The Judgment of Culture

Cultural Assumptions in American Law

Lawrence Rosen

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138237780
• eBook ISBN: 9781315298979
• Edition: 1
• Topic: Social Sciences
• Subtopic: Anthropology
• Index: Social Sciences

Legal systems do not operate in isolation but in complex cultural contexts.

This original and thought-provoking volume considers how cultural assumptions are built into American legal decision-making, drawing on a series of case studies to demonstrate the range of ways courts express their understanding of human nature, social relationships, and the sense of orderliness that cultural schemes purport to offer. Unpacking issues such as native heritage, male circumcision, and natural law, Rosen provides fresh insight into socio-legal studies, drawing on his extensive experience as both an anthropologist and a law professional to provide a unique perspective on the important issue of law and cultural practice.

The Judgement of Culture will make informative reading for students and scholars of anthropology, law, and related subjects across the social sciences.

PART I

Bringing culture into the law

1

DEFENDING CULTURE

The cultural defense and the law’s theory of culture

Over the years, I have had occasion to pose two questions to audiences comprised of judges and academics in both the U.S. and the UK. When I ask in regard to criminal law how many would like there to be a formal cultural defense, in which a plea is based on how one is expected to act in one’s own culture, few if any hands are raised. When I ask how many think information about the culture of the accused should be allowed into evidence, virtually all of the hands go up. Similar responses are obtained when a civil case is proposed. In one sense, this may not be a contradiction, for many of those responding say they want to hear the cultural information either for purposes of understanding the acts involved or to gauge an appropriate outcome, even though introducing aspects of one’s culture should not be treated in the same way as a self-defense or insanity plea.

In many respects, of course, keeping a person’s culture out of consideration is impossible. As one American judge told me, “the moment I see the person has a particular accent or is clearly from a foreign culture how can I be expected not to let it rouse my curiosity?” And certainly, there are many ways for an attorney to slip in information about the party’s cultural background even if no formal defense is permitted. Cultural background often figures in both criminal and civil proceedings. However, scholars rarely ask how American courts think about culture in these contexts. If a formal cultural defense is not favored yet cultural information is desired, how should such information be structured into the proceedings? How do courts conceptualize culture, and how may current theories of culture help us think about individual versus collective orientations? How, in this context, do courts approach issues of free will, internal cultural variation, and the proper role of experts?

In this chapter, we will review a number of cases that raise these and similar issues and consider not only how culture makes its way into judicial proceedings in this regard but how one might best manage its consideration absent a formal cultural defense.

The dilemma of the cultural defense

The cases themselves go a long way toward pointing up the dilemma.

In January 1985, Mrs. Fumiko Kimura tucked her four-year-old son under one arm, her six-month-old daughter under the other, and walked into the waters of the Pacific Ocean off a beach at Santa Monica, California.¹ By the time people nearby realized their difficulty both children had drowned. Mrs. Kimura was rescued. She told officials that she had recently learned that her husband had been having an affair with another woman and although the relationship had been concluded, she believed the appropriate way for a traditional Japanese woman like herself to eliminate the shame such an affair brings to the family is to engage in oyako-shinju (parent-child suicide). While the practice is punishable under Japanese law, the penalty, if any, is usually very light, the mother’s act being seen as one of love and devotion: “The mother who commits suicide without taking her child with her is blamed as an oni no yon a hito (demon-like person)” (Iga 1986: 18). “According to one report, Kimura said of her rescuers: ‘They must have been Caucasians, otherwise they would have let me die.’”² The state charged her with murder. A petition was quickly signed by over 4000 members of the Japanese-American community in Los Angeles stating that her action was understandable, especially for one who, though a resident in the U.S. for many years, spoke little English and was very traditional in orientation. By the time of her trial more than 25,000 people had called for her release, including the initial district attorney in the case. Eventually, Mrs. Kimura was allowed to plead guilty to two counts of voluntary manslaughter. She was sentenced to a year in prison but because she had been held in custody for more than that period she was immediately released and put on five years’ probation. Although everyone agreed that her cultural background should not have been a relevant consideration, it is far from clear that it was in fact disregarded.³

A few months later, in Fresno, California, Kong Moua, a twenty-three-year-old Hmong tribesman from Laos, took Seng Xiong, a nineteen-year-old woman who was also a Laotian Hmong, from her workplace at a local community college. When she charged him with kidnapping and rape he countered that this was an act of traditional Laotian ‘bride capture’ and that the woman’s protestations and his act of sex with her at the house of his relative was consonant with the next step in their engagement/betrothal process.⁴ Judge Gomes permitted the cultural evidence to be heard and the defendant was allowed to plead guilty to a misdemeanor of false imprisonment for which he received a few months’ sentence and a $1000 fine, most of which was paid to the victim as a form of reparation.⁵

In Alaska, at just about the same time, charges were being dismissed, following a four-day trial, against an Eskimo man charged with child sexual abuse. The court found that attempts at fondling the genitals of a twelve-year-old white boy at a birthday party attended by white and Eskimo children at the defendant’s home were part of Eskimo cultural behavior when a young boy achieves manhood and that the actions of the defendant were devoid of any unlawful erotic intent.⁶

Cases such as these raise serious questions about the relevance of cultural background to the defense of a criminal charge.⁷ Much of the discussion has centered on the use of cultural information to mitigate the penalties imposed, particularly where the incident involves an act of violence by a man against a woman that, even if permissible in his country of origin, is not acceptable in the United States. It can, however, be misleading to assume that these cases concern only mitigation or gender crimes: The full range of cases—many of which are not the subject of reported judgments—must be kept in mind as one analyzes the uses of cultural data in such instances.

Thus, one can point to a case in which a Haitian immigrant who killed a man he believed was working voodoo against him had the charge of murder reduced to manslaughter based, in part, on anthropological testimony; the trial of an Ethiopian man who was acquitted by a jury for wounding a woman he thought was an evil spirit (Renteln 2004: 39); the case of New York v. Chen (1988), in which a man killed his purportedly adulterous wife and was given a mild sentence based, in part, on the (often incorrectly reported) testimony of an anthropologist; the British case in which a judge mitigated the sentence of a gang of Somali Muslim girls who beat a non-Muslim because, he said, given the Islamic prohibition they were not used to drinking alcohol (Rayner 2011); or the appellate opinion in the case of a Puerto Rican youth who wished to show in mitigation that he would have been a social pariah in his community in Connecticut if he had not fired a gun, rather than run away (as the state law required), when threatened by a group of other Puerto Ricans (State v. Rodriguez). Cases may involve serious infractions, as when Middle Eastern parents have engaged in the ‘honor killing’ of a disobedient daughter (Abu-Odeh 2005a,b; Cohan 2010; Rose 2009; Wikan 2008),⁸ or be dismissed as relatively trivial, as when a Danish mother visiting New York was subjected to a criminal charge for leaving her child outside where she could see her while the mother went into a cafe, as is common in Europe (Sullivan 1997; Weiser 1999), or be regarded as harmless infractions as when an Afghan man, following the custom of his native country, kissed the penis of his small child but was not convicted of child sexual abuse because the harm was deemed so slight as not to amount to a criminal act (Maine v. Kargar; Wanderer and Connors 1999).⁹

In civil cases, too, the issue of cultural understanding has played a role. For example, after an Iranian wife argued that it was the custom in their culture for the husband to hold the wife’s property in trust for her, rather than to share equally in it, a court found that, while not accepting Iranian custom, a constructive trust existed such that the wife’s pre-marital property would not have to be divided as required by the state divorce law. In another case, a Japanese man was permitted to have a condition of his employment contract read in by the court when he showed that Japanese custom precluded his asking specifically about the terms of a commission from his superiors.¹⁰ Similarly, courts have looked to the secular elements of Muslim law and custom in deciding cases of child custody (Nahavandi v. Nahavandi),¹¹ bridewealth payment (Odatalla v. Odatalla), and—for the limited purposes of inheritance and workman’s compensation—the interests of a polygamous spouse.¹²

While culture has frequently been employed as a defense, it should be noted that it has also been used as a prosecutorial tool. Thus in Britain prosecutors have charged some Muslims with ‘honor killings’ rather than simple manslaughter in order to get the higher penalties such a listed crime carries.¹³ And in one amusing American case, a federal district attorney charged individuals who were going on trial for drug dealing with having attempted to kill the judge assigned their case by sending home to Haiti for a voodoo doll in the shape of the judge (Curriden 1989). No one seems to have told the prosecutors, however, that you cannot actually kill someone by poking needles in an effigy—but then no one seems to have told the defendants that, by the standards of their own culture, they should have known that voodoo does not work across water!

As one combs through the records, and attends to the anecdotes of colleagues involved in such cases, it appears that courts often do consider the cultural background of defendants, particularly immigrants (and sometimes tourists), even though the ‘cultural defense’ has received no formal acknowledgment in any American jurisdiction. Informal interviews with many American and British judges indicate almost all wish to hear about the parties’ cultural background even though they do not favor a formal cultural defense.¹⁴ Cultural stereotypes may be consciously employed in legal proceedings. Attorneys for Native Americans have told me that at times they have played on the court’s stereotypes of Indian alcoholism to get drunkenness-related charges against their clients dismissed or reduced. In many instances, though, courts have flatly refused to consider evidence of the defendant’s cultural background. For example, in the rape trial of an African-American, testimony was not allowed that purported to show that in the parties’ cultural milieu people commonly shout at each other and hence the victim’s loud response would not readily have been understood as a refusal to have sex with him (People v. Rhines). So, too, in Nguyen v. State, evidence of verbal abuse directed against the accused wife—evidence that may have supplied some context to her fears—was ruled inadmissible by the lower court judge. However, on appeal the Georgia Supreme Court ruled that in certain instances such cultural information might be relevant and admissible, although they did not support its introduction in this particular instance (see generally, Crockett 2005–6). Similarly, the New Jersey appellate court, in S.D. v. M.J.R., ruled that it was an error for the lower court to regard a Muslim husband as not having the intent to commit marital rape simply because he thought Islam gave him the right of sexual access to his wife even without her consent, a cultural consideration the higher court said it “soundly rejects.”

In other instances, courts have refused to allow anthropologists to testify as to the cultural background of a South Asian whose sensibilities about caste may have contributed to the nature of the provocation he said was offered (People v. Poddar; Blum 1986), while other courts have refused to hear expert testimony on the cultural meaning of alcohol consumption among Native Americans.¹⁵ The procedural standards of a criminal trial have also been applied to preclude culturally distinctive defendants ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Acknowledgments
• Introduction
• PART I: Bringing culture into the law
• PART II: Nature and the family
• PART III: Reaching out
• Conclusion: “Secreted in the interstices”
• Index