argued that the touching of a child’s genitalia is not
considered sexual in Albania, he and his wife per-
manently lost the custody of their children in fam-
ily court. Many Muslims in Dallas and nationwide
were angered by the outcome of this case because
of the court’s severance of parental rights before
the accused came to trial in a criminal court and
the adoption of the Krasniqi children by a family
who had the children convert to Christianity. In
response to public protest, the judge involved in the
civil case publicly refused to apologize and wrote
that Krasniqi’s defense in criminal court had been
based on the offensive assertion that “molesting
young girls is acceptable in Muslim culture” (Moore
2002, 198).
The judge in the Krasniqi case puts his finger on
the problem with the cultural defense strategy. The
argument that culture determines an individual’s
behavior imagines culture to be fixed and bounded
as a static set of rules, beliefs, values, and institu-
tions, instead of being a heterogeneous set of dis-
courses and practices that are constantly being
transformed through particular historical events
and exchanges and through the activities of indi-
viduals. Particular constructions of “culture’” em-
bedded in legal defenses associate offensive or
questionable cultural factors with people who are
then seen as primitive, unchanging, and inferior
to United States standards of conduct. Thus, the
assertion that touching a young child is acceptable
in certain countries and cultures generalizes from
the instance of the actions of one man to condemn
the world’s substantial Muslim population. The
generalizations the cultural defense allows validate
the core images of Islam and Muslims already
structured in the dominant discourses.
Attempts have been made in the United States
Congress to ban the use of the cultural defense in
United States courtrooms in certain circumstances.
In the case of female genital mutilation (FGM) –
also known as female genital surgery or female cir-
cumcision – United States federal law adopted in
the wake of the heavily publicized asylum case of
Fauziya Kasinga in 1996 criminalized the practice
overview 413of FGM in the United States and forbade any con-
sideration of cultural imperatives in the defense
against criminal charges arising from this practice.
The law prohibits the court to consider the effect of
any belief that the practice of FGM is required as a
matter of custom or ritual. However, this has been
construed as an inappropriate prohibition since the
question of cultural belief is directly relevant to
the state of mind of the defendant: at the time of the
commission of the act for which he is criminally
charged, did he have the requisite criminal intent?
(see Maguigan 1999). For those who continue
practices that have a cultural basis, cultural evi-
dence continues to be admitted in court because it
relates to the state of mind of the defendant.Bibliography
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