Culture as a ‘Matter of Fact’?

This chapter discusses the challenges of treating ‘culture as a matter of fact’ in courtrooms from the perspective of a social anthropologist who was serving for the first time as an expert in a legal proceeding. The legal case concerns a child sexual abuse accusation against a Roma father in Germany and the production of ‘cultural’ knowledge in two German criminal courts. In an effort to overcome the gap between the courts’ expectations and her own understanding of the ‘cultural’ situation, the author engaged in a sort of ‘cultural defence’. Doing so can often lead to what is now commonly recognized as ‘strategic essentialism’. While strategic essentialism can help to win legal battles, it carries the risk of culturalizing, ethnicizing, racializing, or nationalizing certain groups and furthering essentialized representations that can then be used to shape popular discourses, practices, and policies and, ultimately, to repress minority communities. More specifically, this case showed that strategic essentialism, while often a useful strategy in court, is not always necessary for a successful 'cultural defence'. Rather than culturally classifying people, which perpetuates ahistorical and essentialized images, one can rely on a broader, historically contextualized approach to culture that involves drawing parallels between the alleged criminal actions and similar or equivalent cultural practices among different groups, including in the majority society.