The "Cultural" Defense

By Richard Lacayo

In Connecticut last April, with five friends from a Buddhist youth group assisting him, Binh Gia Pham doused himself with gasoline, flicked a lighter and exploded into flames. The 43-year-old immigrant was protesting attempts by the Vietnamese government to suppress Buddhism.

Pham's friends had recorded his death with video cameras, then promptly notified Connecticut police. "It was clear," says Sergeant Scott O'Mara, "that they did not think they had done anything wrong." The state saw things differently. All five were charged with second-degree manslaughter, for aiding a suicide, an offense that carries a maximum of 10 years in prison. Fortunately for the five, the judge ruled that Pham would have sacrificed himself "with or without" his friends and granted them probation.

New immigrants are often ignorant of U.S. laws, even as they hold tightly to values brought from their homelands. But business as usual in the old country can be a felony in the U.S.; conventional child-rearing practices there, for example, might be considered child abuse here. One result of the rising immigrant tide is the increasing use of "the cultural defense" -- legal shorthand for courtroom attempts to explain the actions of foreign-born defendants by invoking the mores and taboos of their native countries. Defense attorneys use the tactic in two major ways: to persuade prosecutors to reduce charges and to encourage judges to exercise leniency at sentencing.

Courts and prosecutors approach the matter with some puzzlement. In 1990 J. Tom Morgan, now the district attorney of DeKalb County, Georgia, decided not to press charges of child molestation against a South American woman suspected of stroking her male toddler's genitals, having concluded that "this is the way her culture taught her to put healthy young boys to sleep." Four years earlier, however, he had brought a Somali woman to trial for allegedly performing a clitoridectomy, traditional in some parts of Africa, on her two- year-old niece. In 1989 Dong Lu Chen, a Chinese immigrant in New York City, hammered his wife to death because he suspected her of cheating on him. Feminists were outraged when Chen was sentenced to just five years' probation. But the judge had relied on an anthropologist's testimony about the seriousness of infidelity in Chinese culture and on the defense's contention that shame pushed Chen to an extreme act.

Should American jurists bend the rules to accommodate foreign cultures? Can judges and juries draw reliable conclusions about what the rules in those cultures might really be? Most jurists recognize that ignorance of the law has never been -- and should not be -- a basis for full acquittal. Yet in determining charges before trial and in sentencing afterward, U.S. law has always taken into account a wide array of factors that might shed light on the responsibility of the accused. That might be a useful -- and defensible -- basis for a cultural defense, but only after some well-defined guidelines are developed to help steer the courts through this vexing legal issue.

With reporting by Adam Biegel/Atlanta and John F. Dickerson/New York