CULTURAL DEFENSE? Chapter 11

With the large numbers of immigrants coming to the United States, inevitably some immigrants end up in the court system As a result, a new “cultural defense” has arisen Under the cultural defense, defendants state that they committed the act in question, but the act is legal under the laws of their home country

Generally, persons using the cultural defense are still found guilty, but of a lesser offense and/or given a lesser penalty  For example, in California, a refugee member of the Hmong mountain tribe of Laos killed his wife for having an affair  He was convicted of manslaughter, not murder  His lawyer argued that there was no provision for divorce in the Hmong culture and that a Hmong husband was required to “execute justice” in such circumstances as one traditional option  The man was sentenced to just eight years in prison

In another case, a woman who had come to the United States from Japan 14 years earlier as a young adult tried to drown herself and her two children after learning of her husband’s affair She survived, but the children did not She was charged with murder, but 4,000 Asian immigrants signed a petition pointing out that in Japan, the ancient rite of oyako-shinju (parent- child) suicide is not considered murder The woman pled guilty to manslaughter and was sentenced only to probation

Arguments in favor of the culture defense include that it helps explain a defendant’s personal circumstances This coincides with traditional American notions of individualized justice and cultural pluralism Supporters of this defense state that they are not concerned with the social implications of other immigrants thinking their behavior will be tolerated, because the concern of the criminal court is whether or not the defendant is guilty based on the evidence

Those opposing the use of the cultural defense argue that it exposes U.S. courts to patriarchal values from abroad to the detriment of immigrant women and children, many of whom were treated as second-class citizens in the countries they left behind Opponents also say that the customs claimed by many defendants may no longer be permitted in their homeland They argue that foreign customs should not override U.S. law, and that every newcomer residing in the United States is bound to obey the laws of this country Some are concerned with backlash: if newcomers receive lesser penalties or are convicted of lesser crimes, some may think that immigrants are able to unfairly circumvent the U.S. legal system and get away with crimes that indigenous American citizens would not