May 18, 2005

On the Cultural Defense: Striking a Delicate Balance Between Criminal Law Objectivism and Multiculturalist Moral Relativism

by Guest Contributor

By way of quick introduction, my name is PV, which is the abbreviated name of my weblawg. I am entering my third year of law school (which shall remain unnamed) and am spending the summer clerking for a Magistrate Judge in the District Court for the Southern District of Ohio. Having started to evaluate the merits of my first habeas petition, I was put in touch with more philosophic sentiments regarding the criminal law and, more specifically, the cultural defense. The post is rather long, and much longer than I expected, and for that I apologize. However, I do welcome comments, criticisms, and other correspondence at


Over the past several decades the use of cultural evidence in criminal trials has been markedly more prolific and, to a great extent, successful, in mitigating a defendantís punishment.* In raising a cultural defense, the defendant, most often an immigrant or refugee, seeks to introduce evidence of his foreign cultural background and values in an attempt to exculpate himself from liability or, at the very least, mitigate his punishment.** The practical implication is that the defendant, because of his background or cultural upbringing, either did not intend to commit a crime or did not know that he did in fact committed a crime.*** Essentially, the defendant is claiming that he did not have the requisite mens rea, or mental state, to commit the proscribed act.

*At the outset, the informal use of cultural evidence, which is the current norm in these types of criminal trials, must be distinguished from a formal cultural defense, for which I advocate. Recognizing that this distinction is not always necessary, however, I use the term "cultural defense" loosely and interchangeably to refer to both notions.

** See James J. Sing, Culture as Sameness: Toward a Synthetic View of Provocation and Culture in the Criminal Law, 108 YALE L.J. 1845, 1849 (May 1999).

*** Indeed, it very well may be the case that the act committed by the defendant was not a crime in his native country or, if a crime, still considered an honorable act warranting only moderate punishment.

While the cultural defense is not without critics and detractors, the central tenets behind the defense are attractive: it bespeaks a commitment to multiculturalism and a pluralist society and implicitly sanctions a progressive criminal justice system. Moreover, when observed through the lens of moral relativism, the idea that because there are no objective truths and all morals are relative and subjective, the cultural defense seems to take on an even greater significance: it is the practical application of the Anglo-American criminal law's commitment to individualized justice.

Notwithstanding this commitment, other primary principles of the Anglo-American criminal justice system at once reject and accept the cultural defense. The criminal justice system implicitly rejects the notion of a cultural defense through maxims such as ignorantia legis neminem excusat: ignorance of the law excuses no one. However, Anglo-American criminal law simultaneously holds that in order to be convicted of a crime, the defendant must have the prescribed mens rea.

Given the ambivalence of the Anglo-American criminal justice system and the valid arguments both for and against the cultural defense, it is this author's contention that arguments for an absolute adoption or prohibition of the cultural defense are misplaced. A delicate balance must be struck between the objectivism of the criminal law and the moral relativism considered necessary in our pluralist society. The cultural defense, when applied as an affirmative defense under select circumstances, strikes this balance and, accordingly, deserves to be recognized by the American judiciary. What is obvious here at the outset is that the recognition of the cultural defense must have limits, notwithstanding the ideals espoused by multiculturalism and individualized justice.

The brief review of relevant cases demonstrates that defendants have introduced evidence of their cultural background and values to demonstrate that their actions were dictated by their native cultural norms, traditional practices, and/or values. In nearly all cases, the courts have admitted evidence of the defendants' culture which, in the end, has had the effect of mitigating the punishment imposed on each defendant. That this is a step in the right direction for the Anglo-American criminal justice system in recognizing a culturally pluralist society is without question. However, that step may simultaneously be too short and too long.

While the courts generally have permitted the defendant to introduce cultural evidence, the rationale supporting the courts' decisions have differed greatly. Some courts have admitted cultural evidence on grounds that it tended to show temporary insanity. Other courts have admitted the evidence on grounds that it tended to show provocation. It is certainly within the realm of reason that a future court would admit evidence that would tend to show excuse. To be sure, the underlying issue of each of these rationales is clear: whether or not the defendant had the requisite mens rea. However, the standards for proving insanity, self-defense or provocation, and excuse vary, and the inconsistent manner in which these cases are approached by the courts has the potential to yield different results for similarly situated defendants facing similar charges. This inconsistency could lead to unpredictability in the criminal law, a facet at odds with the objectivism of the criminal justice system. In addition, the inconsistent results would also run contrary to the twin aims of multiculturalism and individualized justice.

Nevertheless, adoption of a formal cultural defense is not well-received by many commentators. While these critics largely share the same arguments, the principle argument against a formal cultural defense is that its use and practical effect undermines not only the fundamental principles of the criminal law, but, in more general terms, the basic principles of equality. Subjecting a particular group of persons to one set of laws and another group of persons to a separate set of laws, they claim, will lead only to prejudice and inequality. Detractors of the cultural defense also cite issues relating to fairness and a rational need for deterrence.

Likewise, traditional arguments in favor of a formal cultural defense are largely uniform amongst its proponents. The two arguments on which its supporters most heavily rely are the cultural defenseís commitment to multiculturalism in a pluralist society and the value of individualized justice. Other arguments such as fairness, consistency, and the rather limited value of deterrence have also become prevalent in promoting the cultural defense.

In the field of academia, there are two articles which sit at the extremes of the continuum of commentators advocating for and against the adoption of a cultural defense. On one end is Valerie Sacks, whose article, "An Indefensible Defense: On the Misuse of Culture in the Criminal Law," posits that the cultural defense will actually "promote prejudice and inequality" rather than lead to a greater sense of equality in a pluralist society. Sacks also contends that the "distinction between... to whom the cultural defense is available and... to whom it is not is fuzzy [and] problematic... "

Sacks' latter argument has merit. And it is the purpose of this post to explicate to whom the cultural defense is available and to whom it is not. However, with regard to Sacksí former argument, it inherently denies what it means to be a pluralist society. What her argument suggests is that equality can only be achieved through a single, controlling value system. Quite the contrary, the cultural defense is a manifestation of tolerance in a pluralist society, one that is accepting of values held by a wide variety of people and cultures; it is a commitment to individualized justice.

At the other end of the continuum sits a 1986 Harvard Law Review Note entitled, "The Cultural Defense in the Criminal Law" (hereinafter "the Note"). The Note concludes by stating that the criminal justice system is at present ill-equipped to deal with cultural issues. In an attempt to provide guidance to the courts when dealing with cultural issues, the Note proposes various factors to be considered by the court when deciding whether raising the cultural defense should be permissible.

The first group of proposed factors aims at balancing the twin aims of cultural pluralism and individualized justice with societyís interest in self-preservation and self-protection. Factors to be balanced include the probability of recurrence and the severity of the crime committed. As the chances of recurrence increase, so, too, does societyís interest in deterrence if society is to maintain social order. With regard to severity, three separate sub-issues are presented. First, was the crime or prohibited act victimless? Second, if there was a victim, was the crime or prohibited act confined to voluntary participants within the culture? And, finally, if there was a victim, was serious bodily injury or emotional harm inflicted?

The balancing of recurrence probability and societyís need for deterrence is, on its face, like the balancing of the severity of the crime and societyís interest in social order: they are both legitimate. However, there are underlying issues which make both of these balancing attempts futile. The overwhelmingly large majority of cases in which the cultural defense is raised or in which cultural evidence is introduced concern a spouse who has killed another spouse or a parent who has killed his or her children. Moreover, the actions of the spouse or parent are dictated by cultural values or cultural principles. And therein lies the rub: there is relatively low deterrence value of the crime or proscribed act, regardless of its severity, when the crime or prohibited act is either mandated, endorsed, or accepted by the defendantís native culture (or, like oyaki-shinju, which is not totally accepted in Japan, but is not punished, either).
Accordingly, the balancing of the probability of recurrence with societyís need for deterrence and the balancing of the severity of the crime with societyís interest in social order is problematic. Recurrence probability and severity of the act, in and of themselves, are not variables that are affected by the criminal justice systemís attempts to deter and maintain social order; rather, they are dictated by cultural mandates or normative cultural practices.

The second group of proposed factors aims at maintaining social order. The factors to be considered include "identifiability, degree of self-containment, and the size of the defendantís cultural group." "Identifiability" of the defendantís culture and the claimed cultural value or principle is, according to the Note, critical in raising the cultural defense. Without a clearly identified culture and pronounced cultural values, it would be more difficult to apply the defense. "Self-Containment" is also important, according to the Note, because it insulates the possible harm within that cultural community and minimizes the problems that stem from a lack of deterrence for proscribed acts. Finally, the size of the defendantís cultural group is important because, aside from the matter of "identifiability," exempting a large number of persons from proscribable conduct would send a message to the population at large that such conduct is acceptable.

However, what necessarily happens if the defendantís culture or cultural value is somehow less identifiable? Should the court approach the defendantís claim skeptically when assessing the honesty and validity of the defense, or should the court automatically refuse to allow cultural evidence because of the cultural value is less identifiable? This author contends that the former seems to be the best approach and the latter is simply draconic. It is not clear, though, from the Note what the judgeís next step would be in this easily hypothesized situation. Most obviously, it would be a clear mistake not to permit the defendant to raise the cultural defense simply because the practice in which the defendant engaged was more obscure than practices in which other defendants engaged who were permitted to raise the defense. It is this type of "yes-no" test that has the potential to lead to oversight, bias, and, at the extreme, even abuse. Accordingly any balancing test must provide for varying degrees of cultural evidence and an adequate manner in which to balance the evidence.

The third proposed inquiry pertains to the level of influence the defendantís culture had on his behavior. The Note suggests that the court, in determining the amount of influence the defendantís native cultural values had on his behavior, might direct an ancillary inquiry into the degree of the defendantís assimilation into mainstream culture. For instance, "[t]he less assimilated the accused, the more compelling are justice-based arguments that it is unfair to punish her for not complying with the law. Moreover, the less assimilated the
accused, the more a cultural defense will encourage pluralism by maintaining a spectrum of widely divergent values."

However, while this may be true, it is nonetheless problematic because the inverse does not necessarily logically follow. That is, just because the defendant is more assimilated into mainstream culture, whatever that might mean, does not mean that his cultural values have any less influence on his behavioral and psychological patterns. Moreover, simply because a defendant is more assimilated into mainstream culture does not make it unfair for punishing him when his actions are dictated by his native cultures values. The essence of the argument, then, is qualitative, not quantitative. As such, an inquiry into the general level of assimilation into mainstream culture, while it may be useful to some extent, is a much more complicated and thorny inquiry than the Noteís author has suggested. More to the point, this particular inquiry can not provide for varying degrees of assimilation because not all points on the continuum necessarily hold true.

The final inquiry proposed aims at maintaining cultural pluralism and is focused in this regard on the importance of the value the culture places on the crime or proscribed act. In other words, the more important the value or principle is within that culture, the more protection that value should receive and, as a consequence, the more valid the cultural defense becomes.

However, similar to the third inquiry above pertaining to the level of the defendantís assimilation into mainstream culture, the inverse does not automatically hold true. Solely because a cultural value is considered less important or less valuable does not mean that it is less worthy of protection. However, the Note implies that cultural values or principles that are in some respect less important in the native culture are worthy of less protection by the Anglo-American criminal law. That this might be a means to an end for smoking out illegitimate claims of cultural values is certainly one thing. But to suggest that because a value is placed lower on the sliding scale of importance in the native culture it receives less protection undermines what it means to support multiculturalism and individualized justice. In addition, the final inquiry does also does not provide for varying degrees of value because, like the inquiry into assimilation, not all points on the continuum necessarily hold true.

In the end, the factors proposed for consideration in the Harvard Law Review Note when determining whether the cultural defense is viable in a particular case are more consistent with finding a balance between the objectivism of the criminal law and the moral relativism of multiculturalism. However, the inquiries are either internally inconsistent, impractical, or too rigid to be applied consistently. Moreover, what the Note proposes is not so much a balancing test for permitting a defendant to raise a cultural defense, but rather the level of significance the court should attach to various types of cultural evidence. It is this type of balancing that could lead to more inconsistent results than has been yielded by the present system, which has no formal cultural defense, only an informal structure for introducing cultural evidence.

As such, this post advocates a much tighter, more organized standard that simultaneously allows for variation of degree in the level of evidentiary significance and probative value. To first set some basic parameters, the cultural defense as proposed below is an affirmative defense, not a simple defense, to be raised by the defendant in his Answer. The normal rules of criminal procedure should apply, and if the defendant does not raise the cultural defense, he should lose the right to raise the defense later in the litigation. Because the cultural defense is an affirmative defense, the defendant will have the burden of proof as to all matters pertaining to the admission of cultural evidence.

Additionally, the cultural defense should only apply to crimes or prohibited acts which, though crimes under Anglo-American criminal law, are either mandated, accepted, condoned, or are nonetheless practiced in the defendantís native culture. While this seemingly will Balkanize the criminal law between immigrant Americans and non-immigrant Americans, what must be distinguished are those acts which are committed because a defendantís native cultural values have dictated or accepted such actions and those acts committed simply out of ignorance of the law.

This proposed test, as aforementioned, is two-tiered. The first tier, or the judicial tier, the judge, in camera, examines the cultural evidence to be propounded by the defendant. The judge will examine the evidence in light of various factors that have been adduced above: probability of recurrence, the need for deterrence, cultural identifiability, level of self-containment of the proscribed act, size of the defendantís cultural group, and the value of the act in the defendantís culture. Regardless of what the judge decides with regard to the weight of the evidence, all cultural evidence will be admitted at trial, excepting only that evidence that is ruled to be prejudicial, cumulative, irrelevant, or likely to confuse the jury. What the judge will decide, however, is the nature of the inquiry under the second tier, which is reserved for the jury. The judge will decide what level of scrutiny the jury will subject the evidence during deliberation.

There are three levels of scrutiny from which the judge may choose when sending the evidence to the jury for deliberation. The judge should choose appropriate level of scrutiny based on the quantity and quality of the cultural evidence presented by the defendant. The most stringent level of scrutiny to be undertaken by the jury concedes that societyís interest in social order and self-preservation are compelling interests. Thus, in order for the jury to either acquit the defendant or mitigate the defendantís punishment, the defendant must show by clear and convincing evidence that (i) his actions were mandated by his native culture; and (ii) there was no other manner in which he could have achieved his desired end without committing the proscribed act.

The most stringent scrutiny is to be used in cases where evidence of the defendantís cultural practices or values is slight; where the defendantís culture or cultural values are less identifiable; where the cultural practice is not of a high level of social or cultural significance or importance; where the cultural practice may not be self-contained; and/or where the defendant is or should have reasonably been expected to be more assimilated into mainstream culture. None of the evidentiary considerations are controlling; rather, the inquiry is directed at a totality of the proffered evidence.

Under this most stringent standard, what the jury is not being compelled to do is give less weight to the defendantís culture or his cultural values. Rather, there is simply less credible evidence presented as proof of the defendantís claims. There must be a check and balance in place to smoke out illegitimate claims of cultural values. As such, the judge and the jury have the right to be skeptical about the nature of the culture and the cultural practices and values, and thus weight the evidence accordingly. The judge and jury simply cannot be expected to act as historians, anthropologists, and sociologists in addition to presiding over or deliberating the matter.

In these situations, moreover, giving social order and societal self-preservation more weight does not run against the principles of multiculturalism and individualized justice. If anything, this system pays more attention to the goal of individualized justice as it accounts for varying degrees of different types of evidence, each of which is peculiar to the defendant and his culture.

The least stringent level of scrutiny also concedes that society has an interest in social order and self-preservation; however, under this low level of scrutiny, that interest is merely a legitimate one. For a defendant to prevail or even mitigate his punishment under this least stringent level of scrutiny, he need only show by clear and convincing evidence that (i) his act was consistent with his native cultural values and principles; and (ii) a reasonable person in the defendantís position would have acted similarly.

This least stringent level of scrutiny is to be applied when the cultural evidence propounded by the defendant thoroughly identifies his culture, cultural values, and cultural practices; when the cultural values and practices identified by the defendant are of such immense social or cultural importance in his native culture; when there is a high degree of self-containment; and when the defendantís assimilation into mainstream culture is or should reasonably be expected to be very low. Again, no one piece of evidence is controlling; rather, the inquiry is directed at a totality of the proffered evidence.

Under this standard, the jury is not compelled to give any less weight to societyís interest in social order or self-preservation. Rather, the jury must recognize, in the interests of multiculturalism and individualized justice, the fact that the proscribed act committed by the defendant is honored, accepted, condoned, or even mandated, by his native culture. Recognizing that fact, and taking into consideration a level of tolerance for other value systems and beliefs in the community, the jury should appropriately apply the facts to the standard.

The final level of scrutiny is an intermediate one, a level of scrutiny which lays claim to elements that may be found in either of the polar levels of scrutiny. For instance, it may very well be the case that an obscure value from an even more obscure culture will have the greatest social esteem in that culture. Or, conversely, a defendant may be a native of a highly identifiable culture but the practice in which he engaged was rather obscure. In cases such as these, depending on the quantity and quality of other cultural evidence, it would be difficult for the judge to determine whether to give the evidence to the jury for deliberation under the most or least stringent level of scrutiny. In the interest of preservation of this system, and in the interest of a commitment to a pluralist society, the judge cannot simply decide whether to instruct the jury to use the most or least stringent level of scrutiny on a whim. As has been demonstrated above, obscure practices in a given culture may nevertheless be highly valuable and commonplace practices in a given culture may nevertheless be less socially valuable.

As such, under the intermediate scrutiny, it is conceded that society has an important and substantial interest in maintaining social order and in self-preservation. For the defendant to prevail or to even mitigate his punishment, he must show by clear and convincing evidence that (i) the proscribed act committed was dictated by cultural mandates; or (ii) that the proscribed act committed was consistent with cultural practices or values.

To be sure, there is substantial latitude for the judge and the jury under this intermediate scrutiny standard. However, this given latitude is consistent with the ideals espoused by multiculturalism and a commitment to a pluralist society and with the objectivism of the criminal law. It is rightful or, at the very least, prudent, for the jury to make this final decision, as it is in the best position to make such a decision. Giving the decision-making process to the jury puts the decision in the hands of those living in the community in which the act took place. In this regard, the jury serves as a better guidepost for the local communityís mores and tolerance of other value systems.

From a jurisprudential standpoint, the philosophical underpinnings for the basis for the cultural defense rest in moral relativism, the idea that everyoneís values (or, better stated in this context, every cultureís values) are as valid as any other, so it is inherently wrong to judge those from different cultures when their value system conflicts with the Anglo-American value system. The Anglo-American criminal justice system, however, is built on principles of objectivism that do not necessarily wholly mesh with relativistic thought. The competing arguments are both compelling: advocates for the cultural defense champion the cause of multiculturalism and a pluralist society that is accepting of divergent values. Additionally, arguments for the cultural defense promote the criminal lawís existing commitment to individualized justice and fairness.

Opponents of the cultural defense, however, maintain that the foundation of the criminal law system and the fundamental principles of equality and justice are undermined when a select group of people are exempted from the laws of general applicability. Indeed, there is a danger of Balkanization of the Anglo-American criminal justice system as non-immigrant Americans could potentially be subject to one set of laws while immigrant Americans could be subject to a different set. Some commentators would go so far as to say that, in fact, each immigrant could become a law unto himself. Despite these arguments, a two-tiered system of evaluation of the evidence, first by the judge, then by the jury under a judicially-selected standard, is a workable system with built-in checks and balances. The judge will make the preliminary decision after hearing the cultural evidence as to what level of scrutiny the jury will subject the evidence. The juryís deliberations, then, should be guided by the standard of the particular level of scrutiny and the facts should be applied accordingly.

While this system may certainly be subject to criticism, it is only one of a few proposals that fit in the middle of the continuum of voices advocating for or against the adoption of a formal cultural defense. Many voices at one end give short shrift to the goals of multiculturalism and individualized justice, either discounting their relevance or arguing that their practical application is unworkable. At the other end of the continuum are voices that promote a pluralist society to such a point that fairness becomes illusory. The proposal enunciated in this paper, however, gives due regard to both arguments and does so in a way that simultaneously respects divergent value systems and cultural beliefs and the objectivism and aims of the criminal justice system.

May 18, 2005 06:36 PM | TrackBack

This is a provocative and thoughtful post. I have a couple of nitpicks and then some broader questions.

1) I don't think you're using the term "mens rea" correctly. As I learned it, mens rea does not connote an intention to violate the law; rather, it means to intentionally perform the action that society defines as violative of law. That's why ignorance of the law is not a defense, because it doesn't negate mens rea.

2) Keep your procedural terminology consistent. Your post at one point references "civil procedure" instead of "criminal procedure." Also, I don't think an Answer is ever used in criminal proceedings.

1) What is the effect of the proposed cultural defense mechanism that you are setting forth? Would it be grounds for acquittal, or simply reduction of sentence?

2) Take us through an example. How would the legal mechanism you've described deal with an honor killing, in which a parent or brother kills a girl who has been raped (or who has had consensual non-marital sex) in order to restore the honor of the family? Such killings are well-established in certain cultures; indeed, there was one case in Pakistan where a religious court ordered the killing. It seems like a case could easily be made that the lowest level of scrutiny should apply, but perhaps you could walk us through what factors should be considered at what stage and by whom (judge vs. jury).

3) It seems to me that the cultural defense you've set forth would have been applicable to a Southern white man brought up on lynching charges in the 1940s, or to a Mormon charged with bigamy. Do you agree?

4) There are lots of instances where the criminal law has been used to force changes in public attitudes as to what constitutes acceptable behavior, in areas such as domestic abuse, racial/sexual harassment, and drunken driving. In each of these cases, behavior that society previously condoned has now been strongly criminalized. If it is acceptable to use criminal punishment as a means to change the general public's attitudes toward what constitutes a crime, why is it not also acceptable to use criminal law in the same way to force changes in the attitudes of the immigrant community?

5) Multiculturalism carries great virtues in many contexts. However, as you point out in your post, the recognition of a cultural defense will most often serve to strip a layer of legal protection away from persons that society would likely consider especially vulnerable: immigrant women and children from paternalist societies. Doesn't the cultural defense essentially posit that other cultures value the lives of these individuals less than ours does? Why is it progressive, or even a good thing at all, for our society to defer to such views?

Posted by: Tom T. at May 21, 2005 06:12 PM

I believe everyone should be allowed a cultural defense. Why not indeed? If a person belongs to a Muslim group where Honor Killing is acceptable,(if not legal,)still, why not allow it? The girl may may have been raped, or even gave herself to a boyfriend because she wants to. The family should be able to use the cultural defense if they kill her. If a Hmong kills six unarmed hunters, for no reason, why not let him? It's the hunters fault for not respecting his culture. The fact that he had been in Wisconsin 30 years should have no bearing on the case. They should respect the hunting and land ownership customs of the Hmong

We must realize we are a diverse people. We are a nation of more than 2000 religions,and as many cultures. It is our duty to welcome them all, and they must be allowed to keep their cultures intact. Who are we to insist on their obeying unfamiliar laws and strange American customs. We pride ourselves on being a land of richness and diversity. Now lets prove it. And I believe we must have a least 5 national languages. English, Spanish, Chinese, Russian, and of course Ebonics.

Posted by: mel wigersma at August 29, 2005 05:16 PM
Post a comment

Remember personal info?

Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Dave (e-mail) #
Craig (e-mail) #
About Us
Senior Status
Chris Geidner #
Jeremy Blachman #
Nick Morgan #
Wings & Vodka #
Recent Opinions
Persuasive Authority
De Novo Reporter

Powered by
Movable Type 3.21