Volpp further points out that contrasting immigrant culture with mainstream American culture “has the effect both of equating racialized immigrant culture with sex-subordination, and denying the reality of gendered subordination prevalent in mainstream white America.”58 Thus, if parents from the mainstream culture were to abort a female fetus because they want a boy, people would not automatically assume that they are misogynistic.
Anna Korteweg, a Canadian-based sociology professor, observes a similar phenomenon. She studies honor-related violence, which she defines as a “family-initiated, planned violent response to the perception that a woman, as wife or daughter, has violated the honor of her family by crossing a boundary of sexual appropriateness.”59 Identifying the dichotomy between how immigrant culture and mainstream culture is viewed, she notes that “discussions of honor killing and honor-related violence stigmatize and racialize immigrant communities while positioning immigrant-receiving societies as free of ‘barbaric’ violence in contrast.”60
In her study of Great Britain, the Netherlands, and Germany, she also points out the overemphasis on culture in discussions about violence within immigrant communities. She notes that media reports suggest that once a girl from certain immigrant communities has done something to disgrace her family, they must resort to murder. These accounts fail to describe situations where solutions outside of murder are sought.61
Korteweg rightly argues that culture is important in understanding the practice of honor killing but cautions against viewing it as a “monolithic, deterministic force.”62 She warns against giving too much weight to culture in understanding the behavior of Asian and other immigrants. She also emphasizes context and points out that many immigrant children are often exposed to a different social context at school and in their homes.63 However, she does not explain how the concept of honor killings itself gains meaning from context. The context-based lens I propose here provides a new perspective.
In a small rural community in Pakistan, a family may feel a very strong sense of honor/dishonor if their daughter violates a community norm, for example by dating a boy (or another girl). In Canada and other migrant-receiving countries, the situation is different—immigrant families do not always live in close proximity to one another. Many do not have to encounter on a daily basis people who consider what their daughter did to be shameful. Moreover, in parts of Pakistan, communities may condone the murder of that girl. There is no similar mainstream community in Canada that would condone this behavior.
Thus, the murder of a daughter by her father in Canada for having premarital sex where the crime is not done in reaction to the “community” carries a different meaning than if the crime is committed in Pakistan where it may be encouraged and/or condoned by the community and done to preserve the father’s honor in that community. To put it another way, a crime is considered to be a “hate crime” (which usually means the criminal liability is escalated) only in reaction to the context where the crime occurs. A crime that is considered a “hate crime” in Pakistan should not be considered a “hate crime” in Canada just because the perpetrator is of Pakistani descent. This is not to say that honor as a motive does not exist in any circumstances in a murder of a daughter by her father for the breach of a cultural or religious norm.
In the early 1990s debates erupted about the use of the “culture defense” in cases where Asian immigrants were being tried for criminal offenses. Those discussions provide useful examples of how immigrant culture is treated in mainstream discourse. The core question in feminist legal literature on this topic was: against what standards should Asians be judged—the standards of the dominant American culture or the standards of the culture of people in Asia? For example, if a Hmong man kidnaps and rapes a woman as a way of marrying her—a practice undertaken in their country of origin—should he be able to refer to his culture in his criminal trial? Take another example—should a woman who attempted to kill herself after she killed all her children to escape domestic violence be able to present evidence about a similar practice of parent-children suicide in the country she emigrated from?
Doriane Coleman argued against the introduction of culture in criminal trials. She contends that the behavior of immigrants in the United States should be judged against American standards and not by the standards of the immigrant’s country of origin.64 Leti Volpp acknowledges that it is a problem for feminists if men use “culture” as an excuse for causing physical or mental harm to women. But she further argues that the cultural background of the defendant should play a limited role in a trial.65
If we understand culture and context to be separate, we gain insight into both the debates over the culture defense in trials and the debates on bans of purportedly harmful practices of immigrant women. Rather than refuse to admit evidence of culture, courts should admit and consider information about the culture of the country of origin of the immigrant only to the extent it was shown that this culture actually influences his or her behavior. This way, we do not presume that a homogeneous and unchanging culture accompanies migrants as they cross borders and remain in another country. Yet, the context of the United States should also be given weight.66 This approach is not blind to the problems inherent in attempting to identify what encompasses culture. This solution recognizes that both culture and context shape the behavior of Asian Americans as well as other immigrant communities. Clearly the culture of the country of origin might be more relevant for understanding the behavior and motives of first-generation immigrants rather than second-generation immigrants.
Professors Knop, Michaels, and Riles’s insightful article proposes another flexible framework to resolve what they frame as the debate between Okin-style feminists who claim that women’s equality (as defined in Western feminist terms) should trump multiculturalism and multiculturalists who give priority to culture.67 They draw from principles courts use in resolving conflicts of laws to determine when courts should consider foreign cultural and other norms and when they should not.
They explain how the conflict of laws approach would work by applying it to a hypothetical case that involves a father in Japan and a daughter living in California. The father transfers shares of a California subsidiary of a Japanese parent corporation to the daughter, but his intention is not to transfer actual control but only to transfer the stock in “name only,” which is a common practice in Japan to prevent potential disputes between siblings. The question is how relevant should the Japanese cultural norms and traditions be to an American judge deciding the case.68 Their proposal to use a modified conflict of law framework allows a decision-maker to use one normative system for one purpose and another normative system to resolve another issue.69
Context in Feminist Legal Theories and International Human Rights Law
There has been a dynamic relationship between American feminist legal theory and practice. Feminist legal theorists shaped litigation and advocacy strategies to promote women’s equality and the practice influenced how the theories evolved. These theories are often used in evaluating laws from the perspective of women’s equality. The perspectives were used by feminist lawyers and advocates to evaluate whether a law promotes, inhibits, or has a neutral impact in respect to women’s equality. When American legal feminism theories emerged to address inequalities in one domestic context—the United States. These theorists did not face a world with massive immigration. Today practices like sex selection, veiling, and female genital cutting move beyond borders more than ever. Recent feminist scholarship has begun to address women’s rights issues across multiple countries. It observes that country context is relevant in determining the human rights implications of immigrant practices. I discuss geographic context in traditional and emerging feminist legal theories and international human rights law and theory below.
Context in Traditional Feminist Legal Theories
Contemporary legal feminism traces its roots to the 1970s when early feminist activists struggled against laws that were formally unequal. They pushed for women to be able to engage in traditionally male-dominated activities. Prior to the 1970s, many laws contained sex-based distinctions. For example, only women could receive alimony, only men could be drafted, and the age of majority was different for men and women.70 Essentially, laws were