A Chinese man kills his wife with a claw hammer and receives probation because a judge finds that his rage and violence would have been acceptable in Chinese culture. A Japanese woman attempts parent-child suicide, and later faces murder charges for the death of her child. The criminal law’s paradigmatic defendant is the Euro-American white male: how should the criminal courts and the communities of victims and defendants respond to such situations? Participants will be asked to engage in a discussion that steps away from the debate on using culture in the courtroom, and focuses on crafting community responses to the "cultural defense."
What happened to Jian Wan Chen two years ago still casts a long, cold shadow over New York's Chinatown. "Even thinking about that case makes me afraid," a battered Chinese woman told a counselor recently at the New York Asian Women's Center. "My husband has told me: 'If this is the kind of sentence you get for killing your wife, I could do anything to you. I have the money for a good attorney.' "
On Sept. 7, 1987, Jian Wan Chen's husband smashed her skull with a claw hammer after she allegedly admitted to having an affair. Chen's body was discovered by her teenage son in the family's Brooklyn apartment. In March, Brooklyn Supreme Court Justice Edward Pincus sentenced Jian's husband to 5 years probation on a reduced manslaughter charge. After hearing the testimony of a Hunter College anthropologist, the judge concluded that Dong Lu Chen, a recent immigrant, was driven to violence by traditional Chinese values about adultery and loss of manhood.
The ruling sent shock waves through the Asian-American community last spring, and prompted calls for an end to the use of the so-called "cultural defense" in felony trials. Asian and women's groups quickly banded together to challenge the ruling, saying it
endangered women in general and immigrant women in particular.
But in recent months that coalition has splintered, primarily because Asian activists are reluctant to torpedo the cultural defense. They say it is needed to protect immigrants in U.S. courtrooms. Feminists call it an invitation to murder.
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Chang said it has always been hard to convince Asian immigrant women to endure the indignities and confusion involved with obtaining court orders of protection. Now, she said, the Chen case has convinced many women that the effort isn't worth it. There are no reliable statistics on the incidence of spousal abuse in New York's Asian community. The New York Asian Women's Center served about 200 women last year, most of them Chinese. But experts say that number represents only a fraction of the women who need help. The few who break out of their silence often know only one place to turn: male-dominated village associations, remnants of the rural villages left behind. Such groups frequently advise women to return to dangerous homes, Chang said.
In addition, immigration reforms have snared millions of immigrant women in a dangerous net. In 1986, Congress passed the Immigration Fraud Amendment, which requires that new immigrants who marry U.S. residents must prove their marriages are not a sham.
Tens of thousands of Chinese women have immigrated to the United States in recent years, many of them sponsored by husbands who came here years before to find work, according to immigration officials. Those married less than two years must prove they are living with their husbands or face deportation. In effect, says immigration attorney Benjamin Gim, the law has become the "spousal hostage act."
"It enables one spouse to really dominate and browbeat the other spouse," he said. "But more often it is the wives who are being held hostage." Lacking English skills or money, frightened by the police and hospitals, a Chinese immigrant is unlikely to press charges against a husband who holds the key to her citizenship, Gim said. The Chen case makes it even less likely that battered women will come forward, said Gim, who has been practicing immigration law in New York City for 36 years. "The publicity about this case is disturbing to a lot of women," he said. "Their view is that maybe the courts here protect the male the same way the system protects the male in China."
In fact, say critics, Dong Lu Chen would have been dealt with far more harshly by a Chinese court. "In China, if a man accuses his wife of adultery, then he goes to the courts," said Xiaolan Bao, a doctoral student at New York University who specializes in the comparative study of Chinese and American women. "He has no right to kill his wife. It is absolutely not part of Chinese culture."
Despite deep misgivings about the Chen case, however, many prominent advocates for Asian-American rights support the use of the cultural defense in U.S. courtrooms.
"You don't want to allow backward notions of justice to affect our standards of justice, especially when we've made progress in the fields of women's rights and gay rights," said Margaret Fung, executive director of the Asian-American Legal Defense and Education
Fund, an advocacy group based in Manhattan. "But to bar the use of a cultural defense promotes the idea that when people come to America, they have to give up their way of doing things," she said. "That is a notion we cannot support. You have to weigh various factors, and permit the cultural defense if it's appropriate."
What was offensive in the Chen trial, many Asian activists say, was the use of outdated and inaccurate descriptions of sexual mores in modern China - such as the contention that a cuckolded Chinese man was more likely than an American to become violent - not the use of anthropology.
Juries and judges need to understand the religious and social forces that shape an immigrant's actions, proponents say. Even if, on occasion, it justifies murder.
Four years ago in Santa Monica, Calif., a Japanese housewife walked into the surf with her two young children after learning that her husband was having an affair. Bystanders pulled her out of the water, but her children drowned, and she was arrested on charges of
first-degree murder. More than 4,000 local Asian-Americans signed a petition urging clemency, saying Fumiko Kimura was following the ancient Japanese rite of oyako-shinju, or parent-child suicide, which is not considered murder in Japan. She was allowed to plead guilty to
voluntary manslaughter and was sentenced, like Chen, to five years probation.
Child-murder doesn't sit well, even with those who support the Kimura decision. But they draw a distinction between the actions of Fumiko Kimura and Dong Lu Chen. Whatever one thinks of oyako-shinju, it is sanctioned in Japan, said Monona Yin, a spokeswoman for the Commitee Against Anti-Asian Violence. "You cannot say what Chen did is sanctioned in China today."
Some lawyers say the cultural defense has a rightful place alongside legal strategies used by battered women, Vietnam veterans and the mentally ill - namely, that their experiences may twist their views of immediate danger and the necessity to kill.
To a court that ignored the press of cultural forces, Brooklyn Law School professor Susan Herman recently wrote, Fumiko Kimura would not have looked any different from Joel Steinberg, who was convicted earlier this year of murdering his illegally adopted daughter.
Sweep aside Kimura's traditional reasoning - that it would be unfair to leave her children motherless and dishonored by their father's act of adultery - and she is indistinguishable from any other parent who kills his or her child.
But many legal scholars and feminists worry that the new, "hot" legal strategy is little more than a trendy justification for male violence against women. In several recent cases across the
country, ranging from Laotians in Minnesota to Ethiopians in California, the cultural defense has surfaced when immigrant men have murdered or raped immigrant women.
When Holly Maguigan, a law professor at New York University, polled colleagues recently about the meaning of cultural defense, she said their response was unanimous: "That's what makes men feel it's okay to kill their wives. . . Generally I think it's an advance whenever we can bring more information into the courtroom" about what shapes a killer's actions, Maguigan said. "But it's no accident that Judge Pincus chose to do it when the life lost in the case was that of a woman."
The issue has driven a wedge between Asian activists and feminists, who initially banded together to protest the Chen ruling. In May, the National Organization for Women, the Organization of Asian Women, and the Committee Against Anti-Asian Violence announced
plans to file a complaint against Pincus with the state Commission on Judicial Conduct. But on the eve of filing the complaint, the Asian organizations pulled out. Fung said the groups felt Pincus should not have been singled out for blame, saying the Brooklyn district attorney's office inadequately challenged the testimony of the anthropologist who testified for the defense.
Yin said the disagreement went deeper. "The NOW petition was too broad," she said. "It disavowed any cultural information altogether."
The president of the city's NOW chapter, Francoise Jacobsohn, said she understood the concerns of the Asian-American organizations but was frustrated by their action. "They were afraid that we were going to go around with a battering ram and destroy the whole concept
of a cultural defense," she said. "But the judge needed to know that we did not find his statements acceptable."
The complaint is still pending before the state Commission on Judicial Conduct, but experts say the ruling is legally sound and unlikely to be challenged. Probation is within sentencing guidelines for second-degree manslaughter.
Maguigon warns that the Chen case calls out for "damage control."
"In the real world, other judges are going to find this case 'innovative,' " she said recently. "And you know that lawyers defending immigrant men accused of killing their wives are rushing to get this transcript."
Lawyers at the city's Legal Aid Society say that, in the wake of the Chen decision, they will use the defense at any opportunity. And Hunter College anthropology professor Burton Pasternak, who testified for the defense in the Chen case, says he has received several
requests to testify in similar murder cases - including one involving a Korean man. . . .
The recent publication of an article by Doriane Lambelet Coleman, "Individualizing Justice Through Multiculturalism: The Liberals' Dilemma," in the Columbia Law Review, raises significant questions concerning legal scholarship on the subjects of culture, gender, race, and multiculturalism. [Coleman argues that permitting cultural evidence creates an "inherent tension that is created between the values of feminism and multiculturalism. This dilemma must be solved by barring cultural evidence, because admitting cultural evidence discriminates against the victims of immigrant defendants, violating the anti- discrimination principle of the Equal Protection Clause. Applying a balancing test yields the conclusion that the interests of immigrant victims should trump the interests of immigrant defendants. Further, allowing culture in the courtroom risks "balkanization" and the recreation of "gender or racial apartheid." Nothing, including multiculturalism, can be permitted to "pervade the law."]
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In an article that addresses the difficult nuances of "talking culture" in the context of sexual violence against women of color, Sherene Razack argues that, in the face of racism, it sometimes has made sense for feminists not to talk about culture at all. This is because of the prevalence of the view that violence in immigrant communities is somehow a cultural attribute. Culture in immigrant communities is defined through male domination, while in the progressive "West," male domination is considered to be largely a thing of the past. Razack says:
Culture talk is clearly a double-edged sword. It packages difference as inferiority and obscures gender-based domination within communities, yet cultural considerations are important for contextualizing oppressed groups' claims for justice, for improving their access to services, and for requiring dominant groups to examine the invisible cultural advantages they enjoy.
It is indeed difficult to talk about culture. Against a backdrop of imperialist discourse, within a framework of antiracism and antisexism, it is a project that requires constant contextualization and mediation. Yet many scholars and activists have built a foundation, engaging in work that both interrogates the transnational flow of ideas, concepts and actions such as feminism and nationalism, and examines critically how notions of culture are deployed for political ends.
In the specific context of cultural defenses asserted in criminal cases, scholars and practitioners have made various suggestions that develop a process of navigating these complex questions. The difficult issues raised by "cultural defenses" require rejecting an all-or-nothing approach that either precludes all cultural evidence, or admits it without challenge. Holly Maguigan has argued that endemic racism and sexism in criminal proceedings preclude barring cultural evidence in the manner Coleman proposes, because racism and sexism invariably will shape the perception of a defendant's mental state as unacceptable or incomprehensible. In cases where gendered violence is at issue, Maguigan asks prosecutors to challenge what is presented as cultural evidence, through cross-examination, rebuttal testimony, and reasoned argument. As stated above, I have proposed that, given the culturally racist tropes that frequently are deployed in these cases, we look at the subject position of who is asserting cultural evidence, and whether the assertion of this evidence reifies stereotypes that further subordination. Information about a defendant's culture should never be reduced to stereotypes about a community, but should concretely address the individual's location in her community, diaspora, and history. Maguigan and I ask that prosecutors and community groups challenge evidence as irrelevant when it is based on stereotypes with little basis in reality, provide testimony to demonstrate how particular cultural notions are contested within communities, and present evidence that is based on accurate descriptions of the pressures that individuals face, both within their communities and without.
In contrast, Coleman would completely excise any discussion of "culture" from criminal cases except at the sentencing phase--in which defendants could present as mitigating evidence information on how their conduct was shaped by their cultural context. This constitutes Coleman's "less burdensome alternative." However, as Maguigan points out, because of the operation of discretion of trial judges in the sentencing phase, limiting consideration of cultural factors to this point risks systematic discrimination against people of color. Thus, one result of Coleman's proposal could be the very "balkanization" she fears. Coleman also asserts that she would allow an immigrant defendant to make "culture-neutral arguments" like any other defendant--one would hope that she would not preclude immigrants from making the same arguments as non-immigrant defendants! However, she would not allow the admission of any cultural testimony proffered as an "excuse or a reason" for the defendant's acts. What would this mean for an immigrant woman, charged after attempting to commit parent-child suicide, who sought to admit testimony both as to being battered and as to particular factors specific to her status as a woman of color and as an immigrant? Presumably, Coleman's prescription might allow her to admit evidence on Battered Woman Syndrome, just like any "American" battered woman, but preclude her from presenting other evidence directly relevant to her mental state. Coleman's scheme could exclude evidence such as how the woman was unable to leave the abusive relationship due to patriarchal structures both within her community, in the form of lack of support, and outside, in the form of police who do not believe her story. Also relevant, but excluded by Coleman's prescription, could be evidence as to the woman's concerns about her immigrant status, an inability to find employment without English skills, and the lack of any language-accessible shelter services. Exclusion of evidence in the name of saving immigrant women and children from the "chauvinism that is at the core of [their] traditions" is not an appropriate or effective response to the difficulties posed by considerations of culture in the courtroom. . . .