UW Hmong controversy

University of Wisconsin law professor Leonard Kaplan has faced mounting criticism for remarks he made in a lecture to students in his "Legal Process" class. A summary of his remarks and the following fallout can be found in this Insider Higher Ed piece. I am interested in a somewhat different angle, namely the topic of Professor Kaplan's lecture that day. Professor Kaplan's class does not have a course description, but I googled similar classes, and found the following useful description on the UPitt website:

"This course develops the student's understanding of the underlying assumptions of law, its processes and institutions, and the nature of legal rules and concepts. Among the topics covered are: the sources of legal rights, the different roles of courts and legislatures, and the division of authority between state and federal governments as it affects the work of lawyers. The course also examines the rules and alstrategic concerns that determine the place of trial, as well as ways of resolving disputes that do not involve the courts at all."

So, this looks like a catch-all type of course that examines legal rules at the most abstract level, sort of like a philosophy of law course in a law school. Now, let's get to the specific comments that Kaplan made. His comments about the Hmong community were made in the context of a discussion of what is commonly known as the "cultural defense," which one scholar has defined as "negat[ing or mitigat[ing] criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actor's cultural heritage or tradition." Martin Golding, "Cultural Defense," Ratio Juris Vol. 15, pp. 146-158 (2002).

Consider the case of People v. Muo (No. 315972-0 (Fresno County Super. Ct. Feb. 7, 1985), where a immigrant from Laos was charged with rape following an incident where he had practiced a tradition among the Hmong known as "marriage by capture." Muo asserted the common law defense of mistake of fact, whereby a defendant claims that although he/she has committed the actus reus (the required act) associated witht the crime, he/she did not possess the necessary mens rea (mental state) to be charged with it. In the context of rape, the whole crime turns on one single element of mens rea, consent. So, Muo claimed that since he believed, in accordance with the custom of marriage capture, that he was not in fact raping the victim. As a recent law review article explains,

"Moua was a recent immigrant and a member of the Hmong tribe from the mountains of Laos where marriage-by-capture is performed. In this ritual, "a man abducts the bride of his choice ... [and] takes the woman to his family's home where the union is consummated. According to Hmong tradition, the woman must protest and say, 'I am not ready.' She would not otherwise be considered virtuous and chaste. The man must persist in consummating the union, despite her protests, in order to appear strong and masculine."

Rosie Williams, Maine Bar Journal, Winter 2007 (27 Me. B.J. 36). So, it may be readily inferred that Professor Kaplan was in fact discussing this very problem of bride-kidnapping, and how it turns our own cultural assumptions about rape on its head. It is not that similar notions of "no really means yes" haven't been a part of our own rape jurisprudence over the years and still influences our discussions to this day, but surely this custom among the Hmong is qualitatively different.

How did Kaplan come to make his comments? Most likely, he was engaged in a legal hypothetical, a staple of legal education in this country. Law professors set up outrageous facts that allow them to identify problematic assumptions or gaps in legal reasoning and then talk about how an existing framework fails to take into account the legal issues presented by their hypothetical. Here, in a discussion of the assumptions underlying law, Professor Kaplan may well have been talking about how from the perspective of a Hmong immigrant like Mr. Muo, the notion that he was raping his future wife was silly to say the least, and that it may be difficult for such a person to adjust to the reality that he is in fact victimizing someone.

How Kaplan got from that sort of thing to making the outrageous comments he made approving the death of Hmong men and Hmong involvement in gang violence etc. is unclear. Such statements are outrightly racist, and should be rightly condemned as such. Nevertheless, it is interesting that the line between a hypothetical discussion involving very delicate subjects, including rape, ethnicity, and a custom that is peculiar to say the least, and which very likely is disavowed by a large number of Hmong in this country as contrary to basic human moral values, can spiral out of control into a racist diatribe. I have seen this fine line tread very carefully myself in a clasroom a few times (one particular class comes to mind, but naming names would not be helpful).

Anyways, this has gone way longer than originally anticipated. Maybe I can follow up on this tommorrow.