Culture and Crime: Kargar and the Existing Framework for a Cultural Defense

Buffalo Law Review

Volumn 47, Issue 2, 1999, Pages 829-873

  Wanderer, Nancy A ^a   Connors, Catherine R ^a  

^a NONE

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EID: 0033434889     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (299)

1. The recent expansion of non-European immigrant communities has been attributed to the passage of federal immigration laws, beginning in 1965, that altered the historic preference for European immigrants. See Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REV. 1093, 1120 (1996). Prior to 1965, preference was expressly given to established European groups, and Japanese immigrants were barred entirely. See id. at 1167 n.149. Today, however, the majority of the twenty million immigrants living in the United States came from non-European countries. See id. In 1992, for example, 29% immigrated from Asian countries and 44% were from Latin America and the Caribbean. See id. (citing Bruce W. Nelan, Not Quite So Welcome Anymore, TIME, Fall 1993, at 10, 10 tbl. (special issue)). Many commentators believe that increasing numbers of criminal defendants are asserting a "cultural defense" because of the recent influx of immigrants, mainly Asians, to the United States. See Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36, 56 n.67 (1995) (citing Malek- Mithra Sheybani, Comment, Cultural Defense: One Person's Culture Is Another's Crime, 9 LOY. L.A. INT'L & COMP. L.J. 751, 751 ("[D]ue to the large influx of Asians into the United States, a clash between Asian cultures and the American criminal justice system currently exists.")). Id. at 56 n.67. See also John C. Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 116 & n.186 (1986).
2. The recent expansion of non-European immigrant communities has been attributed to the passage of federal immigration laws, beginning in 1965, that altered the historic preference for European immigrants. See Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REV. 1093, 1120 (1996). Prior to 1965, preference was expressly given to established European groups, and Japanese immigrants were barred entirely. See id. at 1167 n.149. Today, however, the majority of the twenty million immigrants living in the United States came from non-European countries. See id. In 1992, for example, 29% immigrated from Asian countries and 44% were from Latin America and the Caribbean. See id. (citing Bruce W. Nelan, Not Quite So Welcome Anymore, TIME, Fall 1993, at 10, 10 tbl. (special issue)). Many commentators believe that increasing numbers of criminal defendants are asserting a "cultural defense" because of the recent influx of immigrants, mainly Asians, to the United States. See Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36, 56 n.67 (1995) (citing Malek- Mithra Sheybani, Comment, Cultural Defense: One Person's Culture Is Another's Crime, 9 LOY. L.A. INT'L & COMP. L.J. 751, 751 ("[D]ue to the large influx of Asians into the United States, a clash between Asian cultures and the American criminal justice system currently exists.")). Id. at 56 n.67. See also John C. Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 116 & n.186 (1986).
3. The recent expansion of non-European immigrant communities has been attributed to the passage of federal immigration laws, beginning in 1965, that altered the historic preference for European immigrants. See Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REV. 1093, 1120 (1996). Prior to 1965, preference was expressly given to established European groups, and Japanese immigrants were barred entirely. See id. at 1167 n.149. Today, however, the majority of the twenty million immigrants living in the United States came from non-European countries. See id. In 1992, for example, 29% immigrated from Asian countries and 44% were from Latin America and the Caribbean. See id. (citing Bruce W. Nelan, Not Quite So Welcome Anymore, TIME, Fall 1993, at 10, 10 tbl. (special issue)). Many commentators believe that increasing numbers of criminal defendants are asserting a "cultural defense" because of the recent influx of immigrants, mainly Asians, to the United States. See Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36, 56 n.67 (1995) (citing Malek- Mithra Sheybani, Comment, Cultural Defense: One Person's Culture Is Another's Crime, 9 LOY. L.A. INT'L & COMP. L.J. 751, 751 ("[D]ue to the large influx of Asians into the United States, a clash between Asian cultures and the American criminal justice system currently exists.")). Id. at 56 n.67. See also John C. Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 116 & n.186 (1986).
4. The recent expansion of non-European immigrant communities has been attributed to the passage of federal immigration laws, beginning in 1965, that altered the historic preference for European immigrants. See Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REV. 1093, 1120 (1996). Prior to 1965, preference was expressly given to established European groups, and Japanese immigrants were barred entirely. See id. at 1167 n.149. Today, however, the majority of the twenty million immigrants living in the United States came from non-European countries. See id. In 1992, for example, 29% immigrated from Asian countries and 44% were from Latin America and the Caribbean. See id. (citing Bruce W. Nelan, Not Quite So Welcome Anymore, TIME, Fall 1993, at 10, 10 tbl. (special issue)). Many commentators believe that increasing numbers of criminal defendants are asserting a "cultural defense" because of the recent influx of immigrants, mainly Asians, to the United States. See Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36, 56 n.67 (1995) (citing Malek- Mithra Sheybani, Comment, Cultural Defense: One Person's Culture Is Another's Crime, 9 LOY. L.A. INT'L & COMP. L.J. 751, 751 ("[D]ue to the large influx of Asians into the United States, a clash between Asian cultures and the American criminal justice system currently exists.")). Id. at 56 n.67. See also John C. Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 116 & n.186 (1986).
5. The recent expansion of non-European immigrant communities has been attributed to the passage of federal immigration laws, beginning in 1965, that altered the historic preference for European immigrants. See Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals' Dilemma, 96 COLUM. L. REV. 1093, 1120 (1996). Prior to 1965, preference was expressly given to established European groups, and Japanese immigrants were barred entirely. See id. at 1167 n.149. Today, however, the majority of the twenty million immigrants living in the United States came from non-European countries. See id. In 1992, for example, 29% immigrated from Asian countries and 44% were from Latin America and the Caribbean. See id. (citing Bruce W. Nelan, Not Quite So Welcome Anymore, TIME, Fall 1993, at 10, 10 tbl. (special issue)). Many commentators believe that increasing numbers of criminal defendants are asserting a "cultural defense" because of the recent influx of immigrants, mainly Asians, to the United States. See Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36, 56 n.67 (1995) (citing Malek- Mithra Sheybani, Comment, Cultural Defense: One Person's Culture Is Another's Crime, 9 LOY. L.A. INT'L & COMP. L.J. 751, 751 ("[D]ue to the large influx of Asians into the United States, a clash between Asian cultures and the American criminal justice system currently exists.")). Id. at 56 n.67. See also John C. Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 116 & n.186 (1986).
6. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
7. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
8. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
9. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
10. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
11. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non-abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
12. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
13. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
14. See, e.g., Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 663 (1997) (concluding that cultural defense should be allowed in the examination of individual defendant's circumstances but "the dangerous tendency to extrapolate the defense and arrive at generalized conclusions about communities of 'others' must be checked."); Cathy C. Cardillo, Violence Against Chinese Women: Defining the Cultural Role, 19 WOMEN'S RTS. L. REP. 85, 85 (1997) (examining the utility of the cultural defense in its application to violent acts against immigrant Chinese women); Alice J. Gallin, The Cultural Defense: Undermining the Policies Against Domestic Violence, 35 B.C. L. REV. 723, 725 (1994) (arguing that "cultural defenses should not be used because the United States should not allow other cultures, which do not respect individual liberty and equality in the same manner as American culture does, to subvert the value we place on preventing domestic abuse"); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996) (exploring the theoretical dilemma of reconciling the feminist goal of maintaining a global political movement while avoiding charges of cultural imperialism "[i]n the face of profound cultural differences among women"), id. at 89; Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV. 1311, 1312 (1991) (exploring the ways "culture facilitates the decriminalization of violence against women"); Susan Girardo Roy, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 290 (1995) (advocating for "a comprehensive program directed and funded by the federal government [to] send a message to agencies, courts, and potential batterers and victims that immigrant women have the right to enjoy a non- abusive life in this country" rather than the use of the cultural defense in domestic violence cases) [hereinafter Restoring Hope or Tolerating Abuse?], id.; Melissa Spatz, A "Lesser" Crime: A Comparative Study of Legal Defenses for Men Who Kill their Wives, 24 COLUM. J. L. & SOC. PROBS. 597, 597 (1991) (analyzing three types of legal systems in which a man can kill his wife and escape punishment); Todd Taylor, The Cultural Defense and its Irrelevancy in Child Protection Law, 17 B.C. THIRD WORLD L.J. 331, 364 (1997) (advocating formal recognition of the cultural defense while stressing its irrelevancy in the area of child protection law); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1616 (1996) (calling for the abandonment of "the ethnocentric notion of the inferiority of certain cultures").
15. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post-Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
16. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
17. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
18. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
19. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
20. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
21. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
22. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
23. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
24. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
25. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
26. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
27. See, e.g., Thomas D. Barton, Troublesome Connections: The Law and Post- Enlightenment Culture, 47 EMORY L.J. 163 (1998); Carolyn Choi, Application of a Cultural Defense in Criminal Proceedings, 8 UCLA PAC. BASIN L.J. 80 (1990); Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998); Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 CAL. INTERDISC. L.J. 663 (1998); Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141 (1994); Dan M. Kahan, Ignorance of Law is an Excuse - But only for the Virtuous, 96 MICH. L. REV. 127 (1997); Malek-Mithra Sheybani, Cultural Defense: One Person's Culture is Another's Crime, 9 LOY. L.A. INT'L & COMP. L. J. 751 (1987); Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101 (1997); Donna L. Kotake; Survey: Women and California Law, 23 GOLDEN GATE U. L. REV. 1069 (1993); Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293 (1986); Stanislaw Pomorski, On Multiculturalism, Concepts of Crime, and the "De Minimis" Defense, 1997 BYU L. REV. 51; Cassandra Terhune, Cultural and Religious Defenses to Child Abuse and Neglect, 14 J. AM. ACAD. MATRIM. LAW 152 (1997); Sharon M. Tomao, The Cultural Defense: Traditional or Formal, 10 GEO. IMMIGR. L.J. 241 (1996).
28. See, e.g., Two Iraqi Men Face Hearing, OMAHA WORLD-HERALD, Nov. 26, 1996, at 22 (stating that father of two underage girls pleaded innocent to child abuse charges after he forced them to marry, claiming he was following Islamic culture which allows girls to marry at any age); Myrna Oliver, Immigrant Crimes Cultural Defense - A Legal Tactic, L.A. TIMES, July 15, 1988, at 1 (stating that Kong Moua, a Hmong tribesman from Laos, charged with kidnapping and rape, was allowed to plead guilty to the lesser charge of false imprisonment based on cultural evidence that zij pojniam, or "marriage by capture" is an accepted form of matrimony in the Hmong culture) [hereinafter Immigrant Crimes]; Ann W. O'Neil, Judge Rules Exorcism Death Manslaughter Trial: Two Korean Christian Missionaries are Cleared of Murder in the Killing of Kyung-Ja Chung During Cleansing Ritual, L.A. TIMES, April 17, 1997, at A1 (stating that judge found two Korean Christian missionaries guilty of involuntary manslaughter rather than second-degree murder in the stomping death of a missionary's wife during a demon-cleansing ritual called a sukido); Dick Polman, When is Cultural Difference a Legal Defense? Immigrants' Native Traditions Clash with U.S. Law, SEATTLE TIMES, July 12, 1989, at A1 (stating that Chinese immigrant Dong Lu Chen was convicted of manslaughter and sentenced to only five years' probation for killing his wife after presenting a cultural defense that "traditional Chinese notions about the shame of adultery had propelled him to violence") [hereinafter When is Cultural Difference a Legal Defense?]; David Talbot, The Ballad of Hooty Croy 'True Believer' Attorney Tony Serra Fights His Own Version of the Indian Wars - in a Courtroom, L.A. TIMES, June 24, 1990, at 16 (describing attorney's use of cultural defense to convince jury to acquit American Indian defendant of first-degree murder charge). But see U.S. Justice System Called Ambivalent on Use of 'Cultural Defense' by Immigrants, L.A. TIMES, Dec. 13, 1987, at 6 (noting that attorney opted not to use cultural defense in case of Fumiko Kmura who killed her children upon learning her husband had a mistress in keeping with Japanese custom of parent-child suicide; cultural defense rejected in the case of a Laotian man convicted of killing his wife because she intended to take a job working for another man).
29. See, e.g., Two Iraqi Men Face Hearing, OMAHA WORLD-HERALD, Nov. 26, 1996, at 22 (stating that father of two underage girls pleaded innocent to child abuse charges after he forced them to marry, claiming he was following Islamic culture which allows girls to marry at any age); Myrna Oliver, Immigrant Crimes Cultural Defense - A Legal Tactic, L.A. TIMES, July 15, 1988, at 1 (stating that Kong Moua, a Hmong tribesman from Laos, charged with kidnapping and rape, was allowed to plead guilty to the lesser charge of false imprisonment based on cultural evidence that zij pojniam, or "marriage by capture" is an accepted form of matrimony in the Hmong culture) [hereinafter Immigrant Crimes]; Ann W. O'Neil, Judge Rules Exorcism Death Manslaughter Trial: Two Korean Christian Missionaries are Cleared of Murder in the Killing of Kyung-Ja Chung During Cleansing Ritual, L.A. TIMES, April 17, 1997, at A1 (stating that judge found two Korean Christian missionaries guilty of involuntary manslaughter rather than second-degree murder in the stomping death of a missionary's wife during a demon-cleansing ritual called a sukido); Dick Polman, When is Cultural Difference a Legal Defense? Immigrants' Native Traditions Clash with U.S. Law, SEATTLE TIMES, July 12, 1989, at A1 (stating that Chinese immigrant Dong Lu Chen was convicted of manslaughter and sentenced to only five years' probation for killing his wife after presenting a cultural defense that "traditional Chinese notions about the shame of adultery had propelled him to violence") [hereinafter When is Cultural Difference a Legal Defense?]; David Talbot, The Ballad of Hooty Croy 'True Believer' Attorney Tony Serra Fights His Own Version of the Indian Wars - in a Courtroom, L.A. TIMES, June 24, 1990, at 16 (describing attorney's use of cultural defense to convince jury to acquit American Indian defendant of first-degree murder charge). But see U.S. Justice System Called Ambivalent on Use of 'Cultural Defense' by Immigrants, L.A. TIMES, Dec. 13, 1987, at 6 (noting that attorney opted not to use cultural defense in case of Fumiko Kmura who killed her children upon learning her husband had a mistress in keeping with Japanese custom of parent-child suicide; cultural defense rejected in the case of a Laotian man convicted of killing his wife because she intended to take a job working for another man).
30. See, e.g., Two Iraqi Men Face Hearing, OMAHA WORLD-HERALD, Nov. 26, 1996, at 22 (stating that father of two underage girls pleaded innocent to child abuse charges after he forced them to marry, claiming he was following Islamic culture which allows girls to marry at any age); Myrna Oliver, Immigrant Crimes Cultural Defense - A Legal Tactic, L.A. TIMES, July 15, 1988, at 1 (stating that Kong Moua, a Hmong tribesman from Laos, charged with kidnapping and rape, was allowed to plead guilty to the lesser charge of false imprisonment based on cultural evidence that zij pojniam, or "marriage by capture" is an accepted form of matrimony in the Hmong culture) [hereinafter Immigrant Crimes]; Ann W. O'Neil, Judge Rules Exorcism Death Manslaughter Trial: Two Korean Christian Missionaries are Cleared of Murder in the Killing of Kyung-Ja Chung During Cleansing Ritual, L.A. TIMES, April 17, 1997, at A1 (stating that judge found two Korean Christian missionaries guilty of involuntary manslaughter rather than second-degree murder in the stomping death of a missionary's wife during a demon-cleansing ritual called a sukido); Dick Polman, When is Cultural Difference a Legal Defense? Immigrants' Native Traditions Clash with U.S. Law, SEATTLE TIMES, July 12, 1989, at A1 (stating that Chinese immigrant Dong Lu Chen was convicted of manslaughter and sentenced to only five years' probation for killing his wife after presenting a cultural defense that "traditional Chinese notions about the shame of adultery had propelled him to violence") [hereinafter When is Cultural Difference a Legal Defense?]; David Talbot, The Ballad of Hooty Croy 'True Believer' Attorney Tony Serra Fights His Own Version of the Indian Wars - in a Courtroom, L.A. TIMES, June 24, 1990, at 16 (describing attorney's use of cultural defense to convince jury to acquit American Indian defendant of first-degree murder charge). But see U.S. Justice System Called Ambivalent on Use of 'Cultural Defense' by Immigrants, L.A. TIMES, Dec. 13, 1987, at 6 (noting that attorney opted not to use cultural defense in case of Fumiko Kmura who killed her children upon learning her husband had a mistress in keeping with Japanese custom of parent-child suicide; cultural defense rejected in the case of a Laotian man convicted of killing his wife because she intended to take a job working for another man).
31. See, e.g., Two Iraqi Men Face Hearing, OMAHA WORLD-HERALD, Nov. 26, 1996, at 22 (stating that father of two underage girls pleaded innocent to child abuse charges after he forced them to marry, claiming he was following Islamic culture which allows girls to marry at any age); Myrna Oliver, Immigrant Crimes Cultural Defense - A Legal Tactic, L.A. TIMES, July 15, 1988, at 1 (stating that Kong Moua, a Hmong tribesman from Laos, charged with kidnapping and rape, was allowed to plead guilty to the lesser charge of false imprisonment based on cultural evidence that zij pojniam, or "marriage by capture" is an accepted form of matrimony in the Hmong culture) [hereinafter Immigrant Crimes]; Ann W. O'Neil, Judge Rules Exorcism Death Manslaughter Trial: Two Korean Christian Missionaries are Cleared of Murder in the Killing of Kyung-Ja Chung During Cleansing Ritual, L.A. TIMES, April 17, 1997, at A1 (stating that judge found two Korean Christian missionaries guilty of involuntary manslaughter rather than second-degree murder in the stomping death of a missionary's wife during a demon-cleansing ritual called a sukido); Dick Polman, When is Cultural Difference a Legal Defense? Immigrants' Native Traditions Clash with U.S. Law, SEATTLE TIMES, July 12, 1989, at A1 (stating that Chinese immigrant Dong Lu Chen was convicted of manslaughter and sentenced to only five years' probation for killing his wife after presenting a cultural defense that "traditional Chinese notions about the shame of adultery had propelled him to violence") [hereinafter When is Cultural Difference a Legal Defense?]; David Talbot, The Ballad of Hooty Croy 'True Believer' Attorney Tony Serra Fights His Own Version of the Indian Wars - in a Courtroom, L.A. TIMES, June 24, 1990, at 16 (describing attorney's use of cultural defense to convince jury to acquit American Indian defendant of first-degree murder charge). But see U.S. Justice System Called Ambivalent on Use of 'Cultural Defense' by Immigrants, L.A. TIMES, Dec. 13, 1987, at 6 (noting that attorney opted not to use cultural defense in case of Fumiko Kmura who killed her children upon learning her husband had a mistress in keeping with Japanese custom of parent-child suicide; cultural defense rejected in the case of a Laotian man convicted of killing his wife because she intended to take a job working for another man).
32. See, e.g., Two Iraqi Men Face Hearing, OMAHA WORLD-HERALD, Nov. 26, 1996, at 22 (stating that father of two underage girls pleaded innocent to child abuse charges after he forced them to marry, claiming he was following Islamic culture which allows girls to marry at any age); Myrna Oliver, Immigrant Crimes Cultural Defense - A Legal Tactic, L.A. TIMES, July 15, 1988, at 1 (stating that Kong Moua, a Hmong tribesman from Laos, charged with kidnapping and rape, was allowed to plead guilty to the lesser charge of false imprisonment based on cultural evidence that zij pojniam, or "marriage by capture" is an accepted form of matrimony in the Hmong culture) [hereinafter Immigrant Crimes]; Ann W. O'Neil, Judge Rules Exorcism Death Manslaughter Trial: Two Korean Christian Missionaries are Cleared of Murder in the Killing of Kyung-Ja Chung During Cleansing Ritual, L.A. TIMES, April 17, 1997, at A1 (stating that judge found two Korean Christian missionaries guilty of involuntary manslaughter rather than second-degree murder in the stomping death of a missionary's wife during a demon-cleansing ritual called a sukido); Dick Polman, When is Cultural Difference a Legal Defense? Immigrants' Native Traditions Clash with U.S. Law, SEATTLE TIMES, July 12, 1989, at A1 (stating that Chinese immigrant Dong Lu Chen was convicted of manslaughter and sentenced to only five years' probation for killing his wife after presenting a cultural defense that "traditional Chinese notions about the shame of adultery had propelled him to violence") [hereinafter When is Cultural Difference a Legal Defense?]; David Talbot, The Ballad of Hooty Croy 'True Believer' Attorney Tony Serra Fights His Own Version of the Indian Wars - in a Courtroom, L.A. TIMES, June 24, 1990, at 16 (describing attorney's use of cultural defense to convince jury to acquit American Indian defendant of first-degree murder charge). But see U.S. Justice System Called Ambivalent on Use of 'Cultural Defense' by Immigrants, L.A. TIMES, Dec. 13, 1987, at 6 (noting that attorney opted not to use cultural defense in case of Fumiko Kmura who killed her children upon learning her husband had a mistress in keeping with Japanese custom of parent-child suicide; cultural defense rejected in the case of a Laotian man convicted of killing his wife because she intended to take a job working for another man).
33. See, e.g., Two Iraqi Men Face Hearing, OMAHA WORLD-HERALD, Nov. 26, 1996, at 22 (stating that father of two underage girls pleaded innocent to child abuse charges after he forced them to marry, claiming he was following Islamic culture which allows girls to marry at any age); Myrna Oliver, Immigrant Crimes Cultural Defense - A Legal Tactic, L.A. TIMES, July 15, 1988, at 1 (stating that Kong Moua, a Hmong tribesman from Laos, charged with kidnapping and rape, was allowed to plead guilty to the lesser charge of false imprisonment based on cultural evidence that zij pojniam, or "marriage by capture" is an accepted form of matrimony in the Hmong culture) [hereinafter Immigrant Crimes]; Ann W. O'Neil, Judge Rules Exorcism Death Manslaughter Trial: Two Korean Christian Missionaries are Cleared of Murder in the Killing of Kyung-Ja Chung During Cleansing Ritual, L.A. TIMES, April 17, 1997, at A1 (stating that judge found two Korean Christian missionaries guilty of involuntary manslaughter rather than second-degree murder in the stomping death of a missionary's wife during a demon-cleansing ritual called a sukido); Dick Polman, When is Cultural Difference a Legal Defense? Immigrants' Native Traditions Clash with U.S. Law, SEATTLE TIMES, July 12, 1989, at A1 (stating that Chinese immigrant Dong Lu Chen was convicted of manslaughter and sentenced to only five years' probation for killing his wife after presenting a cultural defense that "traditional Chinese notions about the shame of adultery had propelled him to violence") [hereinafter When is Cultural Difference a Legal Defense?]; David Talbot, The Ballad of Hooty Croy 'True Believer' Attorney Tony Serra Fights His Own Version of the Indian Wars - in a Courtroom, L.A. TIMES, June 24, 1990, at 16 (describing attorney's use of cultural defense to convince jury to acquit American Indian defendant of first-degree murder charge). But see U.S. Justice System Called Ambivalent on Use of 'Cultural Defense' by Immigrants, L.A. TIMES, Dec. 13, 1987, at 6 (noting that attorney opted not to use cultural defense in case of Fumiko Kmura who killed her children upon learning her husband had a mistress in keeping with Japanese custom of parent-child suicide; cultural defense rejected in the case of a Laotian man convicted of killing his wife because she intended to take a job working for another man).
34. Cases at the appellate level dealing with the relevance of culture have typically focused on whether the necessary intent had been formed. See, e.g., United States v. Mohammad, 53 F.3d 1426, 1433 (7th Cir. 1995) (determining that testimony concerning passive role of women in Islamic culture in trial of husband and wife for conspiracy and fraud did not cause wife's defense to be "mutually antagonistic" to husband's defense or prevent "the jury from making a reliable judgment about guilt or innocence"); United States v. Ojo, No. ACM32094, 1997 WL 66725 at *1 (A.F. Ct. Crim. App.) (considering and rejecting "appellant's argument that he was raised in Nigeria which has different cultural views" after he appealed his conviction of carnal knowledge, adultery, assault of a child, and indecent assault); United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first- degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
35. Cases at the appellate level dealing with the relevance of culture have typically focused on whether the necessary intent had been formed. See, e.g., United States v. Mohammad, 53 F.3d 1426, 1433 (7th Cir. 1995) (determining that testimony concerning passive role of women in Islamic culture in trial of husband and wife for conspiracy and fraud did not cause wife's defense to be "mutually antagonistic" to husband's defense or prevent "the jury from making a reliable judgment about guilt or innocence"); United States v. Ojo, No. ACM32094, 1997 WL 66725 at *1 (A.F. Ct. Crim. App.) (considering and rejecting "appellant's argument that he was raised in Nigeria which has different cultural views" after he appealed his conviction of carnal knowledge, adultery, assault of a child, and indecent assault); United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first- degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
36. United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom");
37. United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first- degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
38. United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first- degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
39. United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first-degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
40. United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first- degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
41. United States v. Calvin, No. ACM 30944, 1995 WL 755285, at *1 (A.F. Ct. Crim. App.) (noting that Navajo victim responded to defendant's consent theory in rape case that relied heavily on her "failure to report the incident to law enforcement authorities" by testifying that "reporting such incidents to authorities contradicted her tribal custom"); Ha v. Alaska, 892 P.2d 184, 195 (Ct. App. 1995) (rejecting defendant's claim of self defense based on his Vietnamese cultural background that, he claimed, taught him "that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes"); People v. Wu, 286 Cal. Rptr. 868, 887 & n.6 (1991) (ruling that Chinese defendant was entitled to have jury instructed that it could consider evidence of her cultural background in determining existence or nonexistence of relevant mental states but that it could not consider evidence of her cultural background with any issue in a second-degree murder case); State v. Her, 510 N.W.2d 218, 221 (Minn. Ct. App. 1994) (holding that prosecutor did not commit prejudicial misconduct in prosecution of Hmong defendant for first- degree criminal conduct on Hmong woman when he distinguished defendant's nationality from that of the jurors in closing argument because the comments were "primarily a proper commentary" on the "apparent differences between Hmong and American cultures in their treatment of rape, adultery, and female sexuality [which] were a major element of the trial"); State v. Lee, 494 N.W.2d 475, 480-81 (Minn. Ct. App. 1992) (holding that trial court did not abuse its discretion in allowing testimony on Hmong culture to rebut "misleading testimony of defendant's witness" intended to "convey the impression that in the Hmong community the complaints by [the complainants] were not considered credible because Hmong women who have been raped do not act, post-rape, as these complainants did."); People v. Singh, 516 N.Y.S.2d 412, 415 (1987) (holding that city ordinance prohibiting possession of exposed knife did not violate Sikh priests' right to freedom of religion even though Sikh religion requires priest to carry exposed kirpan, or sword).
42. 679 A.2d 81 (Me. 1996).
43. See id. at 86 (citing ME. REV. STAT. ANN. tit. 17-A, § 12(1)(C) (West 1983)).
44. See Kargar, 679 A.2d at 83.
45. A de minimis statute allows the trial judge to dismiss a prosecution if certain factors are met, establishing that no societal interest exists in pursuing the case to convict. Currently four states and Guam have a de minimis statute. See 9 GUAM CODE ANN. § 7.67 (1998); HAW. REV. STAT. ANN. § 702-236 (1993); ME. REV. STAT. tit. 17-A, § 12 (West 1983); N.J. STAT. ANN. § 2C: 2-11 (West 1995); 18 PA. CONS. STAT. ANN. § 312 (West 1998). Other states give the power to dismiss through the nol pros, conditional on the court's approval, see MODEL PENAL CODE § 2.12 cmt. at 404 n.20 (1985) (citing ARK. STAT. ANN. § 43-1230 (1964); ARIZ. R. CRIM. P. 16.6; GA. CODE ANN. § 17-8-3 (1997); OHIO REV. CODE ANN. § 2941.33 (Anderson 1996); TEX. CODE CRIM. P. ANN. art. 32.02 (West 1989)), or give the courts the power to dismiss on their own initiative through similar statutes and court rules, see IOWA R. CRIM P. 27(1); N.Y. CRIM. PROC. LAW § 210.40 (McKinney 1993); ORE. REV. STAT. § 135.755 (1997); UTAH CODE ANN. § 77-2-4 (1997); WASH. SUPER. CT. CRIM. R. 8.3. See also infra note 61 and accompanying text. These statutes and rules provide a currently existing avenue for application of a cultural defense.
46. See MODEL PENAL CODE § 212 (1980).
47. See Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 S. CAL. INTERDISC. L.J. 663, 669 (1998) (citing WILLIAM HAVILAND, ANTHROPOLOGY 278 (5th ed. 1989) (discussing various definitions and adopting the following definition for "culture": "[a] set of rules or standards shared by members of a society which, when acted upon by the members, produce behavior that falls within a range of variance the members consider proper and acceptable").
48. See Michael Fischer, The Human Rights Implications of a "Cultural Defense," 6 S. CAL. INTERDISC. L.J. 663, 669 (1998) (citing WILLIAM HAVILAND, ANTHROPOLOGY 278 (5th ed. 1989) (discussing various definitions and adopting the following definition for "culture": "[a] set of rules or standards shared by members of a society which, when acted upon by the members, produce behavior that falls within a range of variance the members consider proper and acceptable").
49. A few scholars have urged "nonexculpatory" treatment of offenders who have come from "rotten" social backgrounds, "based on notions of economic fairness and reciprocal justice." Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 LAW AND INEQUALITY J. 9, 13-14 (1985). A "nonexculpatory defense" is a defense that is "unrelated to guilt and desert"; it "says that though the individual is guilty of a crime deserving punishment, there are other considerations - for example, public policy, morality, or jurisprudential ideals -which persuade us not to punish." See id. at 13. Because American society is based upon "mutuality, these scholars argue, if some segments of society are deprived of the benefits of the 'social contract,' they are also excused from the obligations imposed upon them by it." See id. at 14. Attorney William Kunstler was prepared to raise the defense of "black rage" in the case of Colin Ferguson, the gunman later convicted of killing six and wounding seventeen white and Asian passengers on a Long Island commuter train, before his client fired him. Kimberly M. Copp, Black Rage: The Illegitimacy of a Criminal Defense, 29 J. MARSHALL L. REV. 205, 207 & n.14 (1995). Proponents of the black rage defense assert that African-Americans become enraged and commit crimes after being constantly subjected to society's oppressive racism and unfair prejudice. See id. at n.13. Criminal defendants have also asserted "urban survival syndrome" and "urban fear syndrome" as defenses. See id. at n.12.
50. A few scholars have urged "nonexculpatory" treatment of offenders who have come from "rotten" social backgrounds, "based on notions of economic fairness and reciprocal justice." Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 LAW AND INEQUALITY J. 9, 13-14 (1985). A "nonexculpatory defense" is a defense that is "unrelated to guilt and desert"; it "says that though the individual is guilty of a crime deserving punishment, there are other considerations - for example, public policy, morality, or jurisprudential ideals - which persuade us not to punish." See id. at 13. Because American society is based upon "mutuality, these scholars argue, if some segments of society are deprived of the benefits of the 'social contract,' they are also excused from the obligations imposed upon them by it." See id. at 14. Attorney William Kunstler was prepared to raise the defense of "black rage" in the case of Colin Ferguson, the gunman later convicted of killing six and wounding seventeen white and Asian passengers on a Long Island commuter train, before his client fired him. Kimberly M. Copp, Black Rage: The Illegitimacy of a Criminal Defense, 29 J. MARSHALL L. REV. 205, 207 & n.14 (1995). Proponents of the black rage defense assert that African-Americans become enraged and commit crimes after being constantly subjected to society's oppressive racism and unfair prejudice. See id. at n.13. Criminal defendants have also asserted "urban survival syndrome" and "urban fear syndrome" as defenses. See id. at n.12.
51. See Appellant's Brief at 4, State v. Kargar, 679 A.2d 81 (Me. 1996) (No. 7719, CUM-95-300).
52. See id.
53. See id.
54. See id.
55. ME. REV. STAT. ANN. tit. 17-A, § 253(1)(B) (West 1983).
56. See Appellant's Brief at 1, Kargar, (No. 7719, CUM-95-300).
57. See id. at 4.
58. See id. at 6. Interestingly, the police were made aware of the photograph and the alleged undressing incident by a neighbor of the Kargars. See State v. Kargar, 679 A.2d 81, 82 (Me. 1996). Kargar's wife testified that the neighbor saw the photograph when Mrs. Kargar was showing the neighbor the Kargar photo album. See Appellant's Brief at 9, Kargar (No.7719, CUM-95-300). Next to the photograph of Mohammed with Rahmadan, was a photograph of Mohammed standing alone in full combat gear, holding a Kalashnikov rifle. See id. Mrs. Kargar explained to the neighbor that her husband had spent years killing Russians. See id. at 10. Shortly thereafter, based on the neighbor's report, the police searched the house for the photograph, and the neighbor's child testified - and was the sole witness - as to the alleged undressing incident. See Kargar, 679 A.2d at 82. The neighbor was of Russian origin. See Appellant's Brief at 10, Kargar (No. 7719, CUM-95-300).
59. See id. at 6. Interestingly, the police were made aware of the photograph and the alleged undressing incident by a neighbor of the Kargars. See State v. Kargar, 679 A.2d 81, 82 (Me. 1996). Kargar's wife testified that the neighbor saw the photograph when Mrs. Kargar was showing the neighbor the Kargar photo album. See Appellant's Brief at 9, Kargar (No.7719, CUM-95-300). Next to the photograph of Mohammed with Rahmadan, was a photograph of Mohammed standing alone in full combat gear, holding a Kalashnikov rifle. See id. Mrs. Kargar explained to the neighbor that her husband had spent years killing Russians. See id. at 10. Shortly thereafter, based on the neighbor's report, the police searched the house for the photograph, and the neighbor's child testified - and was the sole witness - as to the alleged undressing incident. See Kargar, 679 A.2d at 82. The neighbor was of Russian origin. See Appellant's Brief at 10, Kargar (No. 7719, CUM-95-300).
60. See id. at 6. Interestingly, the police were made aware of the photograph and the alleged undressing incident by a neighbor of the Kargars. See State v. Kargar, 679 A.2d 81, 82 (Me. 1996). Kargar's wife testified that the neighbor saw the photograph when Mrs. Kargar was showing the neighbor the Kargar photo album. See Appellant's Brief at 9, Kargar (No.7719, CUM-95-300). Next to the photograph of Mohammed with Rahmadan, was a photograph of Mohammed standing alone in full combat gear, holding a Kalashnikov rifle. See id. Mrs. Kargar explained to the neighbor that her husband had spent years killing Russians. See id. at 10. Shortly thereafter, based on the neighbor's report, the police searched the house for the photograph, and the neighbor's child testified - and was the sole witness - as to the alleged undressing incident. See Kargar, 679 A.2d at 82. The neighbor was of Russian origin. See Appellant's Brief at 10, Kargar (No. 7719, CUM-95-300).
61. See id. at 6. Interestingly, the police were made aware of the photograph and the alleged undressing incident by a neighbor of the Kargars. See State v. Kargar, 679 A.2d 81, 82 (Me. 1996). Kargar's wife testified that the neighbor saw the photograph when Mrs. Kargar was showing the neighbor the Kargar photo album. See Appellant's Brief at 9, Kargar (No.7719, CUM-95-300). Next to the photograph of Mohammed with Rahmadan, was a photograph of Mohammed standing alone in full combat gear, holding a Kalashnikov rifle. See id. Mrs. Kargar explained to the neighbor that her husband had spent years killing Russians. See id. at 10. Shortly thereafter, based on the neighbor's report, the police searched the house for the photograph, and the neighbor's child testified - and was the sole witness - as to the alleged undressing incident. See Kargar, 679 A.2d at 82. The neighbor was of Russian origin. See Appellant's Brief at 10, Kargar (No. 7719, CUM-95-300).
62. Section 253(1)(B) of Maine's gross sexual assault statute provides, in pertinent part: "1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: . . . B. The other person, not the actor's spouse, has not in fact attained the age of 14 years." ME. REV. STAT. ANN. tit. 17-A, § 253(1)(B) (West Supp. 1998).
63. As to the second, undressing incident, Kargar said it simply did not happen. See Appellant's Brief at 9, Kargar (No. 7719, CUM-95-300).
64. See 9 GUAM CODE ANN. § 7.67 (1996); HAW. REV. STAT. § 702-236 (1993); ME. REV. STAT. tit. 17-A, § 12 (West 1983); N.J. STAT. ANN. § 2C: 2-11 (West 1995); 18 PA. CONS. STAT. ANN. § 312 (West 1998).
65. MODEL PENAL CODE § 2.12 (1980).
66. See State v. Kargar, 679 A.2d 81, 83 (Me. 1996).
67. See Appellant's Brief at 11, Kargar (No. 7719, CUM-95-300).
68. See Kargar, 679 A.2d at 83.
69. See Appellant's Brief at 11, Kargar (No. 7719, CUM-95-300).
70. See id. at 11-12.
71. See id. at 12.
72. Kargar, 679 A.2d at 83 n.3.
73. See Appellant's Brief at 13, Kargar (No. 7719, CUM-95-300).
74. Id. at 14.
75. Id.
76. Id. at 13.
77. See id. As a condition of his release for the two years the charges were pending against him, Kargar was not permitted to live with his children. See id.
78. See State v. Kargar, 679 A.2d 81, 83 (Me. 1996)
79. See Appellant's Brief at 14, Kargar (No. 7719 CUM 95-300).
80. Id. at 15.
81. See id.
82. Id.
83. See Appellee's Brief at 1, State v. Kargar, 79 A.2d 81 (Me. 1996) (No. _ CUM-95-300).
84. See Appellant's Brief at 15-16, Kargar (No. 7719, CUM-95-300).
85. See id. at 16.
86. See 8 U.S.C. § 1227(a)(2)(A)(ii) (1998) (originally enacted as § 1251(a)(2)(A)(ii)(1994).
87. See ME. REV. STAT. ANN. tit. 34-A § 11003(1) (West Supp. 1997).
88. See, e.g., ME. REV. STAT. ANN. tit. 15 § 393(1)(A) (West Supp. 1997) (prohibiting possession of firearms for persons convicted of a crime that is punishable by imprisonment for one year or more); ME. REV. STAT. ANN. tit. 12 § 7071(9) (West 1994) (making person convicted of a crime that is punishable by imprisonment for one year or more ineligible for a license to hunt with a firearm); ME. REV. STAT. ANN. tit. 32 § 9405(1-A)(D) (West 1983) (making person convicted of a crime that is punishable by imprisonment for one year or more ineligible for a private security guard license).
89. See State v. Kargar, 679 A.2d 81, 86 (Me. 1996).
90. See id. at 83.
91. See id. at 86.
92. Id. at 83 (quoting ME. REV. STAT. ANN. tit. 17-A, § 12 cmt. (West 1983)).
93. Id. at 83 (quoting ME. REV. STAT. ANN. tit. 17-A, § 12(1) (West 1983)).
94. Id. at 84 (quoting MODEL PENAL CODE § 2.12 cmt. at 400 (1985)).
95. See State v. Kargar, 679 A.2d 81, 84 (quoting State v. Smith, 480 A.2d 236, 238-39 (N. J. Super. 1984) (citing State v. Park, 525 P.2d 586, 591 (Haw. 1974))).
96. See State v. Kargar, 679 A.2d 81, 84 (quoting State v. Smith, 480 A.2d 236, 238-39 (N. J. Super. 1984) (citing State v. Park, 525 P.2d 586, 591 (Haw. 1974))).
97. See State v. Kargar, 679 A.2d 81, 84 (quoting State v. Smith, 480 A.2d 236, 238-39 (N. J. Super. 1984) (citing State v. Park, 525 P.2d 586, 591 (Haw. 1974))).
98. Id. (citing ME. REV. STAT. ANN. tit. 17-A, § 12(1)(C) (West 1983)).
99. Id. at 84-85 (citing L.D. 1386, Statement of Fact (112th Legis. 1985)) (In discussing a change in the statute broadening the definition of the type of sexual act criminalized as gross sexual conduct, ME. REV. STAT. ANN. tit. 17-A, § 251(1)(C)(1) (West 1983) (current version at ME. REV. STAT. ANN. tit. 17-A, § 251 (1)(C)(1) (Supp. 1998)), the Maine Legislature stated that the element of sexual gratification, which had been included in the statute prior to 1985, could be removed because, "given the physical contacts described, no concern exists for excluding 'innocent' contacts.").
100. Id.
101. Id. at 85.
102. See ME. REV. STAT. ANN. tit. 34-A § 11003 (Supp. 1998).
103. See 8 U.S.C. § 1251(a)(2)(A)(i) (1994).
104. State v. Kargar, 679 A.2d 81, 85 (Me. 1996).
105. Id. at 85-86.
106. See MODEL PENAL CODE § 2.12 cmt. at 403 (1985).
107. Id. Translating this factor - knowledge that the conduct is illegal - into the parlance of cultural defense, some commentators distinguish between a "cognitive" cultural defense, applying when the defendant does not realize that his or her actions are a crime, and a "Volitional" cultural defense, where the defendant is aware of the illegality of his or her act. See Fischer, supra note 11, at 669-70.
108. MODEL PENAL CODE sec 2.12.
109. See 9 GUAM CODE ANN. § 7.67 (1996); HAW. REV. STAT. § 702-236 (1993); ME. REV. STAT. tit. 17-A, § 12 (West 1983); N.J. STAT. ANN. § 2C: 2-11 (West 1995); 18 PA. CONS. STAT. ANN. § 312 (West 1998).
110. See ALASKA R. CRIM. P. 43(c); CAL. PENAL CODE § 1385 (West 1982) (amended 1986); IDAHO R. CRIM. P. 48(a)(2); IOWA R. CRIM. P. 27(1); MINN. STAT. ANN. § 631.21 (West 1983) (current version at MINN. STAT. ANN. § 631.21 (Supp. 1999)); MONT. CODE ANN. § 46-13-401; N.Y. CRIM. PROC. LAW § 210.40 (McKinney 1993); OKLA. STAT. tit. 22, § 815 (1998); OR. REV. STAT. tit. 14, § 135.755 (1997); UTAH R. CRIM. P. 25; VT. R. CRIM. P. 48(b)(2); WASH. REV. COD. tit. 10, 8.3 (West 1990).
111. State v. Sauve, 666 A.2d 1164, 1167 (Vt. 1995).
112. Id. at 1168.
113. See id. at 1166-67. But see State v. Swenson, 809 P.2d 1185, 1187 (Idaho Ct. App. 1991) (identifying the standard as "whether the trial court erred as a matter of law"); State v. Blackwell, 845 P.2d 1017, 1022 (Wash. 1993) (requiring a showing of arbitrary action or government misconduct before a trial court may dismiss a prosecution in the interests of justice).
114. See id. at 1166-67. But see State v. Swenson, 809 P.2d 1185, 1187 (Idaho Ct. App. 1991) (identifying the standard as "whether the trial court erred as a matter of law"); State v. Blackwell, 845 P.2d 1017, 1022 (Wash. 1993) (requiring a showing of arbitrary action or government misconduct before a trial court may dismiss a prosecution in the interests of justice).
115. See id. at 1166-67. But see State v. Swenson, 809 P.2d 1185, 1187 (Idaho Ct. App. 1991) (identifying the standard as "whether the trial court erred as a matter of law"); State v. Blackwell, 845 P.2d 1017, 1022 (Wash. 1993) (requiring a showing of arbitrary action or government misconduct before a trial court may dismiss a prosecution in the interests of justice).
116. Sauve, 666 A.2d at 1168.
117. See, e.g., People v. Davis, 286 N.Y.S.2d 396, 398-99 (N.Y. Sup. Ct. 1967) (granting a furtherance of justice dismissal to a twenty-year-old college student, found in possession of an ounce of marijuana, because of his most exemplary moral background and "unblemished record").
118. Id. at 400.
119. 286 N.Y.S. 2d 396 (N.Y. Sup. Ct. 1967).
120. Id. at 399.
121. Id. at 400.
122. When New York's Criminal Procedure Law superseded the Code of Criminal Procedure, section 671 was renumbered as section 210.40. See generally John F. Wirenius, A Model of Discretion: New York's "Interests of Justice" Dismissal Statute, 58 ALB. L. REV. 175 (1994).
123. See id. at 176-78.
124. Id. at 178 (quoting Nolle Prosequi, 1958 CRIM. L. REV. 573, 577).
125. Id. (quoting N.Y. CODE OF CRIM. PROC. § 671 (Weed, Parsons & Co. 1881)).
126. See id.
127. See Commonwealth v. Kindness, 371 A.2d 1346, 1349 (Pa. Commw. Ct. 1977) ("The authorities are virtually unanimous that the historical power to 'nol pros' belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary").
128. The Supreme Court has stated: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. Berger v. United States, 295 U.S. 78, 88 (1934).
129. See, e.g., Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (Burger, J.). "It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary power of the attorneys of the United States in their control over criminal prosecutions.". Id. at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965)).
130. See, e.g., Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (Burger, J.). "It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary power of the attorneys of the United States in their control over criminal prosecutions.". Id. at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965)).
131. See, e.g., Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (Burger, J.). "It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary power of the attorneys of the United States in their control over criminal prosecutions.". Id. at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965)).
132. Judicial review of decisions to prosecute has been allowed only when suspect classification - e.g., race or religion - is involved. See United States v. Armstrong, 517 U.S. 456 (1996). This exception to the general rule, at first blush, conjures up questions as to whether "culture" would fall into the exception; the connection between "race," "religion," and "culture" is obvious. See also Luther Wright, Jr., Who's Black, Who's White, and Who Cares: Reconceptualizing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513, 537 (1995) (suggesting that EEOC guidelines use ancestry to define white, black, and Asian/Pacific Islander classifications while using culture or national origin, regardless of ancestry, for Hispanic Classifications); Roy L. Brooks, Race as an Under-inclusive and Over- inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 9-10, 12 (1994) (discussing how race can be defined in phenotypical terms or, for civil rights purposes, based on "cultural oppression or alienation"). Even if culture were treated similarly to race for the purpose of identifying the parameters of a selective prosecution defense, the exception would not provide assistance to those seeking to advance a cultural defense to criminal prosecution. The suspect class exception to complete prosecutorial discretion is applied to ensure that prosecutors do not discriminate against minorities - that they treat minority defendants as equal to the general populace. The concern is that the prosecutor will choose to pursue a minority defendant for a crime that he or she would not prosecute were the defendant white. See Armstrong, 517 U.S. at 465 (to prove a selective prosecution case, the defendant must show that similarly situated persons of another race were not prosecuted). In contrast, a cultural defense does not seek to prevent discrimination in the ordinary sense. Rather, such a defense seeks to have the minority treated differently from the majority - to have the prosecutor forego prosecution when the average defendant would be prosecuted. For this reason, those espousing a cultural defense cannot look toward conventional anti-discrimination jurisprudence as support their cause. Looking to affirmative action precedent for analogies provides no support for a cultural defense for similar reasons. Although affirmative action does, on one level, seek to treat minorities differently from the majority in a positive way by providing benefits unavailable to the equivalent non-minority member, such action is permitted in order to compensate for past discrimination. See Bush v. Vera, 517 U.S. 952 (1996); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 286 (1986). Again, the focus is on leveling the playing field, not allowing for different fields for those with different backgrounds.
133. Judicial review of decisions to prosecute has been allowed only when suspect classification - e.g., race or religion - is involved. See United States v. Armstrong, 517 U.S. 456 (1996). This exception to the general rule, at first blush, conjures up questions as to whether "culture" would fall into the exception; the connection between "race," "religion," and "culture" is obvious. See also Luther Wright, Jr., Who's Black, Who's White, and Who Cares: Reconceptualizing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513, 537 (1995) (suggesting that EEOC guidelines use ancestry to define white, black, and Asian/Pacific Islander classifications while using culture or national origin, regardless of ancestry, for Hispanic Classifications); Roy L. Brooks, Race as an Under-inclusive and Over- inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 9-10, 12 (1994) (discussing how race can be defined in phenotypical terms or, for civil rights purposes, based on "cultural oppression or alienation"). Even if culture were treated similarly to race for the purpose of identifying the parameters of a selective prosecution defense, the exception would not provide assistance to those seeking to advance a cultural defense to criminal prosecution. The suspect class exception to complete prosecutorial discretion is applied to ensure that prosecutors do not discriminate against minorities - that they treat minority defendants as equal to the general populace. The concern is that the prosecutor will choose to pursue a minority defendant for a crime that he or she would not prosecute were the defendant white. See Armstrong, 517 U.S. at 465 (to prove a selective prosecution case, the defendant must show that similarly situated persons of another race were not prosecuted). In contrast, a cultural defense does not seek to prevent discrimination in the ordinary sense. Rather, such a defense seeks to have the minority treated differently from the majority - to have the prosecutor forego prosecution when the average defendant would be prosecuted. For this reason, those espousing a cultural defense cannot look toward conventional anti-discrimination jurisprudence as support their cause. Looking to affirmative action precedent for analogies provides no support for a cultural defense for similar reasons. Although affirmative action does, on one level, seek to treat minorities differently from the majority in a positive way by providing benefits unavailable to the equivalent non-minority member, such action is permitted in order to compensate for past discrimination. See Bush v. Vera, 517 U.S. 952 (1996); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 286 (1986). Again, the focus is on leveling the playing field, not allowing for different fields for those with different backgrounds.
134. Judicial review of decisions to prosecute has been allowed only when suspect classification - e.g., race or religion - is involved. See United States v. Armstrong, 517 U.S. 456 (1996). This exception to the general rule, at first blush, conjures up questions as to whether "culture" would fall into the exception; the connection between "race," "religion," and "culture" is obvious. See also Luther Wright, Jr., Who's Black, Who's White, and Who Cares: Reconceptualizing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513, 537 (1995) (suggesting that EEOC guidelines use ancestry to define white, black, and Asian/Pacific Islander classifications while using culture or national origin, regardless of ancestry, for Hispanic Classifications); Roy L. Brooks, Race as an Under-inclusive and Over- inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 9-10, 12 (1994) (discussing how race can be defined in phenotypical terms or, for civil rights purposes, based on "cultural oppression or alienation"). Even if culture were treated similarly to race for the purpose of identifying the parameters of a selective prosecution defense, the exception would not provide assistance to those seeking to advance a cultural defense to criminal prosecution. The suspect class exception to complete prosecutorial discretion is applied to ensure that prosecutors do not discriminate against minorities - that they treat minority defendants as equal to the general populace. The concern is that the prosecutor will choose to pursue a minority defendant for a crime that he or she would not prosecute were the defendant white. See Armstrong, 517 U.S. at 465 (to prove a selective prosecution case, the defendant must show that similarly situated persons of another race were not prosecuted). In contrast, a cultural defense does not seek to prevent discrimination in the ordinary sense. Rather, such a defense seeks to have the minority treated differently from the majority - to have the prosecutor forego prosecution when the average defendant would be prosecuted. For this reason, those espousing a cultural defense cannot look toward conventional anti-discrimination jurisprudence as support their cause. Looking to affirmative action precedent for analogies provides no support for a cultural defense for similar reasons. Although affirmative action does, on one level, seek to treat minorities differently from the majority in a positive way by providing benefits unavailable to the equivalent non-minority member, such action is permitted in order to compensate for past discrimination. See Bush v. Vera, 517 U.S. 952 (1996); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 286 (1986). Again, the focus is on leveling the playing field, not allowing for different fields for those with different backgrounds.
135. Judicial review of decisions to prosecute has been allowed only when suspect classification - e.g., race or religion - is involved. See United States v. Armstrong, 517 U.S. 456 (1996). This exception to the general rule, at first blush, conjures up questions as to whether "culture" would fall into the exception; the connection between "race," "religion," and "culture" is obvious. See also Luther Wright, Jr., Who's Black, Who's White, and Who Cares: Reconceptualizing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513, 537 (1995) (suggesting that EEOC guidelines use ancestry to define white, black, and Asian/Pacific Islander classifications while using culture or national origin, regardless of ancestry, for Hispanic Classifications); Roy L. Brooks, Race as an Under-inclusive and Over- inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 9-10, 12 (1994) (discussing how race can be defined in phenotypical terms or, for civil rights purposes, based on "cultural oppression or alienation"). Even if culture were treated similarly to race for the purpose of identifying the parameters of a selective prosecution defense, the exception would not provide assistance to those seeking to advance a cultural defense to criminal prosecution. The suspect class exception to complete prosecutorial discretion is applied to ensure that prosecutors do not discriminate against minorities - that they treat minority defendants as equal to the general populace. The concern is that the prosecutor will choose to pursue a minority defendant for a crime that he or she would not prosecute were the defendant white. See Armstrong, 517 U.S. at 465 (to prove a selective prosecution case, the defendant must show that similarly situated persons of another race were not prosecuted). In contrast, a cultural defense does not seek to prevent discrimination in the ordinary sense. Rather, such a defense seeks to have the minority treated differently from the majority - to have the prosecutor forego prosecution when the average defendant would be prosecuted. For this reason, those espousing a cultural defense cannot look toward conventional anti-discrimination jurisprudence as support their cause. Looking to affirmative action precedent for analogies provides no support for a cultural defense for similar reasons. Although affirmative action does, on one level, seek to treat minorities differently from the majority in a positive way by providing benefits unavailable to the equivalent non-minority member, such action is permitted in order to compensate for past discrimination. See Bush v. Vera, 517 U.S. 952 (1996); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 286 (1986). Again, the focus is on leveling the playing field, not allowing for different fields for those with different backgrounds.
136. Judicial review of decisions to prosecute has been allowed only when suspect classification - e.g., race or religion - is involved. See United States v. Armstrong, 517 U.S. 456 (1996). This exception to the general rule, at first blush, conjures up questions as to whether "culture" would fall into the exception; the connection between "race," "religion," and "culture" is obvious. See also Luther Wright, Jr., Who's Black, Who's White, and Who Cares: Reconceptualizing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513, 537 (1995) (suggesting that EEOC guidelines use ancestry to define white, black, and Asian/Pacific Islander classifications while using culture or national origin, regardless of ancestry, for Hispanic Classifications); Roy L. Brooks, Race as an Under-inclusive and Over- inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 9-10, 12 (1994) (discussing how race can be defined in phenotypical terms or, for civil rights purposes, based on "cultural oppression or alienation"). Even if culture were treated similarly to race for the purpose of identifying the parameters of a selective prosecution defense, the exception would not provide assistance to those seeking to advance a cultural defense to criminal prosecution. The suspect class exception to complete prosecutorial discretion is applied to ensure that prosecutors do not discriminate against minorities - that they treat minority defendants as equal to the general populace. The concern is that the prosecutor will choose to pursue a minority defendant for a crime that he or she would not prosecute were the defendant white. See Armstrong, 517 U.S. at 465 (to prove a selective prosecution case, the defendant must show that similarly situated persons of another race were not prosecuted). In contrast, a cultural defense does not seek to prevent discrimination in the ordinary sense. Rather, such a defense seeks to have the minority treated differently from the majority - to have the prosecutor forego prosecution when the average defendant would be prosecuted. For this reason, those espousing a cultural defense cannot look toward conventional anti-discrimination jurisprudence as support their cause. Looking to affirmative action precedent for analogies provides no support for a cultural defense for similar reasons. Although affirmative action does, on one level, seek to treat minorities differently from the majority in a positive way by providing benefits unavailable to the equivalent non-minority member, such action is permitted in order to compensate for past discrimination. See Bush v. Vera, 517 U.S. 952 (1996); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 286 (1986). Again, the focus is on leveling the playing field, not allowing for different fields for those with different backgrounds.
137. Judicial review of decisions to prosecute has been allowed only when suspect classification - e.g., race or religion - is involved. See United States v. Armstrong, 517 U.S. 456 (1996). This exception to the general rule, at first blush, conjures up questions as to whether "culture" would fall into the exception; the connection between "race," "religion," and "culture" is obvious. See also Luther Wright, Jr., Who's Black, Who's White, and Who Cares: Reconceptualizing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513, 537 (1995) (suggesting that EEOC guidelines use ancestry to define white, black, and Asian/Pacific Islander classifications while using culture or national origin, regardless of ancestry, for Hispanic Classifications); Roy L. Brooks, Race as an Under-inclusive and Over- inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 9-10, 12 (1994) (discussing how race can be defined in phenotypical terms or, for civil rights purposes, based on "cultural oppression or alienation"). Even if culture were treated similarly to race for the purpose of identifying the parameters of a selective prosecution defense, the
138. See People v. Tenorio, 473 P.2d 993, 996 (Cal. 1970) (stating, "When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.").
139. See Koon v. United States, 518 U.S. 81, 94 (1996) (describing the federal courts' ability to depart from sentencing guidelines); People v. The Superior Court of San Diego County, 917 P.2d 628 (Cal. 1996) (holding that California's "three-strike" law did not abrogate the state's "interests of justice" statute, so that courts retained their discretion to dismiss a prior felony conviction when imposing sentence). But see Riggs v. California, 119 S. Ct. 890 (1999) (recognizing that the denied petition for certiorari raised a serious question about the application of California's "three-strikes" law to petty offenses).
140. See Koon v. United States, 518 U.S. 81, 94 (1996) (describing the federal courts' ability to depart from sentencing guidelines); People v. The Superior Court of San Diego County, 917 P.2d 628 (Cal. 1996) (holding that California's "three-strike" law did not abrogate the state's "interests of justice" statute, so that courts retained their discretion to dismiss a prior felony conviction when imposing sentence). But see Riggs v. California, 119 S. Ct. 890 (1999) (recognizing that the denied petition for certiorari raised a serious question about the application of California's "three-strikes" law to petty offenses).
141. See Koon v. United States, 518 U.S. 81, 94 (1996) (describing the federal courts' ability to depart from sentencing guidelines); People v. The Superior Court of San Diego County, 917 P.2d 628 (Cal. 1996) (holding that California's "three-strike" law did not abrogate the state's "interests of justice" statute, so that courts retained their discretion to dismiss a prior felony conviction when imposing sentence). But see Riggs v. California, 119 S. Ct. 890 (1999) (recognizing that the denied petition for certiorari raised a serious question about the application of California's "three-strikes" law to petty offenses).
142. See, e.g., Keeler v. Superior Court, 470 P. 2d 617 (Cal. 1970).
143. See, e.g., Koon, 518 U.S. at 113 ("It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District Judge.").
144. See 2A NORMAN J. SINGER, SUTHERLAND STAT. CONST. § 46.07 (5th ed. 1992).
145. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 22(d), at 109 (1986).
146. One purpose of the de minimis statute is to avoid absurdity and to apply a rule of reason. See State v. Sorge, 591 A.2d 1382, 1385 (N.J. Super. Ct. Law Div. 1991); Model Penal Code § 2.12, cmt. at 404. The Comment accompanying the Model Penal Code's adoption of the de minimis statute expressly states that the statute could be considered as "an application of Blackstone's Tenth Rule, that a statute should not be interpreted to produce a ludicrous result." Id. §2.12, cmt. at 404 n.18 (citing 1W. BLACKSTONE, COMMENTARIES *91).
147. See State v. Torres, 660 P.2d 522, 527 (Haw. 1983).
148. Id. at 525-26.
149. Id. at 526.
150. Some jurisdictions have altered the Model Penal Code's "shall dismiss" to the more permissive "may dismiss," as a way of granting the court broader discretion. See HAW. REV. STAT. § 702-236 (1996); ME. REV. STAT. tit. 17-A § 12 (West 1983); N.J. STAT. ANN. § 2C: 2-11 (West 1997).
151. Given its decision to reverse the conviction on the basis of the de minimis statute, the Maine Supreme Judicial Court did not address Kargar's constitutional arguments.
152. JOHN SELBEN, TABLE TALK 65 (1689) (changing original to use modern spelling).
153. See, e.g., Cheek v. United States, 498 U.S. 192, 199 (1991) ("The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.").
154. SELDEN, supra note 98, at 65 (emphasis added).
155. United States v. Gypsum, 438 U.S. 422, 436 (1978); Dennis v. United States, 341 U.S. 494, 500 (1951); see also Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 UTAH L. REV. 635, 636 (1993) (citations omitted) (stating, "By the time of Coke, the maxim 'actus non facit reum nisi mens sit rea' (an act does not make one guilty unless his mind is guilty) had become well ingrained in the common law, and it remains a central precept of Anglo-American criminal law today.").
156. United States v. Gypsum, 438 U.S. 422, 436 (1978); Dennis v. United States, 341 U.S. 494, 500 (1951); see also Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 UTAH L. REV. 635, 636 (1993) (citations omitted) (stating, "By the time of Coke, the maxim 'actus non facit reum nisi mens sit rea' (an act does not make one guilty unless his mind is guilty) had become well ingrained in the common law, and it remains a central precept of Anglo-American criminal law today.").
157. United States v. Gypsum, 438 U.S. 422, 436 (1978); Dennis v. United States, 341 U.S. 494, 500 (1951); see also Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 UTAH L. REV. 635, 636 (1993) (citations omitted) (stating, "By the time of Coke, the maxim 'actus non facit reum nisi mens sit rea' (an act does not make one guilty unless his mind is guilty) had become well ingrained in the common law, and it remains a central precept of Anglo-American criminal law today.").
158. There are different types of intent, e.g., general and specific, and different strata of mens rea. See Liparota v. United States, 471 U.S. 419, 422 n.5 (1985). For the purposes of this analysis, the focus is on knowledge of unlawfulness.
159. See Morissette v. United States, 342 U.S. 246, 249-58 (1952) (construing a statute without a mens rea element to include such an element because of the legal tradition of requiring intent for serious crimes); Lambert v. California, 355 U.S. 225, 227 (1957) (holding that a municipal ordinance making it a crime to be present in Los Angeles without registering with the police violated the Due Process Clause when the defendant had no knowledge of his duty to register); United States v. Freed, 401 U.S. 601, 608 (1971) (identifying two ends of a spectrum - public welfare laws that need no mens rea, and the passive lack of registration in Lambert that requires knowledge of unlawfulness). More recently, without invoking the Due Process Clause, the Supreme Court has continued to construe criminal statutes to include intent elements based on the longstanding common law principle favoring inclusion of a mens rea. See, e.g., Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985).
160. See Morissette v. United States, 342 U.S. 246, 249-58 (1952) (construing a statute without a mens rea element to include such an element because of the legal tradition of requiring intent for serious crimes); Lambert v. California, 355 U.S. 225, 227 (1957) (holding that a municipal ordinance making it a crime to be present in Los Angeles without registering with the police violated the Due Process Clause when the defendant had no knowledge of his duty to register); United States v. Freed, 401 U.S. 601, 608 (1971) (identifying two ends of a spectrum - public welfare laws that need no mens rea, and the passive lack of registration in Lambert that requires knowledge of unlawfulness). More recently, without invoking the Due Process Clause, the Supreme Court has continued to construe criminal statutes to include intent elements based on the longstanding common law principle favoring inclusion of a mens rea. See, e.g., Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985).
161. See Morissette v. United States, 342 U.S. 246, 249-58 (1952) (construing a statute without a mens rea element to include such an element because of the legal tradition of requiring intent for serious crimes); Lambert v. California, 355 U.S. 225, 227 (1957) (holding that a municipal ordinance making it a crime to be present in Los Angeles without registering with the police violated the Due Process Clause when the defendant had no knowledge of his duty to register); United States v. Freed, 401 U.S. 601, 608 (1971) (identifying two ends of a spectrum - public welfare laws that need no mens rea, and the passive lack of registration in Lambert that requires knowledge of unlawfulness). More recently, without invoking the Due Process Clause, the Supreme Court has continued to construe criminal statutes to include intent elements based on the longstanding common law principle favoring inclusion of a mens rea. See, e.g., Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985).
162. See Morissette v. United States, 342 U.S. 246, 249-58 (1952) (construing a statute without a mens rea element to include such an element because of the legal tradition of requiring intent for serious crimes); Lambert v. California, 355 U.S. 225, 227 (1957) (holding that a municipal ordinance making it a crime to be present in Los Angeles without registering with the police violated the Due Process Clause when the defendant had no knowledge of his duty to register); United States v. Freed, 401 U.S. 601, 608 (1971) (identifying two ends of a spectrum - public welfare laws that need no mens rea, and the passive lack of registration in Lambert that requires knowledge of unlawfulness). More recently, without invoking the Due Process Clause, the Supreme Court has continued to construe criminal statutes to include intent elements based on the longstanding common law principle favoring inclusion of a mens rea. See, e.g., Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985).
163. See Morissette v. United States, 342 U.S. 246, 249-58 (1952) (construing a statute without a mens rea element to include such an element because of the legal tradition of requiring intent for serious crimes); Lambert v. California, 355 U.S. 225, 227 (1957) (holding that a municipal ordinance making it a crime to be present in Los Angeles without registering with the police violated the Due Process Clause when the defendant had no knowledge of his duty to register); United States v. Freed, 401 U.S. 601, 608 (1971) (identifying two ends of a spectrum - public welfare laws that need no mens rea, and the passive lack of registration in Lambert that requires knowledge of unlawfulness). More recently, without invoking the Due Process Clause, the Supreme Court has continued to construe criminal statutes to include intent elements based on the longstanding common law principle favoring inclusion of a mens rea. See, e.g., Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985).
164. See Morissette v. United States, 342 U.S. 246, 249-58 (1952) (construing a statute without a mens rea element to include such an element because of the legal tradition of requiring intent for serious crimes); Lambert v. California, 355 U.S. 225, 227 (1957) (holding that a municipal ordinance making it a crime to be present in Los Angeles without registering with the police violated the Due Process Clause when the defendant had no knowledge of his duty to register); United States v. Freed, 401 U.S. 601, 608 (1971) (identifying two ends of a spectrum - public welfare laws that need no mens rea, and the passive lack of registration in Lambert that requires knowledge of unlawfulness). More recently, without invoking the Due Process Clause, the Supreme Court has continued to construe criminal statutes to include intent elements based on the longstanding common law principle favoring inclusion of a mens rea. See, e.g., Staples v. United States, 511 U.S. 600 (1994); Ratzlaf v. United States, 510 U.S. 135 (1994); Liparota v. United States, 471 U.S. 419 (1985).
165. Stanley v. Turner, 6 F.3d 399, 404 (6th Cir. 1993).
166. See id.
167. See Morrisette, 342 U.S. at 255-56.
168. Id. See also Staples, 511 U.S. at 616 ("Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea").
169. 355 U.S. 225 (1957).
170. See id. at 227.
171. See Staples v. United States, 511 U.S. 600, 616 (1994) (emph-asizing the harsh penalties attaching to violations of the statute at issue as a "significant consideration in determining whether the statute should be construed as dispensing with mens rea").
172. See Lambert v. California, 355 U.S. 225, 228 (1957); see also Liparota v. United States, 471 U.S. 419, 426-27 (1985) (holding that a food stamp law required a mens rea element in part because of the application of the principle that criminal statutes should be resolved in favor of leniency; application of such a rule "ensures that criminal statutes will provide fair warning concerning conduct rendered illegal").
173. See Lambert v. California, 355 U.S. 225, 228 (1957); see also Liparota v. United States, 471 U.S. 419, 426-27 (1985) (holding that a food stamp law required a mens rea element in part because of the application of the principle that criminal statutes should be resolved in favor of leniency; application of such a rule "ensures that criminal statutes will provide fair warning concerning conduct rendered illegal").
174. OLIVER WENDELL HOLMES, THE COMMON LAW 50 (1881).
175. Cheek v. United States 498 U.S. 192, 199-200 (1991).
176. See State of New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995) ("[D]irect intentional physical attack upon another . . . should not be classified as trivial . . . even under an expansive view of the scope of the de minimis statute" (quoting State v. Downey, 576 A.2d 945 (N.J. Super. Law Div. 1988))).
177. See State of New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995) ("[D]irect intentional physical attack upon another . . . should not be classified as trivial . . . even under an expansive view of the scope of the de minimis statute" (quoting State v. Downey, 576 A.2d 945 (N.J. Super. Law Div. 1988))).
178. In marriage by capture, a Hmong man engages in a courting ritual that includes taking his prospective wife into his family home and keeping her there for three days to consummate the marriage. See Deirdre Evans-Pritchard and Alison Dundes Renteln, The Interpretation and Distortion of Culture: A Hmong "Marriage by Capture" Case in Fresno, California, 4 S. CAL. INTERDISCIPLINARY L.J. 1, 8 (1995) [hereinafter Marriage by Capture]. In Hmong language, "marriage by capture" or "marriage by abduction" is called "zij poj niam"; such marriages are also known as "bride-theft" or "tshoob zij." See id. at 14. Another common marriage practice among the Hmong, called "marriage by elopement," occurs when a woman goes willingly with a man. See id. While being held captive, the woman is supposed to protest that she is not ready for sex in order to prove her virtue. Sometimes a Hmong woman will file rape charges against the man following such an episode, claiming her protests were genuine and not part of a courting ritual. See id.
179. See generally John H. Biebel, I Thought She Said Yes: Sexual Assault in England and America, 19 SUFFOLK TRANSNAT'L L. REV. 153, 155 (1995) (discussing English and American courts' willingness to make "mistake of consent" defenses available to defendants in rape trials). In Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L. J. 55, 74 (1952), cited approvingly in MODEL PENAL CODE § 213.1 commentary at 302-03 (Official Draft and Revised Comments 1980), the author points out that reliance solely on a woman's subjective opposition to his sexual act "conflict[s] with a vital community policy that allows individuals to rely, as a guide to their own conduct, on the behavior of others." Because "[m]any areas of the law permit reliance upon the apparent meaning of another's words or actions . . . ,where a woman demon-strates overt signs of acquiescence to sexual advances, consummation of the act should not jeopardize the man because of her unexpressed reservation of consent." Id. In such instances, as with the Hmong man who believes a woman's overt opposition to his sexual advances is part of a courting ritual actually indicating her consent, the "man is ignorant of the controlling fact which would brand his act rape - the woman's attitude of opposition." See id. Thus, states the author, "the policy of protecting reliance on the behavior of others should prevail over the demand for protection of the woman's right to withhold consent." Id. See also Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 831 (1991) (asserting that the consent standard makes successful prosecution of acquaintance rape cases nearly impossible). But see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 576 (1997) ("Individual state inter-pretations of critical terms, like force and consent, vary widely, and the defendant's state of mind can be, but is not always, critical.").
180. See generally John H. Biebel, I Thought She Said Yes: Sexual Assault in England and America, 19 SUFFOLK TRANSNAT'L L. REV. 153, 155 (1995) (discussing English and American courts' willingness to make "mistake of consent" defenses available to defendants in rape trials). In Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L. J. 55, 74 (1952), cited approvingly in MODEL PENAL CODE § 213.1 commentary at 302-03 (Official Draft and Revised Comments 1980), the author points out that reliance solely on a woman's subjective opposition to his sexual act "conflict[s] with a vital community policy that allows individuals to rely, as a guide to their own conduct, on the behavior of others." Because "[m]any areas of the law permit reliance upon the apparent meaning of another's words or actions . . . ,where a woman demon-strates overt signs of acquiescence to sexual advances, consummation of the act should not jeopardize the man because of her unexpressed reservation of consent." Id. In such instances, as with the Hmong man who believes a woman's overt opposition to his sexual advances is part of a courting ritual actually indicating her consent, the "man is ignorant of the controlling fact which would brand his act rape - the woman's attitude of opposition." See id. Thus, states the author, "the policy of protecting reliance on the behavior of others should prevail over the demand for protection of the woman's right to withhold consent." Id. See also Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 831 (1991) (asserting that the consent standard makes successful prosecution of acquaintance rape cases nearly impossible). But see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 576 (1997) ("Individual state inter-pretations of critical terms, like force and consent, vary widely, and the defendant's state of mind can be, but is not always, critical.").
181. See generally John H. Biebel, I Thought She Said Yes: Sexual Assault in England and America, 19 SUFFOLK TRANSNAT'L L. REV. 153, 155 (1995) (discussing English and American courts' willingness to make "mistake of consent" defenses available to defendants in rape trials). In Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L. J. 55, 74 (1952), cited approvingly in MODEL PENAL CODE § 213.1 commentary at 302-03 (Official Draft and Revised Comments 1980), the author points out that reliance solely on a woman's subjective opposition to his sexual act "conflict[s] with a vital community policy that allows individuals to rely, as a guide to their own conduct, on the behavior of others." Because "[m]any areas of the law permit reliance upon the apparent meaning of another's words or actions . . . ,where a woman demon-strates overt signs of acquiescence to sexual advances, consummation of the act should not jeopardize the man because of her unexpressed reservation of consent." Id. In such instances, as with the Hmong man who believes a woman's overt opposition to his sexual advances is part of a courting ritual actually indicating her consent, the "man is ignorant of the controlling fact which would brand his act rape - the woman's attitude of opposition." See id. Thus, states the author, "the policy of protecting reliance on the behavior of others should prevail over the demand for protection of the woman's right to withhold consent." Id. See also Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 831 (1991) (asserting that the consent standard makes successful prosecution of acquaintance rape cases nearly impossible). But see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 576 (1997) ("Individual state inter-pretations of critical terms, like force and consent, vary widely, and the defendant's state of mind can be, but is not always, critical.").
182. See generally John H. Biebel, I Thought She Said Yes: Sexual Assault in England and America, 19 SUFFOLK TRANSNAT'L L. REV. 153, 155 (1995) (discussing English and American courts' willingness to make "mistake of consent" defenses available to defendants in rape trials). In Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L. J. 55, 74 (1952), cited approvingly in MODEL PENAL CODE § 213.1 commentary at 302-03 (Official Draft and Revised Comments 1980), the author points out that reliance solely on a woman's subjective opposition to his sexual act "conflict[s] with a vital community policy that allows individuals to rely, as a guide to their own conduct, on the behavior of others." Because "[m]any areas of the law permit reliance upon the apparent meaning of another's words or actions . . . ,where a woman demon-strates overt signs of acquiescence to sexual advances, consummation of the act should not jeopardize the man because of her unexpressed reservation of consent." Id. In such instances, as with the Hmong man who believes a woman's overt opposition to his sexual advances is part of a courting ritual actually indicating her consent, the "man is ignorant of the controlling fact which would brand his act rape - the woman's attitude of opposition." See id. Thus, states the author, "the policy of protecting reliance on the behavior of others should prevail over the demand for protection of the woman's right to withhold consent." Id. See also Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 831 (1991) (asserting that the consent standard makes successful prosecution of acquaintance rape cases nearly impossible). But see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 576 (1997) ("Individual state inter-pretations of critical terms, like force and consent, vary widely, and the defendant's state of mind can be, but is not always, critical.").
183. No. 315972-0 (Cal. Super. Ct. Feb. 17, 1985).
184. Marriage by Capture, supra note 115, at 9.
185. See id.
186. See id. at 22.
187. See id. at 23. Recognizing a mistake of fact as to consent would establish that Kong did not have the necessary intent, or mens rea, to commit the crime of rape. The public defender in the case did not, however, invoke a mistake of fact defense; Kong accepted a plea bargain included in which culture was considered as a mitigating factor during sentencing. See id. at 25-27. See generally Rosanna Cavallaro, A Big Mistake: Eroding the Defense of Mistake of Fact About Consent in Rape, 86 J. CRIM. L. & CRIMINOLOGY 815 (1996) (exploring the transformation of the mistake of fact defense into a new rule of "equivocality").
188. See, e.g., law review articles cited supra note 2.
189. See Restoring Hope or Tolerating Abuse?, supra note 2, at 277-78.
190. Female genital mutilation is an operation currently being performed on young girls that involves the "incision and usually removal of part or all of the female external genitalia, which includes the clitoris, the clitoral prepuce, the labia majora and the labia minora." Lori Ann Larson, Female Genital Mutilation in the United States: Child Abuse or Constitutional Freedom?, 17 WOMEN'S RTS. L. REP. 237, 238 (1996).
191. They include the following: a Houston insurance salesman, "accused of child abuse for hitting his misbehaving nephew and then putting pepper in the boy's abrasions" was sentenced to probation after arguing that this practice is an acceptable form of discipline in his native Nigeria; a Mexican woman from Los Angeles was ordered to seek counseling after being accused of child abuse for beating her 15-year-old son with a wooden spoon and biting him as punishment for taking money from her purse; in San Francisco and Los Angeles, two young Japanese mothers were allowed to plead guilty to manslaughter instead of standing trial for murder after killing their children because experts asserted that oyako-shinju, or parent-child suicide, is frequently prac-ticed in Japan by wives humiliated by their husbands' infidelity; a Chinese immigrant, convicted of manslaughter for beating his wife to death with a hammer after she allegedly admitted to having an affair, was given five year's probation because the judge accepted the argument that "traditional Chinese notions about the shame of adultery had propelled him to violence." When is Cultural Difference a Legal Defense?, supra note 4, at A1.
192. Coleman, supra note 1, at 1094.
193. See id. at 1095.
194. See id.
195. See, e.g., Leti Volpp, (Mis)identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S L.J. 57, 61-62 (1994).
196. See id. at 63 ("[T]he value of antisubordination should be factored into the decision of whether or not to support use of the defense and that a commitment to antisubordination must entail a simultaneous recognition of material and descriptive oppression based on factors such as race, gender, immigrant status and national origin.").
197. Permitting women to assert cultural defenses may result in the perpetuation of negative stereotypes, e.g., Latina women as passive participants in crimes perpetrated by their husbands or male partners. See Kristen L. Holmquist, Cultural Defense or False Stereotype? What Happens When Latina Defendants Collide with the Federal Sentencing Guidelines, 12 BERKELEY WOMEN'S L.J. 45, 65 (1997). Women may be forced to either accept "harsh statutorily mandated sentences, or . . . embrace stereotype and play to a court's sympathy by presenting themselves as pawns of their husbands, naive and lacking in self-determination. By choosing the latter they shape themselves according to someone else's definition and mold their destinies, and the destinies of others like them, according to someone else's plan." Id.
198. See Stepniewski v. Gagnon, 732 F.2d 567, 571 (7th Cir. 1984).
199. See United States v. Park, 421 U.S. 658, 672 (1975); United States v. Freed, 401 U.S. 601, 609 (1971).
200. See United States v. Park, 421 U.S. 658, 672 (1975); United States v. Freed, 401 U.S. 601, 609 (1971).
201. See United States v. Balint, 258 U.S. 250, 253-54 (1922) (upholding a narcotics law: "Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.").
202. See United States v. Mancuso, 420 F.2d 556, 559 n.5 (2d Cir. 1970) (stating, "Common law cases generally applied the maxim ignorantia legis neminem excusat ('ignorance of the law excuses no one') when mistake or ignorance of the existence of a criminal prohibition was urged. The sound reasoning behind such a conclusion was that the criminal law expressed general communal moral standards, and ignorance of their existence reflected in any case either recklessness or dangerousness to the community") (citing Jerome Hall, Ignorance and Mistake in Criminal Law, 33 IND. L.J. 1 (1957)).
203. See United States v. Mancuso, 420 F.2d 556, 559 n.5 (2d Cir. 1970) (stating, "Common law cases generally applied the maxim ignorantia legis neminem excusat ('ignorance of the law excuses no one') when mistake or ignorance of the existence of a criminal prohibition was urged. The sound reasoning behind such a conclusion was that the criminal law expressed general communal moral standards, and ignorance of their existence reflected in any case either recklessness or dangerousness to the community") (citing Jerome Hall, Ignorance and Mistake in Criminal Law, 33 IND. L.J. 1 (1957)).
204. U.S. CONST. amend. I.
205. See Griswold v. Connecticut, 381 U.S. 479, 483 (1965) ("[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion.").
206. The Act was codified at 42 U.S.C. §§ 2000bb-2000bb4 (Supp. 1994).
207. 521 U.S. 507 (1997).
208. 42 U.S.C. § 2000bb-1(a), (b).
209. See Employment Div. Dep't of Human Resources v. Smith, 494 U.S. 872, 881 (1990) (citing Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) and Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925)).
210. See Employment Div. Dep't of Human Resources v. Smith, 494 U.S. 872, 881 (1990) (citing Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) and Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925)).
211. See Employment Div. Dep't of Human Resources v. Smith, 494 U.S. 872, 881 (1990) (citing Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) and Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925)).
212. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (upholding church's challenge to city ordinances dealing with ritual slaughter of animals).
213. Yoder, 406 U.S. at 215.
214. Id. at 216.
215. See, e.g., Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) (discussing American Indians seeking the right to perform peyote rituals).
216. See, e.g., Yoder, 406 U.S. at 205 (discussing Amish seeking exemption from state law compelling their children to attend formal high school to age 16).
217. 604 P.2d 1068 (Alaska 1979).
218. See id. at 1071-72.
219. Id. at 1076 (Connor, J., dissenting).
220. See id. at 1075.
221. 406 U.S. at 210.
222. Id.
223. See also Carol M. Messito, Regulating Rites: Legal Responses to Female Genital Mutilation in the West, 16 IN PUBLIC INTEREST 33, 55-59 (1997) (discussing the current debate as to whether female genital mutilation is a cultural or religious phenomenon).
224. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-6, at 1181 (2d. ed. 1988) ("'Religion' must be defined from the believer's perspective.").
225. See Thomas v. Review Bd., 450 U.S. 707, 714 (1981). "The determination of what is a 'religious' belief or practice is more often than not a difficult and delicate task. . . . The resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection." Id. See also
226. United States v. Seeger, 380 U.S. 163 (1965) (defining religion in terms of what it is not, i.e., not a political, social, or philosophical belief); id. at 178-79, (Douglas, J., concurring) (broadening the term "Supreme Being" to include the religious belief systems that do not subscribe to the existence of God, such as Hinduism, Buddhism, and others"). Id. at 188-89.
227. See United States v. Freeman, 808 F.2d 1290 (8th Cir. 1987) (citing New York v. Ferber, 458 U.S. 747) (1982)) (citing the Ferber Court's recognition that "states [have] compelling interest in protecting children from sexual abuse").
228. See United States v. Freeman, 808 F.2d 1290 (8th Cir. 1987) (citing New York v. Ferber, 458 U.S. 747) (1982)) (citing the Ferber Court's recognition that "states [have] compelling interest in protecting children from sexual abuse").
229. 98 U.S. 145 (1878).
230. See id. at 166-67.
231. See id. at 166.
232. Id.
233. Id. at 164. This adverse judicial treatment based on a practice or belief deemed Asian or African, as opposed to coming from Western traditions, was no aberration. The Chinese, for example, had been described by the Supreme Court in an earlier case as a "menace to our civilization" because, among other reasons, they "retained the habits and customs of their own country . . . ." Chae Chan Ping v. United States, 130 U.S. 581, 595 (1889). See also Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893) (noting that the Chinese, who were "of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order, and be injurious to the public interests").
234. Id. at 164. This adverse judicial treatment based on a practice or belief deemed Asian or African, as opposed to coming from Western traditions, was no aberration. The Chinese, for example, had been described by the Supreme Court in an earlier case as a "menace to our civilization" because, among other reasons, they "retained the habits and customs of their own country . . . ." Chae Chan Ping v. United States, 130 U.S. 581, 595 (1889). See also Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893) (noting that the Chinese, who were "of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order, and be injurious to the public interests").
235. See Church of the Lukumi v. City of Hialeah, 508 U.S. 520 (1993) (upholding animal sacrifice practiced as part of the Santeria religion, a fusion of traditional African and Roman Catholic beliefs and practices). But see Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 473 (1988) (Brennan, J., dissenting) (suggesting that the majority's rejection of a Native American protest against the Forest Service for paving land sacred to the claimants "represents yet another stress point in the longstanding conflict between two disparate cultures - the dominant Western culture . . . and that of Native Americans").
236. See Church of the Lukumi v. City of Hialeah, 508 U.S. 520 (1993) (upholding animal sacrifice practiced as part of the Santeria religion, a fusion of traditional African and Roman Catholic beliefs and practices). But see Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 473 (1988) (Brennan, J., dissenting) (suggesting that the majority's rejection of a Native American protest against the Forest Service for paving land sacred to the claimants "represents yet another stress point in the longstanding conflict between two disparate cultures - the dominant Western culture . . . and that of Native Americans").
237. See Potter v. Murray City, 760 F.2d 1065, 1068, cert. denied, 474 U.S. 849 (1985) (holding that termination of police officer for practice of plural marriage did not violate his right to free exercise of religion). The Potter Court found that later precedent did not effectively overturn Reynolds; notably, the Court concluded that the State had a compelling interest in protecting monogamy because "[m]onogamy . . . is the bedrock upon which our culture is built." Id. at 1070. See also Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C.L. Rev. 1501 (1997) (explaining why polygamy restrictions can be upheld although gender- based marriage restrictions should be struck down).
238. See Potter v. Murray City, 760 F.2d 1065, 1068, cert. denied, 474 U.S. 849 (1985) (holding that termination of police officer for practice of plural marriage did not violate his right to free exercise of religion). The Potter Court found that later precedent did not effectively overturn Reynolds; notably, the Court concluded that the State had a compelling interest in protecting monogamy because "[m]onogamy . . . is the bedrock upon which our culture is built." Id. at 1070. See also Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C.L. Rev. 1501 (1997) (explaining why polygamy restrictions can be upheld although gender- based marriage restrictions should be struck down).
239. See Potter v. Murray City, 760 F.2d 1065, 1068, cert. denied, 474 U.S. 849 (1985) (holding that termination of police officer for practice of plural marriage did not violate his right to free exercise of religion). The Potter Court found that later precedent did not effectively overturn Reynolds; notably, the Court concluded that the State had a compelling interest in protecting monogamy because "[m]onogamy . . . is the bedrock upon which our culture is built." Id. at 1070. See also Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C.L. Rev. 1501 (1997) (explaining why polygamy restrictions can be upheld although gender-based marriage restrictions should be struck down).
240. See, e.g., Potter, 760 F.2d at 1068.
241. See Melissa A. Morgan, Female Genital Mutilation: An Issue on the Doorstep of the American Medical Community, 18 J. LEGAL MED. 93, 98 (1997) (noting that the medical community is "divided on the health benefits associated with male circumcision"). Id.
242. See Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717, 759 (1998) (citing AMERICAN ACADEMY OF PEDIATRICS, CIRCUMCISION: PROS AND CONS, GUIDELINES FOR PARENTS (1995) (documenting that "[t]he infant experiences pain along with the surgery")).
243. See Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717, 759 (1998) (citing AMERICAN ACADEMY OF PEDIATRICS, CIRCUMCISION: PROS AND CONS, GUIDELINES FOR PARENTS (1995) (documenting that "[t]he infant experiences pain along with the surgery")).
244. See Potter, 760 F.2d at 1070.
245. See Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996) (holding that Hawaii statute forbidding same-sex marriage was unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution). Justice Powell, who wrote for the Majority in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court declined to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because such homosexual relationships were not "deeply rooted in this Nation's history and tradition," 478 U.S. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)), later expressed regret for that decision. See JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 530 (1994). On October 18, 1990, while giving the annual James Madison lecture at New York University Law School, Justice Powell answered a student's question about Bowers v. Hardwick, indicating that he thought he had "probably made a mistake in that one." Id. Later, when a reporter called to confirm that remark, Justice Power stated that "the dissent [in Bowers] had the better of the arguments." Id..
246. See Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996) (holding that Hawaii statute forbidding same-sex marriage was unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution). Justice Powell, who wrote for the Majority in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court declined to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because such homosexual relationships were not "deeply rooted in this Nation's history and tradition," 478 U.S. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)), later expressed regret for that decision. See JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 530 (1994). On October 18, 1990, while giving the annual James Madison lecture at New York University Law School, Justice Powell answered a student's question about Bowers v. Hardwick, indicating that he thought he had "probably made a mistake in that one." Id. Later, when a reporter called to confirm that remark, Justice Power stated that "the dissent [in Bowers] had the better of the arguments." Id..
247. See Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996) (holding that Hawaii statute forbidding same-sex marriage was unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution). Justice Powell, who wrote for the Majority in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court declined to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because such homosexual relationships were not "deeply rooted in this Nation's history and tradition," 478 U.S. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)), later expressed regret for that decision. See JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 530 (1994). On October 18, 1990, while giving the annual James Madison lecture at New York University Law School, Justice Powell answered a student's question about Bowers v. Hardwick, indicating that he thought he had "probably made a mistake in that one." Id. Later, when a reporter called to confirm that remark, Justice Power stated that "the dissent [in Bowers] had the better of the arguments." Id..
248. See Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996) (holding that Hawaii statute forbidding same-sex marriage was unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution). Justice Powell, who wrote for the Majority in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court declined to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because such homosexual relationships were not "deeply rooted in this Nation's history and tradition," 478 U.S. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)), later expressed regret for that decision. See JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 530 (1994). On October 18, 1990, while giving the annual James Madison lecture at New York University Law School, Justice Powell answered a student's question about Bowers v. Hardwick, indicating that he thought he had "probably made a mistake in that one." Id. Later, when a reporter called to confirm that remark, Justice Power stated that "the dissent [in Bowers] had the better of the arguments." Id..
249. See Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996) (holding that Hawaii statute forbidding same-sex marriage was unconstitutional and in violation of the equal protection clause of article I, section 5 of the Hawaii Constitution). Justice Powell, who wrote for the Majority in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court declined to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because such homosexual relationships were not "deeply rooted in this Nation's history and tradition," 478 U.S. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)), later expressed regret for that decision. See JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 530 (1994). On October 18, 1990, while giving the annual James Madison lecture at New York University Law School, Justice Powell answered a student's question about Bowers v. Hardwick, indicating that he thought he had "probably made a mistake in that one." Id. Later, when a reporter called to confirm that remark, Justice Power stated that "the dissent [in Bowers] had the better of the arguments." Id..
250. See Reynolds v. United States, 98 U.S. 145, 166-67 (1878).
251. In contrast, sheer historical acceptance, as opposed to contemporary acceptance, should logically not play a role in the balancing test of societal interest versus individual rights. What matters is what society thinks now, not what it thought previously. The Supreme Court, however, appears to give historical acceptance considerable weight in the due process balancing test. In Washington v. Glucksberg, 521 U.S. 702 (1997), for example, the Court stated that it would begin its analysis, as it does "in all due process cases, by examining our Nation's history, legal traditions, and practices." Id. at 710 (citing, inter alia, Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (citations omitted) (noting the importance of "careful 'respect for the teachings of history'")). In Glucksberg, while upholding a state statute prohibiting assisted suicide, the Court noted as an important factor the fact that "the Anglo- American common law tradition" has punished such activity. Id. at 711. See also Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986) (citations omitted) (declining to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because "[proscriptions against that conduct have ancient roots" and such conduct is not "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty"). But see Romer v. Evans, 517 U.S. 620, 634-35 (1996) (noting that laws targeting a particular group because of societal disapproval must have legitimate State purpose distinct from mere societal disapproval).
252. In contrast, sheer historical acceptance, as opposed to contemporary acceptance, should logically not play a role in the balancing test of societal interest versus individual rights. What matters is what society thinks now, not what it thought previously. The Supreme Court, however, appears to give historical acceptance considerable weight in the due process balancing test. In Washington v. Glucksberg, 521 U.S. 702 (1997), for example, the Court stated that it would begin its analysis, as it does "in all due process cases, by examining our Nation's history, legal traditions, and practices." Id. at 710 (citing, inter alia, Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (citations omitted) (noting the importance of "careful 'respect for the teachings of history'")). In Glucksberg, while upholding a state statute prohibiting assisted suicide, the Court noted as an important factor the fact that "the Anglo-American common law tradition" has punished such activity. Id. at 711. See also Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986) (citations omitted) (declining to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because "[proscriptions against that conduct have ancient roots" and such conduct is not "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty"). But see Romer v. Evans, 517 U.S. 620, 634-35 (1996) (noting that laws targeting a particular group because of societal disapproval must have legitimate State purpose distinct from mere societal disapproval).
253. In contrast, sheer historical acceptance, as opposed to contemporary acceptance, should logically not play a role in the balancing test of societal interest versus individual rights. What matters is what society thinks now, not what it thought previously. The Supreme Court, however, appears to give historical acceptance considerable weight in the due process balancing test. In Washington v. Glucksberg, 521 U.S. 702 (1997), for example, the Court stated that it would begin its analysis, as it does "in all due process cases, by examining our Nation's history, legal traditions, and practices." Id. at 710 (citing, inter alia, Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (citations omitted) (noting the importance of "careful 'respect for the teachings of history'")). In Glucksberg, while upholding a state statute prohibiting assisted suicide, the Court noted as an important factor the fact that "the Anglo- American common law tradition" has punished such activity. Id. at 711. See also Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986) (citations omitted) (declining to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because "[proscriptions against that conduct have ancient roots" and such conduct is not "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty"). But see Romer v. Evans, 517 U.S. 620, 634-35 (1996) (noting that laws targeting a particular group because of societal disapproval must have legitimate State purpose distinct from mere societal disapproval).
254. In contrast, sheer historical acceptance, as opposed to contemporary acceptance, should logically not play a role in the balancing test of societal interest versus individual rights. What matters is what society thinks now, not what it thought previously. The Supreme Court, however, appears to give historical acceptance considerable weight in the due process balancing test. In Washington v. Glucksberg, 521 U.S. 702 (1997), for example, the Court stated that it would begin its analysis, as it does "in all due process cases, by examining our Nation's history, legal traditions, and practices." Id. at 710 (citing, inter alia, Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (citations omitted) (noting the importance of "careful 'respect for the teachings of history'")). In Glucksberg, while upholding a state statute prohibiting assisted suicide, the Court noted as an important factor the fact that "the Anglo- American common law tradition" has punished such activity. Id. at 711. See also Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986) (citations omitted) (declining to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy" because "[proscriptions against that conduct have ancient roots" and such conduct is not "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty"). But see Romer v. Evans, 517 U.S. 620, 634-35 (1996) (noting that laws targeting a particular group because of societal disapproval must have legitimate State purpose distinct from mere societal disapproval).
255. See Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
256. Wisconsin v. Yoder, 406 U.S. 205, 223-24 (1972).
257. Meyer v. Nebraska, 262 U.S. 390, 398-99 (1923).
258. See id.
259. See id. at 403.
260. See id. at 396.
261. See id. at 398 (citing Meyer v. Nebraska, 187 N.W. 100 (Neb. 1922)).
262. Id. at 399.
263. See id. at 401-402.
264. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) ("The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents," and court decisions "have respected the private realm of family life which the state cannot enter.").
265. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) ("The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents," and court decisions "have respected the private realm of family life which the state cannot enter.").
266. See Griswold v. Connecticut, 381 U.S. 479, 516 (1965) (stating that right to privacy embraces the right to marry, establish a home, and bring up children).
267. See Laura Nowak D. Dong, Intercultural Differences Between Chinese and Americans in Business, 60 BULL. ASSOC. FOR BUS. COMM. 115, 116 (March 1, 1997).
268. See James H. Davis, F. David Schoorman & Lex Donaldson, Toward a Stewardship Theory of Management, ACAD. MGMT. REV., January 1, 1997, at 20.
269. See id.
270. See Francis Fukuyama, Asian Values and the Asian Crisis, COMMENTARY, Feb. 1, 1998, at 23.
271. See id.
272. See Jennifer Gould, Undiplomatic Behavior: Those Bad-Boy Envoys: Seduction, Secrecy, Sexual Assault, VILLAGE VOICE, May 20, 1997, at 32 (reporting on sexual harassment by United Nations delegates from foreign countries).
273. See Frederick R. Lynch, The Diversity Machine (Workplace Diversity), SOCIETY, July 17, 1997, at 32.
274. See Joseph Hanania, Facing their Fears, the Latino Men's Group is Helping its Members Modify Risky Sexual Behavior and Reach Out in an Ethnic Group that is Still Reluctant to Acknowledge AIDS, L.A. TIMES, May 20, 1997, at B2.
275. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (holding that Georgia statute criminalizing homosexual sodomy does not violate the fundamental rights of homosexuals); but cf. Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996). See also supra note 167.
276. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (holding that Georgia statute criminalizing homosexual sodomy does not violate the fundamental rights of homosexuals); but cf. Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *22 (Hawaii Cir. Ct. 1996). See also supra note 167.
277. See Sylvia R. Lazos Vargas, Deconstructing Homo[geneous] Americans: The White Ethnic Immigrant Narrative and its Exclusionary Effect, 72 TUL. L. REV. 1493, 1514 (1998) (describing individualism as a core American belief).
278. See Regents of the Univ. v. Bakke, 438 U.S. 265, 326 (1978) (Brennan, White, Marshall & Blackmun, JJ., concurring in part and dissenting in part) ("Our Nation was founded on the principle that 'all Men are created equal."); Phillip R. Trimble, Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy, 95 MICH. L. REV. 1944, 1953 (1997) ("The philosophical departure point for discourse about politics and government in the West is that 'all men are created equal.'").
279. See Regents of the Univ. v. Bakke, 438 U.S. 265, 326 (1978) (Brennan, White, Marshall & Blackmun, JJ., concurring in part and dissenting in part) ("Our Nation was founded on the principle that 'all Men are created equal."); Phillip R. Trimble, Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy, 95 MICH. L. REV. 1944, 1953 (1997) ("The philosophical departure point for discourse about politics and government in the West is that 'all men are created equal.'").
280. In the preamble to the Massachusetts Declaration of Rights, the drafter, John Adams, wrote: "The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good." MASS. CONST. OF 1780, preamble (reprinted in 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS AND OTHER ORGANIC LAWS OF THE UNITED STATES 956-57 (Ben: Perly Poor, compiler, 1877).
281. See Bridges v. Wixon, 326 U.S. 135, 163 (1945) (Murphy, J., concurring) ("The doctrine of personal guilt is one of the most fundamental principles of our jurisprudence. It partakes of the very essence of the concept of freedom and due process of law."); Daniel J. Steinbock, Interpreting the Refugee Definition, 45 U.C.L.A. L. REV. 733, 792 (1998) ("[T]he use of group membership as a proxy for guilt is antithetical to the notions of individual responsibility and justice lying at the heart of . . . American . . . law.").
282. See Bridges v. Wixon, 326 U.S. 135, 163 (1945) (Murphy, J., concurring) ("The doctrine of personal guilt is one of the most fundamental principles of our jurisprudence. It partakes of the very essence of the concept of freedom and due process of law."); Daniel J. Steinbock, Interpreting the Refugee Definition, 45 U.C.L.A. L. REV. 733, 792 (1998) ("[T]he use of group membership as a proxy for guilt is antithetical to the notions of individual responsibility and justice lying at the heart of . . . American . . . law.").
283. See, e.g., In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (identifying as "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free").
284. See, e.g., State of Minnesota v. Kahn, 555 N.W.2d 15, 21 (Minn. Ct. App. 1996) (Randall, J., concurring) ("All attempts at 'one size fits all' generally end up snaring the innocent and unwary more than criminals.").
285. Charles D. Breitel, Controls in Criminal Law Enforcement, 27 U. CHI. L. REV. 427, 427 (1960), quoted in MODEL PENAL CODE § 2.12 cmt. at 403.
286. See McIntyre v. Ohio Elections Comm., 514 U.S. 334, 357 (1995) (stating that "[a]nonymity is a shield from the tyranny of the majority" that "exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society").
287. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) (citing Poe v. Ullman, 357 U.S. 497, 542 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds). In his dissent, Justice Harlan stated, "Due process has not been reduced to any formula. . . . The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society." Id. at 849-50.
288. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) (citing Poe v. Ullman, 357 U.S. 497, 542 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds). In his dissent, Justice Harlan stated, "Due process has not been reduced to any formula. . . . The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society." Id. at 849-50.
289. Cf. Michigan State Police v. Sitz, 496 U.S. 444, 449 (1990) (explaining Fourth Amendment analysis of constitutionality of sobriety checkpoint as a balance of the State's interest, the effectiveness of the State action, and the level of intrusion on the individual's privacy).
290. See MODEL PENAL CODE § 2.12 cmt. at 400-401 (quoting ROYAL COMM'N APPOINTED TO CONSIDER THE LAW RELATING TO INDICTABLE OFFENCES, REPORT, 1879, Cmnd. 2345, at 65. ("[W]hile exempting the person from punishment under a sentence, [awarding nominal punishment or discharging the person convicted on his own recognizance] may still leave him subject to the most serious consequences; for example," forfeiting a pension or being disqualified from holding a liquor license.).
291. See Proctor v. State, 176 P. 771, 772 (Okla. Crim. App. 1918) (holding that states cannot criminalize intent alone). See also WAYNE R. LAFAVE & AUSTIN W. SCOTT, HANDBOOK ON CRIMINAL LAW § 25, at 177 (1972).
292. See Proctor v. State, 176 P. 771, 772 (Okla. Crim. App. 1918) (holding that states cannot criminalize intent alone). See also WAYNE R. LAFAVE & AUSTIN W. SCOTT, HANDBOOK ON CRIMINAL LAW § 25, at 177 (1972).
293. See 8 U.S.C. § 1227 (a)(2)(A)(ii) (Supp. 1998).
294. On the one hand, the current trend appears to go in the opposite direction-less protection of aliens' rights, not more, creating an even greater need for some sort of escape hatch in exceptional situations. See Note, The Constitutional Requirement of Judicial Review for Administrative Deportation Decisions, 110 HARV. L. REV. 1850, 1853-54 & 1863 (1997) (describing the statutory elimination of habeas corpus and direct judicial review of deportation orders against certain aliens who are "deportable by reason of having committed a criminal offense" and the consequent erosion of aliens' due process rights). On the other hand, immigration law also seems to be gaining some recognition of cultural distinctions as a justification for refugee status. See In re Kasinga, Int. Dec. No. 3278 (B.I.A. June 13, 1996).
295. On the one hand, the current trend appears to go in the opposite direction-less protection of aliens' rights, not more, creating an even greater need for some sort of escape hatch in exceptional situations. See Note, The Constitutional Requirement of Judicial Review for Administrative Deportation Decisions, 110 HARV. L. REV. 1850, 1853-54 & 1863 (1997) (describing the statutory elimination of habeas corpus and direct judicial review of deportation orders against certain aliens who are "deportable by reason of having committed a criminal offense" and the consequent erosion of aliens' due process rights). On the other hand, immigration law also seems to be gaining some recognition of cultural distinctions as a justification for refugee status. See In re Kasinga, Int. Dec. No. 3278 (B.I.A. June 13, 1996).
296. See Mutual Fire Ins. Co. v. Hancock, 634 A.2d 1312, 1314 (Me. 1993) (Glassman, J. dissenting) (stating, "The Legislature opted not to require intent in cases of gross sexual assault in order to focus the proof in such cases on whether the victim has been subjected to certain specified conduct by the defendant providing a specified state of mind in the victim without regard to the state of mind of the defendant.").
297. See, e.g., State of Maine v. Crocker, 387 A.2d 26, 27 (Me. 1978). Prior to the amendment of Maine's intoxication statute, 17-A M.R.S.A. § 58-A, the "existence of a reasonable doubt as to [a culpable] state of mind [could] be established by evidence of intoxication." Id. The statute was ultimately amended to preclude intoxication as a defense "unless it established] a reasonable doubt as to the existence of an element of the offense." Id. at 27, n.1.
298. See, e.g., Garnett v. State of Maryland, 632 A.2d 797, 803-804 (Md. 1993) (stating that second-degree rape statute prohibiting sexual intercourse with underage persons establishes a strict liability offense that does not require any mens rea and does not allow for a mistake-of-age defense).
299. See generally Benjamin L. Reiss, Alaska's Mens Rea Require-ments for Statutory Rape, 9 ALASKA L. REV. 377, 377 (1992) (arguing that the "failure to demand proof of a culpable mental state [for the crime of statutory rape] conflicts with due process ideals").