A taxi driver refuses to pick up a blind woman with a companion dog. The driver is sued for discrimination, and explains that, as a practicing Muslim, he does not want a dog, which he considers unclean, in his vehicle. Should the driver's religious rights be taken into consideration by the court?
What about the victim of sudden nocturnal death syndrome on whom a medical examiner performs an unauthorized autopsy? Do the child's parents, who are Hmong refugees, deserve additional compensation for emotional distress because they believe that mutilation of the dead threatens the chance of reincarnation?
"The underlying philosophical issue is what equal protection of the law means in a case involving a cultural defense," explains Alison Dundes Renteln, USC professor of political science and anthropology. "Does the idea of equal protection require identical treatment? Sometimes you have to treat people differently in order to treat them fairly."
In her forthcoming book Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (Hart), Renteln and co-editor Marie-Claire Foblets of the University of Leuven, Belgium, provide the first comparative analysis of how culture is treated in a range of legal systems, including both common law systems that rely on precedent and civil law systems that use a set of codes.
"Basically, there is no country that has an official cultural defense," Renteln says. "People who reject this policy think everyone has to be treated identically. But the law does make certain distinctions: we take into account whether the person is adult or juvenile, if the person is mentally ill, or if he is a repeat offender."
Multicultural Jurisprudence, to be released in January 2009, offers arguments both for and against the accommodation of culture in the legal process. In her chapter, "The Use and Abuse of the Cultural Defense," Renteln seeks to delineate legitimate uses of the cultural defense from egregious misuse, proposing three conditions that, if carefully considered, should reduce the number of false claims.
1) Is the litigant a member of the ethnic group?
2) Does the group have such a tradition?
3) Was the litigant influenced by the tradition when he or she acted?
For example, in 1996 a group of Rastafarians were busted in a multimillion-dollar marijuana sting. Assuming the defendants really were members of the religion, the cultural defense might be raised for a charge of simple possession. However, as Renteln notes, the conspiracy to distribute, possession with intent to distribute, and money laundering are hardly established parts of Rastafarian religious ceremony.
"Just because you're an advocate of something doesn't mean you want it used in a careless way," says Renteln, who has been an in-demand speaker since the publication of her book The Cultural Defense (Oxford, 2004), presenting at this year's meetings of the American Bar Association, the National Association of Women Judges, the North American South Asian Bar Association and the California Judges Association.
Other chapters in Multicultural Jurisprudence argue against the use of the cultural defense. Among these are essays by Renteln's former students.
Sylvia Maier, who received her Ph.D. from USC and now teaches at NYU, writes about honor killings in Germany. In the German legal system, a crime is classified as murder rather than as manslaughter if it involves a "base" motive, according to Maier.
As recently as 2002, German defense attorneys successfully argued for a reduced charge of manslaughter in a case involving a Turkish man who stabbed his wife to death for wanting to divorce him. They argued that the desire to restore one's honor is not a base motive in many communities and indeed may be required by a religion or particular culture.
According to Maier, the German Parliament is now debating a bill that would classify all honor killings automatically as murder, with the prospect of a life sentence as true deterrent.
Renteln says this sort of ad hoc treatment of cultural defense cases is not uncommon: "Every time a legislature has dealt with this they usually just ban the custom," she says, "but there isn't a conversation about whether we should accommodate culture as a general policy matter."
Renteln has also examined culture in court cases involving Westerners. In the January/February 2009 issue of the journal Judicature, Renteln writes about people raised in North America or Europe who are immigrants or foreigners in other countries, inadvertently violating laws and social norms. Should American values be taken into account in foreign court cases?
In July 2008, two British expatriates in Dubai were arrested for what they claimed was kissing on the beach after a few drinks at a champagne brunch. The couple was convicted of sex outside of marriage, public indecency and drunkenness. They were sentenced to three months in prison, though their sentences were later suspended.
"We pretend that culture doesn't matter, but I think everyone knows that your culture does influence you," Renteln says. "It doesn't mean you're programmed, but you are predisposed to act in certain ways. If you hear a swear word, you react. But if you'd never heard the word before, you wouldn't be offended."
Federal laws in many countries prohibit introducing a person's race or ethnicity to the court as these facts have historically been used to prejudice juries. As Renteln explains, a jury might be more inclined to convict a person of theft in the absence of compelling evidence if they are told the person is a "Gypsy."
But it is unclear whether laws that ban race and ethnicity also prevent the consideration of culture and religion, especially in instances where it might help lessen a sentence.
"The risk in calling for a conversation that might lead to national policy is that we might end up deciding that the accommodation of culture is never appropriate," Renteln says. "But the system as it operates now without any clear guidelines is arbitrary and capricious. In the absence of coherent policy, people are subject to the whims of the judge, and that is really not fair."
Marie-Claire Foblets and Alison Dundes Renteln (eds), Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (Oxford, Hart, 2009).