Cultural Defense

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Background

Some courts have recognized that a defendant’s responsibility for a criminal act may be diminished because of cultural differences. This so called “Cultural Defense” is usually argued when the defendant is in a minority group that holds normative values that conflict with society at large. This, controversial, defense is generally raised in countries with immigrant populations.

The cultural defense is typically presented in one of two ways. First, it may be used to demonstrate that the defendant failed to have the requisite mental state required for the crime or that a mental state existed which would mitigate the crime. For instance, the cultural defense may be applied as partial defense to homicide by demonstrating that an act of provocation reduces the crime from murder to manslaughter.

The cultural defense may also be presented by arguing that, because of cultural differences, the defendant made a mistake of law, was mentally incapable of commiting the crime, or believed the act was required in self-defense.

Even where the cultural defense is inadmissible as an affirmative defense to a crime, it may be argued as a mitigating factor at sentencing.

Country Specific Applications

Australia

R v. Dincer, (1983) I V.R. 461 - In this case an Australian Justice reduced a Turkish Muslim immigrant’s charge from murder to manslaughter. The homicide was triggered by the father learning of his daughter’s alleged extramarital conduct. The judge concluded that because of his cultural differences, the tradition of honor killing in his culture, a defense of provocation was allowed.

Germany

In 1994, the Federal Court of Justice of Germany (Bundesgerichtshof, BGH) changed longstanding case law that permitted the cultural defense to be used to reduce murder to manslaughter. Since this time, the cultural defense has not been allowed to reduce murder to manslaughter.[1]

United States

People v. Kimura - In People v. Kimura, the Japanese mother of two children attempted to commit suicide after learning of her husband’s infidenlity. She tried to drown herself and her two children. Her children died, but she survived. She was charged with double murder. The prosecutor was inundated with letters from Japanese Americans explaining that in Japanese culture it was considered a much graver crime to commit suicide and leave two children abandoned without a mother. The Attorney General's office reached a plea bargain with Kimura in which she was sentenced to one year in prison and five years probation.


See Defenses

Notes

  1. Kroslak, Daniel, Honor Killings and Cultural Defense (with a Special Focus on Germany) (June 19, 2009). Míľniky Práva v Stredoeurópskom Priestore, 2009 ; Islamic Law and Law of the Muslim World Paper No. 09-71. Available at SSRN: http://ssrn.com/abstract=1422503