| In a previous issue, Asian Wisconzine featured part of a forum-workshop titled "In Defense of Culture: When is it a viable legal strategy?" put together by Asian Americanlawyers Yer Vang and Carmel Capati, communityleaders Peng Her and Mai Zong Vue,Community lawyer Ronault "Polo" Catalani,and many others belonging to the Wisconsin Organization of Asian Americans (WOAA) and the Wisconsin Asian Bar Association. The forum-workshop was held on November 10, 2006 at Edgewood College's offsite campus in Madison. In part 1, we focused on Dr. Alison Dundes Renteln's presentation as the forum's keynote speaker. Renteln talked about her research work that essentially challenges the monocultural paradigm, "When in Rome, do as the Romans do." In this installment, we continue with Renteln's ideas on why culture and tradition should be considered seriously by the courts in many cases. Asian Wisconzine also interviewed lawyers Yer Vang and Carmel Capati recently in regard to this initiative (which we'll report in a future issue). It is our hope that the message discussed in this forum and interview will reach the people involved in our court system and doesn't fall on deaf ears. In part 1, the following definitions were used by Dr. Renteln: * Culture ( adopted from the UNESCO): "Culture is the dynamic value system of learned elements with assumptions, conventions, beliefs, and rules committing members of a group to relate to each other and to the world, to communicate and to develop their creative potential." * Cultural Defense (from Dr. Renteln's published work): "The defense employed by individuals to claim that their culture is so ingrained that it predisposes them to certain actions, actions which conflict with the law of their new homeland. As a consequence, they maintain that they are not to be held responsible for violating those laws." Cultural Defense Aside from the premise of the cultural defense that there are culturally varying ways of behaving, Renteln pointed to individualized justice. "The legal system already takes into account if someone is a juvenile, or someone has an intellectual disability, if someone is male or female, and so on," she explained. "The law already takes subjective characteristics or various attributes into account, so the argument that cultural attributes (or) factors should be considered is really not a radical departure from the notion of individualized justice, which our legal system already accepts." Her general argument in favor of cultural defense was in terms of cultural conflicts. "There are basic norms in most legal systems around the world, general principles of law, " she observed, and gave as examples, the right to a fair trial, the right to freedom of speech and freedom of association, the right to religious freedom, and equal protection of the laws. "The idea that you should take cultural evidence into account, I think, can be justified by referring to these general principles of law. " In hundreds of cases she had studied, however, Renteln observed that 'courts exclude evidence of cultural background saying it's irrelevant. They say that the issue is "What would the reasonable person do?" Court should listen to people's stories Renteln suggested that people should be allowed to tell their stories to the court and that information should be available to the court. "It's a separate question to me how much weight that information should be given, whether it should affect the outcome or the disposition of the case," she stressed. "But where customs involved irreparable harm to vulnerable groups, such as women and children, I would hope that the court will reject the cultural defense, but it's my view in all cases that people should have the right to tell their stories to the court and to present whatever evidence they want -- and that the court should have the resources to evaluate the validity of claims that are being presented, because some of them would be false claims." People have the right to their culture Renteln's other basic argument in favor of having a cultural defense aside from the general principles of law, is that people have the right to their culture. "The right to culture is part of human rights law," she said. "An example: the strongest formulation of cultural life is in the International Covenant on Civil and Political Rights (ICCPR), which guarantees in Article 27 the right to culture. It says: In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language. So the right to culture is part of international human rights law, and this treaty has been ratified by virtually all countries in the world, including the United States. So countries that take seriously their treaty obligations are obligated to protect the right to culture. "The challenge though, is to reconcile competing human rights claims, particularly if some trump the right of others, Renteln was quick to say. "The point is that cultural traditions cannot be dismissed. People have the right to follow their traditions unless they create some sort of difficulty or irreparable harm." Cultural defense in criminal cases In many cases that Renteln encountered involving "cultural defense," they unfortunately seemed to involve crimes. "The basic issue is the question of whether people were provoked by something that would provoke the so-called objective reasonable person," she explained, citing a California case which involved a Mexican American who killed another Hispanic man after losing in a game of poker and being cursed in Spanish " ... tu madre!" When the accused was prosecuted, he argued that he had been provoked by this insult, and the question was whether evidence about the meaning of this ethnic slur could be introduced," Renteln narrated. "And of course it was excluded because it wasn't necessary for the reasonable person. As you may know, if you successfully use the provocation defense, it reduces a murder charge to manslaughter. The defendant would still go to prison for a long time but the sentence would be reduced from murder to manslaughter sentence. The person lost at every level in this case, but the issue was whether it violates equal protection for the court not to consider the cultural evidence to contextualize the meaning of this insult, and that I think was quite a serious argument and deserved more consideration." Another example Renteln cited involved a Thai man in California who was singing in a restaurant's amateur night. "I guess he wasn't a very good singer so people in the audience put their feet up on the table, pointing the toes of their feet at him. If you know what that means in Thai culture -- that's the worst possible insult," she said. "In this case, the Thai took out a gun and shot and killed the people who had put up their feet on the table. He wanted to raise the provocation defense when he was prosecuted for that, and to most American jurists they wouldn't understand the meaning of that insult. He effectively can't use the provocation defense; he could show that he was insulted by the feet pointing at him, but he couldn't point that an objective reasonable person would be offended by that." Renteln likewise focused on treatment of children in many cultures that are misunderstood or misinterpreted as child abuse in the United States. "It seems that there are a lot of cultural conflicts that has to do with child-rearing practices. A lot of the cases deal with folk medicine, like coining," Renteln narrated. "Folk medicine is sometimes misunderstood as child abuse. But in another set of cases that I studied, there are cases where adults touch children in the genital area, and Americans presume, because of our pure puritanical background, that that's child sexual abuse. In other cultures, touching children in the genital area is a sign of affection." Renteln proceeded to discuss many other cultural traditions that were involved in lots of criminal cases that ended up breaking up families, sending people to prison, or worse, leading many to their death. She concluded her presentation by emphasizing the need to discuss the issue continuously and aggressively until those concerned in the justice system hear them loud and clear. |
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| Heidi M. Pascual* Publisher & Editor, Asian Wisconzine * 2006 Journalist of the Year for the State of Wisconsin (U.S.-SBA) |
| In Defense of Culture Forum explores culture in legal defense Part 2 |
| (Left) Workshop on culture considerations in legal defense; (r) Dr. Alison Dundes Renteln |
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