Cultural Background Gains Traction as a Legal Defense

The old saw among law enforcement is that ignorance of the law is no defense.

But some think it should be, at least in some circumstances, particularly when immigrants act in ways that seem ordinary in their homeland but are illegal in the U.S. Defense attorneys and even some judges are increasingly pushing the idea that immigrants at times should be able to defend themselves by arguing that their cultural background influenced them.

"Taking a person's cultural background into consideration is no different from judges taking into consideration a defendant's gender, age and mental state," says Alison Dundes Renteln, a political science professor at the University of Southern California.

Critics of the defense say the law should be applied equally to all U.S. citizens and that juries shouldn't be asked to assess immigrants' guilt based on the defendants' own standards. It is wrong for prosecutors "to treat one class of people differently from another class of people just because of their national origin," says Cristina Johnson, deputy district attorney in Monterey County, Calif.

Moreover, "permitting a defendant to perpetuate the more-regressive norms" of their home country, such as marriage between young girls and older men, or violence against women who seek divorce, "doesn't make sense," says Doriane Coleman, a law professor at Duke University.

But advocates say they aren't arguing that immigrants who break the law should get a free pass. Rather, they say evidence that defendants acted in accordance with their cultural norms should be included at trial or potentially serve as a mitigating factor during sentencing. Under the right circumstances, they say, some defendants should qualify for plea bargains, or probation rather than prison.

"Cultural issues are arising more frequently in the courts, and judges and lawyers need to be sensitized to recognize them," says Delissa A. Ridgway, a federal judge on the U.S. Court of International Trade who became interested in the topic while training judges and lawyers in other parts of world. She now organizes seminars on the cultural defense.

Culturally sensitive cases continue to arise. Last month, prosecutors alleged that Marie Lauradin, a Haitian immigrant living in Queens, N.Y., severely burned her six-year-old daughter while performing a Voodoo fire ritual, though her lawyer says it is too early to say how he will argue her defense but adds that "she didn't intend to hurt her daughter."

Las Vegas Metropolitan Police Department

Nary Chao was originally charged with a felony, but prosecutors let her plead to a misdemeanor last year in light of her native customs.

Advocates of considering a defendant's background point to the example of Nary Chao, over behavior that is considered abhorrent in many cultures.

Prosecutors in Las Vegas charged the Cambodian mother with a felony after someone reported that she kissed her infant son's genitals. After she argued her behavior was a sign of affection and was an accepted practice in her native country, prosecutors let her plead to a misdemeanor last year.

In 2005, Maine's top court dismissed a sexual assault charge against a mother from the Dominican Republic for behavior similar to that of Ms. Chao's, determining it wasn't done for sexual gratification.

Culture-based legal defenses aren't new. As a country founded by immigrants, the U.S. has long wrestled with the issues of law versus custom. But such defenses began attracting interest amid the influx of non-European immigrants in recent decades, particularly with a few high-profile cases in the 1980s.

In one, a Japanese woman living in California who discovered her husband had an extramarital affair tried to kill herself and the couple's two children as a way to save face. The children died, but she survived. Based in part on evidence that her acts were part of a traditional Japanese practice now illegal in that country, prosecutors allowed her to plead guilty to manslaughter rather than face murder charges.

State and federal appellate courts have provided little guidance on how lower courts should treat such defenses, and many trial judges continue to be skeptical. As a result, such defenses often don't work. Even the most culturally aware judge is unlikely to be sympathetic to a child beater, regardless of the attitudes about corporal punishment in other countries. Defense attorneys would prefer to try other avenues, such as challenging the legality of the arrest or the evidence.

"It's very rare that you have a solid cultural defense for a case," says Robert Langford, who represented Ms. Chao, the Cambodian immigrant. Even he advised her to plead guilty to a misdemeanor despite having what he considered a valid defense. "I couldn't afford to take it to trial, because of the prejudices of people in the United States."

Yet, a jury can be convinced that heritage should be considered. In 2004, Yer Vang, a member of the Hmong ethnic group who emigrated to the U.S. from Laos, was charged with opium trafficking after police found more than 300 grams of the substance in his Rock Hill, S.C., home. His lawyer presented evidence that that amount of opium was less than an average Hmong tribesman from his country smokes in a year.

"It's their version of Advil. They've been using this for 1,000 years," says Mr. Vang's lawyer, Chris Wellborn, argued.

It worked. "An all-white, predominantly Republican, South Carolina jury found him not guilty," Mr. Wellborn said.