(Eugene Volokh) In light of the discussion on the cultural defense / de minimis statute thread, it might be helpful to think of another area where culture is relevant under existing law: mistakes of fact. Consider an example. Theft is often defined as taking another's property, knowing that it is another's property. If you take an umbrella from an umbrella stand thinking that it's yours, and it turns out that it's not, you're not guilty of theft (though you might become guilty if you learn that it's not yours and don't properly return it, assuming the original owner could be found). Likewise, if you take property think that it's abandoned, and it turns out that it's not abandoned, you're not guilty of theft. It doesn't matter whether your belief was reasonable or not, so long as it was sincere (or, to be precise, so long as the jury thinks it was sincere, or has a reasonable doubt about the prosecution's claim that you knew the property was someone else's). A sincere mistake of fact thus means that you're not guilty. Now let's say that someone picks up a bunch of lumber from the side of the road, and when arrested for theft says "I thought it was abandoned." It may well be that in our culture this might be an implausible story (let's assume that this is so), so that the jury would think he's lying. But say he's a recent immigrant from a country (let's call it Afghanistan) in which leaving lumber by the side of the road was a way to signal that anyone is free to take it, much like leaving an old couch or old refrigerator by the side of the road is in our culture often a signal that anyone is free to take it. That would be pretty strong evidence that he may well be telling the truth when he claims that he thought the lumber was abandoned. Note that the principle that honest mistake of fact precludes liability for theft does not include any "cultural defense" as such. Nor is the claim that people from Afghanistan are entitled to some special legal rule to which native-born Americans (or Russians) are not. Nor is the claim that all people from Afghanistan necessarily believe that lumber left by the side of the road in America is abandoned. (Some might know the American custom.) Rather, the claim is simply that a person's culture is relevant evidence in determining what he believed, and that this is relevant when the person's belief is an element of the legal rule. The penis-kissing case discussed in the earlier thread is not a mistake-of-fact case, so I don't want to claim the two examples are entirely analogous. But they are similar: In the penis-kissing case, the de minimis statute provided a defense when, under the circumstances, the defendant's conduct didn't seem likely to be harmful. If I'm right that penis-kissing is harmful chiefly because of an inference about the defendant's likely sexual intentions, then there too the person's culture is relevant evidence, since it bear on what the defendant intended. There too the de minimis statute ought not be seen as including any "cultural defense" as such. Nor would the claim be that people from Afghanistan are entitled to some special legal rule to which native-born Americans (or Russians) are not. Rather, the claim would simply be that a person's culture is relevant evidence in determining what he intended, and that this is relevant when the person's belief is an element of the legal rule.
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