CULTURAL PLURALISM IN CRIMINAL DEFENSE:
AN INNER CONFLICT OF THE
LIBERAL PARADIGM
Sam Beyea*
INTRODUCTION
..............................................
705
I. HISTORICAL BASES AND CURRENT USES OF THE
CULTURAL DEFENSE .............................
11. RATIONALES AND ARGUMENTS IN FAVOR OF THE
CULTURAL DEFENSE
.............................
III. CRITICISMS OF THE CULTURAL DEFENSE .............
IV. MoRALITY, JUSTICE, THE LAW: THE LIBERAL
PARADIGM .................
..........
A.
B.
The "Liberals'Dilemma"
....................
The Enlightenment and the TraditionalLiberal
Paradigm....
...............................
C. Modern Liberalism and Pluralism ...............
CONCLUSION......
..........................................
707
715
721
727
727
728
732
735
INTRODUCTION
This Note will discuss the development of the so-called "cultural
defense" and its current use in American jurisprudence. It will consider
academic arguments which propound the cultural defense and those
that oppose it, identify the contradictions and divisions between these
conflicting viewpoints and seek to reconcile them. It will engage in an
analysis of the defense from the perspective of philosophical traditions
deeply rooted in the political and legal systems of the United States.
Finally, it will propose a solution to the problems the cultural defense
presents.
The term "cultural defense" describes a wide swath of criminal defenses where evidence regarding a particular defendant's cultural heritage is introduced as part of an accepted affirmative defense, such as
mistake of law, heat of passion, extreme emotional distress, diminished
* Candidate for Juris Doctor Benjamin N. Carodozo School of Law, 2014; Associate Notes
Editor, Cardozo Public Law, Policy & Ethics Journal;B.A. in History, with honors, University of
California-Santa Cruz, 2010.
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V 12:705
[Vol.
capacity, or insanity.' It "is raised at all stages of the legal process, such
as arrest, prosecution, plea bargaining, defense, and sentencing." 2 The
defense, however, is not formally recognized, nor is culture used as a
purely independent defense. Many observers object to the application
of the cultural defense to shocking crimes of a brutal and tragic nature
including murder, rape, and mutilation. Many oppose the use of the
defense, at least in its current form, and offer a variety of arguments why
it should be abandoned.
In general, the cultural defense is justified by the principle of individualized criminal justice in an increasingly diverse society.
There are two situations in which strict application of the law might
be unfair to a person raised in a foreign culture. First, such a person
may have committed a criminal act solely because she was ignorant of
the applicable law. . . . Second, an ordinarily law-abiding person
raised in a foreign culture may have committed a criminal act solely
because the values of her native culture compelled her to do so.
In our society, which places particular value on multicultural plurality, the cultural defense enjoys the support of many observers. Some
even propose the formal adoption of a pure cultural defense. This emphasis on cultural plurality stems from values traditionally associated
with liberalism, but, as applied to the cultural defense, it creates an inner
tension, a self-contradiction within the liberal paradigm. This Note will
attempt to describe this inner conflict of the liberal paradigm, and,
hopefully, provide some resolution.
Part I of this Note will examine the historical bases of the cultural
defense and provide real-life examples of its successful use. Part II will
present various arguments in favor of the cultural defense and proposals
for its continued use. Part III will present criticisms of the cultural defense. Part IV will introduce a philosophical discussion which will address the following questions: what are our society's moral bases for our
presupposed standards for morality-based regulation and law enforcement; and, in an increasingly pluralistic society, to what extent is it per1 See, e.g., Aahren R. DePalma, I Couldn't Help Myself-My Culture Made Me Do It: The
Use of CulturalEvidence in the Heat ofPassion Defense, 28 CHICANO-LATINo L. REv. 1 (2009).
2 Elizabeth Martin, All Men Are (or Should Be) CreatedEqual An Argument Against the Use
of the Cultural Defense in a Post-Booker World, 15 WM. & MARY BILL Rrs. J. 1305, 1307
(2007).
3
Note, The Cultural Defense in the CriminalLaw, 99 Harv. L. Rev. 1293, 1299 (1986).
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
707
missible to impose our morality on other cultures with disparate moral
standards? Part IV is divided into three subordinate sections. Section A
will identify the contours of the "liberals' dilemma"' and the fundamental questions the cultural defense raises. Section B will discuss the paradigm of traditional liberalism in which the moral presuppositions
underlying the legal system of the United States are deeply rooted. Section C will provide contrast between traditional liberalism and the modern political paradigm, which places greater emphasis on plurality.
Finally, I assess the relative strength of the arguments for and against the
cultural defense in light of the analysis in Part IV. It will propose a
system for dealing with culture as a criminal defense in the future.
I.
HiSTOiUcAL BASES AND CURRENT USES OF THE
CULTURAL DEFENSE
Suppose a recently immigrated Arab Muslim is living in the United
States. He just discovered that his niece engaged in pre-marital sexual
relations with an American man without the knowledge or consent of
her family. After the accepted custom of his people, and unknowing
that such act is expressly prohibited by the criminal law of the United
States, he killed his niece to protect the honor of his family.5 Now he
finds himself at the mercy of a criminal justice system he does not understand, and he does not believe he has done anything wrong. How
will the courts determine his fate?
Our analysis begins with the traditional common law rule, which
traces back to Roman law: ignorantialegis neminem excusat, "ignorance
of the law does not excuse." 7 This maxim is the central premise of the
mistake-of-law doctrine.' Criminal jurisprudence required the rule for
essentially pragmatic and utilitarian policy reasons. 9 The first reason is
that the law must be able to "eliminate fraudulent claims of ignorance .
.
. [h]ere, objectivity is favored over subjectivity .
. .
. [A] strict
4 Doriane Lambelet Coleman, IndividualizingJusticeThrough Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REv. 1093 (1996).
5 See John Alan Cohan, Honor Killings and the CulturalDefense, 40 CAL. W. INT'L L.J. 177
(2010). See also Raman Singh, A Holey Cause: Sharia as a CulturalDefense, 117 PENN ST. L.
REv. 595 (2012).
6 See Edwin R. Keedy, Ignorance and Mistake in the CriminalLaw, 22 IARv. L. REv. 75
(1908).
7 Sharon L. Davies, The Jurisprudenceof Willfulness: An Evolving Theory ofExcusable Ignorance, 48 DuKE L.J. 341 (1998).
8 See, e.g., Cheek v. United States, 498 U.S. 192 (1991).
9 See, e.g., People v. Marrero, 507 N.E.2d 1068 (N.Y. 1987).
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line is drawn, even if some individuals lose."'o The second reason is
that, without the ignorantialegis maxim, citizens would have an incentive to remain ignorant of the law." For these reasons, there existed the
necessary common law fiction that the law is "definite and knowable"
and that all citizens are presumed to know the law.12 Thus, according
to ignorantialegis, no criminal defendant can claim ignorance of law as
an affirmative defense: their prosecution and their punishment will be
no different than those of a criminal who committed an unlawful act
with full awareness of the potential consequences.
However, evolution of criminal law has carved out certain limited
exceptions to the ignorantialegis maxim. The legal fiction which underlies this traditional maxim "has become indefensible in fact or logic." 13
"The notion that all men are presumed to know the law is an obvious
fiction and 'so far-fetched in modern conditions as to be quixotic.'" 4
Exceptions developed out of necessity due in large part to the vast body
of law in the modern legal system, including many prohibitions on
"conduct not previously deemed criminal (malum prohibitum). This development has severed, at least partially, the automatic linkage of criminal conduct with violation of community moral standards and has
rendered untenable the inference of awareness of wrongdoing based
upon the mere commission of the act."1 5 Consequently, not even lawyers, let alone laypeople, are in a position to know the entire criminal
statutes operative in their jurisdiction at a given time. "[T]oday's time
features a profusion of laws, with many being 'exceedingly intricate,'
such that 'a person can reasonably be mistaken about the law.' "16 Still,
to allow a mistake-of-law defense whenever a criminal defendant can
assert their own mistaken interpretation of the operative statute would
10 Norman J. Finkel & Jennifer L. Groskup, When Mistakes Happen: Common Sense Rule of
Culpability,3 PSYCHOL. PuB. POL'Y & L. 65, 80 (1997); see also Thomas W. White, Reliance on
Apparent Authority as a Defense to CriminalProsecution, 77 COLUM. L. REv. 775, 785-86 (1977)
("[I] f ignorance of the law were recognized as an excuse ... defendants would always defend on
this ground, and courts would be confronted with questions they could not solve . . . whether
such ignorance was inevitable or due to the defendant's own negligence.").
11
See, e.g., Marrero, 507 N.E.2d at 1068.
Cheek, 498 U.S. at 199.
13 White, supra note 10, at 784.
14 David De Grigorio, 54 BROOK. L. REv. 229, 252 n.112 (1988) (quoting WAYNE R.
12
LAFAVE & AuSTIN W. Scorr, HANDBOOK ON CRIMINAL LAw
15
16
(1972)).
White, supra note 10, at 784.
Finkel & Groskup, supra note 10, at 80 (quoting JOSHUA DRESSLER, UNDERSTANDING
CRIMINAL LAw 148 (2d. ed. 1995)).
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
709
be impermissibly expansive, 17 so the class of exceptions to the traditional
maxim remains strictly limited.
Understanding the distinction between crimes that are malum
prohibitum8 from crimes that are malum in se 59 provides a helpful frame
for looking at the limited exceptions to the ignorantialegis maxim.20 In
the Roman era, when the ignorantia legis maxim was fully operative
without exception, not only were there fewer criminal prohibitions, but
most were self-evidently malum in se crimes. 21 There are essentially two
categories of ignorantia legis exceptions which apply to malum prohibitum crimes: the first is the doctrine of official reliance, and the second
involves lack of notice in the context of heavily regulated areas of the
law. 2 2
The doctrine of official reliance protects criminal defendants who
rely on advice from a source of official legal authority which misleads
them as to the legality of an act, provided such reliance is reasonable and
in good faith. 2 3 The doctrine generally does not apply where a defendant relies on advice from an attorney, however, defendants can use
the defense effectively if they relied on official statements, representations, or interpretations of the law from a variety of official sources.2 5 In
17 See, e.g., United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) (defendants charged with
smuggling illegal immigrant refugees across Mexico-Arizona border could not establish mistakeof-law defense by proffering evidence of their misunderstanding of status of aliens, based on
their statutory construction); People v. Marrero, 507 N.E.2d 1068 (N.Y. 1987) (defendant's
mistaken interpretation of unlawful firearms possession statute which exempted "peace officers"
held to be no defense, even though defendant's interpretation was reasonable).
18 Latin for "prohibited evil," malum prohibitum describes "[a] n act that is a crime merely
because it is prohibited by statute, although not necessarily immoral." BLACK'S LAw DICTIONARY 472 (4th pocket ed. 2011).
19 Latin for "evil in itself," malum in se describes "[a] crime or an act that is inherently
immoral, such as murder, arson, or rape." Id.
20 See, e.g., Marrero, 507 N.E.2d at 1068; see also White, supra note 10.
21 See Marrero, 507 N.E.2d at 1068 (objections to the traditional ignorantia legis maxim
"may have had less force in ancient times when most crimes consisted of acts which by their very
nature were recognized as evil.").
22 See Finkel & Groskup, supra note 10, at 80; see also White, supra note 10, at 785-86.
23 See, e.g., White, supra note 10.
24 See, e.g., Hopkins v. State, 69 A.2d 456 (Md. Ct. Spec. App. 1949).
25 "A belief that conduct does not legally constitute an offense is a defense to a prosecution
for that offense based upon such conduct when: he acts in reasonable reliance upon an official
statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute
or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or
grant of permission; or (iv) an official interpretation of the public officer or body charged by law
with responsibility for the interpretation, administration or enforcement of the law defining the
offense." MODEL PENAL CODE § 2.04(3)(b) (2013).
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United States v. Albertini, defendants successfully argued mistake of law
where the official reliance was on a prior judicial decision.26 In State v.
Leavitt, defendants successfully argued mistake of law where the official
reliance was on representations from a judge in the course of his official
duties.
Mistake of law also becomes a necessary exception to ignorantia
legis in the context of heavily regulated areas of law. Heavily regulated
areas include the tax code 28 and administrative bureaucracies like the
welfare system. 2 9 The problem in this context is a lack of notice regarding the illegality of malum prohibitum offenses. The Court in United
States v. Cheek was tasked with determining whether a defendant who
failed to file his federal income tax was guilty of tax evasion. 30 The
defendant was mistaken as to the nature of the law; based on his own
private research in the matter, he had concluded that he was not required to pay a tax on his wages.3 There was no official reliance, but
the Court found that "[t]he tax offenses with which [defendant] was
charged [were] specific intent crimes that require the defendant to have
acted wilfully."13 2 The Court reasoned that the legislators' inclusion of
this willfulness element in the statute was purposed to protect law-abiding taxpayers who, in good faith, commit innocent errors within our
26 472 U.S. 675 (1985) (The defendants in Albertini were charged with unlawful trespass
after a demonstration of protest on a U.S. military base. The circuit court set aside the protesters conviction based on their First Amendment rights. The case was then appealed and certiorari was granted to the Supreme Court. Immediately following the circuit court's decision, the
protestors again demonstrated at the military base. The Supreme Court ultimately found them
guilty of the offense of the first protest, but, as to their separate charge for the second protest,
the circuit court acquitted the defendants based on the mistake-of-law defense since their misapprehension was in reasonable reliance on an official statement of the law.).
27 Following a misdemeanor domestic violence conviction, the convicting judge notified
Leavitt that he could not lawfully possess a firearm over a one-year probation. The judge was
required by law to give defendants this notice, but he erred in that he failed to inform Leavitt
that, in fact, he could not lawfully possess a firearm ever again. Relying on the judge's statement, Leavitt gave his guns to his brother for safekeeping, then took them back after a year had
passed. Police officers subsequently discovered guns in his car. Even though unlawful possession of a firearm is a strict liability offense, traditionally not subject to the mistake-of-law defense, because of the defendant's reasonable reliance on the judge's official statement, his
mistake-of-law claim was successful. State v. Leavitt, 27 P.3d 622 (Wash. Ct. App. 2001).
28 See, e.g., Cheek v. United States, 498 U.S. 192 (1991).
29 See, e.g., Liprota v. United States, 471 U.S. 419 (1985).
30 Cheek, 498 U.S. at 192.
31 See id.
32 Id. at 194 (emphasis added).
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
711
complex taxpaying system.3 3 Since the defendant's decision not to pay
income tax was based on his mistaken understanding of the law, it
might be argued that he did not willfully break the law. Nevertheless,
the Supreme Court found that the defendant's failures to file were not
the result of innocent, good faith errors, and thus he was not in the class
of persons the legislators of the statute included the willfulness element
to protect.
The foregoing exceptions to the ignorantia legis neminem excusat
maxim apply only in the context of malum prohibitum violations, not
malum in se. After all, "[elven in today's age, a claim that someone
didn't know it was illegal to murder, rob, burglarize, or rape would be
dismissed swiftly."35 To most of us observers, it would seem self-evident
that a defendant could not successfully assert official reliance or lack of
notice as a defense for malum in se offenses such as these.
However, mistake-of-law exceptions for specific intent crimes
which include willful, knowing, or intentional violation as a definitional
element may apply in the malum in se realm as well. Unlike strict liability crimes, such as unlawful possession of a firearm3 6 or sale of illicit
substances,3 7 which do not require this willfulness element, specific-intent crimes may in some cases recognize mistake-of-law as a viable defense. "When a specific criminal intent, as distinguished from the
criminal mind, is a requisite element of the offense, and such intent is
negatived by ignorance or mistake, it is held that the defendant shall not
be convicted, notwithstanding the maxim [ignorantialegis neminem excusat] ."38 The Model Penal Code recognizes this exception:
33 "Statutory willfulness, which protects the average citizen from prosecution for innocent
mistakes made due to the complexity of the tax laws, is the voluntary, intentional violation of a
known legal duty." Id. at 192; accord United States v. Murdock, 290 U.S. 389 (1933).
34 Cheek, 498 U.S. at 192.
35 Finkel & Groskup, supra note 10, at 80; see also Davies, , supra note 7.
36 See, e.g., People v. Marrero, 507 N.E.2d 1068 (N.Y. 1987); but cf State v. Leavitt, 27
P.3d 622 (Wash. Ct. App. 2001) (reversing a conviction even though defendant's firearm possession was a strict liability offense because of defendant's official reliance on statements made by
convicting judge in prior offense).
37 See, e.g., United States v. Ansaldi, 372 F.3d 118 (2d Cir. 2004) (holding that offender
charged with sale of GBL (gamma butyrolactone), which converts to GHB in the body, could
not claim mistake-of-law based on lack of notice for statutory vagueness because drug offenses
are strict liability crimes).
38 Keedy, supra note 6, at 89; accord, e.g., State v. Wickliff, 875 A.2d 1009 (N.J. Super. Ct.
App. Div. 2005) (holding that a bail collection agent charged with criminal trespass, who entered home without consent to search for and seize fugitive, was entitled to present evidence that
his education and training allowed him to believe that he was acting in conformity with law
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[Vol. 12:705
Ignorance or mistake as to a matter of . .. law is a defense if: the
ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the
offense; or the law provides that the state of mind established by such
ignorance or mistake constitutes a defense. 39
This specific intent exception can also mitigate as well as exculpate.
The Model Penal Code further provides:
Although ignorance or mistake would otherwise afford a defense to
the offense charged, the defense is not available if the defendant would
be guilty of another offense had the situation been as he supposed. In
such case, however, the ignorance or mistake of the defendant shall
reduce the grade and degree of the offense of which he may be con-
victed to those of the offense of which he would be guilty had the
situation been as he supposed. 40
This exception, which can apply even to malum in se crimes, provides the legal basis for the cultural defense; there are situations in which
the law provides for a mistake-of-law defense such that a defendant who
is wholly unaware of the wrongfulness of his act cannot be said to have
the requisite state of mind to sustain a conviction.
Another way of framing these mistake-of-law doctrine protections
is in terms of constitutional due process protections. The Fifth Amendment to the United States Constitution provides: "[n]o person . . . shall
be compelled in any criminal cases to . . . be deprived of life, liberty, or
property without due process of law."" The Sixth Amendment provides: "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the accusation." 4 2
The Fifth, Sixth, and Fourteenth Amendments together, along with Article I of the Constitution, 3 provide due process and equal protection
when he entered); State v. Newkirk, 49 Mo. 84 (1871) (reversing a judgment against defendant
where mistake as to legal ownership rights negated the specific intent element of malicious
trespass).
39 MODEL PENAL CODE § 2.04(1) (2013).
40 Id. § 2.04(2).
41 U.S. CONST. amend. V. "No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1.
42 U.S. CONST. amend. VI.
43 "No ... ex post facto Law shall be passed [by Congress]." U.S. CONST. art. I, § 9, cl. 3;
"No State shall ... pass any . . . ex post facto Law." U.S. CONST. art. I, § 10, cl. 3.
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
713
protections to criminal defendants. These constitutional protections
can be represented by another traditional maxim of Roman law: nulla
poena sine lege.14 Constitutional due process guarantees criminal defendants protection against retroactive application of law4 5 and laws
which are impermissibly vague such that it is not clear what conduct
they forbid or require. 6
But this nulla poena sine lege fair-warning principle begs the question: what if the accused does not speak English, possesses little to no
familiarity with the criminal laws of the United States, and retains a
cultural sense of morality that radically differs from that which prevails
in the United States? Do constitutional due process and the exceptions
44 "No punishment without law." Beth Van Schaack, Crimen Sine Lege:JudicialLawmaking
at the Intersection ofLaw andMorals, 97 GEO. L.J. 119, 121 (2008). "Nullapoenasine lege is not
only ancient maxim; it is a requisite of due process." United States v. Bodiford, 753 F.2d 380,
382 (5th Cir. 1985). See also Nancy S. Kim, The Cultural Defense and the Problem of Cultural
Preemption:A Frameworkfor Analysis, 27 N.M. L. REv. 101, 104 (1997) ("[A] basic premise
upon which criminal law rests . . . based upon the notion of fairness, is the premise that there
must be advance warning to the public as to what conduct is criminal and how such conduct
will be punished.").
45 See, e.g., Lynce v. Mathis, 519 U.S. 433 (1997) (upholding defendant's challenge that
state statute violated ex post facto clause by increasing prisoner's punishment where statute
retroactively cancelled defendant's provisional early release credits awarded to alleviate prison
overcrowding); Keeler v. Amador Cnty., 470 P.2d 617 (Cal. 1970) (holding that defendant who
killed his pregnant wife could not be convicted of second charge of murder for death of unborn
child since an unborn but viable fetus is not a "human being" within meaning of statutory
definition of murder (subsequently superseded by new statute)); see also Bouie v. City of Columbia, 378 U.S. 347 (1964) (holding that unforeseeable judicial enlargement of criminal statute,
applied retroactively, operates precisely like "ex post facto law," defined as one that makes action
done before passing of law, and which was innocent when done).
46 "It is established that a law fails to meet the requirements of the Due Process Clause if it is
so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or
leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited
and what is not in each particular case." Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966).
"[A] statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application" is
repugnant to the due process clause. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)) (holding that New Jersey statute
making it illegal to be a gangster was impermissibly vague as to the conduct it prohibited). See,
e.g., City of Chicago v. Moralez, 527 U.S. 41 (1999) (holding that statute criminalizing "loitering" was impermissibly vague both in terms of defining conduct proscribed and providing
guidelines for enforcement); McBoyle v. United States, 283 U.S. 25 (1931) (holding that statute
forbidding transport of stolen vehicle across state lines was vague as to status of aircraft as "vehicles" such that conviction would violate due process); United States v. Dauray, 215 F.3d 257
(2d Cir. 2000) (where the court applied rule of lenity to resolve statutory ambiguity in defendant's favor where statute proscribing possession three or more depictions of child
pornography).
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to the ignorantialegis maxim extend so far as to protect minority defendants who claim culture as an excuse?
Let us again return to the hypothetical of the recently immigrated
Arab Muslim living in the United States of America. Having just discovered that his niece engaged in pre-marital sexual relations without
the knowledge or consent of our family, he killed her to protect the
honor of his family in accordance with his culturally expected practice.17
How will American courts determine his fate? Precedent suggests he
may successfully avoid criminal liability for this killing or at least have
his sentence reduced.
Many cultural defense crimes involve this sort of male violence
against women. In New York, a recent immigrant from China bludgeoned his wife to death with a claw hammer for infidelity.48 He claimed
that this was an accepted Chinese custom used to dispel shame. He was
acquitted of murder charges, convicted of the lesser crime of manslaughter, and only received five years probation for his crime. Also in New
York, a Laotian refugee murdered his wife because of the shame he felt
after she openly displayed affections for another man.49 He appealed his
conviction, and the Court of Appeals awarded him a new trial holding
that the trial court erred in excluding expert testimony concerning the
"stress and disorientation Laotian refugees [encounter] in attempting to
assimilate into the American culture" in order to establish defendant's
extreme emotional disturbance defense."o In California, a Hmong immigrant from Laos abducted and raped a young Laotian-American woman.51 He argued this act was an accepted and even expected method
of choosing a bride among his tribe and that he understood the victim's
protestations as a cultural mode of giving consent. He was only sentenced to 120 days in jail and nine-hundred dollars in reparations paid
to the victim.
Other instances of successful use of the cultural defense involve
female defendants. In California, a Japanese-American mother, upon
47 See Cohan, supra note 5; see also Singh, supra note 5.
48 People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Mar. 21,
1989). See also DePalma,supra
note 1; Rosie M. Williams, Why the "CulturalDefense" Belongs to "Us", 22 ME. B.J. 36 (2007);
Melissa Spatz, A "Lesser" Crime: A Comparative Study ofDefenses for Men Who Kill Their Wives,
24 COLUM. J.L. & Soc. PROBS. 597 (1991); Coleman, supra note 4, at 1093 (1996).
49
See State v. Aphaylath, 502 N.E.2d 998 (N.Y. 1986).
50 Id. at 999.
51
See People v. Moua, 2013 WL 166400 (Fresno Cnty. Super. Ct. 1985). See also Wil-
liams, supra note 48; Coleman, supra note 4.
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
715
discovering her husband's infidelity, drowned her two young children
before attempting to kill herself.52 In defense, she claimed she was participating in the time-honored Japanese tradition of parent-child suicide
known as oyako-shinju. The court acquitted her of murder charges, but
convicted her of the lesser offense of voluntary manslaughter. As a result, she spent only one year in county jail while on trial followed by five
years probation and court-ordered psychological counseling. In Georgia,
a Somali immigrant woman allegedly cut off her niece's clitoris and partially botched the operation." The woman argued this was a timehonored custom of female circumcision designed to ensure a young woman's premarital chastity. The State was unable to convict her on child
abuse charges.
Any American-born citizen would be punished to the full extent of
the law. But, how can I be found to have criminal intent when I truly
was unaware that the prevailing culture of the United States considered
my action wrongful or that my action carried penal consequences? Is it
fair for the laws of a nation with as much diversity as the United States
to impose its conceptions of morality on others? Must not the state
balance the mens rea requirement against the ignorantia legis rule? In
light of the foregoing discussion, such balancing may seem consistent
with the ignorantialegis exceptions and other affirmative defenses. Nevertheless, more than a few observers find these results and the cultural
defense produce results entirely inconsistent with the legal principles of
the United States and the goals of progressive liberalism.
11.
RATIONALES AND ARGUMENTS IN FAVOR OF THE
CULTURAL DEFENSE
The United States has always been known as a diverse nation, a
nation of immigrants, but that has never been truer than it is today. As
of 2000, census results found that "over 11.1% of the entire U.S. population of 281,421,906 was born outside of the United States, translating
into approximately [thirty-one] million foreign born persons within the
[United States]."5 By 2005, the numbers had swelled to approximately
thirty-seven million foreign-born persons within the United States, and,
52 See People v. Kimura, No. A-091133 (L.A. Super. Ct. 1985). See also Alison Dundes
Renteln, A Justification ofthe CulturalDefense as PartialExcuse, 2 S. CAL. REv. L. & WOMEN'S
STUD. 437 (1993); Coleman, supra note 4.
53 See Coleman, supra note 4, at 3.
54 DePalma, supra note 1, at 4.
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[Vol.
of these, an estimated 11.1 million were undocumented immigrants.5 5
Recent numbers show the percentage of foreign-born residents in the
United States has risen to an average of 12.8% during the years 2007 to
201 1.56 In addition, "[m]ost of the immigrants who come to the U.S.
illegally do not intend to remain here permanently,"57 so they have less
incentive to familiarize themselves with the laws of the United States or
to abandon disparate aspects of their cultural origin. International tourists also come to the United States at high rates: twenty-nine million
tourists visited the United States in 2006 between January and August
alone.
In a time and place with less diversity and where multi-cultural
sensitivity was not a primary concern of the legal system, a foreigner
unaware of the criminality of his actions would not have been able to
avail himself of any culture-based defense. Instead, he would have been
at the mercy of the traditional maxim, ignorantia legis neminem excusat.59 As Secretary of State Daniel Webster put it in 1851:
Every foreigner born residing in a country owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty
upon him by the mere fact of his residence, and that temporary protection which he enjoys, and is as much bound to obey its laws as
native subjects or citizens. 60
Rex v. Esop, a nineteenth century English criminal case, exemplifies
this traditional approach and stands in direct contrast to the modern
cultural defense cases discussed in Part I. Therein, a sailor from Baghdad committed the crime of sodomy aboard an East India ship while
docked in a London harbor. Despite the defendant's protestations that
sodomy was not a crime in his native land, the court sustained a conviction against him. 6' From our modern perspective, the sailor's action
55
Id.
56 State d- County QuickFacts, U.S. CENSUS BuREAu,
http://quickfacts.census.gov/qfd/states/
00000.html (last visited March 3, 2013).
57 DePalma, supra note 1, at 4.
58 Id at 3.
See, e.g., Rex. v. Esop, (1836) 173 Eng. Rep. 203 (Eng.).
6 DANIEL WEBSTER, THE WORKS OF DANIEL WEBSTER 526 (1851). See Carlisle v.
United States, 83 U.S. 147, 155 (1872); see generally Taryn F. Goldstein, Cultural Conflicts in
59
60
Court: Should the American CriminalJustice System Formally Recognize a "CulturalDefense'?, 99
L. REv. 141 (1994).
61 See Esop, 173 Eng. Rep. at 203.
DICK.
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
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appears comparatively less egregious than those of the defendants in the
cases discussed in Part I, yet he was indicted fully for his crime. This
jurisprudential contrast illustrates the extent to which the modern criminal law has evolved toward a much more liberal, individualized and diversity-conscious approach.
Today, the criminal justice system of the United States "is committed to securing justice for the individual defendant . .. [T]he ultimate
aim of this principle of individualized justice is to tailor punishment to
fit the degree of the defendant's personal culpability" 62 : in other words,
the principle of proportionality. The pronounced trend toward individualized justice is exemplified by the exceptions to the ignorantialegis rule
discussed in Part I as well as the legal recognition of factors that negate
or reduce culpability in some way, such as mental illness, heat of passion
or extreme emotional distress,'6 3 addiction, diminished capacity, intoxication' and religious belief.6 5 Individualized justice creates a distance
from the legal fiction underlying the objective, "reasonable person" standard by allowing evidential inquiries into the defendant's subjective state
of mind, for example, psychological character evidence.66 The defense
may use character evidence in three ways67 : (1) to negate the specific
state of mind or mens rea that is a definitional element of the crime;68
(2) to mitigate based on a lack of mens rea or to support a "heat of
passion" excuse;6 9 or (3) to bolster an affirmative defense claim, such as
susceptibility or self-defense. 70
62 The CulturalDefense in the CriminalLaw, supra note 3, at 1298.
63 See, e.g., People v. Berry, 556 P.2d 777 (Cal. 1976).
64 See, e.g., People v. Ireland, 450 P.2d 580 (Cal.1969).
65 See, e.g., Walker v. Sacramento Cnty., 763 P.2d 852 (Cal. 1988); State v. McKown, 475
N.W.2d 63 (Minn. 1991).
66 See Andrew E. Taslitz, MyselfAlone: IndividualizingJustice Through Psychological Character
Evidence, 52 Mo. L. REv. 1 (1993).
67 See id.
68 See, e.g., United States v. Shorter, 809 F.2d 54 (D.C. Cit. 1986) (where a defendant
sought unsuccessfully to introduce evidence of compulsive gambling addiction in effort to negate statutory willfulness element for failing to pay taxes). See also Taslitz, supra note 66.
69 See, e.g., State v. Christensen, 628 P.2d 580, 583 (Ariz. 1981) (suggesting that psychiatrist's opinion that defendant had character trait of "acting without reflection" could mitigate
first-degree to second-degree murder or even manslaughter); State v. Hallman, 668 P.2d 874,
878 (Ariz. 1983) (holding that expert testimony regarding defendant's "impulsive personality"
was relevant to negate mental state for first-degree murder). See also Taslitz, supra note 66.
70 See, e.g., State v. Hodges, 716 P.2d 563, 569 (Kan. 1986) (explaining that testimony of
battered-woman syndrome is relevant to self-defense claim, both in jurisdictions that apply subjective test and those that apply objective test). See alo Taslitz, supra note 66.
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Arguably, it is a natural leap to include cultural evidence as part of
these subjective, individualized inquiries, particularly given the ever-increasing cultural diversity of the United States in the modern, globalized
context. The dual values of individualized criminal justice and pluralist
respect for cultural diversity interrelate, and the cultural defense has developed in concert with them.71
But why does the United States as a society place such value on
cultural pluralism? Proponents of the cultural defense offer a variety of
arguments as to how and why pluralism benefits society. "[P]luralism
maintains a society's vigor.
. .
. By absorbing cultural elements from a
broad spectrum of ethnic groups, American culture has remained dynamic and creative, continually evolving as it weaves threads of various
immigrant cultures into its fabric." 7 2 This has been true since the
United States was made up of colonies; the temporal processes of acceptance and synthesis of diverse peoples in the proverbial melting pot defines the United States as much as any other characteristic.
Even more fundamentally, this egalitarian ideal underlies the very
political philosophy of the United States, dating back to the founding
fathers. It is embedded in the very fabric of our democracy. Indeed, the
Constitution protects individuals from systemic discrimination via the
Due Process and Equal Protection Clauses of the Fourteenth Amendment,73 and the most vital jurisprudential decisions of the last century
have expanded these protections to further the interests of historically
disadvantaged minorities.7 4 The United States' proud diversity "measures, in part, the value that the majority places on liberty. . . . By
quashing cultural values that diverge from mainstream norms, the majority foists upon all others a single orthodoxy - a result repugnant to
the American political paragon .. .. [C]ultural pluralism ... may stand
as a bulwark against despotism." 75 As a consequence of these necessities
of egalitarian democracy, "cultural pluralism emanates from the principle . . . underlying the American system of justice." 7
71 The success of the cultural defense "[represents] victories for the twin rationales of cultural
pluralism and individualized justice." James L. Sing, Culture as Sameness: Toward a Synthetic
View ofProvocation and Culture in the CriminalLaw, 108 YALE L.J. 1845, 1848 (1999).
72 The CulturalDefense in the Criminal Law, supra note 3, at 1300.
73 See U.S. CONST. amend. XIV, § 1.
74 See, e.g., Brown v. Bd. of Ed., 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1
(1967); Lawrence v. Texas, 539 U.S. 558 (2003).
75 The CulturalDefense in the CriminalLaw, supra note 3, at 1301.
76
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It does not inevitably follow, however, that simply because peoples
of diverse ethnic and cultural backgrounds receive formally equal treatment under the law, they should receive special treatment when faced
with criminal charges.77 But for proponents of the cultural defense,
equal treatment means just that: a system of laws that apply not uniformly but variably according to the individual. Otherwise, the law will
require that minority and immigrant groups assimilate into the dominant culture at the expense of the cultural pluralism goal.
A dilemma that immigrant groups in this country have always faced is
whether to retain the customs and practices of the "motherland" or
assimilate into the dominant culture of their new home. Historically,
an immigrant group's worth in this country has been viewed in direct
connection with his "assimilability" - the extent to which the group
blended in with the dominant Anglo-European cultural landscape,
adopted "American" customs and styles of dress, and spoke the English language.7
The goal of pluralism is thwarted if "immigrant groups must be
willing to sacrifice their cultural traditions to ensure a . . . society in
which certain core values are shared by all of its members."7 9 Historically, the prevailing "notion of assimilation as a measure of immigrant
worth has been employed to vilify various unpopular immigrant groups,
leading to anti-immigrant legislation,"o racial scapegoating, and discriminatory immigration policy."" The cultural defense accords with "recognition of . . . historical abuses . . . that the old 'melting pot' social
metaphor, which privileges the erosion of cultural distinctness in the
dominant cultural stew, is obsolete and at times discriminatory."8 2 The
"most radical forms of intolerance are those which ignore or discredit
the cultural identity, traditions and values of others by taking for
77 See, e.g., Martin, supra note 2; Coleman, supra note 4.
78
Sing, supra note 71, at 1845.
79
Id.
Id. (citing Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879) (finding 19thcentury law forbidding male individuals from wearing their hair in braids, though facially neutral, specifically targeted Chinese men and violated the Equal Protection Clause)).
8 Id. at 1845-46 (citing Chae Chan Ping v. United States (The Chinese Exclusion Case),
130 U.S. 581, 606 (1889) (upholding expansion of the Chinese Exclusion Act of 1888, the
Court reasoned: "[i]f, therefore, the government of the United States ... considers the presence
of foreigners of a different race in this country, who will not assimilate with us, to be dangerous
to its peace and security, their exclusion is not to be stayed.")).
82 Id. at 1845.
80
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granted that the only acceptable system of values is our own, and by
requiring others to accept it without question."8 3 Thus, commitment to
pluralism necessitates that the law recognize the cultural defense.
Of course, defendants do not rely solely on their disparate cultural
backgrounds. Cultural evidence combines with other substantive defenses, such as extreme emotional distress, in order to reconstruct the
defendant's mental state at the time of the criminal act. Some observers,
however, go so far as to advocate the adoption of a formal cultural defense which would allow defendants to present their cultural heritage as
a pure, unaccompanied defense." One argument sees the current use as
a halfway compromise which falls short of recognizing a formal defense
by using some other substantive defense as a proxy. The current state of
the defense "[relies] on discretion and resort[s] to fictional excuse defenses;" the law uses "insufficient band-aids to patch the holes presented
by the challenge of multicultural society. "85 Another argument objects
to the conflation of culture with insanity.86 A formalized defense would
make a successful culture-based claim more attainable to defendants and
would help standardize jurisprudential approaches to the issue. "[T]he
present system is oftentimes unwilling to consider cultural issues. . . .
Thus, whether culture is considered in a given case is a matter of fortuitous circumstances. The existence of a formal cultural defense would
ensure the admissibility of evidence that pertains to the defendant's cultural background." 7 For these reasons, proponents advance the formal
recognition of the cultural defense in order to best pursue the twin aims
"of cultural pluralism and individualized justice. "88
DePalma, supra note 1, at 18 (quoting GUISEPPE MANTOVANI, EXPLORING BORDERS:
18 (1st ed. 2000)).
84 See, e.g., Rentein, supra note 52, at 505 ("Justice in a pluralistic society depends on the
formal adoption of the cultural defense as a partial excuse."); Elaine M. Chiu, CultureAsJustification, Not Excuse, 43 AM. CiuM. L. REv. 1317, 1373 (2007); Goldstein, supra note 60; The
CulturalDefense in the CriminalLaw, supra note 3. Cf, e.g., Kim, supra note 44 (proposing a
limited formal cultural defense which does not constitute a new substantive defense but serves
instead as a standardized evidentiary framework); DePalma, supra note 1 (concluding that
Courts should not recognize an absolute cultural defense, but evidence of defendants' cultural
background should be used for a heat-of-passion defense).
85 Chiu, supra note 84, at 1373.
83
UNDERSTANDING CULTURE AND PSYCHOLOGY
"[A] judgment of insanity, like a conviction, is an affront to the dignity of the accused
because it condemns conduct deemed acceptable by her culture." The Cultural Defense in the
CriminalLaw, supra note 3, at 1296.
87 Renteln, supra note 52, at 501-02.
88 Sing, supra note 71, at 1848.
86
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CRITICISMS OF THE CULTURAL DEFENSE
Taking as given the compelling state interest in creating a legal
framework that both strives for individualized criminal justice and reflects the aspirational values of a culturally pluralistic society, the question becomes: do the positive consequences of the cultural defense
outweigh the negative? This balancing analysis begins with consideration of the role criminal law plays, or should play, in society.
Generally, criminal law has five purposes or goals. First, criminal law
is intended to prevent harm to society and its individual members.
Second, criminal law is aimed at deterring future criminal acts. Third,
criminal law is intended to rehabilitate criminals through punishment,
and thus make them fit to live in society again. Fourth, the punishment dealt by criminal law is intended as retribution - giving
criminals what they deserve. Finally, criminal law educates society as
to what constitues [sic] "good" and "bad" conduct."
Proponents of the cultural defense would likely object to this fifth
purpose. It seems to allow the majority to impose its conceptions of
"good" and "bad" on minorities who might retain entirely different conceptions; this is the anti-assimilationist argument.9 o The pluralist goal
seeks assurance that the United States shall not become a nation "in
which the individuality of people's ideas and lifestyles is subordinated to
the impulse for a conformist, monolithic society."'
From another standpoint, however, it might be said that this fifth
purpose is necessary to the achievement of the other four. "Laws are
more effective in commanding obedience when individuals internalize
the underlying norms to the point where they believe that the law embodies morally correct values." 92 Placing limitations on the cultural defense, or even outright denial, does not inexorably entail the complete
assimilation of all minority cultures into the dominant culture; it only
disallows cultural practices that amount to criminal behavior the dominant culture deems morally reprehensible. Granted such prohibitions
89 Kim, supra note 44, at 103-04. See also MODEL PENAL CODE § 1.02(1) (2013) ("The
general purposes of the provisions governing the definition of offenses are: (a) to forbid and
prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (b) to subject to public control persons whose conduct indicates that
they are disposed to commit crimes .
90 See, e.g., Sing, supra note 71.
91 The Cultural Defense in the Criminal Law, supra note 3, at 1301.
92 Id. at 1300.
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will unavoidably permeate other aspects of the cultural beliefs of those
affected, but hopefully they will not go so far as to erode their belief
systems entirely. Perhaps a sort of positive adaptation is what the law
should ideally require where culture directly conflicts with the prevailing
morality of the United States. Otherwise, the cultural defense takes the
law beyond the individualized justice principle: more than making exceptions for individuals with particular psychological predispositions, it
excepts entire cultural groups, thus undermining the normative function
of criminal law essential to crime deterrence. Deterrence through threat
of punishment is "the catalytic role of [criminal] law: it drives out the
memes that a society views as harmful."9 3
In addition to deterrence, opponents of the cultural defense identify a host of other problems with the cultural defense: "(1) promotion
of stereotypes, (2) undermining the rights of immigrant women and
children, (3) unequal application of the defense, and (4) lack of fairness."94 This first problem, promotion of stereotypes, may be reflected
in the very nature of the cultural defense; it resorts to broad-stroke characterizations, often negative characterizations, of minority groups."
The cultural defense may increase popular resentment of minorities that
the law holds to a different legal standard when they commit heinous
criminal acts.
The second problem is strictly a matter of public policy and is
perhaps the most persuasive criticism of the cultural defense. The liberal political principle of equal protection should apply not only to
criminal defendants but also to their victims and potential victims.
"[A]n absolute cultural defense [creates] an unfair legal system . . .
skewed in favor of immigrant defendants . . . that provides immigrant
victims less protection than non-immigrant victims." 9' This discrepancy runs inherently contrary to the liberal paradigm. The intention to
formally imbue the legal system with compassion for individual defend93 Neal A. Gordon, The Implications of Memetics for the Cultural Defense, 50 DuKE L.J.
1809, 1833 (2001).
94 DePalma, supra note 1, at 13.
95 Id. at 14 ("[B]ecause the Japanese mother only received five years of probation for having
killed her children, this may have inadvertently implied that Japanese children are not valued as
highly as American children, and that Japanese women are much less stable than American
women." (discussing People v. Kimura, No. A-091133 (L.A.Super. Ct. 1985)). "[Unequal]
treatment tends to perpetuate stereotypes that foreign-born Americans are not held to the same
legal standard as "Americans" and unfairly groups people of a particular culture together." Martin, supra note 2, at 1308-09.
96 DePalma, supra note 1, at 15.
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723
ants is an admirable one; but is there a limit to the compassion a purportedly liberal society ought to show to those whose actions directly
run afoul of the very liberal values which lead to their compassionate
treatment before the law?
Professor Doriane Lambelet Coleman urges that we remember to
consider the victims in cultural defense cases. She asks, "[w]hat happens
to the victims - almost always minority women and children - when
multiculturalism and individualized justice are advanced by dispositive
cultural evidence? . . . They are denied the protection of the criminal
laws because their assailants generally go free."9 In accepting culturebased defenses, Professor Coleman continues, "the system effectively is
choosing to adopt a different, discriminatory standard of criminality for
immigrant defendants, and hence, a different and discriminatory level of
protection for victims who are members of the culture in question.",
Indeed, in this way minority victims are denied the fundamental protections they would otherwise receive as residents of the United States of
America. And, as Professor Coleman points out, the victims are most
often minority women and children: "Thus, the use of cultural defenses
is anathema to another fundamental goal of the progressive agenda,
namely the expansion of legal protections for some of the least powerful
members of American society: [minority] women and children"9 9 In
other words, those residents of the United States most in need of the
law's protection.
The principle of equal protection might support the cultural defense as an extension of individualized justice, but its purpose might
more properly be to ensure for all persons, regardless of race, creed, or
national origin, equal treatment before the law. Courts have historically
applied constitutional equal protection to repudiate state classifications
based on race or religion. It is not clear, however, how this would apply
to the cultural defense. How would the framers of the Fourteenth
Amendment have settled the question? Such a determination is not easily reached; in Brown v. Board of Education, the Supreme Court, upon
investigating the legislative history, found the framers' intent "inconclusive" in the context of racial desegregation.o10 It is likely, however, that
the framers did not contemplate the extension protections to criminals
97
Coleman, supra note 4, at 1095.
98 Id.
100 147
U.S.
483, 489 (1954).
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who perpetrate acts repugnant to the framers' own fundamental notions
of morality, regardless of the particular criminal's cultural background.
With regard to fairness, the cultural defense raises more fundamental questions about the very nature of cultural identity itself. "Culture"
is so encompassing as to be difficult to define, but it can be thought of
as "a dynamic value system of learned elements, with assumptions, conventions, beliefs and rules permitting members of a group to relate to
each other and to the world, to communicate and to develop their creative potential."1 0 ' Essentially, "culture is a set of beliefs, behaviors, and
ways of thinking shared by a social group. "102 One prominent theory of
culture, known as "memetics," holds that cultures develop through, and
are the ultimate sum of, those cultures' "memes." 03 A "meme" is "a
cultural element or behavioural [sic] trait whose transmission and consequent persistence in a population, although occurring by non-genetic
means (esp. imitation), is considered as analogous to the inheritance of a
gene."'0o For opponents of the cultural defense, the deterrent function
of criminal law should actively discourage certain cultural memes
deemed socially harmful, such as those that inform honor killings' 1 or
the Japanese practice of oyako-shinju. 0 6
A possible implication of analyzing culture in this way is the conclusion that "all action is the result of cultural influence, and, whether
we like it or not, all punishment seems to be the result of having had the
wrong influences;"17 psychology, behavior, and culture are not severable concepts. So what then justifies individualized receptiveness to culture-based defenses? The law as yet recognizes no formal cultural
defense, so a defendant cannot prevail solely on a claim that the criminal
act they committed is not wrongful from their cultural perspective; they
can, however, use cultural dissimilarity to bolster another substantive
101 ALISON DUNDEs RENTELN, THE CULTURAL DEFENSE 10 (2004). Cf Nicole A. King,
The Role of Culture in Psychology: A Look at Mental Illness and the CulturalDefense, 7 TULSA J.
COMP. & INT'L L. 199, 204 (1999) ("[C]ulture consists in patterned ways of thinking, feeling
and reacting, acquired and transmitted mainly by symbols, constituting the distinctive achievements of human groups, including their embodiments in artifacts; the essential core of culture
consists of traditional (i.e. historically derived and selected) ideas and especially their attached
values.").
102 DePalma, supra note 1, at 10.
103 See, e.g., Gordon, supra note 93.
104 meme, OxFoRD ENGLISH Dic-rIONARY ONLINE (2013); see also Gordon, supra note 93..
105 See Cohan, supra note 5.
106 See People, v. Kimura, No. A-091133 (L.A. Super. Ct. 1985).
107 Gordon, supra note 93, at 1834.
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
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defense. But if "all action is the result of cultural influence," what justifies the exclusion of cultural evidence to bolster a substantive defense
where the criminal defendant is classified as part of the "majority" culture? After all, natural-born citizens of the United States commit the
same the crimes as foreign-born defendants; "[v]iolence against women
Indeed, there is a "shockand children is not particular to culture."'
ing incidence of domestic violence in nearly one-third of intimate relationships in the United States."' 9 According to a 1998 survey,
"[t]hirty-one percent of American women report being physically or sexually abused by a husband or boyfriend at some point in their lives."o
According to data from 1999, forty percent of teenage girls between the
ages of fourteen to seventeen report knowing someone their age who has
been hit or beaten by a boyfriend."' So is domestic violence against
women part of the cultural heritage of Americans, or at least some
Americans?
Were evidence of cultural background and influence admitted in
cases involving natural-born defendants, many cases would have different results. If "all action is the result of cultural influence," and all
criminal action is "the result of having had the wrong influences,"" 2
then evidence of the particular memes that form an individual defendant's composite culture is relevant to any criminal case.
The cultural defense denies the defendant's ability to resist the compulsions of his culture . . . . [It] fails to draw any significant distinctions between defendants and the general populace. Everyone is at the
mercy of the ideas he encounters; the cultural defense just arbitrarily
defines culture narrowly enough to shut out most of these compulsions. From a moral .
.
. retributivist[ ]viewpoint, the source of these
irresistible impulses should make no difference.1 1 3
In United States v. Shorter, a natural-born defendant charged with
willful failure to pay taxes sought unsuccessfully to introduce evidence
of his compulsive gambling addiction."' Not all Americans suffer from
a gambling addiction, but many do. Doubtless, memetic forces specific
48, at 42.
109 Leti Volpp, Blaming Culturefor Bad Behavior, 12 YALE J.L. & HUMAN. 89, 116 (2000).
110 Id. at 116 n.139.
111 Id. at 115 n.137.
112 Gordon, supra note 93, at 1834.
13 Id. at 1810.
108 Williams, supra note
114 809 F.2d 54 (D.C. Cit. 1986).
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to the defendant in Shorter influenced his development of the addiction.
Many micro-cultures exist in the United States, but those who, for example, commit gang violence are not excused by their cultural background, no matter how insular and different from the "majority"
culture.
The well-publicized case of Susan Smith, who was convicted of
murder for drowning her two young sons, is much like the Japanese
mother in People v. Kimura."5 Like Kimura, she committed the crime
after being spurned by a lover.' 16 However, unlike Kimura, Smith received a first-degree murder conviction and, though she avoided the
death penalty, a sentence of life in prison.117 During her trial, psychological evidence revealed that Smith suffered from "dependent personality disorder," that her father committed suicide when she was a child,
and that her stepfather molested her as a teenager and she subsequently
had a sexual relationship with him as an adult."' Even more than the
discrepancy in treatment of majority defendants compared to minority
defendants, the implicit difference in concern for majority victims over
minority victims is most unsettling." 9
This is, of course, academic: a recognized cultural defense applied
to members of the majority would severely erode the criminal justice
system as we know it. But perhaps this analysis underlines the point:
criminal laws exist to put behind bars those whose senses of morality, or
whose abilities to substantially act within moral strictures, fall short of
socially acceptable standards. Of course the principle of proportionality
of punishment tempers this purpose; hence the existence of mitigating
defenses, such as insanity and heat of passion. But the absolute cultural
defense, and even its current, limited use, extends beyond this. It sug-
gests that foreign-born defendants' crimes are less morally blameworthy
because of the defendants' ignorance of the law and the prevailing morality of the United States. This is problematic given that the moral
foundations of the criminal law cannot be treated as relativistic. Such a
system calls to mind the writings of James Madison, who warned against
those most corrosive enemies of democracy: factions, groups with the
115 People, v. Kimura, No. A-091133 (L.A. Super. Ct. 1985).
Id
See Coleman, supra note 4.
118 Rachel Pergament, Susan Smith: ChildMurdereror Victim?, CRIME LIBRARY, http://www.
(last visited March 3,
trurv.com/library/crime/notoriousmurders/famous/smith/trial_9.html
2013).
119 See Coleman, supra note 4.
116
117
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
727
power to circumvent the good of the union by strength of numbers
alone. 1 2 0 Must not criminal laws draw lines somewhere rather than accommodate extreme social outliers? After all, "the law would mean
nothing if it meant everything." 1 2 1
IV.
MORAITY, JUSTICE, THE LAw: THE LIBERAL PARADIGM
A.
The "Liberals'Dilemma"
These criticisms of the cultural defense lead to fundamental questions about the relationship between morality, justice, and the criminal
law. Institutional multiculturalism is indeed an important state interest,
one the state realizes in many contexts, but must it do so in the criminal
law context by recognizing cultural defenses?
The objectives of criminal law are practical matters of public policy: primarily, harm prevention and deterrence, and, to a lesser extent,
rehabilitation and retribution. 1 2 2 But it is by nature also rooted in morality, and its objective practical policy concerns. In addition, the criminal has an undeniably normative dimension. 1 2 3 By limiting the law's
ability to impose the traditional, moral values of the United States,
which are shared by a vast majority of society, on others, defeats the
normative function of the law, at least in principle. Anti-assimilationists
will question the ethnocentrism that allows a society to deem its value
systems superior to others, 1 2 4 however, to place no requirements at all
on immigrants to integrate their values and practices with those of the
mainstream, even to the barest extent, is to institutionalize moral
relativism.
Both the multiculturalist view, which generally recognizes a cultural defense, and the moral assimilationist view, which generally does
not, reflect aspirational approaches to the application of the criminal
law. And both views have their foundation in notions of political liberalism. Professor Coleman identifies and explores this paradox in her
article for the Columbia Law Review, IndividualizingJustice Through
See THE FEDERALIST No. 10 (ames Madison).
Finkel & Groskup, supra note 10, at 80.
122 See MODEL PENAL CODE § 1.02(1) (2013).
123 See The CulturalDefense in CriminalLaw, supra note 3, at 1300. ("Laws are more effective
in commanding obedience when individuals internalize the underlying norms to the point
120
121
where they believe that the law embodies morally correct values.").
124
See supra Part II; see also sources cited supra notes 78-93.
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Multi-Culturalism: The Liberals' Dilemma.12 5 Although liberalism holds
as one of its tenets the acceptance of diversity and other cultural traditions and the desire to understand and account for them, this tenet is
largely premised on ideals of equality and universal human rights. The
conflict, then, is how to reconcile belief in fundamental human rights
with the rights of those whose cultural practices include conduct that
violates the same fundamental human rights. Professor Coleman contends that the cultural defense sets an undesirable precedent for the
"broader position that race-or national origin-based applications of the
criminal law are appropriate." 12 6 Rather than meet the egalitarian demands of political liberalism, the cultural defense contradicts the equal
protection principle entirely. To explore this "liberals' dilemma" further, this note will examine some of the philosophical traditions which
serve as historical groundwork for the modern political system of the
United States.
B.
The Enlightenment and the TraditionalLiberal Paradigm
The term "liberalism" describes a worldview premised on ideals of
liberty and equality. It first manifested as a discrete political movement
during the so-called Age of Enlightenment, which came to flower in the
Eighteenth-Century. Liberalism has applications in the fields of economics as well as morality, philosophy, and politics, though these latter
pertain more directly to the criminal law. John Locke, Jean-Jacques
Rousseau, and Immanuel Kant are three of the most prominent philosophers associated with the Enlightenment. The political theories of
Locke and Rousseau, in particular, enjoyed profound influence on the
American Revolutionaries and founding fathers. Liberalism spurred
both the American and French democratic revolutions. Liberal political
philosophy rejected monarchy and the notion of Divine right in favor of
democratic principles. It also upheld empiricism and reason as the ultimate human qualities; qualities which could ultimately lead, through
progress in medicine and the sciences, and the illumination of the
human race, to the ideal society.
This distinctly utopian streak within Enlightenment philosophy is
important to note. Teleological progress toward a more rational age
characterizes the Enlightenment project. But this progress, this propagation of human reason in contrast with parochial superstitions and
125
126
Coleman, supra note 4.
Id. at 1095.
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
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prejudices, seems to require a level of assimilation. In this way, the cultural defense, with its anti-assimilationist principle, obstructs liberal idealism. Unequal treatment of crimes committed within minority
communities is anti-progressive and leads "back to a time when American law formally discriminated against women and people of color, a
time to which most would agree we as a society do not want to return."1 2 7 Compassionate, individualized justice for minority defendants
is not analogous to the progressive civil rights interests of the past, such
as abolition, universal suffrage, and racial desegregation. These were
also liberal causes based on egalitarian ideals, but they were without any
inner contradictions. The law has chosen not to recognize, for example,
the rights of those whose belief systems dictate white supremacy, and it
does not condone criminal acts perpetrated in the name of such belief
systems. Such as with belief systems dictating white supremacy, the cultural defense often involves lending credence to cultural practices which
are wholly incompatible with the liberal egalitarian ideal. Again the
question arises: at what point must the law necessarily draw a line? If
individualized justice allows criminal defendants to set their own standards, does cultural relativism become moral relativism?
The normative function of the criminal law can be related to political theory of the "social contract" which Jean-Jacques Rousseau famously advanced.12 8 Rousseau theorized that mankind reaches a point
when "[the] primitive state . . . can subsist no longer," and "the only
means they can employ for their preservation is to form by aggregation
an assemblage of forces . .. to be put in motion as one body, and to act
in concert."12 9 For Rousseau, mankind achieves this progress from the
primitive through the concept of social contract. "Each of us places in
common his person and all his power under the supreme direction of
the general will; and as one body we all receive each member as an
indivisible part of the whole."13 0 This model is decidedly normative; it
requires each member of society to make sacrifices, those of personal
liberty, in order to receive the benefits that the greater social order confers. Applied to the criminal law, individuals benefit from the protec127 Id. at 1142. Professor Coleman contends that use of the cultural defense is "anathema to
another fundamental goal of the progressive agenda . . . the expansion of legal protections for
some of the least powerful members of society." Id. at 1095.
128 See JEAN-JACQUEs RoussEAu, THE SOCIAL CONTRACT (Charles Frankel trans., Hafner
Publishing 1947) (1762).
129 Id. at 14.
130 Id. at 15.
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tion of the laws which preserve citizens' bodily integrity and protect
personal property, but they must in turn abide by those laws
themselves.' 31
Within the liberal conception, the criminal law, as well as property
law and the other legal branches, exists to safeguard the natural, fundamental rights of each individual. But how does a society determine
what rights are to be preserved? The need for the cultural defense illustrates the extent to which societies can differ as to what constitutes a
natural or fundamental right. The German philosopher Immanuel
Kant enunciated a theory of natural rights worthy of representing Enlightenment liberalism. Kant propounded a deontological theory of
morality and ethics. Deontological ethical theory is distinct from consequentialism, which measures the moral worth of actions by their consequences, in that it measures the moral worth of actions by the adherence
of and compatibility with a set of laws or rules. These rules, however,
are not legal in the formal sense; they are moral laws, laws which have
their bases in a priori moral truth and are arrived at through the use of
reason, such as all persons possess the capacity to exercise. Further, this
moral truth at its absolute is not contingent on cultural and social circumstance or perspective. For Kant, the denial of such absolute moral
truth is unthinkable, or at least philosophically inacceptable.
[U]nless we want to deny to the concept of morality any truth and any
relation to some possible object, we cannot dispute that its law is so
extensive in its import that it must hold not only for human beings
but for all rationalbeings as such, not merely under contingent conditions and with exceptions but with absolute necessity . . . .132
For Kant, there must be a system of morals which are not "merely
empirical" but which "have their origin completely a priori in pure but
practical reason;" 3 3 a system that is objective and rational, not contingent, conditional or relative.
The central concept of Kant's moral theory is the so-called categorical imperative: "act only according to that maxim by which you can at
the same time will that it should become a universal law."' 3 4 In other
131
Cf sources cited supra note 60.
132 IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 20
trans., Cambridge University Press 1998) (1785).
133 Id. at 21.
134 Id. at 20.
(Mary Gregor
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
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words, one must at all times be conscious of themself as a moral actor
and must judge their own action according to its worth as a universal
code of conduct. Since the categorical imperative applies to all manner
of action, it applies to the process of legislating and also to belonging, as
a citizen, to a nation of laws. Thus, for Kant, it is necessary that one
not obey a law simply because disobeying entails consequences. Otherwise, one would conform their actions to a moral system only to the
extent required by law and only out of self-interest, not out of "pure
duty." 1" Within the Kantian theoretical system, because pure moral
law is absolute and immutable, not merely popular or pragmatic, an
individual actor's failure to conform to these rules will not be excused by
dint of ignorance or contrary belief. Ideally, a society's laws would correspond perfectly with this absolute morality. When a legal prohibition
is just,, a violation by a "rational being"13 6 would be inexcusable; and
few, not even proponents of the cultural defense, would argue that laws
prohibiting murder, mutilation, or rape are not just. Thus, the Kantian
system of deontological ethics does not abide moral relativism.
However, this notion of absolute moral truth is difficult to sustain,
in theory or in practice, in a modern pluralistic society. One certainly
legitimate ground for critique of the Enlightenment belief in universal
human reason and a priori truth is its implicit ethnocentrism. Kant
claims the path through reason to moral truth is accessible to all "rational beings." 1 3 7 But this formulation denies cultures with radically
dissimilar moral systems "rational being" status. This denial multiculturalists and anti-assimilationists would be quick to decry.13 ' But the
alternative is to accept that that which Enlightenment philosophers upheld as universal and objective was in fact contingent and subjective, or
at least that universalizability and objectivity are only made accessible by
contingencies. Therefore one might conclude that Enlightenment liberalism is not rooted in any absolute truth but is merely filtered through
inherited European political tradition and Judeo-Christian morality.
Kant, however, has an answer for this: "[e]ven the Holy One of the
Gospel must first be compared with our ideal of moral perfection before
he is cognized as such."13 9 So, for Kant, rational beings possess an indeId. at 19.
Id. at 20.
137 Id.
138 See supra Part II; see also sources cited supra notes 78-93 (discussing historical abuses and
devaluing of minority groups).
139 KANT, supra note 132, at 20.
135
136
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pendent capacity, whether endowed by divinity or not, with which they
can judge, and an independent standard to which they can compare, the
moral worth of human actions. Again, this paradigm would not seem
likely to tolerate a cultural defense. This paradigm also seems to be
present in the classic concern of the federalists, led by James Madison
and Alexander Hamilton: the danger of majoritarianism and factions
with the power to subvert or misguide social direction.o Implicitly,
this stance assumes an objective rightness which can be subverted by
wrongheaded masses and which thus necessitates political and legal
structures which reflect this objective rightness.
C.
Modern Liberalism and Pluralism
A prominent German political philosopher of the present century,
Jirgen Habermas, offers an analysis of the modern liberal paradigm
which illustrates the transition away from traditional liberalism, embodied in Kant's theory, to the modern pluralistic model. He identifies
them as two distinct legal and political paradigms: the traditional liberal
model and its modern, bureaucratic descendent. Habermas characterizes the traditional liberal political model as a facilitative state designed
to preserve its notion of fundamental human rights. Inasmuch, the liberal tradition relies on a sort of abstract ethical formalism, distinct from
legal formalism. In contrast, the modern bureaucratic model, the successor of traditional liberalism, relies instead on an administrative formalism, a "materialization" of the abstract liberal ideal. 1 4 ' Habermas
quotes Henry J. Steiner in describing the progress from ethical formalism to administrative formalism as "the trend in liberal thought, from
the vision and ideology of a more individualistic society, stressing a
facilitative state framework for private activity to the vision and ideology
of a more managerial, redistributive, and welfare state."1 42 This nonbureaucratic, "facilitative state framework," is no longer compatible with
modern, pluralistic societies which need consumer protection, ecological
protection, and regulation of business and the financial sector. Indeed,
the objective, fundamental human rights on which the liberal political
140 See, e.g., THE FEDERALIST No. 10 (James Madison).
141 JORGEN HABERMAS,
ParadigmsofLaw, in
HABERMAS ON LAW AND DEMOCRACY: CRITI-
CAL EXCHANGES 15 (Michel Rosenfeld & Andrew Arato eds., University of California Press
1988).
142 Id. at 16.
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
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framework was premised and designed to protect lacks validity in com-
plex, pluralistic societies.14 3
Unlike the ethical formalism of traditional liberalism, the administrative formalism favored by the modern political paradigm might well
accept the cultural defense. It emphasizes formalism, which the law
does not merely reflect but is instead embedded in the very structure of
the law's application. The modern paradigm operates in terms of materialized systemic equality, not abstract, ideological equality: under this
model, it is more important to preserve formal equality within the apparatuses of the system than outside it. Thus, in the context of the criminal law, the due process rights of accused criminal defendants coupled
with the ideal of individualized justice receive favor over the violated
human rights of the victims of criminal acts. This illustrates again how
the cultural defense creates an inner tension within the liberal paradigm.
As Habermas argues, the traditional liberal position conceives of society
as "the result of spontaneous forces and thus is something like a 'second
nature'. . . . From the vantage point of the regulatory welfare state,
however, society loses precisely this quasi-natural character" and "system
conditions vary beyond a certain level determined by 'the limits of social
tolerance."'"" Critics of the cultural defense would view many of the
examples of successful uses of the cultural defense14 5 as clearly outside
the determined limits of social tolerance. The problem with this modern paradigm is that it effectively strips away the liberal ideal of equality
leaving only the veneer of egalitarian legal mechanisms: equality as a
mere criterion for regulation rather than a natural state of things, a
moral premise. What then is left but moral relativism?
Habermas proposes a new legal and ethical paradigm he calls
"proceduralism," which moves forward from both the traditional liberal
model and the modern, bureaucratic model."4 6 Habermas's proceduralist position holds that law is legitimate as long as it can be justified as
self-given. A law is self-given if: (1) the person subjected to it would
have enacted it as a legislator; and (2) its principle is universalizable. 1 1 7
Unlike the traditional or the modern liberal paradigms, which preserve
individual autonomy by constraining it with legal mechanisms, within
146
See supra Part W.B.
supra note 141, at 17.
See supra Part I; see also sources cited supra notes 48-53.
See HABERMAS, supra note 141.
147
See id. at 18-19.
143
144 HABERMAS,
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the proceduralist paradigm, "legal persons are autonomous only insofar
as they can understand themselves . .. as authors of the law to which
they are subject as addressees."
48
"Each legal act should be understood
as a contribution to the . . . elaboration of basic rights," an "ongoing
process of constitution making.""' 9 The principle of universalizability
inheres in this participatory scheme: "normative rightness must be regarded as a claim to validity that is analogous to a truth claim." 50
How then would the proceduralist model answer the cultural defense question? Proceduralism would not necessarily favor systemic
equality over formal equality. However, it would seem to require that
the governed participate in the law-making process, thereby consenting
to be governed. Defendants in cultural defense cases do not engage in
legislative participation. Hence, the defense would seem to be compatible with the proceduralist paradigm. However, proceduralism also requires universalizability, and if a society's agreed-upon criminal laws do
not apply to certain excepted groups who come from outside the theoretical law-making process, then the laws are not universal. And if those
who would enact a law can only say it is just from their subjective vantage point, then the legal principle behind it is not being universalized as
"analogous to a truth claim," unless the particular law can only be universally applied as a normative guideline that should be obeyed, not that
must be obeyed, suggestion rather than commandment. The criminal
law, indeed the law in general, must certainly hold itself up as more
than mere suggestion in order to maintain its enforceability and
legitimacy.
So Habermas's proceduralism does not resolve the conflict in cultural defense cases between the normative role of the criminal law and
the principle that no cultural group should be able to unilaterally impose its own laws on another. On the other hand, Habermas tempers
his universalism as compared to the absolutism of Immanuel Kant. 5 1
He characterizes his ethical theory as "cognitivist," not "deontological."
He states: "only those norms may claim to be valid that could meet with
the consent of all affected in their role as participants in a practical discourse." 15 2 Laws prohibiting rape, for example, could then be valid with
148
Id. at 18.
149 Id. at 20.
150 JORGEN HABERMAS,
MORAL CONSCIOUSNESS
(1983).
151
See supra Part IV.B.
supra note 150.
152 HABERMAS,
AND COMMUNICATIVE ACTION
197
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CULTURAL PLURALISM IN CRIMINAL DEFENSE
735
respect to the democratic participants in their enactment, but invalid
with respect to others. Under this understanding of Habermas's
proceduralism, the cultural defense could be permissible. But again, this
threatens to seriously undermine the basic ideology of traditional liberalism by replacing the premise of fundamental human rights with moral
relativism.
CONCLUSION
Keeping in mind, as Professor Coleman urges, the deterrent goal of
the criminal law, and its normative function, I conclude that it is more
important to protect the rights of victims and potential victims and to
maintain uniformity in the law, regardless of race, class, or creed than it
is to maintain sensitivity and subjectivity with respect to minority defendants in the criminal justice system. Though both are important
aspects of the modern liberal paradigm, the fundamental human right to
bodily integrity is more sacrosanct than any other right. To hold otherwise would be to place an overriding emphasis on individual autonomy,
a proposition which engenders an untenable level of moral relativism in
those who grant such autonomy. A society can overemphasize autonomy, or the ideal of freedom, at least when it comes to the criminal law.
The criminal law reflects a society's values and exists to preserve fundamental human rights, the integrity of self, property, and loved ones.
The cultural defense undermines the law's deterrent goal and also erodes, or at least diminishes, the moral values legislators design the law to
reflect.
Still, we cannot and should not bar cultural evidence entirely,
though the law certainly should not formally recognize a pure culturebased defense. I propose instead an intermediate approach, more limited than the current approach, but also fairer, more logical, and more
morally sound in light of the foregoing discussion in Parts III and IV of
this Note. Cultural evidence should be constrained, as it more or less is
at present, to a role as an ingredient in the diagnosis of a defendant's
mental state. But a benefit of such evidence should not be restricted to
foreign-born defendants only. Courts should move towards abandonment of "culture" as a conceptual category distinct from any other sociological or psychological factors that hold influence over a defendant's
state of mind. This evidence will then be included as part of the determination of guilt according to the common law "reasonable person"
standard. So, for example, the question might be "what would the rea-
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[Vol.
sonable Japanese immigrant mother do?" 1 " or "what might the reasonable gambling addict do?"' 4 Granted, this might be a difficult
determination for juries, but juries handle difficult and complex questions all the time, often involving highly specialized psychological or
medical testimony.
In this way, equity, individualized justice, and the fair warning
principle are not sacrificed, since cultural evidence would still play a role
in mitigating the magnitude of a conviction or in an insanity plea. And
the problems with the cultural defense would be resolved: minority victims would be protected equally as majority victims; laws would still
provide maximum deterrence; and criminals would receive retribution as
closely proportional to their culpability as the accuracy of the law permits. The fairness problems the cultural defense creates, as discussed in
Part II of this note, would also be remedied: the proposed application
would account for "intercultural difference and intracultural sameness"15 5 to an extent the current model does not, and this with respect
not only to minority defendants but also to those classified as in the
"majority."
Lastly, and most importantly, this proposed system leaves the ideological values of the traditional liberal paradigm intact. It does not deny
society the right to construct a legal system that directly reflects its conception of morality; it does not reduce the foundational values for regulation to mere moral relativism. In this way, the law can retain its
normative role and its aspirational goal of creating a more rational, ideal
society. The law can guide progress toward this aspirational goal that
immigrants will, if not assimilate, at least adapt their behaviors into
compatibility with the values of the society in which they live, at least to
the degree the criminal law mandates.
153
154
155
People v. Kimura, No. A-091133 (L.A. Super. Ct. 1985).
United States v. Shorter, 809 F.2d 54 (D.C. Cir. 1986).
Sing, supra note 71, at 1884.