AN226 W9 Culture in the Courtroom Donovan (2008) - The Culture Defence Culture defence is the claim that courts

s should consider relevant features of a defendants cultural background when ascertaining guilt, but this principle arises inconsistently at current. Anthropologists have the capability to help articulate a reasonable ground for the defence, as well as its limits. Culture defence is valid when criminal acts are committed under a reasonable, good-faith belief in their propriety. The culture defence label can be misleading as all defences are intrinsically cultural in that their embedded logics draw upon the shared background of the group. However this is precisely why it is required, as a counterbalance to the cultural presumptions of the majority already embedded as defaults within the legal system itself, most nakedly in the concept of the reasonable man. Renteln also articulated justification for a culture defence (in human rights discourse), in that 'culture shapes the identity of individuals, influencing their reasoning, perceptions and behaviour', the predispositions run deep in a persons psyche so judicial systems should take them into account. It is required in cases where alien cultural norms would seem to the external observer to be criminal acts, such as aggressive marriage rituals looking like sexual assault. Yet there are fears that invoking such justifications can be an attempt to escape criminal responsibility. One case where the cultural defence was accepted concerned the cultural appropriateness of a reaction to infidelity (killed his wife). It was determined that the episode resulted in a death because, unlike what typically occurs in China, the community failed to intervene to prevent this tragic outcome. The dysfunctional element was not the violent outburst, but the disassociation from the Chinese community that would play its role in the cultural script and minimise damage. The Reasonable Man Redux Such cases demonstrate the usefulness of a culture defence to the defendant. According to Renteln, the role of the legal anthropologist in this process would include the demonstration of the embeddedness of cultural assumptions within legal systems. The reasonable man standard is defined as an 'objective' test, meaning that the defendants state of mind and personal beliefs are not relevant, it becomes the idealized observers state of mind, simply a persona of the dominant culture. Thus the test becomes a proxy for a culture-appropriateness test, how would a stereotypical American behave under such circumstances. This illustrates a broader principle that legal systems have a tendency to reify their own cultural assumptions and to objectify these as being 'normal' or even 'natural'. Yet this can only be 'roughly valid' even for fully fledged members of a community, as the law projects abstract concepts. A fundamental component of the rule of law is that all similarly situated persons are treated equally before the law. Yet no two persons are ever situated exactly the same. Renteln suggests that for litigants to be treated equally under law, they must be treated differently.

Addressing the Objections The move towards the culture defence has not been universally welcomed. Legal anthropologists can assist this debate by demonstrating that all legal standards are not self-evident but instead culturally specific. Sikora outlines the main objections to recognising the defence: cultural defence may promote stereotypes it undermines immigrant women and children's rights impossible to draft legislation as to when, where and how the defence can be used it would cause a fragmentation of the criminal justice system Main question is whether the boundaries of the defence could be rationally identified and applied. The fear is that if criminal law recognizes a defendants cultural imperatives then it could become a 'license for chaos'. Good social order requiring a certain commonality of behavioural standards that apply equally to all. However few would argue that undifferentiated implementation would respect fairness or justice. The challenge then becomes to respect the value of culture as a powerful motivation for action while keeping the impact of such considerations from undermining the bonds of social cohesion. The Culture Concept The culture defence relies heavily on the anthropological idea of discernible cultures. Culture provide a template of deault ways of being in a wide assortment of social and existential contexts. Culture is not determinative but it does provide ready made-solutions to some problems. (False, cognitive science shows it is determinative, albeit in a very complex interaction with mental architecture, because the notion of free will is an illusion). To deviate from these solutions requires active effort, but in most environments, the person operates unreflectively in the mode of the default. This process of 'enculturation' and its internalization is so pervasive that even the most deliberately unconventional person is unable to escape his culture to any significant degree. It would be a mistake to assign every act that a person executes as attributable to their culture. Culture whilst significant, is not the only constituent of individual identity. Spiro names experience as another crucial element, and some motivations are grounded in idiosyncratic rather than cultural values. (All culture is experience, so there is no distinction there, and where could these idiosyncratic values arise from, they are just reacting to culture in different ways. This is a narrow definition of a reifiable culture which is completely inept.) In some cases the defendant may have intended the act (as a cultural norm) but he did not intend the crime, and so lacks the guilty mind. We can use this to draw a distinction between someone who inadvertently commits a 'crime' by observing a normative standard' and someone who perhaps performs the same deed but this time does so maliciously and with full knowledge of its illegality within the local culture's legal system. Conclusions If the reasonable man standard is as freighted with the presumptions of majority culture as has been claimed, the culture defence does not represent a special defence feared by critics, it is an extension of the principle of judging individuals by the reasonableness of their actions, and thus is fairer to cultural minorities. However other considerations such as public policy/social order may have higher priorities in the courts decision making processes.