Defendants of Culture
Alison Dundes Renteln, The Cultural Defense. New York:
Oxford University Press, 2004. Pp. 219.
Reviewed by David Howes*
Alison Dundes Rentelns The Cultural Defense is a monumental treatise, equally
versed in the literature of law and anthropology. The author holds a position in
political science at the University of Southern California. Her command of these
different fields situates her at the forefront of the growing chorus of scholars who
arguesome pro, some conthat it is incumbent on the judiciary to take cultural
differences seriously in their adjudication of the legal frictions thrown up by our
increasingly multicultural society.
Cultural conflicts can arise in many different cases when the traditions of an
immigrant or minority culture clash with those of the dominant society. A partial list
would include: homicide and assault cases (e.g., when a defendant commits an
honour killing in reaction to an adulterous liaison, or abides by a street fighter
standard in response to a verbal insult); child abuse cases (e.g., when a traditional
healing or puberty ritual ostensibly performed to benefit the child results in bodily
injuries in the eyes of the medical establishment and child welfare authorities); drug
use or smuggling cases (e.g., when substances classified as licit and even essential to
social existence or spiritual enlightenment in the culture of origin are classified as
dangerous and prohibited in the culture of destination); the treatment of animals (e.g.,
when dietary codes differ, or there is the appearance of cruelty in the way animals are
handled in a ritual or sporting event, such as the cockfight or charreada);
employment discrimination suits (e.g., when the dress code of a minority culture
clashes with the hygiene or safety codes of the dominant society, or the image
which a given corporation wishes to project); and, the treatment of the dead (e.g.,
when state-mandated autopsies are performed irrespective of the religious objections
of the deceaseds next of kin).
In addition to providing a typology of the multiplicity of criminal and civil cases
in which cultural defences have been invoked in the United States and other
predominantly First-World jurisdictions (most notably, the United Kingdom, France,
* Department of Sociology and Anthropology, Concordia University, Montreal.
David Howes 2005
To be cited as: (2005) 50 McGill L.J. 999
Mode de rfrence : (2005) 50 R.D. McGill 999
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Canada, and Australia), Renteln aims to provide a normative framework for the
analysis and resolution of such disputes. Her position is that governments and the
courts should cleave to a principle of maximum accommodation of cultural
differences so that individuals may pursue their own life plans (subject to certain
provisos, to be discussed presently) in place of the presumption of assimilation or
monocultural paradigm that currently holds sway. The latter paradigm assumes that
individuals from other cultures should conform to a single national standard, with
the result that judges feel no compunction to factor evidence of the cultural
background of the litigants into their handling of a case, and simply dismiss such
evidence when it is proffered as irrelevant.1 According to Renteln, this attitude has
the effect of alienating rather than incorporating minorities into the dominant society,
and denies them their right to culture,2 in addition to interfering with other
fundamental rights, such as equal protection, or freedom of religion. She therefore
calls for the establishment of a formal cultural defence that would obligate the
judiciary to at least consider cultural evidence in all cases involving cross-cultural
conflict, while leaving the question of how much weight to attach to such evidence,
and whether or not it should excuse the conduct at issue (wholly, partially, or not at
all), to be decided on a case-by-case basis.
Culture matters for justice, Renteln argues, because enculturation (i.e., cultural
conditioning) predisposes individuals to act in certain ways, consciously or
subconsciously, and acculturation (i.e., assimilation to the culture of destination) is
far less prevalent or uniform than is commonly thought. What is more, to ignore the
truth of enculturation is to bias the result [of a case] from the beginning.3 For
example, defendants of culture typically find it difficult to avail themselves of
existing defences, such as provocation, to a charge of murder or assault because of the
operation of the objective reasonable person test. As Renteln points out, the reality
is that this objective being is simply the persona of the dominant culture, with
reference
(or
unreasonable); hence, the defence of provocation, which is theoretically available
equally to all defendants, in fact cannot be used by people who come from other
to which all other viewpoints are adjudged subjective
1 Equally problematic, according to Renteln, is the surreptitious admission of cultural evidence,
which is then sometimes upheld and sometimes overturned (as an abuse of discretion) on appeal:
There is no uniformity in the way culture is handled by the courts, and this variation leads to
dissimilar outcomes, sometimes for similar offenses (Alison Dundes Renteln, The Cultural Defense
(New York: Oxford University Press, 2004) at 185 [Renteln, Cultural Defense]). Hence the need for
statutory authorization of the admissibility of cultural evidence in the courtroom (ibid. at 206).
2 Renteln points to article 27 of the International Covenant on Civil and Political Rights (19
December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368) as one source of the right to
culture, but decries its relatively restricted use to date: Renteln, Cultural Defense, supra note 1 at
213. The same could be said of article 27 of the Canadian Charter of Rights and Freedoms (Part I of
the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), which
subjects the interpretation of the Charters provisions to the preservation and enhancement of the
multicultural heritage of Canadians.
3 Renteln, Cultural Defense, supra note 1 at 15.
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D. HOWES DEFENDANTS OF CULTURE
2005]
cultures.4 The objective reasonable person standard thus violates the principle of
equal protection, which leads Renteln to conclude that the provocation defence
should either be abandoned altogether or else modified to a culturally specific
reasonable person test. That is, when a defendants conduct can be shown to have
been culturally motivated, then this should be considered a mitigating circumstance
and constitute a partial excuse (which would result in the accused being convicted
of a lesser included offence and accorded a proportionately lighter sentence) instead
of exposing the defendant to an excess of culpability and punishment. This is but one
of the many thought-provoking suggestions for law reform which emerge from what
could be called Rentelns extrasystemic perspective on the prevailing legal system
of the United States. Formalizing the cultural defence would, she claims, result in the
achievement of a higher degree of individual justice, which is surely the goal of any
legal system that pretends to treat all individuals equally.
In her drive to expose the double standard by which many minority cultural
practices are judged, Renteln frequently gives expression to viewpoints that force a
double take on the assumed naturalness or reasonableness of the practices of the
dominant society. For example, in response to the supposition that arranged marriages
violate the rule of free and informed consent, it is observed that you marry the one
you love whereas we love the one we marry.5 Similarly, while the ritual sacrifice of
animals, particularly dogs and eagles, or the tripping of horses in the Mexican
charreada, are judged to be cruel and unnecessary, the wholescale secular slaughter
of chickens for food, or the roping of calves in Western rodeos, does not attract the
same opprobrium. Renteln sums up the many strands of her argument by stating that
the dominant culture often perceives unfamiliar cultural traditions as ominous.
The threat is often illusory, as with kirpans in school [which are religious
symbols, not weapons], the use of coining as folk medicine [which may result
in temporary bruises at worst], affectionate touching in families [which is not
supposed to be sexually motivated in the culture of origin], and the cornrows
hairstyle [which is often perceived as a sign of militancy when it may represent
no more than a stylistic option]. The beliefs and traditions are not dangerous,
and
from cross-cultural
misunderstanding and even xenophobia. In general, intellectuals and the wider
society seem to overreact to the prospect that cultural pluralism might be
allowed.6
the misperceptions surrounding
them stem
She traces the tendency to overreact to the anxiety occasioned by the fact that
multiculturalism exposes the fiction of any national identity.7 Such culture shock in
no way warrants putting other cultures on trial, or compelling immigrants to
surrender their culture upon arrival, however, since to allow such majoritarian bias
to prevail would be to bring the administration of justice itself into disrepute.
4 Ibid. at 32 and 36.
5 Ibid. at 115.
6 Ibid. at 218. All of the information in square brackets in this quotation is derived from discussions
of cases elsewhere in The Cultural Defense. The opinions are those of Renteln.
7 Ibid.
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For all that, Renteln does not pretend that cultural difference should provide a
carte blanche (as should be apparent from our earlier discussion of the cultural
defence as a partial excuse to a charge of murder or assault). As a general
principle, she argues, one can say that when the cultural claim can be shown to be
true, then culture should affect the disposition of the case, unless this would result in
irreparable harm to others.8 Renteln cites cultural practices leading to death or
permanent disfigurement (e.g., tribal scarification, female genital cutting) as instances
of traditions that would be disallowed under the irreparable harm standard. It will
be observed that positing this standard introduces a shift of registers from the cultural
to the physical, substituting individual longevity for spiritual immortality, and
bodily integrity for cultural identity. Renteln acknowledges the difficulties with her
irreparable harm standard (viz. harm is constructed differently in different
traditions), but goes on to justify it by reference to the fact that many cultural
conflicts involve children, that it cannot be assumed that children will choose to
remain members of their culture of origin upon reaching the age of majority, and that
this choice should be protected by the state vis–vis such practices as scarification or
female (or male) circumcision. Although some may object to this analysis because
of a cultural bias [in favour of autonomy and choice], at least it does not entirely
prevent the practice of traditions, but merely delays them.9
Renteln also takes pains to defend her position against those of the dominant
society who argue against the establishment of an autonomous cultural defence on
explicitly theoretical grounds, such as: that it interferes with the deterrence function
of the criminal law; that it undermines the rights of vulnerable groups such as
women; that it is difficult to prove the existence of specific customs; and that it
essentializes culture and perpetuates stereotypes. She counters these arguments by,
for example, claiming that the fundamental justification for punishment is retribution
(the individual should only be punished as much as he or she deserves), not
deterrence or rehabilitation; that the cultural defence is equally available to women;
and that it is possible to determine the validity of a cultural claim by using what she
calls the cultural defence test (Is the litigant a member of the ethnic group? Does
the group have such a tradition? Was the litigant influenced by the tradition when he
or she acted?).10 She also makes a strong case for training legal actors to be more
culturally open in a passage that is worth quoting at length, given its appositeness to
the theme of this special issue:
To promote greater cultural sensitivity on the part of lawyers, judges, and law
enforcement officers, some have argued for cultural competence training. The
desire for greater cross-cultural understanding is admirable but is unlikely to be
8 Ibid. at 15, 217. Renteln also discusses a variety of civil cases where the actions of state officials
and/or professionals expose persons of culture to an excess of harm or trauma by their own
standards (e.g., a strip search involving female gypsies who felt polluted by contact with the officers
concerned).
9 Ibid. at 218.
10 Ibid. at 207.
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D. HOWES DEFENDANTS OF CULTURE
1003
sufficient to resolve many culture conflicts so long as this training is elective
and the course is a matter of hours. To become a police officer, lawyer, or judge
should be contingent upon significant knowledge of other folkways. This could
be accomplished by required courses, homestays in other countries, or cultural
questions on exams like the bar examination. It is only when actors receive a
signal that their governments are serious about cultural pluralism that they will
have the incentives to overcome their own ethnocentrism.11
Given its extrasystemic perspective, Rentelns treatise represents an important
breakthrough in cross-cultural jurisprudence. Not only does she bring to light the
ubiquity of culture conflicts in the courtroom,12 but through her use of the extended
case method (reviewing transcripts and briefs, researching the anthropological
literature, interviewing the lawyers who handled the litigation about how they thought
cultural evidence influenced the outcome of a case, and analyzing press clippings as
well as actual decisions), she also exposes the complex underpinnings of such cases,
and how their effects spill over into everyday life. Sometimes a cultural community
rallies around a defendant, as in the case of the Japanese-American community of
California appealing for a Japanese mother, who had attempted parent-child suicide
upon learning of her husbands infidelity, not to be prosecuted, because her actions
were based on a different worldview.13 Sometimes, a cultural community may
contest the tradition that is at the centre of a dispute on account of the unwelcome
glare of publicity it attracts, as in the case of the Cambodian Association of
California, which protested that the consumption of dog, either as a delicacy or out of
necessity, is not a part of traditional Cambodian culinary tradition (despite some
evidence to the contrary).
Cases that turn on what could be called contested traditions from the minority
cultures own viewpoint highlight one of the principal difficulties with Rentelns
otherwise very compelling defence of the cultural defence.14 The difficulty lies in the
fact that her concern with individualizing justice sometimes leads her to de-
socialize culture. Thus, while one might agree with her contention that individual
justice demands that the legal system focus on the actor as well as the act, and on
motive as well as intent,15 such an analysis should not preclude the study of the
specific relationships in which the litigants stand to each other, and the ever-changing
relationships between the minority culture and the wider society. In place of
11 Ibid. at 209-10.
12 It bears underlining that Renteln breaks out of the mould of only considering the cultural defence
in relation to the criminal law by citing and analyzing a multitude of civil cases in which the
consideration of cultural evidence is essential to the proper resolution of a dispute (e.g., child custody,
employment discrimination, assessment of damages).
13 Ibid. at 25.
14 On contested traditions in the Canadian context, see also Pascale Fournier, The Ghettoisation of
Difference in Canada: Rape by Culture and the Dangers of a Cultural Defence in Criminal Law
Trials (2002) 29 Man. L.J. 81; Sherene Razack, What Is to Be Gained by Looking White People in
the Eye? Culture, Race, and Gender in Cases of Sexual Violence (1994) 19 Signs 894.
15 Renteln, Cultural Defense, supra note 1 at 187.
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constructing a kind of modal personality for each culture in an effort to elucidate the
motives that guided a particular individuals conduct (and ought therefore to mitigate
culpability) in any given case, as Renteln does, I would advocate a more dynamic,
relational approach to the appreciation of the circumstances which influence persons
to conform to some cultural practices and not others.16 Such an approach would be in
line with the growing recognition that cultures are conjunctural (not essential),
distributive (not simply shared), constitutive of a panoply of subject positions (not
just one persona per culture), and always partial, as anthropologist James Boon brings
out well in the following quotation from Other Tribes, Other Scribes:
[S]ocial facts [or traditions] represent selections from larger sets of possibilities
of which societies keep symbolic track, whether consciously or unconsciously,
explicitly or covertly. Societies conceptualize themselves as select (in both
senses) arrangements, valued against contrary arrangements that are in some
way objectified.17
I do not pretend that a relational approachfocusing on the interface and internal
diversity of cultureswould make the courts task in assessing the admissibility and
weight of cultural evidence any easier. However, it would help guard against cultural
arguments being rejected as reductive or frozen stereotypes, as is all too often the
case. Consider the affair of State of Minnesota v. Vue, which is a highly instructive
example of what could be called the abuse of cultural evidence. In this sexual assault
case, the prosecution sought to introduce cultural evidence to account for why the
victim, a Hmong woman referred to as M.V., had delayed reporting that the defendant
raped her four times over a period of several months. This delay undermined her
credibility as a witness. A white police officer was called to give expert testimony. He
observed on the basis of his casual contacts with the Hmong community that it was
considered inappropriate to seek help from outside for clan-related problems, and
that Hmong culture is a male-dominated culture in which women are to suffer
rather than to tell. On appeal, it was observed that this testimony did nothing to
enhance the victims credibility, for it only pertained to older Hmong for whom
language was a barrier, whereas the victim was bilingual and educated (rendering the
cultural testimony irrelevant); that the police officers credentials to give expert
testimony were suspect (absent academic training); and that the prejudicial effect of
the officers generic statements about male dominance in Hmong culture (which
painted the defendant as part of a guilty class of spouse-abusers) far outweighed
any probative value. The appellate court concluded that the district court had
improperly allowed the expert testimony to be heard on the ground that [o]ur
16 Renteln herself provides some very insightful analyses of the significance of relationships
(master-apprentice, gift, etc.) in a section entitled Relationships: Pressures on Individuals Induce
Them to Participate in Drug Operations (ibid. at pp. 85-90), but she does not go on to explore the
implications of relational factors for the other cases she considers; she only examines motivational
factors.
17 James A. Boon, Other Tribes, Other Scribes: Symbolic Anthropology in the Comparative Study of
Cultures, Histories, Religion, and Texts (Cambridge: Cambridge University Press, 1982) at 52.
D. HOWES DEFENDANTS OF CULTURE
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criminal code is supposed to be blind to the array of cultures in the State of
Minnesota.18
1005
If anything, this case points to the fact that the court should have been more
discerning, not less, as regards the array of cultural differences, including differences
internal to the cultures present in the State of Minnesota. A relational approach, such
as an anthropological expert would have brought to bear upon this case, would have
problematized the gender stereotypes,19 disclosed the panoply of subject positions,
highlighted the full range of recourses (and sanctions) available from within Hmong
culture, and forced the court to do a double take instead of perpetuating the illusion of
equal (culturally neutral) treatment of the parties concerned by turning a blind eye
to the defendants culture of origin.
I first came across The Cultural Defense after sending out a call for papers for a
special issue of the Canadian Journal of Law and Society on the topic of Culture in
the Domain of Law. The call for papers was worded as follows:
Culturally-reflexive legal reasoning is increasingly necessary to the meaningful
adjudication of disputes in todays increasingly multicultural society. It involves
recognizing the interdependence of culture and law (i.e., law is not above
culture but part of it). Judges ought to acknowledge and give effect to cultural
difference, rather than override it. Deciding cases solely on the basis of some
abstract conception of individuals as interchangeable rights-bearing units would
have the effect of undermining our humanity. It is our cultural differences from
each other that actually make us human. However, in extending judicial
recognition to such difference, judges must be careful to take cognizance of
their personal culture, and not just that of the other. Reflexivity, not mere
sensitivity, is the essence of cross-cultural jurisprudence.20
Alison Dundes Renteln responded to this call with a paper that summarizes the policy
considerations articulated in her book that support statutory authorization of a formal
cultural defence, and then goes on to set out a series of guidelines for distinguishing
those cases which would, in her estimation, result in a misuse of this defence. If
recognizing a cultural tradition would undermine the human rights of vulnerable
18 State v. Vue, 606 N.W.2d 719 (Minn. App. 2000) at 723.
19 Outside observers often see evidence of male dominance and female subservience in the practices
of Oriental and African cultures, whereas anthropological analyses of even such blatantly
patriarchal cultural symbols as the veil or female genital cutting may reveal the indigenous
experience to be one of female empowerment within a larger framework of gender complementarity.
See Sajida Alvi, Homa Hoodfar & Sheila McDonough, eds., The Muslim Veil in North America:
Issues and Debates (Toronto: Womens Press, 2003); Janice Boddy, Womb as Oasis: The Symbolic
Context of Pharaonic Circumcision in Northern Sudan (1982) 9 American Ethnologist 682. The
decision of whether or not to defer, as Jeremy Webber would say, to minority cultural practices
can only command respect to the extent that it is rooted in cross-cultural understanding as opposed to
prejudice. See Jeremy Webber, Multiculturalism and the Limits to Toleration in Andr Lapierre,
Patricia Smart & Pierre Savard, eds., Language, Culture and Values in Canada at the Dawn of the 21st
Century (Ottawa: International Council for Canadian Studies, 1996).
20 David Howes, Introduction: Culture in the Domains of Law (2005) 20 C.J.L.S. 9 at 10.
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groups, it should be rejected … The right to culture is a fundamental human right, but
it should be protected only so long as it does not undermine other human rights.21
This formulation goes a considerable way toward establishing a normative framework
for the conduct of cross-cultural jurisprudence, although its recourse to rights
language might be considered regrettable from the standpoint of those legal
traditions which entertain a less formal, more relational conception of the constitution
of the subject.22 That said, Rentelns theorization of just how culture matters to the
administration of justice opens up a vital new domain for academic inquiry and
judicial notice.
21 Alison Dundes Renteln, The Use and Abuse of the Cultural Defense (2005) 20 C.J.L.S. 47 at
63, 66.
22 See e.g. H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (New
York: Oxford University Press, 2000) at 193-6, 297-98; Edward LiPuma, Modernity and Forms of
Personhood in Melanesia in Michael Lambek & Andrew Strathern, eds., Bodies and Persons:
Comparative Perspectives from Africa and Melanesia (Cambridge: Cambridge University Press,
1998) 53.