The So-Called “Cultural Defense” in the United States

서지정보

· 발행기관 : 조선대학교 법학연구원
· 수록지 정보 : 법학논총 / 22권 / 1호 / 39 ~ 78페이지
· 저자명 : 보해니안

초록

Defendants charged with breaking the law and brought before the courts in America’s multicultural society occasionally attempt to offer evidence of their cultural backgrounds in their defense. A strong difference of opinion characterizes scholarship on whether cultural variation should be admissible in the criminal justice system, and to what extent, and while some judges have allowed it, most have not. Proponents of the “cultural defense” include multiculturalists who assert that in an increasingly pluralistic society, fairness requires that the criminal justice system be individualized to moderate the strict application of the law. Opponents who oppose the multiculturalism argument in general, support the admission of cultural evidence on due process grounds. Many observers decry the success of the cultural defense in a number of shocking brutal and tragic crimes against particularly women and child victims. On occasion the cultural defense arises when a person who is raised in a foreign society commits a criminal act because they are not aware of the laws in the host country. More often an apparently law-abiding person raised in a foreign culture commits a criminal act in a host country because of being compelled to do so by the unique values that are native to the person’s culture, with the evidence being presented to rebut an element of the crime charged. This author concludes that because a cultural defense law undermines the need for deterrence and violates the principle of equal protection, an independent cultural defense ought not to be recognized, but culture should remain admissible to either rebut an element of the crime charged, such as the required mens rea, or when offered in support of one of the traditional criminal law defenses.

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