Cultural Defense Essay

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A cultural defense is an affirmative defense used by defendants to explain their behavior and the inability to conform their behavior to the law. This rationale is used by defendants to argue that the beliefs of their culture dictate their actions and therefore make them less culpable when committing a crime. In their most discussed form, cultural defenses have been used by immigrant defendants in cases involving the commission of violent crimes, specifically those involving acts of domestic violence. Typically the argument presented is that the woman acted in a way that the defendant’s culture views as morally wrong and this same culture has taught him to correct the woman’s wrongs through the use of violence.

Cultural defenses attempt to get at the question of whether or not the defendant had the requisite state of mind, mens rea, at the time of committing the crime in order for him or her to be found criminally liable. The mens rea required to find a defendant guilty varies depending on the specific crime. A defendant using a cultural defense may argue that his culture caused him to misinterpret the victim’s actions or words. For example, in rape cases, defendants have argued that their culture caused them to interpret a victim’s protests as consent and that they did not possess the state of mind required to be found guilty of rape. In other cases, defendants have asserted that their cultural background influenced their mental state at the time of the crime and, therefore, they were incapable of forming the intent necessary to commit the crime.

The debate over the validity of the cultural defense centers on the extent to which a person’s cultural background should be taken into account when explaining behavior. Critics of the cultural defense argue that it condones violence against women and children by excusing a defendant’s actions on the basis of his or her cultural background. In the end, it protects the perpetrators of violence and leaves vulnerable a group of victims the criminal legal system is supposed to protect. Proponents of the cultural defense assert that the U.S. legal system historically has been racist and prosecuted and punished people of color in disproportionately large numbers. This discrimination is perpetuated when the system ignores the fact that individuals from different cultures have different values and beliefs than those of dominant White American culture. Others argue for a compromised version of cultural defense that allows courts to take culture into account in deliberations and sentencing, while at the same time arguing for a complex vision of culture that is not static or one dimensional. Under this theory, views about a defendant’s culture should not be reduced to stereotypes and should take a critical approach to understanding traditional systems of oppression.


  1. Tunick, M. (2004). “Can culture excuse crime?”: Evaluating the inability thesis. Punishment & Society, 6, 395–409.
  2. Volpp, L. (1994). (Mis)identifying culture: Asian women and the “cultural defense.” Harvard Women’s Law Journal, 17, 57–101.

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