By KARLA WALKER
In state and federal courts across the country, parties are pleading the “cultural defense,” invoking the customs and traditions of their homelands to explain their actions. Increasingly, lawyers and judges are giving credence to the ways in which culture plays a role in civil and criminal cases.
To examine this issue, the Law Library hosted a public program on May 3 titled “You Be the Judge: Cross-Cultural Issues in the Courts.” The program commemorated Law Day, established in 1958 by President Dwight Eisenhower as “a day of national dedication to the principle of government under law.”
The program featured a panel of cross-cultural experts, moderated by Jonathan Turley of the George Washington University School of Law. Panelists included the Honorable Delissa Ridgway, United States Court of International Trade-New York and chair of the American Bar Association’s National Conference of Federal Trial Judges; Dr. Mark J. Mills, nationally renowned forensic psychiatrist and professor at the Columbia University College of Physicians and Surgeons; and Rene L. Valladares, chief of the Trial/Appellate Division of the Office of the Federal Public Defender, Las Vegas, Nev.
The panelists presented more than a dozen vignettes from real cases that involved cultural issues, ranging from civil to criminal matters and touching on family law, negligence, civil rights, animal rights, kidnapping and murder. Audience members used handheld technology to “vote” on the outcome of these cases before being told how the court had actually ruled.
In a few instances, the audience vote was similar or identical to the court ruling, as in the 2005 case of Nischal v. Nischal. The father immigrated to the U.S. from India, while his wife and child stayed behind. When the parties separated, the father was ordered to pay child support in accordance with the Pennsylvania support guidelines. The father argued that payment pursuant to those guidelines would render the mother and child living in India “virtual millionaires” and asked the court to consider the cost of living of the average person in India. Following a panel discussion on the cultural argument, more than 70 percent of the audience voted that the father should continue to pay child support in accordance with Pennsylvania law. The court had reached the same conclusion, reasoning that the goal of child support guidelines is to ensure that children receive the same proportion of family income as if the parents had remained together.
The audience also agreed with the court’s verdict in the 1996 case of Marks v. Clarke, in which the Spokane, Wash., police searched a local group of Rom (gypsy) homes and their inhabitants on a faulty warrant. The Rom argued that, according to their culture, the search of unmarried Rom girls rendered them “marime” (“polluted”) and unmarriageable. They filed a civil-rights action seeking $59 million in compensation. Presenting the case for the panel, Judge Ridgway explained that marime is a very powerful concept in gypsy law. It involves permanent loss of status and respect and its implications range from social rejection to outright banishment from the community. While the majority of the Law Day audience members voted that the Rom were owed compensation, many agreed that $59 million was excessive. The court had reached a similar conclusion and in 1997 the City of Spokane paid the Rom plaintiffs $1.43 million to settle the case.
In several instances, the Law Day audience voted contrary to the court. The most striking of these was the 1985 case of California v. Kimura, in which a Japanese woman who had lived in America for several decades was tried for the murder of her two children. Panelist Rene Valladares explained that the defendant’s husband was involved in an adulterous affair. Believing herself to be shamed and disgraced, the mother felt the only honorable thing to do was to commit oyako-shinju (parent-child suicide) by drowning her children and herself in the Pacific Ocean. The audience voted overwhelmingly that Kimura’s conduct warranted a murder conviction of some degree and were surprised to discover that the court had actually imposed a sentence of five years’ probation with psychiatric treatment, and one year of jail time already served. The defense team had successfully argued before the court that even though oyako-shinju is illegal in Japan, the practice is still accepted. The defense team also presented the court with 1,000 signatures from other Japanese immigrants who could attest to this assertion.
Taken as a whole, the cases presented by the panel demonstrated the extent to which the “cultural defense” is having an impact in America’s courtrooms.
Karla Walker is a public programs researcher in the Law Library of Congress.