Use Of Brainwashing Claims In Legal Cases In the United States
The foregoing critique might suggest that legal claims based on such questionable science will always fail and suffer summary judgment in the hands of an informed judiciary. (37) However, this has not always been the case. Indeed, quite to the contrary, a number of legal actions based on such claims have been allowed, and to considerable effect. Although the legal acceptance of brainwashing-based claims has waned in recent years in the United States, such cases were often successful in the past and still may be successful under certain circumstances. The following is a discussion of the history of United States brainwashing cases in both the criminal and civil areas.
Criminal Cases in the United States
In the criminal area, brainwashing claims have often been used quite overtly as a key part of the defense in cases in which deprogrammers have been charged with kidnapping. Usually these arguments have taken the form of a "choice of evils" or "necessity" defense, in which those involved in the deprogramming have claimed that leaving participants in a new religion was a worse evil than the kidnapping and rough behavior typically required to extract them forcibly from the group. (38) Such defenses, if allowed by the court, have facilitated discussions of life inside the groups, as well as of the groups' belief system. The logic seems to be based on the idea that anyone who would accept such strange beliefs or engage in such deprivations must be brainwashed and that no one in their "right mind" would ever espouse such ideas. Such defenses have often, but not always, been successful. (39)
Brainwashing claims have also been explicit in other cases, including a major case in which a federal court in California disallowed such claims. In United States v. Fishman, (40) the defendant in a mail fraud case claimed in his explication of an insanity defense that he committed the acts in question while under the influence of "thought reform," a phrase sometimes used synonymously with brainwashing. Fishman's defense was rejected in a ruling containing strong language critical of such claims and disallowing major proponents of such theories from testifying to them in the case. (41)
Other criminal cases involving such theories include those in which the prosecution has made use of implicit, if not explicit, brainwashing theories in efforts to convict major figures in some of the more controversial new religions. Two who have been convicted of tax-related offenses are the Reverend Moon, leader of the Unification Church, and Tony Alamo, leader of the Alamo Foundation. Brainwashing claims played a major role in both cases, with juries apparently accepting the popular idea that these and other controversial new religions brainwash participants. Such claims were crucial in both cases in convincing jurors that the religions were not legitimate and thus undeserving of usual protections and privileges afforded religious groups and their leaders under the tax laws of the United States. The role of such ideas was most clearly demonstrated in the Moon case, which attracted much national attention and involved a major pre-trial research project conducted by the Unification Church in an effort to determine how to best fight the charges. (42)
Civil Cases in the United States
A large number of civil actions have been filed in the United States using brainwashing theories as their major justification. (43) Usually these cases involve a former member of a group filing suit against the group for various torts, including intentional infliction of emotional distress, fraud, false imprisonment, and/or restitution. Although these or similar torts are listed as causes of action, the underlying theory in most of these cases is that the group brainwashed the person into joining the group and then used brainwashing techniques to keep them as a member. These cases are often successful, especially at the trial level, where juries seem quite susceptible to such claims. (44)
A number of multi-million dollar awards have been made to plaintiffs in these civil suits, usually with the bulk of such awards as punitive damages. Sometimes the awards are reduced by the trial judge or on appeal, but a number of them have been paid; some cases have been settled during the appeal process, and sometimes the judgment has simply been paid after appeals were exhausted.
These suits have raised serious issues of religious freedom for minority religious groups. Some have suggested that filing such suits has been a deliberate tactic of the so-called anticult movement in an attempt to drive such groups out of business. (45) This tactic became popular after it became apparent that a frontal attack seeking direct governmental action against the new religions would not be successful, in part because of difficulties arising from First Amendment protections afforded religious groups in America. (46) The apparent logic behind filing such suits was that if the groups could not be stopped directly, then perhaps they could be put out of business by taking their financial resources. This has very nearly been the case with some groups. For instance, the Hare Krishna lost a multi-million dollar judgment, forcing them to use all their property in California as security for an appeal bond. (47)
Other civil cases that make use of brainwashing theories include suits against deprogrammers for false imprisonment, violation of civil rights, or other claims associated with a deprogramming. When deprogrammers are sued in civil actions, they usually attempt something similar to the "choice of evils" or "necessity" defense used in criminal actions. In effect, they seek to put the group on trial by describing the alleged exploitation that goes on in the group, claiming that they were doing a favor for the person being deprogrammed by trying to "rescue" them. This is usually done in an effort to explain the motivations of defendants accused of kidnapping, thus avoiding the constitutional protections that might be thought to preclude such discussions of group beliefs and practices.
Such defenses have often been successful, with many jurors accepting these defenses as consistent with the preconceived ideas they bring to the jury box about so-called cults and their recruitment methods. (48) Thus, the deprogrammers usually escape any liability for their actions, which have often involved kidnapping adults off the streets and incarcerating them against their will.
However, in one recent case that has had major repercussions, these defenses were not successful. (49) This case involved deprogrammer Rick Ross as the chief defendant; (50) the well-known Cult Awareness Network ("CAN") was also listed as a defendant. A member of an evangelical Protestant group who was the target of a deprogramming sued Ross, the chief deprogrammer, and CAN, which allegedly conspired with Ross in the deprogramming. A jury found both defendants liable and awarded over five million dollars to the plaintiff. After the verdict, CAN declared bankruptcy and is now effectively out of business itself, with its assets, including its name, in the process of being sold to pay its part of the judgment. (51)
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37. Brainwashing-based cases brought in jurisdictions governed by the so-called Frye Rule (derived from the famous 1923 case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) would seem to be susceptible to summary judgment motions because such claims do not meet the 'general acceptance" rule of Frye. However, such cases often succeed despite their lack of scientific basis, although there have been some key defeats for such claims. See generally Anthony, supra note 1; Anthony & Robbins, First Amendment, supra note 1; Richardson, Freedom of Religion, supra note 1. Under recent, more rigorous, criteria established in Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993), for the acceptance of scientific evidence, brainwashing-based claim should also be excluded. For a general discussion of Daubert criteria applicable to evidence such as brainwashing claims, see James T. Richardson et al., Problems Applying Daubert to Psychological Syndrome Evidence, 79 JUDICATURE 10 (1995).
38. For brief discussions of such defenses, see Anthony & Robbins, Negligence, supra note 1; Bromley & Robbins, supra note 10; and Richardson, Legal Status of New Religions, supra note 1. See also Note, Cults, Deprogrammers and the Necessity Defense, 80 MICH. L. REV. 271, 272-74 (1981).
39. The author was involved as a rebuttal witness for the prosecution in one major case in Denver some years ago in which state kidnapping charges had been brought against deprogrammers who had kidnapped a twenty-nine-year-old member of the Unification Church and kept her for several weeks, traveling across state lines in the process. The jury, after hearing several weeks of testimony about the life and beliefs of the Church, found the defendants not guilty. The use of this type of necessity defense was appealed by the District Attorney, leading to a Colorado Court of Appeals decision precluding its use in future legal actions in Colorado. People v. Brandyberry, 812 P.2d 674 (Colo. Ct. App. 1990).
A similar decision was made by the Idaho Supreme Court, who, on interlocutory appeal, reversed a trial court's decision not to grant a motion in limine to bar a necessity defense in a criminal action against deprogrammers. State v. Howley, 920 P.2d 391 (Idaho 1996).
40. 743 F. Supp. 713 (N.D. Cal. 1990).
41. For a Mer discussion of this case by someone (Anthony) who played a major role in the case as a consultant and expert for the federal prosecution, see Anthony & Robbins, First Amendment, supra note 1.
42. See CARLTON SHERWOOD, INQUISITION: THE PERSECUTION AND PROSECUTION OF THE REVEREND SUN MYIJNG MOON (1991) (discussing why and how the case was brought, including the role played by brainwashing ideas); CONSTITUTIONAL ISSUES IN THE CASE OF REVEREND MOON (Herbert W. Richardson ed., 1984) (reprinting a number of the major amicus and appellate briefs filed in the case, including some by Larry Tribe, who handled the unsuccessful appeal); Richardson, supra note 8 (reporting that potential jurors have strong beliefs in brainwashing ideas and that the Unification Church used such methods).
43. Both the author and Dick Anthony have been involved in a number of such cases as consultants or as expert witnesses. For discussions of some of these cases, see the Richardson and Anthony articles, cited supra note 1.
44. Very few former members bring legal actions against the new religious groups, however. For alternative explanations of why people participate in new religious groups, see David G. Bromley & Anson D. Shupe, Jr., "Just a Few Years Seem Like a Lifetime". A Role Theory Approach to Participation in Religious Movements, 2 RESEARCH IN SOCIAL MOVEMENTS, CONFLICTS AND CHANGE 159 (1979); and Richardson & Kilbourne, supra note 14.
45. See James T. Richardson, Social Control of New Religions: From Brainwashing Claims to Child Sex Abuse Accusations (1993) (unpublished paper presented at annual meeting of Australian Sociological Association, Sydney) (on file with author) thereinafter Richardson, Social Control of New Religions]; see also James T. Richardson, Journalistic Bias Toward New Religious Movements in Australia, 11 J. CONTEMPT. RELIGION 289 (1996) (describing a campaign launched in Australia by anticult forces to seek plaintiffs for such suits, so, it was claimed, the American example of using these actions against the groups could be adopted in Australia).
46. Although the direct approach that attempted to get governmental agencies involved in overt control efforts was not an immediate success, in part because of First Amendment protections, over time there has been a dramatic shift toward a more "manage@" style, underpinned in part by an acceptance of brainwashing claims. See Richardson, Legal Status of New Religions, supra note 1.
47. For a detailed discussion of this case, see Richardson, Freedom of Religion, supra note 1. For a discussion of the way the case was handled and how close it came to forcing a complete cessation of Hare Krishna activities in California, see Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 FORDHAM L. REV. 883, 888-89 (1994).
48. For evidence about the influence of misinformation and biases of potential jurors on their verdicts in "cult/brainwashing" cases, see John S. DeWitt et al., Novel Scientific Evidence and Controversial Cases: A Social Psychological Examination, PSYCHOL. & L. REV. (forthcoming 1997).
49. Scott v. Ross, No. C94-0079C (W.D. Wash. 1995).
50. Ross is perhaps the best known contemporary deprogrammer in the United States.
51. This case has been appealed to the Ninth Circuit Court of Appeals, so its final disposition is not known at this time.