The Jury Talks Back

2/15/2009

Culture as a Defense

Filed under: Uncategorized — JRM @ 4:54 pm

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.

17 Comments

  1. To paraphrase Sir Charles Napier on suttee: your cultural imperative is to do these things? Our cultural imperative is to send you to jail when you do. So you follow your imperative, and then we will follow ours.

    Comment by Jim C. — 2/15/2009 @ 6:02 pm

  2. I don’t think there should be a cultural defense to any element of the crime, but there should be a “culture defense,” such as it is, on other evidentiary matters. Showing emotion vs. not showing emotion is not an element of the crime of either robbery or murder. It is, generally speaking, evidence that a member of our culture acted in cold blood. But it may be evidence of something else if the perp (or, in other cases, alleged perp) was a member of a culture that frowns on showing emotions. If the guy fried based on evidence that he was either (1) a soulless, unremorseful, cold-blooded murder or (2) some guy from Thailand, that’s a problem. Then again, if the fact that he didn’t show emotion was irrelevant to his conviction, then so too are the cultural implications of showing vs. not showing emotion.

    Comment by Xrlq — 2/15/2009 @ 6:06 pm

  3. I hope that Rentlen gets robed by a Thai, shot by a Mexican, and that his daughters, sons and wife are gang raped by Muslims.

    What an idiot. So, I guess being a white supremacist and lynching would be OK then, if that is your culture.

    Yeah, I hope that Rentlen gets lynched too.

    Another feckless crapweasle.

    Comment by Jack — 2/15/2009 @ 10:36 pm

  4. I may still do a post about this. I intended to when I saw that article.

    In brief, I observed firsthand the habeas hearing of the killer from Thailand. Any notion that he remained silent about his co-conspirator because of Thai culture is a joke. As I recall (I’d have to go back and look at the 9th Circuit decision to be certain): 1) he once stated that he hated Thai culture, and 2) he was a snitch for the DEA.

    So the idea that he refused to be a snitch because of Thai culture was flatly refuted by the evidence.

    Siripongs was one of a small handful of people who was actually put to death in California since the death penalty was reinstated. I saw the photographs of the people he killed. He richly deserved that penalty.

    Comment by Patterico — 2/16/2009 @ 12:41 am

  5. Let’s say that you have a gang killing and the prosecutor’s case rests mainly on the testimony from two girlfriends of the rival (the victim’s) gang that the defendant bragged to them that he had done it and described how he had done it. Which is consistent with the poor eyewitness (no positive identification) testimony of the killing. You try to bring in a “gang expert” to testify about how “gang culture” obliges the two witnesses to burn the defendant. Collateral?

    Comment by nk — 2/16/2009 @ 7:41 am

  6. Sounds like a fine candidate for the 9th Circuit.

    Comment by Kevin Murphy — 2/16/2009 @ 11:12 am

  7. On the other hand, whenever reasonableness is an element of the crime or defense, I think we have to allow cultural evidence; what is reasonable to someone who grew up in our culture may be quite different from what is reasonable in the defendant’s culture, and he should be entitled to enter evidence demonstrating that he *did* behave like a reasonable person.

    Comment by aphrael — 2/16/2009 @ 12:09 pm

  8. You try to bring in a “gang expert” to testify about how “gang culture” obliges the two witnesses to burn the defendant.

    ???

    Gang culture obliges them not to burn the defendant.

    Comment by Patterico — 2/16/2009 @ 1:35 pm

  9. Maybe that’s why the judge did not allow it. He was good. And experienced.

    They were willing witnesses for the prosecution. They came forward themselves with the information. So was it culture or just plain human vindictiveness?

    And then the defendant went and confessed at his sentencing hearing so ….

    Comment by nk — 2/16/2009 @ 4:30 pm

  10. When people die, concern for holding the person responsible sometimes trumps gang culture.

    Sometimes.

    Comment by Patterico — 2/17/2009 @ 12:19 am

  11. But it’s not gang culture to implicate the wrongdoer. Anything but.

    Comment by Patterico — 2/17/2009 @ 12:19 am

  12. When people die, concern for holding the person responsible sometimes trumps gang culture.

    And I think that that helps answer the larger question as well. Basic values should trump “culture” in the law, whether the culture is imported or homegrown.

    Comment by nk — 2/17/2009 @ 6:29 am

  13. Like, uhhh, you know, I’ve said this before: “We are America, not Cambodia.” We are our government and our government is our reflection of ourselves. When we demand American behavior from our government we need to show American behavior too.

    Comment by nk — 2/17/2009 @ 8:00 am

  14. Professor Renteln. and his fellow cultural relativists, will happily see Shariah imposed on American Society, and then write papers about their concern for the treatment of women and minorities under it.

    To paraphrase Orwell, to be that dumb, he must have a post-graduate degree.

    Comment by AD - RtR/OS — 2/17/2009 @ 5:07 pm

  15. “reasonableness” and murder, I do believe, are related in no way at all.

    Comment by otcconan — 2/17/2009 @ 7:22 pm

  16. They are very related, but reasonableness is an objective standard — a societal standard if you wish — and not an individual’s or a sub-culture’s world view.

    Comment by nk — 2/17/2009 @ 8:33 pm

  17. Just FYI for those non-lawyers on this site, this is the same publication that, around three years ago, published a “survival guide” for attorneys that wind up getting sent to prison. You know, tips about how give out legal advise to curry favor with fellow inmates, how to start fights with other, weaker inmates to establish yourself higher in the prison pecking order (note: that last part is neither a joke or an exaggeration). The article caused a huge outcry among attorneys who resented the implication that they would ever need to know anything in the publication, but it looks like the criticism fell on deaf ears.

    Comment by Sean P — 2/20/2009 @ 3:21 pm

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