge or jury during the guilt and sentencing phases of a criminal trial. If one uses the cultural defense in the guilt phase of a trial, various outcomes are possible: a defendant can be acquitted, receive a lesser sentence, or be found guilty of the crime charged; a cultural defense does not necessarily lead to the exoneration of a defendant. In civil proceedings, one can introduce cultural evidence to increase the size of a damage award if the individual succeeds in showing he or she was more traumatized than an ordinary person from the majority culture would be by a negligent act (for instance, the performance of an unauthorized autopsy). Sometimes litigants also contend that because of their cultural backgrounds, they should be exempt from certain laws. Although some may assume incorrectly that the cultural defense is applicable only in criminal trials, litigants can invoke the defense in many other areas of law, including constitutional cases, death penalty appeals, and employment discrimination, juvenile, family, and tort cases.

Another misconception is that adopting a cultural defense as a matter of public policy necessarily means that the evidence will affect the outcome in a case. In reality, having a formal cultural defense would simply ensure that the courtroom door is open to cultural evidence. It is a separate question how much weight such evidence should be given. Permitting courts to evaluate cultural data does not guarantee that it will influence the disposition of the case.