Chapter 11
CULTURAL DEFENSE?
 With the large numbers of immigrants coming to the
United States, inevitably some immigrants end up in
the court system
 As a result, a new “cultural defense” has arisen
 Under the cultural defense, defendants state that
they committed the act in question, but the act is
legal under the laws of their home country
 Generally, persons using the cultural defense are still
found guilty, but of a lesser offense and/or given a
lesser penalty
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For example, in California, a refugee member of the Hmong
mountain tribe of Laos killed his wife for having an affair
He was convicted of manslaughter, not murder
His lawyer argued that there was no provision for divorce in
the Hmong culture and that a Hmong husband was required to
“execute justice” in such circumstances as one traditional
option
The man was sentenced to just eight years in prison
 In another case, a woman who had come to the
United States from Japan 14 years earlier as a young
adult tried to drown herself and her two children
after learning of her husband’s affair
 She survived, but the children did not
 She was charged with murder, but 4,000 Asian
immigrants signed a petition pointing out that in
Japan, the ancient rite of oyako-shinju (parentchild) suicide is not considered murder
 The woman pled guilty to manslaughter and was
sentenced only to probation
 Arguments in favor of the culture defense include
that it helps explain a defendant’s personal
circumstances
 This coincides with traditional American notions of
individualized justice and cultural pluralism
 Supporters of this defense state that they are not
concerned with the social implications of other
immigrants thinking their behavior will be tolerated,
because the concern of the criminal court is whether
or not the defendant is guilty based on the evidence
 Those opposing the use of the cultural defense argue that it
exposes U.S. courts to patriarchal values from abroad to the
detriment of immigrant women and children, many of whom
were treated as second-class citizens in the countries they left
behind
 Opponents also say that the customs claimed by many
defendants may no longer be permitted in their homeland
 They argue that foreign customs should not override U.S. law,
and that every newcomer residing in the United States is
bound to obey the laws of this country
 Some are concerned with backlash: if newcomers receive
lesser penalties or are convicted of lesser crimes, some may
think that immigrants are able to unfairly circumvent the U.S.
legal system and get away with crimes that indigenous
American citizens would not