How Would a “Cultural Relativity” Defense Work?


Amir Efrati has an interesting article in today’s Wall Street Journal, headlined “Cultural Background Gains Traction as a Legal Defense.” It’s a well-known fact that some things that are criminal in one society are perfectly acceptable in another. Some lawyers are starting to claim that it should be a defense if a person’s conduct — though perhaps criminal on its face — was consistent with the norms of the culture they come from.

To the extent that this affects the mens rea element of a crime, it seems obvious that cultural beliefs can be relevant. If one’s cultural upbringing makes one’s conduct somehow less purposeful, knowledgeable, reckless or negligent, then it ought to be taken into account.

For example, it’s common to charge someone with possession of a controlled substance with intent to sell — usually a more serious charge than simple possession — based solely on the quantity of drugs possessed. If someone has thirty crack vials in their pocket, in the common sense of American culture it would not be unreasonable to presume that they did not have it for personal use. Intent can be inferred from these facts.

But a Laotian immigrant was acquitted of possession-with-intent-to-sell charges by “an all-white, predominantly Republican, South Carolina jury,” after it heard evidence that 300 grams of opium was consistent with personal use in the defendant’s tribe. “It’s their version of Advil,” his lawyer argued. “They’ve been using this for a thousand years.” There was a cultural explanation of why this particular defendant did not have the intent to sell.

The Journal article also mentions the recent case of Nary Chao, a Cambodian mother who was charged with a felony after some busybody turned her in for kissing her infant son’s penis. This is bizarre behavior in America, sure, but in Cambodia it is an acceptable sign of affection. The prosecution was mollified somewhat by this explanation, and “let her plead to a misdemeanor.” The Maine Supreme Court dismissed a similar sexual assault charge against a Dominican mother for similar reasons. In sexual assault cases, or child-endangerment cases, the law doesn’t care so much why you did it, only that you did it.

Nevertheless, many cultural differences are not going to have an effect. They’re not going to excuse otherwise criminal conduct, or mitigate the sentence. A father who physically abuses his child is going to be just as culpable, even thought it is a cultural norm where he comes from. Our society values the child’s safety more than it does the father’s cultural prerogatives. A fundamentalist Muslim family that commits an “honor killing” is not going to be let off the hook just because it would have been expected back home.

The upshot is that any cultural balancing is going to be weighed within the culture of the judge and jury who are doing it. In America, you’re just not going to see accommodation of customs that jeopardize someone’s safety, or cause physical harm.

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The clash of cultures doesn’t necessarily involve immigrants. We’ve spoken to people from inner cities who think it’s unfair to get charged with certain crimes, because those are the “white man’s” laws, which shouldn’t apply to them. In some neighborhoods, it’s just as acceptable to smoke a joint as to smoke a cigarette. It’s a cultural norm. So getting popped for it smacks of injustice.

But is it really unjust? Should cultural sensitivity extend to internal cultural differences? Whatever one’s position on the legalization of pot, why should the law apply to one portion of the citizenry and not to another?

As a white-collar defense attorney, we also see lots of people who, consistent with the culture they were raised in, think it is perfectly acceptable to commit financial crimes. It’s not only acceptable to screw others, it’s something to be proud of. This is an absolutely foreign concept to us, and yet there it is. Should ethical relativism mitigate such behavior? Is a fraud any less criminal if it is acceptable in the offender’s community? What if the victim was also part of that community, and shared the same views?

How about spitting in public? It’s against the law. But in some neighborhoods, hawking a big old loogie onto the sidewalk is almost mandatory. Should people in those neighborhoods be exempt from being ticketed, just because it’s the norm there? Why should they be any less subject to the law than a tourist in midtown?

* * * * *

Cultural relativism can be dangerous, if it lets people get away with conduct that others are held accountable for. It engenders a perception that the justice system is not fair. And it is of critical importance that the system be perceived as generally fair. If the system is perceived to act irrationally, then it’s not going to deter crime.

If the system is perceived to excuse crimes based on vagaries of birth or ethnicity, then the system fails. Some people will be more likely to commit crimes, and society will suffer.

If the populace loses confidence in the ability of the system to protect them, because some people are going to get off based on vagaries of birth or ethnicity, then the system fails. People will turn to other ways of protecting themselves, and society will suffer.

On the other hand, cultural insensitivity can also be dangerous. If people are punished for offenses that are harmless, such as the Cambodian and Dominican mothers’ expressions of affection, the system is just as likely to be seen as arbitrary and irrational. If cultural factors are not taken into account when they legitimately affect a critical mens rea element, then the system will be perpetuating injustice. Society will suffer.

For those who insist that the law should apply to all visitors equally, then does that mean Singapore is right to imprison an American who makes a perfectly true statement that harms someone’s reputation? Does that mean Saudi Arabia would be justified in executing a visiting gay couple merely for being homosexual? There are plenty of laws out there in the world that we Americans would not want applied to us with equal force. We’d have a huge public outcry, get the State Department involved, mobilize the media. So why shouldn’t we provide the same cultural sensitivity that we would demand of foreign countries?

Where should we draw the line?

* * * * *

One dividing line could be the one we alluded to above: a cultural norm should not be a mitigating factor or a defense when it caused physical harm, injury, financial harm, or otherwise damaged another person. If the conduct did not endanger anyone else’s safety or property, then a jury ought to be allowed to at least consider cultural factors.

But that is too easygoing. It lets a jury decide not to punish other crimes that society still wants enforced, even though there is no victim. And there would be unjust disparities. A jury would be allowed to excuse a West Indian pot smoker, but a kid from Kansas isn’t going to have the same defense available to him. A jury could acquit a Chinese for boiling a cat alive in lye before skinning and eating it, because that’s the way it’s done back home, but would have to convict a local for the same animal cruelty. A foreign tourist could be forgiven for swimming nude in public, but a resident would get in trouble.

But can we add an extra exception, prohibiting cultural considerations in crimes that offend public sensibilities? Doesn’t that essentially cover everything else?

As the guy said in the movie, when deciding how to enforce the law in a clash of cultures: “It is a puzzlement.”

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