THE USE AND ABUSE OF THE CULTURAL DEFENSE

Abstract

Invoking a cultural defense has become a popular but controversial legal strategy. After explaining that the scope of the cultural defense is broader than is often understood and that it is used to mitigate punishment, create exemptions from policies, and increase the size of damage awards, I identify the normative principles that justify such a defense. Although it may be defended as a matter of principle, if this defense has any chance of being formally adopted, policies must be established to prevent its misuse. I propose a cultural defense test and show how it could be applied appropriately in a few cases. Following the analysis of its proper use, I demonstrate the potential for abuse by showing how in particular cases cultural arguments failed to meet the requirements of the cultural defense test I propose. Finally I recommend ways to assist courts in finding cultural experts who can authenticate the cultural claims.