Goal IX Newsletter
Spring 2005, Volume 11, Number 2
Spring 2005, Volume 11, Number 2
On Saturday, April 2, 2005, scholars and practitioners from around the country met at the University of Florida Levin School of Law for a Symposium on Culture and Crime. The symposium was organized by Kenneth Nunn, Professor of Law, University of Florida College of Law, and Cynthia Lee, Professor of Law, The George Washington University Law School. Besides Nunn and Lee, the presenters were Nancy Kim, Assistant Professor of Law, California Western School of Law; Kay Levine, Assistant Professor of Law, Emory School of Law; Elaine Chiu, Assistant Professor of Law, St. John's University School of Law; Rashmi Goel, Assistant Professor of Law, University of Denver College of Law; and Linda Friedman Ramirez, an attorney practicing in Florida.
The symposium was a lively, interactive and spirited discussion of the difficult issues which confront both practitioners and scholars when considering the presentation of a cultural defense. A cultural defense involves placing a client's alleged crime in the context of his or her culture, which is in significant ways different from the dominant culture in the United States, and calling upon the jury or the judge to mitigate or forgive the crime. Among the cases discussed were: Fumiko Kimura, who walked into the ocean with her two small children to commit suicide and drown them due to the shame of her husband's infidelity, calling for the ancient Japanese practice of parent-child suicide - only she was saved; Dong Lu Chen, who beat his wife to death with a claw hammer after discovering her adultery, claiming that traditional Chinese values about adultery and loss of manhood lead to great shame; and Kong Moua, a Hmong man who kidnapped and raped a Hmong woman, claiming a traditional Hmong practice of marriage by capture. Cultural defenses for these and other defendants are frought with ethical, social, and practical hurdles. The participants in the symposium discussed those hurdles.
Professor Nancy Kim explained how criminal law's definition of "intent" fails to capture blameworthiness in cultural defense cases. Currently-defined crimes assume the judge and the jury share the same social framework as the defendant, which is usually not the case with a defendant from another culture. Kim proposed another level of analysis of "intent" to help to close that gap: a contextualized purposive intent, which would allow a broader explanation for the motivation for the crime. Professor Cynthia Lee discussed how some cultural defenses are more successful in the courtroom than others due to interest convergence. A defense attorney will be more successful when presenting the cultural claim as similar to white defendants and mainstream culture. Hence, hiring white anthropologists to explain Chinese culture to a jury, or playing on our society's long history of sympathizing with men who react violently when their wives cheat, are likely to be successful strategies. While she accepted this as necessary to practitioners, she suggested scholars must contend with the fallout. Professor Kay Levine proposed that scholars studying cultural defenses should begin to gather empirical data, rather than just looking at the same handful of cases, to learn what really works in cultural difference cases. She suggested coding appellate decisions, examining courthouse files, and interviewing litigants who try these cases. Professor Elaine Chiu proposed a solution to the legal system's inability to describe the cultural defense cases: when the choice of the defendant does in fact reflect the values of our culture but does not fit within our current doctrine, the law should offer a justification defense. For example, Fumiko Kimura's attorneys resorted to a defense of temporary insanity because the law did not allow her a defense which described the sanity of her act. Using the case of Fumiko Kimura as a starting point, Rashmi Goel expressed the problems with using the courtroom to perpetuate stereotypes of a culture. While temporary insanity may have led to the best legal outcome for Kimura, she would never be able to go back to her culture as a "good mother." Goel suggested that the defense attorney should extend his or her obligation to a consideration of the client's personal interests as well as legal interests, leaving the ultimate decision to the client. Finally, Linda Friedman Ramirez, who has presented cultural defenses in her career, expressed that the real problem for clients from different cultures is getting the defense through the courtroom door, mostly due to lack of resources.
The themes of the discussion overlapped and intersected - cultural defenses provide issues over the price of "success" in any individual case, and while alternative modes of legal description are required in cases with a cultural defense, the participants agreed that cultural defenses should not go so far as to provide a safety net for the perpetuation of violence against women and children. While Fumiko Kimura is an easy case for the cultural defense, Dong Lu Chen is not. As always, the questions begin and end at where to draw the lines.
Sponsored by the ABA Commission on Racial and Ethnic Diversity in the Profession ABA Multicultural Women Attorneys Network (a joint project of the ABA Commission on Racial and Ethnic Diversity in the Profession and the Commission on Women in the Profession), ABA Criminal Justice Section, ABA Section of Individual Rights and Responsibilities in cooperation with the University of Florida Levin School of Law
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