Cultural differences: New defense tactic?

By Diane Curtis
Staff Writer

A Mexican-American man is convicted of second-degree murder for shooting a poker companion who used an offensive slur about the defendant’s mother. A Muslim Albanian man in Texas loses his parental rights for touching his daughter’s genitals. A Thai man who shows no remorse or other emotion for his part in a Garden Grove robbery in which two people were killed receives the death penalty.

Renteln

All three were influenced in their actions by their native culture, says University of Southern California professor Alison Dundes Renteln, and that culture, she believes, should have been considered in each of those cases, an argument she makes in her chapter of the new book, “Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense,” which she co-edited with Marie-Claire Foblets of the University of Leuven in Belgium.

“Cultural differences deserve to be considered in litigation because enculturation shapes individuals’ perceptions and influences their actions,” she writes in the book. She is calling for formal acceptance in the legal community of a cultural defense in which legal systems acknowledge “the influence of cultural imperatives” in illegal acts.

A judge in fact did consider the Albanian man’s culture in which touching a child has no sexual meaning and is an accepted form of affection and comfort. The man was acquitted of child sexual abuse although he did lose his parental rights. Renteln says such consideration should be the rule rather than the exception, and she also questions whether the interests of the family were served by separating the father from his child.

“Touching children in the genital area should probably be discouraged not only because parents will encounter difficulty with the law, but also because children caught between two cultures may feel uncomfortable if they realize it is considered inappropriate conduct in the larger society. But incarcerating parents or breaking up families are illegitimate means of inculcating new values,” she writes in “The Cultural Defense.”

Like an insanity plea

The author is not, she emphasized in an interview with the Bar Journal, advocating leniency for all defendants whose culture may put them at odds with U.S. law. “I do think the courtroom door should be open to the consideration of culture. That doesn’t mean I think the argument should always prevail,” says the USC professor of political science and anthropology, who also has a law degree from USC and a Ph.D. in jurisprudence and social policy from UC Berkeley.

But when culture has played any part in an illegal action, she does think the judge or jury should be made aware of the fact, whether or not it is a factor in their determination of guilt or innocence or influences the sentence.

A cultural defense would be much like an insanity plea or taking into consideration such social attributes as gender and age, Renteln says.

The Mexican-American man shot his poker companion after the card player used an expression considered the worst possible insult to someone’s mother in Mexico. The defendant’s lawyer did try to introduce evidence to show provocation — that the average Mexican would have been provoked by the phrase, much as a jealous husband can use a provocation defense if he attacks or kills his wife and/or her lover. The court decided the context of the defendant’s response was irrelevant.

“By excluding the cultural evidence, the court effectively made it impossible for him to raise the provocation defense,” Renteln writes.  “The philosophical difficulty here is that a criminal defense, theoretically available to all, in reality cannot be used by individuals from other cultures because they are provoked by insults different from those that would offend the objective reasonable person.”

Possibly surprising to some, Renteln opposes a provocation defense. “I think the law should expect people to have self-control,” she says. But if there is one, an individual’s culture should be allowed to be introduced to explain the provocation.

The Thai man who was sentenced to death was holding to Thai tradition about enlarging “the circle of shame” when he refused to name the murderer. And in showing no emotion, he was adhering to a culture in which revealing no feelings, even under extreme stress, is valued. “His stoic demeanor did not mean he lacked remorse, something which U.S. juries often require if they are to spare a defendant’s life,” Renteln writes. The defendant may or may not have been spared the death penalty if more had been known about Thai culture, the author concludes, “but at least the trial would have been more fair.”

Currently, the tendency in courts, Renteln says, is to exclude any consideration of culture. She would be pleased if the mind-set alone would change but ultimately her goal is to write in cultural consideration as part of jury instructions and public policy.

If and when that happens, she suggests a cultural defense test that courts could use to avoid misuse of the defense.

She says courts should get satisfactory answers to three questions:

1. Is the litigant a member of the ethnic group?

2. Does the group have such a tradition [as the litigant claims]?

3. Was the litigant influenced by the tradition when he or she acted?

“Even if they can authenticate their claims, courts might still wish to reject the cultural defense,” she writes in the new book. “Where cultural traditions involve irreparable harm to vulnerable groups, the defense should not influence the disposition of cases. To prevent improper use of the cultural defense, one must ask first whether the claim is factually accurate as an empirical matter, but then go on to determine whether accepting the claim that the right to culture should permit the custom risks undermining other important human rights, such as the rights of women and children.”

She is well aware she has to tread lightly in pushing her controversial agenda, not wanting to risk a backlash before she has had a chance to make herself heard and understood.  She wants the idea to sink into public  — or at least legal — consciousness before seeking a more formal policy.  “I just am trying to get people open to the idea,” she says.

“When legislatures deal with culture on a policy level, they tend to ban the custom,” she adds. “Just after Hawaii had the first case on same-sex marriage, we ended up with a law. It’s called the Defense of Marriage Act.”

Gaining acceptance

Still, Renteln sees signs that her message is gaining a larger audience, both in readers of “The Cultural Defense,” and in increased invitations to speak to bar associations and at legal and social policy conferences around the world. “At least it’s on the radar now,” she says.

Her “thoughtful” opponent at some of these conferences, she says, is Duke University law professor Doriane Coleman. Coleman is far from arguing that country of origin should have no relevance at all. Yet she also believes that a crime is a crime.

Like Renteln, Coleman says, “my position isn’t really simple. I don’t think there should be a fullblown cultural defense in the sense that I don’t think a defendant should be able to get away with a crime that clearly has been committed. In that sense I’m in a ‘when in Rome, do as the Romans do’ box.”

Every country, she says, has a right to its own social norms. “Having said that, though, there are lots of cases where cultural evidence in my view is appropriately included,” such as in the case of the Albanian father whose touching had no sexual intent.

Renteln welcomes further discussion and wants to be sure that possible abuses are addressed. But ultimately, she would like a formal recognition of the need to consider culture in trials. “It is imperative that the cultural defense be established as official policy,” she writes. “In order for this to be possible, policies must be formulated which ensure careful review of cultural claims … The right to culture is an important human right, but it should be protected only so long as it does not undermine other human rights.”