When Culture Means Gender: Issues of Cultural Defence in the English Courts
| DOI | http://doi.org/10.1111/1468-2230.6604002 |
| Author | Anne Phillips |
| Published date | 01 July 2003 |
| Date | 01 July 2003 |
When Culture Means Gender: Issues of Cultural
Defence in the English Courts
Anne Phillips
n
The use of cultural defence has been much discussed in the American context and
has figured as one of the areas of concern in feminist assessments of
multiculturalism. This paper examines two categories of cases from the English
courts, those where cultural context has been seen as significant in interpreting the
actions of female defendants, and those where ‘culture’ is invoked to explain severe
acts of violence against women. It argues that cultural arguments become available
to female defendants mainly when they conform to stereotypical images of the
subservient non-Western wife. They have not, on the whole, been successfully
employed by male defendants to mitigate crimes against women, though there are
troubling exceptions. The larger problem is that mainstream culture itself
promotes a gendered understanding of agency and responsibility, as when it
perceives men as understandably incensed by the sexual behaviour of their women,
or women as less responsible for their actions because of the influence of men. The
conclusion is that the uses and abuses of cultural defence highlight issues that have
wider provenance, for it is when cultural arguments resonate with mainstream
conventions that they have proved most effective.
The notion of ‘cultural defence’ surfaced in American law journals in the
mid-1980s, in the wake of a number of cases where defendants invoked the
traditions of their culture to explain or mitigate their actions.
1
It has subsequently
figured as one of the areas of concern in the feminist literature on
multiculturalism, where the reliance on ‘cultural tradition’ is widely regarded as
legitimating crimes against women.
2
One much discussed case is that of
Dong-lu Chen, a Chinese immigrant to New York who battered his wife to death
with a hammer some weeks after discovering she was having an affair.
3
At
his trial in 1988, an expert witness testified that in traditional Chinese culture,
a woman’s adultery would be conceived as an enormous stain on the man;
that he would find it difficult to remarry if he divorced his wife for adultery; and
n
Gender Institute, London School of Economics. Many thanks to the Nuffield Foundation for
funding the research project on which this paper is based and Oonagh Reitman, for helping
identify key cases and providing invaluable advice.
1 Key articles include J. P. Sams, ‘The Availability of the ‘‘Cultural Defense’’ as an Excuse for
Criminal Behavior’ (1986) 16 GJICL, 335; P. J. Magnarella, ‘Justice in a Culturally Pluralistic
Society: the Culture Defense on Trial’ (1991) 19 JES, 65; A. Dundes Renteln, ‘A Justification of
the Cultural Defense as a Partial Excuse’ (1993) 2 CRLWS, 437; D. C. Chiu, ‘The Cultural
Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism’ (1994) 8 Pacific Basin Law
Journal, 80; L. Volpp, ‘(M)isidentifying Culture: Asian Women and the ‘‘Cultural Defense’’ ’
(1994) 17 Harvard Women’s Law Journal, 57; D. Lambelet Coleman, ‘Individualizing Justice
Through Multiculturalism: the Liberal’s Dilemma’ (1996) 95 Columbia Law Review, 1093; N. S.
Kim, ‘The Cultural Defence and the Problems of Cultural Preemption: A Framework for
Analysis’ (1997) 27 New Mexico Law Review, 101; J. Van Broeck, ‘Cultural Defence and
Culturally Motivated Crimes’ (2001) 9/1 European Journal of Crime, Criminal Law and Criminal
Justice, 1.
2 The issues associated with cultural defence feature in Susan Moller Okin’s highly influential essay
‘Is Multiculturalism Bad For Women?’ in Susan Moller Okin and Respondents, Is Multi-
culturalism Bad for Women? (Princeton, NJ: Princeton University Press, 1999), alongside a range
of other illustrations designed to highlight tensions between feminism and multiculturalism.
3People vChen No 87-7774 (Supreme Court, NY County, 2 December 1988).
rThe Modern Law Review Limited 2003 (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
510
that violence against wayward spouses was commonplace in China.
4
The judge
accepted that Chen was ‘driven to violence by traditional Chinese values about
adultery and loss of manhood’,
5
convicted him of second-degree manslaughter,
and sentenced him to five years’ probation. In another much cited case, Kong
Pheng Moua, originally from Laos, was charged with rape and kidnapping after
abducting a young Hmong woman from her workplace at Fresno City College
and forcing her to have sex with him.
6
At his trial in California in 1985, it was
argued that he was acting in accordance with a traditional Hmong practice of
marriage by capture, in which the man would establish his strength and virility by
seizing the woman, and she would ritually protest his sexual advances in order to
establish her virtue. Kong Moua was found guilty only of a lesser charge of false
imprisonment, and was sentenced to 120 days in prison and a fine of $1 000; $900
of this was to be paid to his victim in what experts described as the traditional form
of ‘reparation’.
In the American literature, the use of cultural defence has given rise to a
polarised debate, with some suggesting it be formally established as a new kind of
criminal defence (akin therefore to currently recognised defences like diminished
responsibility or self-defence), and others that it be excluded from the courtroom.
This latter position has often drawn on explicitly feminist arguments. In the
aftermath of the Chen judgement, for example, the National Organization of
Women argued that cultural defence should be inadmissible, because it so self-
evidently reinforces patriarchal power.
7
In one influential critique, Doriane
Lambelet Coleman argues that the use of cultural evidence weights the interests of
defendants above those of victims, and is particularly damaging to women. While
she acknowledges the right of defendants to cite cultural factors as mitigating
circumstances at the point of sentencing (itself a large concession), she argues that
only culture-neutral evidence should be permitted in establishing the question of
guilt. Thus ‘a defendant who killed his wife upon discovering that she had strayed
from the marital bed could interpose the traditional defence of provocation’, but
he ‘would not get the benefit of arguing that in his particular culture, the shame
and devastation is elevated’.
8
The courts need to demonstrate multicultural
sensitivity, but should not allow for ‘cultural defence’.
The debate on cultural defence feeds into a wider discussion of tensions between
multiculturalism and gender equality, polemically signalled in Susan Moller
Okin’s question: ‘Is Multiculturalism Bad For Women?’
9
Issues relating to the
use of cultural evidence form only one small part of this wider discussion, but
4 For good discussions of this case see Volpp, note 1 above; and Sarah Song, ‘Majority Norms and
Minority Practices: Reexamining the ‘‘Cultural Defense’’ in American Criminal law’, paper
presented to the American Political Science Association Annual Meeting, 2002. In Volpp’s
assessment, the witness was testifying more to ‘his own American fantasy’ of Chinese life: divorce
rates have in fact been rising sharply in China, where less than 12% of the population now think
of divorce as disgraceful; and the expert witness admitted that he couldn’t actually recall a single
instance of a man killing his adulterous wife.
5 Cited in Kim, note 1 above, 120.
6People of the State of California vKong Pheng Moua No 315972 (Fresno County Superior Court,
7 February 1985).
7 Volpp, note 1 above, 77.
8 Coleman, note 1 above, 1159.
9 Key contributions include S. Moller Okin, ‘Feminism and Multiculturalism: Some Tensions’
(1998) Ethics 108; M. Deveaux, ‘Conflicting Equalities? Cultural Group Rights and Sex Equality’
(2000) Political Studies 48/3; A. Shachar, Multicultural Jurisdictions: Cultural Differences and
Women’s Rights (Cambridge: Cambridge University Press, 2001); J. Spinner-Halev, ‘Feminism,
Multiculturalism, Oppression, and the State’(2001) Ethics 112; S. Moller Okin, ‘‘‘Mistresses of
Their Own Destiny’’: Group Rights, Gender, and Realistic Rights of Exit’ (2002) Ethics 112.
When Culture Means GenderJuly 2003]
511rThe Modern Law Review Limited 2003
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