Explores the ways in which the fields of child welfare law and criminal law approach the use of cultural evidence in proceedings and decisions. Child maltreatment systems make extensive use of cultural information. Not only do statutes explicitly require consideration of parents’ cultural practices in determinations of child maltreatment and interventions, but other mandates, such as parental immunity doctrines, offer implicit protection to cultural life. In criminal law, cultural evidence finds far less acceptance, although its use may be necessary in contemporary society to acknowledge the concerns of diverse cultures. A survey of published legal decisions suggests that cultural evidence may mitigate sanctions in criminal law and that it is offered not as a novel excuse but rather to support other existing categories of evidence. Determining how cultural evidence should be used entails addressing ways to increase information, uncover biases, and not overlook other factors, besides culture, contributing to particular maltreatment cases. An analysis of cultural evidence should take into account reliability and relevance, dissenting views of a given culture, and a determination of a cultural practice’s relative harms and benefits. Only vigorous interrogation of cultural evidence can secure justice for those charged with child maltreatment. (64 references)
