Document Type

Article

Publication Date

January 2006

Abstract

INTRODUCTION Strictly speaking, the cultural defense is really no defense at all. Instead, it is the moniker attached by defense attorneys to their advocacy which seeks to personalize the accused in one of two ways: First by injecting a reasonable doubt into the mens rea intent requirement - this would result in acquittal, or second, by contextualizing an affirmative defense, like provocation, by the provision of cultural information about the accused - this would result in mitigated sentencing. Central to defense attorneys' uses of the cultural defense is the criminal defendant's perceived "foreignness." This much has been recognized by scholars who have been engaged with the cultural defense.' This ascribed "otherness" is a central pivot around which the so-called cultural defense, and the controversy surrounding its use, revolves. Ascribed otherness entails a certain judicial anthropology,2 as defense attorney advocacy is informed by a study of human cultural variation which is from a Western normative cultural position. Adopting the role of neutral observer, the courts explore the foreign culture of the accused in the hopes of gaining an understanding of the criminal behavior in issue. Essential to this inquiry, however, is the assumption of a normative starting point - white Anglo-American (cultural) norms are the unspoken starting point from which the cultural variations of the accused diverge and are assessed. This cultural anthropology is investigated by the courts as a way to critically enhance the judicial decision-making process. In assessing the criminal culpability of the accused as "other," the essential normative project3 of Anglo-Americanism is not only racialized, but "culturalized" as well. While in some cases, American courts prefer to proceed in a colorblind manner, as if race and culture are irrelevant, in the instance of the cultural defense, these identity constructs are explictly foregrounded. This racial project might be otherwise innocuous, but for the fact that it "create[s] or reproduce[s] structures of domination based on essentialist categories of race."

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