Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.
In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption in advance, comparing such a defense with an analogous defense based on religious belief and practice that now exists in many American jurisdictions.
Criminal Law | Criminal Procedure | Law
The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act,
Ohio St. J. Crim. L.
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