Archive | Cultural Defenses

Foreigners and Foreign Law in American Courts: A Concrete Example

Why should foreign law ever be applied in American courts?, some people ask. Why should foreigners get the benefit of this law when they come to America? There are many answers to this, but I thought I’d offer a helpful illustration.

The broad point is that, when American courts apply foreign law, they apply it because American law calls for the application of foreign law. It’s not that American courts are somehow using foreign law to trump American law; rather, they are trying to follow American law. But why would American law consider foreign law? Here’s one example.

Say that Mahmoud (age 30) and Wafa (age 16) come on a visit to California, and have sex here. Having sex with an under-18-year-old is generally a crime in California:

Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is [under the age of 18 years].

If Mahmoud raises the defense, “I’m from France and it’s OK to have sex with under-18-year-olds there,” his defense will go nowhere. Likewise if his defense is “I’m from Washington State and it’s OK to have sex with under-18-year-olds there.” Foreign law, and out-of-state law, is in that context irrelevant.

But say Mahmoud raises the defense, “I’m from Pakistan, and Wafa and I were married there.” Then under California law Mahmoud wouldn’t be guilty (since the law refers to sex “with a person who is not the spouse of the perpetrator”), assuming his marriage is valid. Convicting him would be a denial of his rights under California law.

Now as it happens, in California, under-18-year-olds may not marry without a court order (and, generally, parental consent). But California law only says that these items are required to marry, and [...]

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Statutory Rape of 13-Year-Old Yields No Jail Time, Because of Defendant’s Cultural Insularity

The Daily Mail (UK) reports:

A muslim who raped [in the sense of statutory rape -EV] a 13-year-old girl he groomed on Facebook has been spared a prison sentence after a judge heard he went to an Islamic faith school where he was taught that women are worthless.

Adil Rashid, 18, claimed he was not aware that it was illegal for him to have sex with the girl because his education left him ignorant of British law.

Yesterday Judge Michael Stokes handed Rashid a suspended sentence, saying: ‘Although chronologically 18, it is quite clear from the reports that you are very naive and immature when it comes to sexual matters.’

Earlier Nottingham Crown Court heard that such crimes usually result in a four to seven-year prison sentence.

But the judge said that because Rashid was ‘passive’ and ‘lacking assertiveness’, sending him to jail might cause him ‘more damage than good’.

Earlier the court heard how Rashid had ‘little experience of women’ due to his education at an Islamic school in the UK, which cannot be named for legal reasons….

In … interviews with psychologists, Rashid claimed he had been taught in his school that ‘women are no more worthy than a lollipop that has been dropped on the ground’. …

[The sentencing judge] said that Rashid knew what he was doing was wrong.

‘It was made clear to you at the school you attended that having sexual relations with a woman before marriage was contrary to the precepts of Islam,’ he said….

My quick thoughts:

1. In the abstract, while ignorance of the law is generally not a defense to a crime (an oversimplification, but one that’s apt here), it might sometimes play a proper role in sentencing. For instance, to the extent that one is sentencing a person to [...]

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“Cultural Defenses” and Incest

If you want a look at pure cultural defenses that do set up a separate legal rule for people who belong to a particular group, check out Rhode Island General Laws § 15-1-4:

The provisions of §§ 15-1-1 – 15-1-3 shall not extend to, or in any way affect, any marriage which shall be solemnized among the Jewish people, within the degrees of affinity or consanguinity allowed by their religion.

The Rhode Island law dates back to the colonial period. In a similar vein, Colorado and Minnesota follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are “permitted by the established customs of aboriginal cultures.” The Commissioners’ note to the Act says that “The intent is to save those special customs of Indian tribes, of Alaskan natives of various ethnic origins, and of Polynesians, which may not accord with the incest taboos of Western culture.”

Note that the Rhode Island law is not a standard religious accommodation for religiously mandated or motivated behavior; I don’t believe that Jews of the era saw themselves as having a religious command or suggestion to marry their nieces, and of course many didn’t. Rather, Jews thought such behavior was permissible — since the Leviticus 18 incest prohibitions don’t include uncle-niece relationships — and for social reasons thought it was sometimes useful. (I’ve heard as explanations the desireto keep family wealth in the family, and the small number of prospective eligible mates stemming from the small size of the community.) And I assume that the Rhode Island legislators thought the law sensible because they saw the incest ban as primarily a religious purity rule, rather than an attempt to prevent secular harm, and because they thought Jews’ contrary religious understanding deserved respect (perhaps precisely because that understanding was based on the [...]

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“Cultural Defenses” and Underage Marriage

Here’s another case showing how American law applies to people with different cultural assumptions from our own, State v. Al-Hussaini, 579 N.W.2d 561 (Neb. Ct. App. 1998); I think the result is correct. Note that in the de minimis case and the mistake of fact hypothetical, the defendant’s claim was that the defendant’s culture was relevant to showing that he lacked the legally required knowledge or purpose (assuming, in the de minimis case, that absence of a sexual purpose did indeed render the conduct not harmful for purposes of the Maine de minimis statute). I don’t think the same reasoning would apply here.

In any case, here’s the case:

Latif Al-Hussaini was convicted of first degree sexual assault on a child, in violation of Neb.Rev.Stat. § 28-319 (Reissue 1995). He was sentenced to an indeterminate sentence of 4 to 6 years’ imprisonment, with credit for 13 days spent in custody. The sole issue on appeal is whether or not the sentence imposed is excessive….

Al-Hussaini is a native of Iraq who escaped from his country during the Gulf War and has lived in the United States since 1995. He speaks virtually no English. On November 9, 1996, Al-Hussaini, age 34, participated in an Islamic ceremony in which he was “married” to a 13-year-old girl. There is no dispute that the victim was given away in marriage by her father. After the ceremony, the victim was taken to her new home with Al-Hussaini where intercourse immediately took place. The victim stated she did not consent to intercourse with Al-Hussaini. The victim’s sister, age 14, was also “married” on the same day to another Iraqi man. [...]

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“Cultural Defenses,” Crime, and Mistakes of Fact

In light of the discussion on the cultural defense / de minimis statute thread, it might be helpful to think of another area where culture is relevant under existing law: mistakes of fact.

Consider an example. Theft is often defined as taking another’s property, knowing that it is another’s property. If you take an umbrella from an umbrella stand thinking that it’s yours, and it turns out that it’s not, you’re not guilty of theft (though you might become guilty if you learn that it’s not yours and don’t properly return it, assuming the original owner could be found). Likewise, if you take property think that it’s abandoned, and it turns out that it’s not abandoned, you’re not guilty of theft. It doesn’t matter whether your belief was reasonable or not, so long as it was sincere (or, to be precise, so long as the jury thinks it was sincere, or has a reasonable doubt about the prosecution’s claim that you knew the property was someone else’s). A sincere mistake of fact thus means that you’re not guilty.

Now let’s say that someone picks up a bunch of lumber from the side of the road, and when arrested for theft says “I thought it was abandoned.” It may well be that in our culture this might be an implausible story (let’s assume that this is so), so that the jury would think he’s lying. But say he’s a recent immigrant from a country (let’s call it Afghanistan) in which leaving lumber by the side of the road was a way to signal that anyone is free to take it, much like leaving an old couch or old refrigerator by the side of the road is in our culture often a signal that anyone is free to take it. [...]

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“Cultural Defenses,” Crime, and De Minimis Violations

I just reread State v. Kargar, 679 A.2d 81 (Me. 1996), and was reminded how interesting and bloggable the case is (some paragrpah breaks added):

Mohammad Kargar, an Afghani refugee, appeals from the judgments … convicting him of two counts of gross sexual assault in violation of 17-A M.R.S.A. § 253(1)(B) (Supp.1995) (Class A). [Footnote: “... 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: ... B. The other person, not the actor's spouse, has not in fact attained the age of 14 years.”] Kargar contends on appeal that the court erred in denying his motion to dismiss pursuant to the de minimis statute, 17-A M.R.S.A. § 12 (1983). We agree and vacate the judgments.

On June 25, 1993, Kargar and his family, refugees since approximately 1990, were babysitting a young neighbor. While the neighbor was there, she witnessed Kargar kissing his eighteen-month-old son’s penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of Kargar kissing his son’s penis in the Kargar family photo album. After her daughter told her what she had seen, the mother notified the police.

Peter Wentworth, a sergeant with the Portland Police Department, went to Kargar’s apartment to execute a search warrant. Wentworth was accompanied by two detectives, two Department of Human Services social workers, and an interpreter. Kargar’s family was taken outside by the social workers and the two detectives began searching for a picture or pictures of oral/genital contact. The picture of Kargar kissing his son’s penis was found in the photograph album. Kargar admitted that it was him in the photograph and that he was kissing his son’s penis. Kargar told Wentworth [...]

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