Selected Publications

That Guy's A Batterer!: A Scarlet Letter Approach to Domestic Violence in the Information Age, 44 Fam. L.Q. 255 (2010).  I return to my roots in domestic violence scholarship and policymaking with this article.  It proposes a new idea that does not simply react to domestic violence but rather seeks to preempt it.  The tool of preemption is a publicly accessible domestic violence registry.  In this age of Facebook, Twitter and Google, this registry would enable private individuals to make better informed intimate choices and would decrease the perpetration of violence against women.  Our current approach to domestic violence is predominantly reactive and preserves a dangerous level of anonymity for batterers and in particular, for serial batterers. 

The Culture Differential in Parental Autonomy, 41 U.C. Davis L. Rev. 101 (2008).  The challenge of diversity is felt when the composition of the American populace is changing, but the laws governing the populace are not. When the laws of a community reflect only one culture while many of its members are from other cultures, conflict is inevitable and intense. This conflict arises in numerous legal contexts but when the conflict occurs in criminal laws regulating the parent-child relationship, the consequences are tremendous. In this Article, I claim that the parental practices and decisions of parents from minority cultures are scrutinized, regulated and punished to a greater degree than the practices and decisions of parents from the dominant culture. To support this claim, I critique the criminalization of female genital surgeries in the US and contrast this aggressive legal stance with the utter lack of regulation in cosmetic surgery for adolescents and the administration of growth hormones for non-medical reasons.

Culture as Justification, Not Excuse, 43 American Crim. L. Rev. 1317 (2006).  This article adovcates a new perspective in the debate on cultural defenses.  It proposes that the criminal law allow defendants to introduce new justification defenses based on the values and practices of their minority cultures.  Often such defendants commit harmful acts not because they are mentally disturbed or acting involuntarily; rather they do so because they believe that their acts are righteous or justified.  While they are free to accoommodate or reject these beliefs of defendants, decisionmakers in the criminal law should honestly recognize these claims of justification instead of engaging in the legal fiction of excuse. 

Culture in Our Midst, 17 U. Fl. J. L. & Pub. Pol’y 231 (Summer 2006)
This article describes how the substantive criminal law is infused with the values and practices of the dominant Anglo-American culture. This is particularly true of justification defenses. There is no doctrinal space for the values and beliefs of minority cultures. A recognition of these truths is a critical first step in crafting a more fair and equitable criminal law for the multicultural communities in which we now live.

The Role of Motive in the Criminal Law, 8 Buff. Crim. L. Rev. 653 (2005)
This article builds on recent discussions among criminal law scholars on the role that motive should play in the criminal law. It advocates for greater consideration of a defendant’s motive in all critical decisions of the criminal justice process and offers concrete guidelines.

Confronting the Agency in Battered Mothers, 74 S. Cal. L. Rev. 1223 (July 2001).


 

Elaine M. Chiu
St. Johns University School of Law