U.S. Justice System Called Ambivalent on Use of ‘Cultural Defense’ by Immigrants

When a despondent Japanese woman drowned her two children in Santa Monica Bay and was charged with murder, her supporters argued that parent-child suicide is traditional in Japan.

When a native of Laos living in the United States killed his wife because she was going to take a job working for another man, he too was charged with murder. His attorney argued that the wife’s intentions were tantamount to adultery in the man’s native culture and as such were considered punishable by death.

When another Laotian man engaged in a native ritualistic act of abducting his fiancee and bringing her to his family’s home so he could consummate their relationship, he was--much to his apparent surprise--charged with kidnaping and rape.

A scholar studying the so-called “cultural defense” says that although its use in criminal cases is increasing here and abroad, the American justice system has at best an ambivalent attitude toward it.

The cultural defense raises the question of whether a violation of the law can be forgiven if the act is acceptable in the defendant’s native culture.

“The challenge of the cultural defense is widespread and increasing with international commerce, tourism and immigration,” said Alison Dundes Renteln, an assistant professor of political science at the USC.

“This is a cultural conflict not just in the pluralistic United States but in every ethnically diverse nation and every society where ancient cultural norms survive alongside modern rules of behavior.”

Renteln recently raised the issues in a report, “Culture and Culpability,” which she presented to an International Political Science Assn. meeting in Rotterdam, The Netherlands.

One such possible cultural defense case she is studying occurred in India in September when an 18-year-old bride was burned to death on her husband’s funeral pyre in accordance with a long-outlawed Hindu rite.

Renteln said Indian police charged five of the girl’s in-laws with murder for their alleged complicity, but a cultural defense may be introduced in view of reports that hundreds of thousands of devout Hindus have converged on the site to celebrate what they perceive to be the dead girl’s loyalty to her husband.

Defense Not Recognized

“In Nigeria, you can find recent instances in which murder defendants have used the cultural defense to argue that they killed to defend themselves against the slain individual’s witchcraft,” Renteln said. “But the Nigerian legal system . . . refuses to recognize such a defense.”

Renteln said the case of the Japanese woman who drowned her two children in Santa Monica Bay in January, 1985, but was saved herself, illustrates the U.S. legal system’s ambivalence toward the cultural defense.

After Fumiko Kimura killed her children upon learning her husband had a mistress, members of the Japanese-American community argued that parent-child suicide is a traditional Japanese custom.

Committing suicide is not considered sinful in Japan, but leaving one’s children behind is looked upon as cruel.

While parent-child suicide is illegal in Japan, Kimura’s supporters said, it is not considered a major crime and the most Kimura would have been charged with in her native country would have been involuntary manslaughter.

Even so, Kimura’s attorney, Gerald Klausner, felt she could not win her case with a cultural defense. Instead, Klausner relied on the testimony of six psychiatrists, who concluded Kimura was suffering from psychotic depression and delusions when she walked into the ocean.

Kimura pleaded no contest in Superior Court in October, 1985, to lesser voluntary manslaughter charges and was sentenced to a year in jail, which she had already served at the time of her pleas. She was also placed on probation and ordered to undergo psychiatric counseling.

“In this case, legal scholars could say that the U.S. legal system was treating a foreign cultural perspective as a form of insanity,” Renteln said. “Or they could say this case shows that the American legal system will respond to a cultural defense in an indirect way.”

Renteln said the case of the Laotian man who was convicted of killing his wife because she intended to take a job working for another man illustrated a direct rejection of the cultural defense by U.S. authorities.

“What’s missing from the dialogue on this issue,” Renteln said, “is a recognition of the distinction between the legal rights of persons who are in a country voluntarily versus those who are there involuntarily.

“I’ve introduced into the legal dialogue on this issue a proposal that the law should bend, at least in nonviolent cases, for indigenous people, like American Indians, who are forced to live under the domination of an alien culture.

“But I believe a cultural defense should be denied to a person who chooses to come to somebody else’s culture. For the most part, I subscribe to the ‘When in Rome’ philosophy.”