Culture in Our Midst

Abstract:     
This paper seeks to rebut the claim that the substantive criminal law is a-cultural. Far too often, decision-makers in the criminal justice system disregard the evidence and defenses raised by individuals from minority cultures on the grounds that such evidence and claims are irrelevant to the determination of guilt. What they fail to recognize is that the definitions of elements, of offenses and of defenses are all constructs of the dominant Anglo-American culture. This paper examines in detail three existing doctrines in substantive criminal law to demonstrate this point: the deadly defense of habitation, the growing rejection of the rule of retreat in deadly self-defense and the deadly defense against forcible rape. Failure to admit the cultural origins of the penal law results in the dangerous imposition of values of the dominant culture upon all individuals under the guise of universal legal norms. It is only in recognizing the substantial influence of the dominant culture on the substance of our criminal laws that we can begin to craft a more fair and just law for a multicultural society.

Accepted Paper Series