In today’s (February 2009) California Bar Journal (the “official publication of the State Bar of California”) Diane Curtis reports on the growing acceptance of using culture as a defense.
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Cultural differences: New defense tactic?
By Diane Curtis
Staff Writer
A Mexican-American man is convicted of second-degree murder for shooting a poker companion who used an offensive slur about the defendant’s mother. A Muslim Albanian man in Texas loses his parental rights for touching his daughter’s genitals. A Thai man who shows no remorse or other emotion for his part in a Garden Grove robbery in which two people were killed receives the death penalty.
All three were influenced in their actions by their native culture, says University of Southern California professor Alison Dundes Renteln, and that culture, she believes, should have been considered in each of those cases, an argument she makes in her chapter of the new book, “Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense,” which she co-edited with Marie-Claire Foblets of the University of Leuven in Belgium.
“Cultural differences deserve to be considered in litigation because enculturation shapes individuals’ perceptions and influences their actions,” she writes in the book. She is calling for formal acceptance in the legal community of a cultural defense in which legal systems acknowledge “the influence of cultural imperatives” in illegal acts.
A judge in fact did consider the Albanian man’s culture in which touching a child has no sexual meaning and is an accepted form of affection and comfort. The man was acquitted of child sexual abuse although he did lose his parental rights. Renteln says such consideration should be the rule rather than the exception, and she also questions whether the interests of the family were served by separating the father from his child.
“Touching children in the genital area should probably be discouraged not only because parents will encounter difficulty with the law, but also because children caught between two cultures may feel uncomfortable if they realize it is considered inappropriate conduct in the larger society. But incarcerating parents or breaking up families are illegitimate means of inculcating new values,” she writes in “The Cultural Defense.”
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She says courts should get satisfactory answers to three questions:
1. Is the litigant a member of the ethnic group?
2. Does the group have such a tradition [as the litigant claims]?
3. Was the litigant influenced by the tradition when he or she acted?
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Renteln welcomes further discussion and wants to be sure that possible abuses are addressed. But ultimately, she would like a formal recognition of the need to consider culture in trials. “It is imperative that the cultural defense be established as official policy,” she writes. “In order for this to be possible, policies must be formulated which ensure careful review of cultural claims … The right to culture is an important human right, but it should be protected only so long as it does not undermine other human rights.”
{Read The Entire Article}
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Once again, the naive insistence on the nebulous concept of ‘multiculturalism’ is overpowering common sense. Our idealistic intentions are allowing us to ignore the reality that under the misunderstood guise of “human rights” and multiculturalism we are unwittingly turning our glorious ‘melting pot’ into a unsanitary buffet by simply importing injustice.
