By: Jinghui Vivien Wang
Due to the massive influx of immigrants, particularly from Asia and the Middle East to the United States, the criminal justice system has been facing a dilemma. The “cultural defense” is the claim that courts should consider relevant features of an immigrant defendant’s cultural background when ascertaining guilt or determining the appropriate penalties. The dilemma is whether United States courts should permit an immigrant defendant to use his culture to negate or mitigate his criminal liability. Defense attorneys use cultural background as a partial defense to demonstrate that the defendant is less culpable while committing the crime, and thus deserves a lesser charge. Because the defense is an unofficial one and a limited one, the application of this concept from judges across the United States varies widely. Although criminal law is a matter of state law, such variation is unusual and deserves our attention.
Typically, male defendants have been more successful in asserting the culture defense, in a number of cases involving different types of crimes. For example, in People v. Chen, the defendant, a Chinese immigrant, bludgeoned his wife to death with a hammer because of her alleged infidelity. Chen’s attorney argued that his client’s culture provoked him into an extreme mental state, which left him with the inability to form the requisite mens rea for premeditated murder. In delivering the sentence, the judge characterized Chen as a victim of society because of society’s failure to stop him from killing his wife in time and its failure to appropriately assimilate him into the American culture. In another homicide case, People v. Aphaylath, a Laotian refugee, who was living in the United States, was convicted of murdering his wife. The defense attorney attempted to present testimony of experts of Laotian culture to support the claim that the stress associated with assimilating into the American culture contributed to the defendant’s extreme emotional disturbance. Although the trial court in Aphaylath refused to allow expert testimony, the appellate court reversed that decision and permitted the expert testimony.
The cultural defense has also been asserted in non-homicide cases. For example, in People v. Moua, where the defendant allegedly had sex with the victim without her consent but in accordance with Hmong’s marriage by capture ritual, the trial court judge dismissed the kidnapping and rape charges, and allowed the defendant to plea to the misdemeanor charge of false imprisonment. The defendant claimed that he honestly believed that the victim was consenting to his sexual advances. The judge only sentenced the defendant to ninety days in jail and ordered the defendant to pay one thousand dollars to the victim’s family.
Cultural defense has also been used in the context of honor killings, in which the male family member killed a female family member due to the belief that female acting with certain behaviors would dishonor their family. The use of cultural defense has been specifically tied to defendants from the Middle East, where the culture does not tolerate younger girls or women disobeying older male family members. In Rashid v. State, the victim, a Pakistani young woman, was killed by her father because she wanted to end the family arranged marriage.
Although less common, female defendants have also asserted cultural defense and the courts have been more reluctant to allow it. For example, in Nguyen v. State, a woman from Vietnam appealed from the conviction of shooting her disrespectful and abusive husband and stepdaughter after he said that his wanted to divorce her. The appellate court decided that the trial court correctly excluded cultural evidence provided by the defendant. Although the cultural defense has been accepted in other cases involving male defendants with similar facts, the court excluded her use of the defense. In United States v. Natal-Rivera, the defendant appealed her sentence of fifty-one months imprisonment after pleading guilty to one count of distribution of cocaine. The court rejected the defendant’s argument that the Federal Sentencing Guidelines were unconstitutional due to the lack of consideration of the defendant’s cultural background. Compared to the cultural defense cases invoked by male defendants, cases involving female defendants appear harder to grasp because in these opinions there are only little mentions of why the cultural background is relevant to the defendant in the case.
Defense attorneys often use the cultural defense for charges related to domestic violence, highlighting the extreme differences present between modern American culture with respect to women, children and the family unit compared to attitudes of other cultures. In the United States, people have worked hard to change the way the legal system reacts to violence against culturally disadvantaged groups, particularly women, and allowing cultural defense is a huge drawback.
 See Mark R. Thompson, Immigrants Bring the Cultural Defense into U.S. Courts, Wall St. J., June 6, 1985, at 26, (reiterating the statistics produced by the U.S. Census Bureau that most notably by the mid-1980’s there were approximately four million noncitizens living in the United States).
 See Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911, 941 (2007) (noting immigrant defendants might have different culpability).
 See Carolyn Choi, Note, Application Of A Cultural Defense In Criminal Proceedings, 8 Pac. Basin L.J. 80, 83 n.38 (1990) (noting that Asian immigrants are more likely to use cultural defense than immigrants from other cultures).
 See Alison Dundes Renteln, The Cultural Defense 18 (2004) (discussing that a jury, in light of the cultural background, might even acquit the defendant if the cultural defense negates the intent element of the crime).
 See Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911, 941 (2007) (emphasizing that the lack of written rules results in too much discretion on what defenses to permit).
 See Cynthia Lee & Angela P. Harris, Criminal Law 5-6 (3d ed. 2014) (discussing the difference between common law jurisdiction and Model Penal Code jurisdiction while agreeing that a certain level of consensus exists).
 See id. at 23-27 (demonstrating different cases in homicide, children, drugs, and marriage cases where the male defendant invoked cultural defense).
 See People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Mar. 21, 1989) (noting that Chen later admitted that he and his wife had been separated for a period of time prior to her death).
 See id.; see also Taryn F. Goldstein, Comment, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a “Cultural Defense”?, 99 Dick. L. Rev. 141, 153 (1994) (outlining additional facts and arguments from the Chen case).
 See Leti Volpp, (Mis)Identifying Culture: Asian Women and the “Cultural Defense,” 17 Harv. Women’s L.J. 57, 71 (1994) (noting the Judge’s strong feelings that society failed to stop Chen and that it was a result of the chasm between American and Chinese culture).
 See People v. Aphaylath, 502 N.E.2d 998, 999 (N.Y. 1986) (explaining defense counsel’s argument that the defendant was under extreme emotional disturbance at the time of the crime).
 See id. (noting that pursuant to Laotian culture, the defendant’s wife receiving phone calls from an unknown male would bring shame to the defendant and his family).
 See id. at 1000 (overruling the trial court’s decision, which was determined by experts that had have no personal knowledge of the defendant, but did not specify why the decision was unsound).
 People v. Moua, No. 315972 (Fresno Super. Ct. Feb. 17, 1985) (acknowledging the fact that a defendant used the defense where he allegedly abducted a Hmong woman and sexually assaulted her despite her protests).
 See Moua, No. 315972 (presenting the judge’s concern of cultural background); but see Malek-Mithra Sheybani, Comment, Cultural Defense: One Person’s Culture Is Another’s Crime, 9 Loy. L.A. Int’l & Comp. L.J. 751, 752 (1987) (highlighting the fact that such a marriage by capture ritual is unusual even among immigrants).
 See Mazna Hussain, Note, “Take My Riches, Give Me Justice”: A Contextual Analysis of Pakistan’s Honor Crimes Legislation, 29 Harv. J.L. & Gender 223, 225-26 (2006) (identifying that in the United States, Pakistani immigrant defendants’ typical argument is due to the indignity associated with the provocative behavior from the female family member).
 See id.
 See generally Rashid v. State, 737 S.E.2d 692 (Ga. 2013); Dad Charged With Murdering Reluctant Bride, Cnn (July 9, 2008), https://www.cnn.com/2008/CRIME/07/08/honor.killing/ (introducing background information of how the defendant had conflicts with the victim for a long period of time because of her attitude towards the arranged marriage).
 See Nguyen v. United States, 520 S.E. 2d 907, 930 (Ga. 1999) (finding that the evidence surrounding her cultural background was properly excluded, without explanation of why it had no effect on the case).
 See People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Mar. 21, 1998) (allowing a cultural expert to testify in court as a means of asserting the cultural defense by the male defendant); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)(ruling that judges have broad discretion in allowing experts to testify in courts).
 See United States v. Natal-Rivera, 879 F.2d 391, 392 (8th Cir. 1989); see also 21 U.S.C. §§ 841(a)(2), (b)(1) (2000) (addressing the fact that national origin is not a factor that is considered during sentencing).
 See id. at 393 (stating that no constitutional issue is involved in failing to attribute cultural background as a factor to be considered during sentencing).
 See Nguyen v. United States, 520 S.E. 2d 907, 930 (Ga. 1999) see also United States v. Avila, Nos. 90-30221, 90-30385, 90-30386, 90-30401, 1992 WL 75236, at *1-3 (9th Cir. Apr. 16, 1992).
 See Catherine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1296 (1991) (comparing cultures in which the social norm for women is being submissive to the more developing role of women in the United States).
 See id. at 1297 (demonstrating feminists’ hard work to promote sexual equality for women with all cultures).