OverviewDefinition
The cultural defense is a legal strategy used some-
times in criminal cases in United States courts to
excuse, justify, or mitigate criminal conduct. It is
the admission of cultural evidence to explain the
behavior of the defendant. Most often the accused
is an immigrant, and in such cases the defense
lawyer argues that judges and juries must consider
such factors as “culture” when assessing the evi-
dence against the accused. This form of defense is
grounded in the argument that newcomers to the
United States may be insufficiently assimilated to
United States standards of conduct, and that for-
eign behavioral norms compel then to act outside
United States law. Thus the accused may have acted
under the influence of a particular custom or cul-
ture that is adverse to the standards of the host soci-
ety, and should be considered less culpable under
the law. The cultural defense seldom leads to an
acquittal of the accused. Instead, it is used to argue
for a mitigation of the penalty, seeking reduced
criminal charges and/or a reduced sentence. The
main point of the cultural defense is that people
who are foreign, when acting in accord with the
norms of their native culture, should not be held
fully accountable under United States law for con-
duct that conforms to the prescriptions and pro-
scriptions of the culture of their countries of origin.
While seemingly at odds with United States stan-
dards of individualized justice, the cultural defense
fits within the existing framework in criminal law
that assesses various degrees of culpability in con-
siderations of intention, knowledge, recklessness,
and negligence. United States courts recognize var-
ious defenses involving state of mind or diminished
mental capacity, such as the insanity defense or the
post-traumatic stress disorder defense. The cultural
defense is similar to these types of defenses in that
it recognizes how environment affects and defines
an individual’s rationality. The cultural defense
asserts a causal connection between environment
and law, and elaborates that connection in the con-
text of an individual defendant on trial. The essence
of the cultural defense in legal analysis rests on the
contextualization of the offense(s) with which the
defendant is charged, saying that the social system
must bear part of the responsibility for the crime.
Law: Cultural Defense
One type of cultural defense case involves a defen-
dant carrying out customs that are accepted in his
or her native land but outlawed in the United
States. The defendant’s argument is that “I may
have committed a crime, but back home it is not a
crime, and I should be judged by the laws of my
country of origin.” An example of this is the case of
Mohammed Kargar, an Afghani refugee, who was
convicted in 1996 by a state court in Maine on two
counts of sexual assault after he was reported to
have “kissed” his 18-month-old son’s genitals. It
was argued through expert testimony at a court
hearing that the act would have been considered a
customary show of a father’s affection for his child
in Afghanistan, with no sexual feelings involved.
Ultimately Kargar’s cultural defense strategy was
vindicated on appeal, as the Maine Supreme Court
vacated his conviction on the grounds that his con-
duct had not been envisaged by the Maine legisla-
ture when it had enacted the penal statute on sexual
assault. Kargar’s conduct, motivated by paternal
feelings and not by sexual gratification, was
deemed to be something outside the parameters set
by the law that criminalized sexually deviant and
harmful behavior. The highest court in Maine held
that “although it may be difficult for us as a society
to separate Kargar’s conduct from our notions of
sexual abuse, that difficulty should not result in a
felony conviction in this case” (State v Kargar, 679
A2d 81 [1996 Me. LEXIS 162] @ 85). However, the
court also stipulated that the defendant must now
know that the practice of genital kissing is prohib-
ited by law in the United States, regardless of the
motive. The Maine Supreme Court wrote, “Kargar
does not argue that he should now be permitted to
practice that which is accepted in his culture” (State
v Kargar, 679 A2d 81 [1996 Me. LEXIS 162] @ 85,
n. 5). The cultural defense was successful here
because it did not raise the specter of permanence.
Instead it conveyed the idea that assimilation is an
integrative process, and newcomers must abandon
questionable or offensive practices accepted in their
countries of origin and learn to conform to United
States legal and cultural standards. Kargar is not
criminally liable for his past conduct given his pres-
ent repudiation of the practice, even though the
conduct itself remains criminal. While the courts
may show mercy to defendants such as Kargar in
an early stage of their assimilation, it is argued,