Criminal Defense of Immigrants


§ 3.59 (B)

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(B)  Areas of Relevance.  Cultural differences can have a profound effect on assessment of criminal liability and sentence in a number of important areas:


                (1)  Child Care and Abuse.  Folk remedies and practices can leave scars on children which can be mistakenly considered by U.S. doctors to be evidence of physical child abuse.  Some of these remedies may actually harm the patient.  In Mexico, for example, weight loss may be considered a result of a fallen fontanel, or mollera caida, for which a folk remedy is holding the baby upside down and shaking it, which can cause brain damage.  Certain child-care and disciplinary practices normal in other societies are frowned upon in the United States.[177]  Infanticide, of course, cannot be condoned, but culture may offer some mitigation.[178]  Some sexual contact with children may be seen as normal in other societies.[179]


                (2)  Domestic Violence.  Other societies may tolerate levels of domestic violence that would be considered criminal offenses in the United States.[180]  It may be quite risky to introduce this type of evidence, but it may be important to assist participants in the U.S. criminal system to understand that this behavior is regarded as normal in other cultures, and this may result in mitigation if the defendant has not been present in the United States long enough to learn our ways.


                (3)  Family Structure.  In some immigrant contexts, men may fairly commonly have two families: one in the U.S., and another in the country of origin.  This may not be taboo in the home country, and thus not immoral under the client’s culture.


                (4)  Honor.  Many countries believe it is appropriate, even necessary, to defend honor with violence.


                (5)  Intoxication.  In some countries, occasional drinking, even to the point of extreme intoxication, is expected and accepted, and the intoxicated are generally considered less responsible for their behavior.  Different societies may consider drinking to include only hard alcohol, and exclude beer.  It is important to be concrete in asking questions about the amount and type of alcohol consumed.


                (6)  Marital Habits.  In other countries, it may be commonplace for men to marry women or juveniles much younger than themselves, whereas in the United States, any sexual contact with people so young is regarded as a very serious offense.


                (7)  Dress.  In the U.S., conduct that may be intended as merely friendly, or a type of dress that is merely casual and comfortable (for example, tank top and shorts in summer) may to people from other societies be taken as an expression of willingness or consent to sexual intercourse.  In one case, two young women accompanied some Cuban men to their apartment late at night to smoke marijuana.  The defendants testified they thought the women consented to have sex with them.  Although the convictions and sentences were affirmed on appeal, a concurring justice believed the culture of the defendants to be relevant to sentence.  “Perhaps, in his culture, such conduct at such an hour would be widely interpreted as an invitation to play sexual games by willing players . . . eighty years of a person’s life is a high price to exact for acts which may have been set in motion by misjudgment about the mores of a new culture, and misreading the signals of its women.”[181]


[177] Futterman, Comment: Seeking a Standard: Reconciling Child Abuse and Condoned Child Rearing Practices among Different Cultures, 34 U. MIAMI INTER-AM. L. REV. 491 (Summer, 2003) (three views on the use of culture as a defense: complete defense, partial defense, and no defense; Part II focuses on Mexican culture in relation to children).

[178] Wu, Comment: Culture Is No Defense For Infanticide, 11 AM. U.J. GENDER Soc. P0L’Y & L. 975 (2003) (takes an unsympathetic view towards culture as mitigation or a defense, but includes a good recent survey and analysis of relevant caselaw and includes an interesting historical overview of infanticide).

[179] Brelvi, ‘News of the Weird’: Specious Normativity and the Problem of the Cultural Defense, 28 Columbia Hum. B. L. Rev. 657 (1997) (discusses the Krasniqi case, in which an Albanian Muslim was unsuccessfully prosecuted but his children were taken away from him and his wife and given to a Christian family to adopt, when he was seen touching his daughter at a sporting event in a manner accepted in Albania but considered molestation here).

[180] M. Ramos, Cultural Considerations in Domestic Violence Cases: A National Judge’s Benchbook (Michael W. Runner, ed., Family Violence Prevention Fund 1999).


[181] State v. Curbello-Rodriguez, 351 N.W.2d 758, 770 (Wis. 1984).



Lower Courts of Ninth Circuit

United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007) (granting motion to withdraw guilty plea where Rule 11 violation occurred because defendant was prevented, through cultural mores, from interrupting his attorney during the guilty plea phase, and defendant did not understand the nature of the charges against him, or the immigration consequences thereof, until he was later able to read a Chinese translation of the plea agreement).


A. Renteln, Raising Cultural Defenses, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 423 (2d ed. 2007).
Alison Dundes Renteln & Marie-Claire Foblets, eds., Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (2009).