The cultural defense is a controversial legal strategy that allows criminal defendants to offer evidence of their native culture to mitigate culpability. While courts usually decline to formally consider these defenses, cultural influences are increasingly present in the courtroom, demanding recognition in the midst of a Eurocentric legal system. The cultural defense can be an important tool for achieving justice in minority and immigrant communities. In practice, however, the defense can slip dangerously off-course, reinforcing white American norms and reductive stereotypes. Ultimately, an “official” defense allowing cultural evidence at trial may cause more harm than good. Instead, this Comment advocates for the cultural defense as a mitigating factor in sentencing. The sentencing method serves as a safeguard against coercive assimilation while protecting the rights of crime victims. Moreover, this Comment argues that the cultural defense should be viewed through an intersectional lens. By analyzing defendants' overlapping marginalized identities, intersectionality allows sentencing judges and juries to effectively balance cultural needs with the parameters of the criminal law. Culture belongs in the courtroom, and an intersectional approach will illuminate the kaleidoscope of influences within the individual and throughout American society.
American Kaleidoscope: An Intersectional Approach to the Cultural Defense,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol53/iss3/6