Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense Strategies |
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| Authors: | Kay L Levine |
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| Institution: | Doctoral candidate in the Jurisprudence and Social Policy Program and a past graduate of Boalt Hall, both at the University of California at Berkeley (UCB). I am grateful to my peer reviewers at Law &Social Inquiry;and to all of the people at UCB who read earlier versions of this paper and shared their insights about culture and crime with me: Malcolm Feeley, Lauren Edelman, Kristin Luker, Christopher Kutz, Sandy Kadish, Chuck Weisselberg, Robert Post, and Ann Swidler. Thanks also to my former colleagues and friends at the Riverside County District Attorney's Office in Riverside, California, for teaching me how to approach criminal cases with intelligence and compassion. Virginia Mellema deserves special recognition for talking over these ideas with me ad nauseam and for helping me to reframe my ideas in a more coherent fashion. And always, thanks to my husband, Jonathan Bookspun, for giving me the space to keep writing and the confidence to know when to stop. |
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| Abstract: | In this article 1 offer a principled strategy for the courts to identify and to handle the uses of culture as a defense in a criminal proceeding. I begin by discussing the relationship between culture and behavior illuminated by sociologists of culture. I then explain the three categories into which cultural defenses fall–cultural reason, cultural requirement, and cultural tolerance–and the response of criminal courts in the United States to each. I argue that where culture offers an alternative explanation of the defendant's intent, it is highly relevant to determinations of criminal liability. However, where a defendant uses culture only to explain why he wanted to harm the victim and asks that the court be tolerant of such behavior, considerations of culture should not be allowed. In reaching this conclusion, I draw on theories of multiculturalism to consider the benefits and burdens of maintaining the facade of a "cultureless" criminal law in an increasingly heterogeneous society. |
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