Culture as sameness: Toward a synthetic view of provocation and culture in the criminal law

Yale Law Journal

Volumn 108, Issue 7, 1999, Pages 1845-1883

  Sing, James J ^a  

^a NONE

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EID: 0040824081     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797452     Document Type: Review

References (204)

1. For instance, late 19th-century anti-Chinese sentiment, culminating in the Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882), was fueled by the popular belief that Chinese immigrants could never contribute productively to society because their habits, customs, and languages were too different from the dominant Anglo-European culture. See SUCHENG CHAN, ASIAN AMERICANS: AN INTERPRETIVE HISTORY 3-17 (1991); RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 472-73 (1989). According to cultural critics and legal commentators, that most assimilation theories are based on European immigrant experiences prevents ultimate acceptance by the dominant group of many non-European ethnic minority groups. Thus, Asian Americans, as well as Latinos and Arabs, are to this day categorized as unassimilable foreigners. See, e.g., ANGELO N. ANCHETA, RACE, RIGHTS, AND THE ASIAN AMERICAN EXPERIENCE 64-66,108 (1998).
2. For instance, late 19th-century anti-Chinese sentiment, culminating in the Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882), was fueled by the popular belief that Chinese immigrants could never contribute productively to society because their habits, customs, and languages were too different from the dominant Anglo-European culture. See SUCHENG CHAN, ASIAN AMERICANS: AN INTERPRETIVE HISTORY 3-17 (1991); RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 472-73 (1989). According to cultural critics and legal commentators, that most assimilation theories are based on European immigrant experiences prevents ultimate acceptance by the dominant group of many non-European ethnic minority groups. Thus, Asian Americans, as well as Latinos and Arabs, are to this day categorized as unassimilable foreigners. See, e.g., ANGELO N. ANCHETA, RACE, RIGHTS, AND THE ASIAN AMERICAN EXPERIENCE 64-66,108 (1998).
3. For instance, late 19th-century anti-Chinese sentiment, culminating in the Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882), was fueled by the popular belief that Chinese immigrants could never contribute productively to society because their habits, customs, and languages were too different from the dominant Anglo-European culture. See SUCHENG CHAN, ASIAN AMERICANS: AN INTERPRETIVE HISTORY 3-17 (1991); RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN AMERICANS 472-73 (1989). According to cultural critics and legal commentators, that most assimilation theories are based on European immigrant experiences prevents ultimate acceptance by the dominant group of many non-European ethnic minority groups. Thus, Asian Americans, as well as Latinos and Arabs, are to this day categorized as unassimilable foreigners. See, e.g., ANGELO N. ANCHETA, RACE, RIGHTS, AND THE ASIAN AMERICAN EXPERIENCE 64-66,108 (1998).
4. See generally PETER BRIMELOW, ALIEN NATION: COMMON SENSE ABOUT AMERICA'S IMMIGRATION DISASTER (1995).
5. San Francisco's anti-Chinese "queue ordinance" was an early example of legislation that criminalized outward manifestations of immigrant cultural difference. This 19th-century law forbade male individuals from wearing their hair in braids. Though facially neutral, the law specifically targeted the Chinese community, whose male members wore their hair in long "queues" or braids to symbolize subservience to the Manchu emperor. See Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. CaL. 1879) (No. 6546) (finding that the San Francisco queue ordinance was a cruel and unusual punishment and, insofar as it was directed specifically against Chinese men, violated the Equal Protection Clause).
6. See Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration, and Immigrants, 7 STAN. L. & POL'Y REV. 111, 112 (1996) (critiquing the view of immigrants as a drain on national resources embodied in BRIMELOW, supra note 2, as antiempirical and unfounded).
7. In upholding the 1888 Scott Act, ch. 1064, 25 Stat. 504 , which expanded the Chinese Exclusion Act by barring even those Chinese laborers who left the United States with return certificates, the Supreme Court employed reasoning that was explicitly assimilationist: "If, therefore, the government of the United States ... considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed ....," The Chinese Exclusion Case, 130 U.S. 581, 606 (1889); see also, e.g., ANCHETA, supra note 1, at 85 (observing that the nativist sentiment that informs an 1876 California legislature report stating that the Chinese "have never adapted themselves to our habits, mode of dress, or our educational system" finds resonance in modern immigration law and anti-immigrant rhetoric); James J. Orlow, America's Incoherent Immigration Policy: Some Problems and Solutions, 36 U. MIAMI L. REV. 931, 937 n.4 (1982) (providing a catalog of some of the most egregious examples of how immigration law has been employed to exclude Asians and other "undesirables" ).
8. No. A-091133 (Santa Monica Super. Ct. Nov. 21, 1985) (unpublished decision). For descriptions of the Kimura case, see Daina Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. REV. 1053, 1117-18 (1994); Tamara Jones, An "Honorable" Murder/Mother Meant To Die, Too, in a Ritual Parent-Child Suicide, S.F. CHRON., Oct. 14, 1985, at 19; Leslie Pound, Mother's Tragic Crime Exposes a Culture Gap, CHI. TRIB., June 10, 1985, at 1; and Robert W. Stewart, Probation Given to Mother in Drowning of Her Two Children, L.A. TIMES, Nov. 22 1985, §II, at 1.
9. No. A-091133 (Santa Monica Super. Ct. Nov. 21, 1985) (unpublished decision). For descriptions of the Kimura case, see Daina Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. REV. 1053, 1117-18 (1994); Tamara Jones, An "Honorable" Murder/Mother Meant To Die, Too, in a Ritual Parent-Child Suicide, S.F. CHRON., Oct. 14, 1985, at 19; Leslie Pound, Mother's Tragic Crime Exposes a Culture Gap, CHI. TRIB., June 10, 1985, at 1; and Robert W. Stewart, Probation Given to Mother in Drowning of Her Two Children, L.A. TIMES, Nov. 22 1985, §II, at 1.
10. No. A-091133 (Santa Monica Super. Ct. Nov. 21, 1985) (unpublished decision). For descriptions of the Kimura case, see Daina Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. REV. 1053, 1117-18 (1994); Tamara Jones, An "Honorable" Murder/Mother Meant To Die, Too, in a Ritual Parent-Child Suicide, S.F. CHRON., Oct. 14, 1985, at 19; Leslie Pound, Mother's Tragic Crime Exposes a Culture Gap, CHI. TRIB., June 10, 1985, at 1; and Robert W. Stewart, Probation Given to Mother in Drowning of Her Two Children, L.A. TIMES, Nov. 22 1985, §II, at 1.
11. No. A-091133 (Santa Monica Super. Ct. Nov. 21, 1985) (unpublished decision). For descriptions of the Kimura case, see Daina Chiu, The Cultural Defense: Beyond Exclusion, Assimilation, and Guilty Liberalism, 82 CAL. L. REV. 1053, 1117-18 (1994); Tamara Jones, An "Honorable" Murder/Mother Meant To Die, Too, in a Ritual Parent-Child Suicide, S.F. CHRON., Oct. 14, 1985, at 19; Leslie Pound, Mother's Tragic Crime Exposes a Culture Gap, CHI. TRIB., June 10, 1985, at 1; and Robert W. Stewart, Probation Given to Mother in Drowning of Her Two Children, L.A. TIMES, Nov. 22 1985, §II, at 1.
12. See Jones, supra note 6, at 19.
13. See Stewart, supra note 6, §II, at 1
14. See Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293, 1296 (1986); Michael Fischer, Note, The Human Rights Implications of a "Cultural Defense," 6 S. CAL. INTCRDISC. L.J. 663, 679-85 (1998).
15. See Note, The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293, 1296 (1986); Michael Fischer, Note, The Human Rights Implications of a "Cultural Defense," 6 S. CAL. INTCRDISC. L.J. 663, 679-85 (1998).
16. See John C. Lyman, Note, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 105-11 (1986); Julia P. Sams, Note, The Availability of the "Cultural Defense" as an Excuse for Criminal Behavior, 16 GA. J. INT'L & COMP. L. 335, 339-40 (1986).
17. See John C. Lyman, Note, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUST. J. 87, 105-11 (1986); Julia P. Sams, Note, The Availability of the "Cultural Defense" as an Excuse for Criminal Behavior, 16 GA. J. INT'L & COMP. L. 335, 339-40 (1986).
18. Doriane Lambelet Coleman, Individualizing Justice Through Multiculturalism: The Liberals'Dilemma, 96 COLUM. L. REV. 1093, 1097 (1996).
19. Id.
20. Coleman supports her theory by reasoning that one of the criminal law's functions, long championed by liberals and civil libertarians, is to guarantee the life and liberty interests of members of society, "particularly those, including women, children, and minorities, who have not traditionally had significant access to the political process." Id. at 1127. A balancing test that Coleman constructs yields the conclusion that the interests of immigrant victims should be privileged over the interests of immigrant defendants.
21. This Note will for the most part address Coleman's second claim: that a formalized cultural defense discriminates against members of the dominant culture. A powerful rejoinder to Coleman's victim-centered equal protection argument based on an "intersectionality analysis" has already been provided by Leti Volpp. Volpp observes that the criminal justice system is predicated on patriarchal structures, and [] attempts to strengthen criminal enforcement will not change our culture of violence. To advocate for "victims-rights" by increasing criminal penalties, without simultaneously critiquing a system that "spawns racism, police brutality, corruption, and a value system of property before people," will not be an ultimately liberatory project. Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1588 (1996) (quoting Mari J. Matsuda, Crime and Punishment, Ms., Nov.-Dec. 1994, at 88-89); see also infra note 142.
22. This Note will for the most part address Coleman's second claim: that a formalized cultural defense discriminates against members of the dominant culture. A powerful rejoinder to Coleman's victim-centered equal protection argument based on an "intersectionality analysis" has already been provided by Leti Volpp. Volpp observes that the criminal justice system is predicated on patriarchal structures, and [] attempts to strengthen criminal enforcement will not change our culture of violence. To advocate for "victims-rights" by increasing criminal penalties, without simultaneously critiquing a system that "spawns racism, police brutality, corruption, and a value system of property before people," will not be an ultimately liberatory project. Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1588 (1996) (quoting Mari J. Matsuda, Crime and Punishment, Ms., Nov.-Dec. 1994, at 88-89); see also infra note 142.
23. This Note will for the most part address Coleman's second claim: that a formalized cultural defense discriminates against members of the dominant culture. A powerful rejoinder to Coleman's victim-centered equal protection argument based on an "intersectionality analysis" has already been provided by Leti Volpp. Volpp observes that the criminal justice system is predicated on patriarchal structures, and [] attempts to strengthen criminal enforcement will not change our culture of violence. To advocate for "victims-rights" by increasing criminal penalties, without simultaneously critiquing a system that "spawns racism, police brutality, corruption, and a value system of property before people," will not be an ultimately liberatory project. Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUM. L. REV. 1573, 1588 (1996) (quoting Mari J. Matsuda, Crime and Punishment, Ms., Nov.-Dec. 1994, at 88-89); see also infra note 142.
24. See Rick Bragg, Carolina Jury Rejects Execution for Woman Who Drowned Sons, N.Y. TIMES, July 29, 1995, at Al.
25. Coleman, supra note 11, at 1143 ("Susan Smith was not so fortunate [as Kimura].").
26. See id. at 1144.
27. See Deirdre Evans-Pritchard & Alison Dundes Renteln, The Interpretation and Distortion of Culture: A Hmong "Marriage by Capture" Case in Fresno, California, 4 S. CAL. INTERDISC. L.J. 1 (1994) (discussing People v. Moua, No. 315972-0 (Cal. Super. Ct. Feb. 17, 1985) (unpublished decision)).
28. See Farah Sultana Brelvi, "News of the Weird": Specious Normativity and the Problem of the Cultural Defense, 28 COLUM. HUM. RTS. L. REV. 657, 658 (1997).
29. See Richard Lacayo, Whose Peers?, TIME, Sept. 22, 1993, at 60.
30. See, e.g., People v. Wu, 286 Cal. Rptr. 868 (Ct. App. 1991).
31. See Coleman, supra note 11, at 1337; Valerie L. Sacks, An Indefensible Defense: On the Misuse of Culture in Criminal Law, 13 ARE. J. INT'L & COMP. L. 523, 541-42 (1996). Those who focus on "anti-deterrent" consequences to argue against the cultural defense frequently cite the statement of one battered Chinese woman whose husband reportedly informed her that "if this is the kind of sentence you get for killing your wife, I could do anything to you. I have the money for a good attorney." Coleman, supra note 11, at 1338.
32. See Coleman, supra note 11, at 1337; Valerie L. Sacks, An Indefensible Defense: On the Misuse of Culture in Criminal Law, 13 ARE. J. INT'L & COMP. L. 523, 541-42 (1996). Those who focus on "anti-deterrent" consequences to argue against the cultural defense frequently cite the statement of one battered Chinese woman whose husband reportedly informed her that "if this is the kind of sentence you get for killing your wife, I could do anything to you. I have the money for a good attorney." Coleman, supra note 11, at 1338.
33. See Coleman, supra note 11, at 1337; Valerie L. Sacks, An Indefensible Defense: On the Misuse of Culture in Criminal Law, 13 ARE. J. INT'L & COMP. L. 523, 541-42 (1996). Those who focus on "anti-deterrent" consequences to argue against the cultural defense frequently cite the statement of one battered Chinese woman whose husband reportedly informed her that "if this is the kind of sentence you get for killing your wife, I could do anything to you. I have the money for a good attorney." Coleman, supra note 11, at 1338.
34. See Chiu, supra note 6, at 1116-18. Michael Fischer adds that "the cultural defense would draw attention to the cultural aspects of a particular immigrant group which are at odds with the laws of the United States. As a result, the word would spread throughout the immigrant community that such conduct is not acceptable." Fischer, supra note 9, at 682.
35. Here I mean "mental state" in its broader sense. For the purposes of this analysis, a defendant's mental state encompasses intent and purpose requirements associated with a defendant's mens rea, as well as questions addressing whether and to what degree the criminal behavior was a voluntary act - considerations that generally fall under the rubric of "actus reus." See, e.g., JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 121-23 (3d ed. 1996).
36. See, e.g., Coleman, supra note 11, at 1093; Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multicultural Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995); Volpp, supra note 14, at 1573.
37. See, e.g., Coleman, supra note 11, at 1093; Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multicultural Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995); Volpp, supra note 14, at 1573.
38. See, e.g., Coleman, supra note 11, at 1093; Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multicultural Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995); Volpp, supra note 14, at 1573.
39. See, e.g., Susan N. Herman, Should Culture Be a Defense, NEWSDAY, Apr. 20, 1989, at 80; sources cited supra note 6; sources cited infra note 118.
40. See, e.g., Susan N. Herman, Should Culture Be a Defense, NEWSDAY, Apr. 20, 1989, at 80; sources cited supra note 6; sources cited infra note 118.
41. See, e.g., Susan N. Herman, Should Culture Be a Defense, NEWSDAY, Apr. 20, 1989, at 80; sources cited supra note 6; sources cited infra note 118.
42. See Brelvi, supra note 19, at 658.
43. See Chiu, supra note 6, at 1117-18.
44. See Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101, 119, 121 (1997); Alison Dundes Renteln, A Justification of the Cultural Defense as Partial Excuse, 2 S. CAL. REV. L. & WOMEN'S STUD. 437, 463 (1993).
45. See Nancy S. Kim, The Cultural Defense and the Problem of Cultural Preemption: A Framework for Analysis, 27 N.M. L. REV. 101, 119, 121 (1997); Alison Dundes Renteln, A Justification of the Cultural Defense as Partial Excuse, 2 S. CAL. REV. L. & WOMEN'S STUD. 437, 463 (1993).
46. Pound, supra note 6.
47. Chiu, supra note 6, at 1117.
48. Id.
49. Stewart, supra note 6, at 1.
50. See, e.g., Andrew M. Kanter, The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense, 4 S. CAL. INTERDISC. L.J. 411, 439 (1995); Leti Volpp, (Mis)Identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S L.J. 57, 95 (1994); Sharon M. Tomao, Note, The Cultural Defense: Traditional or Formal?, 10 GEO. IMMIGR. L.J. 241, 253 (1996); Note, supra note 9, at 1296.
51. See, e.g., Andrew M. Kanter, The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense, 4 S. CAL. INTERDISC. L.J. 411, 439 (1995); Leti Volpp, (Mis)Identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S L.J. 57, 95 (1994); Sharon M. Tomao, Note, The Cultural Defense: Traditional or Formal?, 10 GEO. IMMIGR. L.J. 241, 253 (1996); Note, supra note 9, at 1296.
52. See, e.g., Andrew M. Kanter, The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense, 4 S. CAL. INTERDISC. L.J. 411, 439 (1995); Leti Volpp, (Mis)Identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S L.J. 57, 95 (1994); Sharon M. Tomao, Note, The Cultural Defense: Traditional or Formal?, 10 GEO. IMMIGR. L.J. 241, 253 (1996); Note, supra note 9, at 1296.
53. See, e.g., Andrew M. Kanter, The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense, 4 S. CAL. INTERDISC. L.J. 411, 439 (1995); Leti Volpp, (Mis)Identifying Culture: Asian Women and the "Cultural Defense," 17 HARV. WOMEN'S L.J. 57, 95 (1994); Sharon M. Tomao, Note, The Cultural Defense: Traditional or Formal?, 10 GEO. IMMIGR. L.J. 241, 253 (1996); Note, supra note 9, at 1296.
54. Note, supra note 9, at 1296.
55. See Jones, supra note 6, at 19.
56. Victoria Nourse discusses the way in which a court's ability to see itself in the defendant's position is instrumental in a sympathetic judgment: It helps... to see why we might distinguish intuitively the rapist killer from the [man who kills his departing spouse]. In the first case, we feel "with" the killer because she is expressing outrage in ways that communicate an emotional judgment (about the wrongfulness of rape) that is uncontroversially shared, indeed, that the law itself recognizes. Such claims resonate because we cannot distinguish the defendant's sense of emotional wrongfulness from the law's own sense of appropriate retribution. The defendant's emotional judgments are the law's own. In this sense, the defendant is us. Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 YALE L.J. 1331, 1392 (1997).
57. Daina Chiu advances a powerful theory of "difference-as-sameness" to describe the court's approach to the Kimura case. According to Chiu, "recognition of the defendant's culture [occurs] only when there is explicit or implicit congruence between her cultural values and the mainstream's cultural values." Chiu, supra note 6, at 1116. Under this conception, judicial sympathy for Kimura stemmed from "identification with the parental anguish of surviving the death of one's child." Id. The court recognized - and took pity on - the defendant as bereft mother - a figure that was culturally familiar. This Note takes Chiu's "difference-as-sameness" model as a point of departure, arguing that that it is the court's reliance on temporary-insanity doctrine that results in the elision of culture from its analysis. For an important perspective on the paradoxical intersection between the concepts of difference and sameness in the law's treatment of homosexuals, see EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 19-20 (1990), which analyzes the "homosexual panic" defense used by gay-bashers through the lens of simultaneously operative "minoritizing" and "universalizing" discourses.
58. Chiu, supra note 6, at 1117.
59. See Anh T. Lam, Culture as a Defense: Preventing Judicial Bias Against Asians and Pacific Islanders, 1 ASIAN AM. PAC. ISLANDS L.J. 49, 61 (1993).
60. One could argue that members of the dominant culture might still believe that all members of a minority group are indeed aberrant, but underscoring the illogic of such a move is in many respects precisely my point. The reasoning through which courts associate the cultural and the defective is at odds with the presumed goal of admitting cultural evidence at trial - to allow the accused to demonstrate that her behavior was understandable given her cultural background. For a court to regard the commission of oyako-shinjū as at once an insane act and a culturally influenced reaction is untenable since the former determination presumably makes the latter irrelevant at a criminal trial. After all, the court could apply the dominant cultural and legal standards of insanity and achieve the same result. A cultural explanation for behavior is intelligible only if the court is willing to consider that the defendant was not insane.
61. This is not to say that individual members of a minority culture may exhibit aberrant behavior and become temporarily insane. However, if they become "insane" and act in a way that others from the same cultural background would not act when similarly situated, then under the theory set forth here, they would be ineligible to raise the cultural defense. The introduction of cultural evidence relies on the notion of intracultural sameness; when this principle is violated, the defense should fail.
62. See Chiu, supra note 6, at 1117.
63. See supra notes 37-38 and accompanying text.
64. Daina Chiu argues in the same vein that many applications of the cultural defense depend on the extent to which the culturally influenced behavior resonates with mainstream or dominant cultural values. Chiu believes, however, that such covert fixation on cultural symmetry is not necessarily a byproduct of the imposition of the temporary-insanity doctrine on cultural evidence per se. Instead, "difference-as-sameness" reasoning arises from any hybrid approach courts take that compromises between adopting a new, formalized cultural defense and treating "cultural" defendants no differently from other criminal defendants. See Chiu, supra note 6, at 1112-20.
65. See supra note 41.
66. See M'Naghten's Case, 8 Eng. Rep. 718 (1843). Although subsequent insanity tests incorporated an "impulse control" component, see, e.g., MODEL PENAL CODE AND COMMENTARIES § 4.01 (1980), Congress amended the federal insanity statute to retain only the cognition element after a jury relied on the insanity defense to acquit John Hinckley of attempting to murder President Reagan. See Insanity Defense Act of 1984, Pub. L. No. 98-473, § 402(a), 98 Stat. 1838, 2057 (codified at 18 U.S.C. §17(a) (1994)); Sherry F. Colb, The Three Faces of Evil, 86 GEO. L.J. 677, 696 (1998) (reviewing ELYN R. SAKS WITH STEPHEN H. BEHNKE, JEKYLL ON TRIAL (1997)) (discussing the Hinckley-impulse control connection). Indeed, commentators have observed that adding an impulse-control component would betray moral desert principles of culpability, thereby robbing the insanity defense of any philosophical coherence. Sherry F. Colb, for instance, argues that a large proportion of the public is skeptical when learning of defendants acquitted on an impulse-control theory of insanity. "Such defendants," writes Colb, "by the lights of many, may be as guilty as (or more guilty than) the garden-variety defendants convicted of a crime." Id. at 697. According to Colb, "the psychopath who injures others without compunction strikes many as the embodiment of evil." Id. In response to opposition to impulse control acquittals, many states have developed a "guilty and mentally ill" verdict category. See id. at 696. For a helpful overview of the various insanity rules, see Abraham S. Goldstein, Excuse: Insanity, in ENCYCLOPEDIA OF CRIME AND JUSTICE 735, 736-40 (Sanford H.Kadish ed., 1983).
67. See M'Naghten's Case, 8 Eng. Rep. 718 (1843). Although subsequent insanity tests incorporated an "impulse control" component, see, e.g., MODEL PENAL CODE AND COMMENTARIES § 4.01 (1980), Congress amended the federal insanity statute to retain only the cognition element after a jury relied on the insanity defense to acquit John Hinckley of attempting to murder President Reagan. See Insanity Defense Act of 1984, Pub. L. No. 98-473, § 402(a), 98 Stat. 1838, 2057 (codified at 18 U.S.C. §17(a) (1994)); Sherry F. Colb, The Three Faces of Evil, 86 GEO. L.J. 677, 696 (1998) (reviewing ELYN R. SAKS WITH STEPHEN H. BEHNKE, JEKYLL ON TRIAL (1997)) (discussing the Hinckley-impulse control connection). Indeed, commentators have observed that adding an impulse-control component would betray moral desert principles of culpability, thereby robbing the insanity defense of any philosophical coherence. Sherry F. Colb, for instance, argues that a large proportion of the public is skeptical when learning of defendants acquitted on an impulse-control theory of insanity. "Such defendants," writes Colb, "by the lights of many, may be as guilty as (or more guilty than) the garden-variety defendants convicted of a crime." Id. at 697. According to Colb, "the psychopath who injures others without compunction strikes many as the embodiment of evil." Id. In response to opposition to impulse control acquittals, many states have developed a "guilty and mentally ill" verdict category. See id. at 696. For a helpful overview of the various insanity rules, see Abraham S. Goldstein, Excuse: Insanity, in ENCYCLOPEDIA OF CRIME AND JUSTICE 735, 736-40 (Sanford H.Kadish ed., 1983).
68. See M'Naghten's Case, 8 Eng. Rep. 718 (1843). Although subsequent insanity tests incorporated an "impulse control" component, see, e.g., MODEL PENAL CODE AND COMMENTARIES § 4.01 (1980), Congress amended the federal insanity statute to retain only the cognition element after a jury relied on the insanity defense to acquit John Hinckley of attempting to murder President Reagan. See Insanity Defense Act of 1984, Pub. L. No. 98-473, § 402(a), 98 Stat. 1838, 2057 (codified at 18 U.S.C. §17(a) (1994)); Sherry F. Colb, The Three Faces of Evil, 86 GEO. L.J. 677, 696 (1998) (reviewing ELYN R. SAKS WITH STEPHEN H. BEHNKE, JEKYLL ON TRIAL (1997)) (discussing the Hinckley-impulse control connection). Indeed, commentators have observed that adding an impulse-control component would betray moral desert principles of culpability, thereby robbing the insanity defense of any philosophical coherence. Sherry F. Colb, for instance, argues that a large proportion of the public is skeptical when learning of defendants acquitted on an impulse-control theory of insanity. "Such defendants," writes Colb, "by the lights of many, may be as guilty as (or more guilty than) the garden-variety defendants convicted of a crime." Id. at 697. According to Colb, "the psychopath who injures others without compunction strikes many as the embodiment of evil." Id. In response to opposition to impulse control acquittals, many states have developed a "guilty and mentally ill" verdict category. See id. at 696. For a helpful overview of the various insanity rules, see Abraham S. Goldstein, Excuse: Insanity, in ENCYCLOPEDIA OF CRIME AND JUSTICE 735, 736-40 (Sanford H.Kadish ed., 1983).
69. See M'Naghten's Case, 8 Eng. Rep. 718 (1843). Although subsequent insanity tests incorporated an "impulse control" component, see, e.g., MODEL PENAL CODE AND COMMENTARIES § 4.01 (1980), Congress amended the federal insanity statute to retain only the cognition element after a jury relied on the insanity defense to acquit John Hinckley of attempting to murder President Reagan. See Insanity Defense Act of 1984, Pub. L. No. 98-473, § 402(a), 98 Stat. 1838, 2057 (codified at 18 U.S.C. §17(a) (1994)); Sherry F. Colb, The Three Faces of Evil, 86 GEO. L.J. 677, 696 (1998) (reviewing ELYN R. SAKS WITH STEPHEN H. BEHNKE, JEKYLL ON TRIAL (1997)) (discussing the Hinckley-impulse control connection). Indeed, commentators have observed that adding an impulse-control component would betray moral desert principles of culpability, thereby robbing the insanity defense of any philosophical coherence. Sherry F. Colb, for instance, argues that a large proportion of the public is skeptical when learning of defendants acquitted on an impulse-control theory of insanity. "Such defendants," writes Colb, "by the lights of many, may be as guilty as (or more guilty than) the garden-variety defendants convicted of a crime." Id. at 697. According to Colb, "the psychopath who injures others without compunction strikes many as the embodiment of evil." Id. In response to opposition to impulse control acquittals, many states have developed a "guilty and mentally ill" verdict category. See id. at 696. For a helpful overview of the various insanity rules, see Abraham S. Goldstein, Excuse: Insanity, in ENCYCLOPEDIA OF CRIME AND JUSTICE 735, 736-40 (Sanford H.Kadish ed., 1983).
70. See M'Naghten's Case, 8 Eng. Rep. 718 (1843). Although subsequent insanity tests incorporated an "impulse control" component, see, e.g., MODEL PENAL CODE AND COMMENTARIES § 4.01 (1980), Congress amended the federal insanity statute to retain only the cognition element after a jury relied on the insanity defense to acquit John Hinckley of attempting to murder President Reagan. See Insanity Defense Act of 1984, Pub. L. No. 98-473, § 402(a), 98 Stat. 1838, 2057 (codified at 18 U.S.C. §17(a) (1994)); Sherry F. Colb, The Three Faces of Evil, 86 GEO. L.J. 677, 696 (1998) (reviewing ELYN R. SAKS WITH STEPHEN H. BEHNKE, JEKYLL ON TRIAL (1997)) (discussing the Hinckley-impulse control connection). Indeed, commentators have observed that adding an impulse-control component would betray moral desert principles of culpability, thereby robbing the insanity defense of any philosophical coherence. Sherry F. Colb, for instance, argues that a large proportion of the public is skeptical when learning of defendants acquitted on an impulse-control theory of insanity. "Such defendants," writes Colb, "by the lights of many, may be as guilty as (or more guilty than) the garden-variety defendants convicted of a crime." Id. at 697. According to Colb, "the psychopath who injures others without compunction strikes many as the embodiment of evil." Id. In response to opposition to impulse control acquittals, many states have developed a "guilty and mentally ill" verdict category. See id. at 696. For a helpful overview of the various insanity rules, see Abraham S. Goldstein, Excuse: Insanity, in ENCYCLOPEDIA OF CRIME AND JUSTICE 735, 736-40 (Sanford H.Kadish ed., 1983).
71. See infra notes 29-53, 56-59 and accompanying text.
72. Abraham Goldstein adopts this insanity-as-parasite metaphor, observing that the defendant who raises the insanity defense "tries to shift the responsibility from himself to something called mental disease, which kept him from being what he appeared to be, a man committing crime with a full measure of culpability." ABRAHAM S GOLDSTEIN, THE INSANITY DEFENSE 18-19 (1967).
73. Other commentators have observed the nexus between personal identity theory and criminal insanity doctrine. Raymond Duff, for instance, observes that insufficient continuity of identity exists when a sane offender later becomes insane, and argues that this offender therefore should not be punished for the crime. RAYMOND DUFF, TRIALS AND PUNISHMENT 15-22 (1986). There is no reason to believe that the defendant manifests a continuity of identity in the inverse scenario: if he is insane when he commits the offense but later becomes sane. Moreover, the "disassociative" model of mental defect finds resonance in Michael Bayles's Humean, characterbased model of insanity and culpability. Bayles explains that the impulse control component of insanity doctrine is in fact irrelevant to the question of moral blameworthiness: " [W]hether the accused could have helped doing what he did, whether he had the capacity to conform to the law, is itself irrelevant to an excuse ... because the conduct... may be good evidence of an undesirable character trait...." Conversely, according to Bayles, temporary insanity allows the accused to escape moral blame because it prevents the conduct from " indicating an undesirable disposition the actor still has." Michael D. Bayles, Character, Purpose, and Criminal Responsibility, 1 LAW & PHIL. 5, 17 (1982).
74. Other commentators have observed the nexus between personal identity theory and criminal insanity doctrine. Raymond Duff, for instance, observes that insufficient continuity of identity exists when a sane offender later becomes insane, and argues that this offender therefore should not be punished for the crime. RAYMOND DUFF, TRIALS AND PUNISHMENT 15-22 (1986). There is no reason to believe that the defendant manifests a continuity of identity in the inverse scenario: if he is insane when he commits the offense but later becomes sane. Moreover, the "disassociative" model of mental defect finds resonance in Michael Bayles's Humean, characterbased model of insanity and culpability. Bayles explains that the impulse control component of insanity doctrine is in fact irrelevant to the question of moral blameworthiness: " [W]hether the accused could have helped doing what he did, whether he had the capacity to conform to the law, is itself irrelevant to an excuse ... because the conduct... may be good evidence of an undesirable character trait...." Conversely, according to Bayles, temporary insanity allows the accused to escape moral blame because it prevents the conduct from " indicating an undesirable disposition the actor still has." Michael D. Bayles, Character, Purpose, and Criminal Responsibility, 1 LAW & PHIL. 5, 17 (1982).
75. KAPLAN ET AL., supra note 24, at 714.
76. In other words, courts would be able to question whether a reasonable person subjected to similar external stimuli would have behaved as the defendant behaved. Such a line of inquiry is integral to application of the duress, provocation, and self-defense doctrines (all of which are raised in cases involving "external" causes of behavior), see WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW (2d ed. 1986) § 5.3, at 432-34, § 5.7, at 454-55, § 7.19(b), at 654-61, but foreign to temporary-insanity claims.
77. In other words, courts would be able to question whether a reasonable person subjected to similar external stimuli would have behaved as the defendant behaved. Such a line of inquiry is integral to application of the duress, provocation, and self-defense doctrines (all of which are raised in cases involving "external" causes of behavior), see WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW (2d ed. 1986) § 5.3, at 432-34, § 5.7, at 454-55, § 7.19(b), at 654-61, but foreign to temporary-insanity claims.
78. In other words, courts would be able to question whether a reasonable person subjected to similar external stimuli would have behaved as the defendant behaved. Such a line of inquiry is integral to application of the duress, provocation, and self-defense doctrines (all of which are raised in cases involving "external" causes of behavior), see WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW (2d ed. 1986) § 5.3, at 432-34, § 5.7, at 454-55, § 7.19(b), at 654-61, but foreign to temporary-insanity claims.
79. Kaplan and his coauthors also recognize this paradoxical dialectic when they employ the Cartesian concept of a mind-body split to explain the insanity defense. According to the authors, many of the problems of insanity doctrine would be solved if scientific theory established insanity as a "source of behavior that is physically internal but morally external, in other words, part of the body but not part of the moral phenomenon called character or the self." KAPLAN ET AL., supra note 24, at 715.
80. See discussion infra Section III.B.
81. See KAPLAN ET AL., supra note 24, at 714-15. Note that the temporarily insane defendant's insanity is " internal" only to his irrational state of mind. When he passes into his rational consciousness, the defendant's insanity becomes "external" because it disappears. See supra note 53 and accompanying text.
82. Stuyvesant Assocs. v. Doe, 534 A.2d 448, 450 (N.J. Super. 1998) (emphasis added).
83. Id.
84. See, e.g., DEREK PARHT, REASONS AND PERSONS 205-06 (1984); Rebecca Dresser, Personal Identity and Punishment, 70 B.U. L. REV. 395, 399 (1990).
85. See, e.g., DEREK PARHT, REASONS AND PERSONS 205-06 (1984); Rebecca Dresser, Personal Identity and Punishment, 70 B.U. L. REV. 395, 399 (1990).
86. Even in cases of Multiple Personality Disorder - a defense that is explicitly grounded in the notion of psychological disassociation, see SAKS WITH BEHNKE, supra note 47, at 9 (noting that the American Psychological Asssociation classifies MPD as a disassociative disorder), it is by no means clear that no psychological continuity exists among the different personalities an MPD defendant manifests. See id. at 21-32. Indeed, in cases involving the MPD defense, the notion of disassociative identity is more a legal construction than a psychological truth.
87. Hence, even as a threshold matter, the fact that nonvolitional cultural defenses assert that external factors played a role in the defendant's behavior implicates some form of the reasonable person standard, thereby precluding application of the mental defect paradigm. See supra notes 51-52 and accompanying text.
88. One might object that the mere capacity for detached consciousness and the actual manifestation of this consciousness in fact represent two distinct mental states in the cultural defendant. While the two mental states indeed may be analytically distinct, the cultural defendant's "irrational" consciousness does not, strictly speaking, manifest a complete break with the defendant's rational state - at least not in the same way that a temporarily insane defendant claims that he breaks with his rational consciousness. Only in the former scenario does an aspect of the defendant's normal functioning - his culture - provide an inroad to the defendant's "irrational" behavior.
89. Thus, a defendant who is prone to temporary insanity may react differently to the same stimuli depending on his state of mind. While he is in his "psychotic" mental state, a hypothetical defendant might believe that a man who attempts to shake his hand is attacking him and in turn strike the man in "self-defense." While in his rational mode, however, the same defendant may not exhibit such an adverse reaction.
90. KAPLAN ET AL., supra note 24, at 715.
91. Several critics have advanced arguments concerning culture's pervasive influence on individuals. Ralph Linton, for example, writes that " [n]o matter what the method by which the individual receives the elements of culture characteristic of his society, he is sure to internalize most of them. This process is called enculturation. Even the most deliberately unconventional person is unable to escape his culture to any significant degree...." RALPH LINTON, THE TREE OF CULTURE 39 (1955).
92. See supra notes 30-33, 36 and accompanying text.
93. By this I mean that her actions are attributable to her rational agency, not that she is morally culpable for behavior that is not proscribed by the cultural norms of her motherland.
94. For a summary of the debate over substantive incorporation, see Chiu, supra note 6, at 1097-1111; and Taryn F. Goldstein, Comment, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141, 143-44 (1994).
95. For a summary of the debate over substantive incorporation, see Chiu, supra note 6, at 1097-1111; and Taryn F. Goldstein, Comment, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense"?, 99 DICK. L. REV. 141, 143-44 (1994).
96. I will use the term "incorporation" to refer to the recognition of a formalized cultural defense in the criminal law.
97. See, e.g., Renteln, supra note 29, at 496; Note, supra note 9, at 1306-07; Lyman, supra note 10, at 98-105.
98. See, e.g., Renteln, supra note 29, at 496; Note, supra note 9, at 1306-07; Lyman, supra note 10, at 98-105.
99. See supra notes 14-17 and accompanying text.
100. See, e.g., Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN'S STUD. 71, 94, 101 (1992); Nourse, supra note 37, at 1364-65; Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679, 1689-92 (1986).
101. See, e.g., Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN'S STUD. 71, 94, 101 (1992); Nourse, supra note 37, at 1364-65; Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679, 1689-92 (1986).
102. See, e.g., Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN'S STUD. 71, 94, 101 (1992); Nourse, supra note 37, at 1364-65; Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679, 1689-92 (1986).
103. Coker, supra note 71, at 94.
104. Nourse, supra note 37, at 1364. For analogous arguments that recognition of a cultural defense will undermine progress women have made in this country, see, Coleman, supra note 11, at 1097; and Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B.C. THIRD WORLD L.J. 231, 251 (1994).
105. Nourse, supra note 37, at 1364. For analogous arguments that recognition of a cultural defense will undermine progress women have made in this country, see, Coleman, supra note 11, at 1097; and Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B.C. THIRD WORLD L.J. 231, 251 (1994).
106. Nourse, supra note 37, at 1390.
107. See infra notes 92-94 and accompanying text.
108. See Nourse, supra note 37, at 1364.
109. Although a vigorous critic of the gender bias historically manifest in provocation doctrine, Nourse concedes that there is a need for the law to excuse defendants whose emotion "reflects the outrage of one responding to a grave wrong," id. at 1390; she thus seeks to "reconstruct, rather than abolish, the [provocation] defense," id. at 1389. In her proposal for a more gender-equitable model of provocation, Nourse contends that the heat of passion defense "should be retained as a partial excuse but only in the limited set of cases in which the defendant and the victim stand on an equal emotional and normative plane." Id. at 1337.
110. See David Margolick, Lorena Bobbitt Acquitted in Mutilation of Husband, N.Y. TIMES, Jan. 22, 1994, at Al.
111. See, e.g., Richard J. Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 CORNELL J. L & PUB. POL'Y 1, 11-12 (1995) ("The case was packaged as an insanity case. Yet, beneath the dispute about Lorena Bobbitt's mental condition was a story about John Bobbitt's provocation and about Lorena Bobbitt's rage. In the final analysis, the case was about whether she can fairly be blamed for retaliating against him."); Naomi Mezey, Book Note, Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and a New Generation on Critical Legal Studies, 46 STAN. L. REV. 1835, 1861 n.128 (1994) (reviewing DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF CULTURAL IDENTITY (1993)) ("Lorena Bobbitt... demonstrates how changing narratives of gender and abuse can change the law. Where the law previously excused men for sexual abuse on the grounds of provocation, women may now be able to invoke the same theory, arguing that men provoke sexual violence (even castration), if they repeatedly abuse women.").
112. See, e.g., Richard J. Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 CORNELL J. L & PUB. POL'Y 1, 11-12 (1995) ("The case was packaged as an insanity case. Yet, beneath the dispute about Lorena Bobbitt's mental condition was a story about John Bobbitt's provocation and about Lorena Bobbitt's rage. In the final analysis, the case was about whether she can fairly be blamed for retaliating against him."); Naomi Mezey, Book Note, Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and a New Generation on Critical Legal Studies, 46 STAN. L. REV. 1835, 1861 n.128 (1994) (reviewing DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF CULTURAL IDENTITY (1993)) ("Lorena Bobbitt... demonstrates how changing narratives of gender and abuse can change the law. Where the law previously excused men for sexual abuse on the grounds of provocation, women may now be able to invoke the same theory, arguing that men provoke sexual violence (even castration), if they repeatedly abuse women.").
113. See, e.g., Richard J. Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 CORNELL J. L & PUB. POL'Y 1, 11-12 (1995) ("The case was packaged as an insanity case. Yet, beneath the dispute about Lorena Bobbitt's mental condition was a story about John Bobbitt's provocation and about Lorena Bobbitt's rage. In the final analysis, the case was about whether she can fairly be blamed for retaliating against him."); Naomi Mezey, Book Note, Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and a New Generation on Critical Legal Studies, 46 STAN. L. REV. 1835, 1861 n.128 (1994) (reviewing DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF CULTURAL IDENTITY (1993)) ("Lorena Bobbitt... demonstrates how changing narratives of gender and abuse can change the law. Where the law previously excused men for sexual abuse on the grounds of provocation, women may now be able to invoke the same theory, arguing that men provoke sexual violence (even castration), if they repeatedly abuse women.").
114. See, e.g., Commonwealth v. Stonehouse, 555 A.2d 772, 782 (Pa. 1989) (ruling that defense counsel was ineffective for failing to seek instruction on "cumulative provocation" in a case where a woman was harassed and stalked over a period of time and then killed her ex-boyfriend). Pennsylvania has adopted a cumulative provocation rule similar to the one in the MPC. But note that judicial receptiveness to cumulative provocation may not always benefit women. See People v. Berry, 556 P.2d 777, 780 (Cal. 1976) (reversing the murder conviction of a man who had killed his wife after a "cumulative series of provocations"). For a discussion of how the MPC formulation of provocation permits claims based on emotional grievances that grow over time, see Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 601 (1981).
115. See LAFAVE & SCOTT, supra note 52, § 5.1(d), at 412-14.
116. See generally Evans-Pritchard & Renteln, supra note 18.
117. See Federal Prohibition of Female Genital Mutilation Act, 8 U.S.C.A § 1374(c) (West Supp. 1997) (defining female genital mutiliation (FGM)); 18 U.S.C.A § 116(a) (West Supp. 1997) (prohibiting FGM and providing for the punishment of anyone who engages in its practice); Karen Hughes, The Criminalization of Female Genital Mutilation in the United States, 4 J.L. & POL'Y 321, 326-27 (1995) (arguing against a cultural defense to FGM). For a discussion of the debate surrounding symbolic female genital cutting, see Dorianne Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998).
118. See Federal Prohibition of Female Genital Mutilation Act, 8 U.S.C.A § 1374(c) (West Supp. 1997) (defining female genital mutiliation (FGM)); 18 U.S.C.A § 116(a) (West Supp. 1997) (prohibiting FGM and providing for the punishment of anyone who engages in its practice); Karen Hughes, The Criminalization of Female Genital Mutilation in the United States, 4 J.L. & POL'Y 321, 326-27 (1995) (arguing against a cultural defense to FGM). For a discussion of the debate surrounding symbolic female genital cutting, see Dorianne Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998).
119. See Federal Prohibition of Female Genital Mutilation Act, 8 U.S.C.A § 1374(c) (West Supp. 1997) (defining female genital mutiliation (FGM)); 18 U.S.C.A § 116(a) (West Supp. 1997) (prohibiting FGM and providing for the punishment of anyone who engages in its practice); Karen Hughes, The Criminalization of Female Genital Mutilation in the United States, 4 J.L. & POL'Y 321, 326-27 (1995) (arguing against a cultural defense to FGM). For a discussion of the debate surrounding symbolic female genital cutting, see Dorianne Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L.J. 717 (1998).
120. JEREMY HORDER, PROVOCATION AND RESPONSIBILITY 25-30 (1992).
121. Id. at 26.
122. Id.
123. Id. at 27.
124. See id.
125. See id. at 24, 30-40.
126. Id. at 24.
127. 84 Eng. Rep. 1107 (K.B. 1707).
128. See id. at 1115 (" A man cannot receive a higher provocation.").
129. Id.
130. See, e.g., Chiu, supra note 6, at 1114 ("The classic Anglo-American manslaughter paradigm is that of the husband catching his wife in flagrante delicto and killing her, or her lover, or both.").
131. See Nourse, supra note 37, at 1391. Nourse observes that the conception of emotion and reason as perfectly compatible is more consistent with the courts' practice of reading a reasonable person standard into heat-of-passion claims. See id. at 1339.
132. Id. at 1390. For a parallel observation that the Aristotelian ideal of emotion was bound up with reasonable judgment, see Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 290-91 (1996). See also RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987) (arguing that reason and emotion are not distinct).
133. Id. at 1390. For a parallel observation that the Aristotelian ideal of emotion was bound up with reasonable judgment, see Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 290-91 (1996). See also RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987) (arguing that reason and emotion are not distinct).
134. Nourse, supra note 37, at 1391.
135. HORDER, supra note 84, at 42.
136. Id.
137. See Nourse, supra note 37, at 1390.
138. See supra notes 51 -54 and accompanying text.
139. MODEL PENAL CODE AND COMMENTARIES § 210.3(1)(b) (1980).
140. Id.
141. Id.
142. For a theory of how the EED approach incorporates a "partial insanity" test, see Judd F. Sneirson, Black Rage and the Criminal Law: A Principled Approach to a Polarized Debate, 143 U. PA. L. REV. 2251, 2284-85 (1995). But see Paul H. Robinson, Hybrid Principals for the Distribution of Criminal Sanctions, 82 NW. U. L. REV. 19, 28 n.31 (1987) (citing State v. Ott, 686 P.2d 1001 (Or. 1984), for the proposition that EED is merely a "broader modern version of heat of passion and provocation").
143. For a theory of how the EED approach incorporates a "partial insanity" test, see Judd F. Sneirson, Black Rage and the Criminal Law: A Principled Approach to a Polarized Debate, 143 U. PA. L. REV. 2251, 2284-85 (1995). But see Paul H. Robinson, Hybrid Principals for the Distribution of Criminal Sanctions, 82 NW. U. L. REV. 19, 28 n.31 (1987) (citing State v. Ott, 686 P.2d 1001 (Or. 1984), for the proposition that EED is merely a "broader modern version of heat of passion and provocation").
144. See MODEL PENAL CODE AND COMMENTARIES § 210.3.
145. Id.
146. See Rebecca Dresser, Culpability and Other Minds, 2 S. CAL. INTERDISC. L.J. 41, 55 (1993). While commenting that the MPC standard evidences a subjectivization of the reasonable person standard, Professor Dresser indicates that ascertaining how the individual defendant experienced her situation nevertheless retains an objective component. See id.
147. For an explanation of this principle, see supra notes 42-43 and accompanying text.
148. See supra notes 51-54 and accompanying text.
149. See supra note 96 and accompanying text.
150. See HORDER, supra note 84, at 40-42.
151. See supra notes 95-100 and accompanying text.
152. One might argue that defenses such as necessity and self-defense also involve external factors that implicate the reasonable person standard, and that the provocation and cultural defenses are therefore not as uniquely well-matched as I claim. However, because necessity and self-defense do not focus on the actus reus (voluntary act) element of the crime, they do not implicate the same nonvolitional component that lies at the heart of adequate provocation. See LAFAVE & SCOTT, supra note 52, § 5.4, at 441-43; § 5.7, at 454-55. Defendants who raise other "reasonable person"-based defenses do not claim that they were overtaken by emotion or acted in a heat of passion. Thus, only provocation doctrine accommodates the nonvolitional cultural defendant's argument that his behavior was at once emotionally-charged and rational.
153. See Alon Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, 82 CAL. L. REV. 1181, 1216 (1994); R.S. O'Regan, Indirect Provocation and Misdirected Retaliation, 1968 CRIM. L. REV. 319; see also State v. Tilson, 503 S.W.2d 921 (Tenn. 1974) (refusing to allow manslaughter where the defendant killed a bystander).
154. See Alon Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, 82 CAL. L. REV. 1181, 1216 (1994); R.S. O'Regan, Indirect Provocation and Misdirected Retaliation, 1968 CRIM. L. REV. 319; see also State v. Tilson, 503 S.W.2d 921 (Tenn. 1974) (refusing to allow manslaughter where the defendant killed a bystander).
155. See Alon Harel, Efficiency and Fairness in Criminal Law: The Case for a Criminal Law Principle of Comparative Fault, 82 CAL. L. REV. 1181, 1216 (1994); R.S. O'Regan, Indirect Provocation and Misdirected Retaliation, 1968 CRIM. L. REV. 319; see also State v. Tilson, 503 S.W.2d 921 (Tenn. 1974) (refusing to allow manslaughter where the defendant killed a bystander).
156. See LAFAVE & SCOTT, supra note 52, at § 7.10(g), at 664.
157. MODEL PENAL CODE AND COMMENTARIES § 210.3, at 61.
158. No. 87-7774 (N.Y. Super. Ct. Mar. 21, 1989) (unpublished decision). For descriptions of the Chen case, see Kirn, supra note 29, at 119-21; Leslie Gevirtz, Immigrant Gets Probation for Killing Wife, UPI, Mar. 31, 1989, available in LEXIS, News Library, UPI File; Alexis Jetter, Fear Is Legacy of Wife Killing in Chinatown, NEWSDAY, Nov. 27, 1989, at 4; Nina Schuyler, Cultural Defense: Equality or Anarchy?, S.F. WKLY., Sept. 25, 1991, at 12; and Marianne Yen, Refusal To Jail Immigrant Who Killed Wife Stirs Outrage; Judge Ordered Probation for Chinese Man, Citing His 'Cultural Background,' WASH. POST, Apr. 10, 1989, at A3.
159. No. 87-7774 (N.Y. Super. Ct. Mar. 21, 1989) (unpublished decision). For descriptions of the Chen case, see Kirn, supra note 29, at 119-21; Leslie Gevirtz, Immigrant Gets Probation for Killing Wife, UPI, Mar. 31, 1989, available in LEXIS, News Library, UPI File; Alexis Jetter, Fear Is Legacy of Wife Killing in Chinatown, NEWSDAY, Nov. 27, 1989, at 4; Nina Schuyler, Cultural Defense: Equality or Anarchy?, S.F. WKLY., Sept. 25, 1991, at 12; and Marianne Yen, Refusal To Jail Immigrant Who Killed Wife Stirs Outrage; Judge Ordered Probation for Chinese Man, Citing His 'Cultural Background,' WASH. POST, Apr. 10, 1989, at A3.
160. No. 87-7774 (N.Y. Super. Ct. Mar. 21, 1989) (unpublished decision). For descriptions of the Chen case, see Kirn, supra note 29, at 119-21; Leslie Gevirtz, Immigrant Gets Probation for Killing Wife, UPI, Mar. 31, 1989, available in LEXIS, News Library, UPI File; Alexis Jetter, Fear Is Legacy of Wife Killing in Chinatown, NEWSDAY, Nov. 27, 1989, at 4; Nina Schuyler, Cultural Defense: Equality or Anarchy?, S.F. WKLY., Sept. 25, 1991, at 12; and Marianne Yen, Refusal To Jail Immigrant Who Killed Wife Stirs Outrage; Judge Ordered Probation for Chinese Man, Citing His 'Cultural Background,' WASH. POST, Apr. 10, 1989, at A3.
161. No. 87-7774 (N.Y. Super. Ct. Mar. 21, 1989) (unpublished decision). For descriptions of the Chen case, see Kirn, supra note 29, at 119-21; Leslie Gevirtz, Immigrant Gets Probation for Killing Wife, UPI, Mar. 31, 1989, available in LEXIS, News Library, UPI File; Alexis Jetter, Fear Is Legacy of Wife Killing in Chinatown, NEWSDAY, Nov. 27, 1989, at 4; Nina Schuyler, Cultural Defense: Equality or Anarchy?, S.F. WKLY., Sept. 25, 1991, at 12; and Marianne Yen, Refusal To Jail Immigrant Who Killed Wife Stirs Outrage; Judge Ordered Probation for Chinese Man, Citing His 'Cultural Background,' WASH. POST, Apr. 10, 1989, at A3.
162. No. 87-7774 (N.Y. Super. Ct. Mar. 21, 1989) (unpublished decision). For descriptions of the Chen case, see Kirn, supra note 29, at 119-21; Leslie Gevirtz, Immigrant Gets Probation for Killing Wife, UPI, Mar. 31, 1989, available in LEXIS, News Library, UPI File; Alexis Jetter, Fear Is Legacy of Wife Killing in Chinatown, NEWSDAY, Nov. 27, 1989, at 4; Nina Schuyler, Cultural Defense: Equality or Anarchy?, S.F. WKLY., Sept. 25, 1991, at 12; and Marianne Yen, Refusal To Jail Immigrant Who Killed Wife Stirs Outrage; Judge Ordered Probation for Chinese Man, Citing His 'Cultural Background,' WASH. POST, Apr. 10, 1989, at A3.
163. Kim, supra note 29, at 120.
164. Gevirtz, supra note 118 (quoting defense attorney Stewart Orden).
165. Jetter, supra note 118, at 4 (quoting Judge Edward Pincus).
166. Celestine Bohlen, Holtzman May Appeal Probation for Immigrant in Wife's Slaying, N.Y. TIMES, Apr. 5, 1989, at B3 (quoting Judge Edward Pincus).
167. Id. (emphasis added). Clearly, the court did not wish to suggest that the defendant was not raising an excuse-based criminal defense, for insanity is usually classified as a form of "excuse." See KAPLAN, supra note 24, at 715. Instead, the court meant that the defendant's cultural background did not make his behavior directly excusable, but rather was useful merely in shedding light on the excuse of a "cracked" mental state.
168. A determination of a "foreign" reasonable person standard was indeed a significant aspect of the defense strategy. One witness for the defense, a cultural anthropologist, when asked whether the defendant's behavior was consistent with reactions under "normal [cultural] conditions for people from Mainland China" responded: [T]he events that you have described, the reactions that you have described would not be unusual at all for Chinese in that situation, for a normal Chinese in that situation.... [I]t's not the United States, [a normal Chinese person] would react very violently. They might very well have confusion. It would be very likely to be a chaotic situation. Volpp, supra note 34, at 65. The expert then contrasted this normal Chinese person with the American "reasonable person" : "In general terms, I think that one could expect a Chinese to react in a much more volatile, violent way to those circumstances than someone from our own society." Id. at 66.
169. See supra notes 91-94 and accompanying text.
170. See supra notes 91-94 and accompanying text.
171. See Chiu, supra note 6, at 1113-14.
172. See, e.g., Karin Wang, Battered Asian American Women: Community Responses from the Battered Women's Movement and the Asian American Community, 3 ASIAN L.J. 151, 171-72 (1996).
173. DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 314 (1990) (quoting Senator Jacob Howard's presentation of a joint resolution on the text of the Fourteenth Amendment). The Fourteenth Amendment was enacted partly in order to do away with a bifurcated criminal system in which a white defendant was punishable under the general code, and a black defendant was punishable under the more severe "Black Code." For a description of the emergence of the Black Codes, see MARK V. TUSHNET, THE AMERICAN LAW OF SLAVERY, 1810-1960: CONSIDERATIONS OF HUMANITY AND INTEREST 71, 156 (1981).
174. DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 314 (1990) (quoting Senator Jacob Howard's presentation of a joint resolution on the text of the Fourteenth Amendment). The Fourteenth Amendment was enacted partly in order to do away with a bifurcated criminal system in which a white defendant was punishable under the general code, and a black defendant was punishable under the more severe "Black Code." For a description of the emergence of the Black Codes, see MARK V. TUSHNET, THE AMERICAN LAW OF SLAVERY, 1810-1960: CONSIDERATIONS OF HUMANITY AND INTEREST 71, 156 (1981).
175. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 n.3 (1989).
176. For a more thorough account of the antidiscrimination principle, see Paul Brest, Supreme Court 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1 (1976).
177. See Coleman, supra note 11, at 1141-45.
178. See id. at 1144.
179. ANCHETA, supra note 1, at 105 (citation omitted) (quoting Edward Steinman).
180. To say that the categorical exclusion of cultural evidence undermines principles of equality is not to suggest that the cultural defense is mandated by the Equal Protection Clause. Although inhibiting a class of individuals from raising a criminal defense seems intuitively to establish an equal protection violation, I concede that an equal protection challenge based on the cultural defense is problematic on a doctrinal level. First, any jurisdiction's manslaughter laws, even if they make the provocation defense available only to members of the dominant culture, are facially neutral and do not categorically exclude any class of individuals. On this account, even if, arguendo, culture-based distinctions were accorded heightened scrutiny (by mapping such distinctions onto national-origin based classifications, for example), manslaughter laws - and all modern criminal defense doctrines, for that matter - do not explicitly make use of suspect culture-based classifications. The unavailability of provocation to cultural defendants would be treated as a disparate impact, an instance of de facto discrimination that must be subjected to the " intent requirement" test. See Washington v. Davis, 426 U.S. 229 (1976) (holding that a discriminatory purpose is necessary to establish an equal protection violation and that a disparate racial impact cannot by itself prove such a purpose). It is important to note, however, that a legal remedy need not be compelled by the Equal Protection Clause to serve the goals of the antidiscrimination principle. After all, statutes such as Title VII and the Americans with Disabilities Act are presumably neither mandated nor proscribed by the Fourteenth Amendment, yet there is little doubt that such laws are instruments of the antidscrimination principle, see infra note 147-148, 155-158 and accompanying text. This Note attempts to cast a culturally sensitive manslaughter rule in a similar light - as a doctrine whose necessity is pressed more effectively along due process rather than equal protection lines, but that nevertheless advances legal equality. For an argument that the recognition of difference - to the extent that it is necessary to achieve legal equality - is precisely what is required by the antidiscrimination principle, see infra notes 155-158 and accompanying text.
181. See, e.g., People v. Robinson, 516 N.E. 1292 (III. App. Ct. 1987); Ohio v. Sanders, 98 648 N.E.2d 587 (Ohio Ct. App. 1994).
182. In re Winship, 397 U.S. 358, 364 (1970).
183. See Mullaney v. Wilbur, 421 U.S. 684 (1975).
184. See Patterson v. New York, 432 U.S. 197, 215-16 (1977).
185. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations."); see also, e.g., Gilmore v. Taylor, 508 U.S. 333, 363-64 (1993) (Blackmun, J., dissenting) (pointing out that the deprivation of a defendant's right to have the provocation defense considered by a jury significantly reduced the likelihood of an accurate murder conviction and constituted a due process violation under the Sixth and Fourteenth Amendments).
186. See Coleman, supra note 11, at 1141-44.
187. This integrated view of culture and provocation is also responsive to critics who claim that the cultural defense violates the Equal Protection Clause because it sends the message that victims of cultural crimes are less worthy of protection than victims who are members of the dominant culture since it failed to "vindicate" them in the same way it would have had they (and the defendant) not been foreign. See id. at 1141. Consider the "victim-centered" equal protection critique - assuming for a moment that the Kimura court had subsumed the defendant's cultural defense under the provocation doctrine and subsequently reduced her charge to manslaughter. In this scenario, it is clear that the relevant comparison is not, to use Coleman's example, between Kimura's children and Susan Smith's children (whose mother was not adequately provoked), but rather between Kimura's children and any other innocent third-party victims of " heat of passion" crimes tried in a jurisdiction that does not incorporate a misdirected retaliation rule. That Kimura and Susan Smith received different degrees of punishment by no means establishes ipso facto that the criminal law provides unequal levels of protection to their victims.
188. Richard H. Pildes argues that the distinction between equal rights and preferential treatment has evolved into one of the "philosophical touchstones of the current Court's constitutional jurisprudence." Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505, 2513 (1997). For a recent in-depth examination of the equal rights versus special rights debate, see Peter J. Rubin, Equal Rights, Special Rights, and the Nature of Antidiscrimination Law, 97 MICH. L. REV. 564 (1998).
189. Richard H. Pildes argues that the distinction between equal rights and preferential treatment has evolved into one of the "philosophical touchstones of the current Court's constitutional jurisprudence." Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505, 2513 (1997). For a recent in-depth examination of the equal rights versus special rights debate, see Peter J. Rubin, Equal Rights, Special Rights, and the Nature of Antidiscrimination Law, 97 MICH. L. REV. 564 (1998).
190. Peter Rubin observes that the antidiscrimination cause has been dealt a serious blow by the tendency of both common citizens and jurists to "conflate antidiscrimination laws ... with affirmative action provisions whose constitutionality can be determined ... only after they have been subjected to searching judicial scrutiny." Rubin, supra note 143, at 565.
191. See Raso v. Lago, 135 F.3d 11, 16 (1st Cir. 1998) (holding that the belief that a racial motive embodied in a government action is synonymous with a constitutional violation is mistaken).
192. See id. ("Every antidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under such a statute, reflect a concern with race. That does not make such enactments or actions ... automatically 'suspect' under the Equal Protection Clause.").
193. See U.S. CONST, amend. XIV.
194. See Rubin, supra note 143, at 597; see also Raso, 135 F.3d at 16.
195. See Rubin, supra note 143, at 570.
196. 517 U.S. 620 (1996).
197. Id. at 631.
198. 42 U.S.C. §§ 12,101-12,213 (1994).
199. Rubin, supra note 143, at 595 (emphasis added).
200. Here the comments of Professor Edward Steinman, although made in another context, are especially apt: A focus on segregation and the treatment of blacks, in essence, provides one notion of inequality: taking people who are the same and treating them differently. That is only half of the coin. The other side of inequality is more subtle, less visible, and equally invidious. It is taking [individuals] who are different and treating them the same. ANCHETA, supra note 1, at 105 (quoting Edward Steinman).
201. See, e.g., Erica Worth Harris, Controlled Impairments Under the Americans with Disabilities Act: A Search for the Meaning of "Disability," 73 WASH. L. REV. 575, 585 (1998).
202. See, e.g., Note, Toward Reasonable Equality: Accommodating Learning Disabilities Under the American with Disabilities Act, 111 HARV. L. REV. 1560, 1574 (1998) (commenting that affirmative action is a "band-aid measure," while the ADA "require[s] institutions to reconsider and explain what constitutes their 'essential' function with respect to all individuals" ).
203. To be precise, the ADA defines discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ...." 42 U.S.C. § 12,112(b)(5)(A).
204. FARBER & SHERRY, supra note 129, at 309 (quoting Representative John Bingham's statement on the principle underlying the Equal Protection Clause).