On September 7, 1987, Mr. Doug Lu Chen, a native of Canton, China and a Brooklyn, New York resident for a year, struck his wife, Jian Wan Chen, on the head with a hammer eight times after learning of her involvement in an extramarital affair. In March of 1989, Mr. Chen, now charged with second-degree manslaughter for the beating death of his wife, was punished with a mere five years probation. Justice Edward K. Pincus of the New York State Supreme Court justified giving Mr. Chen the lightest possible sentence for such a charge — a charge which had already been reduced from second-degree manslaughter — by citing the importance of Chinese culture in proper understanding of the factors that drove Mr. Chen to violence. For Justice Pincus, Mr. Chen’s cultural background provided an important explanation as to why the man became temporarily deranged after hearing of his wife’s adultery and proceeded to murder her.

During Mr. Chen’s trial, Hunter College Professor of Anthropology Burton Pasternak testified for the defense concerning how traditional Chinese culture views the act of adultery and how exactly this contributed to Mr. Chen’s violent reaction. According to Professor Pasternak, a wife’s infidelity acts as proof of a husband’s weak character. Furthermore, the shame lingers on after divorce — a practice which is itself considered "a great shame upon one’s ancestors." While revelations of adultery do not usually result in murder, a Chinese man relies upon his tight-knit ethnic community to hold him back before any violence actually ensues. With no community in Brooklyn to hold Mr. Chen back, the shamed man lashed out — "he was of the edge of the earth as he knew it" — and Mrs. Chen was killed.¹

In light of Professor Pasternak’s expert testimony, Justice Pincus raised Mr. Chen’s cultural background to a prominent level of significance during his sentencing deliberations. Justice Pincus’ use of the "cultural defense," "in which it is argued that cultural factors lessen the defendant’s responsibility for certain crimes", as a justification for punishing Mr. Chen with only probation, however, incurred heavy criticism from groups like the National Organization of Women (NOW) and the Organization of Asian Women. NOW New York City chapter president Francoise Jacobsohn claimed at the time that, "The sentence declares open season on women with a cultural defense."² Then Brooklyn District Attorney Elizabeth Holzman reacted to the ruling, the first of its kind in New York City, with cries for a single standard of justice that would not, in the future, allow for such gross exemptions from punishment due to culture.

Is Holzman’s single standard of justice, however, the answer in situations where cultural factors cause a recent immigrant to act outside the letter of American law? For better or for worse, the kind of legal "flexibility" demonstrated in the Chen case does allow for what many believe to be the proper consideration of elements, cultural or otherwise, unique to each particular case that comes before the bench. As Clifford Geertz comments in his book, Local Knowledge: Further Essays in the Interpretation of Culture, "the cultural contextualization of incident is a critical aspect of legal analysis." (181) In both the charging and sentencing phases of a trial involving the cultural defense, rigid legal adherence is rarely the norm. An immutable legal standard, aside from neglecting cultural factors, also restricts a judge’s or jury’s ability to achieve justice when it is largely recognized that standards of justice change from case to case depending upon the circumstances unique to it.

For example, it is doubtful any judge or jury would want to charge or sentence a woman who murdered her heavily abusive husband of ten years in the same manner as a robber who brutally murdered a store owner during a botched hold-up. At some point, a distinction between cases needs to be made based upon the circumstances unique to each crime even if both have similar ends. As Fresno County, California Superior Court Judge Gene E. Gomes observes: "One standard of justice is too simplistic… a sentence has to be tailored to an individual victim and an individual crime."³

Rarely does the cultural defense act as a total defense. One notable exception is State v. Jones (4 FAS84-2933) in which an Eskimo man was acquitted of molestation charges after anthropologists and fellow Eskimos testified that Jack Jones’ playful attempts to pull down the pants of his son and grandson were part of a tradition of teasing behavior common among the Inupiat Eskimos. Furthermore, cultural defense pleas rarely result in total or near-total removal of punishment for the individual charged. In People v. Kimura (LA Superior Court, A-091133), however, Fumiko Kimura was able to escape first-degree murder charges for the drowning deaths of her children due to cultural defense. Ms. Kimura was charged with only voluntary manslaughter for walking into the ocean with her two children after leaving of her husband’s extramarital affair, in a traditional Japanese practice known as oyako-shinju, or parent-child suicide. Kimura received five years probation with psychiatric treatment and one-year jail time already served.

Such cases as these, however, are not the norm. While the use of expert testimony by anthropologists to contribute to a cultural defense varies based upon judicial discretion (compare People v. Podar to People v. Aphaylath), some form of reduced charges or, even more frequently, a reduced sentence seems to be associated with it.⁴ As Judge Greenberg commented in US v. Yu, in which a Korean immigrant attempted to defend himself against charges of attempted bribery of IRS officials by claiming the bribe was a traditional Korean "honorarium":

In some cases the cultural differences between the United States and another country may justify downward departure [i.e. sentence reduction]. Thus it is conceivable that an unschooled recent immigrant or a foreign traveler might reasonably point to practices in his country of origin that would justify a downward departure on the grounds that while he intended to do the acts for which he was convicted and was thus criminally liable, he did not recognize the extent of his culpability in this country.

While Judge Greenberg believed that Mr. Yu’s twelve years in the United States, his familiarity with American tax laws as a professional tax preparer, and his education, and other factors weighed heavily against such a downward departure, the dissenting Judge Becker did recognize the need to allow for cultural misunderstandings to act as a "mitigating factor at sentencing" in other situations for two reasons:

First, the defendant’s conduct may be more understandable than that of someone who grew up in this country: The defendant may have had little reason to know better. Second, the defendant might be less likely than an ordinary defendant to repeat his or her defense… [T]he basic… point is that cultural differences are sometimes logically relevant to determining a proper sentence.

Those who adhere to universal standards of human rights, however, caution against turning the cultural defense into an easy mechanism for sentence reduction. As a 1993 Harvard Law Review article debating the African tradition of female circumcision comments:

Even well-established and ongoing cultural practices are subject to universal human rights limitations… [P]ractices, beliefs, and lifestyles passed down through several generations of an ethnic group need to be re-examined periodically in light of contemporary values and knowledge, in order to ascertain whether the customs deserve to be perpetuated… Those practices that have neither factual/historical legitimacy nor contemporary legitimacy in terms of societal values, and that furthermore inflict harm and injury on their adherents, must be abandoned.

While some might take issue with such a universal and intensely critical approach to cultural practices, what is of importance to us here is the evaluation of the legitimacy of "harmful" cultural customs in the American legal context. The Yu case and the Chen case differ fundamentally in the nature of the harm inflicted upon others and society. Many believe that allowing exemptions of the Chen magnitude for actions that inflict intense if not fatal harm upon others sets all too dangerous a standard. Bribery and murder are clearly two very different crimes — and the same structural flexibility that allows culture to be taken into consideration in each case also allows for different standards of justice.

Justice Gomes’ approach to cultural defense cases involving such violent crimes attempts to temper an understanding of cultural factors with a need to conform to American legal and societal standards — i.e. "balance [a defendant’s] cultural understandings of [his or her] actions with the need to protect society."⁵ For example, in People v. Pedrotalacios (355129-8, Superior Court 1987), a Salvadoran man who had been a guerilla fighter as a teenager slit a friend’s throat. He believed such an action was a "mercy killing" for a friend whom he believed was dying from a severe beating at the hands of others. Rather than give the man probation, Justice Gomes sentenced him to 12 years for aggravated assault. Justice Gomes wrote: "I accepted that there was no premeditation or malice, no ill will or hatred, but there was an intent to kill."

In another of Justice Gomes’ cultural defense cases, People v. Moua (315972, Superior Court 1985), a Laotian man found himself charged with kidnapping and rape after performing the traditional Hmong ritual of bride capture. During Hmong bride capture, a man seizes a woman he considers to be his fiancé and takes her to his family home. At the man’s home, the marriage is then consummated. During the ritual, a woman is supposed to protest as an indication that she is a virtuous bride. In this case, however, the bride’s protest included filing criminal charges with the police, to the great surprise of the Laotian man. Mr. Moua eventually pleaded guilty to a lesser charge of false imprisonment and spent 120 days in jail. He also paid a $1,000 fine with $900 of it going to victim.

In both of these cases, Judge Gomes recognized a need to exact a punishment of some sort even in the face of a seemingly legitimate use of the cultural defense. When a cultural defense acts as a justification "for not punishing or punishing strictly", as in the Chen case, it tends "to meet with a lot of reaction from groups that feel threatened." Judge Gomes goes on to point out that "the severity of the crime at some point impacts on how much reduction in sentencing for a crime a cultural defense can provide."⁶

Rarely, then, should the cultural defense provide a total exemption from accountability for violent actions not deemed suitable within the host culture. In both the Gomes cases, the significant cultural factors resulted in either a reduction in the charges or, more significantly, the punishment exacted, or both. The reductions, however, did not winnow punishments down to the point of virtual insignificance, as under Justice Pincus’ ruling in the Chen case. Such "compromise" rulings appear to provide the greatest possible level of satisfaction for parties on all sides of the cultural defense debate, be they advocates of the importance of cultural defense, of adherence to American legal standards (especially in instances of violent crimes), or of punishment as a means of change within the cultural community in question.⁷ The expectation of eventual change within the cultural community in question should become an important consideration during any ruling involving violent crime.

What is advanced here is not an attack upon all cultural practices and traditions important to individuals of a particular cultural background — only those violent practices, be they wife-beating, family suicide, or bride capture, which cannot be adequately compromised with American laws and morals upholding standards of individual human rights. Assimilation in this regard by individuals who willingly became members of American society and its accompanying societal and legal standards of conduct then becomes the end-goal. Otherwise, the cultural defense risks become a "get-out-of-jail-free card" for recent immigrants and provides no impetus for movement away from acts in violation of American law.

Great caution must be taken, therefore, whenever an exemption is worked into a judgement based solely upon cultural justification — especially in the punishment stage of a violent crime case where the cultural defense appears to have the most significant impact. While some cases, like State v. Jones, might result in less of a public outcry than others and tend to represent more excusable cultural misunderstandings, the overall importance of demonstrating a respect for and adherence to American legal standards in cases that involve severe conflicts with basic American values, like the Chen case, remains. The Chen case not only demonstrates an over-reliance on the cultural defense, but neglects the importance of "getting the word out" to other members of a particular cultural community that violent practices abhorrent to human rights standards will not be tolerated in the American environment — an environment into which they knowingly and deliberately immersed themselves. When judges transform the cultural defense, then, into an impenetrable barrier against punishments for violent crimes, they ironically risk destroying faith in its proper and often-necessary utilization. Furthermore, such judges instigate dangerous cries for a single standard of justice. The cultural defense can be a powerful defensive weapon, but judges and juries must continue to use it in a prudent, case-sensitive manner that recognizes that at a certain level, the buck stops.