The cultural defense

April 20, 2004

The owner of the Chinese live-animal food shop doesn't get it. Why was she cited for selling live chickens when the Italian restaurant across the street boils dozens of live lobsters everyday?

A man from Yemen is equally mystified. He was arrested for chewing Khat leaves, which yield a wired effect comparable to drinking three espressos. He did not know the leaves are considered a controlled substance in the United States.

For many immigrants, living in America is a cultural balancing act: They struggle to preserve their native customs while conforming to the laws of their new home.

In her new book "The Cultural Defense" (Oxford, 2004), Alison Dundes Renteln of the USC College of Letters, Arts and Sciences examines hundreds of court cases involving customs and religious beliefs linked to alleged drug abuse, animal cruelty and mistreatment of the dead.

"The whole point of the book is to challenge policies based on the 'When in Rome' presumption," said Renteln, a professor of political science "The right to your culture is a basic human right. People may act in ways that seem totally out of line but make sense when you understand their customs and background."

Although there is no official cultural defense in any legal system, courts often are left to decide whether a person's culture can offer an explanation of behavior . Yet it's rare that a judge takes one's customs and beliefs into account in criminal cases.

Although Renteln doesn't believe cultural defenses should be used to excuse an illegal activity, she does think the courts should consider a defendant's cultural background during the guilt and penalty phases of a case, particularly when assigning a punishment.

For example, Fumiko Kimura, a Japanese immigrant, attempted to drown herself and her two children in Santa Monica Bay in the mid-1980s after discovering her husband's infidelity. She survived but her children died, leading to first-degree murder charges.

"This was a tragic case, and of course many people couldn't believe a mother would kill her children," Renteln said. "But after closer examination, I learned that according to Japanese culture, it would have been considered more cruel to leave the children behind as orphans than to take them with her to the afterlife."

Mrs. Kimura received a lighter sentence because of circumstance and intent.

As more immigrants make their homes in the United States and in other countries in Europe, - arguments concerning the right to maintain one's cultural identity are becoming increasingly prevalent in schools, workplaces and courts. At the same time, immigrants are feeling pressure to conform to American standards.

But divisions remain - especially in areas where laws are on the books.

Drugs and animal cruelty offer some of the best examples of culture clashes.

While cockfights and the sale of live animals are acceptable in many parts of the world, these practices seemingly clash with official law, morality, or etiquette.

Cockfights are illegal in all but a few states, and participants can be prosecuted and sentenced up to two years in jail. Likewise, selling live animals at market is culturally based but is sometimes banned by local authorities, which occurred in San Francisco.

"I would argue that there is a double standard in America when it comes to animal cruelty laws," Renteln said.

"It's more dignified for an animal to get slaughtered in a religious ceremony or to have a fighting chance in a cockfight rather than simply be eaten for dinner after being fried in a vat of oil at Kentucky Fried Chicken. We need to remember that different cultural communities use animals for varying purposes, none of which is less important than mainstream uses of animals.

"Selling live animals was outlawed temporarily because people didn't like seeing animals in small cages knowing that others were going to buy them and kill them for dinner," she said

Cultural differences also come up in drug cases.

Khat leaves, which are chewed like tobacco, are considered controlled substances by the U.S. Drug Enforcement Agency. A number of immigrants have been prosecuted for possessing or using the leaves which are culturally required for social gatherings and -celebrations.

In many instances, defendants who come from Kenya, Somalia or Yemen are astonished to find that the leaves are regarded as illegal drugs.

Drinking Kava tea, which is made from a Polynesian root and has an effect similar to alcohol, has led some Tongans to be prosecuted for driving under the influence.

Cultural defenses - and sometimes offenses - also arise in civil suits.

In one publicized case, a Hindu man filed a suit against Taco Bell for serving him a beef burrito instead of a bean burrito. Because he mistakenly ate an animal prohibited by his religion, he sued for damages for the trauma he suffered. His attorney explained that the mental impact was "the equivalent of eating his ancestors."

Although the public did not appear to be sympathetic, Taco Bell settled the case just before it went to trial.

More recently, a college student said her instructor told her to remove her scarf when she walked into his computer class. The student refused, explaining that she wore the hijab for religious reasons. When the professor called her out of class, the student complained to college authorities. The professor was fired.

Another culture conflict involving visual religious symbols occurred in the mid-1990s. Sikh students were kept out of school for a year because they would not remove their kirpans, a dagger which their religion requires them to wear.

Eventually a federal appellate court ordered the school district to allow them to return to class provided the kirpans were either rendered blunt or glued into their sheaths. This shows the possibility of finding a compromise.

Renteln started studying cultural defenses a decade ago. At that time, she was ambivalent about using cultural arguments in court.

"I believed people had a right to follow their cultural traditions, but how far do you go? There was a conflict between the right to one's culture and other human rights," she said.

"In the end, if the traditions don't involve irreparable harm to women or children, the government should not interfere with them.

"Cultural information should be admissible in all cases to help the court understand motivations, but that does not mean I think culture should always influence the outcome in cases," she added.

"I am usually in support of the cultural defense, which means opening the door to evidence about a person's cultural background. We have to take a case-by-case approach to deciding whether the information should affect the disposition of the case."

University of Southern California

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