California Bar Journal
CBJ - February 2009 #03.
Cultural differences: New defense tactic?
California Bar Journal February 2009 Cultural differences: New defense tactic?By Diane CurtisStaff WriterA Mexican-American man is convicted of second-degree murder for shooting a poker companion who used an offensive slur about the defendant's mother. A Muslim Albanian man in Texas loses his parental rights for touching his daughter's genitals. A Thai man who shows no remorse or other emotion for his part in a Garden Grove robbery in which two people were killed receives the death penalty.
All three were influenced in their actions by their native culture, says University of Southern California professor Alison Dundes Renteln, and that culture, she believes, should have been considered in each of those cases, an argument she makes in her chapter of the new book, "Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense," which she co-edited with Marie-Claire Foblets of the University of Leuven in Belgium.
"Cultural differences deserve to be considered in litigation because enculturation shapes individuals' perceptions and influences their actions," she writes in the book. She is calling for formal acceptance in the legal community of a cultural defense in which legal systems acknowledge "the influence of cultural imperatives" in illegal acts.
A judge in fact did consider the Albanian man's culture in which touching a child has no sexual meaning and is an accepted form of affection and comfort. The man was acquitted of child sexual abuse although he did lose his parental rights. Renteln says such consideration should be the rule rather than the exception, and she also questions whether the interests of the family were served by separating the father from his child.
"Touching children in the genital area should probably be discouraged not only because parents will encounter difficulty with the law, but also because children caught between two cultures may feel uncomfortable if they realize it is considered inappropriate conduct in the larger society. But incarcerating parents or breaking up families are illegitimate means of inculcating new values," she writes in "The Cultural Defense."
Like an insanity plea
The author is not, she emphasized in an interview with the Bar Journal, advocating leniency for...