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However there is another possible explanation for the accuseds behaviour an explanation that was not addressed in court and that relates to Chhays recent history. In order to elaborate on this point I am providing the following generalised account [23] of the history of the Pol Pot regime in Cambodia. In Cambodia in the Pol Pot regime came to power. The first thing they did was resettle nearly three million people into rural cooperatives. Initially there was a dichotomy between the new people those deported from Phnom Penh and other areas and the old or base people who tended to be rural peasants.

The old people had class superiority. This meant that they found it easier to feed themselves and they were more trusted by the regime. Estimates seem to agree that about one-third of the inhabitants of Cambodia became new people. What living conditions between and were like depended on the zone in question.

Unofficial estimates claim that overall more than one million people died during this period. People targeted as class enemies included imperialists anyone considered foreign, sometimes encompassing the ethnic Chinese [39] and the comprador capitalist class the people who had owned and controlled the wealth of the country, a category interpreted to consist largely of the ethnic Chinese. There was a nationwide attempt to remodel peoples ways of thinking and acting.

The party decided who should marry who and there were visitation rights between the couple on the few times a month when the woman believed herself to be fertile.


It was during this period that Muy Ky Chhay was made to marry her husband, who was chosen for her by the State. Muy Ky Chhay and her husband would have been some of the many who fled across the border into Thailand in once the Pol Pot regime was finally overthrown. There is little written on the specific experiences of Cambodian women throughout these times. Arguably this is in keeping with what some have argued is a trend towards psychologising women and their life experiences.

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Returning to my original question why did the accused initially lie to the police in this case? One obvious explanation is that lying is an instinctive and natural response in crises for someone who has survived a holocaust and who, in order to survive it, needed to lie to authority figures about their identity and history. The police as representative of the State are not the semi-benign truth-seeking force to a person coming out of Muy Ky Chhays background that they have been until recently in the cultural mythology of white middle-class Australia. It is understandable that anyone in a time of crisis might panic and provide a selfserving account of themselves to State authorities.

Sydney Law Review

For someone coming from Muy Ky Chhays history it is more than understandable that she might do so, it seems almost to be expected. Whilst giving evidence Muy Ky Chhay alluded to the history she had survived. Her brother also mentioned her experiences in Cambodia during his testimony. There are a number of reasons why this evidence was inadequate for the purpose of contextualising, and providing a possible explanation for, her lies. First, her history was not actually used in court to explain why she may have initially lied to the police.

In his summing up, the judge said that the jury could consider that the accuseds lies were evidence of her awareness that she was guilty, and her desire to avoid responsibility for her guilt, if they concluded that there was in the circumstances no other reasonable explanation for her lies. He provided the jury with a number of potential explanations as to why she may have lied, other than in consciousness of guilt:.

What is striking about this statement is that none of the examples provided by the judge are linked in any useful or specific way to the particularity of the accuseds experiences. As a consequence none of the examples are cogent or convincing. If anything the judge tended to discount or minimise the significance of the accuseds recent history by telling the jury that it was relevant only to her state of mind when she killed the deceased and any sympathy or prejudice they might personally feel towards her which he cautioned them to put aside as she had now placed herself under the protection of the Australian legal system.

Secondly, even if the potential link between the accuseds past experiences and her lies had been made explicit it is unlikely that the jury would have benefited much from the connection because her past experiences were not adequately described in court.

In her testimony Muy Ky Chhay mentioned her forced evacuation into the countryside, seeing people tied to trees and beaten for stealing food, and marrying her husband for fear of being disappeared. Her evidence on this subject, however, is extremely brief, consisting of two pages out of the pages of overall testimony before the court. It is also the case that her account is unstructured, sketchy, and incomplete. Her brother in law, who provided a history of his experiences under the Pol Pot regime in the absence of the jury, was only permitted to tell the jury that Muy Ky Chhays marriage was forced and about the circumstances in which he had met her and her husband in the refugee camp.

It is deeply problematic that the survivors of trauma themselves were relied on in Court to explain their circumstances. Trauma survivors do not necessarily have good recall of their experiences. Post traumatic stress disorder, [50] for example, has, as one of the clutch of symptoms commonly associated with it, memory impairment. In addition there is the issue of time and of trust. J David Kinzie et al, who studied post traumatic stress disorder among survivors of Cambodian concentration camps, [53] found that the patients in their study revealed their histories reluctantly and incompletely.

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Only after a relationship had been established with the therapist were they willing to go into detail. Richard Mollica, Grace Wyshak and James Lavelle, who conducted a study of 52 patients in a clinic for Indochinese people, [54] also found that more trauma related information came out over the course of the interviews than was initially provided in their clinical evaluation and treatment.

There is some suggestion that the sexual abuse of women may be a particularly widespread and hidden aspect of the trauma survived by Cambodian people. Little is known about the cultural and emotional factors that inhibit refugee women from seeking help for rape trauma or the coping styles they use to deal with this problem. This material raises serious concerns about the fairness of expecting the accused to provide an accurate account of herself and her experiences in the courtroom, and of judging her on the basis of that material. It is possible that not only was the description of her experiences under the Pol Pot regime incomplete, but that so was her account of her mistreatment at the hands of her husband.

There may be elements of her account that never emerge or could not possibly emerge until years down the track within the context of a trusting and skilful therapeutic relationship. This material also suggests that of the three stories provided by the accused, the third is likely to be the most accurate, because of the context in which it was shared. And furthermore, that the layering and the evolution of her telling is not evidence of her shiftiness, general dishonesty or lack of credibility, but a fairly typical coping response both to the experiences she survived and the circumstances in which she was expected to disclose her survival.

None of these points appear to have been understood by those involved in constructing her case or judging it. The lies of the accused, the courts failure to come to grips with the context within which they occurred, and the accuseds ethnicity may be the key to understanding something else that at first puzzled me about this case.

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Donald Nicolson is one of a number of scholars who argue that the courts perception of whether a woman is complying with the indices of femininity influences its construction of, and therefore its treatment of, her. What Muy Ky Chhays case shows is that it is important to examine the intersection of race and gender in the courts construction of women who resort to lethal self help, [61] something that Nicolson does not do.

In this case I would raise the possibility that there are narratives about gender and race that operate to reinforce each other and give additional significance to the fact that she lied. What puzzled me about this case is that Muy Ky Chhay displayed all the characteristics of appropriate femininity and yet received relatively onerous treatment in the hands of the court.

Whilst her survival testifies to the fact that she is strong, determined, resourceful, able and brave, she was not described in this manner by those who spoke of her in court.

About the Hearth

Instead she was described by a number of people as a kind, honest, hard working, gentle, soft spoken, non violent person and a good mother. On appeal she was described as the model prisoner. It was accepted in both instances that the only reason she killed her partner was because of his sustained abuse. In a sense Muy Ky Chhay was able to be constructed as the perfect feminine. When one looks at representations of Asian women, her harsh treatment becomes even more puzzling because these descriptions of her are reinforced by stereotypical narratives about Asian women that construct them as the archetypical feminine.

But there are other narratives of Asian people. For example, representations [63] characterising them as inscrutable, dangerous, cold and self interested. People who might, at face value, appear submissive and quiet but cannot be trusted because this masks self interested manipulation. There is a possibility that Muy Ky Chhays lies access these sorts of racist narratives about her ethnicity and transform her from the archetype of the appropriate feminine into something like the Rose Hancocks [64] of this world.

Such narratives are reinforced by gender stereotypes about calculating and deceitful women. Certainly a damaging picture and one that is consistent with this possible characterisation of Muy Ky Chhay, was presented by the testimony of the ambulance officers and senior constable who were first to arrive at the scene of the crime. These witnesses described her urgent concern and her tears about the loss of her gold and jewellery, whilst the corpse of her husband lay in the adjoining lounge.

Reading the transcript I am left wondering how much these witnesses were affected by their stereotypes and preconceptions, and their difficulties in communicating with her, when perceiving and constructing her reactions. One of the ambulance officers who gave this damaging testimony, for example, could not even identify the accused in court because he could not remember her face.

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She becomes part of the faceless horde when he refers to her throughout his testimony as the Asian lady. Australian courts have not been good at investigating and crediting domestic violence. This tendency is exacerbated in Muy Ky Chhays case by the fact that her testimony had little credibility and yet most of the evidence of the deceaseds violence came from her testimony alone. My argument here is that the accuseds positioning as a Cambodian refugee woman contributed to a lack of corroborating evidence about the deceaseds violence and that the court should have been and was not sensitive to this fact.

The accused testified to years of physical abuse at the hands of her husband but there were very few witnesses who actually saw him be physically violent towards her at any stage in their marriage. Neither of their two children who testified, her sister, her brother or her brother-in-law had actually witnessed physical abuse.

At best these witnesses were able to give indirect evidence of the deceaseds physical violence, such as bruising, the deceased raising his hand to her but not actually striking her and his extensive psychological cruelty towards her. Only one witness could actually testify to witnessing the deceased bashing and kicking the accused. This witness, Samang Yem, [67] had first done so whilst living with the Chhays in conditions where there was no real private space.

She had observed the violence through a partition of leaves that separated the two families living quarters in the refugee camps in Thailand. She said that she had observed four or five attacks in the year that she lived there. Each lasted several hours and was accompanied by death threats.

Why So Many Cambodians Own Donut Shops - AJ+

She also said that no one had intervened because they were afraid of the deceased. Similarly, no one had witnessed the violence that the accused alleged she had been defending herself against on the night she killed her husband. Visitors to the family earlier in the evening [68] said that the deceased had been raging, hitting furniture and verbally abusing the accused but seemed to have calmed down by the time they left. Certainly Muy Ky Chhay explained the lack of witnesses on the basis that the deceased had always attacked her when she was vulnerable because there was no one around to help her:.

It is also not unusual for victims of domestic violence to feel shame around the occurrence of violence and to be complicit in the coverup of it.

Cambodians in the United States: Refugees, Immigrants, American Ethnic Minority

Muy Ky Chhay commented that she hid the violence from her children to protect them from the knowledge of it:. Researchers [71] have suggested that the deep seated cultural value of family loyalty, the idea that individuals in the family should sacrifice their own interests to benefit the family as a unit and the cultural notion of shame [72] or loss of face, which ideally function within some Asian cultures as a check on the occurrence of domestic violence, can end up not preventing it but rather keeping it hidden.

If this is correct then these cultural taboos may provide an additional reason why the deceaseds violence was unlikely to be directly witnessed in this case.