One of the clipping services to which I subscribe recently highlighted People v. Assad, __ Cal.Rptr.3d __, 2010 WL 4035491 (Cal. Ct. App. 3 Dist. Oct. 15, 2010). The defendant in Assad was a Syrian man. He tied his twelve-year-old son to his bed and beat him repeatedly and severely with a hose and wooden stakes. As a result, he was charged with torture and other crimes. Several witnesses testified that in Syria and in the Muslim religion, it is permissible to “hit” or “beat up” a child in the course of discipline. It appears that the defendant offered this evidence in an attempt to negate the intent element of the crimes with which he was charged. The defendant was convicted and the admissibility of the evidence wasn’t at issue on appeal, but the case did get me thinking a little bit about the relevance of cultural differences in criminal cases. How would such evidence be treated in North Carolina?
The only North Carolina cases that I could find involving cultural evidence were capital cases in which cultural factors were offered in mitigation. State v. Robinson, 336 N.C. 78 (1994) (noting that a defense witness “testified [in mitigation] that defendant was a member of an inner-city culture where illegal activities are the accepted standard”); State v. Syriani, 333 N.C. 350 (1993) (noting that the jury found as a mitigating circumstance that “the defendant was raised in a different culture”). That strikes me as a pretty different issue than the one raised by Assad.
Closer to the mark is a federal case from Virginia. In United States v. Le, 2009 WL 2947370 (E.D. Va. Sept. 14, 2009) (unpublished), a defendant charged with mailing a threatening letter plead guilty, then sought to withdraw his plea. In assessing the motion to withdraw the plea, the court noted that the defendant “offered evidence in support of his motion . . . that, in [his] culture and in his language, the communication would not be threatening” and stated that “[t]his kind of evidence is generally regarded as being potentially relevant to the issue of mens rea in a criminal proceeding.” As noted above, that seems to have been the point of the evidence in Assad. I haven’t done enough research to know if the Le court is correct in saying that cultural evidence is “generally regarded” as relevant, but certainly there are a number of cases in which such evidence has been admitted. See Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Ariz. L. Rev. 911 (2007) (collecting cases and materials on the “cultural defense”).
There may be charges in North Carolina to which such evidence would be relevant, but if the Assad case had arisen here, I doubt that the cultural evidence would have been admissible. The defendant would likely have been charged with felony child abuse inflicting serious injury, G.S. 14-318.4. The elements of that offense are that (1) a parent or caregiver (2) intentionally inflicts (3) serious physical injury on a child. Cultural norms appear to be irrelevant to the intent element: it may be acceptable in a particular culture to inflict serious physical injuries on children in the course of discipline, but that simply has nothing to do with whether a particular injury was inflicted on purpose. By contrast, the California torture statute at issue in Assad requires that the defendant act “for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” Cal Penal Code § 206. Cultural norms may well be relevant in determining whether a defendant acted with any of those mental states.
If folks have experience litigating cultural differences in criminal cases, or know of court decisions on point that I’ve missed, please chime in.