The Cultural Defense

Vol. 14 No. 5 (May 2004), pp.350-352

THE CULTURAL DEFENSE, by Alison Dundes Renteln. New York: Oxford University Press, 2004. 416pp. Hardback. $45.00. £35.00. ISBN: 0195154029.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University, matwell@radford.edu

When the conflicting demands of differing cultures end up in the courtroom, should the legal system be governed by a presumption of assimilation? Should the resident of “Rome,” regardless of cultural background, be expected to “do what the Romans do?” Or should the courts take culture into account in a defense? These are the questions Alison Dundes Renteln poses in her very readable and engaging study.

Her proposal is a modest one. Courts should at least consider culture in the disposition of cases as a way of putting a defendant’s actions into a meaningful context. A person would not necessarily be exonerated of his or her behavior based on a cultural defense; it would seem to be more of a mitigating circumstance. The claim might apply in a variety of civil and criminal cases, but its weight would vary, presumably based on the seriousness of the offense and on the strength of the person’s ties to the cultural norms. Renteln argues, however, for the “human right to culture” as a fundamental principle that inheres in such constitutional guarantees as equal protection, freedom of association and religion, the right to counsel, and the right to a fair trial.

According to the author, everyone is influenced by culture. In a plural society, such as the United States, customary law—the traditions or mandates of an immigrant’s community of origin—may conflict with the dominant legal system in the new country. A baptized Sikh may be required to wear a ceremonial dagger as a symbol of his religious commitment. American airport security may prohibit the carrying of weapons, and a cultural conflict ensues. Should the dominant system make allowances for these conflicting demands? Renteln takes the position that when a cultural claim can be shown to be true, culture should affect the disposition of the case, unless this would cause irreparable harm to others. In the absence of any real threat, ethnic minorities should have the right to follow their cultural traditions, free from governmental interference. It is not difficult to agree with Renteln’s argument on a theoretical level. The difficulty comes in the specific application. What is “irreparable harm”? What is a “real threat”? Although much of the book takes up examples that illustrate how the conflicting claims might be balanced, the rule remains fuzzy.

The cultural defense may be most familiar from homicide cases, such as those involving honor killings where male relatives feel compelled to take the life of an allegedly adulterous woman to protect the family’s reputation. A consideration of culture would allow prosecutors, judges, and juries to determine the appropriate level of [*351] culpability. Renteln maintains that too often judges disallow the presentation of cultural evidence as irrelevant. Rather it might be evaluated in accessing the defendant’s intention. Cultural defenses often rest on the issue of provocation. Would a reasonable person be provoked in the situation, and was the defendant provoked? In Renteln’s view, the standard should be modified to ask not whether a reasonable person from the dominant system would be provoked, but whether a reasonable person from the defendant’s culture would be provoked. She is careful to state that a cultural defense does not absolve a killer from punishment, but instead that it adds the inclusion of motive as a possible mitigating circumstance.

Other cases involve parental decisions with respect to child rearing. Renteln rejects the extreme positions that would either condemn all traditional practices or allow parents full freedom to treat their children in accordance with their own rules. She opts for an “intermediate standard,” that would prohibit traditional practices concerning health and discipline only in extreme cases that are potentially life threatening. She further argues that parents, acting in accordance with their culture, should be treated as less blameworthy than parents who deliberately try to harm their children. One must note, however, that the standard still involves subjectivity. How close does the potential threat to life need to be before the state intervenes? How do courts sort deliberate harm from “incidental” harm and still protect children? Some similar issues arise in the discussion of marital customs, including the age of marriage and the choice of a marriage partner.

Potential legal conflicts also stem from differences in the use of “drugs” within cultural traditions and the proscription of certain substances by the dominant system. It seems that decisions about which drugs are permitted (alcohol, caffeine) and which are prohibited (kava, ganja) are culturally based. Renteln supports the commonsense position that, as drug use is generally considered a “victimless” crime, there is less reason for government intervention and coercion. Her principle that cultural traditions should be respected unless they cause irreparable harm would allow for wide tolerance and a humane approach to the use of powerful substances. She makes a comparable argument for broad-mindedness toward cultural variations with respect to the use and treatment of animals. Essentially, the rights of human beings to culture and to religious freedom should trump animal rights or the interest of the government in deterring animal cruelty, unless a “significant demonstrable harm” can be shown to exist.

Dress codes involving ethnic or religious attire may also spark cultural arguments. Attempts to restrict the use of certain symbols or clothing in workplaces, public transportation, courtrooms, schools, prisons, and the military, have raised questions about free exercise of religion, freedom of expression, and sometimes of discrimination in violation of civil rights laws. Courts have tended to uphold many restrictive dress codes, such as the regulation of headgear, even when no threat or harm is involved, because the symbols may be considered militant or divisive. Renteln deplores the American insistence on conformity and assimilation as unfortunate evidence of ethnocentrism and suspicion of [*352] foreigners.

Finally, cultures differ widely in their codes for the treatment of the dead. Many religions forbid autopsies based on belief in an afterlife. When does the state’s interest in information gained through an autopsy outweigh the survivors’ religious objections? Almost never, in Renteln’s view. She argues for policies to assure that the dead will be treated with respect as dictated by the group to which the person belonged. The harm to be avoided is undue pain to the surviving relatives, a pain that culturally sensitive death investigators could mitigate.

Renteln concludes with arguments supporting the establishment of an official cultural defense in criminal law that would allow those accused to introduce evidence concerning their culture and its relevance to their case. Such a defense would be a positive step toward justice and proportionality as it would require the legal system to focus on the actor as well as the acts, on motive as well as intent. A cultural defense would serve as a sort of “partial excuse.” International law, she notes, supports the right to culture; therefore nations should reexamine their presumption of assimilation. If culture is recognized as a basic human right, countries should rethink their “monocultural paradigm” and permit people to pursue their own life plans with minimal interference from government, unless their “life plans” cause irreparable harm to others.

THE RIGHT TO CULTURE introduces questions that are important to a diverse society like the United States. They are especially important as the war on “terror” creates less tolerance and more demands for conformity. Renteln’s struggle to find a rule that governs the weight to be placed on culture-based claims indicates how complex the problem is. Traditions that involve wearing head coverings are of a different order of magnitude than customs relating to child marriage. How does a legal system find one rule to take into account both the cultural imperatives of the group and the ways those norms may be oppressive toward the powerless members of that group? Renteln’s principle that restricts only practices resulting in “irreparable harm” is unsatisfactory, but perhaps her arguments at least stimulate reconsideration of the pressures toward complete assimilation.

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