The Place of Culture in Forensic Psychiatry
The Place of Culture in Forensic Psychiatry
Laurence J. Kirmayer, MD, Cécile Rousseau, MD, MSc, and Myrna Lashley, PhD
Members of a multicultural society must all be subject to the same equitable system of justice. However, culture exerts profound influences on human behavior, and cultural considerations have a place in determinations of capacity and in appropriate sentencing. Cultural psychiatry can contribute to forensic psychiatry by helping to contextualize individuals’ actions and experiences. This contextualizing can be done through cultural consultations that employ interpreters and culture brokers to identify the role of culture in individuals’ psychopathology. Clarifying how cultural background has affected individuals’ capacity to form a criminal intent or control their behavior may allow a better determination of level of culpability and guide appropriate sentencing. However, framing behavior as culturally influenced may also stereotype and stigmatize specific groups. To avoid this, culture must be understood in terms of power relationships between minority groups and the dominant society. Cultural factors are not only relevant to the experience of specific groups but pervade the entire judicial system shaping the process of moral and legal reasoning.
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Recent years have witnessed a growing debate on the place of culture in the legal system. Legal practitio- ners and theorists have argued the pros and cons of using culture as a defense in criminal cases.1,2 The value of attending to culture includes having a better understanding of the origins of behavior and the level of volition and intent in the accused individual’s be- havior. At a wider societal level, acknowledging cul- tural differences in law can contribute to building a pluralistic society that can accommodate some dif- ferences in values that are important to cultural com- munities.3 This is evident, for example, in efforts to develop customary law and sentencing circles among indigenous peoples that respect traditional values of harmony and connectedness.4,5
Those supporting the use of culture as a defense argue that is it intrinsically unfair to judge someone exclusively by the rules and values of a society that he or she does not know. Moreover, since culture shapes personal identity, emotional responses, and patterns of reasoning, it can be expected to influence motiva-
tion and intent in situations involving criminal ac- tions. Following this line of argument, in regard to considerations of individual volition and intent be- ing important for determining legal culpability, cul- tural considerations become pertinent in an equita- ble justice system.
Against this pluralistic view, critics argue that al- lowing culture as a defense is dangerous. It will un- dermine the fairness of the justice system by allowing inconsistent or arbitrary standards to be applied; crimes that are consistent with local cultural conven- tions will go unpunished; and, ultimately, whole groups will be stigmatized because they are not being held to the same moral and juridical standards as the rest of society. Advocates of universal human rights note the importance of clearly articulated standards to which every individual must adhere and by which everyone is judged.6,7
This ongoing legal debate in multicultural societ- ies is reflected in the field of forensic psychiatry, where consultants may be asked to supplement their usual psychiatric assessment with attention to social and cultural factors that can explain or contextualize the behavior of individuals accused of crimes. Boe- hnlein and colleagues8 noted the complexities of this area and suggested that applying cultural consider- ations to the process of sentencing may be less con- tentious than introducing culture as a defense against
Dr. Kirmayer is James McGill Professor and Director, and Dr. Rous- seau is Associate Professor, Division of Social and Transcultural Psy- chiatry, McGill University, Montreal, Quebec, Canada. Dr. Lashley is Professor, Department of Psychology, John Abbott College, Montreal, Quebec, Canada. Work on this article was supported by a Senior Investigator Award to Dr. Kirmayer from the Canadian Institutes of Health Research (MSS-55123). Address correspondence to: Laurence J. Kirmayer, MD, Jewish General Hospital, 4333 Cote Ste. Catherine Road, Montreal QC H3T 1E4, Canada. E-mail: laurence.kirmayer@ mcgill.ca
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A N A L Y S I S A N D C O M M E N T A R Y
a crime. The determination of whether someone com- mitted the crime is then separated from questions of their level of intent and the appropriate punishment. Recognition of the contribution of culture also may help in the determination of what interventions should be employed to bring about rehabilitation.
The assessment of cultural factors affecting behav- ior can be conducted by a psychiatrist or psychologist who is familiar with the language and cultural back- ground of the patient or who has access to interpret- ers and culture brokers.9,10 The cultural formulation in Appendix I of DSM-IV11 provides a framework for organizing cultural information relevant to psy- chiatric assessment and, although it was not designed for this setting, can be applied in forensic con- texts.12,13 In support of this use of the cultural for- mulation, Boehnlein and colleagues presented the case of a refugee from Cambodia who was facing the death penalty and for whom many developmental insults and traumatic experiences evidently contrib- uted to criminal actions. The crucial factors in that case relevant to sentencing were linked to the impact of perinatal trauma (brain anoxia and subsequent damage resulting in poor school performance and impulsivity) and organized violence (which acts in many ways: directly, as a cause of physical and psy- chological trauma; developmentally, through im- paired parenting; and socially, through subsequent experiences of dislocation).
There is a long history of jurisprudence that rec- ognizes decreased culpability in people with evident cognitive impairments and that modifies sentencing on this basis.14 Recent decisions in the United States that prohibit the death penalty for individuals with intellectual disabilities reflect this basic principle of justice.15 As Boehnlein and colleagues8 pointed out in discussing their case, cultural issues arise mainly regarding the appropriate use of culturally fair and meaningful methods of neuropsychological testing or clinical assessment and the use of interpreters. These are important matters given that, for people from many backgrounds, culturally adapted and val- idated testing instruments do not exist, and most clinicians have little training or experience in work- ing with interpreters and culture brokers. However, these technical problems have obvious solutions, in- cluding changes to training programs and profes- sional accreditation.
Bringing awareness of cultural concerns to the at- tention of judges and jurors can play an important
role in improving the functioning of the justice sys- tem. It is worth asking, however, whether some social and cultural circumstances are so familiar or taken for granted that they are not recognized or given weight as explanations for criminal actions. Would a young African American growing up in an urban ghetto exposed to repeated traumas and violence re- ceive a milder sentence if a cultural psychiatrist or psychologist provides an empirically based account of the ways in which his actions were influenced by his upbringing and current surroundings?
A cultural psychiatrist could certainly argue the case that persons exposed to such systematic inequal- ities, who suffer cognitive impairment as a result, should receive some mitigation of their sentence. In these circumstances, however, the consultant might encounter considerable resistance from those who take for granted the culturally constructed inequali- ties of U.S. society (which emerged from the history of racism and slavery) or, indeed, blame these endur- ing inequalities on the victims of the legacy of histor- ical injustices.16 This discrepancy between the re- sponse to the compelling story of someone from far away exposed to genocidal violence and the familiar story of yet another victim of the unjust social system close to home, points to the danger of focusing on “culture” as a construct that elides the social, politi- cal, and economic factors that create structural violence.
Cultural psychiatry must attend to the culture of the familiar and especially to the interactions be- tween the values of the dominant society and those of local communities and individuals who are system- atically disadvantaged by the dominant ideologies and institutions. The focus of the cultural formula- tion on the culture of the “other” should be supple- mented with frameworks for assessment that cover matters related to the social predicament of specific groups, their histories of migration, and in particular their position vis-à-vis the dominant cultural ideolo- gies and practices of U.S. society. In the case of the United States, this must include the widespread im- pact of racism and its legacy on the well-being of individuals and on the functioning of the criminal justice system itself.
Although most discussion of cultural factors in forensic psychiatry focuses on the dilemmas of eth- noracial groups, the criminal justice system itself is a cultural institution based on specific concepts, per- spectives, and values that may not be in complete
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accord with other cultural traditions. This disparity is transparently the case with regard to the use of capital punishment—a practice in which the U.S. is unique among the countries of the West. Specific U.S. cultural values and attitudes must be invoked to account for the persistence and acceptance of the death penalty, where so many other countries have come to find it morally beyond the pale.
Culture and Context
Consideration of the relevance of cultural back- ground and experience to the process of sentencing raises several complex theoretical and practical ques- tions. In what sense can a cultural explanation justify a claim of (1) diminished capacity to make a moral distinction between legally right and wrong behav- ior, (2) lack of criminal intent or volition, or (3) other mitigating circumstances that should influence sen- tencing? The answer to each of these questions is somewhat different.
The capacity to make moral judgments depends not only on intact cognitive-emotional functioning but also on having acquired the implicit rules and hierarchy of values that govern local morality. In noncapital cases, it is easy to recognize cultural diver- gences in these values. For example, exposure to vio- lence may change the capacity for thinking through the consequences of one’s actions by causing a nar- rowing of attention or intense emotion that inter- feres with thinking about the consequences of one’s actions.
Volitional behavior emerges from a complex ma- trix of social, psychological, and biological processes, each of which can link past experience to current behavior. Cultural variations in childrearing and cul- tural concepts of the person may lead to differences in emotional experience, self-control, and explana- tions of action.17 Hence, any comprehensive ac- count of the origins of behavior must include cultural dimensions. This necessity is especially true of moti- vation, volition, intent, and control that are crucial in determining the degree of culpability for harmful actions and the appropriate social response. Both so- cial and psychological considerations suggest that there are many gradations of volition and control in behavior and that these may be crucial to deciding the level of intent.18 We need a detailed understand- ing of the role of culture in ordinary cognitive func- tioning and in psychopathology to understand when and where individuals may be partially exculpated
because their cultural background has affected their capacity to form a criminal intent or to control their behavior.
In many cases, it is not whether the act was com- mitted that is in question, or the level of intent or control, but what its meaning and significance is to the defendant. Culture frames problems and presents us with the categories and concepts through which we organize and understand our own actions. For example, the Japanese mother who tries to kill her child and herself may be following the cultural tem- plate of otaku—joint suicide—in which, because of cultural values, the lives of mother and child are linked.19 The intent then is not murder as a separate act but the completion of a suicide in which the child is included as an extension of the self. Understanding this has implications for judgments of culpability and the extent to which a person may commit other acts of violence in the future.
Supplying the cultural context of behavior changes its meaning and renders the individual’s rea- soning more transparent. In effect, it allows the judge to reconstruct imaginatively the affective logic of the defendant’s cultural world.20,21 The increased empa- thy that results may allow a better sense of the ratio- nale for the person’s behavior; such understanding could increase or decrease the assessment of his or her culpability. What weight should be given to personal and social suffering in assessing the level of responsi- bility of a given person? Here, there is a wide range of positions. Some argue that people who have been victimized themselves cannot be held entirely re- sponsible for their subsequent actions. To the extent that we recognize victimization as modifying the per- son’s capacity for insight, intent, and voluntary con- trol of behavior, we might want to mitigate the sen- tence. However, exposure to a traumatizing or disadvantaged social environment or developmental history per se cannot be sufficient reason for altering a sentence. There must be evidence that these hard- ships have directly affected the individual’s ability to form and express criminal intent and control and to act.
Cultural Understanding or Racial Stereotyping?
Since we are fundamentally cultural beings, cul- tural concerns are ubiquitous and are not the sole province of people identified as ethnically different. A social and cultural account can be given for the
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origins of any behavior, action, or episode. Why then should cultural explanations be offered just in some cases? Surely this has to do with the assumption that the law is already based on a fund of tacit cultural knowledge shared by all participants from a similar background. This cultural background knowledge is part of everyday moral thinking as well as the formal deliberations of the law—both of which use reason- ing based on narrative models or templates.22 These narratives tend to present the values and perspectives of the dominant culture as simply common sense and so obscure the cultural context of moral and legal reasoning.23 The recognition of culture also reflects the politics of identity and exclusion. Certain indi- viduals or groups are recognized as different accord- ing to the history, norms, and values of the dominant society and its institutions. Their behavior therefore requires explication in terms of culture.
Framing behavior as culturally influenced or de- termined thus serves not only to explain some of their historical and contextual origins, but also to separate and divide groups. By its very nature, cultural expla- nations invoke collective values and experiences to explain individual actions. Although aiming to rec- ognize the collective roots of an individual’s identity, experience, and behavior, the use of a cultural de- fense may contribute to stereotyping and stigmatiz- ing whole groups or communities.16
For example, in 1988 a judge in Quebec, Monique Dubreuil, sentenced two men convicted of the gang rape of a young woman to 100 hours of community work and 18 months of house arrest.24 The prosecu- tor had asked for four to five years of incarceration. The judge’s rationale for this lenient sentence was “cultural sensitivity.” The young woman and the perpetrators were all Haitian immigrants to Canada, and the judge opined, “The absence of regret of the two accused seems to me to be related more to a cultural context, particularly with regard to relations to women, than to a truly sexual problem” (Ref. 24, author’s translation). Women’s rights groups as well as many within the Haitian community in Montreal were outraged. In effect, in the name of cultural sen- sitivity, a whole group was stereotyped and stigmatized.
The problem centers on how culture and commu- nity can be thought about in ways that acknowledge distinctiveness without stereotyping or essentializ- ing—that is, reducing the complexity of a group or individual to a single essential characteristic.25 Such a
simplification can only be achieved through a de- tailed account that shows the links between past and present social contexts and behavior. In her discus- sion of the culture defense, Anne Renteln2 employs the UNESCO view of culture as “traditional culture” shared by a group, but in the contemporary world, most people are between cultures, forming their own distinctive hybrid identities in which their relation- ship to community and tradition is shifting, ambig- uous, and often contentious.26 Moreover, culture it- self cannot be understood without looking at the power relationships between minority groups and the dominant society. Approaching culture from the point of view of the dynamics of power and hybridity works against the tendencies to essentialize and ste- reotype the “other” and underscores the ways in which culture exerts its effects, not only through re- modeling the individual’s brain,27 but even more forcefully through constructing and justifying social institutions and practices.28
Conclusions
As our countries become more diverse, we must make certain that efforts to respect cultural difference and diversity do not lead us to essentialize and exoti- cize the “other.” Misguided beneficence may inad- vertently make people second-class citizens and im- pede their integration into the community. Being part of a multicultural society means being subject to the same judicial rules as the rest of the community. However, as with the provision of mental health ser- vices, true equity does not mean that everyone re- ceives precisely the same treatment regardless of their ability to understand and respond. Taking culture into account means that the purposes of the criminal justice system—which include prevention and reha- bilitation—can be achieved more effectively. Cul- tural awareness must be coupled with an equally as- tute political awareness that traces the consequences of clinical or forensic consultations out into the larger society. Ultimately, culture is not something that be- longs just to the person in an identified minority group; it pervades the whole judicial system.
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