April 1995

Cultural Defense

The light is fading, and through the slits of the vents, tiny slathers of light come seeping through. The afternoon has gone, and the mystical hour of dusk has arrived. She reaches over, tightly grabs the glass of water, and thinks about another time. A time when she froze at the sound of footsteps approaching her door, or the abject fear she felt at the screech of tires pulling into the driveway. Her eyes close in painful recollection of repeated beatingsÑher body shuddering with every remembrance.

On March 3, 1995, President Bill Clinton announced the new Office on Violence Against Women, a task force dedicated to stopping the abuse of women. Calling it "a problem we all share," Clinton has allocated millions to stopping the abuse. According to the 1990 Domestic Violence Homicide report, an astounding 66 percent of the women that were killed in San Francisco died from the specter of domestic violence. That statistic alone speaks volumes about the epidemic of domestic violence in our country today. In another disturbing statistic, the Federal Bureau of Investigation reports that one-third of the women killed in this country die at the hands of their spouse or boyfriend. While these statistics may seem shocking, what is even more offensive is the leniency granted to the defendants in these cases because they can claim to have grown up in cultures where it is acceptable to beat one's partner.

There are many reasons why abusers are often able to avoid harsh punishment from the judicial system. Frequently, women do not report incidents immediately after they occur, so there is often a lack of evidence. Many women, even at the preliminary hearing stage, are extremely reluctant to testify against their abuser, fearing retaliation. In many unfortunate cases, the victims of abuse are recent immigrants, or women who do not speak English fluently and are afraid of deportation or other consequences.

However, in some bizarre cases, men are admitting their harassment, abuse, and murder of their spouse or girlfriend, and are able to escape with little or no jail time. The strategy used is a potentially dangerous legal maneuver called cultural defense.

As she speaks, her head bows slightly in shame and hesitance. Mrs. Lee raises her head cautiously and in her eyes all the pain of seven years of abuse are reflected. Broken bones, bruised eyelids, and bloody lips are permanent memories of her past, with the future still unknown, like a cloudy crystal ball. She speaks, as many do, about the children. For the children, she repeats over and over: I stayed for the children. She recalls confiding in her cousin about the weekly beatings and humiliation she was forced to endure. It's your job to accept your husband, her cousin says with indignation, you don't tell outsiders what's going on and advertise your shame. Accept it patiently and maybe he will stop.

Leti Volpp, a former law clerk to a U.S. District Court Chief Judge, is now a legal advocate for the Equal Rights Association. In her article for the Harvard Women's Law Journal in 1990, she describes cultural defense as a legal strategy defendants use "in attempts to excuse criminal behavior." According to Volpp, the theory behind the defense is to explain the abuser's mental state when they committed the crime. "The theory underlying the defense," Volpp says, "is that the defendant, usually a recent immigrant to the United States, acted according to the dictates of his of her culture, and therefore deserves leniency."

Dong Lu Chen, a Chinese man living in New York, had suspected for some time that his wife was having an affair. After repeated taunts and accusations toward her, he bludgeoned her to death with a hammer. At his trial an "expert" witness testified that in China, an adulterous woman is a source of great shame, and evidence of her husband's weak character. This witness also testified that "one could expect a Chinese to react in a much more volatile, violent way...than someone in our society." Under cross-examination, he admitted that he couldn't name one instance where a man had actually killed his wife for adultery, but asserted that it was part of Chinese culture. Despite the shaky nature of the "expert's" testimony, the judge declared that the defendant (Chen) was a "victim that fell through the cracks because society didn't...respond in time," and sentenced him to five yearsÑprobation. In another example of gross injustice, a Hmong man from Laos in San Joaquin had kidnapped and raped another Laotian woman who was attending the college nearby. He was eventually arrested and charged with rape and kidnapping. During his trial, the man argued that in the tradition of the Hmong, men were to kidnap a woman he wanted to marry, with the woman presumably saying "no" all along. He then takes her to his parents house, where he consummates the marriage. In this fashion, the man claimed he was only following his cultural background, and he should not be prosecuted. Another "expert" witness, a white, male, cultural anthropologist testified on the man's behalf, claiming that this was an actual practice in Laos, even though his research data was dated and flawed. Eventually, the judge sentenced the man to 90 days in a county jail, and a $1000 fine, with the charges being reduced to false imprisonment, which is only a misdemeanor.

Jackie Agtuca, a former Asian American Studies Professor at San Francisco State University, is certain that positive changes can happen to stop these men from abusing women, and prevent further instances like the Chen case from happening. Agtuca optimistically describes the new Office on Violence Against Women, to which she has been appointed, that has been created under the Department of Justice with the passage of the Crime Bill. With an overall budget of $1.62 billion, the department is poised to potentially awaken society to the enormity of the problem. But until then, injustices like the Chen case, and others, prevent millions of women from reporting abuse, with the fear that farcical rulings from justices will only increase their pain.

However, there are lingering questions and ramifications that the ill usage of cultural defense can bring up. There are circumstances, of course, in which certain background information is pertinent to the case and needs to be brought forth. However, to excuse a person's violent behavior by blaming society and culture, leads to a dangerous legal inequality. Would there be cultures that would merit more consideration than others? Would there be a hierarchy of cultures that would allow Asian cultures more leeway than perhaps European cultures? What kind of experts and evidence will be admissible? The sadly forgotten voice in all of these cases is the true victim, the woman. The men have taken it upon themselves to impose their culture, often unwillingly on a woman, who is now living in the United States, supposedly under the protection of the Constitution and the Bill of Rights. The freedom from dominance, pain and abuse should be a right for every woman living in the United States. The right to dominate, abuse and cause pain is one that no court, law, or judge should validate. The freedoms may be cultural, but the rights should never be.

The days turned into weeks, the weeks into months, the months into years, until the burden of abuse spread like a miasma in the brain. In a flat monotone, she describes running to the police, speaking of her abuse in broken English, and eventually pressing charges against her husband. At the hearing, her husband impassionately testifies that in his culture, a man is allowed the right to beat his wife. He talks of his love for her, and his devotion to his family. She remembers the pain and anger she felt when he was sentenced to four years probation. He's not going to jail, she repeated over and over, he's not going to jail. During the first few months after the hearing, she recalls the fear. But again, days turned into weeks, weeks into months, and months into years. He has passed his probationary period, and swears he is a rehabilitated man. She is still painfully conscious of potential relapses lurking by, but they are making small progress. Maybe he is a changed man, she says fervently, miracles do happen. Maybe, she states firmly.

A woman's hopes are woven of sunbeams; a shadow annihilates them.