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On the Boundaries of Culture as an Affirmative Defense


Eliot Held


University of Arizona - James E. Rogers College of Law

Reid G. Fontaine


Florida State University


Arizona Law Review, Vol. 51, p. 237, 2009
Arizona Legal Studies Discussion Paper No. 09-19

Abstract:     
A cultural defense to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values - the purported aim of the cultural defense - because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms - after all, justice systems are themselves cultural institutions. Furthermore, a defendant's background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability regime is a narrow de minimis rule.

Number of Pages in PDF File: 16

Keywords: cultural defense, sentencing, culpability, criminal procedure

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Date posted: April 13, 2009  

Suggested Citation

Held, Eliot and Fontaine, Reid G., On the Boundaries of Culture as an Affirmative Defense. Arizona Law Review, Vol. 51, p. 237, 2009; Arizona Legal Studies Discussion Paper No. 09-19. Available at SSRN: http://ssrn.com/abstract=1376609

Contact Information

Eliot Held
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
Reid Griffith Fontaine (Contact Author)
Florida State University ( email )
Tallahasse, FL 32306
United States
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