In a recent case we represented an elderly woman who intentionally destroyed her father’s formal Will. She found the Will in his papers when caring for him. The Will left his substantial estate to a younger lady friend that the father had met after his former wife and mother of his children had passed on. She in essence was his girlfriend. After the father’s death our client sought to become the administrator of her father’s estate (without Will) and the lady friend opposed it coming forth with a signed but not witnessed copy of the father’s Will and seeking its admission. One of our main themes in the litigation was to protect our client from being held liable for financial elder abuse and punitive damages for her admitted actions in destroying the father’s Will.
Our client and her family were “old school” and firmly believed that the family came first in all things. The family had all believed in that credo virtually forever and they always abided by it until dad broke away from the tradition leaving everything in his estate to the young lady friend. Our client firmly believed that in destroying his Will, she was doing the right thing for all of her brothers and sisters and their children, including herself. We were able to argue successfully that a “cultural defense” was applicable in this case. The premise of such an argument is the notion that culture shapes cognition and conduct. Because culture strongly influences human motivations, the legal system should take cultural imperatives into account. In pluralistic societies, it is especially vital that judges acknowledge variation and motives to better understand the behavior of individuals who come before them. In general, justice requires looking at the contexts of individuals’ actions; otherwise, it is not possible for judges to understand what has transpired. Judges are sometimes incapable of understanding the cultural context of actions largely because they seldom come from the background of ethnic minorities and indigenous peoples, and they have not been exposed to their way of life.
Cultural defenses are also raised in other civil cases. Litigants ask judges to consider their traditions in custody battles, in decisions over whether to order medical treatment for children over parental objections, and employment discrimination cases where plaintiffs face termination because they wear symbols of their religious or ethnic identities, and in lawsuits over the negligent treatment of corpses. The common thread of all these cases is that courts are asked to take the cultural background of the litigant into account.