Fictions of Intention in the "Cultural Defense"

In the “cultural defense,” culture is invoked as a tool for revealing the intentions of defendants in criminal cases. This strategy has been used successfully in American courts, less successfully in British ones. In both instances, debates around the cultural defense suggest either that it is the appropriate outcome of multiculturalism or that it hampers the principle of universality under the law. I argue instead that if the cultural defense has anything at all to do with culture, its purpose is to separate the cultural from the non-cultural in the motives of defendants and the procedures of the court itself. Using comparative material from Papua New Guinea, where “custom” rather than “culture” is the term used to signal differences between litigants, and where custom cannot reveal litigants’ intentions, I demonstrate that culture is of limited use in a context where intentionality is not the issue at stake. In criminal law, intentionality is what allows a court to pass an appropriate sentence. But culture can only stand in for a defendant’s intentions in the capacity of a legal fiction, a relationship that exists solely for the purposes of forming an argument in court. This is because social relationships are excluded in the process of describing the culture in the cultural defense, which does not require specific relationships but only a domain of intentions called a “community” to authenticate it and render it intelligible to the court.