Culture as sameness: toward a synthetic view of provocation and culture in the criminal law.

• Author: Sing, James J.

A dilemma that immigrant groups in this country have always faced is whether to retain the customs and practices of the "motherland" or assimilate into the dominant culture of their new home. Historically, an immigrant group's worth in this country has been viewed in direct connection with its "assimilability"--the extent to which the group blended in with the dominant Anglo-European cultural landscape, adopted "American" customs and styles of dress, and spoke the English language.(1) Today, the modern inheritors of this school of thought argue that immigrant groups must be willing to sacrifice their cultural traditions to ensure a robust American society in which certain core values are shared by all of its members.(2)

Recently, however, recognition of the historical abuses of the assimilability index has contributed to the rise of the multiculturalism movement, whose proponents argue that the old "melting pot" social metaphor, which privileges the erosion of cultural distinctness in the dominant cultural stew, is obsolete and at times discriminatory. They point to the ways in which the notion of assimilation as a measure of immigrant worth has been employed to vilify various unpopular immigrant groups, leading to anti-immigrant legislation,(3) racial scapegoating,(4) and discriminatory immigration policy.(5) Multiculturalists insist that cultural pluralism has made this nation strong and that immigrant groups must not be compelled to sacrifice their unique heritages. Thus, dominant American culture should learn from and help to celebrate the unique customs, history, and languages of its immigrant groups.

The battles between assimilationists and multiculturalists over whether and to what extent society should recognize and respect cultural differences recently have taken center stage in the American criminal law. With increasing frequency, collisions between American and foreign cultural norms have manifested themselves in the criminal behavior of "unassimilated" immigrants in this country. Attorneys representing these defendants have raised as a defense their clients' culture itself. Take, for example, the case of People v. Kimura.(6) After the defendant, a Japanese-American woman, learned of her husband's infidelity, she walked into the Pacific Ocean near Santa Monica, California, clutching her two children in her arms. The children drowned, but rescuers saved the defendant, who was subsequently tried for murder. At trial, the defendant claimed that in Japan, ritual parent-child suicide was an acceptable way of dealing with the shame brought on the family by an unfaithful spouse. The judge trying the case received a flood of letters from members of the Japanese-American community urging leniency for the defendant and explaining that oyako-shinju, parent-child suicide, would not be considered murder in Japan] Kimura's homicide charge was reduced to voluntary manslaughter, and she was sentenced to one year in jail (which she had already served), five years of probation, and psychiatric counseling.(8)

Those who support the use of cultural defenses like the one raised in the Kimura case argue that the face of American society is changing rapidly and that the American criminal legal system must change as well if it is to effectively mete out justice to all who come before it. These advocates claim that recognition of a cultural defense will advance two desirable ends consistent with the broader goals of liberal society and the criminal law: (1) the achievement of individualized justice for the defendant; and (2) a commitment to cultural pluralism.(9) Critics of the cultural defense respond by charging that society's interests in maintaining order and forging bonds among people by imposing a common set of cultural values militate against recognition of the cultural defense.(10) Moreover, in the most noteworthy recent attack on the cultural defense, Doriane Lambelet Coleman has marshaled equal protection law to argue against recognition of the cultural defense.

Coleman first argues that multiculturalism should take a back seat to the interests of victims and potential victims of criminal acts perpetrated by "cultural defendants."(11) These interests include the right to "obtain[] protection and relief through a nondiscriminatory application of the criminal law."(12) On this account, the cultural defense, while ostensibly advancing individualized justice for the defendant from a foreign culture, trammels the rights of immigrant women and children who are often the victims of "cultural" crimes.(13) Coleman goes on to argue concomitantly that allowing cultural evidence to be dispositive also results in the construction of an entire defense doctrine that is unavailable to similarly situated defendants who are not immigrants.(14) Coleman compares Kimura to the highly publicized Susan Smith case(15) in which the defendant, like Kimura, drowned her two young children, but unlike Kimura, received the "penultimate" punishment of life imprisonment.(16) Coleman contends that the selective availability of the cultural defense to those with "culture" also contradicts the Fourteenth Amendment's promise to protect the rights of all defendants equally in the criminal process.(17)

Despite this significant backlash against the cultural defense in the literature, many courts have nevertheless permitted the introduction of cultural evidence in criminal trials. In recent years, defendants have successfully raised cultural defenses in cases with fact patterns as disparate as rape,(18) child molestation,(19) politically motivated suicide,(20) and violence connected with spousal infidelity.(21) Ostensibly, such cases, to the extent that they reflect judicial receptiveness to the notion that foreign culture may mitigate a foreign defendant's culpability, represent victories for the twin rationales of cultural pluralism and individualized justice.

This Note contends, however, that the doctrinal framework courts currently employ to try cultural defense cases, insofar as it is reliant on the temporary-insanity model, results ironically in both the sacrifice of pluralistic values and the erasure of culture itself from the judicial analysis. This Note accordingly attempts to reconstruct the cultural defense doctrine so as to achieve the greatest consistency with the original justificatory narrative of cultural pluralism, proposing a "synthetic" model of the cultural defense and the existing criminal law doctrine of adequate provocation. Central to the argument for an integrative vision of culture and provocation is an engagement of the critics of the cultural defense on the very legal terrain they have coopted as the substrate of their arguments: antidiscrimination law. Making antidiscrimination doctrine a site of critical contestation provides a (long overdue) rejoinder to those commentators who uncritically contend that equal protection law precludes judicial recognition of a cultural defense. By tracing the common-law roots of provocation and observing how this doctrine maps on to the logic of the cultural defense, this Note seeks to recast antidiscrimination principles in favor of a new understanding of cultural evidence in the criminal law.

Part I introduces the general rationale behind the cultural defense and outlines the various permutations of the defense. Part II analyzes the doctrinal framework jurists have traditionally used to adjudicate cultural defense claims, revealing this framework's tacit reliance on temporary insanity as a doctrinal analogue. Part II then argues that the separate logics underlying the cultural defense and temporary-insanity doctrine are fundamentally incompatible, and concludes therefore that using the latter as a doctrinal lens through which to consider cultural evidence is improper.

Part III begins by observing that proponents of the cultural defense ironically provide ammunition for its critics by adhering to the vision of strict "incorporation" of a formalized cultural defense into the criminal law. This Part argues that the notion of a cultural defense as a distinct doctrinal addition to the criminal law--as well as the equal protection attack that depends on it--are flawed. Hence, the common ground where both advocates and critics of the cultural defense agree the controversy coalesces is also where they are both wrong. Ultimately, Part III concludes, both camps of commentators have failed to consider how the cultural defense is already "built into" the existing criminal law. Indeed, as Part IV demonstrates, if adequate provocation doctrine is itself a dominant cultural defense, exclusion of foreign cultural evidence from this doctrine will result in the effective denial of the defense to cultural defendants, thus jeopardizing principles of procedural fairness and equality before the law.

1. THE CULTURAL DEFENSE EXPLAINED

   The logic behind the cultural defense dictates that a defendant, often a recent immigrant or refugee, should be allowed to introduce evidence of her foreign cultural values in order to mitigate or negate her culpability. In other words, a defendant should not be punished as severely (and in some cases should not be punished at all) for behavior that is sanctioned or even promoted by the culture of her homeland. The rationale behind the cultural defense thus rests essentially on the fundamental criminal law principle that a defendant should not be held responsible for acts she committed without the requisite actus reus or mens rea.

   This is not to say, of course, that other underlying rationales for criminal punishment are not implicated by the cultural defense. While the desert-based model of punishment may counsel in favor of reducing the "cultural" defendant's charge, commentators have argued that courts' receptiveness to any form of cultural defense sends the message to foreigners that their criminal behavior is acceptable. Under this theory, the cultural defense...