When Kong Muoa kidnapped and then raped Xeng Xiong he was practicing zij poj niam, or marriage by capture, as his Hmong forebears in Laos had done for generations.
But Mr. Muoa wasn't in Laos. Like 30,000 of his tribesmen who had fled their mountain home, he had settled in Fresno, California. Ms. Xiong, who was abducted from her high school, pressed rape charges against Mr. Muoa and won. But the judge in the case, after reading about Hmong marriage practices, reduced Mr. Muoa's sentence from 180 days to 90 days.
For Fresno's Hmong, the unsettled status os the cultural defense has meant that they have been held criminally liable for engaging in such traditional practices as opium smoking, polygamy, and butchering animals in their backyard.
John Haviland, an anthropologist at Reed College in Oregon was has worked with Mixteco Indian migrant workers from Mexico, notes that inadequate interpreters and cultural bigotry are problems faced by defendants from foreign cultures, but he notes that cultural defense offers little hope for redress.
What anthropologists are often asked to do is argue an exotic cultural defense and try to convince the jury that people look at the world in such a different way that it dehumanizes them, he says.