| In defense of culture An interview with lawyers Yer Vang and Carmel Capati by Heidi M. Pascual |
| the lack of any real talk about culture and how it has an impact on the legal system, and we came up with this idea. The Wisconsin Law Foundation offered a grant to assist us in putting together the forum, and we thought it was the best way to educate people. AW: Were there judges who attended the forum? How do you assess the turnout? Vang: We sent out invitations to all the circuit court judges in Wisconsin. Unfortunately, no judges showed up. In our assessment, however, we thought the forum was a success in that it was the very first of its kind ever to really talk about the use of culture in the legal system. We had about 40 participants who represented various cross section of disciplines. We had folks from law enforcement and from the social services; attorneys and community-based activists; students and professionals in the academic field. Unfortunately we didn't have any judges. Capati: I wished judges had come, because really they are some of the ones who need some perspectives on the issue of culture, as our population is changing in the state. AW: Do you have any plan for future discussions on the use of cultural defense considering the positive outcome of the first forum? Capati: The Department of Justice (former AG Peg Lautenschlager) awarded the Wisconsin Bar Association a $5000 grant last month. Yer and I were talking and we hope to do some more training on this particular issue. We're talking about law enforcement being a very good target audience to do more training. That is one area which we'd like to explore now that we have a little bit of funding. The intent is not to make it mandatory; but I think that if people don't have to go to these educational trainings, they don't, and it's just human nature. If there's no incentive or mandate to do so, I think people wouldn't do it. Maybe we can work with some state officials who are involved with training, law enforcement or district attorneys, or even in judicial education. Vang: The challenge is to convince people to believe they do need to be informed and educated about the issues of culture and race as they intersect with the legal system. We wanted to create a forum to challenge those who thought they knew it all and those who want to learn. We wanted to debunk preconceived notions about culture and provide an opportunity to do a reality check with professionals and those who work or serve diverse populations and cultures. I know that effective change and a shift in attitude or people's mentality about culture and the legal system will not happen overnight or simply with just one forum. However, the forum will start the conversation and we hope that community members will continue to dialogue. Just recently there was another shooting incident in Marinette County. This time the victim was a Hmong person, while the defendant is a White man, so I know that the Hmong communities in Wisconsin and throughout the country, are very concerned about the legal process ... making sure that a thorough investigation is done fairly. In light of that, I hope we'll have the opportunity to collaborate with different community-based organizations and state agencies to provide different venues to address the issue of race and culture. Our goal is to participate in that conversation; involve all the stakeholders in the the process and hold them accountable to doing everything that they can to bring the victim and his family justice. AW: What other cases particularly in Wisconsin involve cultural conflicts? Capati: I think a lot of conflicts, smaller cases, occur in terms of violations of city ordinances, like the Hmong animal sacrifices in building and apartment units. I know that those aren't very well-known and there isn't a whole lot of media coverage on them, but they're the daily things that occur without people really knowing it. Another example is the Hmong rituals on death. About two years ago, I attended a Hmong wake and the family had to get a special clearance from law enforcement to make sure that they could have the body at the house for the extended period of time that they wanted to have the body there, because normally that's not how it's handled. It's more the daily conflicts which often, I think, are more telling than something as infamous as the Chai Vang case or even this recent incident. But in (ordinary) cases of clear cultural conflicts, if people are willing to talk about them and be open to adapting systems, then I think we're all better off. Vang: Some of the more well-known cases of cultural conflict involve cultural practices that don't align with the American legal system. The most prevalent cases have to do with statutory rape issues. In the Hmong culture, young girls are encouraged to marry at an early age -- before 16 -- and of course, in Wisconsin, if someone has sex with a minor under the age of 16, that's construed as statutory rape. Most common are situations where a young Hmong girl, probably under 16, may be encouraged to "culturally" marry her boyfriend. In those scenarios, the young man is charged with statutory rape for having sexual relations with a minor. Despite the girl and her parents' assertions that a sexual assault didn't take place, criminal charges are sometimes filed as a matter of law without taking into consideration cultural context of both parties. Just recently there was a case in Sheboygan involving a 22-year old Hmong man charged with sexaul assault of a minor, who also happens to be his wife. This could have been an ideal situation where if law enforcement and the legal system listened from the start and considered the cultural factors, criminal charges would not be necessary. Instead, the legal authorities believed they are doing right by offering the Hmong man deferred prosecution instead of proceeding with the maximum charge of sexual assault of a minor, which carries more severe penalties. Unfortunately, these cases of cultural misunderstandings continue to happen and most of us don't know about them unless it's sensational and the media covers it. AW: We have noticed that some cultural traditions, including death rituals, have been "modified" in order to adapt to the American society. What can you comment on that? Vang: I think in any culture, whether we're talking of Asians or European culture, as you acclimate to a particular society, you do modify and adapt. Sometimes cultures are forced to adapt to the lifestyle of the people or the community they live in, and sometimes it just happens because of convenience. There are always initial growing pains and over time, they lessen as the community changes its lifestyle and some of its traditions. Traditionally, in the Hmong culture, funeral process occurs for three days straight -- involving lots of drumming, singing, and ceremonal rites. At present, there are limited places where the Hmong community can continue to carry out full funeral rites in the U.S. Consequently, the Hmong community has had to modify their traditions and ceremonies. For instance, the drumming may be done for a certain period of time, just to do the crucial pieces of the ceremony; otherwise, the neighbors would be very upset. Anecdotally, when my parents passed away, we were told expressly by the funeral director that there were certain hours that we could perform our funeral ceremonies and we had to comply with that. I think people have modified, adapted, and changed funeral ceremonies because of those restrictions, whether these are restrictions imposed by the municipal code or by state law. AW: What would you like to tell our readers and the people in the Wisconsin legal system? Capati: We work in systems every day, and I think it's easy to get used to doing business as usual, because this is the way our system is set up; this is the way it's structured; this is the way it's always been. For any system to be effective in a democracy and especially a democracy that is as diverse as the one here in this country, systems have to adapt to the people whom they're serving, and if the people whom the system is serving don't look like the people who created the system to start with, then the system has to adapt to that change. That's why I'm of the belief that something like the legal system should be adaptive to people from different cultures who are interacting with that system. I hope that we will see more creativity in the legal system. Vang: We don't operate or exist in a vacuum. Part of what makes our legal system work is by involving and interacting with one another. When people need to access or attempt to access the legal system, it should accomodate those needs within reason. My hope, with the work that we're doing with the legal forum and continually working with the law enforcement community, is to create avenues of access for marginalized communities so that they aren't excluded. It's easy to look at us as foreigners and that we'll never really truly belong as Americans based on our skin color or culture. And so, I really hope that the mainstream community would look at us as a larger community, that we all belong, that we all should have access. If we don't adapt and we don't look at others or engage in conversations about how we can work together to change, certain groups of communities will continue to be marginalized and these types of conflicts will continually occur. If we want an efficient system that's fair and equitable, then we have to engage in these types of conversations and dialogues, because there isn't just one way to do things. As we have influxes of different populations coming into Wisconsin and into our country, you've got to understand that yes, change doesn't happen overnight, but change should happen, because for our country to remain stagnant, we aren't serving its people to the best of its ability. The legal system needs to take into consideration the totality of the circumstances, including culture and race, if it desires to resolve legal issues fairly and equitably. |
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| Lawyers Carmel Capati (l) and Yer Vang |
| AW: What motivated you to initiate a forum on the use of culture in legal defense? Vang: In Wisconsin, particularly in Madison, there has been ongoing dialogue about race relations, and part of that discourse is that cultural issues come up. When people talk about race relations, Asian Americans are not included; we're not part of the dialogue. My motivation for doing the forum is to bring issues of culture and race relations into the legal system. In part, our goal was to create a forum where the community -- community activists, lawyers, experts, judges, and law enforcement -- can come together to talk about the importance of culture and race as is evident in recent altercations between Asians and non-Asians. There is a lot of confusion and misrepresentation of the Hmong community (in particular) and the Asian American community (in general) and so we thought it would be a good idea to provide a forum and opportunity to have a frank discussion about race relations and more particularly, cultural issues. Capati: We had several meetings with the Wisconsin Organization of Asian Americans about trying to come up with some kind of an educational forum that might address what Yer was talking about -- |
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