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Module XI: Cultural Defenses and Cultural Evidence

Arguments For the Use of Cultural Defenses

The arguments favoring a freestanding cultural defense run as follows. The criminal justice system is often criticized for its imposition of and assumptions based on Western and white-male norms and values. A formal, freestanding cultural defense could be used to achieve fairness and individual justice and to promote cultural pluralism. Allowing the defendant to raise a cultural defense promotes fairness in the legal system in several ways by:

  • Allowing the fact finder to apply a more accurate profile of a "reasonable person" in the defendant's situation;
  • Providing individual fairness for recent immigrants who may not yet be familiar with the laws of the U.S.;
  • Educating the jury about the defendant's background to bridge the cultural gap;
  • Helping cultural pluralism to survive and flourish by allowing individuals to maintain their customs and values.

Thus, by allowing each individual to maintain his/her culture, the criminal legal system will assist in preserving and promoting a pluralistic society (Renteln, A Justification of the Cultural Defense as Partial Excuse, 1993; Note, The Cultural Defense in the Criminal Law, 1986).







Module XI → Arguments For the Use of Cultural Defenses
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Resources


Articles

  • Note: The Cultural Defense in the Criminal Law, Vol. 99 Harvard Law Review 1293 (1986)
  • Alison Dundes Rentein, A Justification of the Cultural Defenses as Partial Excuse, Vol. 2 California Review of Law and Women's Studies 437 (1993)
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