Cultural Evidence, Child Maltreatment, and the Law

In: Child maltreatment: journal of the American Professional Society on the Abuse of Children, Volume 5, Issue 2, p. 146-160

Abstract

This article addresses child maltreatment law's use of cultural evidence. Such evidence, offered by immigrant and nonmainstream parents accused of child maltreatment, serves to mitigate intervention in families or to minimize punishment for the offense. The article explores how the two areas of law that currently regulate child maltreatment—criminal and child welfare law—approach the use of such evidence. Civil, child welfare law tends to formally accept and allow for the use of cultural evidence. Criminal law rejects cultural evidence to mount a formal cultural defense that would automatically exempt individuals from punishment for criminal acts, but the system still allows cultural evidence to affect legal decisions. How both systems actually use cultural evidence in practice, however, remains to be determined. The article offers an approach to encourage both legal systems to evaluate and consider cultural evidence more systematically and critically. The analysis also addresses likely objections to the proposed alternatives.