Cultural and Religious Defenses to Criminal Charges

What happens when a person’s religion or culture comes into conflict with criminal laws? For example, can people use controlled substances in religious ceremonies?

By , Attorney · UC Berkeley School of Law
Updated September 08, 2020

The U.S. Constitution guarantees freedom of religion, and we live in a diverse society, where many different cultures are represented. However, what happens when a person's religion or culture comes into conflict with criminal laws? For example, can people use controlled substances in religious ceremonies? Can Christian Scientists refuse medical treatment for their children?

In general, there is no general religious or cultural defense to criminal conduct. However, some states have enacted statutes that allow defendants to raise religious defenses to certain criminal charges. And, in many situations, prosecutors may treat people who commit crimes out of deeply held religious or cultural beliefs more leniently than people who commit the same crimes for other reasons. Likewise, people who claim that their criminal activity is actually an expression of cultural or religious identity may be sentenced to a lighter sentence.

Religious Defenses to Drug Use

The use of sacramental drugs in certain religious ceremonies is often touted as a defense to criminal activity, based on religious freedom. In 2006, the US Supreme Court decided that under the federal Religious Freedom Restoration Act, members of a New Mexico church could not be prohibited from using sacramental ayahuasca, a hallucinogenic tea and a controlled substance. (Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).)

A handful of states, including Arizona, Colorado, New Mexico, Nevada, and Idaho, also allow people to possess peyote, a psychedelic cactus and controlled substance, for religious purposes. Native Americans have long used peyote for medicinal reasons and religious ceremonies. In some states, the defense can be raised only by people who are members of federally-recognized Indian tribes, or by people who are not inmates in jail or prison. In all of these states, religious use is an affirmative defense to the charge of possession of a controlled substance.

However, while some courts and states have permitted the use of psychedelic drugs by small congregations, as a general rule, courts have refused to recognize any religious or cultural defense in cases involving marijuana or other widely used drugs.

Child Abuse and Failure to Seek Medical Care

Religious and cultural defenses often come up in cases involving crimes against children. The Constitution guarantees not only freedom of religion, but also (by application) gives parents the freedom to raise their children as they see fit. However, there are limits. As a general rule, people of all religious and cultural backgrounds are held to the same standards when it comes to child abuse and providing medical treatment to children. A parent's duty to care for a child overrides any religious or moral objection on the part of the parent.

For example, numerous parents whose religions promote faith healing, including Christian Scientists, have been tried and convicted of child abuse and neglect or even manslaughter or murder after sick children have died without medical care. Almost 70 years ago, the United States Supreme Court ruled that: "the right to practice religion freely does not include liberty to expose … the child to communicable disease, … ill health or death." (Prince v. Massachusetts, 321 U.S. 158 (1944).)

However, until recently, Oregon law allowed parents to raise faith-healing defenses to charges of crimes against their children. After several children associated with one church died as a result of their parents' refusing medical care for treatable illnesses, Oregon lawmakers amended the law and removed the faith healing defense. Since then, several Oregon parents have been charged and convicted of manslaughter or child mistreatment in faith-healing cases. While some states still retain faith-based defenses for crimes against children, these defenses have not been successfully used in any cases where children have died as a result of medical care withheld on the direction of their parents.

Sex and Marriage

Religious and cultural defenses often come up in crimes related to sex and marriage. For example, New Jersey's incest law (which otherwise prohibits marriage between related adults) allows members of certain Jewish sects to practice marriage between uncles and nieces. However, no state recognizes a religious defense to the crime of bigamy (multiple wives), and defendants who have tried to raise religious objections to marital rape charges have also been unsuccessful.

Although there is no general cultural or religious defense to sex crimes, some criminal defendants have successfully used cultural evidence to negotiate a more favorable plea deal or obtain a lesser sentence than the maximum allowed by law. For example, in 1985, a Hmong man in California kidnapped and raped a college student. He later claimed that it was an act of bridal capture, a recognized form of marriage among the Hmong people in Southeast Asia. After considering evidence of the custom, the judge allowed the man to plead guilty to a lesser charge.

Obtaining Legal Assistance

If you are charged with a crime as a result of a religious or cultural activity, you should talk to an experienced criminal defense attorney who practices where you live. Some states have limited laws allowing defendants to raise religious defenses to certain crimes. In all states, evidence of your religious beliefs and cultural practices may result in a more favorable outcome in your case. An attorney can explain the law in your state and help you navigate the criminal justice system and protect your rights.

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