Shwetha Gopalakrishnan

The question of culture has regularly been a matter of legal concern. Both culture and law being ubiquitous entities get normalized as a part of our everyday lives. Yet in some circumstances they come in direct conflict with each other, for instance, when a defendant uses their culture to explain their actions. Austin Sarat and Thomas Kearns stated that “Law in theory knows no culture and recognizes no identity.” But the question of whether it needs to is an important one. Law often functions on the assumption of cultural homogeneity to impose one standard of justice on everyone. An important question which then arises with regard to individual culpability when an individual’s actions are driven by culture is whether Courts need to acknowledge a cultural defence in criminal proceedings. This piece explores the theme of cultural defence through a sociological perspective.

The cultural defense 

The cultural defence is a legal strategy that uses a defendant’s cultural background as evidence to mitigate criminal liability and to receive leniency in sentencing. A defendant’s culpability is determined by what we call a “guilty act” actus reus and a guilty mind “mens rea”. The cultural defence addresses the latter in committing the act which is forbidden. It acts as a formal excuse to a criminal act because it recognizes the act to be wrongful but operates on the belief that the actor lacked the requisite culpability for the crime. This argument proposes that it is unjust to punish a defendant to the limits of law because the defendant lacked knowledge of that particular law. The premise of the cultural defence argument is that when the accused did not have the same set of opportunities as the individual who was born and brought up in a majority culture to learn and know the law, then it is unjust to impute knowledge of the law to the accused. Thus it is essential to take into account such a cultural factor to achieve justice for the individual defendant. An ordinarily law abiding defendant in their own native culture might end up committing an act which is perceived as criminal in the dominant culture but might be in direct conflict with the values that were taught by a minority culture and internalized by the defendant.   For instance, Aneesh from the Kattunaika community (aboriginal community in Wayanad in Kerala) was charged under the POCSO (Protection of Children from Sexual Offences) Act for marrying a girl below 18 years and having sexual intercourse with her while child marriage is a common tradition in their tribal culture and community. Thus, culture creates a unique problem for this defendant as he has not internalized the moral values imposed by the majoritarian cultural law and the majoritarian law is oblivious of the indigenous customs of his community. The cultural defence thus operates on the premise of cultural pluralism and necessitates that a defendant from a minority culture not be penalized merely for being “different” from the majority culture.  Melissa Demian elaborates on the work of Leti Vopp and Alison Dundes who suggest that the moral reasoning of individuals is based on their upbringing. They argue that the cultural environment forms an impressionable part of their upbringing and that an individual’s actions are categorically cultural.   

How does culture influence behaviour?

The term “culture” was coined in 1871 by the anthropologist E.B. Tylor who described culture as the complex whole which would encompass art, morals, knowledge, belief, custom, law and other abilities that are acquired by men in societies. Swidler understood it as a toolkit of meanings using which people make sense of their lives and how it pushes people to choose certain tools over others. Robert Le Vine explained it to be a shared organization of ideas including the moral, aesthetic and intellectual standards prevalent in the community and the meanings of communicative actions. These definitions suggest that culture has a notion of community and has the capacity to shape a person’s worldview. Sociologists like Robertson suggest that evaluations of cultural variations make the correlations between the universal and the particular in a specific historical context more clear. Perhaps such an evaluation in the legal context is necessary to demarcate why people belonging to particular cultures might be deprived of the “universal” understanding that law has. 

Sherry Ortner proposed a continuum with regard to how culture can be a determinant of behaviour. Soft/External theorists occupy one end of the spectrum and argue that culture has a minimal role to shape the behaviour at the time of its occurrence and that we use culture to legitimize behaviours. In opposition to the soft theorists, the hard/internal theorists propose that cultural schemas get deeply ingrained in an individual’s identity as a consequence of growing up in a cultural background and due to practices that embed the schema within the idea of self. In this sense culture through myths and by being a system of symbols provides moral standards and a worldview. If one views culture not in terms of these fixed binaries of external and internal but as an overlapping social structure which interacts with individuals, the importance of a cultural defense becomes clearer. For instance, A 60 year old man from the Pardhi tribe was arrested for allegedly hunting 108 teetars (partridges) in Kota, Rajasthan. Under the British rule, the Pardhi tribe was criminalized in 1871 and were classified as “denotified” post independence and therefore are still stigmatized. Due to a lack of educational and employment opportunities, discrimination, abject poverty, social ethics the Pardhis are still compelled to hunt for food.  Hunting has been a livelihood activity for this community with a nomadic lifestyle. Thus, the cultural heritage that an individual belonging to a Pardhi tribe carries, directs them to make internal and external meanings of the act of “hunting” very differently from an individual who is brought up in an urban, upper class/caste culture. This variation is important to note in order to acknowledge the pluralistic nature of culture itself.           

Oppositions to the Cultural Defense 

Opposition to cultural defense has come from some anthropologists, feminists and conservative legal theorists in cases involving violence against women and children where the anxiety has been that the cultural defense has been misused to legitimize abuse of women through the use of anthropological expertise. However, others have pointed out that it has been used most for immigrant women involved in child abuse. Furthermore, anthropologists have asserted that “culture” might be interpreted very differently in courtrooms as compared to the anthropological understanding and whether at all it can override a person’s capacity to conform to the state’s law. The fictional quality of the cultural defence- “revealing” culture to distinguish “cultural” actions and intentions from “non cultural” ones has also been questioned. The traditional resistance to the cultural defense has come from the opinion that it would place cultural norms and beliefs above the law and would give more privileges to the defendants from the minority culture than other defendants and would also hold the risk of balkanizing the criminal justice system. The problem with such a critique is that 1) it does not acknowledge how law itself is culture, power and hegemony and 2) that the defense allows to illustrate the individual’s state of reasonableness, intentions, state of mind, presumption of facts, experience of provocation, extenuating or mitigating circumstances which are factors allowed to all defendants. These oppositions however do pave way to address the need to delimit the cultural defense to avoid its generalized misapplication and misuse.       

Delimiting the Cultural Defense and related challenges

The cultural defence raises the question of whether the routine admissibility of cultural evidence will lead to different measures of accountability for different communities and groups. Rentlen observed that it was immensely difficult even to identify the cases where the issue of culture was central. For this purpose, it is pivotal to delimit the Cultural Defense in order to ensure its use in Court better. Renteln argues that the three criteria that are mandatory in deciding if the defendant can opt for a cultural defence are: a) whether they belong to an ethnic group b) Does the defendant’s community have the tradition that the litigant claims? c) Was the defendant influenced by that tradition when he or she acted? Renteln’s further suggestion of principled limitations on the cultural defence includes that it be imposed only on identified bona fide ethnic minority groups and not on subcultures. 

Kay Levine who offers a sociological perspective on cultural defense strategies classifies three strategies for cultural defense- cultural reason, cultural tolerance and cultural requirement. Levine states that a cultural defence will be able to mitigate responsibility when the act is done according to the cultural heritage and tradition in “good faith belief of propriety”. Second, the defendant must be able to explain that their act was reasonable as per their culture and that they were unable to disrespect their cultural prescriptions. Even if the act caused harm to the victim, the idea is to argue that the defendant’s native culture tolerates this harm as part of the culture. Degree of assimilation- (the time spent by the defendant for residence, employment and education in a place), identifiability (the attributes that gives an ethnic group its identity and help in distinguishing it from other groups) and self containment (the amount to which an ethnic community is physically segregated from other communities) have been identified as determinants of reasonableness of the defendant’s actions. Thirdly, the defendant will have to prove that their behaviour was in tandem with existing cultural practices.

While these delimitations can ensure in preventing the potential misuse of such a defense by a defendant from the majority culture, they do not address the complex nuances of overlaps of power structures within a marginalized group. For instance, women and children within an identified minority group (who are doubly oppressed) and victims of violence by the men in that minority group.   

Where to use the Cultural Defense?

The cultural defense, instead of a separate defence can also be accommodated in traditional defenses. There have been differing opinions about the precise applicability of the cultural factors in legal defences but there has been an agreement that it can be used to assess the mens rea (an individual’s “state of mind”) through legal defenses termed as “excuses” to distinguish whether or not a crime /degrees of crimes (for eg. degrees of homicide) occurred. Renteln suggested that the use of cultural information as an excuse would depend on its comprehensibility and will require cultural knowledge. The applicability of cultural factors in the formulation of a defense may vary depending upon jurisdiction and offense. Scholars like Sikora responding to the debates regarding cultural defence suggest that instead of a separate defence at a trial stage, cultural circumstances be submitted in the sentencing stage as mitigating factors so that they don’t have implications on guilt but on blameworthiness and culpability of the defendant. Renteln posits that admissibility of cultural arguments should be relevant to most legal cases involving ethnic minorities, but to recognize the role as mitigating rather than to eliminate criminal responsibility. Since the “culture” inhabits almost all spheres of our worlds, it is necessary to delimit the idea of cultural defense for a better application in the courts. Yet it is not easy to delimit this notion considering the cultural diversity in India.

Cultural Defense in a multicultural country like India 

Magnarella, while addressing the problem of cultural defense in the US, argued that “In the United States the reasonable person constitutes a reification of a human being of ordinary capacities fully socialized in middle class American culture.” In India, this idea of an ideal reasonable person would be closer to an individual socialized in middle class, Hindu upper caste culture due to the Brahmanical nature of the law and thus the law would construct the “idealized observer” of reasonableness based on these stereotypes. Scholars note that India is a multireligious, multiethnic, multi caste, multi language country and India’s history and traditions have been long informed by the concerns of multiculturalism. India has seen rising ethnic conflicts due to the excesses of modernization and a homogenizing trend of the modern State.   Considering the nuances and multiplicity of differences in India, how do we arrive at a unanimous universal category of a culturally marginalized community? Considering the principle of individualized sentencing would be necessary to understand the cultural marginality from different standpoints. Sociologists like Khare claim that in a pluralistic society like India, ‘law’ becomes a complicated category of interrelationships and concepts and thus needs to be approached from as diverse perspectives as possible. Amy Guttman asserted that recognizing and treating members of some groups as equal requires public institutions to acknowledge rather than ignore cultural particularities and this is in line with a certain universalism that recognizes cultural dimensions as basic interest of individuals. Public institutions need to take into consideration the cultural multiplicity and diversity to inform constitutionalism. 

Sikora summarizes the principles of individualized justice and fairness, lack of deterrent value of those who would use the defense, better accuracy of cases as arguments for the need for a cultural defence. Sikora further highlights that public policy in culturally diverse societies justifies the demand for individuals to use a cultural defense and that it is required to put defendants from a minority culture in an equal place as members from the dominant culture. Not only this but since the crime is culturally motivated, Sikora suggests that punishment will be ineffective as a deterrent. Sociologists suggest that the state and the law are institutions that adopt and normalize particular cultural claims that lead to the exclusion of others while making them universal. In this context, it is significant to understand the relationship between State institutions and majority cultural norms. The risk is that asking the question of “can an individual be as culpable as a whole community for an act?” might come at the cost of criminalizing a whole community. This highlights to us the inappropriateness and loopholes in criminal law itself to address the issue of social reforms and the potential expansions it needs to address these concerns better. 

Conclusion 

The Cultural Defense is a legally sensitive way to accommodate defendants belonging to an ethnic minority culture better within the ambits of criminal law. Since the law often creates a majoritarian “universal”, the cultural defence can be an efficient tool to ensure that individuals from a minority culture are set on an equal footing as defendants from majority cultures. Due to the lack of a legal doctrine on the Cultural Defense, cultural defence arguments and cultural evidence are often deemed “irrelevant” by the courts. Hence, it is pivotal to delimit it for a better application in courts. Multiculturalism in India poses particular challenges to delimiting this defence, yet the public policy and the idea of individualized justice can be a good ground which can facilitate efficient solutions to these challenges. 

Shwetha Gopalkrishnan is a part of the Mitigation Team at Project 39A.