I want you to know this: I am not making this up.
The California Bar Journal has a story about the use of culture as a defense on this month’s front page.
I haven’t read Professor Renteln’s book, but she wrote a short article on the subject.
From the introduction:
When individuals commit culturally motivated acts that clash with the law, they may ask courts to consider the cultural imperatives that inspired the actions in question. When they advance arguments of this sort, they usually wish to introduce expert testimony into court to underscore the validity of their claims. Unfortunately, judges are often disinclined to allow the presentation of such evidence and exclude it as “irrelevant.” Their refusal to permit cultural evidence is unfortunate because it can result in a miscarriage of justice. My view is that the cultural defense should be established as official public policy as long as safeguards are put in place to prevent its misuse.
And she cites anecdotes:
– A Mexican-American whose fellow poker player called his mother a bad name, so the guy shot him. Professor Renteln opines that this should have been manslaughter because a Mexican would be way more likely to shoot someone over it than a, you know, regular American.
– A Muslim Albanian man who was fondling his four-year-old daughter’s genitals in public. He was criminally acquitted because he brought in a culture defense (and that his intent was not to sexually stimulate himself or his daughter) but the family law people still took the daughter under the theory that fondling four-year-old’s genitals is bad. This was an injustice.
– A Thai man who participated in a robbery where two people were killed showed no emotion throughout and, while denying he “pulled the trigger” (per Renteln), refused to identify who did. He got executed for his crime, but his culture apparently frowns on showing emotion, so he shouldn’t have gotten the death penalty.
I’ll help Professor Renteln on that last: He definitely didn’t pull the trigger. That’s because one of the storekeepers was beaten and strangled, while the other was repeatedly stabbed in the head, neck, and hands, and left a blood trail throughout the store. There was pretty decent evidence that he was, indeed, the killer, even without any trigger-pulling (though they did not have to prove that to give him the death penalty.)
Renteln proposes a three-prong test:
1. Is the litigant the member of an ethnic group?
2. Does the group have such a tradition?
3. Was the litigant influenced by the tradition?
Now, I know what many of you are saying: Hooray! I now have cultural defenses for my behavior. Please pick from the below:
Western European Drunken Jackass Culture: While fraternity members are often hearty fellows well-met, some have grown up in a culture where they bear no responsibility for their actions, and now have more money than brains. Is it really rape if she’s drunk? Not in this culture! We should not judge so harshly, unless we have walked a mile in their $380 crocodile-skin shoes.
(Your ethnicity here) Cop-Hating Culture: If you’ve played a lot of Grand Theft Auto, it’s not that bad to slug cops. This sort of cultural defense is appropriate. You can certainly find some reason for your ethnicity to hate cops.
Eastern European Puppy-Stomping Culture: Are you going to judge a guy for stomping on puppies? Have you considered what his upbringing must be for him to have done that? Who are you to judge? Jerk.
Of course, in reality, I find that Mexican-Americans of my acquaintance don’t shoot their fellow poker players for insulting them, that Thai people don’t take off with stolen property off of the brutally murdered and then clam up about it, and that most people are aware of the no-molesting rules as they apply to four-year-olds. But maybe I’m culturally biased.
Don’t worry, though. There’s a caveat: The court should weigh the “human right of the custom against other important human rights, such as the rights of women and children.” Not that we should get all excited about preventing people from [Scott Jacobsesque phraseology beginning with “finger” redacted] four-year-old girls and should maybe review whether that’s good for them.
Nor should we go all nuts about whether female shopkeepers should be brutally murdered. But we should weigh their rights. Somehow. A little.
Here’s why we have laws: To cause people to conform their behavior to those laws. Don’t rape 12-year-olds. Don’t steal from old people. Don’t use PCP. Don’t drive without a driver’s license.
Some laws are to prevent evil. Some laws are to preserve an ordered society. Not everyone agrees with every law. But the law’s not based on who you are. Just because Uzbekhistan doesn’t have a driver’s test doesn’t mean you don’t have to pass it. Just because they let you rape children in the Sudan doesn’t mean we’re going to let you. We, in fact, are going to send you to prison forever. Which is as it damn well should be.