McKinley on Cultural Defenses in Asylum Cases

Cultural Culprits is a new article by Michelle McKinley, University of Oregon School of Law, placing cultural defenses in asylum adjudication in a historical perspective. It is forthcoming in the Berkeley Journal of Gender, Law & Justice. Here's the abstract:

This Article examines the way that questions of agency, victimization, and cultural essentialism are framed and acted upon in U.S. asylum adjudication and cultural defense cases specifically, and in international human rights law more broadly. I explore the adjudication of asylum claims based on "cultural persecution" that encode a racialized view of culture. I describe the historical trajectory of contemporary FGC claims through a detailed analysis of colonial anti-excision campaigns. I portray "maternal imperialism" as a means of imposing medicalized orders and controlling reproductive sexuality. I compare the early period of anti-excision campaigns with contemporary maternalism, as international law, UN and international financial institutions became more responsive to feminist concerns about eradicating FGC. Who is dominating the legal, normative, and political arguments determining the classification of "culture"? How does victimization hide behind and reproduce power when it is associated with culture? Are cultural claims activating latent concepts of pathology, repugnance, or savagery? Where are these discourses being produced and consumed, and what are the relationships between the colonial past and the post-colonial present? In the particular case of FGC, do the respective limitations of universalism, medicalization, and criminalization also demarcate the problems of post-structuralist deference, laissez-faire liberalism, and relativism?