미국에서의 문화적 항변에 관한 연구

Abstract

In several states of the United States, the cultural defense excuses criminal behavior altogether or mitigates criminal liability due to a lack of requisite mens rea based on the defendant’s claim that the act is accepted behavior in his/her culture and community. It has been argued that the cultural defense has been promoted as a necessary means of achieving fairness and justice in the legal system as the United States has become a more diverse and multicultural society. The general arguments for and against the cultural defense and for its limited use are summarized in this article. The arguments favoring a freestanding cultural defense run as follows. The criminal justice system in the United States is often criticized for its imposition of and assumptions based on Western and white-male norms and values. A formal and freestanding cultural defense could be used to achieve fairness and individual justice and to promote cultural pluralism in the United States. However, opponents of a freestanding cultural defense also argue by the principles of fairness and justice in the United States. A legal system should have only one standard, and immigrants and other minority groups must learn its rules and values. Otherwise, those who know the rules, regardless of their race or national origin, would be treated more harshly and thus unfairly compared to recent immigrants committing the same criminal acts. Furthermore, victims of those who do not know the rules will be offered less protection. Moreover, because domestic violence and marital rape are so widely accepted in cultures across the world, such as some parts of Asia and Africa, immigrant defendants can easily use cultural background as a defense to justify or excuse intimate partner battering and sexual assault. In addition, if the court decides to consider admitting cultural evidence, it is very hard for the court to take great care in qualifying the experts. Even though Korean society is now becoming a multicultural society, it is not needed for Korean courts or prosecutors to consider the cultural defense to excuse criminal behavior or even mitigate criminal liability because of the reasons discussed above.