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17 Harv. Women's L.J. 57 (1994)
(Mis)Identifying Culture: Asian Women and the Cultural Defense

handle is hein.journals/hwlj17 and id is 65 raw text is: (MIS)IDENTIFYING CULTURE: ASIAN WOMEN AND THE CULTURAL DEFENSE LETI VOLPP* I. INTRODUCTION The cultural defense' is a legal strategy that defendants use in attempts to excuse criminal behavior or to mitigate culpability based on a lack of requisite mens rea.2 Defendants may also use cultural de- fenses to present evidence relating to state of mind when arguing self defense or mistake of fact. The theory underlying the defense is that the defendant, usually a recent immigrant to the United States, acted accord- ing to the dictates of his or her culture, and therefore deserves leni- ency.3 There is, however, no formal cultural defense; individual de- Law Clerk to Chief Judge Thelton Henderson, U.S. District Court, Northern District of California; J.D., Columbia University, 1993; M.Sc., University of Edinburgh, 1989; M.S.P.H., Harvard School of Public Health, 1988; B.A., Princeton University, 1986. I am very grateful to Alison Bernstein, Jodi Danis, Gina Dent, Mallika Dutt, Neil Gotanda, Inderpal Grewal, Deeana Jang, Hyun Kim, Jayne Lee, Jennifer Middleton, Paul Sonn, Ed Swanson, John Hayakawa Torok, Kendall Thomas, Sophie Volpp, and Patricia Williams for their comments and suggestions. Special thanks to Kimberl6 Crenshaw for getting me started and to Brent Edwards for keeping me going. I I put cultural defense in quotes since, as discussed throughout the Article, the use of the term is politically problematic and is a misnomer, given the nonexistence of a singular, formalized defense. 2 In many cases the lack of requisite mens rea is argued on the basis of insufficient mental capacity. An impaired mental state defense is based on the idea that the accused is unable to appreciate the wrongfulness of her act or conform her conduct to the requirements of the law because of a mental disease or defect that she was suffering at the time the offense was committed. MODEL PENAL CODE § 4.01(1) (1962). 3 There have also been attempts to use cultural defenses for non-immigrant defen- dants of color. See, e.g., People v. Rhines, 182 Cal. Rptr. 487 (Cal. Ct. App. 1982) (involving the appeal of a Black man, convicted of raping two Black women, who argued that the trial court failed to take into account cultural differences between Blacks and whites). For a critique of the cultural defense attempted in that case and of Orlando Patterson's cultural defense of Clarence Thomas's down home style of courting:' see Kimberl6 Crenshaw, Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, EN-GENDERING POWER 422 (Toni Morrison ed., 1992). The defense strategy in the murder trial of Native American Patrick Hooty Croy was referred to as a cultural defense. See Denise Ferry, Capitalizing on Race and Culture: The Croy Acquittal and Its Application to Future Minority Cases, 19 CACJ/FoRuM 48, 48 (1992); David Talbot, The Ballad of Hooty Croy, L.A. Tmrns, June 24, 1990, (Magazine) at 16. The following expert testimony was admitted as relevant to Hooty Croy's argument of self defense: testimony by an expert in Indian history and contem- porary affairs about the relationship between Indians and non-Indians in Hooty Croy's

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