"Cultural defense," "cultural offense," or no culture at all?: An empirical examination of Israeli judicial decisions in cultural conflict criminal cases and of the factors affecting them.

• Author: Tomer-Fishman, Tamar

1. BACKGROUND

   Criminal courts in heterogeneous societies around the world, including the United States, Canada, Britain, France, Holland, Australia, and Israel, face cultural conflict situations. Cultural conflict situations are situations in which different groups in society have different conduct norms for the same situation. In cultural conflict situations, cultural minorities that act according to their cultural norms, values, and worldviews may be accused of committing crimes because the criminal law reflects the norms, values, and worldviews of the dominant groups. (1) Examples of such cases are bigamy and family honor murder.

   The questions motivitating this research include (I) what are the judicial decisions in cultural conflict criminal cases?; and (2) what are the judicial considerations in such cases? For instance, how does the court react to someone accused of bigamy who claims that his religion allows or even encourages him to take a second wife? What is the verdict when someone accused of murder claims that he acted in self-defense against lifethreatening witchcraft?

   Despite the fact that criminal courts have dealt with cultural conflict situations for more than one hundred years (2) and the growing academic and public debates on cultural defense, (3) no empirical research based on a sample of cases has been conducted on judicial decisions in cultural conflict cases. The current research, therefore, empirically examines judicial decisions in cultural conflict criminal cases and the factors affecting those decisions.

   This Article begins with a review of the cultural defense debate. It continues with a review of what is known about judicial decisions in cultural conflict cases. Following that is a discussion of the various possibilities for addressing cultural conflict cases. The Article then turns to examining the circumstances in which it is predicted that a cultural defense will be accepted. The methodology and the findings are presented, and the Article concludes with a discussion of the implications for future academic and public debates as well as for practitioners' work.

   1. THE CULTURAL DEFENSE DEBATE

      In recent decades, we have witnessed a growing public and academic debate on cultural defense centered on whether, and to what extent, cultural background should negate or mitigate criminal responsibility and punishment. This Section briefly presents the reasoning and arguments for and against considering cultural background as a mitigating circumstance.

      One reason to consider cultural background as a mitigating circumstance is multiculturalism. The multicultural movement promotes respect for other cultures and strives to change political, legal, and economic arrangements in order to respect minority cultural rights and enable cultural minorities to preserve and develop their culture. (4) While multiculturalism supports the use of cultural defense, it should be noted that cultural arguments were raised in courts long before the emergence of multiculturalism (5) and multicultural philosophers hardly address cultural defense. (6) Moreover, most multicultural scholars claim that cultural practices should not be recognized as legitimate to the extent that they limit individual liberties or are gender discriminative. (7)

      The argument that cultural practices should not be recognized if they limit individual liberties or are gender discriminative has been criticized for being based on value judgments of minority cultures, for promoting one culture over other cultures, and for presuming that Western values are superior to other cultures. (8) For instance, it was argued that the idea of human rights is not based on universal concepts but lies in Western and liberal perceptions. (9) Likewise, it is problematic to limit cultural relativism based on the liberal idea of the harm principle because the definition of "harm" is culturally relativistic. For instance, coining, the act of rubbing a coin on the back and chest of a child, is considered in Western societies as child abuse, but, among the Vietnamese, it is considered a healing treatment. (10) Similarly, scarring a child's face is considered an assault in Western societies but is considered a mark of group identity in some nonWestern societies. (11)

      While multiculturalism is one reason for considering cultural background as a mitigating circumstance, it is not necessarily the main one. (12) An important reason for considering the cultural background of the defendant as a mitigating circumstance is individual justice. (13) The principle of individual justice suggests that different people charged with the same crime should receive different treatments based on their relative moral guilt. Here, personal circumstances of the accused are presented at the sentencing phase in order to tailor the punishment to the moral guilt of the accused. Advocates of defendants' rights, however, have thought that the individual justice approach should be extended to the guilt phase. Under this approach, for instance, the battered spouse defense was recognized. (14) It is claimed that the law should recognize the role that motive plays in crime when adjudicating guilt and punishment in order to assure that people are punished only as much as they deserve. (15) According to the individual justice principle, the accused should be allowed to present his or her cultural background because when a person holds different cultural values than those of the legal system, his or her legal blameworthiness will not necessarily fit his or her moral blameworthiness. (16)

      The decision of whether to recognize a cultural defense also touches upon the issue of equality before the law. Opponents of cultural defense argue that the cultural defense will lead to the special treatment of immigrant and minority groups and to discrimination against members of the dominant group who are not entitled to such a defense. (17) Supporters of the cultural defense criticize this position and claim that members of the dominant group do not need a cultural defense since the law already embodies their cultural values. (18) They argue not only that the cultural defense does not violate the equality principle, but that it actually promotes equality, since the admittance of cultural arguments in court ensures that minority or immigrant defendants are afforded the same protection enjoyed by members of the dominant group--the evaluation of their behavior according to their cultural code. (19) In other words, the equality principle is violated not by presentation of cultural defense claims, but by lack of consideration of cultural diffrences in cultural conflict cases.

      While discussing the cultural defense in the context of equality, one must also consider the obligation of the state to provide equal protection from criminal conduct for all members of society regardless of their group affiliation. This brings us to one of the central arguments against cultural defense: the cultural defense has been criticized for violating women's and children's rights. Feminists have raised the concern that the acceptance of cultural claims will be understood as forgiveness and condonation of practices that subordinate women and violate their rights and will undermine the deterrent effect of law in those cases. (20)

      This feminist position against cultural defense, however, has been criticized from inside the feminist movement itself, by women of color feminists. Women of color feminists criticize Western or white feminists for not recognizing the fact that women of color are not only suffering from gender oppression but also from racial and cultural oppression. They criticize white feminists' perceptions of minorities' cultures as being merely sources of oppression, the resulting position that the cultural defense should not be recognized, and the implication that minority women should give up their culture. (21) A good example of the difference between white feminist perceptions of cultural defense and those of women of color is the reaction to People v. Chen. (22) Chen was an immigrant to the United States from China who killed his unfaithful wife. The court accepted the cultural defense claim that Chen acted because of cultural pressures. (23) Following the decision in Chen, the National Organization of Women filed a complaint against the judge. (24) Organizations of Asian women that initially joined the complaint later withdrew, fearing that the cultural defense option would be lost altogether thus leaving minorities unable to use it in other contexts. (25) One group's representative explained, "[T]o bar the use of cultural defense promotes the idea that when people come to America they have to give up their way of doing things. This is a notion that we can not support." (26)

      To summarize, the idea of cultural defense lies not only in cultural sensitivity but to a large extent in individual justice. This means that those who do not agree with multicultural ideas can still support cultural defense. On the other hand, as explained above, multicultural scholars will not necessarily support the cultural defense notion. How one reacts to cultural conflict cases is complicated by the need to find the right balance between conflicting values (such as individual justice versus women's rights) and choose between different interpretations of legal principles (such as the equality principle). The decisions of criminal courts in cultural conflict cases and the considerations underlying those decisions are therefore far from obvious. The following Section reviews what is known about judicial decisions in cultural conflict criminal cases.

   2. THE LITTLE WE KNOW ABOUT JUDICIAL DECISIONS IN CULTURAL CONFLICT CASES

      The literature has focused on the question of whether there should be a cultural defense and examined the different possibilities for raising cultural evidence in court. (27) Little is known, however, about the actual...