Law, social science and the “brainwashing” exception to the first amendment

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Litigation in the “cult wars” has shifted from “deprograming” cases to civil suits by ex-converts based on “brainwashing” claims, and to criminal defenses claiming incapacity due to cultic brainwashing. Early cases were decided on the basis of first

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  Behavioral Sciences and the Law, Vol. 10,5-29 (1 992) Law, ocid Science and he “Brainwashingyy xception to the First Amendment* Dickhthony, B.A. and Thomas Robbins, Ph.D. Litigation in the “cult wars” has hifted from “deprogram- ing” cases to civil suits by ex-converts based on brain- washing” claims, and to criminal defenses claiming incapacity due to cdtic brainwashing. Early cases were decided on he basis of irst amendment derivations barring judicial inquiries into conversion processes and religious authenticity. In 1988 the California Supreme Court carved out a parrow exception to this doctrine to be applied to circumstances where “coercive persuasion” is combined with concealment of a group’s identity. The Court’s opi- nion entailed characterizations of the process and conse- quences of brainwashing which are problematic from the standpoint of social science. Several key questions must be resolved before brainwashing theories can make a con- structive contribution to litigation involving religious groups. These questions relate to broader issues involving the nature, causes and indicators of involuntariness, and the closely related problem of drawing the line or dentify- ingthe exact point on a continuum beyond which the means or intensity of indoctrination becomes incapacitating. Although the 1988 California decision did not resolve these issues, they were considered from 1988-91 by several corn making procedural rulings on he admissibiity of “expert” testimony on brainwashingfpsychologicd oercion. A con- cluding section elates this egal to the duality of ‘soft’ vs. ‘hard’ etuminism in social science. This paper deals wth “brainwashing” and related concepts (coercive persuasion, mind control, thought reform, etc.) and the criteria for the admissibility of theories employing such concepts in litigation involving religious and therapeutic movements or “cults”. Whatever their denotation, which is not always clear, concepts such as brainwashing or mind conuol connote involuntariness. They suggest a distinctive form or iduence or psychotechnology which creates involuntary attitudinal and behavioral sequences. A scientific theory which explains such an influence process must, in order to be admissible, enable analysts and legal authorities) to clearly This paper represents the first publicarion from a longer projea on coercive persuasion, religious move- menn and the law, which will culminate in a monograph by Mr Anthony. Dick Anthony is a doctoral candidate in the inter-area studies @sychology and religion) program of he Graduaxe Theological Union, Berkeley, CA. Mr Anthony has served as a professional consultant to awyers and religious groups involved in “brainwashing” litigation. Thomas Robbins is a Research Assodate at the Sanra Barbara Cenm for Humanistic Studies. Correspondence maybe addressed to Mr Anthony ar 809 Evelyn Avenue, Albany, California 94706, USA. 0735-3936/92/010005-2516 12.50 992 by John Wiley & Sons, Ltd.  6 D. Anthony and T. obbins distinguish brainwashing as a coercive process that creates invoiuntariness rom other, less incisively coercive, processes, that is, to “draw the line” (Delgado, 1977, pp. 63-72) between groups which thoroughly brainwash fiom less potent or pemicious groups. Anthony has developed an approach to evaluating the admissibility ofbrainwashing testimony, based upon evaluating the theories employed within such testimony rela- tive to their purported theoretical foundation, that is, generally accepted research on Communist thought reform, with respect to the key issues of involuntariness and drawing the line. The approach which he has developed for this purpose has been expressed in an earlier publication (Anthony, 1990a) as well as in amicus curiae briefs, pretrial motions, and appeal briefs in cases wherein he has served as an advisor to professional associations or as a consulting expert to lawyers representing religious groups.’ (He has also submitted a declaration under penalty of perjury outlining this approach in the Fishman case, see below pp. 27-30.) The present paper will review the effect this approach has had in clarifymg he issue of the admissi- bility of brainwashing testimony in the various cases in which it has been presented to courts making determinations on the issue. CULTS, BRAINWASHING AND THE FIRST AMENDMENT The “cult wars” have been raging for practically nvo decades and have produced substantial litigation as courts have sought to balance the rights and legitimate inter- ests of conuoversial movements, present and former devotees (“cult victims”), alarmed relatives and &ends of devotees, the public and the state (Anthony, 1990a; Bohn & Gutman, 1989; Barker, 1986; Beckford, 1985; Delgado, 1989; Richardson, 1991; Robbins & Beckford, in press; Robbins, Shepherd, & McBride, 1985; Spear, 1979-80). Central to this litigation has been the claim that unsuspecting recruits to certain movements have been subjected to insidious processes of psychological coercion which have the effect of involuntarily transforming their identities and, moreover, effacing their capacity to rationally monitor and evaluate their continued participation in such sinister groups (Conway & Siegelman, 1978; Ofshe & Singer, 1986; Singer, 1978; Singer & West, 1980). This claim has been vigorously contested and debunked as prejudicial, unscientific or repressive by other observers (Bromley & Richardson, 1983; Robbins & Anthony, 1982; Scheflin & Opton, 1978). Through the very early 1980s most of the litigation involving alleged “brainwash- ing” in “cults” developed in connection with the enterprise of deprograming. Depro- graming is a process in which allegedly mind controlled or “programed” converts to cults are dramatically “rescued” (often abducted) and presented with arguments ~ ~~~ ~~~~ ~ ’ hrhony has served as a consulting expert TO awyers with respect to writing premd motions or appeal briefi on the issue of the admissibility of brainwashing testimony in: Molko and Leal v. Holy Spirir Association (1983, 1986, 1988); Wallashdm v. Church of Saentology of California (1986, 1989); George v. ISKCON 1988); Kropinski v. World Plan Executive Council. 1988); Jorgensen . Community Chapel (1989); and Greene and Ryanv. Maharishi m sh Yogi er ul. (1991). He served as a consulranr to the Society for the Saenrific Study of Religion for the purpose of coauthoring, wth James Richardson, an mnicuC cur brief on the admissibiliry of brainwashing resrimony in George v. ISKCON (1988). He also served as an advisor to the society for the Sciennfic Study of Religion and gave an invited presentation to the American Sociological Association wth respect to their cosponsorship of an amicus Miae brief in Molko and Leal v. Holy Spirit Associadon (1988). In addition, as noted in he text, he submimed a declaration underpenalty ofperjury in U.S. . Fishman (1990).  Brainwashing 7 against their continued participation. Such arguments usually involve allegations that converts have been brainwashed and thus that they are being held in cults against their will. Ironically, in view of the allegations of coercion in cults, such rescued converts are frequently physically confined during the deprograming process, and the methods of persuasion are sometimes harsh and confrontational (Robbins & Anthony, 1986). Through the mid-1 980s numerous law review and other scholarly papers discussed such extra-legal “vigilante” deprograming (Babbit, 1979; Grim, 1980; Pierce, 1980; Shepherd, 1985) and/or attempts to “legalize” deprograming through temporary guardianships or conservatorships granted to parents of adult devotees-the latter becoming a particularly popular topic for articles (Anthony, 1979-80; Aronin, 1982; Bromley, 1983; Delgado, 1977, 1984; LeModt, 1978; Robbins, 1985; Shapiro, 1982,1985; Shepherd, 1983). In the last decade, legal adon and scholarly commentary involving new religions has gradually shifted from the topic of deprograming to the area of civil suits. These suits are usually brought by ex-devotees claiming to have been manipulated, psycho- logically coerced, unduly inffuenced, mumatized and disoriented in cults. They demand compensation related to a variety of tort abuses, most commonly false impri- sonment, intentional infliction of emotional distress, and hud. Commentary on such acrions is accumulating Anthony, 1990a; Delgado, 1982,1989; Littell, 1989; Richardson, 1991, in press; Robbins & Beckford, in press). An even more recent trend in cult/brainwasbing litigation entails the use of claims involving brainwashing andor disorientation as the basis for insanity or diminished capacity defenses on behalf of ex-devotees accused of criminal misconduct. [Arguably this development can be traced back to the famous Patty Hearst case (Schefiin & Opton, 1978, pp. 68-85).] In such cases as well as in ex-member civil actions and deprograming cases, a key procedural issue appears to be the admissibility of expert testimony on brainwashmg and psychological coercion under the Frye rule and equivalent standards (Anthony, 199Oa; DeWitt & Richardson, 1990; Richardson, 1991, in press) . Challenging Received First Amendment Doctrines In order to understand the relationship between psychologicalllegal rationales for applying restraints on religiotherapy movements and constitutional protections of freedom of religion, it is imporcant to note that the role of deceptwn is highlighted in many of the formulations of those who argue the irrelevance of constitutional safeguards where cults are concerned (Delgado, 1977, 1982, 1984; Rosenzweig, 1979; Singer & West, 1980). In the influential formulation of Delgado (1977,1982) the basic components of voluntarhess, Knowledge and capacity are said to be manipu- lated in such a manner that the convert never simultaneously possesses both proper- ties. Competent new recruits are deceived as to the identity and nature of the group. The Frye prinaple, Frye v. United Srata (1923), holds that the theory bm which experrs make their deductions “must be sufficienty established to have gained general acceprance in the particular field in which it belongs”. As interpreted in later cases, pardcularly United States v. Amaral (1973), the standard requires tha~ our conditions be satisfied (1) a proper expert, (2) a proper subjen, (3) an application of an explanatory saen&c theory that is “generally accepted” in he scientific community some civil courts employ a lesser standard of “substantially accepted”,) and (4) greater probative than prejudicial or emotive ect See Dewin and Richardson (1990) and Richardson (1991, in press) for discussions of the Frye standard and culr/brainwashing itigation.  8 D. nthony and T. obbins By the time the veil of deception falls, the neophyte, mumatized and disoriented by sleep deprivation, bad nutrition, exhausting labor, emotional manipulation and seductive pseudosolidarity, no longer retains a capacity to rationally evaluate the desirability of further pup nvolvement. His (or her) participation is thus essentially involuntary. The combination of h m (including psychological damage) to converts and involuntariness constitutes, in Delgado’s view, a basis for some mode of state intervention (Delgado, 1977, 1982; Robbins, 1985). State intervention does not infringe upon freedom of belief, because involuntary belief is not really belief in any authentic sense, and the first amendment was never intended to protect pseudo- belief of this sort. Key early cases did not respond favorably to such arguments. In Katz v. Superior Can 1 977), temporary guardianship granted to parents of “Moonies” for the pur- pose of enforced deprograming were dismissed by an appellate court (LeMoult, 1978). In the early hearings of Molko and Leol v. Holy Spirit Association (1983, 1986), superior and appellate courts granted summary dismissal (later partly reversed) of suits by ex-‘‘Mmnies” charging false imprisonment, fraud and intenuo- nal infliction of emotional diswss. These decisions in Katz and Molko and Leal were made on received libertarian first amendment grounds. These grounds arise from well-known cases such as U.S. v. Ballard (1944) and U.S. v. Founding Church of SCKntobgy (1969). Docnines such as “The Law Knows No Heresy” were transferred from cases such as Ballard to Karz. Katz was a California case which established an influential precedent forbid- ding the use of conventional guardianship and conservatorship statutes to legalize the involuntary deprograming of persons who are not “gravely disabled”. The Katz case was much commented on Anonymous, 978; Bemick, 1978; LeMoult, 1978; Shepherd, 1983), and was cited in Molko and later cases. Thus in Karz the court suggested that when it was asked to determine whether a shift of religious belief “was induced by faith or by coercive persuasion is it not in turn investigating and questioning the validity of that faith?” (Katz pp. 987-88, quoted in LeMoult, 1978, p. 617). Religious beliefs and indocninational religious speech acts were viewed as inextricably interrelated such that questioning the authenticity qua spontaneity or consensual srcins of religious belief was deemed tantamount to questioning its validity or the wisdom of its acceptance, which is beyond the scope of legal scruMy. Religious fraud has thus been considered nonjusticiable to the degree that allegedly hudulent claims are indeed grounded in religion (Heins, 198 1). In this connection, although Justice Douglas’ majority opinion in Ballard allowed a test of the sinceriry as opposed to the validity, of challenged religious claims, Burkholder (1974) notes that the influence of the position taken by Justice Jackson in dissent, that the question of sincerity is equivalent to a question of believability (and thus of validity), increased in repute in the two decades after Ballard, such that, “the guarantee of religious freedom means for many that neither the truth or falsity of religious beliefs, nor the good or bad faith with which they are held, can become legal issues” (Burkholder, 1974, p. 33). Nevertheless, over the years and in the context of well-publicized scandals and “cult atrocities” involving such groups as Synanon, the Peoples Temple and the Bhagwan Rajneesh movement, which some have blamed on cultic brainwashing (Wooden, 1981), the view has gained ground that, in applying the first amendment, courts must take account of psychologically “coercive” conditions of “thought con-  Brainwashing 9 wl” which undercut the voluntariness of conversion processes within manipulative authoritarian cults (Ofshe & Singer, 1986; Singer & Ofshe, 1990) and should perhaps properly mitigate the constitutional protection granted to some religious “exercise” which is not trulyfiee (Delgado, 1984; see also Stander, 1987). These ideas have become particularly popular and formidable when they have been disassociated fhm the controversial “remedy” of physically coercive, confrontational processes of “deprograming” (Delgado, 1982; Rosenzweig, 1979). Arguing for “disclosure legis- lation” which would curb cultic deception and thus “represent a valid secular regula- tion of the ‘manner of recruitment’ to protect the public from bud”, Rosenzweig (1 979) maintains: The novelty which “brainwashing” poses should not prevent legislative or judicial recognition of idensable and effective methods employed to under- mine ranonal thought and critical capacities. The law as an evolving body must adapt to technical developments in psychological theory as well as those of the physical sciences. The whole of the first amendment presupposes the autonomous and independent exercise of rights exercised therein. To the extent that deception vitiates the integrity of choice, and “thought controly7 itiates autonomy, such legislation would vindicate rather than derogate the purposes underlying religious fieedom p. 158).’ It is noteworthy in this connection that the highly interdependent formulations of legal theorist Richard Delgado (see above) and clinician Margaret Singer (Ofshe & Singer, 1986; Singer, 1978, 1990; Singer & Ofshe, 1990; Singer & West, 1980) constitute an affirmation that there exists a specific psychotechnology which can involuntady rransfwm beliefs and loyalties and which can clearly be distinguished from other, less powerful, processes of social influence^.^ As such these formulations imply a sort of loophole in the first amendment. The constitutional prohibition against an inquiry into the validiry and authenticity of faith arguably does not apply if the faith in question is not voluntarily held or has been coercively imposed @el- gado, 1984). The rationale for state intervention is even stronger if there has been an endwing loss ofcapacziy, which, if both coerced and sufiiciently devastating, might even legitimate coercive deprograming (Shapiro, 1983, 1985).5 More “moderate” remedies such as compensatory civil suits (Delgado, 1982) may appear even more ’ ee Richardson 1986) for the history of a nearly successful anempt 1 enam disclosure legislation, arguably aimed primarily at the Church of Scientology and employing a “consumer proreccion” rationale, in Nevada in the mid-I 980s. ‘ he important discussion by Singer and West 1980) res Delgado’s legal theories. Singer has taaed in over 40 cases, many of them  d suits by ex-devotces developed in accordance with the Views set forth by Delgado (1 982). Analyses such as hat of Singer and Ofshe 1 990) of ‘4he production of casual- ti ” through cultic rids may be developed in part to bolster the prospects of future TOR actions on behalf of alleged victims and casualties in hearings which frequently feature testimony by Singer and Ofshe in support of plaintiffs. ’Shapiro 1983, 1989, responding 10 Delgado 1977), argues rhat only an individual’s ceasing 10 be a “person” in the sense of losing a capaciry to af6rm a belief, if coercively induced, can justify the application of involuntaxy deprograming or counterindominative counseling, given the absolute free- dom of belief. Most allegations of cdvc nd nonmnsensual beliefhdcntiy uansformation, in Shapiro’s view, actually only specify a coerave change of identiry (‘he’s become a different person”) rather &an an acrual loss of personhodcapadty. The “new person” still enjoys li-eedom of belief and the tight to refuse involuntary uearment.
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