Culture Clash

Culture Clash: Cultural Issues in Criminal Defense Rene Valladares, AFPD, District of Nevada
CHAPTER 11
RAISING CULTURAL DEFENSES

Alison Dundes Renteln Synopsis
Introduction 11.1 Excuse Defenses [a] Insanity [1] The Cognitive Insanity Defense [2] The Volitional Insanity Defense [3] Automatism [4] Battered Women Defense [5] Culture-Bound Syndromes [b] Duress [c] Diminished Capacity [d] Provocation as Partial Excuse 11.2 Justification Defenses [a] Self-Defense 11.3 Defenses Relating to Offense Elements [a] Mistake of Fact [b] Lack of Specific Intent 11.4 De Minimis Offenses 11.5 Formal Cultural Defense [a] Child Abuse 11.6 Substantive Cultural Defenses Based on Constitutional Principles [a] Religious Defenses [b] Equal Protection 11.7 Arguments for the Cultural Defense 11.8 Strategic Considerations
Reprinted from Cultural Issues in Criminal Defense, pgs. 423-466, copyright 2007 Juris Publishing, Inc., www.jurispub.com
424
CULTURAL ISSUES IN CRIMINAL DEFENSE
Introduction Cultural factors can influence a criminal case from the decision to arrest and prosecute through the sentencing phase.1 This chapter provides an overview of how cultural issues can serve as an element of a defense.2 Social science research has clearly demonstrated the profound manner in which a persons culture shapes his or her worldview.3 If the legal system is to understand what motivates the actions of another, it must understand that persons culture. This theory of human behavior, enculturation,4 provides the foundation for arguing for cultural
1 Most of the scholarship on cultural defenses argues against their use. For articles which advocate the cultural defense, see generally Andrew M. Kanter, The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense, 45 S. CAL. INTERDISC. L.J. 411 (1995); Anh T. Lam, Culture as a Defense: Preventing Judicial Bias Against Asians and Pacific Islanders, 1 ASIAN AM. PAC. ISLANDS L.J. 49 (1993); Paul J. Magnarella, Justice in a Culturally Pluralistic Society: The Cultural Defense on Trial, 19 J. ETHNIC STUD. 65 (1991); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986). 2 I wish to thank the Southern California Review of Law and Womens Studies for allowing me to adapt parts of an earlier article. My own views have changed over time; I originally questioned the utility of the cultural defense, see Culture and Culpability: A Study in Contrasts, 22 BEVERLY HILLS B. ASSN J. 17 (1987/1988). See also, Alison Dundes Renteln (2004). THE CULTURAL DEFENSE. New York: Oxford University Press. The Use and Abuse of the Cultural Defense. Canadian Journal of Law and Society, special issue Cross-Cultural Jurisprudence: Culture in the Domain of Law, 20 (1), 2005, 47-67. In Defense of Culture in the Courtroom. In Rick Shweder, Martha Minow, and Hazel Rose-Markus (Eds.), Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (pp. 194-215). New York: Russell Sage, 2002. The Cultural Defense. Encyclopedia of Law and Society, (ed. David Clark), The Cultural Defense. Encyclopedia of Globalization. 3 See Hazel Rose Markus & Leah R. Lin, Conflictways: Cultural Diversity in the Meanings and Practices of Conflict, in CULTURAL DIVIDES: UNDERSTANDING AND OVERCOMING GROUP CONFLICT 302-333 (Deborah A. Prentice & Dale T. Miller eds., 1999); RICHARD A. SHWEDER, THINKING THROUGH CULTURES: EXPEDITIONS IN CULTURAL PSYCHOLOGY (1991). 4 Enculturation is the internalization of the elements of culture characteristic to an individuals society. The process of enculturation is so powerful that [e]ven the most deliberately unconventional person is unable to escape his culture to any significant degree . . . Cultural influences are so deep that even the behavior of the insane reflects them strongly. RALPH LINTON, THE TREE OF CULTURE 39 (3d ed. 1957).
425
defenses. Enculturation shapes the way individuals perceive reality, and thus guides their decisions. Practitioners must argue that the law ought to be flexible enough to incorporate explanations of behavior based on cultural considerations. Insofar as people think differently as a consequence of their socialization, the introduction of cultural evidence to establish their state of mind at the time of the commission of crimes is essential for the proper functioning of the justice system. The main task before lawyers is to show how culture affects a defendants perceptions and behavior.5 Unless judges and juries accept this premise, it will be virtually impossible to mount a cultural defense successfully. It is important that practitioners recognize the likelihood that judges will be somewhat resistant to the consideration of culture in the courtroom. Most often problems hinge on adherence by courts to notions of objective reasonableness, which prevents defendants from using existing defenses successfully. Furthermore, many courts subscribe to the philosophy of when in Rome, do as the Romans do, leading them to reject the notion of a cultural defense. Courts also make reference to the well-establishment maxim that ignorance of the law is no excuse. Many of the decisions discussing cultural defenses focus on whether the judge properly excluded the evidence as irrelevant.6 In some cases the question is whether the judges failure to give a jury instruction on the cultural issue constitutes a reversible error. Practitioners should also note that the body of case law dealing with cultural defenses is not yet well established. Therefore, some of the cases discussed in this chapter lack precedential value as they are unpublished, depublished, or foreign. Nonetheless, these cases serve to
5 The notion of culture is elusive. Though an abstract definition of culture may be murky, the challenge for practitioners is to ascertain the validity of a particular tradition in the context of a particular case. There is no question, for example, that Sikhs are required to wear the kirpan, a ceremonial dagger. Defense attorneys should be aware that some academics consider culture to be a social construction. If traditions are patriarchal creations, this might imply that they do not deserve any protection. It is important that counsel point out that men and women defend the cultural traditions as part of their way of life regardless of what outsiders think. 6 See, e.g., United States v. Kills Crow, 527 F.2d 158, 160 (8th Cir. 1975) (affirming refusal to allow evidence about the Indian concept of Toka in the context of provocation and justification because of failure to lay a proper foundation). See also Judge Richter Sociologists Testimony on Culture is Precluded in Harassment Case, N.Y.L.J., Nov. 3, 1995, at 25.
426
illustrate possible uses of cultural defenses in practice.7 This is a challenging field of criminal law for practitioners because its frontiers have not been fully explored. Cultural defenses can be presented in a variety of ways. Evidence about the cultural background of a defendant can be introduced via an existing defense in the criminal law. The chief difficulty with this strategy is that the cultural information typically relates to motive, which is not germane to the question of guilt. Hence culture will most often be relevant to disprove an element of the crime. Another possibility is to raise a discrete cultural defense, though such a defense is not legislatively authorized. While it might be preferable if the cultural defense were officially designated as a defense,8 there is no reason why attorneys cannot utilize the cultural defense. Another tactic is to present cultural factors during sentencing, since the requirements of relevancy are considerably relaxed at this stage.9 Despite the challenges associated with raising a cultural defense, defendants may succeed in some cases. Justice requires the consideration of cultural factors to explain a defendants state of mind. It is incumbent upon practitioners that they help combat ethnocentrism10 in a legal system which prides itself on providing equal justice for all. Criminal jurisprudence must allow for a cultural defense. 11.1 Excuse Defenses a) Insanity There have been cases in which the attorneys have advanced a defense combining the mental illness and cultural considerations all in one. Under some circumstances this approach may be necessary, because the defendant suffers from some sort of mental trauma related
7 The fact that the cases are often unpublished suggests that there remains a certain ambivalence in the legal system about the cultural defense. 8 This would remove the uncertainty for judges concerned about reversal. It would also solve the problem of arbitrary and capricious results that occur when cultural evidence is admissible or not, depending upon the judge. 9 There is, however, some question as to whether the Federal Sentencing Guidelines prohibition against national origin precludes the consideration of cultural differences. See infra 12.3[b]. 10 Ethnocentrism is the belief that ones own cultural standards are superior to those of other groups.
427
to his or her culture.11 When immigrants and refugees have difficulty with cultural adaptation, they may claim that cultural reasons led to mental problems.12 In such cases culture is part of a traditional insanity defense. Insanity defenses come in various forms based on both cognitive13 and volitional14 impairments. Sometimes defendants will argue temporary insanity, automatism, and the battered woman syndrome. This section presents examples of these types of culturally based insanity arguments. 1) The Cognitive Insanity Defense The case of People v. Kimura is an example of a defense combining psychological and cultural factors.15 It provides an illustration of a case in which a defendant successfully employed the cognitive insanity defense.16 When Fumiko Kimura, a Japanese American living
Of course, it is impossible to separate the psychological state of a defendant from his or her culture; they are inextricably intertwined. Morse notes that the degree of rationality or self-control that society and the law require for responsibility may vary over time within a society and among societies. One need not be totally irrational or compelled to be excused, but at various times and in various places more or less may generally be expected from people. Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, S. CAL. L. REV. 777, 787 (1985). 12 See generally Matthew Suh, Psychiatric Problems of Immigrants and Refugess, in SOUTHEAST ASIAN EXODUS: FROM TRADITION TO RESETTLEMENT: UNDERSTANDING REFUGEES FROM LAOS, KAMPUCHEA, AND VIETNAM IN CANADA 207 (Elliot L. Tepper, ed. 1980); Joseph Westermeyer & Xoua Thao, Cultural Beliefs and Surgical Procedures, 255 J. AM. MED. ASSN 3301 (1986). 13 Used in most jurisdictions, the MNaghten test provides that the defendant cannot be convicted if, at the time he committed the act, he was laboring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, as not to know he was doing what was wrong. WAYNE R. LAFAVE & AUSTIN W. SCOTT JR., CRIMINAL LAW 304 (2d ed. 1986). 14 The irresistible impulse test permits an insanity defense if a defendant has a mental disease which kept him from controlling his conduct. Id. 15 No. A-091133 (Los Angeles Super. Ct. 1985) (unpublished decision). 16 Information about the case describes the defense as one of temporary insanity. Instead of a cognitive insanity defense, some might think that the defense in Kimura was volitional insanity defense, automatism, or diminished capacity. However, the Defense Sentencing Report contains statements that suggest that Kimura was suffering a cognitive impairment: Because of her mental condition and her cultural background, Defendant did not perceive her parent-child suicide as an illegal act. Defense Sentence Rep. and Statement in Mitigation, People v. Kimura, No. A-091133 at 14 (Los Angeles Super. Ct. 1985) (unpublished opinion).
11
428
in Santa Monica, California, learned of the infidelity of her husband, she attempted oyako-shinju, or parent-child suicide, by wading into the Pacific Ocean with her two children.17 The two children died, but she survived and was charged with first-degree murder with special circumstances which could have carried the death penalty.18 Oyakoshinju, while illegal in Japan,19 is not unheard of as a means by which a family can avoid an otherwise unacceptable social predicament.20 The Japanese-American community gathered a petition with over 25,000 signatures appealing to the Los Angeles County district attorney not to prosecute her, arguing that her actions were based on a different worldview. According to this worldview, it is more cruel to leave the children behind with no one to look after them than it is for the mother to take them with her to the afterlife. Six psychiatrists testified that Kimura was suffering from temporary insanity.21 Some based their conclusion on her failure to distinguish between her own life and the lives of her children.22 Through a plea bargain, her homicide charge was reduced to voluntary manslaughter and she was sentenced to one year in county jail (which she had already served), five years probation, and psychiatric counseling. Though her attorney claimed that the favorable plea bargain relied on psychiatric testimony, commentators believe that cultural factors played a role in the process.23 It is worth pointing out that Kimura benefited from a cultural defense though she had resided in the United
See generally Alison Matsumoto, A Place for Consideration of Culture in the American Criminal Justice System: Japanese Law and the Kimura Case, 4 J. INTL L. & PRAC. 507 (1995); Taimie L. Bryant, Oya-Ko Shinju: Death at the Center of the Heart, 8 UCLA PAC. BASIN L.J. 1 (1990). 18 RONALD MARKMAN & DOMINICK BOSCO, ALONE WITH THE DEVIL 347-348 (1989). 19 Though it is illegal in Japan, the parent survivor is rarely punished. Maura Dolan, Two Cultures Collide Over Act of Despair; Mother Facing Charges in Ceremonial Drowining, L.A. TIMES, Feb. 24, 1985, at 3. 20 The frequency of its occurrence has been estimated as once a day. Megan McCaslin, Immigrants Suicide Attempt Marks Death of a Dream, Birth of a Cause: Japanese Americans Trial Widely Followed in Homeland, WASH. POST., Sept. 5, 1985, at A12; MARKMAN & BOSCO, supra note 17, at 348. Approximately 500 cases are reported every year. Gordon Dillow, When Legal Systems and Culture Collide, L.A. HERALD EXAMINER, Feb. 18, 1985, at A7. 21 Deborah Woo, The People v. Fumiko Kimura: But Which People?, 17 INTL J. SOC. & LAW 403, 406 (1989). 22 See Defense Sentence Rep. and Statement in Mitigation, People v. Kimura, No. A-091133 at 13 (Los Angeles Super. Ct. Nov. 21, 1985) (unpublished decision). 23 See, e.g., Woo, supra note 20, at 406.
17
429
States for several years. As she had remained culturally isolated, she had not become assimilated. This suggests that assimilation often does not occur as rapidly as many believe, and a court may allow culture to affect the disposition of a case, regardless of the length of time a defendant has lived in the United States. 2) The Volitional Insanity Defense People v. Metallides is an illustration of the use of the volitional insanity defense.24 In Miami, Florida, a Greek immigrant, Kostas Metallides, killed his best friend when he found out that he had raped Kostass daughter.25 His attorney, used a temporary insanity argument based on culture. Though not recognized as a defense in Florida, he relied on the irresistible impulse test. He constructed an argument around the cultural idea that the law of the old country is that you do not wait for the police if your daughter has been raped.26 Though the jury was given temporary insanity as the official issue to decide, apparently it recognized that honor was a cultural concept.27 Kostas was acquitted because the jury technically found him not guilty by reason of temporary insanity, but those involved say it was because of arguments based on Greek culture.28 3) Automatism The automatism defense is sometimes regarded as a type of insanity defense but is different in character. Automatism refers to the behavior of an individual who acts either unconsciously or by reflex or spasm. The concept includes such things as somnambulism, but not irresistible impulse.29 The standard view of the automatism defense is
People v. Metallides, Case No. 73-5270 (unreported decision) (1974). Oliver, Cultural Defense--A Legal Tactic, L.A. TIMES, July 15, 1988, at 1. 26 Interview with Bernard Yedlin, Attorney for Kostas Metallides, Aug. 4, 1988. 27 See, e.g., CHARLES C. MOSKOS, GREEK AMERICANS: STRUGGLE AND SUCCESS 94 (2nd ed. 1989). 28 Nine psychiatrists testified, but no expert on Greek culture did so. Interview with Bernard Yedlin, Attorney for Kostas Metallides, Aug. 4, 1988. 29 The difference between irresistible impulse and automatism is that in the case of the former, the accused is aware of what he is doing, but is unable to control his actions, whereas in the latter the accused is not only unable to control his actions but is completely unaware of what he is doing. Neelakanthi Jayaratnam, Irresistible Impulse, 5 COLOMBO L. REV. 103, 106 (1979).
25 24
430
that it does not relate to mens rea but rather to the actus reus. The notion is that a person who acts while unconscious should not be held responsible for illicit conduct, not because he failed to form the necessary intent but because the act was not a voluntary one.30 While automatism is relatively uncommon in cultural defense cases, it was argued in People v. Wu, a case which was later depublished.31 In 1989, Helen Wu, a native Chinese woman living in Palm Springs, strangled her son and then tried to commit suicide by slashing her wrists. She was distraught over the fact that her lover did not return her affection and that he was treating her son poorly. Her attorney presented an automatism defense and a cultural defense, although the two are clearly linked. The success of the former is predicated upon an understanding of the cultural context of the events central to the case. The defense argued that she was in a state described by psychiatrists as a fugue state of consciousness, and the experts in transcultural psychology testified that Wus emotional distress could only be understood by reference to her cultural background.32 The defense argued that she acted in a culturally motivated fashion to save her son and herself from shame and abuse and to be reunited in the afterlife.33 The jury convicted her of second degree murder and she was sentenced to a prison term of fifteen years to life. Her appeal was based on the trial judges failure to give jury instructions on the automatism and cultural defenses. Apparently the lower court did not want to endorse a cultural defense. This would put a stamp of approval on [defendants] actions in the United States, which would have been acceptable in China.34 The Court of Appeal found that the failure to instruct the jury on unconsciousness was reversible, but that it was unnecessary to decide whether failure to do so with respect to her cultural background was reversible error. However, the Court stated that if the defense requested
30 LAFAVE & SCOTT, supra note 13, at 382. The distinction seems shallow. One could equally well argue that the defendant performed the act itself (actus reus) but did not do so intentionally. 31 286 Cal. Rptr. 868 (1991), rehg denied, 1992 Cal. LEXIS 310 (opinion ordered depublished). 32 Id. at 885. 33 Id. at 885-87. 34 Id. at 880.
431
an instruction on culture, the trial court should give it.35 It seems that the Court was sympathetic to a cultural defense: There is no reason why defendants requested instruction, simply pointing out that the jury may consider evidence of her cultural background in determining the presence of absence of the relevant mental states, should not have been given.36 The Court of Appeal commented on the relevance of her cultural background to the provocation/heat of passion defense. The California Supreme Court declined to review the case on the merits but ordered the depublication of the opinion by the Court of Appeal.37 Despite the depublication, Helen Wu was entitled to a new trial. On retrial she was convicted of voluntary manslaughter.38 It appears that the jury saw the cultural factors as being a partial excuse for Mrs. Wus actions. 4) Battered Women Defense A case which shows how defense counsel might integrate a battered woman defense with a cultural defense is Nguyen v. State.39 Thu Ha Nguyen, a woman from Vietnam, claimed that her husband and her stepdaughter were verbally abusive and disrespectful toward her. Nguyen shot her husband and stepdaughter when her husband informed her that he intended to divorce her.40 At the trial her attorney wanted to present a battered person defense with a cultural component. The cultural argument was that the defendant felt trapped in the marriage because divorce would have made her a pariah in her culture.41 Further, the defense argued that the defendants fear was
Id. at 879-80. Id. at 882. 37 People v. Wu, No. SO24083, 1993 Cal. LEXIS 310 (Jan. 23, 1992). 38 Mark Acosta, Woman Found Guilty in Sons Death, THE PRESS-ENTERPRISE, June 30, 1992, at B.1. 39 520 S.E.2d 907 (Ga. 1999); 1999 WL 727722 (Ga. 1994). For a discussion of the case see Lawrence Viele, Court Expands Self Defense Claims, NATL L.J., October 4, 1999, at A6. 40 520 S.E.2d at 908; 1999 WL 727722 at *1-2; see also Viele, supra note 38, at 6; Lawrence Viele, Justices to Hear Arguments on Wrongful Birth, Cultural Defense, FULTON COUNTY DAILY REPORT, April 9, 1999, at 1. 41 Nguyen v. State, 505 S.E.2d 846, 847-48 (Ga. App. 1998), revd ___ S.E.2d ___ (Ga. 1999); see Trisha Renaud, Battered Syndrome Defense Argued to Justices, FULTON COUNTY DAILY REPORT, April 14, 1999, at 1. Her attorney argued that A[t]he cultural evidence tends to prove why this woman would be threatened under the
36 35
432
culturally based because the verbal abuse of her husband and stepdaughter incited fear in her which a person born and raised in the United States may not have experienced.42 The trial court refused to allow the presentation of expert testimony in support of this defense. The jury convicted Nguyen of aggravated assault, and she appealed.43 The Court of Appeals affirmed because she had been subjected to verbal abuse and not physical abuse. As for the evidence on differences between Asian and American cultures, the Court thought it unnecessary for the jury to understand the defendants reaction to her familys demeaning behavior.44 In principle, the Court objected to the idea that Vietnamese notions should influence its analysis.45 The Georgia Supreme Court, however, disagreed with the notion that verbal or emotional abuse cannot give rise to a battered person defense. If the abuse is extreme enough that it is accompanied by a reasonable belief in the imminence of the victims use of unlawful force, that is sufficient to justify invoking the defense.46 In this case, however, the Georgia Supreme Court found that the evidence of psychological abuse did not rise to that level. The Court also disagreed with the implication of the appellate courts ruling that evidence of a criminal defendants cultural background is never relevant, but found again that in this particular case the cultural evidence was not relevant.47 It is significant that the Georgia Supreme Court left the door
circumstances. Without this, the jury cant understand. Id., at 1. The prosecutor objected to the cultural background defense because it would open a legal Pandoras box. Brief of Appellee to Supreme Court of Georgia, at 21. 42 505 S.E.2d at 848. 43 Id. at 846. 44 Id. at 848. 45 Id. The fact that verbal threats or verbal abuse might justify the use of deadly force in some cultures is not relevant to whether the use of such force is justified under Georgia law. Id. 46 520 S.E.2d at 908. 47 Id. The expert testimony proffered by the defense showed the loss of status, humiliation and possible adverse spiritual consequences to appellant and her family from her husbands failure to maintain appellants proper position in the household. However, there was no evidence that individuals sharing appellants cultural background would believe themselves to be in danger of receiving any physical harm as a result of such loss of status and disrespectful treatment. While we can envision rare situations in which such evidence might be relevant to assist the jury in understanding why an accused acted in the way he or she did, that situation is not present in this case. Id.
433
open to the use of cultural evidence about a defendants background provided defense counsel can make a powerful showing of the authenticity of the claim and the relevance of the cultural pattern to the accuseds behavior. 5) Culture-Bound Syndromes Sometimes defense attorneys may wish to argue that a defendant acted as a result of extreme mental or emotional disturbance. The defendants response may only be understandable in a particular cultural context.48 In some cases, the defense depends on the recognition of a culture-bound syndrome.49 A salient example of an attempt to raise such a defense was the Hawaii Supreme Court decision of State v. Ganal.50 A Filipino man, Orlando Ganal, shot his relatives and set fire to a home, killing several people. At the trial he argued that he had run amok.51 Amok is a culturally-bound syndrome
Although it is usually the defendants whose culture-bound syndrome is central to the case, in People v. Rev. Chung and Rev. Choi (1997). It was the victim whose culturebound syndrome was crucial to the defense. See Renteln 2004, p. 30. See generally Horacio Fabrega, Jr., Cultural Relativism and Psychiatric Illness, 177 J. NERVOUS & MENT. ILLNESS 415 (1989); Richard A. Shweder & Edmund J. Bourne, Does the Concept of the Person Vary Cross-Culturally?, in CULTURAL CONCEPTIONS OF MENTAL HEALTH AND THERAPY 97 (Anthony J. Marsella & Geoffrey M. White, eds. 1982). 49 For an overview of culture-bound syndromes, see generally CULTURE, ETHNICITY, AND MENTAL ILLNESS (Albert C. Gaw, ed. 1993). The syndromes are becoming more accepted within the medical establishment; they are covered in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) [hereinafter DSM-IV] and THE MERCK MANUAL OF DIAGNOSIS AND THERAPY (Robert Berkow et al. eds. 16th ed. 1992) [hereinafter THE MERCK MANUAL]. The DSM-IV contains a special section on Aethnic and cultural considerations. Appendix I of the DSM-IV provides a useful glossary of culture-bound syndromes. See DSM-IV at 844-849. THE MERCK MANUAL, another well-respected psychiatric tool, has added a section on Cross-cultural issues in Medicine (Folk medicine; Ethnomedicine), which discusses the phenomenon of culturebound syndromes. See THE MERCK MANUAL at 2593. For specific articles on particular groups, see Simon Dein, ABC of Mental Health: Mental Health in a Multiethnic Society, 315 BRIT. MED. J. 473 (1997); Cross-Cultural MedicineCA Decade Later, 157 WESTERN J. MED. 246 (1992); Cross-Cultural Medicine, 139 WESTERN J. MED. 1 (1983). 50 State v. Ganal, 917 P.2d 370 (Haw. 1996). 51 Id. at 374-77. An excellent detailed account of the Ganal case can be found in Jisheng Li, The Nature of the Offense: An Ignored Factor in Determinating the Application of the Cultural Defense, 18 U. HAW. L. REV., 765, 789-795 (1996). The
48
434
defined as [a] dissociative episode characterized by a period of brooding followed by an outburst of violent, aggressive, or homicidal behavior directed at people and objects. The episode tends to be precipitated by a perceived slight or insult and seems to be prevalent only among males. The episode is often accompanied by persecutory ideas, automatism, amnesia, exhaustion, and a return to premorbid state following the episode.52 In Ganal, the defense was that the defendant suffered humiliation in the context of his failing marriage with his wife. Distraught because of his wifes infidelity and her taunting, he was described as experiencing severe emotional distress and depression. This profoundly affected his sense of self-esteem, precipitating his fit of rage.53 He went on a rampage, killing his wifes parents, and injuring his wife and their son. He also set fire to the home of the brother of his wifes lover, and two young children perished in the flames. Expert witnesses testified about the concept of amok to explain his actions.54 Orlando Ganal was convicted of first degree murder and first degree attempted murder.55 On appeal, he challenged his conviction on several grounds, one of which was that the prosecutor made sarcastic comments trivializing the amok defense.56 The Hawaii Supreme Court sharply criticized the prosecutors remarks, but rejected the argument that prosecutorial misconduct required reversal of his conviction.57 The use of the amok defense provoked heated criticism that it promoted stereotypes that Filipinos are violent.58 Whether the amok
author favors the introduction of cultural evidence and would leave the determination of the reasonableness of the cultural explanation to the jury. 52 DSM-IV, supra note 47, at 845. The description goes on to mention that the original reports of the syndrome came from Malaysia but that similar behavior patterns have been documented in Laos, Philippines, Polynesia (cafard or cathard), Papua New Guinea, and Puerto Rico (mal de pelea) and among the Navajo (iichaa). For additional information on amok, see JOHN C. SPORES, RUNNING AMOK: AN HISTORICAL INQUIRY (1988). 53 See Ganal, 917 P.2d at 374-77. The concept of self-esteem amor proprio in the Philippines is based on how one is viewed by ones group or barkada. If a mans wife had an affair, this would call into question his maleness or paglalaki. See Jisheng Li, supra note 49, at 792-93. 54 See Ganal, 917 P.2d at 374-77. 55 Id. at 373. 56 Id. at 386-89. 57 Id. at 389. 58 See Ganal Case Jury Rightly Rejected Amok Defense, HONOLULU STARBULLETIN, April 9, 1993, at A10.
435
defense was properly used in the Ganal case, it is clear that culturebound syndromes will be important in some criminal cases. In order to effectively represent defendants from other cultures a practitioner should familiarize himself or herself with culturally related syndromes from the clients culture. Whenever counsel is confronted with a case where she suspects that a culturally related syndrome has played a role, she should consult with a cultural expert. b) Duress The basic notion of duress is that a person is compelled to commit a crime by forces external to himself or herself. For example, a person who is compelled to rob a bank under threat of severe bodily harm by another person could claim duress. One of the main requirements that usually has to be met in order for the defense to be raised is that the individual must face an imminent or immediate threat of bodily harm if he or she fails to comply. Culture can be employed as part of a duress defense. A defendant may claim that he was under a cultural imperative to commit an act and that failure to act will result in punishment within his community in accordance with customary law. For instance, in an Australian case, two young Aboriginal men were assigned the responsibility of strangling a man who had stolen important corroboree stones and sold them to a white man.59 The court acknowledged that their refusal would result in serious consequences and decided to mitigate the punishment as a consequence. The judge sentenced the four older men to only two years imprisonment and the two younger men to one year.60 Perhaps because of their age, or perhaps because of the fact that the younger men would have been subject to severe tribal sanctions had they not carried out the determination of the elders, the trial judge handed down light sentences for them.61 Other cases in which culture might figure into a duress defense are those in which male relatives are required to kill sisters who have been dating, despite cultural prohibitions against doing so. In these cases
59 For an in-depth discussion of this case, see Alison Dundes Renteln, A Justification of the Cultural Defense as Partial Excuse, 2 S. CAL. REV. L. & WOMENS STUD. 437, 450-51 (1993). 60 See id. 61 See id.
436
defense counsel can attempt to fashion a duress defense based on the fact that brothers face serious consequences in their communities if they refuse to follow the folk law. c) Diminished Capacity In some cases the diminished capacity/responsibility defense might prove to be effective for some defendants whose cases involve a cultural dimension. One case where a defendant invoked the diminished capacity defense is People v. Poddar.62 Prosenjit Poddar was a member of the Harijan (untouchable) caste, who was attending graduate school in naval architecture at the University of California at Berkeley. He was rejected by a nineteen year-old woman, Tanya Tarasoff, with whom he believed he had a romantic relationship. Because of crosscultural misunderstandings, he was convinced that she was committed to him.63 After she rejected him, he killed her. At trial, Poddars attorney sought to have an anthropologist testify about the cultural stresses experienced by Indian students who study at American universities, particularly about the difficulty of establishing relationships when arranged marriages are the norm in India. However, the judge excluded the testimony of an anthropologist who would have explained the cultural stresses that Poddar had suffered in adjusting from life as an untouchable to life at a major university.64 It was important that the jury understand his cultural background. Even casual interaction was significant to someone whose culture stipulated strict segregation. In addition, because he was a member of the Harijan caste, the untouchables, rejection was particularly painful. Poddar had been suffering from cultural disorientation and was severely emotionally distressed. The clinical psychologist under whose care Poddar was at the time of the killing had diagnosed him as paranoid schizophrenic and dangerous.65 Poddar was convicted of second-degree murder and sentenced to five years to life in the California Medical Facility in Vacaville, but the
See People v. Poddar, 149 Cal. Rptr. 910 (Cal. 1974); People v. Poddar, 103 Cal. Rptr. 84 (Cal. Ct. App. 1972). 63 He had interpreted her behavior to mean she was committed to him. For instance, she accepted his gift of a sari, which (according to Poddar) meant in his culture that she was prepared to marry him. 64 See Poddar, 103 Cal. Rptr. at 88. 65 See id. at 86.
62
437
conviction was overturned on appeal. The reversal was not based on the exclusion of the anthropologists testimony,66 but on the failure of the trial judge to instruct the jury properly on the meaning of diminished capacity. Although a new trial was ordered, apparently the court agreed to release him on the condition that he be deported to India. Thus, even though the defendant was not permitted to have cultural information introduced at the trial, his defense of diminished capacity tied to his cultural background indirectly prevailed in the end. Practitioners should be mindful of this result. The presentation of a cultural defense, even if it is limited or even excluded by the court, may have beneficial effects for the client. By placing the client in the context of his culture, he becomes more humanized in the eyes of the court, the prosecutor, or the jury. d) Provocation as Partial Excuse One of the most ancient doctrines in the criminal law is the provocation defense, also known as the heat of passion rule.67 It is found both in common law and in most homicide statutes.68 The provocation/passion formula, which can reduce a murder charge to one of manslaughter,69 is based on the idea that a person who is provoked to kill does so without the malice aforethought required for the crime of murder and is, therefore, less culpable. In many homicide cases, defendants have invoked cultural arguments, many of which turn on the question of provocation.70 The
The Court of Appeals expressed concern that the consideration of social science would distract the jury: To allow independent testimony on sociological, ethnic, or like influences, not as reviewed by experts in psychological sciences, but as directly presented to the jury, would be to open the door to a vast amount of argument from various sources, the result of which would often be distraction of the jury and the removing of their deliberation from the essential element of the mental capacity of the accused. Poddar, 103 Cal. Rptr. at 88. 67 See Morse, supra note 11, at 805. 68 See id. at 29. 69 See id. at 33. 70 In actual practice, many of these cases are argued using many different defenses, of which provocation is only one. For example, in Quang Ngoc Bui v. State, 551 So.2d 1094 (Ala. Crim. App. 1988), a Vietnamese defendant killed his children then slit his own throat when he discovered that his wife was unfaithful. He argued both provocation and volitional insanity, but the death penalty was upheld on appeal.
66
438
provocation test has two prongs, both of which must be proved: 1) that the reasonable person would have been provoked and 2) that the defendant was actually provoked.71 The first test relies on the so-called reasonable or objective person test, the fictitious person against whom all conduct is to be judged. By its very nature, the reasonable person is objective, so cultural evidence is irrelevant to the first test. For the second test, however, cultural evidence is admissible. The major obstacle to the use of the provocation defense by defendants in cultural defense cases is judicial adherence to the objective reasonable person standard.72 Critics contend that it is absurd to judge whether an objective reasonable person would have been provoked, when the reality is that this objective being is simply the persona of the dominant culture. Their position is that the court should modify the standard, so that the application of the test evaluates whether the reasonable person from the defendants culture would have been provoked. Whether the cultural defense can be effectively raised through the provocation defense depends entirely upon the judges interpretation of the reasonable person standard: if the test is objective, almost invariably no provocation will be found; if the test is subjective, then ordinarily provocation will be found. This controversy is illustrated in the next cases. In People v. Aphaylath, the New York Court of Appeals found the exclusion of cultural evidence to be a serious enough error to warrant reversal.73 In 1982, May Aphaylath, a Laotian refugee residing in
The strategy of arguing more than one defense simultaneously can lead to logical difficulties. For example, the problem in People v. Poddar, 103 Cal. Rptr. 84, 90-91 (Cal. 1972), was that the provocation defense seemed to contradict the diminished capacity argument. The provocation defense requires a showing that the objective reasonable person would have been provoked; but the basis of the diminished capacity defense is precisely that the defendant is not the ordinarily reasonable man at the time of the occurrence. Id. at 90. Since the Court of Appeal ordered that the judgment be reduced from second degree murder to manslaughter, it seems as though the court might have been persuaded by the provocation argument. The official reason given for the reduction was that in past precedent reversible errors led to a similar charge/sentence reduction. See id. at 93. 71 For more on the provocation defense, see LAFAVE & SCOTT, supra note 13, at 653-64. 72 See Dolores Donovan & Stephanie M. Wildman, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, 14 LOYOLA L.A. L. REV. 435, 444-45 (1981). 73 499 N.Y.S.2d 823, 824 (N.Y. App. Div. 1986).
439
Rochester, New York stabbed his wife to death in a jealous rage when she received a phone call from a former boyfriend. Defense counsel tried to argue that Aphaylaths loss of self control was culturally based: under Laotian culture the conduct of the victim wife in displaying affection for another man and receiving phone calls from an unattached man brought shame on defendant and his family sufficient to trigger defendants loss of control.74 Defense counsel sought to introduce expert witnesses to establish: 1) that Aphaylath was suffering from culture shock75 or extreme disorientation and 2) that the infidelity of ones wife brings great shame on the family. Counsel attempted to construct an argument that in Laotian culture the combination of the disgrace of Aphaylaths wife conduct and the stress of resettlement could have triggered his disproportionate rage. The judge disallowed the testimony of experts on the cultural issues because they had not evaluated the defendant and could, therefore, only testify about Laotian culture and refugee problems generally. The court took the view that jealousy was not a subject beyond the comprehension of the jury for which expert evidence was needed.76 Aphaylath was convicted of murder in the second degree. The Supreme Court, Appellate Division, denied the appeal based on the exclusion of expert evidence because it found the trial courts judgment appropriate with respect to excluding cultural evidence. The dissenting judge would have granted a new trial because the excluded testimony would have been highly probative of whether there was a reasonable explanation for defendants conduct from the perspective of his internal point of view.77 In his view, the evidence might have established extreme emotional disturbance that could serve as a mitigating factor. The Court of Appeals of New York, however, held that it was reversible error to exclude the testimony of expert witnesses concerning culture shock suffered by Laotian refugees.78 As a result the Court ordered that the lower decision be reversed and the case remanded for a new trial.
People v. Aphaylath, 502 N.E.2d 998 at 999. See Maj Duong Nguyen, Culture ShockCA Review of Vietnamese Culture and Its Concepts of Health and Disease, 142 WESTERN J. MED. 409 (1985). 76 See Aphaylath, 499 N.Y.S.2d at 824. 77 Id. at 824. 78 Id. at 825.
75 74
440
The relevance of culture for a defense of provocation was also the central issue in the People v. Chen case,79 which concerned Dong Lu Chen, a Chinese-born man living in New York, who bludgeoned his wife to death after she confessed to adultery. A professor of anthropology at Hunter College, Burton Pasternak, testified that in China women are sometimes severely punished for adultery. He said that it is viewed as an enormous stain that reflects not only on the husband but is a reflection on his ancestors and his progeny.80 Pasternak did observe that adultery rarely ends in a wifes murder in China.81 In China when irate husbands confront wives suspected of infidelity, the community normally intervenes to prevent any acts of violence. In fact, Pasternak could not cite any cases where Chinese men had killed adulterous wives, though he did know of beatings.82 Nor did he present evidence to show that a jealousy killing would go unpunished under either customary or modern Chinese law. It seems that no effort was made to discover what punishment would be imposed in the case of a husband who murders an adulterous wife, either under traditional or modern Chinese law. Nevertheless, the judge after a bench trial relied heavily on Pasternaks testimony when he found Chen guilty of second degree manslaughter and decided to sentence him to only five years probation. The sentence of five years probation essentially represented a complete defense rather than mitigation. Womens organizations and AsianAmerican groups condemned the decision.83 The court in State v. Haque,84 reached a different result than the Aphaylath and Chen courts. In that case, a man from India, Nadim Haque, killed a Lori Taylor, a female student who rejected him after a love affair. At trial his attorney argued that he was not guilty of murder
See Celestine Bohlen, Holtzman May Appeal Probation in the Killing of a Chinese Woman, N.Y. Times, April 5, 1989, at B3. 80 Id. 81 See Rorie Sherman, Cultural Defenses Draw Fire, NATL L.J., Apr. 17, 1989, at 3, 8. 82 See Dick Polman, Controversial Cultural Defense Creeps into Courts, PHILA. INQUIRER, July 2, 1989, at 1A, 4A. 83 For reaction to the case, see Lillian K. Sing, Sexual Bias or Cultural Sensitivity, COURTS & COMMENTARY, Nov. 1989, at 4; Anthony Trimarchi, U.S. Judge Refuses to Jail Wife-Killer, ASIAN OUTLOOK, May-June 1989, at 29; Sherman, supra note 116 at 3, 28; Marianne Yen, Refusal to Jail ImmigrantCJudge Ordered Probation for Chinese Man, Citing His Cultural Background, WASH. POST, Apr. 10, 1989, at A3 84 726 A.2d 205 (Me. 1999).
79
441
because he suffered from an abnormal condition of the mind and also that he had been provoked by her verbal rejection of him.85 The theory behind these defenses was that Haques traditional Muslim Indian upbringing, immigrant experience and psychological condition strongly influenced his perception of his relationship with Taylor and, eventually, the way he reacted to Taylors termination of their relationship.86 Haque was convicted of murder and assault with a deadly weapon.87 The Maine Supreme Court upheld the lower courts exclusion of the testimony of a psychiatrist that Haque was in a blind rage when he killed, and the exclusion of all of the anthropological testimony concerning his background and how his traditional upbringing as a Muslim Indian influenced his perception of the relationship and its demise.88 The Court concluded that mere words (Taylors refusal to marry him) do not constitute adequate provocation, and therefore the testimony was not relevant to any determination before the jury.89 In some cases, defendants claim that a verbal insult or gesture provoked them to commit violent acts.90 The problem is that what is considered insulting in another culture may not be understood by jurors from the mainstream.91 Although it is clear that the average person
Id. at 206. Id. at 206-07. 87 Id. at 206. 88 Id. at 209. The medical expert, Dr. Bloom, was permitted to testify about Haques state of mind at the time of the attack and also about the manner in which enculturation shaped his perception of the course of events that led up to the killing. See id. at 207 n.1. Dr. Caughey, a cultural anthropologist interested in psychological anthropology, could not testify to any issue relevant to the proceeding. His testimony was not deemed pertinent to Haques state of mind. The court noted that Haque expressly disavowed any reliance on a cultural defense. See id. at 208. If Haque had raised a cultural defense, the court might have considered the anthropological testimony admissible for that defense. 89 Id. at 209. 90 For example, a native of Thailand, Pongsak Trakulrat, who was singing at the Thai Town restaurant on Melrose Avenue in Los Angeles became enraged when a man in the audience put his feet up on the table, so that his soles were pointing at Trakulrat. Evidently, this gesture is considered to be extremely derogatory in Thai culture. Trakulrat shot the man to death and was convicted of second degree murder and sentenced to 29 years to life in state prison. The prosecutor raised the cultural issue during the plea bargain. Personal Communication, David S. Dahle, Deputy District Attorney, April 16, 1991. 91 See Whats A-O.K. in the U.S.A. is Lewd and Worthless Beyond, N.Y. TIMES, Aug. 18, 1996, at E7.
86 85
442
from the culture would arguably behave similarly to the defendant, courts adhere to the fiction of objective reasonableness, i.e., what the objective reasonable person, leading them to reject culture-based provocation defenses and to exclude cultural evidence as irrelevant.92 In Trujillo-Garcia v. Rowland,93 Eduardo Trujillo Garcia was playing poker with Jose Padilla. Padilla lost $140 to Trujillo-Garcia, and returned four days later, demanding his money back. When Padilla said, chinga tu madre, Trujillo-Garcias reaction to this challenge to his honor was to grab a gun from his waistband and shoot Padilla.94 At trial, Trujillo-Garcia argued that the phrase was so offensive that he was provoked to commit an act of violence.95 Those who do not speak Spanish have difficulty comprehending the seriousness of the insult. The phrase is considered fighting words and conjures up images of violation of the mother (associated with the Virgin Mary). It has an obscene connotation as well as a blasphemous one. He was convicted of second-degree murder and received a sentence of 15 years to life.96 On appeal in state court, Trujillo-Garcia argued the failure of the trial court to consider the words in their cultural context as part of the analysis of reasonableness constituted unconstitutional discrimination based on national origin and ethnic characteristics.97 The argument was specifically that a persons reaction to a particular insult depends upon his or her cultural upbringing.98 At least two issues had to be decided: first, whether words constitute adequate provocation, and second whether to substitute the average reasonable Mexican for the average reasonable person to satisfy the objective prong of the provocation test. With respect to the first argument, California law allows verbal provocation as
See, e.g., State v. Haque, 726 A.2d 205 (Me. 1999). Trujillo-Garcia v. Rowland, 1992 U.S. Dist. LEXIS 6199 (N.D. Cal. April 28, 1992), affd, 1993 U.S. App. LEXIS 30441 (9th Cir. Nov. 10, 1993). This was a habeas corpus petition under 28 U.S.C. 2254. Trujillo-Garcia was a nineteen-year-old man from a traditional Catholic Mexican family with twelve children which was of lower socio-economic status. Id. at *2. 94 Id. at *3. The phrase literally means go and fuck your mother. Id. at *10. 95 Id. at *4. 96 Id. at *1. 97 Id. at *4. See also Appellants Supplemental Brief, People v. Trujillo-Garcia, Court of Appeal, California, First Appellate District, Division One, No. A038099 [hereinafter Trujillo-Garcia Brief]. The Equal Protection argument was based on the 14th Amendment and the California Constitution, Article 1, Section 7. 98 Trujillo-Garcia, 1992 U.S. Dist. LEXIS 6199, at *4.
93 92
443
adequate.99 The second argument was the more difficult one. The notion was that the failure of the trial court to apply a culturally specific reasonable persons test constituted a violation of equal protection: [e]qual protection requires that similarly provocative insults be similarly treated, without regard to their ethnic origin or cultural derivation. If certain insults are sufficiently offensive in American culture to mitigate murder to manslaughter . . . then insults that are equally offensive in another culture should be treated as equally mitigating.100 The district court rejected the defendants habeas petition, noting that even though the state trial court did not take his cultural background into account, his provocation defense would have been inadequate even if his cultural background had been considered.101 The court emphasized that it refused to authorize use of a culturally specific reasonable person test. Although the court noted that the equal treatment argument was not without merit, Judge Patel declined to elaborate because she concluded that Trujillo-Garcia did not respond as an ordinary, reasonable Mexican male would have responded.102 The U.S. Court of Appeals for the Ninth Circuit affirmed, concluding that even if the failure to consider the cultural background was erroneous, it was harmless because it did not substantially or injuriously affect the outcome of the trial.103 Unfortunately, the judges did not perceive the offensiveness of the insult. This is apparent because they assumed that the average Mexican would not be provoked. In order to persuade judges and juries, defense counsel must argue that the proper standard is the average person from the defendants culture. Although this standard might be characterized as subjective, it could also be regarded as the objective standard of the cultural group in question. If a jury instruction focuses on a person in the circumstances of the defendant,
99 Id. at *6-7. The California legislature rejected the common law rule in its manslaughter rule. In other jurisdictions raising a cultural defense involving a verbal insult might be problematic. 100 Trujillo-Garcia Brief, supra note 96, at 13. 101 1992 U.S. Dist. LEXIS 6199, at *10. 102 Id. at *8. 103 Trujillo-Garcia v. Rowland, 1993 U.S. App. LEXIS 30441, at *5 (9th Cir. Nov. 3, 1993).
444
this might allow for contextual analysis.104 This type of framework will be crucial for the potential success of this defense.105 Some provocation cases involve so-called honor killing in which Male relatives kill a young woman who have acted in such a way as to dishonor their families. In the Australian case of R. v. Dincer, a traditional Turkish Muslim father stabbed his sixteen-year-old daughter because her sexual relationship with a man was considered unacceptable.106 The father sought to raise the provocation defense, but the question was whether the jury could use the ordinary person test with the attributes of the accused.107 Because the father went to the mans house to confront the daughter, the prosecution argued that the provocation was self-induced but the court rejected this without argument.108 Many will object to the use of provocation defenses in cases where men kill women.109 Defense counsel will have to proceed with caution, acknowledging the gender dimension. The best way to counter this argument is to point out that women from other cultures benefit from
See 1 California Jury Instructions Criminal 8.42 (6th ed. 1996) (Sudden Quarrel or Heat of Passion and Provocation Explained). The model instruction provides: The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. (emphasis added). 105 Another unpublished case involving a verbal insult is People v. Bonadonna, Court of Appeal, California, First Appellate District, Division Five, S.F. Super. Ct. No. 130960 (July 2, 1990). Bonadonna, a Sicilian, claimed to have been provoked by Roberto Lucarini, a Northern Italian. Lucarini called him cornuto, which means both cuckold and the passive partner in homosexual sodomy. A few days later, Bonabonna shot Lucarini. Despite the presentation of testimony about the cultural significance of the insult, he was convicted of first degree murder and received a sentence of 27 years to life. On appeal, in a peculiar ruling, the Court held that the use of culture was appropriate to understand the insult, but that culture could not be used to evaluate the response to the insult: Thus, consideration of cultural context may be essential to understanding how words could be perceived as insulting, but it is irrelevant to the jurys determination of how the reasonable person would react to the perceived insult. Id. at 5. Hence the refusal of the trial court to give a special jury instruction concerning the cultural context was properly rejected as it was overly broad. 106 R. v. Dincer, Victorian Reports Vol. 1, 461 (Supreme Court of Victoria, 1983). 107 The court wrote: Whether the ordinary man possessed of those characteristics might have acted as the accused man did is a question which could conceivably be rationally answered yes, and therefore should be left to the jury. Id. at 463-464. 108 See id. at 464. 109 See, e.g., Rachel J. Littman, Adequate Provocation, Individual Responsibility, and the Deconstruction of Free Will, 60 ALBANY L. REV. 1127, 1163 (1997).
104
445
culturally based provocation defenses and that the defense, so long as it is part of the criminal law, should be equally available to all defendants. Whatever objections one may have to the uses of the provocation defense, there is a powerful argument that it is unfair to limit the use of a criminal defense, theoretically available to all defendants, to those who are provoked by what is considered offensive by the dominant group. Defense counsel should argue that failure to consider the cultural background of the accused in assessing his or her reaction to provocation violates the principles of equal protection and fundamental fairness.110 11.2 Justification Defenses a) Self-Defense When the individual who argues self-defense acts reasonably, he will have the benefit of a complete defense to a number of crimes.111 For the most part, self-defense will succeed only if a defendant has a reasonable belief that the use of force is necessary.112 Hence the critical question in cultural defense cases will be how to judge whether a person has such a reasonable belief.113 Another feature of self-defense is that the strategy only wins provided the defendant can demonstrate that he exercised a necessary and proportional response.114 It is possible that the proportionality requirement would limit its utility for defendants in cultural defense cases. The reason for this is that the determination of what constitutes a proportionate response would depend upon the cultural background of
110 See James J. Sing, Culture and Sameness: Toward a Synthetic View of Provocation and Culture in the Criminal Law, 108 YALE L.J. 1845. Sing argues that it is problematic to argue that exclusion of cultural evidence violates equal protection because the interpretation of criminal law standards is not based on a desire to discriminate. Defense counsel should argue, however, that the decision to adhere to the objective standard is arguably based on a desire to discriminate against cultural minorities. 111 See LAFAVE & SCOTT, supra note 13, at 454. 112 See id. at 457. 113 If a defendant has a reasonable but mistaken belief that force was necessary for self protection, some jurisdictions allow an imperfect self defense which reduces a murder charge to one of manslaughter. See LAFAVE & SCOTT, supra note 13. 114 Paul Robinson (1982), Criminal Law Defenses: A Systematic Analysis, COLUMBIA LAW REVIEW 82, 199-291 at 216.
446
the person making the assessment.115 Presumably the judge from the dominant culture would not view the act as a proportionate response, even if members of the defendants cultural community agreed that it was. For example, a defendant might construct an argument based on fear of divine retribution as the motivation for the act. The idea would be that the act was culturally required and therefore necessary. From a cultural vantage point, the act would be a lesser evil than the violation of the law.116 In State v. Butler,117 an unreported case, two Native Americans killed a Caucasian, Donald Pier, who had been digging up Indian graves in order to sell authentic Indian artifacts. According to official court documents, they allegedly smashed his fingers in an attempt to get his confession and the names of others engaged in the practice of grave-robbing and then cut his throat. The defendants were members of the Siletz tribe and members of the activist organization known as the American Indian Movement. Although their attorney seems to have been somewhat reluctant to advance the argument, some Indians regarded their action as comparable to self-defense.118 For many years Pier had pilfered valuable items from Siletz tribal grave sites. Although Native American residents had complained to authorities, local law enforcement failed to take any action and the
Cases involving a person killing based on a belief in witchcraft illustrate this point. See, e.g., Kanter, supra note 1, at 449 (arguing that self-defense is the best vehicle for a cultural defense involving a witchcraft homicide). Sometimes witchcraft is tied to provocation. For witchcraft claims in the United States, see, for example, Brad Asher, Witchcraft Very Much Alive, ARIZONA REPUBLIC/PHOENIX MAG., Winter 1994/1995, at NV6; Betty Reid, A Shaman-killing Case on Puget Sound, 1873-1874; American Law and Salish Culture, PAC. NORTHWEST Q., Sept. 19, 1993, at 17-24;. Adrienne Drell, Witchcraft Murder Defense Fails: Judge Bars Expert Testimony on Defendants Belief in Victims Supernatural Powers, ABA J., May 1993, at 40. In one case, the attorney sought to argue that the murder resulted from embrujada cast by a bruja but had to drop the defense when the judge barred the testimony as irrelevant to the case. The lawyer characterized the defense as curanderismo, though the prosecution called it insanity. See Drell, supra, at 40. Another case involved an Ethiopian defendant who shot a woman he believed was a bouda who had put a spell on him. See Michael Taylor & Francisco Garcia, Ethiopian Gunman Sentenced, Saved, S.F. CHRONICLE, May 9, 1985. 116 Although such a situation may have arisen, there do not appear to be any recorded cases. 117 Case No. C-85-05-32135, Circuit Court of the State of Oregon for the County of Multnomah (Sept. 1985) (unreported decision). 118 See Spencer Sherman, Legal Clash of Cultures, NATL L.J., August 5, 1985, at 1, 27.
115
447
district attorney maintained there was insufficient evidence to prosecute.119 As a result the Siletz people tried negotiation: contacting those suspected of desecrating the graves and requesting the return of the artifacts. While many complied, Pier denied having taken any sacred items.120 Although the judge did not want the case to center on culture conflict, he has been hailed as having been culturally sensitive. He permitted a member of the Siletz tribe to explain Siletz religious beliefs concerning sacred burial grounds and the significance of their desecration: Integral to their religious value system was the sacred quality of the burial ground, and the tranquility of their relatives spirits as well. The only way to restore the harmony would require the re-burial of the stolen artifacts, or the spilling of the marauders blood.121 The judge also excused defendants from the requirement of standing when he entered the courtroom and allowed them to swear their oath on a religious symbol meaningful to them; a medicine bundle rather than a bible.122 In the end culture was not dispositive as the case was dismissed for lack of proof.123 A celebrated case in which cultural considerations were raised via self-defense is People v. Croy.124 Patrick Hooty Croy, a Native American of part Karuk and part Shasta ancestry, lived in Yreka in Northern California, an area where there had been longstanding conflict between the Anglo and Native American populations. Croy and two relatives were chased by 27 police officers after a dispute over the amount of change in a liquor store.125 During the chase, Croy killed a police officer in what he claimed was self-defense, but he was
119 Tia Nicol, Belief in the Way: Native Americans in the Western Legal System 12 (1987) (unpublished manuscript, on file with author). 120 See id. at 13. 121 See Nicol, supra note 119, at 15. 122 See Sherman, supra note 117, at 27. 123 See Nicol, supra note 119, at 16. 124 710 P.2d 392 (Cal. 1985). 125 See Jonathan Fellner, Racism Cited at Trial of Hooty Croy, DAILY J., Mar. 28, 1990 at 2; Martin Halstuk, S.F. Retrial Clears Indian in 78 Cop Death, S.F. CHRON., May 2, 1990, at A1.
448
convicted of murder in 1979 and sentenced to death.126 The California Supreme Court overturned his conviction in 1985. At the new trial, Croys attorney presented a cultural defense in the context of self-defense. The cultural argument was that because Croy had suffered discrimination and had been conditioned not to trust white authorities (because white settlers had massacred Indians in the nineteenth century), he was predisposed to perceive that his life was in jeopardy.127 His main attorney, Tony Serra, introduced testimony from expert witnesses concerning racism, genocide, and discrimination against American Indians.128 In Serras memorandum arguing for the admissibility of evidence, he described Croys fear as objectively reasonable under the circumstances but also insisted upon the consideration of subjective factors: the jury must be informed and educated about the factors that affected defendants perception of danger and his ability to defend himself, including any physical, psychological, historical or cultural characteristics he may have possessed.129 Serra characterized the California rule on self-defense as something of an individualized objective standard of reasonableness which includes the individuals perception of both apprehension and imminent danger from the individuals own perspective, but involves an objective view by the jurors of those circumstances.130 In essence, Serra argued for a culturally relative reasonable person test. The jury must have been persuaded by Serras cultural defense as it acquitted Croy of all charges.131 Crucial to the outcome of the case was the interpretation of the reasonable person test. The jury had to understand how a person in the defendants position would have reacted.132 Any attempt to introduce
See David Talbot, The Best Defense, S.F. EXAMINER IMAGE, July 8, 1990, at 67. Croy explained in court that because there was widespread bias against American Indians in that region, he did not believe he had the option to surrender and thought the police wanted to kill him. Halstuk, supra note 124, at A1. 128 Fellner, supra note 124, at 2; Sandra Bodovitz, Indians Defense Cites Fear of Genocide, THE RECORDER, Mar. 22, 1990 at 3. For a discussion of the case, see Paul Harris, Cultural Defenses and the Trials of Patrick Hooty Croy, in BLACK RAGE CONFRONTS THE LAW 241-47 (1997). 129 Memorandum of Points and Authorities in Support of Motion Regarding Admissibility of Evidence in Support of Defendants Claim of Self-Defense, People v. Croy, (No. 52587) (Cal. Sup. Ct.). 130 Id. at 14. 131 See Halstuck, supra note 125, at A1. 132 See Bodovitz, supra note 128, at 3.
127 126
449
cultural considerations via self-defense will require a subjective interpretation of the reasonable person. In the absence of a formal cultural defense there is no guarantee that judges will take this approach. Thus, self-defense is unlikely to be of much use to defendants in culture conflict cases. The major obstacle to its use in cases where it might be appropriate is that self-defense is only properly raised as a defense when the reasonable person would feel in jeopardy. In People v. Romero, the California Court of Appeal held that the trial court properly excluded evidence concerning the role of street fighters defending family honor in Hispanic culture.133 A confrontation occurred when Michael Romero and several others, including his younger brother, were walking on the street at midnight and were almost hit by a car driven by Alex Bernal. Following the near collision, Michael Romero and Alex Bernal got into a fight. During the altercation Romero stabbed Bernal in the heart, and Bernal died shortly thereafter.134 At the trial Romero testified that he felt that he had to protect his younger brother. He wanted to introduce the testimony of Martin Sanchez Jankowsi, a professor of sociology who specialized in the sociology of poverty including street violence and Hispanic culture.135 The expert would have testified that the Hispanic culture is based on honor, and for a street fighter in the Hispanic culture, there is no retreat. Likewise, the expert would have testified that since the defendant was the eldest male in his family he was culturally expected to assume a protective role toward his younger brother.136 The testimony would help show Romeros subjective belief in the need to defend as part of an imperfect self-defense or an objectively reasonable belief for a perfect self-defense. The trial judge ruled that the evidence was clearly irrelevant. On appeal the court affirmed, concluding that the exclusion was harmless.137 The California Court of Appeal court regarded the evidence as irrelevant because it would not shed light on the question of whether the defendant actually believed he, or his brother, was in imminent danger or
133 134
People v. Romero, 81 Cal. Rptr. 2d 823, 824 (Cal. Ct. App. 1999). Id. at 824-25. 135 Id. at 827. 136 Id. 137 Id. at 824.
450
whether the belief was objectively reasonable.138 The court rejected the cultural argument concluding that [t]he evidence regarding honor, like the evidence of street-fighter mentality, is not relevant to whether deadly force was warranted under the circumstances.139 According to the court, the question of defendants honor was irrelevant to whether defendant was in actual fear of death or great bodily injury, and whether his fear was objectively reasonable.140 The court expressed concern about the implications of recognizing a separate street fighter standard.141 If one could show that street fighters are expected to kill every person with whom they fight, then the logical implication might be that the court would have to relax the standard that the use of deadly force requires that a person actually fear imminent death or great bodily injury.142 The main problem with analyzing self-defense in a cultural context is that the courts will have difficulty perceiving the situation from the point-of-view of the defendant. The challenge for defense counsel is to convey the cultural imperative, so that the court can perceive the reasons for defendants actions. 11.3 Defenses Relating to Offense Elements a) Mistake of Fact The use of culture in a mistake of fact defense can be seen in People v. Moua which involved the practice known as marriage by capture.143
138 Id. at 827-28. For imperfect self-defense, the belief subjectively exists but is objectively unreasonable. Imperfect self-defense serves to reduce the conviction from murder to manslaughter. 139 Id. at 828. 140 Id. 141 Id. at 827. 142 Id. 143 Case No. 315972-0 (Cal. Super. Ct. 1985) (unreported decision). For an in-depth consideration of the Moua case, see Deirdre Evans-Pritchard and Alison Dundes Renteln, The Interpretation and Distortion of Culture: A Hmong Marriage by Capture Case in Fresno, California, 4 S. CAL. INTERDISC. L.J. 1, 8-13 (1994). Two other articles discuss the use of the mistake of fact defense in connection with this case. See Sharon M. Tomao, The Cultural Defense: Traditional or Formal?, 10 GEO. IMM. L.J. 241, 245-46 (1996); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 PAC. BASIN L.J. 80, 83-34 (1990).
451
There have been many reports of marriage by capture or zij poj niam in California, Colorado, Minnesota, and Wisconsin.144 After a Hmong man and woman exchange gifts, on a certain night, the man carries the woman off from her parents home. In order to prove that she is virtuous, she is supposed to engage in a ritualized protest, crying no, no, no Im not ready, even if she, in fact, wants to marry the man. The man has to forcibly take the woman to demonstrate his virility. They are supposed to go to his familys home where they spend three days together to consummate the marriage. Afterwards there are marriage negotiations between the two clans.145 In Moua, twenty-one year old Kong Moua carried off eighteenyear-old Seng Xiong as part of a traditional Hmong marriage ritual.146 When the first attempt failed because Sengs parents prevented her from leaving their home, Moua and a friend took her from the Fresno City College campus, throwing her into a station wagon. Her American friends observed her being taken in this fashion, and called the authorities.147 When police tracked down the party, police asked her who the man was with her and whether she wanted to leave with them. She responded that he was her husband and that she preferred to stay with him.148 Shortly thereafter the woman decided to file kidnapping and rape charges against the man. The judge had to decide whether to admit evidence concerning Hmong marriage rituals, though it would have been difficult to understand the course of events without this information.149 The prosecutor was disinclined to take the case to trial because it would have been difficult for the jury to understand why the woman declined to leave with the police.150 Her testimony also
See Kidnapping or Marriage Tradition?, WASH. TIMES, Nov. 7, 1991, at A8; John D. Cramer, Rocky US Reception for Ritual: Hmong Courtship and Wedding Customs Are Strange to Americans and Sometimes Are Deemed Illegal, FRESNO BEE, July 21, 1991, at B1, B4. 145 See Evans-Pritchard & Renteln, supra note 142, at 13-18. 146 See Mark Thompson, Cultural Defense, STUDENT LAW., Sept. 1985, at 24-29; Alan Dershowitz, Marriage by Capture Runs Into the Law of Rape, L.A. TIMES, June 14, 1985, at 5. 147 See Evans-Pritchard & Renteln, supra note 142, at 10. 148 Id. at 12. 149 Id. at 26. 150 The Hmong are traditionally frightened of police because they were frequently executed when stopped by the police. It is possible that Seng might have been more afraid of the police than a rapist.
144
452
contained inconsistencies which might have undermined her credibility. In the end, the judge accepted a plea bargain whereby the kidnapping and rape charges were dropped and Moua pleaded guilty to false imprisonment, the lesser included offense under kidnapping. Moua was sentenced to ninety days, with credit for time served and was fined one thousand dollars.151 Moua thought, apparently incorrectly, that Seng was consenting to marry him when she engaged in the ritualized protest (since that is what she is expected to say).152 The problem with arguing mistake of fact as to Sengs consent is that the law requires that the mistake be an objectively reasonable one. The objective reasonable person would not have thought she was consenting, even if a reasonable Hmong person would have thought so. This conflict highlights an obstacle to the use of the mistake of fact defense, namely, the continued adherence to objective reasonableness. Inasmuch as the objective person is the persona of the Anglo-Saxon, or European, it will be virtually impossible for a defendant from another culture to present a defense in the criminal law which is theoretically available to all. Counsel should argue that this interpretation of the mistake of fact defense violates equal protection. b) Lack of Specific Intent Culture can be used in some cases to negate specific intent. One crime which requires specific intent is child sexual abuse; the adult must touch the child for the purpose of sexual gratification. In some cases parents who touch children in the genital area are prosecuted for child sexual abuse, though they lack the requisite specific intent. Crosscultural misunderstandings occur because of differing interpretations of touching. Several publicized cases involving fondling incidents have been documented in various ethnic communities. Many cases involve a type of behavior that at first glance seems obviously to be child molestation.153 Upon closer examination, however,
Evidently, this fine would have been the amount required according to Hmong folk law had the matter been handled in a traditional manner. In cases where no fines are imposed, the Hmong feel there is an injustice. See Evans-Pritchard & Renteln, supra note 142, at 26 n. 99. 152 Id. at 9-12. 153 In an Alaskan case, Jack Jones, a fifty-seven-year-old Eskimo man, was charged with molesting three boys at a birthday party. Jones invoked a cultural defense,
151
453
it may be that the touching is not sexual in nature. When the incidents occur in public, it seems more likely that the act is non-sexual; context is important for an evaluation of the conduct. If it appears that there is a cultural basis for the action, then prosecutors should have a difficult time proving all the elements of the crime of sexual abuse, particularly that the adult acted for the purpose of sexual gratification. If a court refuses to acknowledge in such a case that the culture negates the required specific intent, then defense counsel must emphasize that it is wrong to imprison a person who has engaged in culturally motivated behavior and who is unaware of the prohibition of the conduct. If the touching is socially unacceptable, rather than incarcerating the individual, it is preferable to inform him that the behavior is not allowed in the new country. Even if forcing cultural assimilation is the only option, it is certainly more humane to rely on education rather than imprisonment. 11.4 De Minimis Offenses In some jurisdictions a defendant from another culture can successfully use de minimis statutes.154 Statutes of this kind, often modeled after the Model Penal Code,155 are designed to avoid unjust
claiming that the touching behavior was consistent with traditional Eskimo culture. See State v. Jones, Superior Court (Alaska, Fourth Judicial District), Case No. 4FAS84-2933, trial date Jan. 7, 1985; Sheila Toomey, Eskimo Erotica? TraditionalConduct Plea Wins Sex-Charge Acquittal, NATL LAW JOURNAL, Feb. 4, 1985, at 6. 154 For an analysis of the application of de minimis statutes to culturally motivated crimes, see Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the De Minimis Defense, B.Y.U. L. REV. 51 (1997). 155 Model Penal Code 2.12 (1962) provides: A Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendants conduct: (1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; or (2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense. The Court shall not dismiss a prosecution under Subsection (3) of the Section without filing a written statement of its reasons.
454
outcomes. They represent legislative authorization for judges to monitor prosecutorial discretion. In State v. Kargar,156 an Afghani refugee, Mohammad Kargar, was convicted of two counts of gross sexual assaults for kissing his eighteen-month-old sons penis. On appeal, he argued that the trial court erroneously denied his motion to dismiss under Maines de minimis statute. The Supreme Court of Maine agreed and vacated the lower courts judgment.157 At the hearing on the motion to dismiss, Kargar presented testimony from many Afghani people familiar with the practice of kissing a young son. They explained that kissing a sons penis is common in Afghanistan, that it is done to show love for the child, and that it is the same whether the penis is kissed or entirely put into the mouth because there are no sexual feelings involved.158 Kargar testified at the hearing that by kissing the penis, which is not the cleanest part of the body because of urination, a father demonstrates how much he loves his child.159 His wife also testified that she had taken a picture of Kargar kissing their sons penis to send to Kargars mother to show her how much he loved his son.160 Maines de minimis statute is based on the Model Penal Code. The section central to the case was section 12(1)(C).161 The question in Kargar was whether his behavior was envisioned by the Legislature when it defined the crime. The Supreme Court of Maine stated that because the Legislature did not envision the extenuating circumstances present in [the case], to avoid an injustice the de minimis analysis set forth in section 12(1)(C) requires that Kargars convictions be vacated. In reaching its conclusion, the Court
156 State v. Kargar, 679 A.2d 81 (Me. 1996). For a detailed account of the case coauthored by his attorney, see Nancy A. Wanderer & Catherine R. Connors, Culture and Crime: Kargar and the Existing Framework for a Cultural Defense, 47 BUFFALO L. REV. 829 (1999). The authors argue for the adoption of de minimis type statutes at the state and federal level to avoid injustices in exceptional situations. 157 Kargar, 679 A.2d at 86. 158 Id. at 83. 159 Id. at 83 n.3. Kargar also testified that the practice was acceptable until the child was three, four, or five years old. Id. at 83 n.2. 160 Id. at 85 n.4. 161 The provision permits the court to dismiss a prosecution if the defendants conduct presents such other extenuations that it cannot reasonably be regarded as envisioned by the Legislature in defining the crime. Id. at 84.
455
evaluated the definition of gross sexual assault, which did not include specific intent.162 The Court was careful to state that the application of the de minimis statute to Kargar did not nullify the effect of the gross sexual assault statute, nor did the Court condone the behavior. The Court said simply: The issue is whether his past conduct under all of the circumstances justifies criminal conviction.163 Even though Kargars conviction was vacated, the Court implied that he knew he should no longer continue the practice.164 De minimis statutes provide the possibility of overturning unjust convictions when it would be against the interests of justice to proceed with the prosecution, at least in cases of first instance. They do not, however, address the more fundamental problem of accommodating culturally diverse practices in the long run. 11.5 Formal Cultural Defense a) Child Abuse For some crimes it is not possible to introduce cultural factors through an existing defense. If the cultural argument is to be considered, defense counsel will have to raise a separate, discrete cultural defense.165 In a number of child abuse cases, it is necessary for the trier of fact to consider the cultural background of defendants to understand the actions in question.166 In fact, it is difficult to see how judges or juries could resolve the conflicts without making reference to the cultural background of the defendant. Some illustrative child abuse cases will underscore this point. Sometimes child abuse cases involving cultural components arise in the context of child marriages. In People v. Ezeonu,167 Dr. Gregory
Id. at 84-85. Prior to 1985 the crime included sexual gratification, but the legislature removed that element. Id. 163 Id. at 85 n.5. 164 Id. 165 For an argument in favor of a formal cultural defense, see Renteln, supra note 57, at 490-99; Kanter, supra note 1, at 416-23. 166 For an analysis of cultural defenses in the context of child abuse and neglect cases, see Alison Dundes Renteln, Is the Cultural Defense Detrimental to the Health of Children?, 7 L. & ANTHROPOLOGY 27 (1994). But see Todd Taylor, The Cultural Defense and Its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331 (1997). 167 588 N.Y.S.2d 116 (July 28, 1992).
162
456
Ezeonu was prosecuted for rape of his second or junior spouse, Chiweta, who was thirteen years old. His defense was that he was legally married to a living wife under both New York and Nigerian law. The court had to evaluate the status of the second marriage and second wife in New York.168 Although generally a marriage is recognized if valid where consummated, the court concluded that where recognition would be repugnant to public policy, the general rule does not apply.169 The court thought it was obvious that polygamy was against public policy. In what was apparently a case of first instance for New York, the court held that bigamy was no defense to the charge of rape.170 Furthermore, the court explicitly said it was not interested in hearing witnesses from Nigeria who had observed the marriage ceremony or expert witnesses discuss marriage customs: While Nigerian law and custom may permit a junior wife, New York does not recognize such status. Since at the time of his marriage to complainant, Dr. Ezeonu was married to his living wife, his marriage to her is absolutely void even were it legally consummated in Nigeria. Consequently, this court holds, as a matter of law, Dr. Ezeonu is not married to Chiweta for purposes of criminal liability for rape in the second degree, pursuant to Penal Law 130.30. Accordingly, he cannot raise the purported marriage as a defense to that crime.171 In the unpublished case People v. Paniagua, a twenty-six-year-old Guatemalan man was charged with committing a lewd and lascivious act upon a child under the age of fourteen.172 The matter came to the attention of authorities when the girl became pregnant at thirteen and went to a clinic for prenatal care. As the couple was living together with the blessing of both families and would have been married in Guatemala, where there was no minimum age for marriage so long as there was parental consent, Paniagua was allowed to enter a plea to the lesser crime of unlawful sex with a minor.173 He received a sentence of sixty days county jail with credit for time served, and five years
Id. at 117. Id. at 118. 170 Id. 171 Id. 172 Case No. BA075706 (Superior Court for the County of Los Angeles, 1993) (unreported decision). 173 Id.
169
168
457
probation with the condition that he pay child support and attend parenting classes.174 Members of various ethnic groups have been prosecuted for their disciplinary techniques.175 The issue of corporal punishment of children is a highly divisive one. Although some sort of punishment seems to exist in all cultures, considerable cultural variation exists in interpreting what constitutes excessive force. Parents sometimes discipline their children and find, much to their surprise, that their techniques are unacceptable in their new country. In a Texas case, a Nigerian insurance salesman, Mr. Osho, beat his naked twelve year old nephew with an electrical cord and then placed red pepper in the wounds.176 A medical examination at the hospital: revealed numerous cord-like marks (to the chest, back, arms and legs), swelling from blunt trauma to the right head and ventral cervical spine, and numerous scars from previous injury (including two thick scars usually associated with burns or radiation injury).177 The prosecutor argued for prison time. Osho argued that this was within the bounds of acceptable discipline as defined by the native culture of Nigeria.178 But the only evidence of this was a statement made informally to the judge by a Nigerian attorney, Mr. Oji, who had been a classmate of Oshos attorney in law school. He pleaded no contest to the charge of causing injury to a child charge, and received a sentence of ten years probation, a $1,000 fine, and 300 hours of community service.179 Parents attempts to heal their children using techniques of folk medicine can be misinterpreted as child abuse.180 Though not all forms
Id. See Agustin Gurza, Spanking: An Idea Whose Time Has Gone, LOS ANGELES TIMES, B1 (2000, March 21). See also, Concocting a Cultural Excuse for Child Abuse, LOS ANGELES TIMES, B1 (2000, February 29). 176 See Man Gets Probation After Pouring Pepper on Boy, HOUSTON CHRONICLE, Jan. 14, 1988, at 18. 177 Akinyemi Sunday Osho, Pre-Sentence Investigation Report, Harris County Adult Probation Department, Houston, Texas, Dec. 30, 1987. 178 See Man Gets Probation After Pouring Pepper on Boy, supra note 176, at 18. 179 Id. 180 See William Y. Chin, Blue Spots, Coining, and Cupping: How Ethnic Minority Parents Can Be Misinterpreted as Child Abusers, THE JOURNAL OF LAW IN SOCIETY 7, 88 (2005). See also, J.A. Black, Misdiagnosis of Child Abuse in Ethnic Minorities, MIDWIFE HEALTH VISITOR & COMMUNITY NURSE 22, 48-49, 52-53 (1986, Feb.).
175
174
458
of folk medicine are innocuous,181 the practice of coining is harmless; it causes temporary bruises. Members of South East Asian communities, particularly Vietnamese, give a coin massage known as cao gio to scratch the wind as a cure for the flu and other physical ailments.182 First the body is rubbed with a mentholated oil and then the body is rubbed hard with a coin that has a serrated edge like a quarter.183 Because law mandates the reporting of any physical non-accidental injury observed on a child, the use of the type of folk medicine often comes to the attention of the authorities. In some notorious incidents parents are arrested and prosecuted for child abuse and their children taken into protective custody.184 In one tragic case, a father committed suicide following his arrest.185 Law enforcement officers and judges, even when they are aware this is a harmless form of folk medicine, often still consider it child abuse. When relatives follow the tradition of female circumcision or female genital mutilation (FGM), this has led to criminal prosecution in a few cases. For example, according to the media an Ethiopian father who cut his daughters clitoris with scissors received a sentence of ten years in prison. Surprisingly, the girls mother did not discover this until a year later.186 This may not represent a valid cultural defense because the tradition, in those societies in which it is a rite of passage, is performed only by women. This demonstrates the need to verify the authenticity of cultural claims advanced.187 In one celebrated case, a woman sought political asylum in order to escape forced female
181 One technique, moxabustion, does result in scars. See Kenneth W. Feldman, Pseudoabusive Burns in Asian Refugees, 138 AM. J. DISEASES OF CHILDREN 768 (1984). For a careful analysis, see Margaret M. Lock, Scars of Experience: the Art of Moxibustion in Japanese Medicine and Society, 2 CULTURE, MEDICINE, & PSYCHIATRY 151 (1978). 182 It is pronounced cow-yaw and literally means scratch wind. 183 Highly educated Vietnamese continue to use coining in combination with Western medicine such as Tylenol and antibiotics. 184 Harry Harris, Ancient Healing Practice or Child Abuse? Southeast Asian Coining Custom Alarms School Officials, Police, OAKLAND TRIBUNE, May 9, 1988, at A1-A2. 185 W. Yeatman & Viet Van Dang, Cao Gio (Coin Rubbing): Vietnamese Attitudes Toward Health Care, 244 J. AM. MED. ASSN 2748, 2748-49 (1980); Nong The Anh, Pseudo-Battered Child Syndrome, 236 J. AM. MED. ASSN 2288. 186 Anon. (2006, Nov. 2). Man Sentenced for Mutilating Daughter. Associated Press. 187 See Alison Dundes Renteln (2006). The Use and Abuse of the Cultural Defense. Canadian Journal of Law and Society 20 (1), 2005, 47-67.
459
genital mutilation. After she won her case in the Court of Appeals for the Second Circuit, the entire story turned out to be a hoax.188 In felony child abuse cases, the prosecution must generally demonstrate the intentional infliction of physical harm. If the parents motive is to help or heal the child, the argument might be that there is no intent to do harm. Because members of the dominant culture will usually perceive the result of the tradition as a physical harm, however, this argument may not succeed. Because the cultural information relates to their motive, it may be difficult to frame a legal theory of relevance. The inability to use any other sort of defense is part of the argument for establishing a formal cultural defense.189 11.6 Substantive Cultural Defenses Based on Constitutional Principles a) Religious Defenses In some cases attorneys try to use the free exercise of religion defense to present a cultural defense because of the perceived benefit of invoking a right to constitutional protection. This approach has a number of limitations. This strategy would only be available to defendants whose tradition is religious in character. Furthermore, the reality is that because of the belief/action distinction, religious practices actually receive relatively little protection.190 Historically, religiously motivated conduct has not been constitutionally protected in the United States except in rare cases, and the doctrine of the 1990s reflects little sympathy for this approach.191 A free exercise of religion
Abankwah v. INS, 183 F.3d 18; 1999 U.S. App. LEXIS 15545. Dean E. Murphy (2000, Dec. 21). I.N.S. Says African Woman Used Fraud in Bid for Asylum. New York Times, p. B3. William Branigin and Douglas Farah (2000, Dec. 20). Asylum Seeker is Impostor, INS Says. Washington Post, p. A1. 189 For an elaboration of this argument, see Renteln, supra note 59, at 492-96. 190 See, e.g., Reynolds v. United States, 8 U.S. 145 (1879). Wisconsin v. Yoder, 406 U.S. 205 (1972), is one of a few cases where religiously motivated conduct received protection. 191 In Employment Div., Dept of Human Resources v. Smith, 494 U.S. 879, 890 (1990), Native American counselors at a drug rehabilitation clinic lost their jobs because it was discovered that they used peyote in religious ceremonies. When they were denied unemployment benefits on the basis of work-related misconduct, they challenged the state unemployment policy as a violation of their right to the free exercise of religion. The Supreme Court rejected the claimants arguments, stating that
188
460
defense that is constitutionally grounded is unlikely to be of much use.192 Even statutory religious defenses which take the form of exemptions may be problematic because they can be challenged as violations of the Establishment Clause.193 The courts still invoke the belief/action distinction to deny claims. For instance, in People v. Singh,194 the court held that a Sikh priest, required by his religion to wear the kirpan, a ceremonial dagger, had violated the New York administrative code which forbids wearing a knife, with an exposed or unexposed blade.195 Applying a balancing test, the court found a compelling state interest and no less restrictive alternative to the policy.196 Although Mr. Singh technically lost on the merits, the judge dismissed the case, saying it would be against the interests of justice to proceed with the case.197 When Sikh children have been prohibited from wearing kirpans in public schools, they have raised religious defenses. Courts have sometimes ruled in their favor. For instance, in Cheema v. Thompson in an unpublished decision the Court of the Appeals for the Ninth Circuit endorsed a compromise.198 The children had to be allowed to don the kirpan, but they had to make it blunt or glue it into the sheath. In Multani v. Commission scholaire Marguerite-Bourgeoys, the Supreme Court of Canada held, in a unanimous decision, that the ban on kirpans in public school violated the Charter of Rights and Freedoms.199 Although the Court recognized that freedom of religion could be limited in the best interests of the child, there was insufficient
A[w]e have never held that an individuals religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate. Id. at 878-79. The Court held that the claimants arguments did not need to be evaluated under the Sherbert v. Verner, 374 U.S. 398 (1963) compelling government interest test. Smith, 494 U.S. at 882-89. 192 A religious group may prevail if state policy specifically targets the group. See Church of Lukumi Babalu Aye, Inc., v. Hialeah, 508 U.S. 520 (1993). Because the Smith decision removed the compelling state interest test, see supra note 191, and the Religious Freedom Restoration Act of 1993, was also struck down, see generally Boerne v. Flores, 521 U.S. 507 (1997), it is unclear how much protection free exercise defenses will afford. 193 See Renteln, supra note 59, at 485-86. 194 People v. Singh, 516 N.Y.S.2d 412 (N.Y. City Civ. Ct. 1987). 195 Id. at 415. 196 Id. at 415-16. 197 Id. at 416. 198 Cheema v. Thompson, 67 F.3d 883 (1995); 1994 U.S. App. LEXIS 24160. 199 Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC6.
461
evidence that the kirpan posed any genuine threat to the public safety of other children. In United States v. Bauer, Rastafarians from Montana appealed their convictions of conspiracy to manufacture and distribute marijuana, distribution of marijuana, and simple possession.200 The Court reversed the conviction for possession, noting that under the Religious Freedom Restoration Act of 1993 (RFRA)201 the defendants should have had the opportunity to raise a religious defense. With regard to the other convictions, the Court affirmed, apparently unconvinced that the Rastafarian religious requires commercial marijuana establishments.202 If there could conceivably be a basis for marijuana for religious purposes, the Court avoided the question of how Rastafarians can legitimately obtain it for this use. Practitioners should note, however, that since RFRA was overturned, the status of religious defenses remains somewhat in question. The ease with which defense counsel can invoke religious defenses may depend upon the test used in constitutional cases. If the compelling interest test is restored for policies which burden religious practices, then in theory this should facilitate the use of religious defenses. The reality, however, is that even with heightened scrutiny, the state often persuades judges that it has a compelling interest to justify the policy with no less restrictive alternative to achieve the objective.
84 F.3d 1549 (9th Cir. 1996). Id. at 1559. RFRA is codified at 107 Stat. 1488, 42 U.S.C. 2000 bb et seq. The Court stated that under RFRA the government had the obligation, first, to show that the application of the marijuana laws to the defendant was in furtherance of a compelling governmental interest and, second, to show that the application of these laws to the defendant was the least restrictive means of furthering that compelling governmental interest. Id. In Sultaana Lakiana Myke Freeman v. State of Florida, Department of Highway Safety and Motor Vehicles (Case no. 2002-CA-2828), the court rejected Freemans lawsuit under RFRA (1998) challenging the revocation of her divers license. Although she argued that unveiling for the purposes of a drivers licenses ID photo substantially burdened her right to the free exercise of religion, the court regarded the momentary lifting of the view in the presence of only a female license examiner, not to constitute such a substantial burden. For background, see Terry Pristin (2002, Aug. 11). Behind the Legal and Private Worlds of the Veil. New York Times, p. 4; John-Thor Dahlburg and Anna M. Virtue (2003, June 7). Veiled Drivers Photo Disallowed. Los Angeles, Times, p. A12. 202 Id. The court noted that [a]s to the counts relating to conspiracy to distribute, possession with intent to distribute, and money laundering, the religious freedom of the defendants was not invaded. Nothing before us suggests that Rastafarianism would require this conduct.
201 200
462
In some cases the cultural argument is framed as a religious freedom claim in the context of a plea negotiation. For example, Myrlene Severe, a woman prosecuted for carrying a human skull from Jamaica to Florida, claimed she was unaware that she was violating the law and that her action was motivated by her belief in voodoo; she claimed she was a priestess. Severe said she intended to use the head to ward off evil spirits.203 Although she was charged with smuggling without proper documentation, failing to declare the head on Customs declaration form, and transporting hazardous material, in a plea negotiation which could have resulted in a 15 year sentence, she received a sentence of only two years probation and a fine of $1,000.204 b) Equal Protection The failure to allow culturally specific interpretations of the reasonable person arguably constitutes a violation of equal protection. Judicial adherence to objective standards effectively prevents defendants from other cultures from using existing criminal law defenses such as provocation and mistake of fact as to consent. Individuals from Somalia and Yemen have been prosecuted for chewing khat.205 Even though it has the same effect as caffeine which is not proscribed, they have faced felony convictions. As there is no religious basis for chewing khat, defense counsel may wish to argue that punishing immigrants for using this substance is unfair given that there is no limit on the number of lattes one can consume! In cases in which a defendant argued that he did not possess enough to violate the law, the court denied the motion to dismiss because the statute was construed as prohibiting the possession of cathinone regardless of whether the amount present is sufficient to produce a stimulant
Jennifer Lebovich (2006, July 22). Woman with skull in bag avoids jail. The Miami Herald. 204 See News Release: Florida Woman Charge in Transporting Human Head into the United States. Feb. 10, 2006. U.S. Attorney, Southern District of Florida. See also Judgment in a Criminal Case, United States of America v. Myrlene Severe, Case No.: 0-06CR60097-COHN. July 24, 2006. 205 Same Howe Verhovek (2006, Aug. 22). DEAs Khat Sting Stirs Up Somali Cultural Clash. Los Angeles Times, p. A9. Paul Shukovsky (2006, July 27). 14 Somalis accused of dealing drug khat. But Community says its a cultural issue. Seattle Post-Intelligencer. Saeed Ahmed (2001, Nov. 28). A Light Buzz for Somalis, khat is a heavy bust here. Atlanta Journal-Constitution, p.A1.
203
463
effect.206 Whether courts will be receptive to the charge of cultural bias or ethnic profiling in a drug-related culture war remains to be seen. Other sorts of constitutional arguments might be considered to persuade judges to allow defendants to raise cultural defenses. Arguments might be couched in the language of the right to freedom of association, privacy, or speech.207 The question remains as to whether cultural defenses can be raised when statutes specifically forbid the conduct in question, such as statutes prohibiting female genital mutilation (FGM) and the California Pet Law.208 The statute may specifically disallow the consideration of culture, as in the federal FGM law.209 In such circumstances, counsel must argue that justice requires the consideration of culture regardless of the particular provisions in the law, or find another way to include such evidence. If the cultural background of the defendant sheds light on his or her state of mind, then a cultural defense should necessarily be considered. 11.7 Arguments for the Cultural Defense The commentary on the use of a cultural defense usually condemns it from a feminist perspective.210 Most analysts, even those sympathetic
206 State v. Mohamed Galony Ali et al., 613 NW2d 796 (2000); 2000 Minn. App. LEXIS 713. For more background, see Renteln (2004), Chapter 5. 207 In certain cases involving religious symbols a symbolic speech argument might be advanced. See Tinker v. Des Moines Indep. Commy School Dist., 393 U.S. 503 (1969). 208 Cal. Penal Code 598(b) makes it a misdemeanor to possess, purchase or sell any animal, or the carcass of any animal, that is traditionally or commonly kept as a pet or companion, with the intent of using it for food. The Pet Law was enacted after a Long Beach incident when Cambodian immigrants attempted to eat a dog. The law does not define which animals constitute pets. 209 18 U.S.C. 116 (a), which states in relevant part that whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both. While the statute provides a medical necessity exception, it also states that culture cannot be raised as a defense to the violation of the statute. 18 U.S.C. 116 (c). 210 See generally Cathy C. Cardillo, Violence against Chinese Women: Defining the Cultural Role, 19 Womens Rts. L. Rep. 85 (1997); Alice J. Gallin, The Cultural Defense: Undermining the Policies against Domestic Violence, 35 B.C. L. REV. 723 (1994); Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials 14 B.C. THIRD WORLD L.J. 231 (1994); Daina C. Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. REV. 1053 (1994).
464
to informal cultural defenses, are opposed to the adoption of a formal cultural defense.211 Many of the objections turn on human rights as a number of critics claim the defense violates human rights.212 Defense counsel should argue that this position is based on a false premise. The right to culture is itself a human right. The most important formulation of the right to culture is in Article 27 of the International Covenant on Civil and Political Rights (ICCPR),213 a treaty which has been ratified by most countries, including the United States. The provision has been interpreted to require the state to take affirmative steps to ensure protection of this right.214 The fact that the right to culture is an internationally guaranteed human right does not, of course, settle the question of how much weight it should receive vis-a-vis other human rights.215 It does mean, however, that human rights law supports the idea of a cultural defense insofar as that policy is predicated on a right to culture. The key to successful use of the cultural defense will depend upon a convincing showing that culture affects the perceptions and behavior of the defendants. Judges and jurors have to recognize that their own intuitions are merely a reflection of their cultural upbringing. Once they realize the contingent nature of their own beliefs which motivate them to act in ways they take for granted, they will have sympathy for others who also act under cultural imperatives. Moreover, if the conduct is
See Tomao, supra note 141. See, e.g., Michael Fischer, The Human Rights Implications of a Cultural Defense, 7 S. CAL. INTERDISC. L.J. 663, 696-697 (1998). The most sophisticated version of the argument appears in Sebastian Poulter, Ethnic Minority Customs, English Law, and Human Rights, 36 INTL & COMP. L.Q. 589 (1987). 213 In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. 214 For the interpretation of Article 27 by the Human Rights Committee which monitors compliance with the ICCPR, see General Comment No. 23(5). CCPR/C/21/Rev.1/Add5 (April 26, 1994). 215 Article 5 of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women provides: State Parties shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotypes roles for men and women.
212 211
465
required by the culture so that the defendant faces a dilemma of violating either state law or her customary law, then this predicament should result in a willingness to consider the cultural defense. One of the main arguments in favor of establishing a formal cultural defense is that it is a necessity insofar as the American legal system tries to provide individualized justice. Advocates of a formal defense contend that retribution requires the imposition of proportional punishment.216 If cultural evidence is not considered, then some defendants will receive excessive punishment. As a matter of public policy, the argument is that the model of cultural pluralism, or accommodating difference is preferable to a melting pot model of forcing assimilation. Without a formal cultural defense, there is no guarantee that cultural evidence will be presented or evaluated fairly. This will continue the present system of unequal application of the law, where the consideration of cultural factors depends on whether a defendant has the good fortune to draw a judge willing to admit the evidence. Such an arbitrary and capricious system is unacceptable. Other arguments against establishing a formal cultural defense are the following: the defense would establish separate standards for different groups, it would lead to anarchy as each group would decide for itself with which standards it would comply which would undermine the deterrent effect of the law, there would be abuse as some defendants will be malingerers, it will be problematic to ascertain the validity of cultural claims as experts will offer conflicting interpretations of the validity of traditions,217 and the defense, if successful, will result in the sacrifice of the rights of vulnerable groups like women and children. If a cultural defense were to be implemented, questions would arise as to whether there would be a time limit for its use, whether only the newly arrived could invoke it and not members of second and third generations, and whether subcultures could raise it.218
For a discussion of the relevance of different theories of punishment to the cultural defense, see Renteln, supra, note 59 at 492-95. 217 Some dispute the proposition that one can ever prove an authentic tradition. 218 It is difficult to find a basis for disallowing subcultures to use cultural defenses except if their worldview is not radically different from that of the dominant culture. Furthermore, their arguments could be advanced by using the so-called rotten social background defense. See Richard Delgado Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 LAW & INEQ. J. 9 (1985).
216
466
Defense counsel attempting to raise a cultural defense should be thoroughly prepared to rebut each one of these arguments. A careful review of the materials presented in this chapter will permit counsel to tailor his or her counter-arguments. 11.8 Strategic Considerations Defense counsel must show proof of the authenticity of the cultural tradition and demonstrate that the accused was motivated by the tradition. A key part of the argument will have to be to show the relevance of cultural motives. The way in which cultural evidence is presented will be important to the success of the defense. Attorneys should consult more than one expert to ensure the authenticity of the claims made by the experts. Furthermore, contacting the leaders of ethnic community centers is advisable to verify the information. Sometimes the cultural information relevant to the case is sacred, and members of the community will be reluctant to divulge it. In these instances, it will be necessary to rely on expert testimony, as it is unlikely members of the group in question will be prepared to testify. Attorneys should also be aware that negative publicity surrounding a crime may lead members of the community to deny that the tradition in question is part of their way of life. These denials may not be accurate, and corroboration of claims is imperative. Language barriers can make litigation difficult.219 In some cases, there is no equivalent concept in another language. In addition, when members of newly arrived ethnic groups use English terms, they may mean something different by the term. For instance, when some Hmong women said they had been raped, they used the word rape to mean illicit sex or adultery. Counsel should keep in mind that even if the court does not allow the presentation of cultural evidence at trial, or if the cultural defense is not successful at trial, raising it could be beneficial for the client in the end. Several of the cases discussed in this chapter illustrate how unsuccessful attempts at presenting a cultural defense have nevertheless assisted the client in obtaining a better plea offer or securing a favorable sentence.
219
T. Christopher Thao, Torn Between Cultures: Southeast Asian Immigrants in Minnesota, THE BENCH AND BAR OF MINNESOTA, 21, 24-26 (Oct. 1987).

Culture Clash

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Culture Clash

Hochgeladen von

Copyright:

Verfügbare Formate

Culture Clash: Cultural Issues in Criminal Defense Rene Valladares, AFPD, District of Nevada

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

RAISING CULTURAL DEFENSES

CULTURAL ISSUES IN CRIMINAL DEFENSE

Das könnte Ihnen auch gefallen