Cultural Defenses in Georgia: Cultural Pluralism and Justice - Can Georgia Have Both?
| Citation | Vol. 22 No. 3 |
| Publication year | 2010 |
Georgia State University Law Review
3-1-2006
Cultural Defenses in Georgia: Cultural Pluralism and Justice - Can Georgia Have Both?
Hannah Yi Crockett
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Crockett, Hannah Yi (2005) "Cultural Defenses in Georgia: Cultural Pluralism and Justice - Can Georgia Have Both?," Georgia State
University Law Review: Vol. 22: Iss. 3, Article 1.
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CULTURAL DEFENSES IN GEORGIA: CULTURAL PLURALISM AND JUSTICE—CAN GEORGIA
HAVE BOTH?
Introduction
A Japanese-American mother drowned her two young children and tried to drown herself in order to purge the shame of her husband's infidelity.1 The mother later explained that her actions were a part of the customary Japanese practice of oya-ko shinju, or mother-child suicide. She spent only the year she was on trial in jail.
A Hmong immigrant abducted a Laotian-American woman from her place of work and raped her.4 The attacker later explained that his behavior was a customary way to choose a bride in his native tribe.5 A judge sentenced him to only 90 days in jail.6
After learning of his wife's adulterous affair, a Chinese-American man bludgeoned her to death with a hammer.7 At trial, an expert explained that the husband's actions were a natural response because the Chinese traditionally viewed a wife's adultery as proof of her husband's weak character and divorce as shameful. A judge sentenced him to five years probation.9
Police arrested an Albanian-American father after witnesses reported that he fondled his four-year-old daughter under her dress.10 He told the prosecutors that because parent-child sex is unimaginable
1. Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 colum. l. REV. 1093,1093, 1109-10 (1996).
2. Id. at 1109-10 &n.79.
3. Id. at 1093.
4. See Dierdre Evens-Pritchard & Alison D. Renteln, The Interpretation and Distortion of Culture: A Hmong "Marriage by Capture" Case in Fresno, California, 4 S. CAL. INTERDISC. L.J. 1, 12 (1995).
5. See id. at 8.
6. W.at26.
7. Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101,102 (1997).
8. Id.
9. Id. at 120.
10. James J. Sing, Culture as Sameness: Toward a Synthetic View of Provocation and Culture in the Criminal Law, 108 Yale L.J. 1845, 1851 (1999).
665
in Albania, "all forms of parental fondling constitute socially acceptable behavior.*''11 The prosecutors dropped the charges.12
As the cases above illustrate, growing cultural diversity in the United States has created a variety of novel legal issues when determining a defendant's culpability, because cultural minorities sometimes ask the legal system to consider their cultural background.13
Five years ago, in the case of Nguyen v. State, the Georgia Supreme Court recognized that in rare situations cultural beliefs may be admissible as evidence of self-defense.14 In Nguyen, the defendant, an immigrant woman from Vietnam, claimed that her husband and adult stepdaughter were verbally abusive and disrespectful toward her.15 Even after her husband informed the defendant that he intended to divorce her, she continued to reside with him.16 After further verbal abuse and threats of physical abuse by her stepdaughter, the defendant shot both her husband and stepdaughter.17
At trial, the defendant's attorney employed a battered-person defense with a cultural component. The defense argued the verbal abuse the defendant suffered at the hands of her husband and stepdaughter incited a fear that a person born and raised in the United States may not experience.19
The trial court refused to allow the presentation of expert testimony in support of the defense's argument,, and the jury convicted Nguyen of aggravated assault.20 Because Nguyen's family subjected her to verbal and not physical abuse, the Georgia Court of
11. Id.
12. Id.
13. See Kim, supra note 7, at 102; alison dundes renteln, The cultural defense 5 (2004).
14. See Nguyen v. State, 520 S.E.2d 907,909 (Ga. 1999).
15. Id. at 908.
16. Id.
17. Id.
18. See Nguyen v. State, 505 S.E.2d 846, 847-48 (Ga. Ct. App. 1998), affd, 520 S.E.2d 907 (Ga. 1999).
19. Id. at 848; see Trisha Renaud, Battered Syndrome Defense Argued to Justices, Fulton County Daily report, Apr. 14, 1999, at 1. The defense argued that "[t]he cultural evidence tends to prove why this woman would be threatened under the circumstances. . . . Without this, the jury can't understand." Id.
20. Nguyen, 505 S.E.2d at 847.
2006] CULTURAL PLURALISM AND JUSTICE 667
Appeals affirmed the lower court's decision.21 Further, the Court of Appeals stated that evidence of a defendant's cultural background is never relevant and found it unnecessary for the jury to understand the defendant's reaction to her family's demeaning behavior.22
A unanimous Georgia Supreme Court disagreed with the appellate court's ruling regarding cultural evidence and explained that such evidence may be relevant to assist the jury in understanding "why an accused acted in the way he or she did," and the court held defendants may use strong cultural beliefs as justification for criminal behavior and evidence of self-defense.23 Although the court found the cultural evidence inadmissible in this case, the Georgia Supreme Court set the stage for the use of evidence of a defendant's cultural background.24
This Note seeks to address how a Georgia court should treat a defendant accused of committing a crime possibly motivated by culture. Part I traces the history of the cultural defense by defining culture and analyzing the different strategies defendants have asserted under the guise of the defense.25 Part II examines how defendants incorporate cultural arguments in the existing criminal justice framework.26 Part III explores the nature of the debate surrounding the admissibility of cultural evidence and analyzes the rationales supporting and opposing the formal adoption of the cultural
21. Id.
22. See id.
23. Nguyen v. State. 520 S.E.2d 907, 909 (Ga. 1999).
24. 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 husband's failure to maintain appellant's proper position in the household. However, there was no evidence that individuals sharing appellant's 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.
25. See infra Part I.
26. See infra Part II.
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defense. Part IV canvasses the proposed methods of incorporating cultural factors in the criminal justice process.28
I. The Cultural Defense
A. Background
Although the term "cultural defense" has attracted media attention mostly in homicide cases, defendants have raised the cultural defense in a myriad of criminal prosecutions: sexual assault, child abuse, animal cruelty, arson, bribery, and drug offenses. While American jurisprudence does not recognize it as a formal criminal defense, the term cultural defense comprises different strategies in which a defendant tries to admit evidence of his cultural background to explain, excuse, or justify otherwise criminal conduct for mitigatory or exculpatory purposes.30 Defendants contend their culture is so ingrained that it predisposes them to actions that may conflict with the laws of the dominant Western culture.31 By seeking to introduce cultural evidence, the defendant argues that "[his] native culture would have excused [his] conduct, that cultural factors ... are relevant to a determination of [his] state of mind at the time of the criminal act, or that cultural factors warrant reduced charges or punishment."32
Defendants may raise cultural arguments during many stages of the criminal justice process.33 "Culture can affect pretrial decisions such as whether to arrest, prosecute, or negotiate a plea. Defendants may seek to introduce cultural evidence at trial to negate a required element of a crime, to secure an acquittal, or to support an established
27. See infra Part m.
28. See infra Part IV.
29. See Renteln, supra note 13, at 6.
30. See Note, The Cultural Defense in the Criminal Law, 99 harv. L. Rev. 1293, 1296 & n.17 (1986).
31. Alison Dundes Renteln, In Defense of Culture in the Courtroom, in Engaging cultural Differences: The Multicultural Challenge in Liberal Democracies 194, 196 (Richard A. Shweder et al. eds., 2002).
32. Daina C. Chili, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. Rev. 1053,1096 (1994).
33. Renteln, supra note 13, at 7.
2006] CULTURAL PLURALISM AND JUSTICE 669
defense such as provocation or self-defense."34 Defendants may also present cultural factors for consideration during sentencing.35 The crux of the cultural defense rests on the foundational criminal law concept that people should not be held responsible for their acts without the requisite intent.36
The majority of American courts have been unwilling to allow a defendant's culture "to constitute an independent, substantive defense in criminal trials."37 They have stood by the proposition that ignorance of the law is no excuse, and all who live in a country are subject to the same laws regardless of...
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