cultural defense | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Criminal Law

In criminal law, a cultural defense is a defense that is based on the argument that an offender’s cultural background or beliefs influenced their behavior and should be taken into account in determining their guilt or punishment.

In the realm of criminal law, the term cultural defense refers to a legal argument that an offender’s cultural background or beliefs significantly influenced their behavior, leading them to commit an act considered criminal by the prevailing law. This defense posits that the individual’s cultural upbringing shaped their understanding of acceptable behavior, which might differ from the standards accepted in the jurisdiction where the crime occurred. As such, this defense is proposed to be considered when determining the offender’s guilt or punishment.

Understanding Cultural Differences

To comprehend the cultural defense, it’s essential to recognize the diversity of cultural norms, traditions, and values around the world. Some actions considered criminal or unacceptable in one culture might be viewed as customary or even required in another. For instance, certain types of physical discipline might be legally and socially unacceptable in one society but seen as a necessary part of child-rearing in another culture.

Cultural Defense in Practice

In a courtroom, a defendant might employ a cultural defense by arguing that their actions, while potentially unlawful in the jurisdiction of the trial, are considered acceptable or even required in their native culture. The aim is not necessarily to deny the act but to provide context that might influence how the court views the defendant’s guilt or the severity of their punishment.

For instance, consider a hypothetical case where a person from a culture where arranged marriages are common is accused of kidnapping after bringing a reluctant teenager to their home country for a pre-arranged marriage. In their defense, the person might argue that in their culture, arranged marriages are standard practice, and they didn’t realize that their actions would be perceived as kidnapping in the host country.

Challenges and Controversies

The use of the cultural defense is not without controversy. Critics argue that accepting such a defense could potentially create a slippery slope that undermines the rule of law and allows harmful practices to continue unchallenged. They suggest that everyone residing in a country should be held to that country’s laws, regardless of cultural background.

On the other hand, proponents of the cultural defense argue that justice is best served when courts consider the full context of an individual’s actions. They contend that recognizing cultural differences can promote greater fairness, particularly in societies with diverse cultural populations.

Balancing Act

Courts often have to perform a delicate balancing act when dealing with the cultural defense. They must uphold the law while also acknowledging the reality of cultural diversity. Courts may not accept cultural defense as a complete justification for criminal behavior, but they might consider it as a mitigating factor when determining the severity of the punishment.


The cultural defense in criminal law presents an intersection of culture, law, and justice. As societies become increasingly multicultural, it underscores the need for the legal system to understand and consider cultural nuances. However, it remains a complex and controversial defense, requiring careful consideration to balance cultural respect with upholding the rule of law. The goal is not to excuse unlawful behavior but to ensure a fair and just application of the law, understanding that cultural context can influence behavior.

[ Glossary ]

Last Modified: 05/15/2023


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