La défense par la culture en droit américain

Abstract

The Cultural Defence in American Criminal Law Feminist legal scholars and political theorists have criticized the use of cultural evidence by immigrant defendants in criminal cases on the grounds that such use can deny equal protection of the laws to immigrant women, but they have neglected a distinct and potentially greater problem: that mainstream legal doctrines which immigrants seek to use are themselves formulated and applied in ways that support gender inequality. Immigrants’ claims of “cultural defence” for actions that harm women seem to be most successful when they resonate with patriarchal norms in the wider society. While the defence in the “marriage by capture” and “wife-murder” cases emphasized cultural differences between immigrants and mainstream Americans, there is a striking congruence in the norms of majority and minority cultures regarding the realm of intimate relations between the sexes: that “no” doesn’t mean no, and that a man’s violent retaliation against his female partner’s infidelity is a “reasonable” response. In these cases, minority practices have found support from certain illiberal mainstream norms expressed in legal doctrine and practice. Thus, if we wish to pursue both greater equality for women and greater equality for cultural minorities, we cannot simply embrace or reject cultural defences; rather, we need to re-evaluate mainstream legal defences alongside minority practices – not only to guard against cross-cultural hypocrisy but to pursue equal justice for all.