Moob Meskas Nteg quaspuj yuav: Kong Moua, a Hmong tribesman from the hills of Laos, drove to the Fresno City College campus looking for his intended bride. Locating her at her job in the student finance office, he spirited her away to his cousins house. Kong Moua called it zij poj niam, or marriage by capture, in his culture an accepted form of matrimony akin to elopement. However, his bride, also a Hmong but more assimilated into American culture, called it kidnaping and rape. She also called the police. Kong Mouas lawyer, in negotiating a plea to the lesser charge of false imprisonment, introduced literature documenting the Hmong marital customs. After reading the material, the judge sentenced Kong Moua to 120 days in jail and fined him $1,000, with $900 of that going to the victim as reparations--far less than the state prison term he could have gotten for kidnaping and rape. Increasingly Used The would-be bridegroom benefited from a cultural defense or, as some attorneys prefer to call it, cultural evidence, a rare but increasingly employed legal tactic to help immigrants who run afoul of unfamiliar U.S. laws. A cultural defense argues that someone reared in a foreign culture should not be held fully accountable for conduct that violates U.S. law but would be acceptable in the country or culture where he grew up. In very rare instances, a cultural defense can lead to acquittal in crimes where intent or motivation is a key element, such as murder. But most often, lawyers and judges say, it helps to reduce the charge an immigrant faces or to mitigate the sentence. Wave of Popularity Cultural defense is riding a new wave of popularity because of the huge influx of Asians from diverse cultural backgrounds into the United States in the last 15 years. The immigration has introduced to American courts such foreign customs as the Hmong zij poj niam and the Japanese oyako-shinju , or parent-child suicide. European immigrants need for cultural defense is minimal, experts say, because the laws of their homelands spring from the same roots as U.S. laws, and because they have immigrated in large numbers for many years and now assimilate rapidly into American culture. I think more and more cases will arise where the issues of ethnicity are going to reach court because people are clinging far harder to traditions than they used to, said Deirdre Evans-Pritchard, a British-born USC instructor with degrees in anthropology and folklore. Examples of cultural evidence used recently across the country in attempts to reduce charges or sentences include: - A Nigerian insurance salesman in Houston, accused of child abuse for hitting his misbehaving nephew and then putting pepper in the boys abrasions, argued that the practice was acceptable discipline in his native Nigeria. He got probation. - At Carson High School near Los Angeles, a Vietnamese family avoided child abuse charges after a friend explained that a boys wounds were the result of cao gio , or coining, a folk remedy to cure headaches by massaging the back and shoulders with the serrated edge of a coin. - A Mexican woman in Los Angeles was accused of child abuse and had her children taken away when she beat her 15-year-old son with a wooden spoon and bit him to punish him for taking money from her purse. She argued that what she did was acceptable discipline in Mexico, and avoided serious penalties. She was ordered to get counseling. - Immigrants from Senegal arrested in New York City for street peddling without permits claimed the permits were unnecessary in Senegal. They also argued that they were unfairly singled out by police as dangerous and prosecuted criminally while other peddlers were given civil citations. The case against them was dismissed. - In San Francisco and Los Angeles, two young Japanese mothers killed their children after learning that their husbands were having affairs. They were allowed to plead guilty to manslaughter after experts asserted that oyako-shinju , or parent-child suicide, is frequently practiced in the womens native culture by wives humiliated by a husbands straying. Mitigating Circumstances Judges and lawyers agree that cultural defense is most widely used--and most generally accepted--in explaining a defendants state of mind or his lack of intent to commit a serious crime, which is helpful in mitigating charges or sentences. Hardly any believe that it can be used to acquit a defendant, excusing him completely for violating a U.S. law. The essence of criminal offense has always been an evil hand and an evil mind, said Michele Maxian, director of special litigation for New York Citys Legal Aid Society, which represents most of the citys criminal defendants and handled the Senegalese cases. Cultural defense proves that the person did not have an evil mind when he did it, she said. So cultural defense is in keeping with a long history of criminal jurisprudence, and I think its great. articles.latimes/1988-07-15/news/mn-7189_1_cultural-defense
Posted on: Sun, 30 Nov 2014 20:55:42 +0000
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