A Nuts and Bolts Study of the Cultural Defense: An Asian American Perspective

Silesian Journal of Legal Studies, Forthcoming

28 Pages Posted: 12 Jun 2014 Last revised: 12 Oct 2015

Date Written: 2014

Abstract

The cultural defense debates are charged with political, racial and feminist undertones. While there is a fear that the legal system would be threatened by making these accommodations for minority cultures and at the same time sees the cultural accommodation, there is also a feeling of the cultural defense being something bestowed upon inferior races and immigrants. On the other hand, proponents of the cultural defense feel that the value systems of minority cultures are marginalized. Further there is an argument that the cultural defense will lead to stereotyping of people from minority cultures. Overall there is skepticism about the court making a determination about the culture of a minority it knows nothing about. There is also resistance by feminists, to the recognition of cultural factors in crimes where victims are women as it would perpetuate practices of patriarchal cultures which is seen as antithetical to the feminist movement. This paper examines the cultural defense discourse in the U.S., situating it in the context of Asian Americans, and proposes a cultural defense test consisting of four questions as a guide for courts applying the cultural defense, in criminal law cases. It also proposes that the appropriate expert for cultural defense cases would be an anthropologist and puts forth guidelines for the expert in these cases so as to enable the court to use their testimony to apply the four question cultural defense test.

Suggested Citation

Kamalnath, Akshaya, A Nuts and Bolts Study of the Cultural Defense: An Asian American Perspective (2014). Silesian Journal of Legal Studies, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2447172

Akshaya Kamalnath (Contact Author)

AUT Law School, AUT Univrsity ( email )

120 Mayoral Drive
Auckland, Victoria 1010
New Zealand

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