| In Defense of Culture: When is it a viable legal strategy? |
| Part 1 |
| By Heidi M. Pascual |
| When Asian American lawyers Yer Vang and Carmel Capati started talking about culture and tradition as important considerations in legal defense, they were not just feeling personally involved because of their respective ethnicities: Vang is Hmong American; Capati is Filipino American. The main issue, on which the two seemed to agree -- because they were brought up and educated in the leading democratic nation of the world -- is whether or not culture should be seriously considered and how should it be weighed, if true justice in the legal system can be achieved in certain cases. After all, as a nation of immigrants, the United States is made up of various cultures and traditions whose values ended up in laws, rules, and regulations. Vang and Capati wanted to start a discussion -- and they did. With the support of various organizations, notably the Wisconsin Asian Bar Association and the Wisconsin Organization of Asian Americans, a forum and workshop on the subject was conducted on November 10 at Edgewood College's offsite campus in Madison. It was attended by more than 50 participants, most of whom were community advocates and lawyers. Dr. Alison Dundes Renteln of the Department of Political Science, University of Southern California, and author of the book "The Cultural Defense," was the keynote speaker. Community lawyer Ronault "Polo" Catalani and community activists Peng Her and Mai Zong Vue also led workshop discussions throughout the day. Asian Wisconzine would like to share with our readers the gems of thought we gathered from Renteln's presentation. |
| "When in Rome, do as the Romans do" |
| Dr. Alison Dundes Renteln started off with her upbringing, describing her father as a professor of folklore at UC Berkeley for over 40 years, whose folktales and proverbs influenced her greatly to be interested in cultural differences. In addition, growing up in Berkeley during the 1960s, she became interested in civil rights and human rights. "When I started to research on the cultural defense, I would find that people were automatically resistant to the idea that one should take culture into account," Renteln explained. "People would say 'When in Rome, do as the Romans do.' So the basic purpose of my research is to challenge this adage -- which I call the mono-cultural paradigm. And it seems to me that there are two possible models of public policy: one is the model of forced assimilation. In most legal systems, especially in the United States and France, connotes conformism so that's one model of public policy that the law should accept everyone to become assimilated. That's the model that operates in most systems to varying degrees. The other possible model is the model that tries to accommodate people, a model of cultural accommodation, and some people use as a metaphor ... and so on, but the idea is that to the greatest extent possible, legal systems should try to accept people's different ways of life." |
| Defining "culture" |
| Renteln differentiated between "culture" as it is defined in other fields, and in the legal sense. "People in Sociology often talk about high culture, which would mean poetry, drama, and so forth. Sociologists also study popular culture or mass culture: television, the Internet, comic books, movies, things like that," she said. "When I'm talking about culture, I'm talking about traditional culture, that is the ways of life of the people, their folklore, their traditions." She cited one definition of culture that was put forward at Yale University in the '40s by George Peter Murdock, called the Outline of Cultural Material, as part of the human relations-area files, delineating different elements of culture. Some 15 pages of categories of culture in this file included language, food consumption, clothing, agriculture, tools, labor, family, law, war, death, religious beliefs, sex, infancy and childhood, property, and so on. / She, however, decided to adopt the UNESCO definition. "I use the basic definition of culture from UNESCO: 'Culture is the dynamic value system of learned elements with assumptions, conventions, beliefs, and rules, committing members of a group to relate to each other and to the world, to communicate and to develop their creative potential.'" Renteln repeated it for emphasis and asserted, " I think what's interesting when one studies cultural differences is that members of ethnic minorities are always required to justify their traditions, whereas members of the dominant culture are allowed to have their practices and not required to justify them." Following cultural practices may not be bothersome to the dominant culture, in gatherings such as weddings, birthdays, etc, but Renteln observed that they may be, when one enters the legal system. "It's only when a tradition clashes with the law, then this custom comes under scrutiny," she emphasized. "And then the member of the ethnic group or the group as a whole is required to justify: 'Why do you do that?' 'What is the basis for that tradition?' I think it's unfair, because very often Americans wouldn't be able to explain why they follow their traditions. They wouldn't be able to explain, for example, the significance of the bride throwing the bouquet at the end of a wedding. But nevertheless, minorities are expected to justify their tradition." |
| Clash of culture and law |
| To give her audience a concrete example, Renteln talked about a case involving a Sikh priest from India. "Sikhism is a very ancient religion, and [Sikhs] are required to wear various symbols, one of them is the kripan," Renteln narrated. (A kripan is a "small sword.") The police arrested Mr. Singh because he was wearing a kripan and there's an ordinance in New York that bans carrying a blade, exposed or unexposed, in a public place. The judge in this case faced the question of whether or not this Sikh priest would be allowed to wear the kripan as he did. Renteln threw the question to her audience. "How many of you would convict him for violating the ordinance? Dismiss the case?" Renteln asked. The reactions were varied. "Your reaction reflects the typical reaction on the part of judges and the juries, too in some cases -- there's an ambivalence," she observed. "On the one hand, there's a feeling that the law applies to everyone; on the other hand, there's an understanding that this person is carrying a religious symbol, from his point of view, and it's not a weapon which this law is meant to cover. And so in this case, the judge dismissed the case, saying it's against the interest of justice to proceed with the prosecution. He did say, though, that the right to religious freedom doesn't cover the right to wear a kripan. That there's a belief and distinction in constitutional law: religiously motivated conduct is not protected by the First Amendment. So you have the right to believe whatever you want 100 percent -- that's an absolute right -- but the right to act on your belief, to practice your belief, that's not covered by the First Amendment ... so despite that the facts that the religious presence didn't so much weigh in on this case, the judge nevertheless dismissed the case. It's pretty clear from the footnote in that case that the judge thought that if this priest would come in his court again, that he would not be so lenient. Because this is a case of first instance, the judge was willing to be lenient. But now that this person has been given warning that wearing a kripan is considered illegal, he should not go out in public wearing his kripan in the future." |
| Misuse of the cultural defense |
| When her audience raised the notion of possible misuse of the cultural defense, Renteln agreed and discussed further. "There's a concern that there'll be a misuse of the cultural defense or a religious defense by groups that purport to be religions which aren't religions. That might be one possibility," she said. "There's also, I think, a fear on the part of some people that some might masquerade as a member of a religion or might pretend 'I'm a Sikh' and try to carry the kripan, or ' I can smoke marijuana. It could be that some people would be driven to do this. I haven't heard of any cases where it's happened, but it's theoretically possible." To Renteln, the courts are reluctant to allow cultural defenses because they don't know much about the world views of other people. "I think that most judges, in my experience, know very little about any cultural group even those where there are large members of that community living in their jurisdiction," she stressed, but added that basically there's a presumption that 'When in Rome, do as the Romans do." |
| Defining "Cultural Defense" |
| they maintain that they are not to be held responsible for violating those laws. "The basic idea is the court should allow evidence of a person's cultural background in court, and that means the social workers, and police, and teachers -- those who work with different communities who may be involved in disputes -- need to be able to record the information that relates to their tradition and cultural belief so that the court will have the possibility of evaluating what has transpired. So it's not only the judges who will have to consider cultural factors. The information will have to be part of the record and so those involved in cases should they note of what information is being conveyed to them before they reach the court. The idea that cultural evidence should be used in the legal system requires a relativistic understanding of criminal justice. So in terms of the ethics that we're discussing today, one has to be willing to entertain a relativistic notion of justice -- that there are different ways of behaving, that there are different codes of conduct for different ethnic communities. If one has to view that everyone should behave the same way everywhere, an absolute notion of morality or justice, then there is no real room to look at cultural differences, because there is only one correct way to behave." |
| Part 2 will continue Renteln's exploration of the cultural defense strategy and workshop discussions lead by Peng Her, Mai Zong Vue, and Polo Catalani. |
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| Dr. Alison Dundes Renteln is the keynote speaker |
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| (Above) Atty. Carmel Capati and Dr. Alison Dundes Renteln; (Below) Participants listen to Dr. Renteln's presentation. |
| "A cultural defense is a defense that's raised by the individual to explain their behavior when they're prosecuted for following something that's part of their way of life," Renteln said. "In my published work, I define the cultural defense as follows: The cultural defense is the defense employed by individuals to claim that their culture is so ingrained that it predisposes them to certain actions, actions which conflict with the law of their new homeland. As a consequence, |
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