INTANGIBLE CAPTIVITY:

THE POTENTIAL FOR A NEW CANADIAN CRIMINAL DEFENCE OF BRAINWASHING

AND ITS IMPLICATIONS FOR THE BATTERED WOMAN

FRANCES E. CHAPMAN

A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES

IN PARTIAL FULFILMENT OF THE REQUIREMENTS

FOR THE DEGREE OF

DOCTOR OF PHILOSOPHY

GRADUATE PROGRAM IN LAW

YORK UNIVERSITY,

TORONTO, ONTARIO

SEPTEMBER 2009 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition

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1+1 Canada Intangible Captivity: The Potential for a New Canadian Criminal Defence of Brainwashing and its Implications for the Battered Woman

By Frances Elizabeth Chapman

a dissertation submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of

DOCTOR OF PHILOSOPHY

© 2009

Permission has been granted to: a) YORK UNIVERSITY LIBRARIES to lend or sell copies of this dissertation in paper, microform or electronic formats, and b) LIBRARY AND ARCHIVES CANADA to reproduce, lend, distribute, or sell copies of this dissertation anywhere in the world in microform, paper or electronic formats and to authorize or procure the reproduction, loan, distribution or sale of copies of this dissertation anywhere in the world in micro­ form, paper or electronic formats.

The author reserves other publication rights, and neither the dissertation nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission. Abstract

This dissertation explores the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I develops a working definition of the term "brainwashing" and describes the legal history of this concept, including the perspectives of experts in physiology, psychology, and social science, and the development of related scientific models. In addition, Part I examines important related issues such as hypnosis, the Stockholm

Syndrome, pertinent prisoner of war cases, Patty Hearst, and cult cases. In Part II, theoretical models stemming from these concepts are explored, particularly that of George Fletcher. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence of brainwashing through the concepts of superimposed intent, entrapment, and false confessions. Part

HI introduces the evolution of Battered Woman Syndrome as a model for this new defence, and the links between brainwashing and BWS are developed. Part IV continues with this theme with a look at brainwashing in the context of interpersonal relationships, which is expanded upon further through the examination of the cases of Janice Hooker, Karla Homolka, the Manson "Family, " and, finally,

Lee Boyd Malvo. Part V then looks at mitigation in sentencing as well as future directions for this defence, and suggests the content of potential legislation. The thesis concludes that brainwashing should be an affirmative defence as well as an element in mitigation and provides sample legislation which could be adopted.

IV Acknowledgements

I would sincerely like to acknowledge the editorial work and guidance of Jeff Horowitz, who became a real sounding-board for this dissertation, even if he did not entirely agree (or agree at all!) with my position. This thesis would not have been possible without your input and cheerleading. Thank you to James Stribopoulos who shared his frank opinions as a first hand observer of Karla Homolka's testimony. Thank you to our graduate department and support staff who answered countless questions. My love and appreciation to Bryan McCaffrey whose pride in me never faltered during this project. Thank you for listening to my uncertainty and finding time to encourage (and for not running away after the first look at my book collection on various dubious topics!). Thank you to my Mom who critically read my first thesis proposal and was so supportive even though she questioned how I could possibly believe a word of it! Thank you to my Dad who said that there might actually be something valid in this topic. To the rest of my family and friends, particularly my brother Ashley, thank you for your love and support.

September, 2009 F.E.C. Waterloo, Ontario

v Table of Contents

Abstract iv Acknowledgements v Table of Contents vi Introduction 1 Part I - Setting the Foundation a. Definition of the Term Brainwashing 11 b. A Brief History of Brainwashing 14 c. The Physiological/Social Science/Psychological Evidence 25 i. Ivan Pavlov 28 ii. William Sargant 32 iii. Kathleen Taylor 38 d. Theoretical Models 42 i. Dr. Robert Jay Lifton 42 ii. Alan W. Scheflin & Edward M. Opton 46 iii. Edgar H. Schein and Subsequent POW Theorists : 47 iv. Martin T. Orne and Dr. Louis J. West 49 v. Coercive Control Theory 51 e. Are We All Brainwashed? 52 f. Relevant Test Cases 55 i. Hypnosis 55 ii. Stockholm Syndrome 60 iii. POW Cases 61 I. Colonel Frank H. Schwable 62 iv. Patty Hearst 66 I. Background 66 II. Court Case 68 III. Implications 74 v. Cults 78 I. Successful Applications in Civil Law 86 II. Cults and Prior Fault 93 Part II - The Juridical Basis for a New Defence of Brainwashing 95 a. Choice Theory 95 b. Excuse and the and the Influence of George Fletcher 103 i. Necessity and R. v. Perka 107 ii. Normative Involuntariness and Duress 111 I. R. v. Ruzic 112 II. The Objective/Subjective Standard 119 III. Susceptibility 124 IV. Why Brainwashing Will Not Fit Within the Existing Defence of Duress 129 c. Not Criminally Responsible by Means of Mental Disorder (NCRMD) 134 d. Automatism 140 e. Unconsciousness/Diminished Capacity 145 f. An Affirmative Defence or Superimposed Intent? 145 i. Superimposed Intent 156 I. Entrapment 159

vi II. Police Interrogations 161 ii. Conclusion 166 Part III - Brainwashing and Battered Woman Syndrome (BWS) 170 a. The Battered Woman 170 i. Lenore Walker 171 ii. Learned Helplessness 175 iii. Criticism 178 iv. BWS and the Canadian Courts - Self-Defence, Duress, Diminished Responsibility NCRMD and Automatism 182 I. Prior Fault 187 II. Escape 189 v. Proper Conceputalization and Expert Evidence 192 b. Brainwashing and the Battered Spouse 197 c. "Conjugal Terrorism" 211 d. Battle Fatigue 214 e. Torture 215 f. Explanations for Why Brainwashing the Battered Woman is Effective 218 i. Stanley Milgram and Authority 218 ii. Bonding Theory 220 iii. Captivity 225 iv. Failure to Protect and Guilt 227 Part IV - Brainwashing, the Battered Spouse and Liability for Harm to Third Parties 230 a. The Battered Woman and the Third Party Victim 230 b. Examples of Battered Women Who Commit Crimes Involving a Third Party 231 c. Folie a Deux (Shared Psychotic Disorder, SPD) 238 d. Sexual Sadism 241 i. The Sexually Sadistic Criminal and His Offences 243 ii. Compliant Victims of the Sexual Sadist 254 iii. Relational Patterns Associated with Sexual Sadism: A Study of 20 Wives & Girlfriends 261 e. Brainwashing, the Victim of the Sexual Sadist, and Crimes Against Third Parties 266 f. Use of the Brainwashing Defence in Interpersonal Relationships - Case Studies 270 i. Janice Hooker 271 ii. KarlaHomolka 281 I. Homolka and Brainwashing 294 iii. Manson Family 308 iv. Lee Boyd Malvo 314 v. Would a Defence of Brainwashing be Successful in Any/All of these Case Studies?....319 Part V - Mitigation and Concluding Remarks 325 Bibliography 339

VI Introduction

Myra Hindley's dream was not to murder children. Yet, she did have dreams which all seemed

to come true when she met Ian Brady at age 21. Myra did not:

fancy her suitors, until she met Ian Brady. He stood back from the world more coolly than she . . . They were moving to the mundane beat of working-class Manchester, two anti-social souls fed up with the rules ... Up on the moors, they wove grandiose notions into the curtain they drew between themselves and the city below. Notions of power and risk, of transcending the rules. Hours spent planning bank robberies to extricate themselves from society once and for all. Joining forces, all that comes to matter is him, is her, everything else recedes in shades of gray. Freed from needing, they could invent their own codes of conduct, become Romeo and Juliet in Lord of the Flies, and play their own, private jokes upon the world.

This partnership collapsed in October 1965 when police were alerted that the couple were hiding a

corpse in their home.2 As police investigated, they found a trail of clues that lead to suitcases left at

the railway office in Manchester, and photographic and audio evidence that connected Brady and

Hindley to the missing ten-year-old Lesley Ann Downey missing since Boxing Day 1964. A search

of the nearby moors resulted in the discovery of Downey and twelve-year-old John Kilbride, in

addition to the body of seventeen-year-old Edward Evans who had been killed with an axe.4 Brady

and Hindley were charged with the three murders, found guilty, and sentenced to life imprisonment.5

Although this graphic case may seem rare, there are numerous cases of individuals who murder

within an intimate partnership. While it has been established that a partner who strikes out against her

batterer can be excused through self-defence,6 this defence is inapplicable to a partner who commits

crimes against innocent third parties. The difficulty with a potential new defence for these offenders

is, as many theorists have argued, the distinction between what should be excused and what should

1 Patricia Pearson, When She was Bad: Violent Women and the Myth of Innocence (Toronto: Random House, 1997) at 176-77 [Pearson]. 2 Colin Wilson, A Criminal History of Mankind (London: Mercury, 2005) at 26 [Wilson]. 3 Ibid. 4 Ibid. 5 Ibid. 6 See Carol Jacobsen, Kammy Mizga & Lynn D'Orio, "Battered Women, Homicide Convictions, and Sentencing: The Case for Clemency" (2007) 18 Hastings Women's Law Journal 31 [Jacobsen, Mizga & D'Orio] and in Canada see R. v. Lavallee, [1990]1 S.C.R. 852, S.C. J. No. 36 [Lavallee]. 1 not. Many have concluded that although certain acts can be excused, the "behavior that flows from

conversion is not protected."7 What excuse is available for the woman who was an accomplice or

participant in murder, sexual assault and torture who had thoughts implanted making her believe that

her actions were acceptable, or even necessary? Would Myra Hindley have a defence?

Hindley was convicted of the sex killings of three children with her psychopathic boyfriend.

By all accounts, Hindley was a relatively innocent young woman who had no history of any

wrongdoing before she met Brady. On their first date, Hindley wrote in her diary, "I hope Ian and I

will love each other all our lives and get married and be happy ever after."10 Within a short period of time Brady convinced Hindley to participate in a bank robbery, coerced her to take pornographic pictures, and eventually to take photographs kneeling (and sleeping) on the graves of the victims.11

The couple also recorded the screams of the children on audiotapes which were played in court during the course of their trial. They were ultimately caught when they enlisted the help a young man named David Smith to assist in their crimes who instead led police to the couple.1 There was a public outcry to prevent the release of Hindley up until her death in November 2002.14

Hindley was absolutely vilified for her crimes.15 As McGillivray explains "[n]o 'battering' or

'compliant victim' theory was offered for Hindley, as none existed in 1966."16 It has been noted that

7 Alan W. Scheflin & Edward M. Opton, The Mind Manipulators: A Non-Fiction Account (New York: Paddington, 1978) at 85 [Scheflin & Opton]. 8 See Pearson, supra note 1 at 178 Brady was mentally ill, and it was theorized that his schizophrenia came at the beginning of their murder spree as he believed he was being ordered by the Germans to kill. 9 Pearson, supra note 1 at 178. See Pearson, supra note 1 at 176-78 that Brady introduced Hindley to the Marquis de Sade and various Nazi texts. See also Wilson, supra note 2 at 27, where he notes that most "people who buy de Sade read him for sex; Brady read him for the ideas." 10 Wilson, supra note 2 at 27. 11 Ibid, at 28. 12 Ibid, at 29. 13 Ibid. 14 Ibid, at 30. 15 Ibid. 16 Anne McGillivray, '"A Moral Vacuity in her Which is Difficult if Not Impossible to Explain': Law, Psychiatry and the Remaking of Karla Homolka" (1998) 5 Int'l J. of the Legal Profession 255 at 277 [McGillivray]. 2 few male serial killers "attract the virulent hatred Myra Hindley does (even Brady is not so viciously

and constantly reviled)."17 The accounts of Hindley's case clearly distinguished her crimes from

Brady's as no "language existed for speaking of a woman's lust to kill - indeed one still does not

exist."18 Deborah Cameron and Elizabeth Frazer deal with this difficult issue.19 They identify that it

is Hindley who personified the evil of the couple. The authors note this difference and conclude that

it there is a double standard. They note that somehow more is expected of women and the

"disproportionate and irrational loathing with which Myra Hindley is widely regarded may be

analysed as stemming from a similar set of attitudes toward women as those which we detect in so

21

many sexual killings."

However, little is said of Brady's coercion of Hindley and the abuse she endured. Pearson cites

Lord Astor who tried to secure parole for Hindley in 1993, telling the panel that she was "a victim: a

normal human being who [went] through hell."22 Hindley was used as a lure to kidnap the young

girls, he kept detailed records of their crimes, she was relatively "innocent" when she met Brady, and

she testified that Brady "threatened] to kill family members, and [used] pornographic photos to

blackmail [her] into committing the crimes."23 Cameron and Frazer note that Hindley's coercion is

documented in the photographic images. Although Hindley was not an "unwilling victim - unlike the

unfortunate Lesley Ann Downey - she was not the subject of the photographs either ... In some of the

17 Deborah Cameron and Elizabeth Frazer, The Lust to Kill: A Feminist Investigation of Sexual Murder (Cambridge: Polity in Association with Basil Blackwell, 1987) at 25. Cameron & Frazer note, at 25, that whatever "crimes she may have committed, Myra Hindley has offended against standards of femininity and has been punished accordingly." 18 Ibid, at 145. 19 Ibid. 20 Ibid, at 147. 21 Ibid. 22 Pearson, supra note 1 at 179-80. 23 Also see Catherine Mary O'Sullivan, The Sacrifice of the Guilty: The Importance of Narrative Resonance in Understanding Criminal Justice and Media Responses to Aberrant Offenders (North York ON: Osgoode, 1996) at 305 [unpublished] [O'Sullivan]. 3 pictures she is posed to display the marks of Brady's whip on her naked body. In these pictures Myra

Hindley confirms the masculine transcendence of her sadist lover."

Dr. Rachel Pinney visited Hindley in jail and was convinced of her innocence.25 Pinney described Hindley as "framed" and "hooked," and was convinced that she had no part in the torture or murder of their victims. The case still leaves commentators no answer why an innocent young girl who loved animals could commit the worst criminal acts.27 While Hindley eventually wished to be released, Brady was labelled with a mental disorder while in prison. O'Sullivan notes that "Brady faded from view, both because psychiatrists have labelled him insane, and because he never wants to be released; Hindley came into focus and was demonised. It is her wish for eventual freedom that is taken of evidence of her 'evil' nature, and proof that she was worse than her partner. The implication

28 cast, therefore, is that at least Brady had the decency to go mad."

One account of the case is that Hindley acted completely under the control of Brady.29 However, some believe that this theory leads to the conclusion that Brady's ideas would be adopted simply because a "superior man . . . fills the otherwise empty mind of this female disciple with ideas which she accepts just because they are his, and not because of any independent assessment."30 Yet, does it have to be a choice between whether a woman is freely choosing or else entirely vacuous, with nothing in between? Is there a continuum along which to situate these vulnerable offenders?

Attitudes towards women have changed significantly since 1966, but the story of Hindley and Brady is by no means unique.

Cameron & Frazer, supra note 17 at 148 [emphasis in original]. Wilson, supra note 2 at 30. Ibid. Ibid. O'Sullivan, supra note 23 at 283 n. 55. Cameron & Frazer, supra note 17 at 145. Cameron & Frazer, supra note 17 at 145. 4 Although this thesis will examine the operation of a possible brainwashing defence and third

party victims in Canadian criminal law, there will be some time spent examining the infamous

Canadian case of Karla Homolka and Paul Bernardo. However, there are many more examples of

women who partner in this capacity, and the list of well publicized cases is horrifying.31 For example,

Carole Bundy was married to a sexual sadist, Doug Clark, in the 1970's.32 Carole was herself a sex

offender as a youth (as a peeping Tom), and eventually their "fantasies began to merge, becoming one

shared daydream of immutable outlaw power."33 Within one year they killed seven women; one

victim was beheaded. Bundy eventually killed alone finding an ex-lover and removing his head with a

"boning knife."34

Fred and Rosemary West were convicted of 10 counts of murder. It has been noted that "until

his suicide in prison in January 1995, he was the primary focus of tabloid vilification. However, with

his death, which was read as a sign that he was unable to live with himself, someone had to satisfy the

public need for vengeance. Rosemary West became that person."35 Similarly, Veronica Compton, the

girlfriend of Kenneth Bianchi (the Hillside Strangler), killed in order to distract the police from her

boyfriend; Judith Ann Neelley killed six victims with her husband Alvin; Charlene Gallego killed 10

individuals with a male partner.

Cynthia Lynn Coffman abducted and strangled two women with her lover James Gregory

Marlow; Tina Powell and Lafonda Foster shot five victims, stabbed, burned, mutilated, and ran over

victims with a car; Gwendolyn Graham and Catherine Wood were lovers at a nursing home who

suffocated 6 patients; Alton Coleman and Debra Brown killed 8; and Kosta Fotopoulos took videos

while his girlfriend Deidre Hunt shot an acquaintance four times and then planned a "hit" on

31 A full examination is beyond the scope of this thesis, but see Pearson, supra note 1 at 180-83. 32 Pearson, supra note 1 at 185. * Ibid, at 186. 34 Ibid. 35 O'Sullivan, supra note 23 at 248 n. 134. 36 See Pearson, supra note 1 at 180-83. 5 Fotopoulos's wife. Raymond Fernandez and Martha Beck murdered at least 20 women over 2 years

beginning in 1947; Nathan Leopold and Richard Loeb were lovers and killed 14-year-old Bobby

Franks in 1924 deciding that they could perpetrate the perfect murder (noting that Leopold called

Loeb "master" and referred to himself as "devoted slave").37 Whether both parties in all of these cases

were full participants or coerced subjects is something that is lost in the history of these crimes.

The goal of the criminal law is to satisfy a "collective sense" of justice.38 The Canadian criminal

justice system has attempted to separate those who are criminal from those who are excused.

However, there are examples which fall on the continuum between free choice and implanted choice.

One of these situations is the defence of "brainwashing." Although brainwashing, also called coercive

persuasion, mind control, thought control, thought reform, menticide,39 and brain warfare,40 has not

been fully recognized as a viable defence in North America,41 the use of the techniques and

psychological bases for the phenomenon have been explored for decades.42

In this dissertation I will focus on battered spouses who commit crimes against third parties

under the overwhelming influence of an abusive partner. I will explore the potential for a Canadian

See also Wilson, supra note 2 at 24-26. 38 Paul H. Robinson, "Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine" (1985) 71 Va. L. Rev. 1 at 1 [Robinson, "Causing"]. 39 See Edmund Bergler & Joost A.M. Meerloo, Justice and Injustice (New York: Grune & Stratton, 1963) at 108 [Bergler & Meerloo] who notes that menticide is a more subtle crime than genocide, which is defined as the "enforced submission and killing of the mind." Perhaps this process is not as simple as described by Bergler & Meerloo, at 110 where they note that first "the mind of the victim has to be broken down - made empty. Then the clean gramophone record has to be filled with new grooves, a new ideology. That is all!" 40 Scheflin & Opton, supra note 7 at 87. Scheflin & Opton, at 87, also note the term that is the "most pungent of all, 'mental douche." 41 For the purpose of this paper I will use the terms interchangeably. 42 Scheflin & Opton, supra note 7 at 9 note that this experimentation has been carried out by "hundreds of scientists in dozens of countries on thousands of people hundreds of thousands of times. Behavior modification, a major school of psychological thought, dominates many university psychology departments; psychosurgery has been endorsed by a national commission established to investigate its dangers; micro-miniature electronic circuits are making control of the mind through direct stimulation a real possibility; drugs to control moods and emotions have become the largest and most profitable part of the pharmaceutical industry; the techniques of brainwashing appear to have been revived with great success by numerous religious sects; [and] computer technology now makes possible monitoring (and therefore control) of intimate aspects of behaviour." 6 defence of brainwashing, including an examination of where this defence has been successful, and

unsuccessful, and its potential for use with the battered woman offender who does not currently have a

defence in Canadian criminal law. Although some view the science of brainwashing as an

unsubstantiated relic of the past, such a conclusion fails to recognize certain realities of brainwashing

which merit investigation. Indeed, these techniques may play an integral part in our lives, and in the

law. It is important to recognize that "[m]ind-manipulation techniques are not merely the pet projects

of white-coated, laboratory-housed, contract-funded intellectual recluses who fiddle with dials, pull

levers, push buttons and throw switches." 3 These were techniques designed to be used on people.

There has been relatively little research on the role of brainwashing in the context of criminal

law; indeed, little has been written on brainwashing since the cases of Patty Hearst and cult

indoctrination in the 1970's. Some, like Dr. Thomas Szasz, have questioned the basis of such a defence and claim that the entire notion of brainwashing is fallacious as one can no more "wash" another's brain "than he can make him bleed with a cutting remark" and that the term brainwashing is wrongly reserved for influences of which we disapprove. Given the current climate of religious extremism, terrorist organizations and domestic violence ,this approach is short-sighted. In fact, there are numerous examples of battered spouses who commit horrific acts which can be explained using the conceptualization of mind control. As will be discussed below, the concept has been explored as a legitimate means of defence in the United States. 5

Scheflin & Opton, supra note 7 at 11. It has also been noted that the terms reflect the process and its effect on individuals. It has been noted that "'[brainwashing' conveys the sense of something done to a person that actually eliminates his original value system and world-view. 'Menticide' emphasizes that this transformation is no voluntary conversion. 'Thought reform' distinguishes this kind of change from that produced by the gradual accretion of socializing influence (as occurs, for example, in professional training). Coercive persuasion, observes psychiatrist Willard Gaylin, is intended not simply to force 'a person to do that which you will, but rather to force him through the manipulation of his emotions to will that which you will" [emphasis in original]. See also Vanessa Merton & Robert Kinscherff, "Coercive Persuasion and the 'Culpable Mind'" (1981) 11 The Hastings Center Report 5 at 6 [Merton & Kinscherff]. 44 Thomas Szasz, "Some Call It Brainwashing" (1976) The New Republic 11 at 11 [Szasz]. 45 This recognition varies by state in the United States. 7 Brainwashing is particularly hard to classify and study because it "draws on both reason and

emotion."4 Taylor notes that it is particularly terrifying because "[b]rainwashing evokes fears of

losing self-control, of being used and dominated by another, and of losing one's very identity."47

Parallels have been drawn between those who are schizophrenic who hear "bullying inner voices"; there have also been similarities drawn to intoxication where the "target is blamed for actions which

48 were poorly controlled." Most disturbing is that control of identity is at risk as, even though the

"command to act is external," the successfully brainwashed actor may not realize the implications.49

The idea that someone could be in the command of another is a premise that the legal system is loath to accept. However, at its most fundamental, to "blame a person is to express a moral criticism, and if the person's action does not deserve criticism, blaming him is a kind of falsehood and is, to the extent the person is injured by being blamed, unjust to him."5 It is for this reason that the blameworthiness of the brainwashed actor is fundamental to our legal system and to the basis of fault itself. This is not a matter of one individual associating with the wrong people and being responsible for the fault that flows from that partnership; the coercively persuaded actor in this sense is one who has been selected, targeted, and brainwashed for use by the brainwasher in whatever criminal acts he chooses for his victim.

Part I will focus on a working definition of "brainwashing" and the historical basis of this potential defence in Canada and the United States. I will also examine the scientific basis of the defence as argued by experts in physiology, psychology and social science and the scientific models which have developed in this area. Pre-cursors to brainwashing, including hypnosis and "Stockholm

Kathleen Taylor, Brainwashing: The Science of Thought Control (Oxford; Oxford U.P. 2004) at 98 [ Taylor]. "'Ibid. "Ibid "Ibid 50 S. H. Kadish, "Excusing Crime" (1987) 75 Calif. L. Rev. 257 at 264 [Kadish]. 8 Syndrome" will be examined, and I will then note the relevant test cases by exploring prisoner of war cases, the trial of Patty Hearst, and cult cases. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory, and the established defences of necessity, duress, automatism, and diminished capacity in addition to the possibility of an affirmative defence of brainwashing through the newer concepts of superimposed intent, entrapment and false confessions.

Part III will explore the evolution of Battered Woman Syndrome as a model for the new defence. The reason that Battered Woman Syndrome is important for this analysis is that it provides a scenario which is most analogous to the situation of an individual in a coercive environment who commits an anti-social act. Traditionally, in Battered Woman Syndrome the violence is directed toward the aggressor, while in brainwashing (for the purpose of this dissertation) it will target third parties. Part

IV will examine brainwashing and the battered spouse which extends the analysis to interpersonal relationships. This part concludes by analyzing the case studies of Janice Hooker, Karla Homolka, the

Manson "Family," and finally Lee Boyd Malvo. Part V will look at mitigation in sentencing as well as future directions. Finally, a proposed section of the Criminal Code is presented as a starting point towards the defence of brainwashing.

As has been noted by Richard Delgado, it is important to recognize how the "legal system should treat the coercively persuaded criminal defendant."52 I submit that there is a subset of offenders who are forced to commit crimes under the overwhelming influence of their partner and who currently face condemnation by the criminal justice system. This group of offenders needs a defence of brainwashing in order to be dealt with fairly in the legal system especially given the reality of increasing coercive pressure in diverse spheres of society. Even though the science of brainwashing is

Dee L.R. Graham, Loving to Survive: Sexual Terror, Men's Violence, and Women's Lives (New York: New York University Press, 1994) at 1 {Graham]. 52 Richard Delgado, "Ascription of Criminal States of Mind: Toward a Defense Theory for the Coercively Persuaded ("Brainwashed") Defendant" in Michael Louis Corrado ed., Justification and Excuse in the Criminal Law, A Collection of Essays (New York: Garland, 1994) 1 at 6 [Delgado, "Ascription"]. 9 under development, sufficient understanding and knowledge exist to establish criteria for a

rudimentary defence. A section in the Criminal Code might be developed as follows:

Brainwashing - A person who commits an offence under brainwashing is excused if: 1) There is a forcible and/or violent indoctrination53 which is enforced through: a. Prolonged confinement; and/or b. Physiological depletion; and/or c. Deliberate manipulation of: i. Guilt; and/or ii. Terror; and/or iii. Anxiety; d. The state is imposed on the individual rather than by self-induced or consciously selected means; and e. There is a change in the individual's behaviour to the point of change in identity; and f. There is an abandonment of previous beliefs and an adoption and/or an implantation of new beliefs; and g. The new beliefs are foreign to the brainwashee; and h. The brainwashee keeps these beliefs until removed from the control of the indoctrinator for a significant period of time54; and

2) The brainwashee is not knowingly a party to a conspiracy or an association which is commonly known to be subject to compulsion; and 3) There is proportionality between the severity of crime committed and the threat made.

For a definition of indoctrination I adopt the definition of Delgado, discussed below, Delgado, "Ascription", supra note 52 at 1, as the "forcible indoctrination process designed to induce the subject to abandon existing political, religious, or social beliefs in favour of a rigid system imposed by the indoctrinator." 54 The party must be seen to "snap back" after some, potentially lengthy, period of time. Similarly, the proportionality provision, although technically inapplicable to a brainwashing defence, would likely be considered by the courts as it is in the duress defence. 10 Part I - Setting the Foundation

a. Definition of the Term Brainwashing

The term "brainwashing" is problematic because there is no "specific magic process called

'brainwashing.' Rather, the term is a collective one, shorthand for a set of specific social

psychological processes, some or all of which may be operative when 'mindcraft' is employed to

influence a person or persons."55 There are semantic and practical problems associated with studying

this phenomenon since brainwashing has never really had an agreed upon scientific technical

definition, even though it is a recognized medical term, as discussed below. It has been noted that:

[i]n common parlance, the term has a broader connotation encompassing any attempt at persuasion or influence which is disapproved of by someone. The more technical definition, however, properly focuses upon the process of ideological conversion. Brainwashing exists only when a person has been compelled to believe subjectively a set of principles originally alien to him. Furthermore, the means used to accomplish this change must have been aggressive or violent.

This very broad definition is preferable to the more simplistic concept "characterized in wholly negative terms as a kind of mental rape: it is forced upon the victim by an attacker whose intention is to destroy the victim's faith in former beliefs, to wipe the slate clean so that new beliefs may be adopted."57 This annihilation of beliefs is far too broad and instead the term needs to be understood to include force with prolonged indoctrination in which the subject gives up "political, social, or religious beliefs and attitudes and to accept contrasting regimented ideas."58

Taylor, supra note 46 at 94. See Eugene Kinkead, In Every War but One (New York: Norton, 1959) at 32 [Kinkead] who notes that in "society, when we face a phenomenon that we do not completely understand, we are apt to give it a name that indicates there is something magical, something beyond the reach of man's powers of comprehension . . . [some say] 'you can remove a man's brain and wash out what's in it, and wash into it whatever you want, the way you manage tape on a tape recorder!' The terrible implications of the term itself undermine the will of some people to resist. This is foolish. If only we can get to the point where we really understand indoctrination, we will have taken a long step forward in defeating it." 56 Scheflin & Opton, supra note 7 at 86 [emphasis in original]. See Part I below questioning whether everyone is brainwashed. 57 Taylor, supra note 46 at 4. 58 Ida-Gaye Warburton, "The Commandeering of Free Will: Brainwashing as a Legitimate Defense" (2003) 16 Cap. Def. J. 73 at 76 n. 24 [Warburton]. Also note Robert Jay Lifton, Thought Reform and the 11 Because a complex term such as "brainwashing" has remained vague, "such a malleable concept

can only arouse fear, contempt or confusion. According to one's definition of the word, one believes

the concept or does not.59 Further, many scientists and theorists avoid the term brainwashing because

of "a widespread public emotional response and misuse of the term . . . and because by glib repetition

in many contexts it has lost all semblance of its original narrow meaning." Some have said that:

behind the web of semantic (and more than semantic) confusion lies an image of 'brainwashing' as an all powerful, irresistible, unfathomable, and magical method of achieving total control over the human mind. It is of course none of these things, and this loose usage makes the word a rallying point for fear, resentment, urges toward submission, justification for failure, irresponsible accusation, and for a wide gamut of emotional extremism . . . .one may even be tempted to forget about the whole subject and return to more constructive pursuits. Yet to do so would be to overlook one of the major problems of our era - that of the psychology and the ethics of directed attempts at changing human beings. For despite the vicissitudes of brainwashing, the process which gave rise to the name is very much a reality.61

Brainwashing currently appears in the DSM-IV-TR diagnostic manual under section 300.15,

Dissociative Disorder not Otherwise Specified. Brainwashing is not new to the DSM as "[fjhought

reform and its synonyms brainwashing and coercive persuasion were also noted in DSM-III and [in]

DSM-III revised (1987), as well as in widely recognized medical texts."63 Thus, a term which is much

criticized has been included in this text for several decades. This is a category of disorders

characterized by "disruption in the usually integrated functions of consciousness, memory, identity, or

perception of the environment" including category 3 which includes "[sjtates of dissociation that

occur in individuals who have been subjected to periods of prolonged and intense coercive persuasion

Psychology ofTotalism: A Study of 'Brainwashing' in China (New York: Norton, 1961) at 15 [Lifton] who notes that brainwashing was not viewed by all as negative thing. Lifton notes that "it is most important to realize that what we see as a set of coercive maneuvers [sic], the Chinese Communists view as a morally uplifting, harmonizing, and scientifically therapeutic experience." 59 Denise Winn, The Manipulated Mind: Brainwashing, Conditioning and Indoctrination (London: Octagon Press, 2000) at 4 [Winn]. 60 Delgado, "Ascription", supra note 52 at 1. 61 Lifton, supra note 58 at 4. 62 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000, Text Revision) [DSM-IV-TR]. 63 Margaret Thaler Singer, "Thought Reform Exists: Organized, Programmatic Influence" (1994) 11 The Cult Observer 3 at 3 [Singer, "Thought"]. 12 (e.g., brainwashing, thought reform, or indoctrination while captive.)" However, it is also important to remember that brainwashing is mentioned as an exemplar of coercive persuasion relegated to parentheses of one of the elements for the diagnoses of a Dissociative Disorder not Otherwise

Specified. There are other elements that must be satisfied for the diagnosis to be substantiated, but these are not further defined, which points to a potential lack of empirical foundation.

While the term "brainwashing" has so many negative connotations and stereotypes, there is good reason for choosing it over other related terms. FBI theorists are most recently using the term

"coercive persuasion," the term which was applied to Karla Homolka (a case study discussed below); it seems to have much less of the stigma despite the fact that it describes precisely the same phenomenon. The term is very problematic and riddled with stereotypes, but for the purposes of this dissertation, the historic term is used in order to reclaim this specific word which entered the discourse and seeped into North American homes in the 1950's. It is the term "brainwashing" that is used in the

DSM, and therefore it is that term, as a recognized medical term of reference, which is most appropriate. This term speaks to a fundamental change in character complete with implanted beliefs and choices, unlike traditional legal concepts like duress where the individual is freed from that coercion as soon as they are out of the control of the person exerting duress. Brainwashing in this context takes substantial intervention to allow the victim to recall their former beliefs. I adopt Richard

Delgado's definition that brainwashing is the "forcible indoctrination process designed to induce the subject to abandon existing political, religious, or social beliefs in favour of a rigid system imposed by the indoctrinator."65 This type of violent conversion to a thought process foreign to the brainwashee's values and principles is most relevant to that experienced by the battered woman. Thus, any definition of brainwashing must include the following unique elements:

1 .A forcible or violent element; and

64 DSM-IV-TR, supra note 62 at section 300.15 (3). 65 Delgado, "Ascription", supra note 52 at 1. 13 2. An abandonment of previous beliefs and an adoption and/or an implantation of new beliefs (recognizing that there is a continuum between adopting and implanting which is done in either a passive or active way); and 3.New beliefs that are foreign to the brainwashee; and 4. The brainwashee keeps these beliefs until removed from the presence of the indoctrinator for a significant period of time.

b. A Brief History of Brainwashing

It is difficult for some to conceptualize, but mind control has been accepted by a wide range of

professions even though the term reminds many of a CIA conspiracy or the Manchurian Candidate.66

What remains is a "fractured" approach by scientists to brainwashing. The complexity of studying this phenomenon is great because it concerns intangible and immeasurable concepts like free will.

Data cannot be easily collected and dissected; the only basis is the overwhelming evidence of POW's who experienced a similar set of occurrences.68 Even with this evidence there is struggle to define and study the free will involved in brainwashing.

We still understand very little of the coercively persuaded individual, but from recordable history onwards, humans have tried to control the destiny of others by depriving them of liberty and forcing them to obey.69 The uses of these techniques are as old as the use of coercion itself.70 Some have theorized that coercion techniques originated with the Russians, but Rogge notes that, "the Russian

B. Marie Brady, "America in Crisis: Mind Control/Ritual Trauma/Battered Woman Syndrome and Family Violence" (2000) 92 J. Fam. and Consumer Sciences 17 at 18 [Brady]. 67 Warburton, supra note 58 at 80. 68 Ibid, at 79. 69 Jose M.R. Delgado, Physical Control of the Mind: Toward a Psychocivilized Society (New York: Harper Colophon Books, 1971) at 219 [Jose Delgado]. See also Jorgen, Christiansen, The History of Mind Control from Ancient Times Until Now (Turtledove Book Company, 1999) [Christiansen]. 70 See Taylor, supra note 46 at 13 notes the case of Thomas Cranmer in 1553 who was sent to the tower of London by Queen Mary where he was held until he would publicly recant his own religious beliefs and endorse Catholicism. Cranmer was subjected to months of psychological torture, and Taylor notes, at 14, that many of the techniques examined in modern brainwashing were already present. She notes, at 14, that he had been subjected to "uncertainty as a psychological weapon; exposure to a group of people with the beliefs to which the victim is to be converted; removing the victim form his or her former environment and from any chance to reinforce old beliefs by, for example, talking to friends; the threat of death, severe physical pain, or both; loneliness, lack of privacy, and the sense of being unable to control one's fate - all these were used quite deliberately by the priest in charge of Thomas Cranmer. 14 communists did not invent the inquisitional technique either : they inherited it from the Czars. The

Czars likewise did not invent it: they adapted it from the French; and the French in turn borrowed it

from the Church. The origin of the inquisitional technique goes back more than 700 years to some

decretals of [Pope] Innocent II ... it was the inquisitional technique made more relentless by the

power of an authoritarian state that the Chinese people described as brainwashing." Similarly,

Sargant notes that any study of brainwashing would naturally begin with the Puritans in the United

States after 1730. He notes that the "physiological mechanics seem the same, and the beliefs and

behaviour patterns implanted . . . [which] have not been surpassed for rigidity and intolerance even in

Stalinist times in the U.S.S.R."73

The first formal recognition of the phenomenon of brainwashing in the modern political forum was in Stalin's Moscow "show trials" in 1936-1938 in which Bolsheviks confessed to "utterly fantastic crimes that they couldn't possibly have committed - and even seemed to have willingly adopted their prosecutors' view of them as scum."7 Several million people were slaughtered for fictitious crimes causing alarm that conversion to this extent was possible.75 Similarly, some have noted the brainwashing of Nazi soldiers during WWII, the attempt to indoctrinate through the Nazi

Youth, and the ability to turn these soldiers into killing machines. Even though the term was not coined until the 1950's, the principles and "Pavlovian theory"7 were effectively used by the Nazis in

71 Joseph Stalin famously said in the 1930's that Russian writers must become "engineers of human souls." See Helen Rappaport, Joseph Stalin: A Biographical Companion (Santa Barbara, Calif.: ABC-CLIO, 1999) [Rappaport]. 72 John Oetje Rogge, Why Men Confess (New York: DaCapo Press, 1959) at 23-24 [Rogge]. 73 William Sargant, Battle for the Mind: A Physiology of Conversion and Brainwashing (London: Heinemann, 1957) at 31 [Sargant, Battle]. Sargant is quick to note, "[w]e are not here concerned with the truth or falsity of their fundamentalist and Calvinist beliefs; this book is concerned only with the physiology of conversion and thought control." 4 Winn, supra note 59 at 6. 75 Scheflin & Opton, supra note 7 at 14. 76 Joost A.M. Meerloo, The Rape of the Mind: The Psychology of Thought Control, Menticide, and Brainwashing (New York: Grosset & Dunlap, 1956) at 38 [Meerloo, Rape] describing the conditioning observed by Ivan Petrovich Pavlov where a dogs mouth would salivate when he conditioned this response in reaction to food but eventually he would get this reaction without food as the dog had been 15 what they termed "Gleichschaltung" or a "levelling of the mind" which Dr. Joost Meerloo calls "stock

in trade of totalitarian countries."77 Meerloo also notes, however, that mental conditions must be

enforced to rob the victim of their "alert consciousness and mental awareness" instilling instead

"[fjeelings of terror, feelings of fear and hopelessness, of being alone, of standing with one's back to

the wall."78 Wilson cites the Nazi massacre in the French village of Oradour-sur-Glane in June 1944

by the SS. He notes that:

in reprisal for Resistance activity in the area, the Germans rounded up all the inhabitants and made them go to the market place. The women and children were herded into the village church ... the Germans were laughing and joking, and playing with the babies. Then, at a signal from a captain, the soldiers in the square opened fire on the men and massacred them all. The church was set on fire and the women and children burned alive . . . [One] who described the massacre remarked, 'I am convinced that these Elite Guards did not feel the slightest shade of hatred against the French children when they held them in their arms. I am equally convinced that, if a counter order had arrived they would have continued to play Daddy.'79

The Nazi regime was effective in eliciting full control of their soldiers, evidenced by

experiences such as these.

"Confessions" were also made by some high profile individuals after WWII. The most cited

example of brainwashing at this time involved Cardinal Jozef Mindszenty of Hungary who was

arrested in December 1948 for plotting against the Communist government as well as "spying, treason, and black-market dealings in currency."81 It is widely suspected that the written confessions

"'conditioned' to respond to the ringing of the bell as if that sound were the smell and taste of food." Meerloo comments, at 41, that the "machinery of the mind taught us how all the animals - including man - learn adjustment to existing limitations through linking the signs and signals of life to body reactions. The mind creates a relationship between repeated simultaneous occurrences, and the body reacts to the connections the mind forms. Thus the bell, rung each time the dog was fed, because a signal to the animal to prepare for digestion, and the animal began to salivate." 77 Meerloo, Rape, supra note 76 at 49. 1%lbid. 79 Wilson, supra note 2 at 38-39. 80 This type of obedience may not be particular to the Nazi soldier, but to the military model broadly. 81 Charles A. Brownfield, The Brain Benders: A Study of the Effects of Isolation (New York: Exposition Press, 1972) at 4 [Brownfield]. 16 of Mindszenty were made under torture. However, when brought to a public trial in February 1949,

he confessed to being an American spy, a criminal, and a host of other illegal activities.83 The most

shocking part was that "he seemingly confessed of his own volition, making no protestations of his

innocence and co-operating fully with his accusers."84 History has shown that Mindszenty was

tortured into submission to the extent that thoughts may have been implanted.85 It has been noted

that the "non-communist Western world, astounded, sought credible explanations."86 Many

questioned how a powerful, educated figure could be transformed to confess falsely to such crimes.

There were numerous other "trials" which speak to what we know as "brainwashing" in the 1950's:

Soviet purges of the 1930's, the enlistment of German POW's for Soviet propaganda, the East European 'show trials' involving both Communist and anti-Communist notables, the 'germ warfare' trials in Japanese military prisoners, followed in fairly short order by the 'germ warfare' confessions of Americans captured during the Korean War and the 'espionage' confessions by Western civilians who were imprisoned by the Chinese Communists at about the same time. 7

The recognition of brainwashing slowly developed at this point in time until it was formally identified

go

by Edward Hunter, an American journalist and CIA operative, in 1951. Hunter was a pivotal figure

in the history of brainwashing as he was the first to publish the term which was coined in his article,

"Brainwashing Tactics Forced Chinese Into Ranks of Communist Party," published in the Miami

See Dominic Streatfeild, Brainwash: The Secret History of Mind Control (London: Hodder & Stoughton, 2006) at 339 [Streatfeild]. It has been noted that his written statement contained the initials "CF." Mindszenty told his captors that this was for uCardinalis Foraneus" or his rank in the church. Researchers believe that the CF stood for the Latin term "coactusfecf or "made under torture." 83 Kenneth J. Reeves, The Trial of Patty Hearst (California: Great Fidelity, 1976) at 251 [Reeves] in the testimony of Dr. Joloyn West. 84 Brownfield, supra note 81 at 4. 85 Scheflin & Opton, supra note 7 at 88. 86 Brownfield, supra note 81 at 4. Brownfield notes, at 5, that "[observers at the Cardinal's trial pointed out that he had appeared haggard, and that his behavior was strange, as if he had been subjected to some kind of torture, drugs, or possibly hypnosis." 87 Edgar H. Schein, "Brainwashing and Totalitarianism in Modern Society" (1959) 11 World Politics 430 at 553 [Schein, "Totalitarianism"]. 88 1902-1978, Garth S. Jowett, "Brainwashing: The Korean POW Controversy and the Origins of a Myth" in Garth S. Jowett & Victoria O'Donnell Readings in Propaganda and Persuasion (Thousand Oaks, CA: Sage, 2006) at 202 [Jowett]. 17 Daily News in September 1951. Hunter translated the Chinese colloquialism "hsi nao" (literally

"wash brain.")90 This was a term used by Chinese informants to describe the Communist takeover,91

and their program of re-education called "szu-hsiang kai-tsao (variously translated as 'ideological

remolding,' 'ideological reform,' or 'thought reform.')" Hunter described how he first heard this

term in China while interviewing a young man about his experiences. During his testimony at the Un-

American Activities Committee in 1958, Hunter described that he had been interviewing this young

man when he:

used the phrase 'his nao' or 'wash brain.' I immediately stopped him, asking what he meant. He laughed and said, 'Oh, that's nothing; it's only something we say . . . When somebody said something the Peiping Government wouldn't like, a relative or friend was liable to say to him, 'Watch out, you'll get your brains washed.' That was the first time I heard the world 'brainwashing' . . . That word and its connotation . . .was like a streak of lightening, clarifying the pattern of which I had already discerned its shadows ... to make people react in a way determined by a central authority, exactly as bees in a hive.

In his testimony before the Committee, Hunter himself testified to his long history as a journalist and

"expert" on brainwashing. Hunter claimed that "[w]ar has changed its form. The Communists have

Scheflin & Opton, supra note 7 at 86. 90 Ibid, at 86. 91 Edward Hunter, Brain-washing in Red China; The Calculated Destruction of Men's Minds (New York: Vanguard Press, 1951) [Hunter, Brain-washing, 1951]. Term first appearing in the Miami News in September 1950, see Winn, supra note 59 at 1. 92 Donald T. Lunde & Thomas E. Wilson, "Brainwashing as a Defense to Criminal Liability: Patty Hearst Revisited" (1977) 13 Criminal Law Bulletin 314 at 343 n. 6 [Lunde & Wilson]. See also Scheflin & Opton, supra note 7 at 86. Hunter said in Edward Hunter, Brain-washing in Red China; The Calculated Destruction of Men's Minds (New York: Vanguard Press, 1971) [Hunter, Brain-washing, 1971] at 329 that "[fjhere can be no greater mission for any man than to prevent this [brainwashing.] 93 U.S., Committee on Un-American Activities, House of Representatives, 85th Cong. (1958) (in consultation with Edward Hunter: Author and Foreign Correspondent) at 14 [Un-American]. See, incidentally, Sarah Everts, "Bee Brainwashing: Queen's Pheromone Quashes Negative Memory Formation in Young Worker Bees" (2007) 85 Chemical & Engineering News 8 [Everts]. The researchers noted, at 8, that "[u]sing chemicals to prevent someone from forging bad memories smacks of brainwashing, but this is precisely what a queen bee does to the young worker bees that tend to her . . . [researchers] found that when young bees were exposed to HVA [Homovanillyl alcohol], they were incapable of learning to associate a nasty experience with a smell, a process that neurobiologists call aversive learning. HVA did not prevent the association of a good experience with a smell, so-called appetitive learning." 94 Un-American, supra note 93 at 5-7. Hunter notes his history as a journalist and editor in the United States, France, Japan, China, Ethiopia, Spain, Germany, before returning to New York just before the outbreak of World War II. Hunter notes, at 6, that he joined the OSS and became a "propaganda specialist" 18 discovered that a man killed by a bullet is useless. He can dig no coal. They have discovered that a

demolished city is useless. Its mills produce no cloth. The objective of Communist warfare is to

capture intact the minds of the people and their possessions, so they can be put to use. This is the

modern conception of slavery." 5

Hunter wrote prosaically about the use of the Soviet brainwashing machine using what he called

the "New Soviet Man" where the individual becomes a "living puppet - a human robot - without the

atrocity being visible from the outside. The aim is to create a mechanism in flesh and blood, with new

beliefs and new thought processes inserted into a captive body. What that amounts to is the search for

a slave race that, unlike the slaves of olden times, can be trusted never to revolt, always to be

amenable to orders, like an insect to its instincts. The intent is to atomize humanity."96 Hunter

explained the hold on those within the grasp of brainwashing saying that there was a "bizarre - and

passionate - disloyalty even after they were free of the Communists' grip."97 Hunter described more

of his interactions with those who had been brainwashed, noting their speech "seemed impressed on a

disc that had to be played from start to finish, without modification or halt. . . even when it had been

rendered silly. For example, he spoke of no force being applied to him even after someone already

had pointed out that he had been seen in shackles . . . [He] appeared no longer capable of using free

will or adapting himself to a situation for which he had been uninstructed.98 This alarmist view was

designed to shock western observers, and did so effectively.99

with a focus on China, Burma and India. Further details of his long career can be found in this testimony at 5-7. It can be argued that this committee itself is a study in a form of brainwashing. 95 Un-American, supra note 93 at 7. 96 Edward Hunter, Brainwashing: The True and Terrible Story of the Men Who Endured and Defied The Most Diabolical Red Torture (New York: Pyramid, 1956) at 285 [Hunter, "Terrible Story"]. 97 Taylor, supra note 46 at 3. 98 Hunter, "Terrible Story", supra note 96 at 14-15. 99 Taylor, supra note 46 at 67. Hunter aptly noted that what he witnessed with the Chinese was like the "most advanced mental hospital [but] its staff of psychiatrists had stopped treating the insane and had begun treating only the sane, without changing the treatment." 19 Hunter testified before the Committee that "[s]ince man began, he has tried to influence other

men or women to his way of thinking. There have always been these forms of pressure to change

attitudes . . . We discovered in the past thirty years, a technique to influence, by clinical, hospital

procedures, the thinking processes of human beings."100 Hunter went on to say that this process was

comprised of many elements, none of which alone was sufficient.101 The effect that brainwashing

could have on the United States was commented on in the synopsis of the House Committee saying

that "Communist psychological warfare is now winning such extensive victories in the United States

that the red bloc will not need to employ direct military force against us in order to win the total war

which they are waging."102 These comments were suitably inflammatory to raise grave concern at the

highest levels of government.1

As it is now, the media was hugely influential during the 1950's and 1960's. Many of the statistics

on soldiers who were captured and killed in Korea seem to have come from a New York Times

"newspaper dispatch" from January 6, 1957, as was quoted by Edward Hunter in his testimony saying:

[n]ever before in history had so many captured Americans gone to the aid of the enemy. For 2 years the services studied the records of the prisoners. What they found was not pretty. A total of 7,190 Americans were captured . '. . In every war in American history some men have managed to escape. Korea was the exception. Roughly 1 of every 3 American prisoners collaborated with the Communists in some way, either as informers or as propagandists. In the 20 prison camps, 2,730 of the 7,190 Americans died, the highest mortality rate among prisoners in United States history. Many of them died unnecessarily . . . For the first time in history Americans - 21 of them - swallowed the enemy's propaganda line and declined to return to their own people.104

100 Un-American, supra note 93 at 12. 101 Ibid, at 15. Hunter said that "[n]o one of these elements alone can be regarded as brainwashing, any more than an apple can be called apple pie. Other ingredients have to be added, and a cooking process gone through. So it is in brainwashing with indoctrination or atrocities, or any other single ingredient." 102/tod at 1. 103 Taylor, supra note 46 at ix. Taylor has noted, at ix, that "it is clear that the term brainwashing has "dubious, even seedy, associations. Like consciousness and emotion, until recently it has been considered unworthy of scientific attention, the product of deranged conspiracy theorists or, at best, peculiar political circumstances. But brainwashing is much, much more than that. At its heart is a malignant idea, the dream of totally controlling a human mind, which affects all of us one way or another. Brainwashing is the ultimate invasion of privacy: it seeks to control not only how people act but what they think. It arouses our deepest fears, threatening the loss of freedom and even identity. Yet we know remarkably little about it." 104 Un-American, supra note 93 at 15. 20 Later researchers note that the "spectre of brainwashing hung over the assessment of the behavior of

all American' POWs in the conflict." 5 What was most disturbing was a continued series of reports

that the great majority of the American prisoners had in some way collaborated with their captors.

News sources during the war reported that there was "not a single successful escape attempt from a

North Korean prison camp . . . and the high death rate among POW's" which could only be explained

through brainwashing.106 Subsequent theorists have noted that these "statistics" were not entirely

accurate. Those who have investigated the literature on the supposed ability of the North Koreans to

"brainwash" American soldiers and have concluded that the Koreans "did not possess any new ultra

sophisticated techniques of mind conditioning; their methods were merely a combination of old and

new indoctrination and interrogation practices." I07 Few have experienced the complete erasure of

political beliefs followed by the implantation of foreign ideology. However, this was the

sensationalistic paradigm presented by the media to North Americans.

Public perceptions shaped by the "press which shifted away from sympathy for the POWs to one

of suspicion and condemnation." 09 It was reported that "13% of returning U.S. POWs were subjected

Jowett, supra note 88 at 204. 106 Lunde & Wilson, supra note 92 at 344-45. Lunde & Wilson state, supra note 92 at 345 n. 17, that statistics at the time reported that one third of American prisoners was guilty of "collaboration" with the enemy, the reality was that only fourteen men had a court-martial hearing, and only eleven were convicted of collaboration with the enemy." 107 Ibid, at 347. 108 Ibid, at 347. 109 Jowett, supra note 88 at 204. Accurate statistics are difficult to ascertain. Scheflin & Opton, supra note 7 at 89 note that "[statistics demonstrate that the Korean's brainwashing, was not effective. About 3,500 American soldiers survived the 'death marches' after their capture. Fewer than fifty collaborated on propaganda statements for the Koreans. Fewer than twenty-five refused repatriation. Fewer than ten have failed to return home. These numbers do not add up to persuasive case that the Communists developed a method to control the mind. Indeed, if anything, they prove the reverse. In the Civil War, for example, about 2 percent of the Union soldiers captured by the South enlisted in the Confederacy. The North enrolled about 1 percent of its Rebel captives. Dr. Harold G. Wolff, a prominent student of the brainwashing phenomenon and a major researcher on this subject for the CIA, has concluded that the figures for conversion to the enemy are reasonably consistent across all wars. "The behavior of American prisoners of war," Dr. Wolff wrote, "was in general not very different from that of other men in other 21 to investigation on charges of collaboration; however, of the 565 cases, only 57 men were found

guilty. Nonetheless, this did not stop the growing belief that collaboration had been widespread."110

Even though there was little doubt that these POWs had been subject to a great deal of mental and

physical manipulation, there was a great deal of public disapproval.111 Major William Mayer was

assigned to study the cases of American POWs who were coerced by the Koreans during the war and

found that Americans were deficient in preparation. Similarly, Schein notes the change over time

of the recollection of events in Korea. He notes a report in the New York Times in which the emphasis

shifted from the "Communist atrocities and brainwashing to emphasis on the moral 'collapse' of the

POW group and the weakness of our society implied thereby ... to a position of all but discounting

the role of fear, threat, and physical pressures in eliciting collaboration."113 These findings led

President Eisenhower to produce a "Code of Conduct for Members of the Armed Forces of the United

States"ni which sought to state clearly that American soldiers were not to collaborate with the

enemy.115 Interestingly, even after his remarks about American soldiers during the Korean war,

armies and places, but was obviously made to appear much worse by the enemy's propaganda devices and our own initial ineptitude in countering enemy propaganda." 110 Jowett, supra note 88 at 204. 111 Ibid. Jowett notes, supra note 88 at 208, that what was of interest to "social scientists and psychiatrists regarding the effectiveness of the brainwashing was that it was culture specific to the American prisoners of war." He notes that there were prisoners from other countries who seemed less affected by the techniques of persuasion. Jowett notes, at 208, that the "most famous of these groups were the several hundred Turkish soldiers imprisoned under very similar conditions and who survived almost to a man. The Turks maintained military and self-discipline, as well as a strong sense of cultural coherence . . . Eventually, the Chinese simply gave up on any indoctrination activities for the Turkish soldiers. Even the British soldiers, who one would image had similar values to the Americans, were not as deeply affected, with only one British soldier refusing to be repatriated at the conclusion of the conflict." 112 Major William Mayer, U.S. Army psychiatrist, cited by Jowett, supra note 88 at 208 who noted that the American soldiers lacked in "self discipline; in general education, particularly about the operation of a democracy and the multi-cultural role of the world; and in military preparedness — while good on weapons and tactics and so on, they were weak on the psychological and moral side of war." 113 Schein, "Totalitarianism", supra note 87 at 435. 1'" Jowett, supra note 88 at 209. 115 The text of this document, cited by Jowett, supra note 88 at 209, says that: I. I am an American fighting man. I serve in the forces which got my country and our way of life. I am prepared to give my life in their defense. 22 Hunter did testify that "[o]f course every man has a breaking point, has always had, and will always

have."116

More questions arose concerning the acceptance of the concept of brainwashing. Biographies

note that Hunter was an employee of the CIA at the time of the publication of his books. The authors

note that Hunter "joined the CIA at its inception, having formerly been a 'propaganda specialist' with

the OSS. In addition to his journalistic accomplishments, Hunter has also served as a 'psychological

warfare specialist in the Pentagon' and a consultant for various Congressional committees. The facts

surrounding Hunter's work strongly suggest that his popularization of the brainwashing concept was a

part of his job."1 7 Hunter's work itself has been called propaganda. Taylor notes that Hunter's two

118

books are "themselves fine pieces of propaganda, emphasize the deliberate, mechanistic malice of

the Communist enemy."119 However, what is known for sure is that through Hunter's prose,

II. I will never surrender of my own free will. If in command I will never surrender my men while they have the means to resist. III. If I am captive I will continue to resist by all means available. I'll make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy. IV. If I become a prisoner of war I will keep faith of my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I'm senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way. V. When questioned, should I become a prisoner of war, I am bound to give only name, rank, serve this number, and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their course. VI. I will never forget that I am an American fighting man, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America. 1 Un-American, supra note 93 at 23. 117 Scheflin & Opton, supra note 7 at 226. Scheflin & Opton also note, at 227, that Hunter "possessed another quality ... he was an ardent anti-Communist who supported Chiang Kai-Shek and the Kuomintang regime." In his Congressional testimony in 1959, Hunter noted, Un-American, supra note 93 at 7, that the "United States is the main battle field in this Red war. I mean specifically the people and soil and the resources of the United States." 118 Hunter eventually published several books on the topic including: Edward Hunter, Brainwashing: From Pavlov to Powers (Linden, NJ: Bookmailer, 1956) [Hunter, Pavlov]; and Edward Hunter, Brainwashing: The True and Terrible Story of the Men Who Endured and Defied The Most Diabolical Red Torture (New York: Pyramid, 1956) [Hunter, True]. 119 Taylor, supra note 46 at 4. 23 brainwashing became widely recognized.120 This alone accomplished the mission to which he was

assigned.I21

However, these base tactics are not completely foreign. There are many that say that

brainwashing is similar to police interrogation methods:122

Both involve a sophisticated form of torture designed to weaken a person's mind as well as his body. The weak mind is then exploited for political purposes. It is neither a mysterious nor secret technique .. . All that has changed today is the political purposes for which the technique is applied and the attempts of medical specialists to analyze and theorize about it. That the CIA was able to take an old form of torture, dress it up with a lurid name, and convince the public that a new technique for mind subversion was being practiced by Communist nations ... It has had a life expectancy far beyond what its authors could have imagined.123

In addition, there is much evidence that there were various government programs in North American

which experimented in drugs,1 torture, and other coercive and brainwashing techniques.125 The

North American public was eager to hear about this phenomenon which reportedly persuaded 30-70%

of American POW's in Korean to confess or to yield to anti-American sentiment and propaganda.126

These numbers were "high enough to shock Americans into embracing the brainwashing

127 explanation." Many were eager to discover more about this insidious blight on the American

120 Scheflin & Opton, supra note 7 at 226. 121 Winn, supra note 59 at 2. Note that much of Hunter's research was suspicious because he "set the scene in his first book for conveying the message that the United States was under attack by an enemy using secret mind control tactics and that only through equally covert counter-activities could this threat be removed." 122 A further discussion of police interrogation is beyond the scope of this dissertation. 123 Scheflin & Opton, supra note 7 at 225. 124 Bergler & Meerloo, supra note 39 at 111 note that "in vino Veritas" or "there is truth in wine" is "the first aphorism in history dedicated to such forms of thought control." 125 See Streatfeild, supra note 82, and in particular at 65 where Streatfeild notes that "[i]n its search for items that might eventually deliver 'behaviour control [and] behaviour anomaly production' MKULTRA sponsored 149 'subprojects,' investigating hallucinogenic drugs, sensory deprivation . . . hypnotic agent programming . . . and subliminal perception . . . Other topics receiving research grants included handwriting analysis, manual magic tricks (for use in slipping drugs into foreign agents' drinks), lip- reading, the chemical induction of stress, the stimulation of monkey brains with radio waves, brain concussion (experiments were conducted on cadavers in a specially prepared blast range . . .) and many other techniques of so-called 'black psychiatry.'" 126 Winn, supra note 59 at 1-2. 127 Ibid, at 2. Even more shocking was the equally glaring fact that "few British POWs and few, if any, Turks, who suffered the same treatments, capitulated." 24 serviceman. However, many sceptics believed that the brainwashing scare was simply fostered by the

CIA to make people believe that the superpowers had perfected overwhelming control on the

128

enemy.

c. The Physiological/Social Science/Psychological Evidence129

Current scientific research on brainwashing is largely unavailable from governmental130 and

non-governmental sources because "ethical objections forbid such research from taking place."

Although considerable time and resources have been directed to its identification, the case studies

conducted fail to provide evidence "for a 'magic' process called 'brainwashing.'" Rather,

according to Taylor, the studies suggest that the process of brainwashing is best regarded as a

"collective noun for various, increasingly well-understood techniques of non-consensual mind

change."133 It has been noted by many sceptics that from: a scientific point of view, it is exceedingly difficult - most would say wholly illegitimate - to evaluate allegedly coercive acts by measuring their effect on some ineffable human quality called free will. To do so, a scientist would have to define what free will is, describe how the environment affects free will, and decide the point at which the effects become so great that free will can be said to be overborne. In such inquiries swirl the deepest philosophical mysteries of human existence; no responsible scientist lays claim to the power to define or discuss free will in this sense. However, the American Psychological Association (APA) is in the business of peering into the free will of an individual. The legal community, with the assistance of medical experts, is consistently

mIbid. 129 Scheflin & Opton, supra note 7 noted that "[t]he ultimate bastion of freedom is biological: each of our stubbornly separate brains resides in its individual case of bony armour. Law, religion, morality and conscience are all more or less ephemeral, but Nature's marvellous fortress, the skull, has always stood as an impenetrable barrier to those who would impose their wills totally upon others. As long as a man's thoughts remain his private possession, domination ends at the scalp." 130 Although beyond the scope of this dissertation, I suspect that, based on the history of this topic, the government may be doing classified experiments unavailable to the general population, and perhaps despite ethical considerations. 131 Taylor, supra note 46 at x. n2Jbid. at 23. m Ibid, at 23. 134 Brief Amicus Curiae of the American Psychological Association, February 10, 1987 at Bl [Amicus Curiae Brief]. 25 considering consciousness and its effect in law. When this interaction between science and law was

considered by the APA, however, they found that "[precisely because free will is ineffable and not

susceptible to direct observation or measurement, drawing any conclusions about deprivation of free

will is an exceedingly uncertain enterprise. When scientists purport to conclude that an individual has

been deprived of free will they have stepped beyond the sphere of their expertise."135 Coleman, a

sceptic of the science behind brainwashing, has studied mind control in relation to new religious

movements, and has concluded that:

the scenario of mindless robots who carry out the wishes of others, while believing they are doing as they please, may make exciting movies, but it is not consistent with human psychology. People who conform to behavioral expectations of a group have made a choice to do so. Even when imprisoned ... an individual who conforms is demonstrating behavior control, not mind control. Behavior control is not difficult to achieve with a person who is confined and subjected to sufficient pressure to overcome any resistance. When an individual in such circumstances chooses to conform, it is not a. free choice: it is coerced, it is unethical, and it may be illegal. But an individual who has been intimidated has not thereby lost his mind.136

Coleman also makes a comment on the state of responsibility of an individual who has been subject to

thought control, in essence saying that mind control is distinct from total control and that the choice

to relinquish one's autonomy is not the same as being placed in an altered state of consciousness."137

The converse is also true; since many can be influenced in a normal state of mind is it necessary to

examine those that are influenced under extreme control and deprivation. But to frame this study in this particular way, the APA has discounted the research of many individuals (as discussed below) who have brought this phenomenon to light using scientific evidence.138

135 Ibid, at Bl. For more on the case referred to, and the work of researchers, see below in Part II. 136 Lee Coleman, "New Religions and the Myth of Mind Control" (1984) American Journal of Orthopsychiatry 322 at 323 [Coleman] (emphasis in original.) Coleman notes, at 324, that "[interference based on 'mind-control' has no place in a free society." 137 Coleman, supra note 136 at 324. 138 In the APA's quest to prove that brainwashing does not apply to new religious movements, they discount the role of brainwashing instead of focusing on the case at hand. 26 There is research by Perry London which notes that, at the most basic, physical processes can be

conditioned. He notes that a "large body of scientific literature shows plainly that conditioning

methods can be used to control several types of voluntary and involuntary activity affecting thinking,

language, imagination, emotion, motivation, habits and skills."139

In fact, London notes that "[considering how long it has been since people started using force to

control each other, it is remarkable that they have found so few techniques for doing it."14 At the

Patty Hearst trial, discussed below, Dr. Louis J. West was asked whether there was "any case where

by virtue of brainwashing, coercive persuasion or thought reform that anyone within a period of three

months went out and committed crimes and/or acts of violence with their captors against their own

kind?" Dr. West answered:

A. Yes. There were literally tens of thousands of Chinese who had been in the nationalist forces who, after a relatively short period of thought reform, joined the Army of Mao Tse-Tung and went back and were killing people in their own villages or even members of their own families. Q. Has that been scientifically attributed to thought reform, Doctor? A. That, in fact, is what it was attributed to, more than any single thing.141

Because of these studies and the effects that were measured on North American soldiers, the influence of thought reform became more established. Psychiatrists and psychologists recognized that "mind control, brainwashing, and psychological kidnapping are meaningful and viable scientific concepts"

Perry London, Behavior Control (New York: Harper & Row, 1969) at 85 [London]. He notes that "people can be conditioned to blush or otherwise react emotionally to meaningless words or phrases; to respond impassively to outrageous epithets; to hallucinate to signals; to feel fear, revulsion, embarrassment or arousal upon demand; to feel cold when they are being warmed; warmed or warm when being chilled; to become ill when lights are flashed; to narrow or enlarge their blood vessels or the pupils of their eyes; to feel like urinating with an empty bladder or not feel the need with a full one; to establish habits and mannerisms they had never known before; and to break free forever from lifelong patterns of activity they thought could never be forgotten." mIbid. at 107. 141 Reeves, supra note 83 at 263. 27 and that they can be "generalized from contexts involving tangible and overt intimidation" such as that

found in a POW camp, to voluntary relationships.142

Scheflin and Opton note various theories behind brainwashing which focus on the elements that

they believe are the most essential. They note that like when responding to ink blots, people "tend to

project their expectations in those unfamiliar, murky and ambiguous splotches. So also with

brainwashing adherents of each major psychological theory have discovered that brainwashing

exemplifies the mental events which they believe are the most important."143 When distinguishing the

paths of research, Richardson and Kilbourne say that there are:

four classic models of brainwashing [which] assume different perspectives in their respective explanations of the same phenomenon; Lifton is neo-Freudian, Sargant is physiological, Meerloo is Freudian and Pavlovian, and Schein, et al. are cognitive-social psychological in approach. Nonetheless they all share a common ideological bias and cognitive orientation in that 'belief change' is presumed to precede 'behavior change.' 44

Totalism and the psychological dehumanization of the individual is the focus when analyzing the battered woman in this thesis. A starting point for this research came from the work of Ivan Pavlov.

His work can be used to understand the basic principles of conditioning which can be extended to humans, and forms one part of the basis of a brainwashing defence.

i. Ivan Pavlov

Although Russian physiologist Ivan Pavlov began his studies with the conditioning of domesticated animals, he became one of the most influential scientists in the history of

Thomas Robbins, Dick Anthony & James McCarthy, "Legitimating Repression" in David G. Bromley, James T. Richardson eds., The Brainwashing/Deprogramming Controversy: Sociological, Psychological, Legal and Historical Perspectives (New York: E. Mellen Press, 1983) 319 at 320 [Robbins, Anthony & McCarthy]. In this context the authors are extending these generalizations to the voluntary participation in religious organizations but I argue that this can be further extended to interpersonal relationships. 143 Scheflin & Opton, supra note 7 at 93. For the purposes of this dissertation, I have chosen to focus mainly on the theories of Pavlov and the subsequent work of Sargant and touching on some elements from other theorists including Meerloo, Lifton and Schein. 144 James T. Richardson & Brock Kilbourne, "Classical and Contemporary Applications of Brainwashing Models: A Comparison and Critique" in David G. Bromley, James T. Richardson eds., The Brainwashing/Deprogramming Controversy: Sociological, Psychological, Legal and Historical Perspectives (New York: E. Mellen Press, 1983) at 13 [Richardson & Kilbourne]. 28 brainwashing.145 Yet, the techniques he was employing were not new. The science of conditioning

was an ancient idea which took its modern form from the "works of Descartes who, in 1664, put

forward the idea that every activity of an organism is the reaction to an external stimulus,"146 but these

ideas remained uncharted for centuries. In Pavlov's study on the oral secretions of dogs, it was noted

early on that measurements were inaccurate because the attendants who fed the dogs and measured

their secretions seemed themselves to trigger saliva production.147 This observation led to his

experimentation with bells to show that "the salivation was not a response to the attendant, as such,

but to the association between the attendant and food: a bell, or any attendant, or any other stimulus

that was consistently associated with feeding, would in time produce the salivation reflex."148 There

was also another lesser known element to the experiment, as a:

final unexpected discovery occurred for Pavlov when his dogs were nearly drowned during the Leningrad floods, as they were trapped in their cages. At the last minute a laboratory assistant was able to rush in and save them but the terror of the experience, a stress beyond all stresses, produced yet another brain response. The dogs forgot all that they had been taught by conditioning up to that point. That is, all the conditioned reflexes that Pavlov had implanted in them had vanished and it took months to restore them.1

All of the conditioned responses had been eliminated and the "near-drowning experience had been so

terrifying that their learnt behaviour had been erased. Pavlov's dogs had been brainwashed by their

own fear."150

Most of the psychological studies on brainwashing in the 1950's have similar conclusions which

can be summarized as seeing results in prisoners caused by a:

state of mental and physical exhaustion resulting both from the combination of fatigue, pain, and physiological stress due to disease and malnutrition and from the psychological strain due

145 Scheflin & Opton, supra note 7 at 13. 146 Walter Bowart, Operation Mind Control (London: Fontana, 1978) at 152 [Bowart]. 14 Scheflin & Opton, supra note 7 at 13. 148 Ibid, [emphasis in original]. 149 See Winn, supra note 59 at 24-25. Streatfeild, supra note 82 at 17, notes that Pavlov recreated this experiment by deliberately flooding his laboratory and he noted the dogs once again had "forgotten all their conditioning cues again." 150 Streatfeild, ibid, at 17. 29 to isolation, total dependency, and humiliation ... the prisoner then complies to his captors' bidding and accepts their beliefs as his own, even if his own are in contradiction to them, because his state of exhaustion results in his being confused, uncritical, and highly suggestible ... contributing to the ultimate state of psycho-physiological exhaustion. '

Later theorists ultimately denied that the Russians or the Chinese were using Pavlovian methods in

their techniques. Schein stated that in "neither the Chinese nor the Soviet case has any evidence been

turned up of any connection with Pavlovian psychology or any systematic use of his findings."152

What Schein did find was that "[fjhought reform as an approach to a prisoner was but a manifestation

of a wide program of social and psychological control which permeated all segments of Chinese

society in the 1950's" and that it would be a mistake to assume that the same methods were used in

different locations over time.

One of the reasons the idea remains that Pavlov was instrumental in developing brainwashing techniques for the Soviets could be the testimony of Edward Hunter before the Un-American Activities

Committee where he stated the Russian Communists "turned to Pavlov and his experiments. They

considered people the same as animals anyway, and refused to recognize . . . reason or divinity in a human being. They took over the Pavlovian experiments on animals and extended them to people.

They did so with the objective of changing human nature and creating a 'new Soviet man.' People,

Edgar H. Schein, Coercive Persuasion: A Socio-Psychological Analysis of the 'Brainwashing' of American Civilian Prisoners by the Chinese Communists (New York: Norton, 1961) at 199-200 {Schein, Coercive] summarizing the work of Lawrence E. Hinkle and Harold G. Wolff, "Communist Interrogation and Indoctrination of 'Enemies of the States:' Analysis of Methods Used by the Communist State Police" (1956) 76 A.M.A. Archives of Neurology and Psychiatry 115 [Hinkle & Wolff]. 152 Schein, Coercive, supra note 151 at 17. Albert D. Biderman, "The Image of 'Brainwashing'" (1962) 26 The Public Opinion Quarterly 547 at 553 [Biderman, "Image"] notes at 556 the difference in narrative between Lifton and Schein in saying that "Schein's aim is to relate the behavior to the "brainwashed" and the "brainwashers" to dry, commonly used, theoretical principles of behavioral science. Lifton seeks to capture the full drama that the experiences in prisons had for the victims and the full significance of "thought reform" for political and philosophical values." He goes on to say, at 557, that "[s]ome writers have made the techniques of interrogators appear magical by attaching technical labels to traditional practices. On the other hand, writers who try to be 'hard-headed' and scientific by substituting impassive scientific names for ordinary expressive language may eliminate not only the extravagant judgments they object to but also almost all the human significance of 'brainwashing.' Thus, 'treachery' can become mere 'attitude change' or 'a shift in the subject's frame of reference.'" 153 Schein, Coercive, ibid, at 60-61. 30 they anticipated, would react voluntarily under Pavlovian pressures, in the way the dog does, to

Communist orders, exactly as ants do in their collectivized society."154

However, this research generally may help to explain (as will be shown) the effects of trauma

related to the abuse experienced by the battered woman. It is seemingly inexplicable why a woman

would voluntarily return to an abusive situation, but perhaps it is something more innate that deals

with conditioning and inability to escape certain situations. However, more research is needed

because, as Schein posits, there is "little in Pavlov which tells us how guilt and the human

psychological defenses operate."155 Yet, what it does tell us is that "as with Pavlov's dogs after the

Leningrad flood, sensitivity to what brought about their nervous disruption is doubtless still latent in

men who seem well readjusted to ordinary civilian life. An event which reminds them of their original neurosis may affect them as strongly as the sight of water flowing in under the laboratory door affected Pavlov's dogs."156 Even with the scheduled introduction of any water under the door, the dogs had again forgotten their conditioning.157 There were rumours that Pavlov was requested by

Lenin to apply his work on conditioning to humans and that Pavlov had created a manuscript to give to the leader.158 Scheflin and Opton agree that it is unlikely that this task was ever done by Pavlov, who was largely uninterested in applying his work to humans, especially given the obvious applications to which it would be put. 59

Un-American, supra note 93 at 12-13. 155 Schein, "Totalitarianism", supra note 87 at 439. 156 Sargant, Battle, supra note 73 at 46. 157 Streatfeild, supra note 82 at 17. 158 Scheflin & Opton, supra note 7 at 87. 159 See Streatfeild, supra note 82 at 16 who notes without reference, that three months after Pavlov met with Lenin he "handed Lenin a 400-page manuscript. Lenin took it, read it and returned a day later, beaming. He shook Pavlov's hand firmly and told him he had guaranteed the future of the Revolution. 'Pavlov's manuscript,' reported Hunter, 'which became the working basis for the whole Communist expansion control system, has never left the Kremlin.'" Streatfeild also reports, at 17, that there was a human Pavlovian experiment completed where a boy was conditioned to salivate when he thought or said the number '4.' 31 Another figure in the historical development of the study of brainwashing was Dr. Joost Meerloo

and his 1956 work The Rape of the Mind: The Psychology of Thought Control, Menticide, and

Brainwashing in which he equated the brainwashing experienced by the prisoners and Pavlovian

conditioning.160 Meerloo distinguished this mind control from "training or persuasion or even

indoctrination. It is more than that. It is taming. It is taking possession of both the simplest and the

most complicated nervous patterns of man. It is the battle for the possession of the nerve cells."161 He

notes that "Pavlovian strategy" means "imprinting prescribed reflexes on a mind that has been broken

down."1 Meerloo identifies the factors that need to be implemented to achieve this type of

conversion as "physical pressure, moral pressure, fatigue, hunger, boring repetition, confusion by

seemingly logical syllogisms." The person under this type of pressure explains the total

"confusion" in which "nothing had any validity" through a process of "mental disintegration or depersonalization."164 Although there were many examples of brainwashing prior to the 1950's, much of the serious research into the trend centered around the Korean War. The difference between public knowledge during this time period, and what had occurred before was influenced by the media in exposing this secret technique to the general public.

ii. William Sargant165

A critical figure in the development of brainwashing theory was William Sargant, who adopted some Pavlovian theory to explain how some individuals could be brainwashed. Sargant published the

160 Meerloo, Rape, supra note 76 at 49. See Streatfeild, supra note 82 at 19 who notes that Meerloo was "former chief of psychiatry for the Dutch military and an expert witness at the Schwable tribunal." 161 /Aw/, at 48-49. 162 Ibid, at 49. 163 Ibid. mlbid. 165 Some of the comments that Sargant made about brainwashing and the religious writings of John Wesley were so controversial that they led to the book by Ian Ramage, Battle for the Free Mind (London: Allen & Unwin, 1967) [Ramage] which is extremely critical of Sargant. Streatfeild, supra note 82 at 80 alleges that Sargant had connections to MI5 and that he build a friendship with Ewan Cameron, the notorious scientist at Allan Memorial Institute in Montreal. 32 book Battle for the Mind in 1957, and the follow-up The Unquiet Mind in 1967, which documented his work in WWII with soldiers experiencing "shell shock,"166 now known as "combat stress" or "post traumatic stress disorder."167 Sargant related many of his experiences with soldiers during the war, saying that:

[o]ne case greatly disturbed me: a soldier from the first batch taken off the Dunkirk beach. He suffered from gross bodily tremors, total paralysis of the right hand, and an almost complete loss of recent memory ... He described, with dramatic gestures, how during the retreat he had come across his own brother lying by the roadside with a severe abdominal wound. At his brother's earnest plea he had dragged him into a field and put him out of his misery with a rifle shot. It was the hand that pulled the trigger that had suddenly become paralysed. After his confession of grief and guilt, his hand worked again. Such results were easily obtained if only one could treat the acute hysterical breakdown cases early enough. If too long untreated, the hysterical patterns of behaviour newly formed under stress might become embedded in the nervous system and increasingly difficult to disrupt.

Sargant extended these Pavlovian notions to "shell-shocked" victims.169 Sargant denied that some could just resist coercion, saying that "the continued exercise of will-power and courage may, in certain circumstances, exhaust the brain and hasten a final collapse."17 Sargant sought to understand the suffering based on the political conversion he had noted earlier in his career. He understood that trauma could have catastrophic impacts on individuals throughout their lives.171 It has been speculated that Sargant's reading of Pavlov explained why some could recover from shell-shock and others could have complete conversions with the same manipulation.172 It has been noted that Pavlov went far beyond theorizing about dogs and found that animals, like humans, where in a "constant state of flux between excitation and inhibition . . . For instance, a person undergoing an ecstatic experience may be temporarily oblivious to pain. He also noted that one part of the brain cortex which had been

166 Sargant, Battle, supra note 73 and William Sargant, The Unquiet Mind (London: Heinemann, 1967) [Sargant, Unquiet]. 167 Taylor, supra note 46 at 4. 168 Sargant, Unquiet, supra note 166 at 116. 169 Sargant also studied those subject to religious conversion. 170 Sargant, Battle, supra note 73 at 40. 171 Taylor, supra note 46 at 4. 172 Winn, supra note 59 at 22. 33 over-excited might become fixed, leading to a pattern of repetitious movements or behaviour. He thought this might explain, for example, obsessional thinking." 173 Many have taken these findings and have applied them to humans, and for Sargant, this could explain what he was observing in military personnel.

Sargant stresses the "suggestibility state that is engendered as a result of extreme anxiety ....

[which] relates such occurrences back to Pavlov's finding that, once extreme stress was induced, dogs could be made to give up their old conditioning in order to take on the new set of responses conditioned by the laboratory assistants. And, if they were of balanced temperament, they would hold on to those new behaviour patterns as firmly as they had resisted the old."174 It has been concluded that "[a]ny extreme experience of emotion can make a person highly suggestible and either reverse his conditioned behaviour patterns or else wipe them out altogether." 175 Sargant's only variable with the ability for the individual to resist. 7 This is very much like the battered woman who eventually conforms to the wishes of her abuser. Denise Winn notes that certain people are more susceptible to conditioning than others. She argues that "[a]nxious people, particularly keen to please an interviewer, however unconsciously, were more easy to condition than stable people."177 Added to this, "highly insecure people are perhaps the most vulnerable to the wholehearted acceptance they find within cults because their insecurity makes them distrust love on any lesser scale."178

The difficulty was in maintaining the stresses and tensions to create a long lasting heightened state of alertness. This is something that is found in the battered woman and this is what Sargant

m Ibid, at 25. 174 Ibid, at 26. 175 Ibid, at 27. 176 Ibid. 177 Ibid, at 76. 178 Ibid, at 84. 179 Taylor, supra note 46 at 33. 34 believed could maintain "controlled fear and tension." This inability to keep psychological control of the individual without maintaining physical control could explain why battered women appear to have a safe avenue of escape when they are away from the influence of their batterer. Winn notes that

"[q]uite clearly brainwashing does not last forever - if it actually occurred in the first place - once the brainwashed individual ceases to be in the environment where the inculcated ideas are current."181

Sargant was convinced that an individual could be over-stimulated to the point where it "reverses the subject's normal patterns of behaviour. Sargant gives several examples of soldiers in battle who, for no observable reason, run into enemy fire, randomly enter into "no-man's land" and others who are suddenly unable to administer first-aid. In one case a soldier went to assist a wounded friend, found he could not assist, then repeatedly banged his head against a tree and he himself need to strapped into a stretcher when help arrived. Sargant approaches brainwashing from an "intra- individualistic perspective," and concludes that the "real spectre of brainwashing is the danger of lost individuality and immersion within an amorphous and unruly mob." 183 Sargant also studied early conversions to Methodism in comparison with Pavlovian theory as he posited that the "mob symbolizes the first step toward the total submission of the individual to a malignant collectivity."184

This could apply on a one-to-one basis. Sargant concluded that "[u]nder severe trauma the mind reached a point at which it simply could not function properly any longer and its wires crossed, reversing the polarity. The result was radical personality change."185 Sargant's theories are among the easiest to extend from one individual to another in an example of intimate violence.

Streatfeild is critical of Sargant and identifies the very experimental nature of some of his research. To Sargant, "the key weapons in the war against mental disease were electricity, drugs and

180 Winn, supra note 59 at 33. 181 Ibid. 182 Sargant, Battle, supra note 73 at 41. 183 Richardson & Kilbourne, supra note 144 at 33-34. 184 Ibid. 185 Streatfeild, supra note 82 at 18. 35 chemically induced sleep." 6 Streatfeild quotes Sargant from the Sunday Times in 1977 as saying of

himself, "Some people think I'm a marvellous doctor. Others think I'm the work of the Devil."187

Streatfeild goes on to say that "Sargant was 'the sort of person of whom legends are made;' another

interviewee - an eminent medical figure - told me, 'I don't think he should escape hellfire for all the

damage he did."188 Streatfeild links Sargant's experiments to CIA-funded experiments on the

mentally ill, and Streatfeild suggests that Sargant was part of the CIA's MKULTRA project, but also

cites sources inside the organizations who claim that Sargant was not a part of the top secret

• • 189

mission.

Streatfeild states that although Sargant's theories may have gone too far, he notes that "almost

every doctor I interviewed acknowledged that he was an important psychiatrist, whose ruthless pursuit

of cures for psychiatric illness had transformed numerous lives, and psychiatry itself."1 Perhaps this

is the fate of some in psychiatric medicine that either their experimentation was quantifiably

successful and they were hailed as genius, or it failed and they become painted as barbarians. Sargant

notes that whether you regard Sargant as a '"dominating personality with the therapeutic courage of a

lion' ... or 'autocratic, dangerous, a disaster' . . . depends entirely on where you stand with regard to

psychotherapy, psychiatry and modern medicine."1

The extension of this research to human subjects has "worried and fascinated people ever since the 1920's." John Watson continued animal research and eventually tested the techniques with

186 Ibid, at 232. m Ibid, at 233. 188 Ibid. As proof of this statement Streatfeild notes, at 233, that among Sargant's personal mementos where a "pair of lobotomy picks presented to the young doctor by their inventory, Walter Freeman, and a restaurant menu signed by Ugo Cerletti, who developed ECT [electro-convulsive therapy]." m Ibid, at 235 and 242-43. 190 Ibid, at 245. 191 Ibid, at 245 citing David Owen and an unnamed source. 192 Scheflin & Opton, supra note 7 at 13. 36 human babies, coining the term "behaviorism."193 B.F. Skinner took this research to the next level,

calling it "behavior modification,"194 and then expanded on this with "operant conditioning." His

ideas on reinforcement took this type of conditioning from experiments on animals to human

responses. Skinner, with "unshakable faith in his own science" created a large box with a window on

one side much like that used in his animal experiments, but this cage was designed for his own

child.195 His child was placed in this "Skinner box" where the temperature was controlled and could

be lowered to stop the child from crying, which insulated her from the outside world, and from

bothering the rest of the family. This experiment of socialization may not have been completely

successful: "In the opinion of the kindergarten teacher of Skinner's youngest daughter, who had

received the 'benefits' of spending her early childhood in her Daddy's box, she was not an obedient

automaton, but a rather independent and even rebellious child."197 In light of the Skinner box (and

other examples) one can see why there is an absence of publicly available and funded brainwashing

research.

There have been many subsequent theorists who have speculated about the particular place of

women in relation to their traditional conditioning in upbringing. Many have found that emotional

issues thought to be specific to women were found to be the product of "faulty conditioning."198 It has been argued that women are "taught as children that it was unfeminine to express anger grew up

193 See John B. Watson, Behaviorism (New Brunswick, NJ: Transaction, 1997) at 82 [Watson] where Watson theorized that if he was given "a dozen healthy infants, well formed, and my own specified world to bring them up in and I'll guarantee to take any one at random and train him to become any type of specialist I might select - doctor, lawyer, artist, merchant-chief, and yes, even beggar-man and thief, regardless of his talents, penchants, tendencies, abilities, vocations, and race of his ancestors." 194 Scheflin & Opton, supra note 7 at 13. 195 Bowart, supra note 146 at 155. 196 Ibid. 197 Ibid. 198 Winn, supra note 59 at 68. 37 learning to suppress any hostility that they felt towards their husbands either by letting it build up into

a destructive underlying mass of resentment or by trying to dissipate it by displacement activities."19

Meerloo asked, "[w]hy is there in us so great an urge to be conditioned, the urge to learn, to

imitate, to conform and to follow the patterns of family and group? This urge to be conditioned, to

submit to the communal pattern and the family pattern must be related to man's dependency on

parents and fellow men. Animals are not so dependent on one another. In the whole animal kingdom,

man is one of the most helpless and naked beings."200 Our criminal justice system must be sensitive to

those acting under conditioning. Perhaps those who could not fully control their actions are not

blameworthy but rather simply among the most helpless of all animals.

iii. Kathleen Taylor

Although there is much written on physical effects of mind manipulation, including the use of

electro-shock, there is very little written on the changes in brain function of those who have been

brainwashed. Even though these studies take a hard scientific approach to brainwashing, when it comes to the "technicalities" many of the elements are addressed by "social psychological research on group cohesion, emotional bonding, and diffusion of responsibility" because there is little science apart from the psychological.202 Again, it is important to note, as Taylor does in her introduction to her scientific study of brainwashing, that scientific evidence of what happens to the brain in the process of brainwashing is non-existent largely due to ethical objections of collecting such data.203

Even though "[n]euroscience, the investigation of brains, is a child of the Enlightenment, born of the belief that nothing is out of bounds to science," very little is known about the science of

Ibid, at 68-69. Meerloo, Rape, supra note 76 at 53. Jose Delgado, supra note 69. Taylor, supra note 46 at 44. Ibid, at x. 38 brainwashing. What we do know is that any changes within the brain that affects learning changes who we are.

Although a receptor in the brain "may resume its former position, the cell in whose membrane it

205 sits will never be quite the same again." Taylor explains that " [j]ust as water flowing over the ground carves out a channel, and thus over time flows more and more easily, so signals flow between neurons, strengthening connections between them, and making it easier for future signals to flow. The more frequent or intense an incoming signal is to some neurons, the stronger the connections between those neurons will become. This is why repetition is a central feature of brainwashing techniques.20

What we can study is emotion. Taylor notes that [m]ajor brain areas involved in emotion processing, and the connections between them ... are not fully understood, but are thought to be along the following lines: the medial prefrontal cortex (mPFC) forms associations between actions and their results; the anterior cingulate cortex (ACC) is involved in motivation and conflicting desires; the orbitofrontal cortex (OFC) represents stimuli in terms of their value as punishments or rewards and the amygdala learns the emotional meaning of stimuli, or retrieves it when the stimuli are familiar. The amygdala receives information about stimuli from the thalamus and the cortex, and sends outputs to the hypothalamus and to the periaqueductal grey (PAG). The hypothalamus in turn triggers the pituitary gland, changing hormone levels, while the PAG sends signals to internal body organs such as the gut and blood vessels. °7

Taylor says that the "intricate webs which bind these areas (and others) guarantee a unitary experience: hot fury, icy calm, black grief or incomparable joy. Once associated with such an experience, an object or thought has the capacity to influence both brain and body, exerting a pressure for action which less intense cognitions cannot match."208 She says that emotions are lasting which is what provides power.209 Taylor argues that emotions can be "devastating, overriding all contrary ideas, ignoring or suppressing any evidence which does not fit, distorting reality to match the contours

204 Ibid, at 105. 205/6idl at 111. 206 Ibid, at 113. 207 Ibid, at 163. 2m Ibid, at 164. 209 Ibid. 39 of cogwebs massively strengthened by the energies flowing through them . . . But we also need to

avoid the demons conjured by their misuse."210 She says that although many are able to resist being

influenced, in the case of brainwashing the "brainwasher must be able to bypass his victim's self-

211

control so that they can no longer stop and think." Taylor is quick to note that each brain is

different as is each individual as a whole but the "gradualism of brainwashing by stealth may slip past

even the most watchful prefrontal guard."212 Yet, some individuals are clearly more watchful or

resistant than others.

Taylor distinguishes between what she calls brainwashing by "stealth," and brainwashing by

"force."213 She notes that forceful brainwashing is "feared because it threatens the strong schemas, the core features which mould our cognitive landscape. The brainwasher's claim is that our strongest beliefs, the thoughts and attitudes which we find most familiar, and most difficult to change, can be wrenched into strange new shapes. If advertising is erosion, brainwashing by force is an earthquake or comet strike: explosive interference with our inner world." Even those who question the manipulation of our free will are answered by scientists that if "our sense of freedom is tarnished by the presence of a threat signal (reactance), then artificially reducing that signal could make us feel ourselves free when we are not. Conversely, enhancing reactance can stimulate a person into acting in ways they normally would not in order to defend their freedom against the perceived threat, a trick well known to every demagogue worth the name."215 The bottom line is that social interactions are thought to influence brain electrochemistry just as "radiography, electromagnetic radiation . . . surgery, damage, and disease . . . neurotransmitters, hormones, foods, and drugs."21 Taylor concludes

210 Ibid, at 165. 211 Ibid, at 167. 212 Ibid, at 211. 213 Ibid, at 125. 214 Ibid. 215 Ibid, at 204. 216 Ibid, at 234-35. 40 that "social effects are thought to be mediated by changes in brain electrochemistry. In both cases,

however, it can be impossibly cumbersome (or, given our present state of knowledge, just plain

impossible) to spell out in full how that mediation occurs." 7 Although neuroscientists are working

on disciplines such as the "theory of the mind" and "face recognition," there are "more assumptions and . . . less empirical support, because social neuroscience is more complicated and less well- developed than genetics."218 The unsatisfying result is that "until someone comes up with an empirically testable counter-claim, the assumption that all brain-changing influences act, at base, by changing brain electrochemistry is likely to remain secure."219 It is this absence of an alternative explanation that must sustain the study of brainwashing. Perhaps the final word on the science of brainwashing comes from Bowart who noted that the:

testing of drugs by the CIA was just a part of the United States government's top-secret mind control project which had spanned thirty five years and had involved tens of thousands of individuals. It involved techniques of hypnosis, narco-hypnosis, electronic brain stimulation, behavioral effects of ultrasonic, microwave, and low-frequency sound, aversive and other behavior modification therapies. In fact, there was virtually no aspect of human behavioral control that was not explored in their search for the means to control the memory and will of both individuals and whole masses of people.220

What needs is absolutely clear is that there are no easy answers when it comes to brainwashing.

The scientific proof of this phenomenon is not clear, and we may not ever access the subjects to do the research needed. Scientifically, and psychologically (discussed further below) the evidence may never be obtained, which would seriously limit such a defence. Although the science was enough to sustain a huge investment from world-wide governments, understanding the underlying theoretical models is also important.

211 Ibid, at 235. 218 Ibid, [emphasis in original]. 219 Ibid. 220 Bowart, supra note 146 at 19. 41 d. Theoretical Models

i. Dr. Robert Jay Lifton

From this preliminary work on brainwashing came the seminal text on brainwashing: Thought

Reform and the Psychology ofTotalism, by psychiatrist Dr. Robert Jay Lifton published in 1961.

Lifton served as a psychiatrist in the US Air Force in the 1950's (deployed to Japan and Korea)222 and

exposed what he believed was the "most powerful efforts at human manipulation ever undertaken."

Lifton interviewed fifteen Chinese citizens and twenty-five Westerners who were "brainwashed" by

the Chinese government in the 1950's. Lifton observed a general pattern to the indoctrination

experienced by this group of individuals. He noted a general method including the "death of the self

where everything previously known is taken away. Second was a "transition" phase including the

torture of the individual to the point of nervous collapse. Just as quickly the captives are shown

kindness and relaxation of rules leading to a "rebirth" where the prisoners say whatever is required to

survive while beginning to believe their conditioned responses.224 In particular, Lifton identified

221 Lifton, supra note 58. 222 Streatfeild, supra note 82 at 260. 223 Lifton, supra note 58 at 4-5. Lifton went on to be a Professor of psychiatry at Harvard Medical School. See Bergler & Meerloo, supra note 39 at 110 who notes that prisoners of war in China and Korea were "invited in a quasi-innocent way to write down their private histories and their mistakes and failures in life. In doing so they inadvertently surrendered to their inquisitors points of weakness and confusion which were scrutinized again and again and finally let to the submission, confession, and temporary political conversion." Bergler and Meerloo go on to note, at 110, "[h]ow weak and submissive is the human mind under such abnormal circumstances!" 224 Lifton, supra note 58 at 65-86. Edward Hunter illustrated this point in his testimony before the Un- American Activities committee, supra note 93 at 17, using the example of Capt. Zach W. Dean. Hunter explains that Dean was "taken on a 'death march' and put in a Korean hut and left to hunger and freeze while the Reds harassed him with threats and propaganda and what they called 'learning,' until he became so weak and sick that he felt he was going to die. At once the Communists changed their tactics and injections, good enough food, and kindly words, until they saved his life. A few weeks passed and the cat- and-mouse game switched back once more. He was again put under the brainwashing pressures. He became sick again, catching pneumonia on top of another case of freezing. Deprived of all attention, he was positive he was going to die this time. Then once more they switched moods, and he was given the best available of everything, and again his life was saved. Zach knew what a deep study I had made of all of this. I can never forget the look he gave me when he told me about it, saying, 'Mr. Hunter, I don't believe you'll be able to understand what I'm going to tell you now. After the Reds do that to you a few 42 twelve subcategories within the death and rebirth model noting that these steps "affect one's entire

being, but especially that part related to loyalties and beliefs, to the sense of being a specific person

and at the same time being related to and part of groups of other people - or in other words, to one's

sense of inner identity."225 Lifton noted that each individual would experience the process in their

own way, but that certain steps "affected every prisoner in some measure, no matter what his

background and character."226 Lifton identified these twelve steps as:

1. The assault upon identity; 2. The establishment of guilt; 3. The self-betrayal; 4. The breaking point: total conflict and the basic fear; 5. Leniency and opportunity; 6. The compulsion to confess; 7. The channelling of guilt; 8. Re-Education: logical dishonoring; 9. Progress and harmony; 10. Final confession: The summing up; 11. Rebirth; and,

12. Release: Transition and limbo.227

Within this model there were some elements that were slightly altered from what was previously believed about brainwashing.

It has been observed that for there to be true brainwashing the individual had to be segregated from others as a basic element of thought reform. This was not possible with a large prisoner of war population as studied by Lifton. In addition, there was none of the indoctrination by other prisoners that was present with the study by Hunter. American POW's during the Korean War were not belittled in same way as Chinese prisoners. The Chinese prisoner was made to "'repent' and 'reform'

times, you are grateful to them for saving your life. You forget that they are the people who almost killed you.'" 225 Ibid, at 66. 226 Ibid, at 67. 227 Ibid, at 67-85. 228 Lunde & Wilson, supra note 92 at 347 n. 26. 43 his wayward thoughts." This difference in technique was because of the lack of '"progressives'

(prisoners who had already advanced on the path of 'reform')" in the Korean camps.230 Some have explained that this is because the "much-ballyhooed Communist program of 'brainwashing' was really more an intensive indoctrination program in combination with very heavy-handed techniques of undermining the social structure of the prisoner group, thereby eliciting collaboration that in most cases was not based on ideological change of any sort."231 The result was more one of outward appearance of coercion rather than of a fundamental change within the individual.

Although the specific type of thought reform noted by Lifton was not present in its strictest sense in the Korean POW camps, there was some isolation of individuals. Prisoners were put in a "cage" where they could not stand, sit or lie down, and the "hole," which was solitary confinement.232 The effective elements of the coercion used on the prisoners were the isolation, the "conditions of dehumanization of the camps and the maltreatment and torture" which creating feelings of "fear, confusion, and dependency" which were effective for conversion.23 Lastly, the "repetition of questions and demands, combined with the fatigue and stress of the interrogation situation, served an

'educative,' as well as spirit-breaking, function."234 However, it is very difficult to quantify

"ideological change" in any individual.235 The difficulty in this exercise may be related to the vagueness related to the semantics of the term.2

229 lb id. 230 Ibid. 231 Ibid, at 348. 232 Ibid, at 349. 233 Ibid, at 349-50 [emphasis in original]. 234 Ibid, at 349-50 [emphasis in original]. 235 Ibid, at 350-51. 236 Ibid, at 351. 44 For a prisoner who has undergone brainwashing, Lifton describes the typical experience as being

much like being in an insane asylum.237 Lifton noted that at all times the prisoner's "psychological strengths and weaknesses" are "utilized in the undermining process." The survival instinct can make prisoners feel they are acting rationally in a wholly irrational circumstance calling for actions that would not be contemplated in a "normal" situation. Lifton describes the feelings of those under brainwashing noting that each of the subjects was "reduced to something not fully human and yet not quite animal ... an adult human was placed in the position of an infant or a sub-human animal, helplessly being manipulated by larger and stronger 'adults' or 'trainers.' Placed in this regressive stance, each felt himself deprived of the power, mastery, and selfhood of adult existence."239

There has been criticism of Lifton's methodology as some have noted that much of the historical research on brainwashing was based on "anecdotal accounts, bound by the theorist's subjective interpretations within a particular theoretical framework." 240 This problem was in addition to the limited number of subjects studied. Lifton's work was limited to 40 individuals with only 11 case studies.241 Despite these limitations, Lifton says that the prisoner is "totally cut off from the essential succour of affectionate communication and relatedness, without which he cannot survive. And at the

Lifton, supra note 58 at 70 who notes that prisoners are "taken suddenly from his ordinary routine and place in a hospital for the criminally insane, where he is accused of a horrendous but vague crime which he is expected to recognize and confess; where his assertion of innocence is viewed as a symptom of his disease, as a paranoid delusion; and where every other inmate-patient is wholly dedicated to the task of pressuring him into a confession and a 'cure.' The sense of total reversal is like that of Alice after falling down the rabbit hole; but the weirdness of the experience is more that of a Kafka hero." 238 Ibid, at 79. 239 Ibid, at 66. 240 Richardson & Kilbourne, supra note 144 at 36. 241 Richardson & Kilbourne, supra note 144 at 36. Schein's work was limited to 15 American's who were imprisoned in China. As Biderman, "Image", supra note 152 at 559 notes, Lifton's Chinese subjects are also questionable scientifically because "[i]n a sense, they were all failures of 'thought reform' in that they all reacted so unfavorably to the regime that they left the country; on the other hand, they were not such great failures as to be prevented from leaving the country or to be thrown into 'reform prisons,' where they might have been among the Chinese cellmates of Lifton's European subjects." Biderman also notes, Biderman, "Image", supra note 152 at 560, that "[o]ne thing is certain, however; virtually all the subjects for these studies were people for whom the issues of 'thought reform' meant a great deal - intellectual, politicized, philosophically minded people, deeply concerned about the meanings of their lives and callings." 45 same time, his increasing self-betrayal, sense of guilt, and his loss of identity all join to estrange him

from himself- or at least from the self which he has known. He can contemplate the future with only hopelessness and dread. Literally and emotionally, there seems to be no escape from this hermetically-sealed antagonism."242 These techniques were also examined in the Vietnam war causing a reaction from the U.S. government. Delgado notes that there was a "decision by the

Department of Defense not to court-martial returning POW collaborators after the Vietnamese conflict, except for those who had participated in the most egregious acts of complicity. In fact no such prosecutions were recorded."

ii. Alan W. Scheflin & Edward M. Opton

Scheflin and Opton continued with the work done by Lifton on POW's. They provide a summary of what they believe happens in the brainwashing process among prisoners of war. This seems to be true throughout specific examples and over time. They note that, generally:

the prisoner is subjected to unrelenting interrogation, sleep deprivation, an unhealthy and sparse diet, unsanitary conditions and personal humiliation. Throughout this process, the prisoner is not permitted any contact with the outside world. Any news the prisoner receives comes from his captors and is slanted to their needs or even manufactured from whole cloth. Physical torture is not uncommon, but its purpose is less to induce confessions than to further weaken the will to resist. The prisoner's guilt of unspecified offenses is taken for granted by everyone he sees. He finds it nearly impossible to maintain his self-image in the face of overwhelming rejection. Gradually, the prisoner's body gets weaker, his resistance fades, and he has great difficulty in focusing his mind. Hungry, tired, physically exhausted and mentally confused, the prisoner seeks any form of relief.

242 Lifton, supra note 58 at 70. Interestingly, even the way that these historic cases are read are telling. See Biderman, "Image", supra note 152 at 556 who notes that "Lifton, whose thinking is rooted in the dramatic concepts of psychoanalysis" strives for "literary and dramatic flair in his writing." Lifton himself addresses the issue of being overly involved in his study. In his preface, Lifton, supra note 58 at xi, he notes that "who during this era can pretend to be uninvolved in the issues of psychological coercion, of identity, and of ideology? Certainly not one who has felt impelled to study them at such length. Instead, I have attempted to be both reasonable dispassionate and responsibility committed: dispassionate in my efforts to stand away from the material far enough to probe the nature of the process, its effects upon people exposed to it, and some of the influences affecting its practitioners; committed to my own analyses and judgements within the limitations and the bias of my knowledge." 243 Delgado, "Ascription", supra note 52 at 3-4 n. 16. 244 Scheflin & Opton, supra note 7 at 91. 46 From a historic perspective, this process is seen time and again in prisoners of war. One of the most important elements is what Schein identified as the elimination of "ongoing relationships with significant others." 5 Schein found that it is the "informational cues that these significant others provide which serve to reinforce or destroy identity, and which therefore are the crucial determinants of attitude and identity change."246 These bonds are removed from the prisoner through isolation which has been found to be one of the key ingredients.

iii. Edgar H. Schein and Subsequent POW Theorists

Subsequent theorists noted the difficulties in empirical research on something such as brainwashing as the techniques are not "new, diabolical, or scientific. Insofar as one can trace their history, they are the result of trial and error within the hierarchy of the secret police and the Communist party."247 These theorists took different vantage points: while Hunter looked at the issue from a journalistic and military position, Schein took a psychological perspective in his book Coercive

Persuasion. In the course of his study, Schein clearly stated that he was writing a psychological study. He noted that:

[w]e are not concerned with providing a detailed description of the experiences of the prisoners, nor are we concerned with the political implications of the whole thought reform movement. This is not a study of China or its methods of education. . . . our main purpose is to contribute to the social psychology of influence and attitudinal change .. . What we are trying to delineate is our central focus or orientation, which is basically psychological.249

Others have taken these broad elements and have adopted a theory of brainwashing which was developed by Schein. Using this outline, Schein develops a model of conversion. First is a phase of

"unfreezing" with the "loosening of one's commitment to one's existing belief system" which can

245 Schein, Coercive, supra note 151 at 189. MIbid 247 Schein, "Totalitarianism", supra note 87 at 436-37. 248 Lunde & Wilson, supra note 92 at 360. 249 Schein, Coercive, supra note 151 at 19. Note that Biderman, "Image", supra note 152 at 559 notes the stated objectives of both Lifton and Schein and notes that "both authors fail to offset sufficiently preconceptions of the degree to which the behavior of those subjected to 'brainwashing' was bizarre, extreme, ego-alien, and self-destructive." 47 include deprivation and isolation.250 He explains that there are different susceptibilities of the

individual going through this phase. Schein notes that "[vjarious personal characteristics possessed by

captives obviously make some more susceptible than others to the coercive aspects of imprisonment.

Persons experiencing social guilt (e.g., guilt feelings about unearned material and social benefits), lack

of ideological or moral commitments, or political naivete are often the most susceptible."251 He

explains that it is the combination of the susceptibility and the physical abuse which "overcomes the

252

person's attachment to his current belief system."

The second stage after the subject is "unfrozen" is a period of "changing" which "fills the

vacuum left by the rejection of the previous beliefs." Although the individual may be hesitant to

adopt these beliefs, they are eventually overwhelmed with a "need to rationalize one's behaviour and

because of a need to establish communication with others." 54 Others have noted that this is where the

other "reformed" prisoners are essential as a "source of information" and a "rationalizing" force to 255

explain the new belief system. However, when returning to life after this process, most individuals

can be "deprogrammed" and can return to their original perspectives in a short period of time.256 This

factor is important when extending this research to the law. Although this is fortunate for the victim

of this process, it is for this reason that it is difficult to craft a cohesive legal defence. Some note that 250 Lunde & Wilson, supra note 92 at 361. 251 Ibid. See section on susceptibility in Part III. Lunde & Wilson note at 361 n. 66, the statement of Cmdr. Lloyd M. Bucher regarding susceptibility. Bucher explained that "every individual, every person has a different breaking point, a different degree of capacity to keep their mind from breaking down ... I'm sure that at some point in time there has to be - every person can be broken . . . You can either eventually do what it is that they are insisting you're to do unless it is so absolutely reprehensible that you would permit yourself to become a vegetable. Or you could commit suicide. But there's no remaining on the same side of the ledger and avoiding it. Always in my mind I knew exactly where the hell I stood and what I was doing in terms of saying those things or signing those documents or whatever. I never once in the whole time we were there believed any of that stuff. It never got to that point. And to the best of my knowledge, no one did. Now people went further than I thought was necessary in order to placate the Koreans. Some guys really became abject." 252 Lunde & Wilson, supra note 92 at 361. 253 Ibid 254 Lunde & Wilson, supra note 92 at 361. 255 Ibid, at 362. 256 Ibid. 48 "[i]n the Hearst case, this dilemma was frequently referred to as the question of whether 'Patty' or

'Tania' was going to be on trial."257 Much like the Canadian defence of "Not Criminally Responsible by Means of Mental Disorder" (NCRMD), judging an individual at trial when they are in a very different emotional state, rather than seeking evidence on their behaviours and beliefs at the height of their emotional and psychological control, is extremely dangerous.

There is also a factor of "terror" in brainwashing as the:

fear of one's mind being broken down and then reshaped to someone else's specification, draws its power from our preferred view of ourselves as free, rational, decisive individuals. We like to think our minds are strong and solid, pure and unchanging entities . . . We prefer to think that, like diamonds, they keep their shape as the pressure on them rises, until at last (under the force of brainwashing) they shatter into pieces. We tend to believe that mental power derives from reason, so we view emotions as weaknesses. And we think of ourselves as having free will, choosing whether or not to be influenced by other people.258

But Taylor points out that this view of the human brain is inaccurate, as "[m]inds are more like malleable clay than diamonds."259 Even if we cannot imagine ourselves being capable of such actions under persuasion, there is much evidence to show that control is possible in most individuals.

iv. Martin T. Orne and Dr. Louis J. West

One of the best sources of the results of the brainwashing experiments was the testimony of Dr.

Martin T. Orne and Dr. Louis J. West during the Patty Hearst trial260 about military training to combat the forces of brainwashing. Dr. West also became involved in the brainwashing experiments when he arrived at Lockland Air Force Base in 1952. He testified during the Hearst trial that the government was extremely concerned that a "number of captured American pilots had been making propaganda broadcasts for the Chinese communists and admitting all sorts of things including that they had been engaging in germ warfare over North Korea . . . The Government was greatly concerned not only

257 Ibid. 258 Taylor, supra note 46 at x. 259 Ibid. 260 Discussed below. 49 about the use of these statements in propaganda warfare against the United States but also about what

methods were being applied to extract such statements from the captives."261 Delgado explains that:

during the Vietnam War, the United States Air Force and Navy developed a survival training program for senior military officers, particularly pilots, who were exposed to the highest degree of risk of capture and interrogation by the North Vietnamese. The aim was to strengthen their resistance to coercive persuasion techniques in order to safeguard tactical military secrets for the longest possible time. After being dropped off in a desert without food or maps, the officers practiced survival skills and then were 'captured' by 'pseudo-enemies,' dressed in strange uniforms and communicating in an unfamiliar language. After a night of enforced sleeplessness, the officers were individually interrogated, put into isolation in small cells and reinterrogated by their captors in an effort to elicit hypothetical military 'secrets' the officers had been given before the commencement of their training. Despite introductory lectures forewarning them of the experiences they would undergo and reassuring them that neither they nor their families would be in any real physical danger, 'a very remarkably high percentage, as high as twenty-five percent of these experienced ... senior officers' confessed and divulged the 'secrets' they had been told to conceal. Some even revealed genuine military secrets . . . Eventually the program was redesigned to make it 'less realistic' because participants were experiencing psychiatric symptoms and developing fear of, instead of resistance to, the techniques employed.262

Dr. West testified during the Hearst trial that 36 of the 59 pilots "did comply and gave essentially

what they were asked for."263 During this time period, Dr. West noted in his testimony that the Army

had done studies showing that there were approximately:

15 percent who had perhaps been too cooperative with the captors, and then there were about 5 percent who were resistant as you could want, that we might call heroic. And these were separated then by about 80 percent of the rest of the captives who were in between, some playing it cool and not getting involved in either cooperation or resistance. The captors and the resisters were very much like each other and you couldn't have predicted in advance whether a man would end up in one group or the other. In fact, there were even some people who shifted back and forth between groups.2 4

Dr. West also detailed the aftermath of the pilot study, and the fact that many of the pilots became

"sick" with "psychiatric symptoms" including "anxiety and depression and a loss of the ability to deal

effectively with the surroundings, or an uncommon terrible fear that they felt out of all proportion . . .

261 Reeves, supra note 83 at 249. See Reeves, supra note 83 at 249, where Dr. West also testified on the witness stand that he was "president of the Section on Clinical Hypnosis of the Pan American Medical Association and am past president of the Pavlovian Society." 262 Delgado, "Ascription", supra note 52 at 3-4 n. 16. 263 Reeves, supra note 83 at 250. 264 Ibid, at 250-51. [I]t was common when they were first interrogated to see a sort of numb, slightly apathetic, but outwardly normal seeming facade. Then when you went into it . . . there would have often been an outpouring of very violently disturbed feelings. And some of these depressions and anxiety reactions required treatment." 65 This attempt to make soldiers immune to brainwashing was an overwhelming failure and caused those commenting on the Hearst trial to ask, "If toughened US soldiers in Korea couldn't fight [brainwashing] in the 1950's, what chance did fresh faced American teenagers have in the 1970's?"266

v. Coercive Control Theory

Coercive Control Theory is a more modern philosophical perspective developed by Lewis Okun from the work of Margaret T. Singer and Camella S. Serum which builds on what Singer calls a

"coercive control situation." 67 These theories were developed from brainwashing theory developed from concentration camps, Chinese thought reform, hostage situations, and cults. Evan Stark has most recently incorporated this theory into his own work explaining that many women live in an invisible cage. He theorizes that the "literature documents violent acts and the harms they cause in agonizing detail. But this work suffers the fallacy of misplaced concreteness: no matter how many punches or injuries or instances of depression are catalogued, the cage remains invisible as long as we omit the strategic intelligence that complements these acts with structural constraints and organizes

265 Ibid, at 252. 266 Streatfeild, supra note 82 at 260. 267 The original papers that this work was based on were Serum's papers "Battered Women and Batterers" presented at Hoyt Conference Center, Easter Michigan University, Ypsilanti, MI, on May 9, 1979; "The effects of violent victimization in the family" Paper presented to the Michigan Coalition Against Domestic Violence, December 3, 1979, "Violent Conjugal Relationships: New Psychological Perspectives and Treatment of the Violent Man" Seminar conducted at the 1981 Spring-Summer Symposium, Continuing Education Program in the Human Services, University of Michigan School of Social Work, June 23-24, 1980, and Singers article "The Nature of Coercive Control" Paper presented to the Michigan Coalition Against Domestic Violence, December 3, 1979. Unfortunately, copies of these papers are not available. 268 Lewis Okun, Woman Abuse: Facts Replacing Myths (Albany: State University of New York Press, 1986)at86[0)tM«]. 51 them into the pattern of oppression that gives them political meaning." Recognizing that the control exerted can come without the physical control is a difficult thing to conceptualize. Stark acknowledges that it is difficult to "understand why a huge population of otherwise normal women can feel like prisoners as they go about the rounds of daily existence. Institutions of confinement are formidable structures. But the vectors of inequality that set the stage for coercive control are much

270 more ephemeral." Schneider notes that coercive control includes physical control with "aspects of physical violence within a larger social framework. Each regards physical violence along a larger continuum - as part of a broader process of threats, emotional humiliation, terrorism, and 'doing power.'"271 This has led some to ask that if we are so vulnerable to this type of control, are we all subject to brainwashing on a daily basis?

e. Are We All Brainwashed?

Sargant states that those who brainwash using techniques of conversion do not "depend only on the heightening of group suggestibility, but also on the fomenting in an individual of anxiety, of a sense of real or imaginary guilt, and of a conflict of loyalties, strong and prolonged enough to bring about the desired collapse." n Sargant continues that if the "stress or the physical debilitation, or both, are carried one stage further, it may happen that patterns of thought and behaviour, especially those of recent acquisition, become disrupted. New patterns can then be substituted, or suppressed patterns allowed to re-assert themselves; or the subject may begin to think and act in ways that precisely contradict his former ones."273

Evan Stark, Coercive Control: The Entrapment of Women in Personal Life (New York: Oxford University Press, 2007) at 198 [Stark, Coercive]. 270 Stark, Coercive, supra note 269 at 199. 271 Elizabeth M. Schneider, Battered Women & Feminist Lawmaking (New Haven, CT: Yale University Press, 2000) at 46 [Schneider]. 272 Sargant, Battle, supra note 73 at 130. 273 Ibid, at 80. 52 It is true, to some extent, that we all must be brainwashed to live in society and maintain the rules

and order of our daily existence. The brainwashing that we experience may be quite different from

what we anticipate because "[r]ather than the prey of victimising external forces, we may, if anything,

be victims of our own false conceptions of what constitutes individual integrity."274 Winn expands the

notion that we are all the product of brainwashing, saying "every individual's upbringing helps to

invest him with a set of beliefs which, adopted when too young to be questioned, often come to

masquerade as knowledge."275 Scheflin and Opton note that "[c]ontrol of what a person can put into

his or her mind will limit what comes out of that mind, as parents and other censors have known for

centuries."276 This raises the question of whether there is ever absolute unbounded free choice.

Lifton noted that one of his subjects was struck by the similarity between the Chinese

indoctrination and many of those of the Catholic faith. Lifton responded by saying "[t]he state

demands such a complete change and turnover of mind as we only allow God to demand.'"277 Schein

also drew these parallels between many common institutions and the potential change. He examined

these situations and said "the process is perhaps most obvious in religious orders, hospitals,

reformatories, or prisons, but it has its counterpart in such educational278 practices as issuing uniforms to students and in the sanctioning of severe and degrading hazing for new members."279 Schein notes that even in these organizations where one may leave voluntarily, he noted that "in such institutions

274 Winn, supra note 59 at 35. 275 Ibid, at 37. 276 Scheflin & Opton, supra note 7 at 477. 277 Lifton, supra note 58 at 141 citing one subject named Hans Barker who was a Belgium Bishop. 278 See Louis Jolyon West, "Psychiatry, 'Brainwashing,' and the American Character" (1964) 120 The American Journal of Psychiatry 842 [West, "Brainwashing"] who distinguishes brainwashing from education by saying that education teaches "people how to think for themselves in relationship to a variety of material with which the learning process equips them to deal. Thought reform is more accurately defined by the word 'indoctrination' in which certain specific ideas and attitudes are inculcated deliberately and without the merits of competitive doctrines being offered." 279 Schein, Coercive, supra note 151 at 271. Schein, at 272, also recognizes organizations such as A A as having a potential for control. 53 the social pressures which can be generated can be as coercive as the physical constraints previously described."280

On a greater scale, Albert Biderman continues, saying that:

[w]e might think, for example, of how inconceivable to the ordinary American of the 1930's would have been the thought that in a decade he would find satisfaction in the instant obliteration of the entire population of a city ... [or the] radical deviation from norms previously held sacred that occurred in the space of a few hours among certain Nazi concentration camp inmates - for example, the Jewish doctor Nyiszli who was enlisted immediately in the Sonderkomando to help in the murder of his fellows.281

It is not only important to study "those aspects of personality that are normally most resistant to change," but also those that are "most changeable."282 It is important for the purposes of this dissertation to focus on the most extreme causes because, if not, "any influence by parents and society to determine ideology and behavior patterns could be classified as brain-washing; such usage would

283 reduce the concept to meaninglessness." Singer also addressed this concern, explaining that

"[w]hile everyone is influenced and persuaded daily in various ways, vulnerability to influence fluctuates. The ability to fend off persuaders is reduced when one is exhausted, rushed, stressed, uncertain, lonely, indifferent, uniformed, aged, very young, unsophisticated, ill, brain-damaged, drugged, drunk, distracted, fatigued, frightened, or very dependent."2 4 No one is immune, but perhaps are susceptibilities fluctuate over time.

Perhaps there is a range of experiences that can be labelled brainwashing. Robbins, Anthony and

McCarthy have noted that "[fjarther along the continuum are the views of a number of scholars who believe that there does exist a devastating brainwashing process, which, however, is a very rare occurrence in the West and entails a traumatic sequence of brutal physical abuse and threats of

280 Ibid, at 275. 281 Biderman, "Image", supra note 152 at 561-62. 282 Ibid, at 562. 283 Perr & Weinapple, supra note 272 at 66. 284 Margaret Thaler Singer, "Undue Influence and Written Documents: Psychological Aspects" (1992) Journal of Questioned Document Examination 4 [Singer, "Undue"]. 54 physical extinction." Delgado responds that the "different forms of influence may be viewed as

lying along a continuum, with mild forms such as television advertising and church sermons at one

end, and more severe forms at the other. Those who oppose the defense are prone to emphasize the

milder forms of persuasion and ignore the fact that the continuum also contains, at the other extreme,

such brutal treatment.. . most would agree justifies exculpation." 6

The important element is that social institutions cannot operate and criminal law would have no

application if behaviour is only determined choices. Our system has limiting rules to examine how the criminal law would allow this claim without giving up the fundamental basis of our system and refusing to face the possibility of new defences. Extreme normative involuntariness does not equate with determinism in the case of brainwashing, which entails discrete episodes of behaviour that depart from a subject's "normal" behaviour. This is a much different argument than some evolving defences

287 have attempted. What is important to consider is that the law cannot work on the basis that everyone is brainwashed. The phenomena discussed in this work are real established occurrences to be distinguished from the routine pull of advertising and the media to which we all are exposed.

f. Relevant Test Cases288

i. Hypnosis

One of the first widespread public exposures to the issues surrounding brainwashing came in the form of hypnosis. Although very different concepts, it may not be surprising that these issues of brainwashing and hypnosis arise as "[h]uman beings are the only creatures who spend ninety-nine percent of their time inside their own heads ... It is hardly surprising that we are so easy to

285 Robbins, Anthony & McCarthy, supra note 139 at 320. 286 Delgado, "Ascription", supra note 52 at 26. 287 For example, the "rotten social background" defence proposed by Justice Bazelon. 288 Although there are very few examples of brainwashing in Canadian law, there are some early American and European examples that help to illustrate the importance of a potential defence. Unless otherwise specified, all of the following examples are from the United States. 55 hypnotize." Although hypnotism is only partially understood, "its use in the treatment of neurotic

disorders has never been completely abandoned."290 Some argue that this is an ancient technique that

"makes people give up their own will and brings them into a strange dependency on the hypnotizer.

The Egyptian doctors of three thousand years ago knew the techniques of hypnosis, and ancient

records tell us that they practiced it."291

This technique began with Dr. Anton Mesmer who claimed to discover and use "animal

magnetism" to cure his patients in the late 18th century.292 Mesmer used hypnotic trance and

discovered that patients "were resistant to pain and fatigue, their bodies moved apart from their own

volition, they could adopt postures and perform feats beyond their normal powers."293 A full

examination of hypnosis is beyond the scope of this thesis, but a few issues are worth noting. Spanos

has noted that the idea that brainwashing "consists of powerful, sinister techniques that transform

people into automata is similar to the traditional notion that hypnosis is a powerful force that can do

Ibid, at 88. Wilson, at 88, tells the story of the "absent-minded professor" who "went up to his bedroom to change his tie before guests arrived; when he failed to return, his wife went upstairs and found him fast asleep in bed. Removing his tie had made him automatically proceed to get undressed and into bed. We can see here how close absent-mindedness is to hypnosis; the professor behaved as if he had been given a hypnotic command to go to bed. And this came about because, as he went up to change his tie, he was living 'inside his own head', connected to reality by a mere thread. The unconscious suggestion that it was time to sleep snapped the thread, just as it might have been snapped by the command of a hypnotist." 290 Anthony Storr, "Foreword," in Derek Forrest, Hypnotism: A History (London: Penguin Books, 1999) xi [Storr]. 291 Meerloo, Rape, supra note 76 at 61. 292 See Derek Forrest, Hypnotism: A History (London: Penguin Books, 1999) [Forrest]. 293 Forrest, supra note 293 at xv. See also S. Allen, Gurston, Hypnotism and its Legal Import (Toronto: Canadian Bar Review, 1934); Jos£e Belanger, Jean-Roch Laurence & Campbell Perry, "Hypnosis and the Law in Canada" (1985) 5 (8) Ont. Lawyers Wkly, 10; Ramage, supra note 164; Harry Arons, Hypnosis in Criminal Investigation (Springfield IL: Thomas, 1967); Merton M. Gill & Margaret Brenman, Hypnosis and Related States: Psychoanalytic Studies in Regression (New York, International Universities Press, 1961); Heinz E. Hammerschlang, Hypnotism and Crime (Hollywood: Wilshire, 1957); Ernest R. Hilgard, "Hypnosis" (1975) 26 Ann. Rev. Psych. 19; Micha Popper, Hypnotic Leadership: Leaders, Followers, and the Loss of Self (Westport CT: Praeger, 2001); Nicholas P. Spanos, Multiple Identities & False Memories: A Sociocognitive Perspective (Washington, D.C.: American Psychological Association, 1996) [Spanos]; William P. Swain, "Hypnotism and the Law" (1960) 14 Vand. L. Rev. 1509; Graham F. Wagstaff, "Hypnosis and Forensic Psychology" in Irving Kirsch et ai, eds., Clinical Hypnosis and Self-Regulation: Cognitive-Behavioral Perspectives (Washington, DC: American Psychological Association, 1998); Paul J. Reiter, Antisocial or Criminal Acts and Hypnosis: A Case Study (Springfield, IL: Charles C. Thomas, 1958). 56 the same. It should not be surprising, therefore, that these two ideas soon became identified as related to each other."294 Farber, Harlow and West presented a model which they called "debility, dependency, and dread" or DDD. They found that individuals subject to the conditions found in prisoner of war camps had "reduced viability, are helplessly dependent on their captors for the satisfaction of many basic needs, and experience the emotional and motivational reactions of intense fear and anxiety."295 In relation to hypnosis, they found that persons under DDD had much in common as the subject "tends to respond automatically, especially to verbal stimuli, to be greatly influenced by the attitude of the hypnotist, and to be highly selective in his social responsiveness."296

Thus, there are lessons to be learned from the hypnotised defendant.

Many psychologists say that a person cannot be forced to do something under hypnosis that they would not do while fully conscious. Meerloo says that it is true that:

no hypnotizer can take away a man's conscience and inner resistance immediately, but he can arouse the latent murderous wishes which may become active in his victim's unconscious by continual suggestion and continual playing upon those deeply repressed desires. Actual knowledge of methods used in brainwashing and menticide proves that all this can be done . . . the incitement to crime in a hypnotic state demands specially favourable conditions, but unfortunately these conditions can be found in the real and actual world.297

Meerloo notes the case of New York v. Leyra where the Court disallowed a confession for a murder obtained under hypnosis. This is an example where an individual was coercively pressured to confess to a crime that he did not commit.

One of the most sensational cases of hypnosis and crime was the 1930's case with Dr.

Sigvard Thurneman in Stockholm, Sweden. There was a crime wave that began in 1930 with the murder of Sven Eriksson with no apparent motive as his personal belongings were not taken. This

294 Spanos, supra note 293 at 41. 2951. E. Farber, Harry F. Harlow & Louis Jolyon West, "Brainwashing, Conditioning, and DDD (Debility, Dependency, and Dread)" (1957) 20 Sociometry 271 at 273 [Farber, Harlow & West]. 296 Ibid, at 278. 297 Meerloo, Rape, supra note 76 at 62. 298 New York v. Leyra 302 N.Y. 353 (1951) [Leyra]. 299 Wilson, supra note 2 at 40. 57 was followed by numerous burglaries and two car thefts. A local man and his housekeeper were

found shot, and his house burned. The next victim was found dead in her burning house. The next

murder was witnessed by an individual who saw two men driving away from the scene of the

shooting.300 The one link that connected all of the victims was that they were seeking treatment for

"nervous disorders" from Dr. Thurneman. Thurneman and one of his friends, Hedstrom, had met in

university and developed an interest in hypnotism, and became fascinated with perpetrating the

"perfect crime."301 Several of his patients would reveal where they kept their valuables while under

hypnosis, and then Hedstrom and Thurneman would formulate crimes based on that information.

The crimes became more elaborate, including boring a hole in the house of a rich widow and gassing

her with the exhaust from their car outside. Thurneman had a cultic personality, and was obeyed

loyally by his followers who did whatever he demanded, many under the influence of hypnosis. This

included one follower whom he convinced to commit suicide while under hypnotic suggestion.304 He

also used hypnosis to "seduce under-age girls, and then - according to his confession - disposed of them through the white slave trade."305 Any witnesses were simply murdered. After he was caught planning to destroy the local post-office with large quantities of dynamite, Thurneman was found insane and transferred to an asylum.306 Although there was not an opportunity to use hypnotic suggestion formally as a defence, the possibilities arose that this could happen in the future.

Some have theorized that simply believing in hypnotism is key. Winn notes that "[i]f people believe that when they are hypnotised they are not in control of their actions, they may well be the

300 Ibid. 301 Ibid, at 42-43. 302 Ibid, at 43. 303 Ibid. 304 Ibid. 305 Ibid. 306 Ibid, at 44. Wilson theorizes, at 44-45, that Thurneman had a great mind and could have been a successful academic but it is "far easier to commit a successful crime than to launch a successful theory or write a successful book. ... we judge the artist by his highest moments, the criminal by his lowest. Creativeness involves a certain mental effort; destructiveness does not." 58 more ready to abdicate responsibility for what they do. So, if, as in Korea, a prisoner felt he was no

longer master of his fate, he might be induced under hypnosis to reveal information he would never

normally give because, in that situation, he could feel justified in attaching no blame to his actions."

Bowart cites the experiments of J. G. Watkins in 1947 to elicit criminal behaviour in those who are

hypnotised.308 Watkins used army volunteers and tried to present a "distorted view of reality" which

"allowed them to avoid direct conflict with their own moral concepts."309 Watkins hypnotised one

outwardly healthy subject to strangle a superior officer. The subject attempted to do so and had to be

removed from the officer by three assistants and came very close to killing his target.310

With this basis, it has been noted that the law of hypnotism dictates that the "subject is more a

victim of the crime than its perpetrator, and that a search beyond the primary actor will reveal another

to whom the criminal action may more appropriately be ascribed." ' This leads to the idea of

superimposed intent as the will of the actor really is not his own. It has been suggested that

brainwashing would not fit into the Model Penal Code's treatment of hypnosis, but the fact that there

could be transferred actus reus in the code suggests that if that victim deserves "exoneration, the same

consequence should follow when it is the element of mens rea that is externally induced." 2 Given

the medical evidence on persuasion, Delgado argues that this "extension is now appropriate" and

"[l]ike the addition of newly discovered elements to the periodic table, recognition of a defense based

on transferred mens rea simply fills in an existing asymmetry in the theory of criminal excuses." 13

307 Winn, supra note 59 at 151 [emphasis in original]. 308 Bowart, supra note 146 at 62. 309 Ibid. 310 Ibid, at 63. 311 Delgado, "Ascription", supra note 52 at 13. 3,2 Ibid. 313 Ibid, at 14. See also R. v. Trochym [2007] 1 S.C.R. 239, S.C.J. No. 6 [Trochym] where the issue of the use of evidence gained by post-hypnotic suggestion was dealt with by the Supreme Court. The court rejected this evidence and found that the trial judge had "erred in assuming that post-hypnosis evidence was admissible where guidelines that had been adopted by lower courts were followed. Post-hypnosis evidence did not meet the requirements for the admissibility of novel scientific evidence and the guidelines 59 However, the issue with brainwashing is quite the opposite; the point of the brainwasher is to make his subject do exactly something they would not usually do.

ii. Stockholm Syndrome314

Several theorists have noted the similarity between brainwashing and Stockholm Syndrome. The latter is:

a term which was coined in 1973 to describe the puzzling reactions of four bank employees to their captor. Three women (Birgitta Lundblad, Elisabeth Oldgren, and Kristin Ehnmakr) and one man (Sven Safstrom), taken hostage in one of the largest banks in Stockholm, were held for six days by two ex-convicts, Jan-Erik Olsson and Clark Olofsson, who threatened their lives but also showed them some kindness. Reporter Daniel Lang, curious about the 'sort of community' that developed between the captors and captives, interviewed the major parties involved in the ordeal.315

The hostages, held for 131 hours, had opportunities to escape, and when one of the hostages did signal to police how many hostages were inside, she reported feeling "like a traitor."

One captive agreed to be superficially shot; rather than kill him, the captor said that he would only shoot him in the leg. This hostage later recalled that all that "comes back to me is how kind I thought he was for saying it was just my leg he would shoot."317 The captives refused to leave because they felt that their jailors would be killed by police, and only left after "embracing and kissing their captors."318 There is no universally accepted definition of Stockholm Syndrome, but Graham defines it as having one or more of "(1) positive feelings by the captive toward his or her captor; (2) themselves were insufficient ... it was evident that the technique of hypnosis and its impact on memory were not understood well enough for post-hypnosis testimony to be sufficiently reliable in a court of law." Rejecting the lower court decisions the Supreme Court found, at para. 24, that the trial courts error was to assume that post-hypnosis evidence is "admissible provided that the Clark guidelines are followed. This is an error, both because the Clark guidelines themselves are insufficient and because post-hypnosis evidence does not meet the requirements of J.-L.J. admissible provided that the Clark guidelines are followed. This is an error, both because the Clark guidelines themselves are insufficient and because post-hypnosis evidence does not meet the requirements of J.-L.J." Thus, this is an error both because the Clark guidelines were not met and because post-hypnotic evidence does not meet the requirements of J.-L.J. 314 Stockholm syndrome does not specifically appear in the DSM IV. 315 Graham, supra note 51 at 1. 316 See Louis R. Franzini and John M. Grossberg, Eccentric and Bizarre Behaviors (New York: Wiley, 1995) at 82 [Franzini & Grossberg]. 317 Ibid, at 83. 3lsIbid. at 84. 60 negative feelings by the captive toward the police and authorities trying to win his or her release; and

(3) positive feelings by the captor toward his or her captive." 19

iii. POW Cases

Although it was with the American POW cases that the concept of brainwashing as a defence to

criminal liability first arose, the cases have not provided a firm basis for the defence. Thomas Nolan

noted that "despite the undeniable hysteria, and the weight lent it by the new journalistic and scientific

studies, in the cases arising from the alleged indoctrination of American POWs in the Korean War, the

military courts roundly and without exception rejected indoctrination as an affirmative defense to

criminal liability."320 This is not entirely true given the lack of disciplinary action against Col.

Schwable, below, but this was in response to a military inquiry, and not to a formal legal

proceeding. What is known is that many secret unethical tests and inhumane trials were performed

in order to understand the conditions of POW's. While reporting on the Patty Hearst trial, Boyce

Rensberger of the New York Times wrote that tests were performed after the Korean War on:

human subjects, exposing them to pain, sleeplessness, starvation and other stresses to see how these affected personality, thinking and behavior. Although the studies, many of them unpublished experiments on conscientious objectors, nearly all suggest that such stresses can reduce a person's faith in himself and increase his psychological dependence on those manipulating the stresses. 2

In fact, it has been noted that given the extreme manipulation experienced by prisoners of war, some

showed "remarkable sales resistance."323 Winn notes the paradoxical nature of our feelings about

319 Graham, supra note 51 at 31. 320 Thomas D. Nolan III, "The Indoctrination Defense: From the Korean War to Lee Boyd Malvo" (2004) 11 Virginia Journal of Social Policy & the Law 435 at 439 [Nolan]. See generally in "Misconduct in the Prison Camp: A Survey of the Law and an Analysis of the Korean Cases" (1956) 56 Columbia Law Review 709 ["Prison Camp"]. 321 Nolan does note, supra note 320 at 440, that "[a]t least as regards the military, it seems well-settled that indoctrination will not be a defense for a POW accused of conspiring with the enemy." 322 Boyce Rensberger, "A Brainwashing Defense: Delving Into Murky Area" New York Times (17 February 1976) at 28 column 5 [Rensberger]. 323 Farber, Harlow & West, supra note 295 at 271. 61 brainwashing and POW-type victims. Despite this resistance, one of the most recorded POW experiences is that of Colonel Frank H. Schwable.

I. Colonel Frank H. Schwable

One case that was successful in raising the potential of defence of brainwashing, although it was through "prosecutorial discretion" and not through a formal court ruling,324 was a result of a four- week military inquiry into the capture and torture of Colonel Frank H. Schwable.325 This was the first of this type before an American military tribunal.326 Col. Schwable was shot down over Korean territory in July 1952 after inadvertently flying over enemy lines, and was taken prisoner by the

Chinese Peoples' Volunteers.327 Schwable had 20 years of military experience by the time he was taken prisoner, and was extensively decorated.32 The inquiry noted that Article 1223 of the United

States Navy Regulations and Section 0919 of the United States Navy Security Manual (1951) provided that Col. Schwable was only able to disclose his rank, serial number, home address, and

•52Q place and date of birth to his enemy captors. He was kept in solitary confinement for all of his 14 months imprisonment in Korea in "small, dark, dirty hovels without adequate protection from the elements, and without heat or artificial light. The majority of this time, about three months, was spent in a stick and mud 'lean-to' approximately three (3) feet wide, six (6) feet long, and seven (7) feet high under the eaves of a Korean house." ° The inquiry goes into some detail regarding the deprivations and inhumanities experienced by Schwable, including the "near-starvation diet,"

324 Nolan, supra note 320 at 440 n. 27. 325 "Text of Inquiry Findings on Marine Col. Schwable and Comments by Defense Officials" (1954) New York Times 16 (April 28, 1954) [Schwable Inquiry]. 326 Elie Abel, "Schwable Case: 'The Caine Mutiny' In Real Life" (1954) New York Times E6 (February 21, 1954) atE6 [Abel, "Schwable Case"]. 327 Schwable Inquiry, supra note 325 at 16. 328 Abel, "Schwable Case", supra note 326 at E6. Col. Schwable received the Nicaraguan Cross of Valor, The Legion of Merit, four Distinguished Flying Crosses, 10 Air Medals, the Second Legion of Merit, and a Gold Star in lieu of a third Legion of Merit. 329 Schwable Inquiry, supra note 325 at 16. 330 Ibid. 62 deprivation of water, no "latrine privileges" forcing him on at least one occasion to foul his

clothing.331 In a common manner, according to the brainwashing techniques described above,

Schwable's sleep was frequently broken by "guards shining a light in his eyes" and deprivation of

medical and dental attention.332 The Colonel testified that if he had not told his captives what they

demanded he was convinced that "I would today still be either a prisoner of war or else in my

grave."333 He noted that:

[e]very effort was made to degrade and humiliate me and to reduce me to the level of an animal wallowing around in dirt and filth, living practically the life of a beast in a cage. My inherent pride as a Marine officer was submerged and with it my moral and spiritual outlook was contaminated. At the same time, it became habitual and easy to lie, and as natural to write a false or purely creative material as it is to speak and honor the truth in a free land.334

Schwable had a difficult time testifying about what had happened to him, saying that mental torture is

a "more subtle form" and that he had suffered the "tortures of the damned."335 Col. Schwable

eventually capitulated to some of the demands of his captors and was required to write extensively

about his 20 years of military training. Schwable confessed to the inquiry that a person "can be broken down eventually, heroics notwithstanding."336 His captors concentrated their interrogation efforts on "bacteriological warfare" that they suspected of the American forces, and by late November

1952, Schwable wrote a statement that he had participated in this type of operation and by February

1953 he participated in a film that stated that he was a part of bacteriological warfare337 and confessed that he was "conducting germ warfare against the enemy."338 The Colonel retracted these

331 Ibid. 332 Ibid. 333 Abel, "Schwable Case", supra note 326 at E6. 334/^. 335 Elie Abel, "Schwable Tells of P.O. W. Ordeal" (1954) New York Times 1 (March 12 , 1954) at 1 [Abel, "Schwable Tells"]. 336 Abel, "Schwable Case", supra note 326 at E6. Schwable Inquiry, supra note 325 at 16. 338 Warburton, supra note 58 at 77. 63 "confessions" as soon as he was repatriated in the United States.33 He explained that the "words were mine, but the thoughts were theirs. That is the hardest thing I have to explain: how a man can sit down and write something he knows is false, and yet, to sense it, to feel it, to make it seem real."3

It was the finding of the Marine Corps Court of inquiry that, particularly the film produced, caused "embarrassment to and brought discredit upon the United States in its international relations and required official denials."341 However, the inquiry also found that the Communists had

"developed, and perfected, a diabolic method of torture which combines degradation, deprivation and mental harassment, and which is aimed at the destruction of the individual's will to resist."342 One of the findings of the inquiry which was criticized by the attached comment by Marine Corps

Commandant Gen. Lemuel C. Shepherd Jr. was the statement that this "method can be applied to an individual continuously over such a long period of time by a skilful, ruthless and determined enemy that one of three events inevitably takes place: a. The victim's will to resist is broken, and he responds as the enemy desires, b. The victim becomes insane, c. The victim dies."343 Using this model the inquiry concluded that the Colonel "resisted this torture to the limit of his ability to resist" and the recording was made as the result of "mental torture of such severity and compelling nature as constituted reasonable justification for entering into such acts."344 It was their recommendation that

"no disciplinary action be taken in the case of Colonel Schwable by reason of acts which he committed while a prisoner of war between the date of 8 July, 1952, and 6 September 1953."345

Despite these limitations, this was a successful use of a quasi brainwashing defence.

Schwable Inquiry, supra note 325 at 16. 340 War burton, supra note 58 at 77. 341 Schwable Inquiry, supra note 325 at 16. 342 Ibid. Ibid. This finding of the Inquiry seems to come from D. Joost A.M. Meerloo, see Elie Abel, "Eisenhower Gives View on Schwable: Says Such Men Must Not Be Judged Too Severely, but Command Is a Factor" (1954) New York Times 15 (March 11, 1954) [Abel, "Eisenhower"]. Schwable Inquiry, supra note 325 at 16. 345 Ibid. 64 Commandant Shepherd was asked to review the findings of the inquiry. The Commandant is careful to note that it would only be upon the "most convincing proof that such coercion would be sufficient to constitute a "reasonable justification. Each case must be determined in accordance with its own circumstances."346 He also notes that others were successful in resisting the attempts at brainwashing, saying that "[s]ome found the strength in religious faith, a few possessed the toughness of fiber needed to defy their captors' every demand. Others broke under the strain of the mental and physical duress to which they were subjected. There were still others, among those who will never return, who no doubt resisted as long as the breath of life remained." 7 One of the most interesting comments made by the Secretary of the Navy was that the "methods of physical and mental torture utilized by the Communists required continued study and understanding in order that the Department of Defense may develop a policy for the training and conduct of all those in the military establishment." 48 Thus, not only was Schwable acquitted but there was a call for further government research.

The cases which have most exemplified these principles of mitigation of sentence are mainly found within the POW cases of the Korean War. However, commentators have noted that there was an "apparently inconsistent course of action adopted by the Air Force and the Army."349 It was summarized that:

[o]n May 4, 1954, the Air Force announced that it would not prosecute any of its repatriated personnel. However, the Air Force did establish a Board of Inquiry composed of unnamed generals to study the files of the 224 returned airmen. The board said it would give due recognition to the mental and physical suffering endured by many prisoners as well as the responsibilities of military men in war. Of the 83 individuals whose cases required further investigation, 69 were cleared, but 14 others were ordered honourably discharged after study raised 'a serious question concerning their continued usefulness in the Air Force.' Misconduct in 9 of the cases consisted of signing germ warfare confessions. Eight of the 14 resisted the

Schwable Inquiry, supra note 325 at 16. 347 Ibid. "'Ibid. 349 "Prison Camp", supra note 320 at 791. 65 discharge orders and were given a further hearing . . . The orders were upheld in all but four cases.35

Lunde and Wilson argue that there was a gradation of sentences from those prisoners who had committed "lesser" crimes. 51 However, they do note that the "military can acknowledge not only wrongdoing by punishing it, but also good works by rewarding and decorating them. Thus, the military can satisfy the retributive concern of not treating alike those who did resist and those who did not by decorating and honoring those who resisted."352

iv. Patty Hearst

Imagine that your teenage daughter is dragged from her apartment in the middle of the night while wearing only panties and a bathrobe. Screaming, she is forced into the trunk of a waiting car. Though her screams attract the attention of her neighbors, they are unable to help as they are driven back into their homes by the kidnappers' gunfire. Terrified, she is imprisoned, bound and blindfolded in a closet for fifty-seven days, and subjected to mental and physical cruelty and torture. This nightmare was the actual fate of Patricia Hearst . . . who was kidnapped on February 4, 1974, by a group that identified itself as the Symbionese Liberation Army ("SLA").353 I. Background

Although there was a marked decrease in reported brainwashing cases after the Korean War, this changed with a "high-profile case involving a young attractive alleged 'brainwashing' victim."354

California v. Hearst was the first major American case to discuss the concept of brainwashing, although her lawyers were loath to do so by name. 55 It has been recorded that at the time of the

Hearst trial there was very little use of the term "brainwashing" in law, and "no reported case in

Anglo-American law has accepted brainwashing as a defense to criminal liability."356 Before Hearst the term "brainwashing" only appeared in a 1959 case in the United States, California v. Otis in the

350 Ibid, at 791 n. 609 (references excluded). Lunde & Wilson, supra note 92 at 379-80. 352 Ibid, at 381 n. 139. 353 War burton, supra note 58 at 73. 354 Nolan, supra note 320 at 441. Nolan notes, supra, note 320 at 441 that during this time "[indoctrination, brainwashing, coercive persuasion, and all their terminological brethren ceased to [be] topics of serious scientific inquiry, and were largely relegated to the realm of popular cinema." 355 California v. Hearst, 466 F.Supp. 1068, 53 A.L.R. Fed. 110 (1978) [California v. Hearst]. 356 Lunde & Wilson, supra note 92 n. 4 at 342. 66 context of a defence of duress. In the dictum in Otis the Court discussed the implications in the

defence to duress and stated that "[w]e have more recently learned that duress may factually be caused

in many ways and by many techniques; for example, by the process popularly known as

'brainwashing.' This modern discernment of the psychological factors of duress at least throws some

doubt on the extreme niceties of these legal distinctions between fear of serious bodily harm and fear

of life itself."358

Patty Hearst was the granddaughter of newspaper magnate William Randolph Hearst, and heir to

his estate.359 She was kidnapped by the SLA who demanded a ransom from her father.360 Hearst was

"kept bound and blindfolded in a closet for several weeks, physically assaulted, forced to have sex

with SLA members, and threatened with death."361 The SLA kept audio tapes of their interrogations

and indoctrinations of Hearst, and it is clear from the early recordings of Ms. Hearst indicate that she

was "terrified of her captors." 2 Yet, approximately two months after her kidnapping she sent a

message that she had been given a "baptismal name" of "Tania" and that she was staying with the

SLA of her own volition.363 Researchers have said that when:

Hearst was first captured she was subjected to constant assaults of mental cruelty and torture. Members of the SLA would 'periodically open the door to her prison and shout slogans and propaganda, condemning her as a 'bourgeois bitch.' Hearst was also subjected to repeated rapes by various members of the SLA. Consistent with the textbook process of brainwashing,

357 174 Cal. App. 2d 119, 125 344 P.2d 342 (1959) [Otis]. 358 Ibid at 125. See section on duress below. 359 Nolan, supra note 320 at 441. 360 See Taylor, supra note 46 at 10, as the SLA demanded "a ransom from the Hearst Corporation, including not only requests for money but for a food give-away worth millions of dollars and the release of two SLA members jailed for murder." 361 Ibid 362 See Reeves, supra note 83 at 253 where Dr. West recounts his sessions with Ms Hearst. He noted that he "began to see some findings that were very reminiscent of the survivor syndrome as we called it." He went on to say that "each time I would come back to certain moments like the night of her kidnapping or what had happened to her when she was put in the closet, there would be the same kind of collapse. This was not only weeping and apparent inability to talk, but there would be a marked pallor of the face, especially around the nose and the mouth, very rapid pulse, sometimes going up as high as 140, which is twice the normal pulse, a cold clammy sweat would come over her and it was clear that this was someone who was terrorized or who was really experiencing some kind of a profound fear." 363 Nolan, supra note 320 at 442. 67 as her grip on her free will was weakening, the same members of the SLA began treating her in a more comradely fashion and exposing her to their political beliefs.

Hearst made several statements that were released to the press while she was captive. In one she said that she wanted to address the press speculation that she had been "brainwashed," insisting that she wrote her statements herself and that she had "never been forced to say anything on any tape. Nor have I been brainwashed, drugged, torture, hypnotized or in any way confused."365 These statements would become extremely detrimental during her subsequent legal battle.

II. Court case

Without apparent duress, Hearst participated in the robbery of a bank in San Francisco, and discharged a gun during a robbery of a sporting goods store in Los Angeles. The "central issue at trial was whether Hearst had joined her abductors subsequent to her kidnapping and participated in the robbery voluntarily, or whether she was forced to participate - either by threats of death if she refused or as a result of beliefs inculcated in her through an indoctrination process of the SLA."367 The main issue in the case was "where coerced behaviour ends and truly voluntary action begins for persons who appear to have changed their loyalties and values while held in captivity."368 Although the term

"brainwashing" was not used at trial, the media used the term, leading the press to conclude that the jury rejected this "implied brainwashing defense."3

Interestingly, the jury was physically taken to view the closet in which Hearst was imprisoned.

Counsel then drew parallels between this closet and the cages which held POWs in wartime. Hearst

364 Warburton, supra note 58 at 89. 365 California v. Hearst, supra note 355 at 118 [emphasis in original]. 366 Nolan, supra note 320 at 442. 367 Lunde & Wilson, supra note 92 at 342. 368 Ibid 369 Ibid. See also Taylor, supra note 46 at 10 that there was a focus, and bias, regarding Hearst's opportunities to escape her captors, and the fact that she took the "Fifth Amendment (the right not to answer a question when the answer could be incriminating or dangerous) forty-two times." 68 described the isolation in this closet as "disorienting and anxiety-provoking." Dr. Louis J. West

also made the connection to POW's in Korea and the stress associated with this type of

incarceration.371 Lifton testified at trial about the importance of seclusion, testifying that the:

control of all communication in the environment is not only an important step, it is the basis for the whole process. In other words, the captors, those that are performing the process of coercive persuasion, control everything the victim sees, feels and experiences . . . And the reason why this is so basic to the full process is that the victim begins himself to feel totally controlled by his captors, and they become omniscient to him, that is, they become all-knowing people who understand him, who know things about him that he never dreamt of, who simply have total access to everything about him. And in that sense he begins to feel inwardly controlled. And that's reflected in a process by which, even after he may no longer be in direct control of his captors, when they become his former captors, he still feels their presence inside of him.372

These reflections come from the research on well-trained military prisoners of war, not the

experiences of a young, scared civilian. Lifton noted while on the witness stand in the Hearst trial that

"it's much easier to break people down than it is to rebuild them. In fact, that was one of the real

lessons that I learned from this continuing study. The mind is rather fragile. It can be broken down.

Its coherence can be rather readily destroyed in a very brief amount of time; but, it's much more

difficult to build it up, to create a meaningful set of ideas or idea structures."373

Hearst explains that she was threatened with death as her captors had said that she was going to join or she would die.374 Hearst explained her own physical condition was deteriorating while she was

370 Lunde & Wilson, supra note 92 at 349 at n. 32. Lunde & Wilson cite the commanding officer of the U.S.S. Pueblo, Cmdr. Lloyd M. Bucher, at 349 n. 32 as explaining why they were not converted to the views of their captors because "the reason we had very little problem with permanently changing our mind individually was because we were always a collective. We always had that strength. When you were at your weakest moments, being able to have some conversation with someone else who could give you a thumbs up or pat you on the bottom and say, 'now hang in there, you'll make it." 371 Reeves, supra note 83 at 266. See Charles Patrick Ewing & Joseph T. McCann, Minds on Trial: Great Cases in Law and Psychology (New York: Oxford University Press, 2006) at 38 [Ewing & McCann]. West campaigned Randolph Hearst to testify at his daughter's trial. Ewing describes an "ambulance-chasing" letter written to Randolph Hearst and calls into question his credibility. 372 Lunde & Wilson, supra note 92 at 349-50 at n. 33 citing from Hearst Trial Transcript. 373 Reeves, supra note 83 at 316. 374 Patricia Hearst, Every Secret Thing (Garden City, NY: Doubleday, 1982) at 86 [Hearst]. Hearst noted that it was ""kinda like the pet chicken people have on a farm - when it comes time to kill it for Sunday 69 captive, even after she was allowed to leave the closet. She explained, "I experienced more and more

trouble walking to and from the bathroom, even with someone holding me up by the arm. At one

point, I simply melted to the floor. I couldn't stand up unsupported for more than a few seconds. My

knees would buckle and my body would turn to mush. I found myself in serious distress - weak,

feverish, depressed, and increasingly confused."375 In an affidavit submitted to the Court, Hearst's

lawyers argued that "under the pressure of these threats, deprivations of liberty, isolation and terror,

she felt her mind clouding, and everything appeared so distorted and terrible that she believed and

feared that she was losing her sanity, and unless soon freed, would become insane."37 However, the

insanity defence was not an option for the Hearst team.

Dr. Lunde was one of three court-appointed psychiatrists in the Patty Hearst case along with Dr.

West and Dr. Seymour Pollack, as well as psychologist Dr. Margaret Singer. All doctors agreed,

based on separate examinations producing separate reports, that there was "no evidence of psychosis

or other serious mental disease or defect in the defendant, such as would deprive her of her

competency." 77 Dr. West diagnosed Hearst as having a condition with:

abrupt and traumatic onset marked by stress induced fear, pain, physical immobilization, isolation, sleep loss and sensory distortion. The last, that is, the sensory distortion, involved prolonged loss of vision by blindfolding, together with auditory over stimulation produced by the constant playing of the radio and . . . prolonged and terrifying interrogations ... As a consequence of this severe stress she became acutely regressed, that is to say, childlike, and developed a childlike dependency upon her captors; a marked constriction of sphere of thought and a considerable degree of physical debility. 78

Dr. Sargant, discussed above, also interviewed Hearst and stated that "[thirty] days being blindfolded

is the maximum a person can take before a 'breakdown' occurs, after which the brain goes into an dinner, no one really wants to do it.. . You can join us and fight with us, and that'll mean you can never go home again or ever see your folks or your old friends - or you can die." 375 Hearst, supra note 374 at 82. 376 Shana Alexander, Anyone's Daughter: The Times and Trials of Patty Hearst (New York: Viking Press, \919)?A1Q [Alexander]. 377 Lunde & Wilson, supra note 92 at 343 n. 5 citing a Memorandum and Order, United States v. Hearst, Cr. 74-364-OJC, by Justice Carter dated November 7, 1975 at 3. 378 Reeves, supra note 83 at 256. 70 'inhibitory' reverse." Sargant notes that "through an unrelenting campaign of mental cruelty,

sensory deprivation, malnutrition, threats of death and injury, and the constant confusion of affection

and abuse [Hearst] was broken. She receded into herself, shut off her feelings and emotions, and did

what she was told."380 Sargant later stated publicly that "[t]here will never be any doubt in my own

mind that Patty Hearst was 'brainwashed,' 'forcibly converted,' 'coerced in thought and deed,' or

whatever other expression one chooses to use for the same thing."381

Hearst explained her transformation in her autobiography, Every Secret Thing3*2 She explained

that:

changes had come over me subtly since I had been brought into this strange world of the SLA. In time, although I was hardly aware of it, they turned me around completely, or almost completely. As a prisoner of war, kept blindfolded in that closet for two long months, I had been bombarded incessantly with the SLA's interpretation of life, politics, economics, social conditions, and current events. Upon my release from the closet, I had thought I was humoring them by parroting their cliches and buzz words without personally believing in them. Then, following the nightmare of the bank robbery ... a sort of numbed shock set in. To maintain my own sanity and equilibrium while living and functioning day by day in this new environment, I had learned to act by rote, like a good soldier, doing as I was told and suspending disbelief.383

Even given the extraordinary amount of expert testimony, and the testimony of Hearst herself who

recounted an almost textbook account of brainwashing, a jury convicted Hearst and the judge rejected

brainwashing as a mitigating factor and sentenced her to seven years imprisonment.384 However, the

brainwashing defence was not truly tested because at the last minute Hearst's lawyer, F. Lee Bailey:

379 Warburton, supra note 58 at 74. 380 Ibid. 381 Rensberger, supra note 322 at 28. 382 Hearst, supra note 374. ™ Ibid, at 178. 384 Nolan, supra note 320 at 442. This was in addition to the plea of no contest to the shooting in which she received time served and 5 years probation. See Ewing & McCann, supra note 371 at 31 following for an account of all of the issues with the presentation of evidence, and the issues with experts called to testify in this case 71 "backed away from his planned 'brainwashing' defence . . . [A] close examination of her trial records may shed a great deal of light on the problem an individual faces in pleading 'mind control.'"385

An examination of Bailey's closing argument reveals a rambling hours long discourse in which he mentions the term "mind control" in reference to the prosecution who stated that in closing Bailey did not bring evidence that one of her captors, "Cinque" had known something about "mind control."386 Bailey admits that he intended to call evidence of mind control, stating that "I did say that and I said it because I believed it, and when I sat down with [a witness], before I put him on the stand, because I had not met him when I spoke to you originally, he did not have that degree of certitude which I thought as a lawyer I should bring before the jury. And so I left it out, and my price for leaving it out is the comment [the Prosecutor] made." Bailey does mention that there were "fifteen experts in coercive persuasion" called throughout the trial, but he does not highlight any of this testimony.388 Instead of focusing on a brainwashing defence, or any other specific defence for that matter (the word "duress" was also not used), Bailey seems more bent on discrediting one of the prosecution witnesses, Dr. Joel Fort, saying that as a "service to human decency, I thought that my duty was to cut his legs off so that he never disgraced an American courtroom again, and toward that end went the direct route to show that he is a liar of the worst stripe."389 Bailey repeatedly states that this "is a case about dying or surviving," but this is the closest he gets to a duress or brainwashing

385 Bowart, supra note 146 at 281-82. 386 Reeves, supra note 83 at 591. 387 Ibid. ™Ibid. 385'Reeves, supra note 83 at 591. In this long and rambling closing argument, Bailey seems to lose focus and talks about seemingly unrelated and irrelevant topics. He spends a great deal of time talking about military trials saying that civilians "don't know about these cases, especially those of us or those of you perhaps, who have not had much military service, not had to look at a weapon from both ends, not had to discover, quite contrary to what Mr. Browning thinks - and I perhaps could dramatize the point by pointing it at you, but I was taught not [sic] do that a long time ago - when you're looking at the business end of anything that fires a bullet, your attention is on that business end with one hope in mind, and that's that a bullet does not come out." 72 defence.390 Inexplicably, after establishing that Hearst feared for her life and made the choice to

survive, he negates his entire argument by saying "this girl, and she was pushed pretty hard, never

quite bought their program."391 He follows up this comment with the statement that the "bank was

robbed for the same kind of simple coercion that would have caused each and every one of you

without any fifty-seven days anywhere to do exactly what Cinque said." Again, characterizing

what Hearst experienced as "simple coercion" undercut his use of this defence, despite the

overwhelming expert evidence including that of Dr. Martin T. Orne who testified that she had "indeed

been 'brainwashed' by the SLA. Orne should have known whether or not Patty was brainwashed

since, as the head of the Office of Naval Research's Committee on Hypnosis, he helped develop the

coercive use of hypnotic mind control. . . Despite Orne's expert testimony Ms. Hearst's plea of duress

was ignored and she was imprisoned subject to psychiatric review."

President Carter eventually commuted Hearst's sentence after she had served almost two years of

incarceration. The changing attitudes regarding this phenomenon are noted by Delgado, who says

that the "public attitude toward Patricia Hearst is illustrative. According to a field poll, early in 1975

about ninety percent of the general public believed that Patricia Hearst was guilty and should be

sentenced to prison. One year later, as more of the circumstances of her treatment by the S.L.A.

became known, a 'large majority' favored imprisonment." However, by 1978 "nearly one-half of

the public favored parole or pardon."397 There was eventually a great deal of public sympathy and,

390 Ibid, at 589. 391 Ibid, at 592. 392 Ibid. 393 Ibid, at 591. 394 Bowart, supra note 146 at 281-82. 395 Nolan, supra note 320 at 442. 396 Delgado, "Ascription", supra note 52 at 7 n. 31. 397 Ibid. Delgado notes that shortly thereafter 2 parties pleaded guilty to kidnapping, "thereby implying that Miss Hearst was blameless for the manner in which she became involved in the group. Miss Hearst's counsel feels that many persons who expressed the belief that she should receive punishment did so on the grounds that she was somehow involved in her own kidnapping." 73 despite some sense of incongruity at what had happened, "there was simply a widespread visceral sense that a young, impressionable girl who was unduly influenced by her kidnappers is somehow not entirely responsible for her acts."398 President Carter's press release about the commuting of her sentence said that "it is the consensus of all those most familiar with this case that but for the extraordinarily criminal and personal experiences that the petitioner suffered at the hands of the SLA she would not have become a participant in the criminal acts . . . and would not have suffered the punishment and other consequences she has endured."399 It is interesting to note that Hearst's captors were sentenced to a shorter period of incarceration than she was.400 Hearst was granted a full pardon by President Bill Clinton just before he left office in 2001.401

III. Implications

On the surface, Patty Hearst seemed to revert to her "old" self after the completion of the trial.

Delgado cites an interview that he conducted with Lifton who noted that it is largely accepted that

"[fjhese persons may not, however, return to the same 'place'; the post-thought reform personality may contain elements of both the old and the imposed self. . . Although not the same young, naive woman who had been engaged to [be married], she was recognizably Patty once again."4 2 However, it is difficult to fully understand the implications for a brainwashing defence because the defence was so scattered in this case. From a duress perspective, Hearst's defence failed largely because of her perceived opportunity for a means of escape after the bank robbery.403 This is a common theme among many duress cases in North America.404 From a brainwashing perspective, the Court did "not

398 Nolan, supra note 320 at 443. 399 i,'Patt y is Free and Older" (1979) Time Magazine (February 12, 1979) ["Patty is Free"]. 400 Judith Lewis Herman, Trauma and Recovery (New York: BasicBooks, 1992) at 115 [Herman]. Some have noted that this pardon resulted because of the standing of her family more than for any other reason. 401 Ewing & McCann, supra note 371 at 42. 402 Delgado, "Ascription", supra note 52 at 9 n. 38. 403 Lunde & Wilson, supra note 92 at 357. 404 Ibid. Lunde & Wilson note, at 357, that it was difficult to argue her fear for her life because she was found alone with a gun in a van in Los Angeles while her captors were perpetrating a robbery, in addition 74 affirmatively accept the defense in Ms. Hearst's case. However, in announcing his sentence the judge neglected to impose a sentence until Hearst was thoroughly examined."405 This has given some hope that the brainwashing defence could be successful in the future.

From an evidentiary perspective, Warburton notes the importance of expert opinion in criminal matters involving brainwashing because, although jurors hold beliefs that brainwashing is a process used by cults, the "failure of Patty Hearst's case indicated that jurors apparently are less accepting of the defense in criminal cases; therefore, scientific testimony is essential to inform jurors of the effects of various brainwashing methods on a defendant and to correct any misinformation a juror may possess."406 Even though Hearst testified about the horrific treatment she suffered and had the testimony of three psychiatrists to confirm her coercion, the jury did not believe that she was not an active participant. Warburton notes that the principles to come out of Hearst are that "(1) a defendant arguing brainwashing possesses the requisite intent to commit the crime; and (2) coercion does not completely exculpate a brainwashed victim."408 There also remained the question of whether the victim could take these elements into consideration upon sentencing rather than functioning as a full defence.409

Warburton also discusses the "Frye" standard, which is the primary approach to the admissibility of novel scientific evidence in the United States. As Warburton notes, it is important to remember that "a defendant who asserts brainwashing as a defense acknowledges that he was aware of the nature to the fact that she was driven across the country by an unarmed member of the SLA. The authors note at 357 that these elements coupled with the fact that Hearst took the Fifth Amendment forty-two times and had several contempt citations, "the defendant probably destroyed the actual credibility of her duress defense and prejudiced herself in the jurors' eyes generally." 405 Nolan, supra note 320 at 443. 406 Warburton, supra note 58 at 79. 407 Ibid, at 80. 408 Ibid citing Hearst, 466 F.Supp. at 1072 (which does not explicitly state this test.) Warburton notes, at n. 73 at 81, that the judge stated that the '"jury apparently believed that Hearst freely participated in the robbery and did not believe the 'coercion theory' in spite of the overwhelming evidence to the contrary." Warburton, supra note 58 at 81. See section on mitigation below. 410 Frye v. United States, 54 App.D.C. 46 (1923) [Frye]. Warburton, supra note 58 at 90. 75 of his actions and intentionally committed the illegal action."411 Warburton concludes that the restrictions on evidence should be eliminated because, in the case of battered women, expert testimony is permissible to help jurors in their evaluation of the battered woman's state of mind.

Similarly, any evidence offered about the effects of brainwashing will aid the jury in understanding the phenomenon of 'superimposed mens rea'" which would explain to the jury why the defendant knowingly acted but without free will.412

Studies have shown the impact of novel scientific evidence, such as brainwashing, on the

American jury.41 In a study conducted by DeWitt, Richardson and Warner, their prediction that

"jurors with well-developed knowledge structures or attitude schemas concerning a topic (such as the use of'brainwashing' or 'coercive persuasion' by 'cults') will engage in biased rather than objective processing of the arguments presented." This study found that "expert testimony about the use of

'brainwashing' by new religions or 'cults' affected mock juror verdicts, particularly among more biased subjects who were motivated to scrutinize the arguments."415 They concluded that these results run counter to the notion that there is nothing inherent in novel scientific evidence which would prejudice the parties. Many jurors might use even unreliable testimony to support their assumptions. These arguments are not new to novel scientific evidence.

Nolan has noted that much like a potential brainwashing defence, there were similar evidence issues with Battered Woman Syndrome (BWS). He notes that the:

comparison of admissibility of testimony regarding the defense is useful. For years, psychologists were unable to provide testimony about Battered Woman's Syndrome, because courts would exclude it under the Frye test (or its equivalent.) However, as more research was

41' Warburton, supra note 58 at 92. 412 Ibid, at 93. This is discussed in more detail below in the section on superimposed intent. 413 See Warburton, supra note 58 at 79 n. 61. 414 John S. DeWitt, James T. Richardson & Lyle G. Warner, "Novel Scientific Evidence and Controversial Cases: A Social Psychological Examination" (1997) 21 L. & Psychology Review 1 [DeWitt, Richardson & Warner]. 4,5 Ibid, at 21. 416/Wdat23. 76 done on the phenomenon, and greater understanding of it was achieved, the syndrome was recognized by a growing number of professionals. Eventually, it receive a sufficient following to convince courts to admit the testimony of its proponents.417

Warburton believes that for a full brainwashing defence to be successful, counsel must first show "the susceptibility of the defendant to compelled conversion. Some individuals are more susceptible to influence based on age or mental deficiency. Evidence of the defendant's inclination to succumb to peer pressure or irrational obedience to authority figures would be useful."418 Second, counsel must present the methods that were used to coerce: torture, threats etc. Third, the "character traits of the defendant before, during, and after the coercive influence was imposed are important to establish that the defendant was influenced by another. If the defendant reverts to his previous characteristics after the coercive element is removed, it reinforces the argument that all actions contrary to the defendant's established character were the product of brainwashing."419 In practice this can be far more difficult.

Yet, some theorists have noted that there could be a defence taken outside of this problematic case.

Moore says that in the Hearst case:

we were certain of a causal connection between the conditioning Hearst received and her criminal behaviour. That certainty, however, was irrelevant to the issue of whether her behaviour was an action. She robbed the bank; it was her act, whether or not a situation that was not of her making implanted in her the beliefs that caused her to act . . . Such an affirmative defense is irrelevant to the issue of action. She plainly acted, whether or not her act was caused.

Lunde and Wilson note that by 1977, and still today to some extent, there was a question about whether brainwashing would become a defence or merely mitigation.421 Many realize that it was more than Patty Hearst that was under scrutiny as "[throughout the trial it was not so much Patty

Hearst as the theory of brainwashing on which the verdict was to be returned. The defendant herself

417 Nolan, supra note 320 at 454. 418 Warburton, supra note 58 at 89. 419 Ibid. 420 Michael S. Moore, "Causation and the Excuses" (1985) 73 Calif. L. Rev. 1091 at 1136-12 [Moore, "Causation"]. 421 Lunde & Wilson, supra note 92. See Delgado, "Ascription", supra note 52 at 27, n. 152 who disagrees with Lunde & Wilson that coercive persuasion should be left to mitigation. 77 seemed a spectator at her own trial."422 Scheflin and Opton recall the case of Cardinal Mindszenty of

Hungary, discussed above, who was one of the first widely touted cases of brainwashing. They note

that the "Cardinal, a sixty-three-year-old Prince of the Roman Catholic Church, after five weeks of

pressure falsely confessed in open court that he was a spy. Should Patty Hearst, barely out of her

teens, be held to a higher standard?"423 Some commentators, like Lunde and Wilson, believe that

because of the Hearst case, no brainwashing defence can be successful.424 But it can be argued that if

the brainwashing defence had not been abandoned by Bailey in the closing of the trial, there may have

been a different outcome. The jury had no choice but to reject a duress defence because, among other

elements, Hearst had a safe avenue of escape. Given the depth of expert opinion, this case could have

been won, but the very real bias against the phenomenon emerged.

v. Cults425

A full discussion of the use of brainwashing by cults and new religious movements is well

beyond the scope of this thesis. However, there are several sources which speak extensively about the

issue of cults and the role of brainwashing.42 Most of the cases which have attempted a brainwashing

422 Scheflin & Opton, supra note 7 at 64. 423 Ibid, at 78. See Hearst, supra note 374 at 443 where John Wayne defended Patty Hearst saying "[i]t seems quite odd to me that the American people have immediately accepted the fact that one man can brainwash nine hundred human beings into mass suicide [referring to the Guyana tragedy] but will not accept the fact that a ruthless group, The Symbionese Liberation Army, could brainwash a little girl by torture, degradation and confinement." 424 Delgado, "Ascription", supra note 52 at 6. 425 Dahlia Lithwick, "I Was Brainwashed! If Muhammad's Guilty is Malvo Innocent?" Slate (17 November 2003), online: Slate.com [Lithwick, "Brainwashed"] notes that "What is it about the Moonies or the Branch Davidians that makes Americans so certain that their adherents must have been brainwashed into compliance? First, brainwashing offers a clinical/scientific explanation for frankly un-American levels of religious fervor. Some religion is nice; the sort that comes with a tasteful choir and topical sermons. But head-shavings, communes, and the eating of too many legumes makes us nervous. So does mass suicide. Second, Americans place a high premium on personal freedom, such that any religion that restricts movement, choices, or association, smacks of cults to us. Believing in brainwashing allows us to consider our own religious beliefs normal, even rational, while allowing us to dismiss Jehovah's Witnesses, Mormons, and Scientologists as zombies. We can feel sorry for them and still go to church on Sunday." 426 See Coleman, supra note 136; Richard Delgado, "Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment" (1977-78) 51 S. Cal. L. Rev. 1; Ronald Enroth, Youth, Brainwashing, and the 78 Extremist Cults (Grand Rapids MI: Zondervan, 1977); Marc Galanter, Cults: Faith, Healing, and Coercion (New York: Oxford University Press, 1989); Jeffrey Kaplan & Helene Loow, The Cultic Milieu: Oppositional Subcultures in an Age of Globalization (Walnut Creek, CA: Altamira Press, 2002); Janja Lalich, Bounded Choice: True Believers and Charismatic Cults (Berkeley CA: University of California Press, 2004); J. Gordon Melton, "Brainwashing and Cults: the Rise and Fall of a Theory" in J. Gordon Melton & Massimo Introvigne (eds.), The Brainwashing Controversy: An Anthology of Essential Documents (upcoming) online: CESNUR Center for Studies on New Religions ; Margaret Thaler Singer, Cults in Our Midst: The Continuing Fight Against their Hidden Menace (San Francisco, CA: Jossey-Bass, 2003); "Notes - Cults, Deprogrammers, and the Necessity Defense" (1981) 80 Michigan Law Review 271; Alberto Amitrani & Raffaella Di Marzio, '"Mind Control' in New Religious Movements and the American Psychological Association" (2001) 1 Cults & Society: An Internet Journal 1; Lee Coleman, "Using Psychiatry to Fight 'Cults' Three Case Histories" in Brock K. Kilbourne ed., Scientific Research and New Religions: Divergent Perspectives (Logan, Utah: Utah State University, 1985) 40; Geri-Ann Galanti, "Reflections on 'Brainwashing'" in Michael D. Langone ed., Recovery from Cults: Help for Victims of Psychological and Spiritual Abuse (New York: W.W. Norton, 1993) 85; Marc Galanter, "New Religious Movements and Large-Group Psychology" in Brock K. Kilbourne ed., Scientific Research and New Religions: Divergent Perspectives (Logan, Utah: Utah State University, 1985) 64; Janja Lalich, "A Little Carrot and a Lot of Stick: A Case Example" in Michael D. Langone ed., Recovery from Cults: Help for Victims of Psychological and Spiritual Abuse (New York: W.W. Norton, 1993) 29; Michael D. Langone, Recovery from Cults: Help for Victims of Psychological and Spiritual Abuse (New York: W.W. North, 1993); Robert Jay Lifton, The Future of Immortality and Other Essays for a Nuclear Age (New York: Basic Books, 1987); Frank MacHovec, "Cults: Forensic and Therapeutic Aspects" (1992) Behavioral Sciences and the Law 31; Shawn McAllister, "Holy Wars: Involuntary Deprogramming as a Weapon Against Cults" (1998- 99) 24 T. Marshall L. Rev. 359 [McAllister]; Sandra B. McPherson, "Death Penalty Mitigation and Cult Membership: The Case of the Kirtland Killings" (1992) 10 Behavioral Sciences and the Law 65; James R. P. Ogloff, "Cults and the Law: A Discussion of the Legality of Alleged Cult Activities" (1992) 10 Behavioral Sciences and the Law 117; Ann Penners Wrosch, "Undue Influence, Involuntary Servitude and Brainwashing: A More Consistent Interests-Based Approach" (1991-92) 25 Loyola of Los Angeles Law Review 499; James T. Richardson "A Social Psychological Critique of 'Brainwashing' Claims About Recruitment to New Religions" in J. Hadden and D. Bromely, eds., The Handbook of Cults and Sects in America (1993) (Greenwich, CT: JAI Press) 75; James T. Richardson, "Cult/Brainwashing Cases and Freedom of Religion" (1991) 33 J. Church & St. 55; Thomas Robbins & Dick Anthony, "Deprogramming, Brainwashing and the Medicalization of Deviant Religious Groups" (1982) 29 Social Problems 283; J. Thomas Ungerleider & David K. Wellisch, "Coercive Persuasion (Brainwashing), Religious Cults, and Deprogramming" (1979) 136 Am. J. Psychiatry 279; Louis Jolyon West, "Pseudo-Identity and the Treatment of Personality Change in Victims of Captivity and Cults" (1996) 13 Cultic Studies Journal 125; John L. Young & Ezra E.H. Griffith, "A Critical Evaluation of Coercive Persuasion as Used in the Assessment of Cults" (1992) 10 Behavioral Sciences and the Law 89; Benjamin Zablocki, "The Blacklisting of a Concept: The Strange History of the Brainwashing Conjecture in the Sociology of Religion" (1997) 1 Nova Religio 96; Philip Zimbardo & Susan Andersen, "Understanding Mind Control" Exotic and Mundane Mental Manipulations" in Michael D. Langone ed., Recovery from Cults: Help for Victims of Psychological and Spiritual Abuse (New York: W.W. Norton, 1993) 104; Martin H. Katchen, "Brainwashing, Hypnosis, and the Cults" (1992) 20 Australian Journal of Clinical and Experimental Hypnosis 79.

79 defence have been unsuccessful;427 most cases have occurred in California, where cult activity seems

to be most prevalent.428 It has been noted that "[u]nlike the military courts sitting in judgment of the

American soldiers taken prisoner in Korea, the Courts evaluating claims and defenses in cases

involving religious cults took little (if any) notice of the published studies that focused on those

organizations."429 This discrepancy can be explained by the increasing stigma of the term overtime.

There have been many cases of cults using brainwashing techniques on various groups of people

for their own benefit. Brainwashing has been legally recognized in the case of the cult known as the

"Moonies." Winn notes that in "March 1981 an English High Court jury decided that the Moonie cult

does brainwash people (the word used), after hearing an action brought by the cult against the Daily

Mail newspaper which had printed allegations about 'the church that breaks up families.'"430

However, one of the most disturbing cases was the 1987 American appeal case of Nebraska v. Ryan

which involved a 15-year-old boy named Dennis who was convicted of first degree murder and given

the maximum sentence allowable for the death and torture of a member of his father's cult. The

defendant's father, Michael, was the leader of the cult with the power to make other members

"slaves." In this case the defendant relied upon the defences of insanity, diminished capacity, and a

brainwashing defence.433

427 See Otis, supra note 357; California v. Hoover, 187 Cal.App.3d 1074 (1986) [Hoover] (unfortunately in this case, at 1080, the court quoted a statement of Hoover saying that "[i]t was like [Richards] was coaching me. He would listen to what I said and push me on. When I was with Baldwin, I kept thinking this is the guy standing between me and money. It made me excited. I thought about guns I could buy and all the other stuff. / knew it was wrong, but I didn 't give a shit (emphasis in original.) The court, at 1080- 81, concluded from this statement that Hoover was "cap[able] of distinguishing right from wrong at the time of the killing." 428 Nolan, supra note 320 at 447. 429 Ibid, at 449. 430 Winn, supra note 59 at 3. 431 Nebraska v. Ryan, 409 N.W.2d 579 (1987) [Ryan]. 432 Ryan, supra note 431 at 581. 433 Ibid, at 582. Diminished capacity is not a defence in Canadian law although it is allowed to be considered to negate mens rea in specific intent crimes such as murder. 80 Dennis believed that his father could talk to God (whom they called the ancient term

"Yahweh") by using the strength in his forearm. A question would be asked, and if Michael's arm

was strong, the answer was "yes." If his arm was weak, the answer was "no."434 Members of the cult

who did not follow the word of God delivered in this manner were tortured, forced into bestiality, and

eventually murdered.435 Members of the cult testified that Michael had told them that he could

"deteriorate someone else's brain" and they believed his ability to do this given the results on other members of the compound.436 Witnesses believe that this had happened to Dennis as he "blindly" followed his father. 7 Another adult member, Andreas, felt that he had been "brainwashed by

[Michael] Ryan, and that is why he had not left the farm for help even though he had access to weapons and transportation. He did not realize that he had been brainwashed until 40 days after he had been separated from the . . . farm."438 The resistance of the cult leader's son was arguably considerably less.

There was extensive evidence provided by psychological witnesses to show that Dennis was not a typical 15-year-old boy. Completely contradicting the prosecution's expert witness, the defence expert, Dr. James Cole, testified that the defendant had a "kind of naivete, lack of sophistication, a lack of independence of judgment, acceptance of . . . other people's views as absolute and total. A lack of questioning of things."439 He was also said to accept unquestionably the "values, the beliefs, the religion, of his father," was said to have the maturity of a "12- to 13-year-old" and to view "his father as a martyr because he was subsequently betrayed by his followers."440 Testimony of ex-cult members supported common elements of a cult: They "gain their loyal followers by the use of mind-

434 Ibid. 435 Ibid, at 584. 436 Ibid, at 585. 437 Ibid. 438 Ibid. 439 Ibid, at 587. 440 Ibid, at 587-88. 81 control or thought-reform techniques; there normally is a living leader who demands, requires,

obedience, almost total obedience; and there is something in the doctrine of the group which says that

it is all right to break the law."441 These factors applied to this particular group, the members of which

were very isolated, surrounded by a "kind of group paranoia," had a living leader in Michael Ryan,

and were forced to commit many illegal acts.

Counsel for Dennis argued that he did not have his father's need to murder, but rather

committed these acts to obey Yahweh. It was argued that he should be convicted of manslaughter and be allowed to forward the defence of insanity which was caused by the brainwashing.4 3 The defence argued that the defendant had acted in a "folie a deux" or "shared paranoia" with his father.444

However, the appeals court found no issue with the finding of second degree murder, and no error in imposing the maximum sentence permitted, even given the unique circumstances of the case, and the youth of the accused. The Court found that there was "competent evidence presented from which the trial court could have inferred the defendant understood the nature of his acts and consciously chose to participate in the torture of James Thimm. In fact, there was evidence that the defendant enjoyed participating in the torture of Thimm and laughed and bragged about the fact that he had helped to kill him." Instead of looking at the evidence of brainwashing and the effects on a young child, the

Court instead found that he "understood the quality and nature of his acts, and had the capacity to distinguish between right and wrong . . . [and] knew his acts were wrong and punishable."446

Evidence of prosecution expert witnesses, in contradiction to the defence experts, was accepted which found that Dennis was "hypermature, or beyond his years" and he had tortured Thimm because he

441 Ibid, at 589. 442 Ibid. 443 Ibid, at 599. 444 Ibid, at 601. See below. 445 Ibid. 446 Ibid, at 601. 82 derived pleasure from sadistic behavior."447 Part of the problem with establishing a brainwashing

defence in this case was that the defendant himself testified that he "enjoyed life on the farm and was

not forced or coerced into participating in Thimm's torture and murder. There are clear

evidentiary issues when a brainwashed defendant still maintains his/her beliefs after being taken out of

the situation, which might be expected of a child who has known little, if anything, of the outside

world. The Court found that the defendant had "willing and enthusiastic participation in the

murder."449

One area of the criminal law where the brainwashing defence has been successful is under

necessity in the case of deprogrammers kidnapping cult members.450 There is much written on satanic

ritual abuse, mind control, and BWS in the context of a particular case in Keokuk Iowa in 1997.451

Brady alleges that certain stress disorders like "Battered Woman Syndrome, Post Vietnam War

Syndrome, Ritual Trauma Disorder, Rape Trauma" and other categories of similar syndromes are being used in mind control. It may be that it is difficult to decipher which came first, the trauma or the mind control, but that the "trauma may be originally introduced to create the fertile ground for further mind control."453 Brady describes several cult incidents including one in Pearl, Mississippi, where a 16-year-old student stabbed his mother with a butcher knife and then shot 9 students at his high school.45 Brady ties this, and several other examples, to various cults.455

Another area of litigation arises from cult groups, largely American, who attempt to have

"deprogrammers" imprisoned for their attempts to kidnap individuals. They deny that "brainwashing

447 Ibid. 448 Ibid, at 604. 449 Ibid, at 607. 450 Warburton, supra note 58 at 80. 451 Brady, supra note 66. 452 Ibid, at 17. 453 Ibid, at 17. 4S4Ibid. at 18. 455 Ibid, at 18, including a Vampire cult. 83 exists but argue that if it did the deprogrammers should be in jail for it. The situation is even murkier in the world of religion than it is in the world of intelligence."456 There have been criticisms of "de­ programming" those who have been in a cult. Robert Jay Lifton himself wrote extensively on cults and noted that:

[t]otalism begets totalism - and there can be notable totalism in so-called deprogramming. What is called deprogramming includes a continuum from intense dialogue on the one hand to physical coercion and kidnapping, with thought-reform-like techniques, on the other. My own position, which I have stated many times and have conveyed to parents and others who have consulted me, is that I am against coercion at either end of the cult process.457

One of the first ways that brainwashing evolved was through parents fighting legally to "deprogram" their children who had been part of the various religious organizations. Deprogramming has been defined as the "voluntary or involuntary persuasion of cult members to recant their religious beliefs."458 In 1971 an American named Ted Patrick began to use techniques of involuntary deprogramming to combat what he saw as the indoctrination of individuals by cults. Yet, in an attempt to "free" these individuals he used kidnapping and physical detainment. 59 Patrick would detail inconsistencies in the cult's message and attempt to have the individual "'snapped' out of the cult mentality."4 Although Patrick was initially successful from a legal perspective, the Courts began to disagree with his tactics.461 Historically, police were reluctant to participate because a

"family member is always involved. To the police, this can make the affair a 'family matter' which

456 Streatfeild, supra note 82 at 278. 457 Robert Jay Lifton, The Future of Immortality and Other Essays for a Nuclear Age (New York: Basic Books, 1987) at 219 [Lifton, "Immortality"]. 458 Shawn McAllister, "Holy Wars: Involuntary Deprogramming as a Weapon Against Cults" (1998-99) 24 T. Marshall L. Rev. 359 at 363 [McAllister]. 459 Ibid, at 363. 460 Ibid. 461 Ibid, at 364. Patrick was convicted of false imprisonment and was given a prison sentence. See Colorado v. Patrick, No. CR135 (2d Col. Dist. Ct. June 24, 1975) [Patrick Colorado]. He was also convicted in Utah. See also Utah v. Patrick, No. 79CR-51589, Aug. 29, 1979 [Patrick, Utah]. 84 should either be referred to the family courts or dealt with in civil courts."4 One of the other reasons for the reluctance to prosecute by some was that the "'purpose' of the deprogramming-kidnapping is not one of the traditional purposes, i.e., ransom, use as a hostage, white slavery, or sexual abuse."

Despite this reluctance, the motivation of the kidnapper as altruistic is not a defence to these very serious charges. Theorists argued that the Court system cannot "afford to say nothing when we see young people being stuffed into cars, locked up in motel rooms accused, and manhandled because they will not espouse the goals of society at large.'

Although, Patrick consistently used the defence of necessity to argue that these cult members were in imminent danger, the Courts increasingly found that these members did not require

"emergency action." 5 Slowly other deprogrammers were similarly found liable for the second degree kidnapping. One of these cases was 1996 American case of Laverne Collins-Macchio who was forced into a van and driven to a hotel where she was interrogated and lectured about her faith.466

Although the deprogrammers argued necessity in that they had to act or Collins-Macchio would move with her church to an armed bomb shelter, the Court found that they had to prove that a "specific threat of immediate harm existed at the time she was abducted."467 The Court held that Collins-

Macchio was only considering the move to her church's bomb shelter and, thus, was not in immediate

. 468 danger.

462 John E. LeMoult, "Deprogramming Members of Religious Sects" David G. Bromley, James T. Richardson eds., The Brainwashing/Deprogramming Controversy: Sociological, Psychological, Legal and Historical Perspectives (New York: E. Mellen Press, 1983) [LeMoult]. 463 LeMoult, supra note 462 at 246. 464 Ibid, at 257. 465 McAllister, supra note 458 at 365. 466 Idaho v. Howley, 920 P.2d 391 (Idaho, Jun. 21, 1996) [Howley]. 467 McAllister, supra note 458 at 366. 468 7^31363. 85 I. Successful Applications in Civil Law

The concept of brainwashing has also been used in the civil realm in the United States. Several

researchers have sought to explore "long-term coercive persuasion" from a tort perspective in its three

civil law manifestations: undue influence, involuntary servitude, and brainwashing as distinguished

from short-term coercive persuasion such as duress.469 Some define long-term coercive persuasion as

"(1) long-term pattern of influence or control by (2) a stronger personality or presence that purports to

care about the best interests of (3) an emotionally or mentally more vulnerable personality (4) where

the stronger presence actually exploits its position to further its own interests (5) causing harm to the

more vulnerable personality." Penners Wrosch looks at undue influence which she defines as

coercive persuasion which occurs "when a person who is in a position of trust persuades a donor to

confer a pecuniary benefit upon him or her." 7 She also looks at involuntary servitude which she

defines as when a "person subjects another to service without compensation." Finally, she

examines brainwashing, which she notes "differs from the other types of coercive persuasion because

the harm stems from both the results and the process of brainwashing itself."473 Penners Wrosch also

examines the proof required in long term coercive persuasion and then goes into an analysis of tort

liability. There are no easy answers regarding the use of this defence. Brainwashing is "not a magic

bullet, a short cut to thought control. Rather, it is a complex phenomenon which uses increasingly

well-understood psychological processes to wreak its havoc. While this may seem reassuring, the

consequence is that no magic bullet exists for 'anti-brainwashers' either. Brainwashing is above all a

469 Ann Penners Wrosch, "Undue Influence, Involuntary Servitude and Brainwashing: A More Consistent Interests-Based Approach" (1991-92) 25 Loyola of Los Angeles Law Review 499 at 500-01 [Penners Wrosch]. 470 Ibid at 500-01. 471 Ibid at 501. 472 Ibid 473 Ibid, at 502. 86 social and political phenomenon." Thus, trying to fit it within preformed legal reasoning is

difficult.

Other cases have attempted to use the civil system to combat cults. This was the situation in the

1977 case of Katz v. California?15 In Katz, five parents attempted to gain financial control of their

adult children whom they believed were brainwashed by a religious organization, by way of a

conservatorship which the parents felt would save their children's lives. There was testimony which

described what these young adults had suffered, including "[fjood deprivation; sleep deprivation;

isolation; the use of fear tactics; the use of guilt feelings, and indoctrination, the same tactics used on

our prisoners of war during the Korean War crisis." 7 One father testified that "I think she has her own mind, but I think it is controlled like someone under hypnosis; and in certain areas, she cannot function as an independent human being."477 One former church member described "mind control" or a "situation where a set of beliefs or doctrines are imposed upon a person through a process of either isolation or force, or using tactics of fear and guilt to impose these ideas on a person so they become unquestionable or unimpeachable."47

Unfortunately, the Court found that the evidence was "insufficient to sustain a finding that there was any emergency authorizing good cause for appointment of a temporary conservator."479

This situation is even more difficult given the religion involved in this brainwashing. The Court was careful to say that in the "absence of such actions as render the adult believer himself gravely disabled as defined in the law of this state, the process of this state cannot be used to deprive the believer of his freedom of action and to subject him to involuntary treatment."480 The Court cited Justice Jackson in

474 Taylor, supra note 46 at xi. 475 73 Cal.App.3d 952 (1977) [Katz]. 476 Ibid, at 972. 471 Ibid, at 973. 478 Ibid, at 974. 479 Ibid, at 981. 480 Ibid, at 988-89. 87 United States v. Ballard in saying that the "wrong of these things, as I see it, is not in the money the

victims part with half so much as in the mental and spiritual poison they get. But that is precisely the

thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of

speech or of the press is that we must put up with, and even pay for, a good deal of rubbish."

Eventually, three of the adults agreed to temporary conservatorships, the fourth did not agree but did

not want to bring action against her parents, and the fifth wanted the matter to proceed, but the Court

said that they rejected that appeal.482

One of the prominent civil cases, Kropinski v. World Plan Executive Council - U.S., involved

a meditation teacher who sued a Transcendental Meditation (TM) organization for causing him

financial, mental, and physical harm for which he was awarded $137,890 in damages on fraud and

negligence claims.4 On appeal, the Court considered the inclusion of expert testimony on the use of

"thought reform" that was introduced at trial to prove the fraud and negligence claims. Kropinski

alleged that TM had "resulted in a loss of memory, psychological trauma, a diminished ability to

concentrate, and arrested maturation and development"486 in addition to the fraud claim which alleged

481 322 U.S. 95 (1944) at 95 [Ballard]. 482 There have been many other cases of parents trying to remove their children from participating in new religious movements. See Robert N. Shapiro, "Of Robots, Persons, and the Protection of Religious Beliefs" (1982) 56 S. Cal. L. Rev. 1277 at 1280 [Shapiro] where Shapiro notes that in "Vermont, parents brought suit against the Unification Church, alleging enslavement of their daughter [Schuppin v. Unification Church, 435 F. Supp. 603 (1977)] and requesting that the court determine her competency to make decisions regarding her future. A probate court in Arizona appointed a father temporary guardian of his adult son, and also authorized the father to administer counseling to his son to treat a condition that resulted from adherence to beliefs of the Unification Church [Rankin v. Howard, 457 F. Supp. 70 (1978)]. The son brought a section 1985 civil rights suit in which he claimed that there was a conspiracy to force him to renounce his religious affiliation. Similar litigation occurred in Minnesota, where a daughter sued her parents and others for false imprisonment and intentional infliction of emotional distress when they tried to persuade her to leave The Way Ministry [Peterson v. Sorlien, 299 N.W.2d 123 (1980)]. In another section 1985 suit, an adult daughter sued her parents and others, alleging that they deprogrammed her from the Unification Church against her will [Weiss v. Patrick, 453 F. Supp. 717 (1978)]. Courts have decided both for and against the parents." 483 853 F.2d 948 (1988) [Kropinski]. 484 Ibid, at 948. 485 Ibid, at 951. Interestingly, it was Dr. Margaret Singer who testified for the plaintiff. 486 Ibid, at 952. 88 that he was brainwashed, creating a "dependency on TM [which] brought about a change in his

beliefs."487 It was alleged by the plaintiff that he was so intimidated by the organization that he felt

that he could not leave, which created an "emotion and physical dependency" which in turn caused an

inability to "think clearly."488

On appeal, the Court found that Kropinski should not have been allowed to admit the thought

reform evidence as a "substantive basis" for his claims, but rather it should only have been limited to

explain "why he failed to detect the fraud and persisted in his practice of TM.489 As had happened in

other trials, the Court found it necessary to comment upon the plaintiffs expert, Dr. Margaret Singer.

The Court found that Dr. Singer's theory of thought reform is not "generally accepted" in the

scientific community, which would mean that she was not qualified under the Frye standard to

testify.490 However, the Court made a very interesting statement that the plaintiff had "failed to

provide any evidence that Dr. Singer's particular theory, namely that techniques of thought reform

may be effective in the absence of physical threats or coercion, has a significant following in the

scientific community, let alone general acceptance."4 ' Yet, the Court defended the expert saying that the plaintiffs counsel did not "inquire into its acceptance by others in her profession." He

concluded the case by making it clear that "[e]xpert testimony in the TM system's use of thought

487 Ibid, at 954. mIbid. mIbUL 490 Ibid, at 956. The Frye test is no longer the general test for admissibility of scientific evidence, see Nolan, supra note 320 at 447 n. 69. See, at 452 n. 103, as it now seems that the current test is set out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kuhmo Tire Co. v. Carmichael 526 U.S. 137 (1999) [Kuhmo] which set out five factors to be considered in the admission of expert testimony including: "(1) whether the expert's technique or theory can be or has been tested - that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonable be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls, and (5) whether the technique or theory has been generally accepted in the scientific community." 491 Kropinski, supra note 483 at 957 [emphasis in original]. 492 Ibid. 89 reform may not be admitted absent proper proof of the expert's qualifications," leaving the door open

to the possibility that with a properly qualified expert, this evidence could be admitted.

More recently in the United States brainwashing was raised as a defence to mail fraud in the case

of United States v. Fishman,m where the accused alleged that the influence of the Church of

Scientology had influenced his actions. Whereas the Court in Kropinski disallowed the testimony of

Dr. Singer because of an incomplete record, this was not the case in Fishman. In this case, the Court

went through a detailed examination of the history of the research of Dr. Singer and Dr. Ofshe and

their work on brainwashing. The Court concluded that the defendant "had ample opportunity to

submit evidence in support of his contention that Dr. Singer's and Dr. Ofshe's views are accepted

within the scientific community." 5 As such, the evidentiary record provided by the prosecution and

the alternate views were more compelling.496 The Court, however, found that this type of evidence

was excluded under the Frye standard. 97 The Court has continued the trend of considering

brainwashing to be "pseudo-science." After a review of the material presented, the Court found that

there:

is no consensus or general acceptance within these associations regarding the thought reform theories of Dr. Singer and Dr. Ofshe. The proffered testimony in this case has been challenged by the scientific community on grounds of both scientific merit and methodological rigor. Dr. Singer and Dr. Ofshe contend that an individual's free will can be overborne by persuasion techniques in the absence of physical force. They further contend that they can pinpoint with scientific accuracy the degree of non-physical coercion necessary to overcome the free will of an individual having a particularly personality composite.499

493 Ibid. The case was reversed in part and sent back to trial. This strategy was attempted in Hendel v. World Plan Executive Council, 705 A.2d 656 (1997) [Hendel], but the court found that the facts of this subsequent matter were factually distinct from Kropinski, and declined to follow the statements made therein in granting the defendants summary judgment. 494 743 F. Supp. 713 (1990) [Fishman]. 495 Ibid, at 719. 496 Ibid, at 719. 497 Warburton, supra note 58 at 81. 498 Ibid. 499 Fishman, supra note 494 at 719. 90 The Court recognized the observable limits of brainwashing research, using the example of a

panhandler asking for money as being non-coercive (some give money and some do not), but when

a "mugger holds a knife at a victim's throat and asks for money, most people give it."500 The

Court concluded that there was no consensus on the loss of free will and how this would be

measured. However, the door is still left open if there are advances in the

sociological/psychological realm as the Court finds that "[a]t best, the evidence establishes that

psychiatrists, psychologists, and sociologists disagree as to whether or not there is agreement

regarding the Singer-Ofshe thesis." 5 The Court then excluded the testimony of Dr. Ofshe in its

entirety, excluded Dr. Singer's testimony on thought reform, but allowed her testimony offered to

explain the time lag before litigation was commenced.5 This is a very serious threat to a defence of brainwashing as the court discounted some of the world's leading experts in the field.

It is interesting to note that Drs. Singer and Ofshe's testimony was also excluded in the

American case of Green v. Maharishi Mahesh and Doe v. Lifespring Inc.m Both researchers felt strongly that they, and their work on brainwashing, were being discredited by false means, that they brought a civil law suit in 1993.505 Among other issues, it was alleged by Singer and Ofshe that they were subject to "civil conspiracy, aiding and abetting, fraud, negligence, and defamation."506 The statement of claim said that Singer was "a highly respected clinical and academic psychologist, formerly an adjunct professor at the University of California, Berkeley and plaintiff Ofshe, a Pulitzer Prize winning social psychologist and sociologist" but it was noted that both "derive substantial portions of their income from serving as consultants and expert witnesses

500 Ibid, at 719. 501 Ibid. 502 Ibid, at 720. 503 Ibid, at 723. 504 No. 87-0016 (D.D.C.) (1991) [Green], and 85 Civ. 5887 (S.D.N.Y.) [Doe]. 505 Singer and Ofshe v. American Psychological Association 92 Civ. 6082 (1993) [Singer & Ofshe] 506 Ibid, at 3. 91 in litigation concerned with coercive persuasion." Their claim alleged that the defendants

misled the Court about an amicus brief, and the APA's withdrawal as a signatory to a document

which was written by Singer. These actions culminated in Fishman where the defendants

convinced the judge that the APA (American Psychiatric Association) and ASA (American

Sociological Association) withdrawals in the Molko v. Holy Spirit Association for the Unification

of World Christianity California50 case were for procedural reasons and not substantive statements

resulting in the Fishman precedent in which "their professional and forensic reputations were discredited in future litigations."509 The parties alleged "conspiracy involving criminal, racketeering, and tortious actions in an effort to discredit them so as to prevent or impair them from functioning as respected professional and expert witnesses in civil and criminal litigations in which their expertise is relevant."5 Ultimately the Court dismissed the plaintiffs' complaint.

However, as Nolan notes, "the case at least demonstrates that Drs. Singer and Ofshe believe very strongly in their work on coercive persuasion."

The role of coercive persuasion in the civil law is also a phenomenon that has been studied for some time. Margaret Singer noted the elements of persuasion in a civil context, saying that:

[t]hose investigating a purported undue influence situation need to (1) evaluate the mental and physical condition of the signer, including psychiatric, psychological, and neuropsychological assessments of the person; (2) be cognizant of general social influence techniques; (3) be aware of brainwashing tactics, thought reform programs, and various systematic manipulation programs; and (4) be aware of responses and behavior found in other high-control, intense influence situations ranging from the Stockholm Syndrome to abused women and influence of caretakers on their charges. 12

507 Ibid, at 3-4. 508 Molko v. Holy Spirit Association for the Unification of World Christianity California, 46 Cal.3d 1092 (1988) [Molko]. 509 Singer & Ofshe, supra note 505 at 10-12. 510 Nolan, supra note 320 at 453 n. 105. 511 Ibid, at 453 n. 106. 512 Singer, "Undue", supra note 284. 92 Delgado has noted that it is useful to examine the way that civil law "deals with impermissible influences upon an actor's formulation of intent in civil cases."5 3 He notes that in contract law

"duress is defined as any wrongful threat that induces an individual to enter into an agreement while unable to exercise free will and judgement" where the Court finds that "external forces have influenced them to enter into relationships that would otherwise be binding."514 Although Delgado notes that this use of the civil law cannot be wholly substituted into the criminal law, he also notes that these civil examples "demonstrate that the concept of transferred or imposed intent has proved not only intelligible and useful but also indispensable to society's senses of fairness and justice."515

Although it is beyond the scope of this thesis, another element that might assist the use of a brainwashing defence is the hugely expanding discourse on "parental alienation" and children. 16

II. Cults and Prior Fault

One of the main difficulties of using a brainwashing defence with cults is the suggestion that the original decision to join the organization was a freely chosen action. Coughlin has noted that "in fashioning the battered woman syndrome defense, practitioners have sought to cut off arguments, identical to those made by Delgado, about the Manson women's voluntary choice; thus, the battered woman syndrome theory is largely designed to provide an explanation for why a woman's 'choice' to enter and remain within a violent marriage was not freely made."517 Coughlin notes that the:

excuse would not be available to an actor who voluntarily joined the group he later claimed had brainwashed him or whose condition could otherwise be attributed to some choice on his part

513 Delgado, "Ascription", supra note 52 at 18. 514 Ibid. 515 Ibid, at 19. Interestingly, Michelle S. Jacobs, "Requiring Battered Women Die: Murder Liability for Mothers Under Failure to Protect Statutes" (1998) 88 J. Crim. L. & Criminology 579 at 469-70 [Jacobs] notes the findings of an inquiry in Florida about women being coerced into prostitution. The inquiry suggested "several initiatives including recommending legislation be enacted which would establish a cause of action for compensatory and punitive damages for women who had been coerced into prostitution." 516 Nolan, supra note 320 at 455. This is a growing area of research which alleges that a child is "brainwashed" by one parent against the other. 517 Anne M. Coughlin, "Excusing Women" (1994) 82 Cal. L. Rev. 1 at 22 n. 105 [Coughlin]. 93 . . . [but] in some cases where the coercive indoctrination could not be traced back to some voluntary choice on the actor's part, the actor should be excused on the ground that his misconduct reflected not his own choices, but those of his captors. In such cases, the law should pursue the culpable party, namely, the captor, because the misconduct was the product of a mens rea that he had instilled, for his own benefit, in the brainwashed actor's mind. 18

It is with this background that it is important to look at the technical legal elements of the current applicable defences and the possibility of the founding of an affirmative defence of brainwashing.

Coughlin, supra note 520 at 22. 94 Part II - The Juridical Basis for a New Defence of Brainwashing

a. Choice Theory

Any discussion of brainwashing will by necessity engage a discussion of the concept of free will.

The question of free will has "fascinated humankind for millennia. Under various rubrics, it is still

vigorously debated by philosophers, lawyers, scientists and others."519 The Canadian criminal law is

governed by the maxim actus non facit reum nisi mens sit rea, or "an act does not become guilty

unless the mind is guilty,"520 or what H.L.A. Hart terms a "morally evil mind."521 Although there is

much disagreement among scholars on many issues surrounding this topic, it has been argued that

"individuals deserve moral blame for conduct that breaches community norms when that conduct can

be fairly attributed to them . . . The law's conduct-attribution model of moral responsibility generally

requires a demonstration that the actor made a knowing, rational, and voluntary choice to act in a

manner that breached community norms."522 Similarly, it is widely agreed that the "responsible

subject's power to exercise rational choice is seen as an essential faculty of the, so-called, normal

human being."523 Yet, this is not so of many coercively persuaded defendants. Hart noted that:

most lawyers, laymen and moralists, considering the legal doctrine of mens rea and the excuses that the law admits, would conclude that what the law has done here is to reflect, albeit imperfectly, a fundamental principle of morality that a person is not to be blamed for what he has done if he could not help doing it . . . [Blackstone] said they were accepted because 'the concurrence of the will when it has its choice either to do or avoid the act in question, [is] the only thing that renders human actions praiseworthy or culpable.'524

519 Stephen J. Morse, "The Twilight of Welfare Criminology: A Reply to Judge Bazelon" (1975) 49 S. Cal. L. Rev. 1247 at 1251 [Morse, "Twilight"]. 520 James Stribopoulos, "The Constitutionalization of 'Fault' in Canada: A Normative Critique (1999) 42 Crim. L. Q. 227 at 230 [Stribopoulos]. 521 H.L.A. Hart, Punishment and Responsibility: Essays in Philosophy of Law (London: Oxford University Press, 1968) [Hart] at 35. 522 Peter Arenella, "Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability" (1991-1992) 39 UCLA L. Rev. 1511 at 1517-18 [Arenella] [emphasis in original]. 523 Coughlin, supra note 520 at 12. 524 Hart, supra note 521 at 174. 95 Hart concludes that it would be "morally wrong to punish because 'he could not have helped it' or 'he could not have done otherwise' or 'he had no real choice.'"525 Michael Moore called this most basic principle "responsibility" and noted that the "plausibility of such a moral principle should be readily apparent. What could be more unfair than punishing someone for something he could not help?"526

Others argue that the only way to punish fairly is to target the voluntary offender who has been given an opportunity to avoid the harm.527

Most theorists agree that a potential brainwashing defence would likely fall in the realm of excuses. Moore simplifies the standard saying that within the discourse on excuse "the criminal law is morally right in excusing all those, and only those, whose actions are caused by factors outside their control." In Canada, the courts are permitted to evolve excuses given that the common law is preserved today in section 8 (3) of the Criminal Code.519 If a brainwashing defence was satisfactorily borne out by scientific evidence, there would be the ability to add a new defence just as has been done with self-defence with the evolution of BWS. In this analysis, the type of excuse that would encompass a brainwashing defence would be described as a "volitional deficiency."530 Our system must question if "yielding to a threat to which most of us would yield the person has not shown herself to be more blameable than the rest of us. All that distinguishes her is the accident that produced her predicament."531

Further, it is not that there is an absence of choice in these cases, but that there is "no effective choice given the limits of moral fortitude, not just of the defendant, but of humankind generally. In

52SIbid. at 152. 526 Moore, "Causation", supra note 420 at 1111-12. 527 Richard Burgh, "Guilt, Punishment, and Desert" in Ferdinand Schoeman, ed., Responsibility, Character, and the Emotions (New York: Cambridge University Press, 1987) 316 at 318 [Burgh]. 528 Moore, "Causation" supra note 420 at 1091. 529 R.S.C. 1985, c. C-46 [Criminal Code]. 530 Kadish, supra note 50 at 272. 531 Ibid, at 273. 96 other words, the choice exhibits no defect of character meriting blame." Choice in this context is

not "actual choice" as the individual is coerced into submission. To label this decision free choice

does not accurately reflect the concept, making the actor blameless. The same argument arises in the

Canadian defence of duress in that the actor "does choose to commit the crime rather than suffer a

fatal or grievous wound, but the alternatives open to him were so agonizing that we accept his claim

that he was carrying out a course of conduct that he did not choose - and would not have chosen - for

himself."533 Thus, the central theme is choice: whether someone in the same circumstance would have

done the same thing, and whether they would have been able to control their conduct. As noted by

Coughlin, a "decision to recognize the brainwashing excuse would require the criminal law to ignore

the accused's choice to commit a crime and embrace a determinist view of human conduct, thereby

affording universal excuse on the group that misconduct is the product of influences originating

outside the actor's own will."534 Or, as Moore concluded, "we excuse because culpable choice is

lacking, not because the action fails to manifest bad character."535 To situate this defence within the

Canadian criminal system, one must first address the issue of choice theory.

Choice theory is positioned to recognize that the presence of mens rea and the absence of

excuses will allow punishment for bad choices, but will also serve to acquit those who have made

these choices in limited circumstances. Choice theory is a very broad consideration, but also a very

prominent one. Hart explored this basis in his text Punishment and Responsibility5216 He described a

view of "excusing conditions" which are of "moral importance because they provide for all

532 Ibid, at 274. Kadish frames this in terms of a necessity defence and notes, at 274, that "even reasonable and lawful persons would have done the same in the defendant's circumstances, and that this burden, with its potential for delay and jury mistakes, is too great for the criminal just system to bear." 533 Coughlin, supra note 520 at 16. 534 Ibid, at 23. 535 Michael S. Moore, "Choice Character and Excuse" in Ellen Frankel Paul, Fred D. Miller, Jr., & Jeffrey Paul, eds., Crime, Culpability, and Remedy (Cambridge MA: Basil Blackwell, 1990) 29 at 58 [Moore, "Choice"]. 536 Hart, supra note 521. 97 individuals alike the satisfactions of a choosing system." 7 Recognizing that our system is one comprised of "threats," Hart said that excuses are the "protection of the individual against the claims of society for the highest measure of protection from crime."538 As a result, criminal law "respects the claims of the individual as such, or at least as choosing beings, and distributes its coercive sanctions in a way that reflects this respect for the individual."539 Hart clarifies that in this "choosing system" individuals can calculate the "costs they have to pay if they act in certain ways."5 Thus, in this type of system that values excusing conditions the result is that this "guide[s] individuals' choices as to behaviour by presenting them with reasons for exercising choice in the direction of obedience, but leaving them to choose."541 Hart also makes the link to civil law and the influence that could be present in various transactions saying that such a contract entered into would not "represent a real choice" which may have been "subjected to the threats of another who had imposed his choices

(coercion.)"542 Hart emphasizes that it is the individual's choice "whether or not these sanctions shall be applied to him. He can weigh the cost to him of obeying the law - and of sacrificing some satisfaction in order to obey" and thus the "pains of punishment will for each individual represent the price of some satisfaction obtained from breach of law." Thus, everyone should have the basic option of compliance.

Just as it is true that the "moral foundation of order is tenuous at best when people obey the law solely because they fear the consequences of disobedience,"544 the same is true of a society that

537 Ibid, at 49. 538 Ibid. 539 Ibid, [emphasis in original]. Interestingly, Hart states, Hart, supra note 521 at 43-44, that "if we were to base our views of criminal responsibility on the doctrine of the economy of threats, we should misrepresent altogether the character of our moral preference for a legal system of total strict liability, or entirely different methods of social control such as hypnosis, propaganda, or conditioning." 540 Ibid, at 44. 541 Ibid, [emphasis in original]. Also see Part III below on superimposed intent. 542 Ibid, at 45 [emphasis in original]. 543 Ibid, at 47. 544 David L. Bazelon, "The Morality of the Criminal Law" (1975) 49 S. Cal. L. Rev. 385 at 386 [Bazelon]. 98 blames the actor that is acting with an unfree will. Hart noted that advocates of a purely retributive model "can no longer speak with the old confidence that statements of the form '[t]his man who has broken the law could have kept it' had a univocal or agreed meaning; or where skepticism does not attach to the meaning of this form of statement, it has shaken the confidence that we are generally able to distinguish the cases where a statement of this form is true from those where it is not."5 It has been said that we should not convict an individual unless we can also condemn them for their actions.5

Hart specifically recognizes the potential coerced defendant saying that an actor should not be punished if he was "subjected to threats or other gross forms of coercion."547 Hart adds that there should not be a discrete list of conditions, leaving the possibility for a level of brainwashing beyond that of "gross coercion." He concludes that it is for the judge to question responsibility by looking at whether the "agent 'could have helped' doing what he did, and hence the need to inquire into the

'inner facts' is dictated not by the moral principle that only the doing of a immoral act may be legally punished, but by the moral principle that no one should be punished who could not help doing what he did."5 It has become well accepted modern jurisprudence that unless one has an opportunity to avoid the behaviour, he should not suffer the penalties.550

Hart asks if that person should be excused because it would be unjust to punish.551 He cites J.L.

Austin in that a "voluntary movement of my body, or a movement which follows a volition, is an act.

The involuntary movements which are the consequences of certain diseases, are not acts. But as the bodily movements which immediately follow volitions, are the only ends of volition, it follows that

545 Hart, supra note 521 at 1 [emphasis in original]. 546 Bazelon, supra note 544 at 388. 547 Hart, supra note 521 at 28. 54SIbid. 549 Ibid, at 39 [emphasis in original]. 550/6H/. atl81. 551 Ibid, at 39. 99 those bodily movements are the only objects to which the term 'acts' can be applied with perfect

precision and propriety."552 Hart says that "fair opportunity would not only provide a rationale for

most of the existing excuses which the law admits in its doctrine of mens rea but it could also function

as a critical principle to demand more from the law than it gives."553 Many theorists have focused on

choice and the autonomy of the actor, as discussed generally. The dilemma is that:

[a] person who is subjected to duress chooses to perform her compliant actions after deciding that her performance of them offers the least unattractive option from a set of unpalatable alternatives with which she is faced. Since she thus desires to perform these actions, and this desire moves her to perform them, it seems, prima facie, plausible to claim that she is fully self- directed, fully autonomous, with respect to their performance. However, to claim that a person who is forced to perform a series of compliant actions by being subjected to duress is a paradigm of someone who is engaged in autonomous self-direction seems clearly mistaken.

The irony is that the actor, in some ways, is autonomous because of a desire to complete the actions

required in order to avoid a less desirable outcome, but the brainwashed actor "suffers from impaired

autonomy with respect to her complaint action."555 Even an individual who is acting rationally and

clearly and has "sound priorities" may find it impossible to comply with certain behaviour where there

is no "normatively acceptable option for him to choose." Although the actor has a choice, it is a constrained choice because it is made between "two bad outcomes, neither of which the actor would consider worthy of choice in itself or in better circumstances."557

Choice makes a defence like duress an "atypical excuse" because the actor "chooses to commit the criminal offense rather than to accept the threatened consequences. He would not have chosen to commit the crime but for the threat, but it is still his choice, albeit a hard and excruciatingly difficult

552 J.L. Austin, op. cit. passages from Lecture XVIII, at 411, 412, 414, and 415 cited in Hart, supra note 521 at 98 [emphasis in original]. 553 Hart, supra note 521 at 181. 554 James Stacey Taylor, "Autonomy, Duress, and Coercion" (2003) Social Philosophy & Policy Foundation 127 at 150 [Taylor, "Autonomy"] at 150 [emphasis in original]. 555 Taylor, "Autonomy", supra note 554 at 154 [emphasis in original]. 556 Brenda M. Baker, "Duress, Responsibility, and Deterrence" [1985] Dialogue: Canadian Philosophical Reports 605 at 609 [Baker, "Duress"]. 551 Ibid, at 605. 100 choice. His act may be unwilling, but it is not unwilled." When trying to determine if an individual acted in a comprehensible way in a particular situation, one is faced with these quandaries that even though there were potentially debilitating factors that affected the actor's choice, it was still a choice.559 Thus, it is not "impaired capacity," as many argue, that one lacks to conduct oneself in the proper manner, but it is "lack of opportunity to do so." 60 The individual, from all appearances, seems to be acting in a voluntary way. The key difference is that when responding to what the duressor demands "she is not deliberating as to whether or not she should perforin this action, but whether or not she should resist being forced to do it."561 This results in the paradox of being simultaneously autonomous and not autonomous.

Using this as a basis, it is impermissible to convict unless, "(1) a condemnable act was committed by the actor-defendant; (2) the actor can be condemned - that is, he could reasonably have been expected to have conformed his behavior to the demands of the law; and (3) society's own conduct in relation to the actor entitles it to sit in condemnation of him with respect to the condemnable act."562 When discussing brainwashing, it is difficult in most cases to condemn the actor under the second or the third preconditions. It is not possible for the coercively persuaded actor to conform to the law under the state in which he functions, and society has no bases to punish (or condemn) those acts. However, it is a fact that the law "promise[s] according to [its] hopes" but

Joshua Dressier, Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits, (1989) 62 S. Cal. L. Rev. 1331 at 1356 [Dressier, "Exegesis"] [emphasis in original]. Dressier argues at 1360 that "[i]f law is paramount, so the argument might proceed, a person who knowingly places his own interests above that of the community, as represented by the law, should not be excused." 559 Eugene R. Milhizer, "Justification and Excuse: What They Were, What They Are, and What They Ought to Be" (2004) 78 St. John's L. Rev. 725 [Milhizer]. Some suggest, as does Milhizer, supra note 54 at 856, that perhaps there is an intermediate level of a partial defence, but even though both justification and excuse may simultaneously describe an action, the action "cannot be legitimately exculpated by combining inadequate justification and inadequate excuse to create a single and sufficient hybrid defense" Kent Greenawalt, "The Perplexing Borders of Justification and Excuse" (1984) 84 Columbia L. Rev. 1897 at 1907 [Greenawalt] notes that there may be some situations when one could "turn what would ordinarily be a justification into what is only an excuse" [emphasis in original]. 560 Baker, "Duress", supra note 556 at 609. 561 Taylor, "Autonomy", supra note 554 at 154 [emphasis in original]. 562 Bazelon, supra note 544 at 388. 101 "perform[s] according to [its] fears."563 This individualistic approach to the law has been criticized as seeking to:

admit into evidence all possible testimony about the causes of the defendant's behavior so that the jury can decide whether the defendant was unfree and not deserving of condemnation. This view assumes, of course, that a vast range of factors made a defendant's choices so hard that it is unjust to condemn him. But which choices are too hard? There is no bright line . . . arranged along a continuum of choice: there is no scientifically dictated cutting point where legal and moral responsibility begins or ends. Nor is there a higher moral authority which can tell society where to draw the line. All society can do is to determine the cutting point that comports with our collective sense of morality. The real issue is where society ought to draw the line of responsibility - and by whom it should be drawn.564

Nolan moves this into the discussion of the persuasively coerced defendant in saying that "[cjreating an independent affirmative defense for indoctrination is simply not possible without huge reforms to our general concept of criminal responsibility." I disagree with this assertion as it is possible to integrate these concepts within the existing structure of defences in Canadian law and in particular with reference to duress and necessity, as discussed below.

It will be necessary to integrate these concepts within the existing structure of defences because for the brainwashed accused, it will be virtually impossible to escape conviction by claiming a lack of mens rea. The conventional perspective on criminal liability suggests that one can infer that an accused has chosen to do harm from the fact the accused acted with mens rea, i.e., an awareness of the risk of harm. Stribopoulos notes that in Canada the "descriptive definition of mens rea remains the exclusive gauge for defining moral innocence5 . . . which is used to excuse an individual who does not possess the narrow form of mens rea that a descriptive approach to the concept entails, while

Ibid, at 389 citing La Rochefoucauld, "nous promettons selon nos esperances, et nous tenons selon nos craintes." Maximes 61 (F.C. Gree ed., 1945). 564 Morse, "Twilight", supra note 519 at 1253 565 Nolan, supra note 328 at 457. Nolan goes on to say, supra note 328 at 458, that "there is not even a substantial minority acceptance of indoctrination within the psychiatric community, now is certainly not the time for such a drastic reform." 566 Stribopoulos, supra note 520 at 283. 102 requiring us to condemn those whose conduct is not blameworthy." Stribopoulos argues that it

makes a concept which is meant to contain "moral judgment" into a "sterile inquiry into the presence

of absence of intention."568 Accordingly, mens rea is too narrow a concept for dealing with the

brainwashed accused as a clear choice with awareness has still been made by the brainwashed

accused. However, if ones choices are actually a product of manipulated beliefs and desires, one may

still escape conviction on the basis of affirmative defence or excuse. Using this starting point, one is

able to investigate further the defence of brainwashing.

b. Excuse and the Influence of George Fletcher

A derivative of choice theory is excuse. In 1978 an American philosopher named George

Fletcher entered the discourse on excuses with the publication of his seminal work Rethinking

Criminal Law569 Fletcher had a profound effect on the general discussion on (1) classifying defences

as justification or excuses570 and (2) moral/normative involuntariness and the impact on both duress

and necessity. Fletcher's discussions of these two topics formed the basis for the defences of

necessity and duress in Canada and had a tremendous impact to the extent that they were eventually

adopted by the Supreme Court in R. v. Perka and in R. v. Ruzic5 ' One of the basic philosophical

arguments within a discussion of duress is labelling the defence as an excuse or a justification.

Classifying duress into one paradigm is extremely difficult. Fletcher notes that forcing "borderline

567 Ibid, at 284. 56SIbid. at 285. 569 George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978) [Fletcher, Rethinking]. Mark Weisberg, in "The Not So Secret Lives of George Fletcher" (1981-82) 7 Queen's L. J. 209 at 210 [Weisberg] observes that in Rethinking Fletcher is "at once anthropologist, historian, philosopher, criminal lawyer" who sees "modern criminal law decisions riddled with contradictions." 570 See M. Gur-Arye, "Should a Criminal Code Distinguish Between Justification and Excuse?" (1992) 5 Can. J.L. & Jur. 215 [Gur-Arye]. 571 R. v. Perka [1984] 2 S.C.R. 232, S.C.J. No. 40 [Perka] and R. v. Ruzic 2001 SCC 24, ("1998), 128 C.C.C. (3d) 97, supp. reasons 128 C.C.C. (3d) 481 [Ruzic, Court of Appeal], aff d by [2001] by [2001] S.C.R. 687, S.C.J. No. 25 [Ruzic]. The impact was felt not just on contemporary theorists, but those working in criminal law in the 1970's who are the lawmakers and judges of the highest level today. 103 57? cases into one category or the other often entails a serious philosophical error." It has been noted that "[c]ommentators who propose to contribute to our understanding of the contrast between justification and excuse have no obvious place to begin," and the conclusions reached on this topic are often disputed.573 Fletcher begins his analysis with the basic assumption, derived from J. L. Austin, that "justifications concede that the definition of the offense is satisfied, but challenge whether the act is wrongful; claims of excuse concede that the act is wrongful, but seek to avoid the attribution of the act to the actor."574 Fletcher explains that an excuse concedes that there is a wrong, but if the excuse is valid the actor is not accountable for the wrongful act. He notes that, "[a]s the inquiry moves from justification to excuse, the emphasis shifts from assessing the act in abstraction to assessing the actor's response to unusual circumstances. The relevant question is no longer whether other people should act the same way in the same situation, but whether this defendant can be justly blamed for having succumbed to overwhelming pressure."575 It has been noted that "justifications can be universalized: excuses are personal."576

Fletcher recognizes the difficulties in this kind of analysis in the preface to Rethinking Criminal

Law511 He explains that Anglo-American law has resisted "refinement" and the formation of an underlying theory because of the prevailing theory of utilitarianism and the works of "Beccaria, 572 Fletcher, Rethinking, supra note 569 at 451. 573 Douglas Husak, "On the Supposed Priority of Justification to Excuse" (2005) 24 Law and Philosophy 557 at 557 [Husak, "Priority"]. For example, in Kyron Huigens article "Duress is Not a Justification" (2004) 2 Ohio St. J. Crim. L. 303 at 303 [Huigens], states in the first sentence of his article that "Peter Westen's and James Mangiafico's recent article arguing that duress is a justification is interesting, provocative, and dead wrong." 574 Ibid. 575 George P. Fletcher, "The Individualization of Excusing Conditions" (1974) 47 S. Cal. L. Rev. 1269 at 1276 [Fletcher, "Individualization"]. 576 Stephen G. Coughlan, "Duress, Necessity, Self-Defence and Provocation: Implications of Radical Change" (2001), 7 Can. Crim. L. Rev. 147 at 156 [Coughlan]. There are theorists, such as Peter Westen and James Mangiafico in their article "The Criminal Defence of Duress: A Justification, Not an Excuse - and Why it Matters" (2003) 6 Buff. Crim. L. Rev. 833 at 835 [Westen & Mangiafico] that believe that "[d]uress is, indeed, a defence of justification ... the Model Penal Code defense of duress cannot be conceptualized as an excuse - or as something that is neither justification nor excuse - without subverting widely-shared and deeply-settled understandings of criminal responsibility." 57 Fletcher, Rethinking, supra note 569. 104 Bentham, Holmes, [and] Stephen," whose emphasis on goals detracted from the examination of the individual accused.578 Fundamentally, the individual had been removed from the equation. Fletcher asks whether "a sanction in the social interest has overshadowed the more basic inquiry whether the punishment of the accused is morally justified."5 9 Fletcher called for a resurgence of the discussion on the excuse/justification dichotomy and the role of the actor in excuses. Given the uncertainty that was exposed, the argument for a nuanced theory of duress and brainwashing is all the more relevant.580 The opportunity for an acquittal is "a matter of crucial importance to the wider symbolic function of the criminal law in a democratic society"581 as "justification defenses amend the law;

582 excuses provide justice to the individual who violated it." Although the individual is being excused the actor does not operate in a vacuum but has a profound impact on others.583

One other contribution of Fletcher to the area of excuses, and a paradigm which must be considered in a discussion of brainwashing, is what he called the "individualization of excusing conditions."584 Fletcher notes that all excusing conditions, which brainwashing would most closely parallel, "speak in the idiom of involuntariness."585 It is not as if there were an absence of the act, but rather Fletcher quotes Aristotle in that the actor "would [not] choose any such act in itself."586

Fletcher espouses "Character Theory" in that one should only be punished if breaking the law is an 578 Ibid, at xix. 579 Ibid. 580 In fact, the Law Reform Commission of Canada rejected the view that anything should rely on the distinction between justification and excuse. See Report on Recodifying Criminal Law, Report 20 (1987) Law Reform Commission of Canada at 42. See sections below on punishment and sentencing. 581 Finbarr McAuley, "Necessity and Duress in Criminal Law: the Confluence of Two Great Tributaries" (1998) 33 Ir. Jur. 120 at 127 [McAuley] and also Warren Brookbanks, The Defence of Compulsion an Overview (Auckland: University of Auckland, 1981) at 44 [Brookbanks] who notes that for the purposes of New Zealand law, duress (called compulsion) is "defined by statute as a matter of excuse." 582 Dressier, "Exegesis", supra note 558 at 1374 with reference to Fletcher, Rethinking, supra note 569 at 810-13. 583 See discussion of Ruzic, supra note 571, under proportionality. 584 Fletcher, "Individualization", supra note 575. 585 Ibid, at 1271. See below where Fletcher notes that duress is a "paradigmatic" excuse. If duress is the primary example of an excuse, and brainwashing most resembles duress, there is an argument that brainwashing should be an excuse and not a justification. 586 Ibid, citing Aristotle, Ethica Nicomachea 1110a (W.D. Ross transl. 1925). 105 accurate reflection of the accused's character.587 Fletcher says that it is important to recognize that excuse "appeals to our sense of compassion for human weakness in the face of unexpected,

coo overwhelming circumstances."

Even the standard of a reasonable person in excuse cases is problematic because the reasonable person is assumed to be "neither cowardly nor selfish."589 Fletcher notes that this is necessarily so because cowardice and selfishness are not excuses for criminal conduct because "we can fairly expect of a man that he conquer his cowardice in the interest of saving human lives, or of a government official that has overcome his selfishness when governmental secrets are at stake. Of course, if the conduct of either was indeed beyond his control, it would be appropriate to excuse the conduct." 9 This blind focus on the reasonable person rather than really seeing the differences in character and make-up of individuals is because our system is so focused on innocence and guilt without individualizing the circumstances.591 Fletcher then examines the concept of involuntariness and states that the basic question should be, "[i]s the actor culpable for having succumbed to the pressure of the situation?"592 Fletcher points out that there is "something odd about the claim that an individualized decision can be made under an abstract standard, even an irreducibly evaluative standard like that of voluntariness ... It seems to be part of the legal process as we know it; yet it has yet to receive an adequate jurisprudential account."593 What has to be recalled in any serious discussion of involuntariness and excuses is that although we may not be able to make a grand

™Ibid. 588 Ibid, at 1280. 5i9 Ibid, at 1291. 590 Ibid. 591 Ibid, at 1300. 592 Ibid, at 1306. 593 Ibid. 106 statement about the law into the future, the law should be an "expression of compassion for one of our

kind caught in a maelstrom of circumstance." 94

It is necessary to understand what is meant by the terms "normative involuntariness" and "moral

involuntariness" from a philosophical standpoint. Fletcher uses the term "involuntariness" throughout

his work, but it seems that he struggles with this term. He surveys what the other philosophers have

noted, saying that:

[i]t is important to recall the difference between physical involuntariness and the evaluative dimension of involuntariness discussed in the text . . . H.L.A. Hart notes, "most people would say of them that they were not 'voluntary' or 'not wholly voluntary'" ... In contrast Glanville Williams insists that cases of coerced and necessitated conduct are voluntary so long as there is any choice at all to yield to the pressure of circumstances . . . Aristotle notes that cases of this class are voluntary in one sense, "but in the abstract perhaps involuntary."5 5

Fletcher still chooses to use the word involuntary even though he does not mean that the person is

fully involuntary, but resists the adoption of a term that suggests that any choice at all is actual choice.

Fletcher explains that physical involuntariness has to be distinct from normative involuntariness,

which is not an easy task given that "our language systematically blends the two in one set of

terms."596

i. Necessity and R. v. Perka

Fletcher's analysis of excuses has gained favour since the 1970's, not just philosophically, but

the Canadian courts also recognize the power of his conceptualization of excuses. The first clear

example of this is in the defence of necessity, and the case of Perka5 1 Necessity is another defence

that draws considerable scrutiny and furthers the arguments on blameworthiness and involuntariness.

Unlike duress, the Criminal Code does not explicitly recognize the defence.598 Necessity and duress

594 Ibid, at 1308. 595 Ibid, at 1271. 596 Ibid, at 803. 597 Perka, supra note 571. 598 Benjamin L. Berger, "A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity" (2002) 39 Alta. L. Rev. 848 at 848 [Berger]. 107 have developed simultaneously, and some have argued that "the very existence of the defence of

duress argues for a recognition of necessity" because one could not recognize a defence to threats and

not to circumstances.599 The history of necessity is almost as long as the history of duress and

brainwashing. Many see duress as a species of necessity with the difference being that duress "is

created by the illegal conduct of another person, whereas in cases of necessity compulsion is

generated by natural forces."600

The most noted historic example of necessity is R. v. Dudley & Stevens, where a group of

shipwrecked sailors killed and consumed one of their members so that the others would live.601

Fletcher notes that the difficulty with this case was that the Queen's Bench believed that if they allowed a defence of necessity in this case it would legalize murder. The Court reasoned that they could not sanction these actions. Fletcher argues that what the Court did not understand was that "a killing might be unlawful, unjustified and murderous, but nonetheless be excused under the unique circumstances of the case. This was a manner of legal thinking that perturbed the judges. It symbolized 'a divorce of the law from morality which would be of fatal consequence.'"602 Andrew

Von Hirsch and Nils Jareborg have noted that "[pjeople can (and sometimes do) choose to die when continuing to live entails consequences they cannot accept. The castaway could prefer his own death to killing someone else, and some high-minded persons might so act. Lack of food and water may affect someone's judgment, but . . . it does not necessarily do so enough so to negate the actor's control over his acts."603 The Court convicted Dudley and Stevens, but they were pardoned soon after, and it seemed odd to many that even though the Court "favored conviction, it would welcome the

Berger, supra note 598 at 850. 600 Ibid. 601 (1884), 14 Q.B. D. 273 [Dudley & Stevens]. 602 Fletcher, "Individualization", supra note 575 at 1282. 603 Andrew Von Hirsch & Nils Jareborg, "Provocation and Culpability" in Ferdinand Schoeman, ed., Responsibility, Character, and the Emotions (New York: Cambridge University Press, 1987) 241 at 245 [emphasis in original] [Von Hirsch & Jareborg]. 108 Queen's clemency."604 Fletcher argues that this clemency was really an "individualized assessment of the facts and of the character and propensities of the defendants."605 It is paradoxical that an appeal to clemency was required instead of basing the situation on a firm philosophical theory of justifications and excuses.

Fletcher's reasoning was the catalyst for the Canadian necessity case of Perka involving the sinking of a ship containing $6-$7,000,000 in marihuana from Columbia which was transported to a drop point off the coast of Alaska and dumped overboard during a storm.606 The Court cited Fletcher, noting that he "describes this view of necessity as 'compulsion of circumstance' which description points to the conceptual link between necessity as an excuse and the familiar criminal law requirement that in order to engage criminal liability, the actions constituting the actus reus of an offence must be voluntary." Dickson J., as he then was, notes that necessity does not go to voluntariness and uses the example of the lost alpinist who is not "behaving in an involuntary fashion. He has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a 'voluntary' one. His 'choice' to break the law is no true choice at all; it is remorselessly compelled by normal human instincts . . . which is often described as 'moral or normative involuntariness.'"60 Dickson J, notes that punishing the offence is "pointless" and that this conceptualization "accords with our traditional legal, moral and philosophic views as to what sorts of acts and what sorts of actors ought to be punished."609

604 Dudley & Stevens, supra note 601. The Crown did commute the sentence from death to six months' imprisonment. 605 Fletcher, "Individualization", supra note 575 at 1283. 606 Perka, supra note 571. 607 Ibid, at para. 34. 608 Ibid. 609 Ibid, at para. 37. See sections below on sentencing. 109 The Court argued that an element of proportionality must also be added because, as Fletcher

stated, one cannot "blow up a whole city in order to avoid the breaking of his finger." A series of

conclusions on the use and limitations of necessity was reached, the most relevant being that the law

ought not punish the involuntary; the harm inflicted must be less than the harm to be avoided; and, if

the accused's "fault" contributed to the situation and there was no real emergency, then the defence

would be unavailable (mere negligence, or involvement in illegal or immoral conduct will not

negative the defence).611 The Supreme Court upheld the decision of the Court of Appeal, and ordered

a new trial. Conversely, Wilson J. in the minority decision also cites Fletcher and states that:

an excuse requires the court to evaluate the presence or absence of the accused's will. In contemporary jurisprudence the most forceful champion of excuse in criminal law has been Professor George Fletcher who has advocated a trend toward individualizing the conceptual basis for culpability so that all circumstances subjectively relevant to the accused be considered by the court. As such, the jury is requested to exercise compassion for the accused's predicament in its evaluation of his claim.

Wilson notes the appropriateness of character theory in necessity, and she adds an evaluation of

compassion. Criticism has plagued the majority decision for not examining the situation where the

actor is engaged in "moral evaluation" and how it does not make sense to say that this actor is acting

in a morally involuntary way.613 The actor is again choosing between two unpalatable choices, but

has choices nonetheless. Saying that necessity is an excuse, the statement that the Court must "first

condemn any necessary action as unlawful before conceding that blame is not properly assigned"

again seems too harsh. It might be the situation that Dickson J. "would judge the person who commits

a minor property crime to save many lives" and would conclude that they acted wrongly.614 However,

bWIbid. at para. 43. 611 Ibid, at para. 37-55. 612 Perka, supra note 571 at para. 88. 613 Berger, supra note 598 at 857. 614 Ibid. After a thorough survey of necessity in several countries, Berger notes, at note 598, that "[a]ll f these codes, and particularly the German provisions, provide more theoretically consistent and satisfactory means of recognizing a defence of necessity than presently exist in Canada. They all reflect the requirement of moral blameworthiness without slipping into the rhetoric of 'moral involuntariness.' All 110 despite the particular inconsistencies, the main point to be taken from this case is that someone who performs under necessity is acting voluntarily from an actus reus perspective, but that compassion must be part of the equation.615 The key to remember in relation to brainwashing is that it could not possibly fit within necessity because necessity captures only those choices which are compelled by natural circumstances and not human agency. However, Perka is important to the discussion because the Canadian courts established that normative involuntariness is the basis for all excuses. The question becomes how to convert a concept to an existing doctrine like duress. Brainwashing does not fit within necessity but it is a much better fit in duress involving the coercion of individuals.

ii. Normative Involuntariness and Duress

Fletcher calls the defence of duress "a paradigmatic example of an excuse." He cites Aristotle, claiming that the actor "would not choose any such act in itself,"617 and he defines voluntary wrongdoing as a situation where "the actor's freedom of choice is constricted." Thus, the actor is not in a situation of acting physically involuntarily, such as having a seizure, and no one forces his hand to a "victim's throat;" instead, the type of involuntariness shown in duress is an extension of the

avoid the illogicalities of restricting necessity to the realm of excusatory defences. The most appealing aspect, however, of these codes is the flexibility built into their provisions. Judges are increasingly being asked to make decisions that involve situations where competing values are colliding . . .The defence of necessity, properly conceived, is a powerful tool in the criminal law for addressing some cases that pose difficult moral questions. Without this tool and the flexibility that it provides, the criminal law compels strict adherence to the letter of the law and, thereby, risks... [of] severance of law and morality." 615 Dennis Klimchuk, "Moral Innocence, Normative Involuntariness, and Fundamental Justice" (1998) 18 Criminal Reports (5th) 96 at 98 [Klimchuk, "Moral"]. See also Dennis Klimchuk, "Aristotle on Necessity and Voluntariness" 19 History of Philosophy Quarterly 1 [Klimchuk, "Aristotle]. 616 Fletcher, Rethinking, supra note 569 at 831 and 799. Yet, note that Fletcher does recognize at 799 that duress is an excuse in some legal systems, but not in others. There are disparate concepts of duress including one assessment that duress is a justification and a sub-categorization of necessity according to W. LaFave & A. Scott, Criminal Law, 2nd ed. (1986) cited in Joshua Dressier, "Justifications and Excuses: A Brief Review of the Concepts and the Literature" (1987) 33 Wayne L. Rev. 1155 [Dressier, "Justification"] at 1170 note 57. In Michael Gorr's article "Duress and Culpability" (2000) 19 Crim. Just. Ethics 3 at 4 [Gorr], argues that duress and necessity are often confused in both legal and philosophical realms and disagrees with the assertion that duress is simply a subspecies of necessity. Gorr suggests that duress is properly categorized as an excuse and necessity is properly a justification. 617 Cited in Fletcher, Rethinking, supra note 569 at 803. bn Ibid, at 802. Ill term used in Perka to what is called "moral or normative involuntariness." To analyze the

philosophical issues included in moral/normative involuntariness, a crucial place to begin is with the

findings of the Court in Ruzic. Moral involuntariness evolved from Perka,620 adopting the reasoning

of Fletcher, which was extended to duress in Hibbert (although neither case was a Charter case.)621

The Court of Appeal in Ruzic found a link between moral involuntariness and moral innocence,

linking moral involuntariness to the principles of fundamental justice. Moral innocence was the term

focused on by the Court of Appeal, and the result was the conclusion that '"moral innocence' is not

exhausted by actus reus and mens rea." 2 As will be seen below, the Supreme Court elevated the

principle of moral involuntariness to the status of a principle of fundamental justice. Fletcher notes

that an individual acting under duress is under what he calls normative involuntariness in that "were it

not for the external pressure, the actor would not have performed the deed."623 The only way to

anchor a defence of brainwashing is with normative involuntariness as it will not fit within the

conventional categories. The Canadian defence of duress offers some insights into the considerations that would be needed to examine a brainwashed defendant.

I. R. v. Ruzic

Duress has been an issue for many decades, but never more so than since the landmark 2001

Supreme Court of Canada case of R. v. Ruzic. In this case Marijana Ruzic was charged with unlawfully importing two kilograms of heroin into Canada on April 29, 1994, with an estimated street

619 Ibid, at 803. The courts have struggled for centuries to determine if duress should be limited so that, as noted in R. v. Farduto (1912), 21 C.C.C. 144 (Que. Ct. K.B.) at 185, the compulsion must be " such as to make the accused person a mere inert physical instrument." 620 Perka, supra note 571. Ruzic, supra note 571, approved of the reasoning in Perka at para. 35 that "[a]t the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable." 621 R. v. Hibbert, [1995] 2 S.C.R. 973, S.C.J. No. 63 [Hibbert]. 622 Klimchuk, "Moral", supra note 615 at 99 [emphasis in original]. 623 Fletcher, Rethinking, supra note 569 at 803. 624 Ruzic, supra note 571. Many commentators are still unsure about the status of duress after this SCC case. 112 value of $1 million, contrary to s. 5(1) of the Narcotic Control Act, and possession and use of a

false passport, contrary to s. 368 of the Criminal Code. 21 Ruzic testified that she was forced to bring

the drugs to Canada or her mother would be harmed or killed in Belgrade, in the former Yugoslavia.

A man named Mirko Mirkovic knew personal information about the accused and approached Ruzic on

several occasions. He claimed to know that Ruzic's mother was ill and that Marijana lived with her.

Ruzic, who was only 21 years old at the time, was the sole caretaker for her mother, and did not want

to cause her mother concern. She testified that she felt she could not seek the assistance of police

because of their potential involvement with criminal organizations and that "people die in the streets.

We don't have a law; it's corruption. And the crime it's very high and so people are afraid."628

Mirkovic showed Ruzic a knife and said that he liked to "cut people." 29 He started sexually touching

the defendant and telling her that he would like to have sex with her and her mother. The violence

escalated: Mirkovic burned the defendant with a lighter and injected her with a needle containing a

substance that she believed was heroin.

Mirkovic strapped three packages of heroin to Ruzic's body and told her she had to travel to

Canada with the drugs or he would "do something to her mother." ' Upon entering the country,

Ruzic lied to Canadian Immigration officers, but eventually the packages of heroin were discovered in

her possession. Before Ruzic the Court had been very restrictive with its interpretation and application

of section 17 of the Criminal Code. At trial, defence counsel argued that Ruzic did not meet the

"immediacy" or "presence" requirements of section 17. The defence sought a declaration that section

17 violated section 7 of the Charter and was not saved by section 1. They argued that Ms Ruzic was

625 Ruzic, Court of Appeal, supra note 571 at para. 6. 626 R.S.C. 1985, c. N-l [Narcotic Control Act]. 627 Ruzic, Court of Appeal, supra note 571 at para. 2. 628 Ruzic, Court of Appeal, supra note 571 at para. 16. 629 Ibid, at para. 20. 630 Ibid, at paras. 22-24. 631 lb id. at para. 25. 113 under a constant state of duress notwithstanding that: (1) the threatener was not present with the threatened party; (2) the threat was to a third party; and (3) there was not an immediate threat to the victim.632 These preconditions excluded her right to use of the defence and, thus, violated her Charter rights.633

The trial judge ruled that section 17 did violate the Charter, and instead charged the jury on the common law defence of duress. Ms. Ruzic was acquitted of both charges on December 9, 1994.634 In the Court of Appeal, Laskin J.A., writing for the unanimous court, agreed with the trial judge that section 17 violated section 7 and was not saved by section 1. The Court declared section 17 of no force or effect "to the extent that it prevents an accused from relying on the common law defence of duress preserved by section 8 (3) of the Code."635 Accordingly, the Crown's appeal was dismissed.

The Supreme Court decision, delivered in 2001, caused considerable controversy. LeBel J., writing for the unanimous court, said that:

[although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct ~ behaviour that is the product of a free will and controlled body, unhindered by external constraints — should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter™

The Court used this reasoning to strike down the "immediacy" and "presence" requirements of section

17 of the Criminal Code.631 As LeBel J. noted in the decision "[fjhe plain meaning of s. 17 is quite

632 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. 633 Ibid. 634 Ruzic, Court of Appeal, supra note 571 at para 2-3. 635 Ibid, at para. 109. 636 Ruzic, supra note 571 at para. 47. 637 The Crown did not ask the court to do a section 1 analysis, but Justice LeBel J. noted at para. 92 that he was "inclined to agree with Laskin J.A. that the immediacy and presence criteria would not meet the proportionality branch of the s. 1 analysis. In particular, it seems to me these requirements do not 114 restrictive in scope. Indeed, the section seems tailor-made for the situation in which a person is compelled to commit an offence at gun point."638 Clearly, not every case involves a gunman who is present and threatening immediate force. The defence is more nuanced than this paradigmatic example.

A different approach to duress was taken by the Supreme Court in Ruzic. To begin, the Supreme

Court, like the Court of Appeal, cited Perka and Hibbert and said that all of the elements of the offence have been made out before duress arises, claiming:

[i]n the case of the defences of necessity and duress, the accused contends that he should avoid conviction because he acted in response to a threat of impending harm. The Court also confirmed in Hibbert that duress does not ordinarily negate the mens rea element of an offence. Like the defence of necessity, the Court classified the defence of duress as an excuse ... As such, duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea. 9

The accused has access to the defence only after the elements are already in place. What the Court did with these ideas was to say that "the concept of moral blamelessness has been restricted to issues relating to proving the elements of an offence: Once those elements are proven and the accused is relying on a defence, he or she can no longer claim to be blameless."640 With this statement, the Court could focus on the voluntariness element rather than, as they saw it, the more amorphous concept of blameworthiness. With this established, "duress in its 'voluntariness' perspective can more easily be constrained and can therefore more justifiably fall within the 'principles of fundamental justice.'"641

This allowed the Court to strike down the restrictive statutory provisions and to recognize that some excuses should not be thus constrained.

minimally impair the respondent's s. 7 rights. Given the appellant's failure to make any submissions on the issue, the higher standard of justification for a violation of s. 7, and my doubts concerning proportionality, I conclude that the immediacy and presence conditions cannot be saved by s. 1." 638 Ruzic, supra note 571 at para. 50. 639 Ibid, at para. 30. 640 Coughlan, supra note 576 at 187. 641 Ruzic, supra note 571 at para. 42. 115 The Court also attempts to deal with the problem of moral innocence. The Supreme Court traces the constitutional development and states that:

[i]t should be emphasized that this Court, in cases like Sault Ste. Marie and Re B.C. Motor Vehicle Act, has referred to moral innocence in the context of the discussion of the mental element of an offence. Hibbert, on the other hand, held that the defence of duress does not normally negate mens rea. Rather, it operates to excuse a wrongful act once the actus reus and mens rea components of the offence have been made out. Laskin J.A. conceded this point, but countered that moral blameworthiness is a broader concept, extending beyond the traditional elements of an offence.

There would be a similar difficulty for the brainwashed defendant. She would have to admit both the mens rea and actus reus elements of the offence, but claim that she was nonetheless excused. This is a huge gamble for the defendant. Instead of tying moral innocence to moral involuntariness and to moral blameworthiness, the Court ultimately found that "[t]o equate moral involuntariness with moral innocence would amount to a significant departure from the reasoning in Perka and Hibbert. It would be contrary to the Court's conceptualization of duress as an excuse. Morally involuntary conduct is not always inherently blameless ... I would therefore reject this basis for finding that it is a principle of fundamental justice that morally involuntary acts should not be punished."643 Even so, the Court found that even though moral involuntariness does not "negate the actus reus or mens rea of an offence, it is a principle which, similar to physical involuntariness, deserves protection under s. 7 of the Charter. Thus, only moral involuntariness emerges as the term that deserves protection.

Fletcher's reasoning was adopted by the Court in that "[t]he notion of voluntariness adds a valuable dimension to the theory of excuses. That conduct is involuntary - even in the normative sense - explains why it cannot fairly be punished."645 Thus, only conduct that is voluntarily performed can be

642 Ibid, at para. 38. 643 Ibid at para. 41. 644 Ibid, at para. 47. 645 Fletcher, Rethinking, supra note 569 at 804. 116 subject to liability. Can someone who is brainwashed be said to be acting voluntarily? For the first time in Ruzic the Court gave "moral involuntariness the same status as moral blameworthiness"647 without admitting the link between the two concepts.

Some have noted that this definition of moral involuntariness is quite broad and "[o]n its face, it captures a whole range of human conduct, most of which would not ordinarily be classified as conduct performed under duress."648 It is arguable that this statement would encompass a brainwashing defence as this individual could not be said to have a "free will" and "controlled body, unhindered by external constraints." It is these very statements of the Supreme Court of Canada that may leave room for such a defence. Shaffer also addressed the choice element in duress, claiming:

[a]n accused who acts to avoid threatened harm is morally blameworthy of the harm that she causes because she intended to bring about that harm (assuming that moral blameworthiness is limited to considerations of mens red). Nonetheless, she is not criminally responsible for her actions because the basic precept of criminal responsibility - that the accused was a freely choosing actor - is not made out. A person whose actions were morally involuntary does not by definition enjoy the autonomy that the law demands for an attribution of criminal responsibility. Consequently, such a person cannot be held criminally responsible for the harm that she causes. 4

Elevating moral involuntariness to the level of a principle of fundamental justice has very serious ramifications that may not fully be appreciated until sometime in the future; yet, it is a way to

Ibid, at 804 notes, in reference to Hart that "[o]f the arguments he advances for this principle of justice, the most explicit is that it is preferable to live in a society where we have the maximum opportunity to choose whether we shall become the subject of criminal liability." 647 Coughlan, supra note 576 at 186. However, the Supreme Court rejected the argument as adopted by the Ontario Court of Appeal based on moral innocence. 648 Christopher Sherrin, "Developments in Criminal Law: The 2000-2001 Term" (2001), 15 S.C.L.R. (2d) 213 at 258 [Sherrin, "Developments"]. Sherrin goes on at 259 to challenge the breadth of this definition with the example of a "penniless drug addict." He notes that "such a person is certainly not acting in a way that is free and unhindered by external constraints. On the contrary, powerful physical and psychological forces are acting upon that person." He concludes by asking "can we really say that the drug addict with no other ready means of dealing with an addiction has any greater choice?" Sherrin acknowledges at 259 n. 134 that some would say that it would be foreseeability that would distinguish the case for the drug addict but he argues that "this cannot be a complete answer to the problem. There are surely a number of addicts who could not have foreseen that they would become addicted, never mind that they would thereafter be compelled to steal to feed their habit." 649 Martha Shaffer, "Scrutinizing Duress: The Constitutional Validity of Section 17 of the Criminal Code" (1998) 40 Crim. L.Q. 444 at 460-61 [Shaffer, "Scrutinizing"]. 117 introduce a new defence. The Court is also injecting character theory into the concept of moral involuntariness. Introducing the accused's personal capacity to avoid the harm opens the door to examining the debilitating conduct under which the accused may have been functioning.

George Fletcher's work is widely cited by the Supreme Court in Ruzic saying that "[necessity and duress are characterized as concessions to human frailty in this sense. The law is designed for the common man, not for a community of saints or heroes."651 Although this was a laudable ideal, the critics have argued that it has "allowed moral involuntariness to require an acquittal even when the accused's behaviour is morally blameworthy."652 However, looking at the human frailty of the coercively persuaded defendant is a very important subjective element. Thus, it may be possible that someone who acted in a morally involuntary way but who was morally blameworthy would nonetheless be acquitted.

Although the Court softened the defence of duress in Ruzic, the defence "is still a mess."653 It is difficult to predict with any certainty that these principles of duress would survive scrutiny, but the possibility is there to create another defence which would rely on those principles of moral involuntariness. Stanley Yeo argues that although the Supreme Court made the concept of moral involuntariness a principle of fundamental justice, it "lacks sufficient constraint and is too imprecise to qualify as a principle of fundamental justice." 5 Yeo clarifies that, although offences play a primary

For a full discussion of the principles of fundamental justice and its history, see Peter W. Hogg, Constitutional Law of Canada (Scarborough, Ont.: Thomson Carswell, 2005) at 44.10 (a). Hogg explains that the phrase did not have an established meaning in Anglo-Canadian law, and in reference to the Bill of Rights fundamental justice was equivalent to the term natural justice. This allowed for review of the procedures of justice, but not the substantive justice involved. 651 Ruzic, supra note 571 at para. 40. 652 Coughlan, supra note 576 at 196. For a detailed philosophical discussion of the morass that has potentially been formed by Ruzic see Coughlan. 653 Don Stuart, '"Moral Involuntariness' Becomes Charter Standard for Defences" (2001) 41 C.R. (5th) 37 at 41 [Stuart, "Moral"]. Stuart notes, at 41, that the defence deserves "Parliament's attention" but he concludes that the Minister of Justice "will lack the vision to intervene and will await further Charter challenges to work their way to the Supreme Court." 654 Stanley Yeo, "Challenging Moral Involuntariness As a Principle of Fundamental Justice" (2002) 28 Queen's L.J. 335 at 335 [Yeo, "Challenging"]. 118 role in criminal responsibility, defence elements have a secondary role. Thus, Charter challenges to

defence elements have been rare and have not been successful before Ruzic.

II. The Objective/Subjective Standard

One of the most important philosophical debates has centred on the objective/subjective standard

in duress,656 and this was a central issue in Ruzic. Hibbert, however, was one of the first cases to

address this issue thoroughly.657 In Hibbert, the Court analyzed this issue through the "safe avenue of

escape" element of section 17.658 Lamer C.J. noted that this requirement of duress is "analogous to

that in the defence of necessity identified by Dickson J. - the requirement that compliance with the

law be 'demonstrably impossible.'"659 The Court identified that, if an accused does not escape without

"undue danger," the action would become "a voluntary one, impelled by some consideration beyond

the dictates of 'necessity' and human instincts." Lamer C.J. draws the same conclusion with

respect to the defence of duress. The Court discusses the subjective/objective standard and says that:

[i]n general, a person who performs an action in response to a threat will know what he or she is doing, and will be aware of the probable consequences of his or her actions. Whether or not he or she desires the occurrence of these consequences will depend on the particular circumstances. For example, a person who is forced at gunpoint to drive a group of armed ruffians to a bank will usually know that the likely result of his or her actions will be that an attempt will be made to rob the bank, but he or she may not desire this result ~ indeed, he or she may strongly wish that the robbers' plans are ultimately foiled, if this could occur without risk to his or her own safety. In contrast, a person who is told that his or her child is being held hostage at another location and will be killed unless the robbery is successful will almost certainly have an active subjective desire that the robbery succeed. While the existence of threats clearly has a bearing on the motive underlying each actor's respective decision to assist

655 Ibid, at 339 where Yeo gives examples of several attempts that were unsuccessful. 656 This has been a continuous field of debate. See Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol II (New York: Franklin, 1883) at 103 [Stephen, History] "[n]ow ordinary motives have a different effect upon different people. A man who, under the influence of ordinary motives, lies or steals or robs or murders in a bad man; a man who, under the influence of ordinary motives, abstains from such conduct, is so far a good man." 657 Hibbert, supra note 628. 658 Ultimately, the Supreme Court found that the trial judged had erred in his instructions to the jury and ordered a new trial. 659 Hibbert, supra note 628 at para. 55. 660 lb id. 119 in the robbery, only the first actor can be said not to desire that the robbery take place, and neither actor can be said not to have knowledge of the consequences of their actions.6 '

Lamer C.J. goes on to say that "excuse-based defences, such as duress, are predicated precisely on the

view that the conduct of the accused is involuntary ... he or she had no realistic alternative course of

action available."662 Again, the voluntariness element factors into the discussion of the standard

employed. In a defence such as brainwashing, the actor similarly hopes that their actions will be

successful because their very survival depends upon it. Just because this could involve numerous

crimes over years, or even decades, does not make the debilitating effects of brainwashing any less

real. In fact, the systematic nature of the threats may make it even more difficult to withstand.

Justice Lamer C.J. concludes that the accused's "perceptions of the surrounding facts can be

highly relevant to the determination of whether his or her conduct was reasonable under the

circumstances, and thus whether his or her conduct is properly excusable."663 Lamer C.J. states that

the Supreme Court had previously stated that when "assessing the reasonableness of an accused's

conduct for the purposes of determining whether he or she should be excused from criminal

responsibility, it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action."664 Thus, when it comes to assessing the accused's safe avenue of escape, which would be an issue with the coercively persuaded defendant, the Court should assess the matter on an objective basis, but the "appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused,"665 which amounts to an subjective/objective standard. Hibbert was an attempt, although not wholly successful, to correlate

661 Ibid, at para 24. 662 Ibid, atpar a 61. 663 Ibid. 664 Ibid, atpara . 59. Hibbert, supra note 628 at para. 60. See section below on safe avenue of escape for further discussion. 120 the test in the defences of duress, self-defence and necessity.666 Similarly, those who have been

brainwashed have been judged for not finding a means of escape. Adding the subjective/objective

factors of the systemic abuse of the victim could explain why this escape was not sought.

This subjective/objective standard was adopted in the 1990 case of R. v. Lavallee661 In this self-

defence and BWS case the Court specifically stated that "the jury must ask itself if whether, given the

history, circumstances and perceptions of the appellant, her belief that she could not preserve herself

from being killed by [the deceased] that night except by killing him first was reasonable."668 The

subjective elements of the case now had power. Similarly, the Supreme Court grappled with this issue

in the 2001 necessity case of R. v. Latimer where Robert Latimer was convicted of second degree

murder for the asphyxiation of his severely disabled child, Tracey.669 In Latimer, the Court cites the

case of Perka where Dickson J., later C.J., stated that necessity:

rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle . . . 'overstrains human nature and which no one could withstand.'670

The Court takes this idea and adds subjectivity to the standard. The Court is careful not to go too far,

however, as they want to avoid the situation where a defence like necessity would "very easily

become simply a mask for anarchy."671 They realize, as Dickson C.J.C. said in Perka, this type of

defence needs to be "strictly controlled and scrupulously limited."672 Following this rationale, the

666 A. Reilly & R. Mikus, "7?. v. Hibbert: The Theoretical Foundations of Duress" (1996) 30 U.B.C.L. Rev. 181 at 199 [Reilly & Mikus]. 667 Lavallee, supra note 6. See section below on BWS. 668 Ibid, at para. 59. 669 See R. v. Latimer, [2001] S.C.R. 3, S.C.J. No. 1 at para 32-34 [Latimer]. 670 Perka, supra note 578, citing Aristotle, Nichomachean Ethics III, I, 1110a at 49. 671 Southwark London Borough Council v. Williams, [1971] Ch. 734 at 746 (C.A.) [Southwark] cited in Latimer, supra note 669 at para. 27. 672 Perka, supra note 571 at para. 38. 121 Court in Latimer found that a "modified objective test" would apply to two of the three requirements

for necessity, fitting somewhere between an objective and subjective standard.673 Although proportionality would be measured on an objective basis, imminent peril and no reasonable legal alternative would be judged on a modified objective basis.674 The same would be possible for the

Latimer, supra note 669 at para. 32. The court found that the element of proportionality must still be measured on an objective basis. This modified objective test has arisen in various other contexts. See Eric Colvin, "Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility" (2001) 27 Monash U.L. Rev. 197 at 222 [Colvin]. Colvin notes at 225 that although the Supreme Court of Canada has recognized a modified objective test for self-defence, duress and necessity, but has denied that standard to provocation and negligence. Although there was some indication that negligence should have a subjective element, Colvin notes at 225 that although Hibbert called for a flexible model for excusatory defences, "Lamer CJ argued that the negligence-based offences are concerned with the consequences of choosing to engage in inherently hazardous activities whereas excuse-based defences are concerned with situations where there was realistically no alternative course of action. Presumably the claim is that the handicapped accused should have stayed away from the activity which led to the charge of criminal negligence whereas the handicapped person who claims an exculpatory defence can be absolved of all responsibility for the predicament which was faced." Colvin goes on to acknowledge at 225 that individuals who "claim self-defence, duress or necessity could often have avoided the situations in which a need for drastic action became apparent ... If flexible objective tests are appropriate for exculpatory defences, they are also appropriate for criminal negligence. It follows that if they are rejected from criminal negligence, they should also be rejected for exculpatory defences." He also argues that denying this standard to provocation also defies logic. Colvin notes that this may have evolved because those claiming provocation are somehow dangerous as he explains at 226 that "[cjoncerns about social protection are more likely to be raised with respect to provocation than with respect to negligence, self-defence, duress or necessity. Situations of duress and necessity are so rare that we can discount any dangers for the future presented by accused persons with abnormally low capacities for fortitude. Cases of negligence and self-defence, where the capacities for foresight or insight are in issue, arise more frequently. Yet, it is only in very extreme cases that a person who is cognitively impaired is considered dangerous." Colvin rejects this view at 226 and notes that the "fear of abnormally short-tempered persons being acquitted is largely unfounded . . . Furthermore, in most jurisdictions, a provocation defence operates as no more than a partial excuse reducing the offence from murder to manslaughter." 674 Latimer, supra note 669 at paras. 34-36. The SCC went on to say that the "first and second requirements ~ imminent peril and no reasonable legal alternative - must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: 'involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to pressure' (p. 259). We would add that it is appropriate, in evaluating the accused's conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The approach taken in Hibbert, supra note 628, is instructive. Speaking for the Court, Lamer C.J. held, at para. 59, that 'it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.' While an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused's beliefs and actions, but it would be proper to take into account circumstances that legitimately 122 brainwashing defence. There is some hope of stopping the floodgates arguments by saying that the

Supreme Court of Canada addressed this issue and established limitations for the defence. This does not mean that the defence should be wholly discounted.

All of these developments in a subjective/objective test culminated in the Supreme Court decision in Ruzic.675 The Court in Ruzic adopted the argument with relation to "safe avenue of escape" from Hibbert and acknowledges that an objective-subjective standard should be used as the situation should be examined "from the point of view of a reasonable person, but similarly situated."676 The Court says that the offender's "particular circumstances," the availability of a

"reasonable alternative," as well as his "background and essential characteristics," should be taken into account to provide a "pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse."677

Thus, the individual again becomes a crucial consideration.

Fletcher's individualized standard re-appears, and, as he stated, "it is always actors who are excused, not acts." 7 Fletcher acknowledged that the common law's adherence to excluded offences is not necessary and that "if the issue were exclusively the involuntariness of the deed - and not its rectitude - there would be no reason to reject claims of duress in homicide cases ... yet the common law is obviously ambivalent about the distinction. It uses the idiom of excuses in characterizing duress, but it insists that the party relying on duress act to further the greater good." 7 Fletcher commends the German system and its use of the term "zumutbarkeit" which "roughly translate^] as affect the accused person's ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it raises the possibility that an honestly held but mistaken belief could ground a 'mistake of fact' argument on the separate inquiry into mens rea." 675 Ruzic, supra note 571. 676 Ibid, at para. 61. 677 Ibid. 678 Fletcher, "Individualization", supra note 575 at 1271. 619 Ibid, at 1289. 123 attributability or imputability"680 and speaks to what can be "fairly expected" of an accused in certain

circumstances.681 This term "captures the question whether an individual can be justly held

accountable for violating a rule." This type of inquiry seeks to avoid the constructs that have been

used to analyze the defence by focusing on the individual circumstances.

What the Canadian courts have done by adopting an objective/subjective standard is to recognize

the individual, a direction which merits further exploration because "individualizing excuses

complements rather than detracts from the rule of law"683 by "relating to the character of the doer

rather than to the quality of the deed."684 Commentators have concluded that the "modified objective

test does not just put the ordinary or reasonable person in the context of the accused. The objective

test is personalised: the cognitive and volitional powers of the accused are incorporated in the standard

against which the accused is measured."685 Again, putting the actor back in the act is the best way to

understand duress, and it is the future means to allow a new defence such as brainwashing.

III. Susceptibility

Fletcher argues that when "excusing conduct that is not fairly subject to blame," the next case

"bears an inverse relationship to the legal situation of actors who thereafter rely on the decision."686

He argues that if the actor "is acquitted on grounds of involuntariness, it becomes more difficult to

acquit the next convict caught in a comparable situation. If [the actor] is convicted, the mere fact of

the conviction lends greater credence to the claims of those who subsequently claim that they are not

to blame for yielding to the pressure of circumstances." 7 Fletcher concludes that "excuses are

680/fc/rf. at 1300. 681 N.J. Reville, "Duress: Sharp Shooting at Criminal Organisations" (1987) 131 Solicitors J. 1302 at 1304 [Reville]. 682 Fletcher, "Individualization", supra note 575 at 1300. 683 Ibid, at 1289. 684 Fletcher, "Individualization", supra note 575 at 1272. 685 Colvin, supra note 673 at 223. 686 Fletcher, "Individualization", supra note 575 at 1304. 6B1Ibid. 124 individualized; for the mere fact of publicly excusing conduct under overwhelming pressure injects a

new factor into the analysis of subsequent cases."688 He continues that excuses "do not modify the

applicable legal rule; they relate to the subsidiary question whether a particular individual can be held

accountable for violating a rule that remains intact."689 Greenawalt also argues this point, assenting

that "if moral blame is inappropriate if an actor is abnormally susceptible to threats . . . [t]hat

susceptibility may reflect some moral failure; in any event, blaming [the actor] may help him and

others become more resistant to threats."690 Greenawalt notes that Fletcher argues the same point,

saying that "when a duress claim is denied, a court may actually find the claim of duress in the next

similar case more appealing, because the actor is aware that he will not escape legal penalties."691

Greenawalt argues that giving a jury too many subjective factors, including an individual's

susceptibility, would be too difficult and would "provide some incentive for fraudulent efforts to

establish that actors have inordinate susceptibility to threat or insult, and reduce the constraints on

people who are strongly tempted to yield to powerful emotions."692 Thus, he argues that some sort of objectivity must be maintained.

Regardless of the test, Taylor addresses why some seem so much more susceptible to brainwashing while others appear to be free from its power. She notes:

[tjhis variability holds for psychological traits as much as for physical structure - including traits which predispose to, or protect against, susceptibility to influence. Some people can emerge unbroken from torture or unfleeced from a brush with a conman . . . They have an inner strength, a self-belief, which insulates them from these forms of social pressure. Most of us lack that protection. Although we may think we're immune, reality is constantly proving us wrong. We fall prey to conmen, subscribe to dubious offers, buy things we don't want or need, give money to charities about which we don't really give a damn.693

688 Ibid. mIbid. 690 Greenawalt, supra note 559 at 1917. 691 Ibid, at 1917 n. 63. 692 Ibid, at 1918. 693 Taylor, supra note 46 at 208-09. 125 West also notes these factors in certain individuals, explaining that each "individual's susceptibility or

resistance to the process will depend upon his understanding of what is being attempted, his

background or knowledge of the subject matter, his familiarity with competing points of view, his

capability for resisting group influences . . . and his innate spirit of independence and rebellion against

coercive authority."694 Schein argues that those with a "proneness to social guilt" was a predictor of

whether one would succumb to brainwashing.695 This argument can also become purely biological, as

it has been theorized that "susceptibility to brainwashing (and other forms of influence) has much to

do with the state of your brain. This will depend in part on your genes: research suggests that

prefrontal function is substantially affected by genetics."696

Lifton also addressed the question of susceptibility among his own subjects. He found that "it is

not so much the specific type of character structure which is important, as is the degree of balance and

integration; not so much who one is as how well one is put together . . . [Ajpparent resisters . . .

possessed great strength of identity in contrast to the apparent converts . . . who tended to show

identity diffusion."697 Lifton concluded that no personality type "held a monopoly on human

limitation, strength, or courage."698 However, Schein noted some personality types could be more

influenced. He found that if the:

prisoner-to-be had not yet found a cause or a basic set of goals and values to which to attach himself, or had not yet found a group into which he could integrate himself, he was more likely to be influenced in prison. Such a person was still searching for meaning and for significant emotional relationships and was therefore likely to have a weak sense of identity and to be prone to seeking information from the outside concerning his identity.

Thus, those without a firm sense of themselves were more prone to be susceptible to this type of influence. Warburton notes that it is important to remember that "no two defendants will have the

694 West, "Brainwashing", supra note 279 at 252. 695 Schein, Coercive, supra note 151 at 167-68. 696 Taylor, supra note 46 at 215. 697 Lifton, supra note 58 at 150-51 [emphasis in original]. 698 Ibid. 699 Schein, Coercive, supra note 151 at 168. 126 same traits for susceptibility, nor will they respond similarly to the same coercive influence."700 For

this reason she concludes that individual torture and manipulation could "excuse the offender, go

towards mitigation, or do neither, depending on the nature of the coercion."701 What is important to

establish, if a defence of brainwashing is to be accepted, is that there has to be a defined sense of

susceptibility and a standard that clearly delineates what is required of individuals. Warburton argues

for a three pronged analysis, including that the defence should "determine the susceptibility of the

defendant to compelled conversion. Some individuals are more susceptible to influence based on age

or mental deficiency. Evidence of the defendant's inclination to succumb to peer pressure or irrational

obedience to authority figures would be useful to establish this."702 Only then should the defence

examine the methods of brainwashing used and the character of the defendant.703

Another prevalent objection is that an individual would not be susceptible to brainwashing if they

did not have a "'germ' or 'seed' of the criminal personality," that "the coercive process only elicits

and nourishes what already exists in latent form," and that this person should be responsible for their

actions even if this is a fleeting state. Delgado responds that researchers believe that "virtually

everyone can be induced to behave criminally if subjected to intensive thought reform in a totally

controlled environment."705 This would mean that everyone possesses the mens rea necessary to act

criminally which "divests the concept of any meaning."706 There is no rationale for punishing the brainwashed when they return to their previous beliefs and are no more susceptible to recurrence than any other member of the population. This would be extending mens rea far beyond its limits. 7

700 Warburton, supra note 58 at 83. 701 Ibid. 702 Ibid, at 88-89. 703 Ibid, at 89. 704 Delgado, "Ascription", supra note 52 at 24-25. See notes above on susceptibility. 705/to/, at 25. 706 Ibid. 707 Ibid. 127 Although susceptibility is not often discussed in Canadian courts, the case of R. v. Shahnawaz

involved a duress defence and a defendant who had been imprisoned and tortured in Afghanistan and

who suffered from PTSD as a result.708 On sentencing, the Court found that "[although it is possible

that Mr. Shahnawaz's susceptibility to external pressure and his limited coping skills were contributing

factors to his drug trafficking activities, there is no clear evidence that Mr. Shahnawaz's disability

actually played a role in the commission of the offences themselves."709 Thus, this leaves the

possibility of treating a susceptibility to brainwashing more as a positive factor in accepting the

defence, rather than as a liability.

Similarly, in the case of United States, v. Willis, the Court found that "[w]hile concluding that

evidence of the particular susceptibility of battered women could not be taken into account in

determining criminal liability, the Court found that such evidence could be taken into account for

purposes of criminal sentencing."71 Similarly, Lunde & Wilson concluded that susceptibility should

be a factor upon sentencing, saying that as a factor of mitigation the Court should consider the

"susceptibility of the defendant to compelled conversion. As the phenomenon of compelled

conversion has been described, some persons are more capable of resisting than others. While society

expects everyone to resist and applauds those who do, society should punish less severely those who

at least resist to the extent of their capabilities." Our society expects that there will be some

threshold of tolerance to pressure on a subjective/objective standard of someone similarly situated.

This recognition of a subjective/objective standard would resolve the problem of susceptibility by

replacing that low subjective threshold to that of a reasonable person. Although this nuanced standard

has yet to be fully realized, the possibility of using this standard within brainwashing is apparent.

708 [1999] O.J. No. 4084, 44 W.C.B. (2d) 146 (Ont. Sup. Ct. J.) [Shahnawaz]. 709 Shahnawaz, supra note 708 at para. 30. 710 38 F.3d 170 at 176 (1994) [Willis]. 711 Lunde & Wilson, supra note 92 at 378 [emphasis in original]. 128 The issue of the role of susceptibility and subjective/objective factors is still very much a live

issue within the brainwashing debate. This is not a unique issue to brainwashing, but one that is

fundamental in that susceptibility and the subjective standard which was very important in the Patty

Hearst trial. Because Hearst was a young, white, privileged upper class woman, it was fundamental to

view the impact of the actions and threats on Hearst from a subjective standpoint. Although the Court

has struggled with this issue in the case of the criminal defence of provocation and the rqle of the

subjective/objective standard and the unique susceptibility of the individual, the most recent Canadian

case on point to the objective/subjective debate is the 2008 dangerous driving case of R. v. Beatty.

The Supreme Court found that the "modified objective test established by this Court's jurisprudence

remains the appropriate test to determine the requisite mens rea for negligence-based criminal

offences."713 Yet, again, there was no consensus on capacity and human frailty and what the

reasonable objective/subjective capability of a reasonable person would be in a factual context. The

debate will continue on liability and how much the Court wishes to objectify the standard, and how

much one should consider susceptibility, the same issue that is considered within brainwashing.714

IV. Why Brainwashing Will Not Fit Within the Existing Defence of Duress

It has been noted by those who examine the role of brainwashing in modern law that, with the

exception of duress and insanity, none of the other recognized defenses applies to cases of brainwashing.715 With respect to the defence of duress, however, there are serious issues with fitting brainwashing into the defence. It has been noted that since "coercive persuasion, when successful, often eliminates the need for continuing coercion, as well as the will to resist and desire to escape, a victim is unlikely to meet the fairly rigid standards of a duress defence."716 The discussion of duress

712 R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5, 228 C.C.C. (3d) 225 [Beatty]. 713 Ibid, at para. 7 [emphasis in original]. 714 See Part III on susceptibility. 715 Merton & Kinscherff, supra note 43 at 8. 7,6 Ibid. 129 and brainwashing was an issue that was pivotal in the Patty Hearst trial. The "theory of the

brainwashing defense - that Patty was coercively persuaded to join her captors - appeared logically

inconsistent with the duress defense - that Patty never joined the SLA but only pretended in order to

save herself from death."717 Both propositions could not be true, and this incongruity plagued the

defence. The prosecution capitalized on this fact telling the jury that:

brainwashing - that is physical coercion or duress - as recognized in the law of defense, are totally inconsistent concepts. If a person is brainwashed, there is no necessity to coerce him physically, because that person does what the person is told to do, he is brainwashed. So there is no necessity for threatening that person, saying, 'If you don't do it, we're going to kill you.' If he is brainwashed, no necessity of pointing a weapon at him to make sure he does it right. You know he is going to do his best presumably if he is brainwashed. And the converse is equally true.7

Delgado explains that it is a fundamental problem in that the "victim of thought reform often

continues to feel controlled by the captors even after leaving their presence; he may 'reasonably,' if

incorrectly, believe that he will suffer punishment if he fails to act as expected."719 This claim was

somewhat effective at the Hearst trial, but, as noted above, the defence all but abandoned the

brainwashing theory near the end of the trial.

Even thought these defendants could not fit within duress, Delgado emphasizes the urgency to

recognize a separate brainwashing defence as the "frequency with which such cases arise is likely to

accelerate as social conditions conducive to terrorism and other forms of psychologically totalistic

behavior continue, and as the potential utility of thought reform methods becomes more widely known

among extremist groups."7 Although commentators disagree whether a brainwashing defence can be

successful after Hearst,721 what can be agreed on is that a case of brainwashing cannot fit within the

717 Scheflin & Opton, supra note 7 at 74-75. 718 Reeves, supra note 83 at 585. 719 Ibid, at 7 n. 29. 720 Delgado, "Ascription", supra note 52 at 6. llxlbid. 130 722 model of duress. There are too many limitations to duress, including the problems with immediacy,

safe avenue of escape, prior fault, and excluded offences. Lunde and Wilson refer specifically to one

of the American court-martial cases from 1957; United States v. Fleming?21' In this case the defence

unsuccessfully tried to argue that the accused was under duress, or alternately was acting under mental

coercion, when collaborating with their captors in a POW camp in Korea.724 In a novel argument, the

defence argued that "to attempt to apply such law to the situation overwhelmingly shown by this

record of trial, and by history to have existed in the prisoner of war camps, where every breath was

drawn under constant pressure by unscrupulous captors, and in the ever present shadow of death, is to

ignore reality to the grave prejudice of the accused."725 Nonetheless, the Court found that the strict requirements of duress had to be maintained because "traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch." 2 Alternately, the defence argued for an instruction to the jury that the accused was subject to: harassment, deprivation, degradation, and physical impairment... If, in your determination. . . you find, from the testimony that has been offered in this case, that the ability of the accused. . . was so impaired or diminished by harassment, deprivation, degradation or physical impairment, so as to make it impossible for the accused to refuse to comply with the demands of his 727 captors.

Again, with this argument, the Court found that this statement would result in an instruction on insanity, which was impossible as there had been expert testimony that the accused was not suffering from a "disease of the mind." The Court eliminated this defence, commenting that "throughout the lengthy record of this trial, it was never claimed by the accused or defense witnesses that he did not 722 Lunde & Wilson, supra note 92 at 358. 723 United States of America v. Fleming, 7 U.S.C.M.A. 543 (1957) [Fleming] cited in Lunde & Wilson, supra note 92 at 359 n. 64. 124 Ibid. 725 Ibid, at 559. 126 Ibid. 727 Ibid, at 561. 728 Ibid. 131 know he was communicating with the enemy. The accused testified at considerable length that he not

only was aware that he was communicating with the enemy, but he resisted their efforts by delay,

technicalities, and general sabotage."729 Again, duress coupled with the coercion defence was not

accepted by the Court. Dressier makes the argument that the law of duress is a coherent limit to a

defence because a "gun pressed to one's head presents more substantial loss of choice."7 Thus, the

conclusion with duress is to raise it to reject the defence, as does Delgado. What is important to take

from Ruzic is the concept of normative involuntariness, which gives a basis to the brainwashing

defence.

But even with normative involuntariness, the current understanding of duress makes it difficult to

incorporate. An example of why duress is not workable within the context of brainwashing can be

found in the 1982 case of R. v. Robins.731 Tina Robins was charged with kidnapping a young girl.

She testified that she only participated because of fear of her husband. He threatened to kidnap her

biological daughter and take her to the United States if she did not comply in assisting him in forcibly

confining their young captive. The Quebec Court of Appeal upheld her conviction. Although it was established in evidence that Robins had laid an information and a peace bond against her husband,

Kevin Ogilvie, for common assault and for her fear of bodily harm for herself and her daughter, and

despite the fact that she was an informer against her husband, the Court refused to acknowledge the

impact of her abuse.733 Robins said in a statement that "I didn't do it voluntarily (the kidnapping), I was extremely afraid of my husband and in addition I feared that he would kidnap my daughter

™ Ibid, at 562. 730 Dressier, "Justification", supra note 616 at 508-09. 731 R. v. Robins (1982), 66 C.C.C. (2d) 550, [1982] C.A. 143 (Qc. C.A.) [Robins]. 732 Martha Shaffer, "Coerced into Crime: Battered Women and the Defence of Duress" (1999) 4 Can. Crim. L. Rev. 271 at 273 [Shaffer, "Coerced"]. 733 Robins, supra note 731 at para. 9-10. 132 through some sadistic manoeuvre because all he ever did was constantly hurt me, but I greatly regret

having become mixed up in this affair; I'm sorry and I hope that God will forgive me."734

Robins said that she did not reveal her husband's plan because she was "very afraid."7 He told

her how to dress for the kidnapping, and how she was to drive the car.736 She said that she did not

contact the police because if her husband knew that she had "betrayed him, he would have killed

me." At a time before BWS had gained acceptance, the judgement chastised Robins, for "[i]n any

event, the threats which may have influenced her conduct, did not put her immediate security.in

danger. Before the perpetration of the crime and during its execution, she could have eliminated the threat by leaving her husband."738 The Court of Appeal rejected the statutory defence of duress

because they found that there was no threat of death or bodily harm to Robins herself, rejected the common law defence of duress because she was the principal offender, and rejected the defence of marital coercion as being abolished.739 The Court ultimately commented that "no one continues to believe that the married woman, in the presence of her husband, only acts as his puppet."740 This is the attitude that makes duress so inappropriate for use with a brainwashing/abuse situation.

Delgado agrees that it is not advisable to fit brainwashing into one of the existing defences. He notes that "[ejxtension of existing doctrine to include the 'hard case' of a coercively persuaded defendant may blur the lines separating legal concepts to the point where no one can predict their boundaries" while a new defence has the "considerable advantages of analytical simplicity and

734 AW. at para. 14. 735 Ibid, at para. 12. 736 Ibid. 737 Ibid, at para. 13. 738 Donna Martinson et al. "Forum on Lavallee v. R: Women and Self-Defence" (1991) 25 U.B.C. L. Rev. 23 at para. 24, citing Robins at 559 [Martinson et al.]. 739 Robins, supra note 731 at para. 35-53. 740 Ibid, at para. 51. 133 precision, [and] predictability. . ." Thus, brainwashing does not fit within the established defence

duress (as it may or may not stand after Ruzic) because:

1. The continuing threat that is required for duress does not exist in brainwashing. The individual often appears to be completely removed from the threat of their brainwasher; 2. The immediacy element of duress often will not be present in brainwashing; 3. The presence requirement in duress (which may not exist after Ruzic) certainly is not present in brainwashing cases; 4. The brainwashed defendant frequently has an obvious safe avenue of escape; 5. The brainwashed defendant might have some element of prior fault, for example, in marrying an individual knowing they had a "dark side"; 6. There are numerous excluded offences in the duress defence making it unavailable to almost all the individuals profiled in this dissertation.

Delgado emphasizes that if there is no defence of brainwashing the result is a "troubling one" because

this would mean "denying a defense to a class of defendants who are, by ordinary moral intuitions,

often more victims than perpetrators."742 Since the duress defence is so restrictive, the better choice

may be to adopt a type of impairment defence, but there is also difficulty in fitting this notion into

i« 743 existing paradigms.

c. Not Criminally Responsible by Means of Mental Disorder (NCRMD)

It is important to inquire into whether a brainwashing defence could be developed looking at the defence of NCRMD. The Canadian defence of mental disorder is found in s. 16 of the Criminal Code of Canada which states that "[n]o person shall be criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong"744

741 Delgado, "Ascription", supra note 52 at 7 n. 29. 742 Ibid, at 6-7. 743 Lunde & Wilson, supra note 92 at 360. 744 Criminal Code, supra note 529. 134 Lunde and Wilson examine brainwashing in the context of the "insanity" defence,7 5 and the unsuccessful case of United States v. Batchelor1 The accused alleged that he had written treasonous statements and had informed on fellow prisoners while he was suffering from "induced political psychosis" which was equated to a schizophrenic episode.747 The Court found, ultimately, that there was no recognized disease in science or law and that while "diligent psychiatric experts could characterize the confusion and adoption of new views as the product of a delusion like that associated with schizophrenia, doing so would stretch the existing understanding of the psychiatric definition of schizophrenia."7 The characterization of brainwashing as a mental disorder is difficult because "the defendant's changed beliefs typically endure only for the period of captivity ... a kind of'temporary insanity.'"749 For this reason, conceptualizing brainwashing within the model of mental disorder is not advisable from the outset.

The traditional criticism of allowing this sort of defence is what the authors call a "severe line- drawing" issue.750 Lunde and Wilson identify that the brainwashed defendant would seek an excuse

"because of external factors playing upon him. At some point, this dissolves into a deterministic view of human behaviour that is incompatible with the Anglo-American jurisprudential tradition of free will."751 These are the same criticisms which are still relevant and debated today. Lunde and Wilson add, as discussed above in the American case of Fleming, that the defence of insanity was not available because he did not lose the ability to tell right from wrong, and in fact said that he did not

745 Lunde & Wilson, supra note 92 at 363. Now called the mental disorder defence, or NCRMD. Also see Davis, supra note 822 at 462 following who makes a case for brainwashing in insanity, irresistible impulse, diminished responsibility, ignorance and mistake of fact and law, defense of self/others/property, duress and intoxication. 746 United States v. Batchelor, 19 C.M.R. 452 (1955) [Batchelor]. 747 Lunde & Wilson, supra note 92 at 365-66. 748 Ibid, at 366. 749 Ibid. 750 Ibid. 751 Ibid. 135 believe the indoctrination he was subjected to."75 Thus, this subcategory of offenders would have a difficult time explaining their actions in terms of mental disorder.

Another interesting case where brainwashing with insanity was raised but not accepted was the case of United States v. Garwood?5* In that case, the Court addressed a situation where a 19-year-old

Marine, Private First Class Robert Garwood, was missing during, and after, the Vietnam War, beginning in September 1965.754 Fourteen years after his capture he was brought to the attention of a

United Nations delegation in 1979,755 which is believed to be the longest time in Asian captivity survived by an American POW.7 At the time of his capture, Garwood was scheduled to leave

Vietnam in two weeks, so he was completely unarmed but managed to kill two Vietnamese officers before they stripped him and marched him through the jungle for 10 days.757 Although Garwood did not testify at his hearing, many of the details were recalled by psychiatrists testifying on his behalf.

Garwood had acted as an interpreter and informant for the Vietnamese, and he raised as a defence at trial that among other psychiatric conditions, he was a victim of "coercive persuasion."758

Using the combined mental illness and brainwashing defence the Court noted that Garwood had been the:

victim of levels of torture and brutality during his initial period of incarceration by the enemy sufficient to coercively cause him to adopt an identity totally separate and apart from his conscious, controlling state of mind, and that this separate identify or 'dissociative reaction' made it physically possible for the alleged offenses to have been committed by him without the requisite linkage to the necessary perceptive and controlling faculties required under the principles of mental responsibility. 5

752 Ibid, at 367. 753 16 M.J. 863 (1983) [Garwood]. See also Alexander D. Brooks, "Was Garwood Guilty?" (1982) 12 The Hastings Center Report 45 [Brooks]. 754 Garwood, supra note 753 at 866. 755 lb id. 756 Merton & Kinscherff, supra note 43 at 5. 757 Ibid. 758 Garwood, supra note 753 at 866-67. 759 Ibid, at 867. 136 Despite this evidence, and despite appeal, Garwood was convicted by general court-marital of aiding enemy forces within prisoner of war camps and the assault of an American prisoner of war.760 Many have questioned why Garwood was prosecuted when others had been granted immunity.761 Some speculate that it was because any traitorous behaviour during that time was seen as being disloyal to a

"faithful adherence to 'duty, honor, country' [which] would be unacceptable regardless of the circumstances."762

Similar to some battered women and the victims of the sexual sadist (as discussed below), it was emphasized at trial that Garwood seemed to be enjoying his role as interpreter and enforcer of the

Vietnamese.763 It was noted that others knew him as the '"white Vietnamese,' who answered to the name Nguyen Chen Dao (fighter in struggle). He spoke the guerrillas' language and wore their garb; he laughed, he squatted, he walked like a Vietnamese peasant. He even wore a Ho Chi Minh button."764 It was noted that other Americans who eventually saw Garwood "resented his apparent good health, good spirits, and close relationship with some Vietcong. Many who testified against him said that they did so in part because of pledges made to dying buddies that they would see Garwood brought to justice."7 5 Yet, as noted by Vanessa Merton and Robert Kinscherff, there was "no available witnesses to the critical early events of Garwood's captivity, only his own recollection filtered through the psychiatric testimony."7 It was clear from expert testimony, informed by the defendant, that Garwood was badly tortured during his early incarceration. Again, Garwood's background was also important to understanding why he might have adopted the beliefs of his

760 Ibid, at 864. 761 Merton & Kinscherff, supra note 43 at 5. 762 Ibid 763 Ibid, at 6. 764 Ibid, at 6-7. 765 Ibid, at 7. 166 Ibid. 137 captors. Although there is little question that the brainwashing and insanity defences were

unsuccessful in the Garwood case, the court-martial hearing was one of the "longest in American

military history [to that point, which] lasted from August 1980 until February 1981."768 The Officers

took "two-an-a-half days to reach agreement on Garwood's guilt" but only "barely an hour before they

meted out a surprisingly mild sentence."7 This has led commentators to reason that the arguments

on brainwashing must have been persuasive in the deliberation on sentence leading to mitigation. It

has been noted that the testimony on brainwashing was used for "exactly the limited purpose which

many think is its appropriate role within the criminal justice system - to extenuate punishment rather

than excuse the offense."770

Dressier argues that in comparison to duress and insanity, the "moral case for exculpating

coercively persuaded actors is weak."771 Dressier argues that there is less choice to be made by the

insane or those who act under duress. Although Delgado notes that the brainwashed defendant has

some choice, this is also true of the victim of duress or mental impairment.772 What is different about

brainwashing is that it is debatable whether the "coercively persuaded actor's choice is his own."773

These basic freedoms are missing in the brainwashed defendants, entitling them as "more deserving of

a defense than the individual who acts while insane or under duress."77 Delgado notes that some who

are subjected to insanity may have thwarted attempts to become well, but there is still a sense of self

767 Ibid., Merton & Kinscherff note that Garwood's mother was absent since he was four years old, and he was raised with an "authoritarian" grandmother, step mothers and half siblings. He left school in the tenth grade, and was a "shy and immature teenager temporality placed in a detention home for juveniles" and who suffered three major head injuries which the psychiatric witnesses thought might have made him vulnerable to coercion. 768 Ibid, at 5. 769 Ibid, at 8. 770 Ibid. 771 Richard Delgado, "Response to Professor Dressier" (1979) 63 Minnesota Law Review 361 at 362 [Delgado, "Response"]. 772 772 Ibid, at 363. 773' Ibid. 774 Ibid. 138 involved. In brainwashing, "it is the very self that is suppressed - if not demolished."775 It is for this very reason that brainwashing, again, does not fit within the rubric of insanity.

Dressier also compares brainwashing to the defences of mental disorder and duress. He notes that while mental disorder comes from an internal cause, duress comes from an external source but the actor is nonetheless blameless because "practical choice is eliminated by the deadly threat."776

Dressier theorizes that allowing those who were persuaded to have a defence would be to "exculpate obviously morally blameworthy persons."777 By way of explanation Dressier raises the hypothetical situation where an individual is "ecologically indoctrinated" to commit mass murder against those who pollute.778 Dressier says that the outcome that the individual is blameless is absurd because the actor "chose to act in a way he knew was immoral and illegal" and is therefore blameworthy.779 The author argues that the coercively persuaded situation is less compelling than the insane actor as the

"coercively persuaded actor's choices are far more substantial, and hence his blameworthiness

780 commensurately greater." Dressier notes that Delgado says that the brainwashed actor is "aware of the wrongfulness of this action" and therefore "choice is cognitively present. Delgado does not suggest that the actor is volitionally incapable of conforming his conduct to the law."781 Even in rejecting insanity and duress as options for the coercively persuaded actor, again, one defence structure is not suitable for all offenders. Delgado theorizes that there may be enough room in the present defences to allow for the defence of brainwashing for some offenders. He notes that there may be: elasticity in such defenses as insanity and diminished capacity to permit their extension to at least some coercively persuaded defendants. For example, insanity might be found in cases

115 Ibid. 776 Ibid, at 507. 777 Ibid. 778 Ibid. 779 Ibid, at 508. 780 Dressier, "Justification", supra note 616 at 508. 781 Ibid. 139 involving a severe traumatic neurosis which affected the victim's ability to appreciate the nature of the allegedly criminal act or to know that it was wrong . . . Since thought reform may cause exactly such results, a victim might successfully argue that he was rendered legally insane by the process of thought reform.7

Many are loath, as I am in the case of battered women, to say that they should fit within the paradigm of mental disorder. Thus, although some brainwashing cases might fit within a modified NCRMD or duress defence, most cannot.

In conclusion, the defence of brainwashing would not fit within the established defence of

NCMRD because:

1. Section 16 of the Criminal Code states that a person must be suffering from a mental disorder which makes them "incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong." From the first fundamental precept, this is not the case of the brainwashed defendant. They may know the quality of the act and they may know that it was wrong. Thus, it fails on both heads. 2. For many brainwashing victims, they are not suffering from any recognized mental disorder;783 3. The brainwashed defendant may be operating in this state for very long periods of time. It is difficult to say that the actor was temporarily insane for several months or years; 4. The influence is largely (or completely) external to the accused in brainwashing rather than an internal cause in mental disorder; 5. Delgado argues that although there may be some sense of self remaining in the insane actor, the brainwashed defendant has their entire self suppressed. Thus, this does not fall into the category of NCMRD.

d. Automatism

Automatism is linked to the defence of mental disorder because in both outcomes the accused may not be criminally responsible for an act committed while suffering from either state.784 The

782 Delgado, "Ascription", supra note 52 at 6 n. 29. 783 Note as discussed above in Part I, Brainwashing currently appears in the DSM-IV-TR diagnostic manual under section 300.15, Dissociative Disorder not Otherwise Specified. However, it is also important to remember that, as discussed, brainwashing is mentioned as an exemplar of coercive persuasion as only one of the elements for the diagnoses of a Dissociative Disorder not Otherwise Specified. There are other elements that must be satisfied for the diagnosis to be substantiated, but these are not further defined, which points to a potential lack of empirical foundation that brainwashing is a mental disorder. 784 Note that many of the cases discussed in this paper occurred under the old insanity provisions under the Criminal Code and are, therefore, referred to as sane and insane automatism. Today the Criminal Code specifies that the accused would be found not criminally responsible by reason of mental disorder (NCRMD). Therefore, although some of the material in this paper may refer to sane and insane 140 Supreme Court of Canada came to a unanimous decision in Parks (the infamous sleepwalking murder

case) which settled many of the issues regarding automatism, as the Court realized that they had to

thoroughly analyze the principles, definition, and the burden of proof.7 5 The Court adopted the

definition of disease of mind from R. v. Cooper1 and maintained the particularly legal definition

from R. v. Rabey stating that "disease of the mind is a legal term, not a medical term of art; although a

legal concept, it contains a substantial medical component as well as a legal or policy component,"

and it is "capable of evolving with increased medical knowledge with respect to mental disorder or

disturbance."787 The Court in Parks realized the importance of medical opinion, but again pointed out

788

that relying wholly on medicine would be fallacious.

Similar to the arguments behind a brainwashing defence, the Court in Parks found that the root

of this crime was the normal condition of sleep, and that Mr. Parks could not be said to have a disease

of the mind while doing something that every human does for several hours each and every day.

Using this analysis, the Supreme Court found that the trial judge had properly left the defence of non-

insane automatism to the jury since evidence that sleepwalking was the cause of the accused's state of

mind was not on the record.789 The defect in reason could only be traced to sleep, an entirely normal

condition.790 Thus, medical evidence on the susceptibility and pre-disposition of an accused to

brainwashing could function in a similar way recognizing the scientific evidence.

Many argue that brainwashing would simply be an easy escape for those wanting to avoid

responsibility. However, this argument was addressed by La Forest in Parks who found that over-use

automatism, NCRMD is the correct term today to be consistent with the terminology of Part XX. 1 of the Criminal Code. However, for the purpose of ease, the terms can be used interchangeably. 785 Parks, supra note 751. 786 Ibid. 787 Ibid. 788 Ibid, at 899. 789 A. Mewett & M. Manning, Mewett & Manning on Criminal Law, 3rd ed. (Toronto: Butterworths, 1994) at 514 [Mewett & Manning]. 790 R. D. MacKay, Mental Condition Defences in the Criminal Law (New York: Clarendon Press, 1995) at 49 [MacKay]. 141 of automatism is not a historical or current reality. He also addresses those that claim that this defence goes against the Canadian system of justice, adding that:

[i]t may be that some will regard the exoneration of an accused through a defence of somnambulism as an impairment of the credibility of our justice system. Those who hold this view would also reject insane automatism as an excuse from criminal responsibility. However, these views are contrary to certain fundamental precepts of our criminal law: only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction. The concerns of those who reject these underlying values of our system of criminal justice must accordingly be discounted.7 '

La Forest focuses on two arguments that are made in the majority of automatism cases: the continuing danger theory, and the internal and external factors debate. He summarizes the former, stating, "the continuing danger theory holds that any condition likely to present a recurring danger to the public should be treated as insanity."7 In Parks, the Supreme Court drew from the testimony of five psychiatrists, psychologists and mental health professionals that the type of reaction experienced by

Mr. Parks was very unlikely to recur. Dr. Broughton testified to the accused's likelihood of repeating this violent activity. He stated that the continuing danger of Mr. Parks was "infinitesimal" and expressed that he did not think the danger would "exceed the risk of the general population at most."7 La Forest notes the finding in Burgess1 that the absence of a recurring danger does not prevent a finding of disease of the mind, but recurrence is simply one factor for consideration. Thus, since this factor does not preclude the use of sane automatism, the Court looks toward the second major policy factor.

The other pivotal case in automatism is R. v. Stone, which concerns psychological blow automatism. Many have argued that the defence of automatism was rendered virtually inaccessible by stating that "there is a presumption of a diseased mind whenever sufficient evidence to ground a

Parks, supra note 751 at 901. Ibid, at 887. R. v. Burgess, [1991] 2 All ER 769 [Burgess]. R. v. Stone, [1999] 2 S.C.R. 290, S.C.J. No. 27 [Stone]. 142 plea of automatism is introduced. The other is that, in assessing the likelihood of recurrence, the

judge is to consider not only the psychiatric history and emotional make-up of the accused but also the

likelihood that the triggering event will itself recur."796 This results in a test that looks for an external

cause because "any case of unconscious behaviour is by definition behaviour evincing a diseased

mind unless an external cause can be identified; and, according to the second, even if an external

cause can be identified, there may nonetheless be disease of the mind if it is likely that the external

cause will recur and irrespective of whether there is evidence of peculiar susceptibility in the

accused." Hence, this two step approach in assessing automatism may destroy the defence.

The Court continued that the testimony of the accused would not satisfy the burden of proof, and

that the Court needs to evaluate expert testimony and "medical history of automatistic-like

dissociative states." The Court also provided a non-exhaustive list of relevant factors under this part of the test which includes, "severity of the triggering stimulus, corroborating evidence by bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence."799

There are numerous criticisms of the majority decision in Stone.800 Some of the most severe criticisms speak to the Supreme Court's decision to change the burden of proof, and the imposition on the accused to prove the involuntariness of their actions. It has been said that this burden is too high because of the requirement to "discharge ... an evidential burden that is not only complex, but manifestly more onerous than any statement of the evidential burden found elsewhere in Canadian law

Ibid, at 68. Ibid. Ibid, at para. 189. Ibid, at para. 192. Note that Stone was a 5-4 decision. 143 .. . even in the exceptional cases in which the accused bears a legal burden on a matter of defence."

This decision has also been severely criticized for creating a paradox in which the accused's history of automatistic behaviour is a prerequisite in step 1, while it will be a dissuading factor in the continuing danger theory in step 2 which disallows the accused to use the defence of non-mental disorder automatism. This test has led to the reality that, "[i]n effect, both the absence and the presence of a history of automatism work against the defence of sane automatism."802

The continuing danger theory also poses problems. In Parks the test was formulated to ask if the accused would once again encounter the trigger that led to this episode. In Stone this test was found to be too hard to predict and instead the Court should ask whether the trigger will recur. However, there is a common thread of social defence which runs throughout the writings and opinions on the defence of automatism.

The links between a brainwashing defence and automatism are clear. However, in a brainwashing defence, the internal cause debate is moot. It is clear that brainwashing comes from an almost exclusively external cause, and in brainwashing the individual almost always reverts back to their "normal" self. If we are willing to recognize a defence where the cause is internal and it is possible to recur (NCRMD), there seems little reason to disallow a defence based on a rarely occurring external cause, which is even less likely to recur than sleepwalking. The rigorous tests of

Stone are unsuited to brainwashing as the subject is not unconscious but rather has temporarily implanted values. Although there are lessons to be learned from automatism, it is also clear that brainwashing could not fit within this controversial defence, nor should a brainwashing defence adopt the impossible standards set by Stone.

8U1 Stone, supra note 795 at 94. 802 D.M. Paciocco, Getting Away with Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999) at 281 [Paciocco]. 144 e. Unconsciousness/Diminished Capacity

Some have attempted to fit brainwashing within the paradigm of "unconsciousness" in that the

accused did not have awareness of their actions.803 Although this model has the benefit of not

requiring proof of a non-existent disease of the mind, similarly it "does not rise to the factual

sufficiency necessary."804 It is not possible for the accused to say that they were unaware of their

actions. In the POW cases, and in Hearst, the victims "remembered their crimes."805 Lunde and

Wilson make the argument for the diminished capacity defence as a middle ground between insanity

and the full exculpation of the accused. This is based on the uniquely British conception of clouded

consciousness which simply reduces murder to manslaughter in very limited circumstances. This

defence, however, does not exist in Canadian law. Some conclude that since brainwashing does not

fit squarely into the form of the mental disorder defences, and that duress is far too restrictive to

permit the concept, brainwashing should be considered a factor in mitigation (see below) upon

sentencing. However, Delgado notes that the "danger of overinclusiveness, then, is certainly no greater than with other mental defenses such as insanity, duress, or diminished capacity. In all

807 likelihood it is considerably less." In conclusion, unconsciousness/diminished capacity would also not be an option for the brainwashed offender because the defence does not exist in Canadian law. So, what would the result be if a brainwashing defence was mounted without the benefit, or impairment, of an established defence?

f. An Affirmative Defence or Superimposed Intent?

In light of the difficulties in integrating brainwashing as an affirmative defence, it may be useful to explore whether brainwashing could fit into a claim of lack of mens rea. As discussed earlier, the

803 Lunde & Wilson, supra note 92 at 369. 804 Ibid, at 370. 805 Lunde & Wilson, supra note 92 at 370. 806 Ibid, at 372. 807 Delgado, "Response", supra note 771 at 364. 145 conventional understanding of mens rea is far too narrow to incorporate consideration of brainwashing. However, if one looks at the unique and unusual concept of superimposed intent, there may be a role for mens rea to play. To sustain brainwashing as an affirmative defence, it is essential to establish that the actor was acting in a morally involuntary way and, therefore, not making a real choice to act as they did. It is important to note that brainwashing can also go to intent. First, one must look at the possibility of a defence of brainwashing.

One way to conceptualize this claim as an affirmative defence is to assert that the control exerted by another vitiates the free will of the actor and replaces it with that of the brainwasher/abuser. The coercively persuaded defendant becomes an "implement" of the brainwasher. Since the "choice" made by the defendant is no choice at all, this would be a full excuse for the coercively persuaded defendant. As LaFave and Scott note, "[t]he imposition of criminal liability for faultless conduct is contrary to the basic Anglo-American premise of criminal justice that crime requires personal fault on the part of the accused." This premise is the basis of this work on the coercively persuaded defendant: they did not have the personal fault required to be convicted for their crimes. This is a difficult notion to conceptualize because the:

[c]riminal law is based on the assumption of personal responsibility for one's behavior; and this is in turn based on the assumption of free will. Human beings can choose between right and wrong; if they do wrong, they can be assumed to have chosen to do so; and if they have done so, they must be held criminally responsible. The only exceptions to such personal responsibility are actions carried out by individuals who lack free will. 09

This may be exactly the case with the brainwashed defendant. Is it so incompatible with our system to admit the possibility that they have acted without free will? Reich continues that such an individual

"cannot be said to have a vicious will. He has a kind of will - his acts are in some sense voluntary and initiated by himself - but it is as if that will or self were not really his, but, instead, surgically

808 Wayne R. LaFave & Austin W. Scott, Handbook on Criminal Law (St. Paul: West Pub. Co., 1972) at 228 [LaFave & Scott]. 809 Walter Reich, "Brainwashing, Psychiatry, and the Law" (1976) 39 Psychiatry 400 at 400 [Reich]. 146 implanted." The logical conclusion to this type of situation is that if "free will is a myth, then it is a sustaining, socially-protective myth . . . The danger posed by a new rent made for brainwashing is that

XI 1 it might extend so widely as to tear the entire fabric hopelessly apart." This is the fear of many theorists: that extending the concepts defined in Ruzic one more step may destroy the entire defence system. Warburton, however, asserts that: before brainwashing can become a doctrinally acceptable criminal defense, it must be narrowly defined to complement current legal principles. The defensive postures of duress and battered woman syndrome ("BWS") offer brainwashing some hope of future acceptance. All three principles endeavour to weigh the actions of a coerced actor against society's need for retribution. A coerced actor who pleads any of these defenses intended the consequences of his action. If the intent to commit the crime, however, is superimposed by another person, the actor is less culpable than an actor who is able fully to exercise his or her free will. Fairness dictates that brainwashing mitigates the culpability and ultimately the punishment of a person who was brainwashed at the time the crime was committed.812

However, as discussed above, some can exclusively view brainwashing as an easy way to escape responsibility. It is substantially agreed that the medical model of NCRMD is not the place to include the defence of brainwashing.813 Skonovd notes that this process of brainwashing can be seen within the:

'medical model' which absolves individuals of responsibility for their conversions, for remaining with the group, and for behaving in 'abnormal' ways while in, based upon the argument that they were brainwashed into converting and then manipulated by mind control. The 'brainwashing model' also holds out the promise of 'health' - the promise of a viable existence apart from the movement in which the individual can experience independence and intellectual freedom once again.814

Reich, supra note 809 at 401 [emphasis in original]. HUIbid. 812 Warburton, supra note 58 at 75. 813 Brainwashing seems, at least substantially, to be the result of conditioning, and not an internal factor to the accused. Unless one adopts the view that some are internally susceptible to brainwashing in order to fit within the vague definition within the DSM-IV, NCRMD is not a good fit for the brainwashing defence. 814 Norman Skonovd, "Leaving the 'Cultic' Religious Milieu" in David G. Bromley, James T. Richardson eds., The Brainwashing/Deprogramming Controversy: Sociological, Psychological, Legal and Historical Perspectives (New York: E. Mellen Press, 1983) 91 at 101 [Skonovd]. 147 As with many of the criminal defences, there is also the floodgates argument that dictates that this would encourage defendants to assert brainwashing by anyone in their lives.815 Fletcher notes that the argument that a defence will be "abused" is fallacious because if the "defendant has an unequivocal right not to be convicted if he is incapable of controlling his conduct, we would never speak of his

'abusing' that right. It is only tenuous rights that are abused. We never speak of abusing the right to counsel, but some claim that the privilege against self-incrimination is abused."816 He concludes that this abuse argument is unacceptable because if "the criminal law is to be an institution expressing respect as well as compassion its institutions must be able both to punish the guilty and excuse the weak."817

Delgado argues that this can be addressed in the brainwashing defence by allowing reports of a defendant's mental state at various times. He explains that "[b]ecause the coercively persuaded defendant may have 'felt' the decision to be his own at the time, he may truthfully have said he was acting of his own free will. Indeed, he may have appeared so to the casual observer."818 He advocates an investigation of the individual's mental state at present, and recognition of the outward symptoms of brainwashing, including "confusion, flattened affect, stereotyped speech, dissociation, and memory loss" as well as evidence of their captivity.819 Thus, although NCRMD is not the proper place for a brainwashing defence, there is unquestionably a place and need for psychological assessment.

Some argue that these individuals have given away their free will and should not be excused.

Scheflin and Opton note that "[e]soteric notions like brainwashing allow people to forget that they are responsible for their own actions. Personal values, as well as independence of thought and judgment,

815 Delgado, "Ascription", supra note 52 at 26. 816 Fletcher, Rethinking, supra note 569 at 846. 8,7 Ibid. As discussed, the same concerns were raised with NCRMD, duress, automatism, diminished responsibility and BWS itself. These fears have not been realized as it is clear that all of these defences are extremely difficult to prove, making these concerns moot. 818 Delgado, "Ascription", supra note 52 at 26. 819 Ibid, at 26-27. 148 are not snatched away from people. People all too readily give them up voluntarily. The concept of brainwashing ... is the most seductive mind manipulation of all."820 Others argue that the will is not completely "extinguished. Rather, the force or threat makes the victim exercise his will differently than he otherwise would. A different kind of coercion, however, is said to extinguish the victim's will and result in what is commonly understood as brainwashing." For a criminal defence of brainwashing to be successful the onus would be on the brainwashed victim to show that the "'will' to do the act was not his, but that of the [brainwasher.]"822 The use of a concept such as coercive control theory explains this last step in how and why free will may be given to another. Thus, a philosophical basis for a brainwashing defence exists built upon the foundation of duress and necessity, bolstered by its own absence of choice, and understood, for example, in terms of the ephemeral cage823 of the battered woman.

Delgado notes that several elements would have to be proven for the defence: "(1) that coercive persuasion actually occurred; (2) that the defendant's unlawful action was the proximate result of that coercive persuasion; and (3) that exculpation for the act committed is morally justified."824 Delgado recognizes that these individuals "merit a defense"825 and he notes that if there was a case where:

severe, irresistible psychological pressures produced attitudinal changes so great as to suggest that the choices made while in the altered state were not the victim's own, these choices would not be blameworthy. Responsibility must be personal. If an individual is forced to assume states of mind that are utterly inauthentic and foreign to his nature, he should not be punished for the actions that follow as a direct consequence from them.826

He notes the importance of the jury in weighing the elements as there is "no clear line" separating those who are coercively persuaded from those who are not, but there must be a determination of

820 Scheflin & Opton, supra note 7 at 474. 821 Shapiro, supra note 482 at 1296. 822 J. Michael Davis, "Brainwashing: Fact, Fiction and Criminal Defence" (1976) U. Mo. Kan. City L. Rev 438 at 460 [Davis]. 823 Stark, Coercive, supra note 269 at 199. 824 Delgado, "Ascription", supra note 52 at 19. 825 Ibid, at 362. 826 Ibid. 149 "where on a continuum of responsibility a particular defendant lies." Summarizing his position,

Delgado confirms that:

[defendants are exculpated only if their behavioral and mentational patterns have been forcibly altered through terror, confinement, physical and psychological debilitation, and assaults on the self. It must be shown that these forces were applied over extended periods by persons who possessed life-and-death power over their victims and total control of their environment. Specifically excluded as criminal acts resulting from ordinary solicitation, voluntary membership in a criminal subculture, whole-life conditioning, or simply giving in to temptation. 2S

Delgado clarifies that this is not a defence "predicated merely on the happenstance of another human being's somehow participating in the formation of the defendant's mens rea." 9 This is a very clearly delineated situation, like that of the battered woman, where the life-and-death choices are not being made by the woman herself. However, Dressier also takes issue with Delgado's analogy to hypnotism and the research surrounding the concept which he characterizes as incomplete and the assertion that "personal traits are much more important than hypnotic induction in making one suggestible."830 Again, Dressier argues that extending the law to include a hypnosis analogy serves not "as a logical extension of the law, but as an abrupt, unlimited change."831

Yet, Delgado defends the brainwashing defence. He says that the "decision to recognize a given defence, like the decision to criminalize certain forms of behavior, is ultimately a moral one, reflecting notions of acceptable conduct under current social standards."832 Delgado argues that there should be some exculpation for one who experiences brainwashing. Delgado turns to the "moral premise that persons who have without fault undergone brutalizing experiences aimed at effecting drastic changes

Delgado, "Ascription", supra note 52 at 22. 828 Delgado, "Response", supra note 771 at 361. 829 Ibid. This was in response to Dressier, "Justification", supra note 616 at 503, who had accused Delgado of "blurfing] concepts of moral and legal responsibility." 830 Dressier, "Justification", supra note 616 at 506 who notes that a "recent study of 215 scientific studies indicated that although some 'enhancement of hypnotic-like behaviour as a consequence of induction' may exist, such enhancement is minimal, and 'this is the least resolved of the [various] issues." 831 Ibid. 832 Delgado, "Ascription", supra note 52 at 7 n. 30. 150 in their thoughts and behaviors should not be held accountable for actions stemming from these

experiences - like moral premises generally - cannot be proved, at least not in the same way in which

facts in the physical world may be."833 This is a defence which is needed because these individuals

had no fault but engaging in life with the wrong people. Delgado then discusses why a defence of

brainwashing should exist. He says that the "decision to recognize a given defence, like the decision

to criminalize certain forms of behavior, is ultimately a moral one, reflecting notions of acceptable

conduct under current social standards."8

Dressier balks at the underlying premise that one's life-long values can be violently changed 35

which is understandable given the fall-out of the Hearst trial.836 However, Dressier notes that this

topic is no longer of "mere academic interest" because the "likelihood that a defense based on

coercive persuasion will be raised in the future is great."837 There are many scenarios where this issue

could be raised and Dressier notes that "'terrorist' kidnapping is but one situation" and

deprogramming in the context of cults is another. He notes that deprogramming has "already been

litigated in criminal cases, actions in intentional tort, civil rights actions, and competency and

010 conservatorship hearings." Yet, he notes that Delgado is one of the first calling for an affirmative

defense based on brainwashing. Dressier agrees but notes that it must not "go too far or not far

enough. That is, it is logically impossible to frame a brainwashing defense that is both consistent with

present criminal law and jurisprudential doctrines and is also morally acceptable. Either we reject

such a defense, or we revolutionize the criminal law."8 Delgado responds that Dressier has

833 Ibid suIbid. 835 Dressier, "Justification", supra note 616. 836 Ibid, at 497. K1 Ibid, at 498. 838/^. 839 Ibid. 151 misplaced faith in the medical model, which might not be required in all brainwashing cases as evidenced by the NCRMD cases above.840

Dressier notes that Delgado's proposal would make our system choose between allowing "some morally blameworthy actors to be excused, while not excusing some morally blameless actors."841

Dressier also attacks the imprecision of Delgado's proposed defence and the list of factors that he identifies. Dressier questions the strength of each factor, what type of "threat" or condition is required, and objects that "sufficient limits to the defense are absent."842 Dressier also takes issue with the external manifestations that Delgado identifies as being insufficient to delineate the defence as it "fails to treat morally equal cases equally." Dressier bases this argument on the suggestion that

Delgado would excuse those who are the victim of "abnormal influences" like "physical depletion, prolonged isolation, and interrogation" but would deny the defence to someone subjected to "life-long poverty, drug [addiction], a broken home, peer group pressure, and lowered self-esteem."844

Delgado, "Response", supra note 771 at 363-64. Delgado has noted in another article, Richard Delgado, "Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment" (1977-78) 51 S. Cal. L. Rev. 1 at 71 [Delgado, "Religious"] that because many of these changes are radical, "medical judgement is not required to discern that something is wrong; they are readily apparent to lay person who have known the victim in his earlier life." He goes on, at 70-71, to note these observations such as: "(1) Sudden, drastic alteration of the individual's value hierarchy, including abandonment of previous academic and career goals. The changes are sudden and catastrophic, rather than the gradual ones that result from maturation or education. (2) Reduction of cognitive flexibility and adaptability. The victim answers questions mechanically, substituting stereotyped cult responses for his own. (3) Narrowing and blunting of affect. Love feelings are repressed. The victim appears emotionally flat and lifeless. (4) Regression of behavior to childlike levels. The victim becomes dependent on the cult leaders and desires that they make all decisions for him. (5) Physical changes including weight loss and deterioration in the victim's physical appearance and expression. (6) Possible pathological symptoms, including dissociation, delusional thinking, and various other types of thought disorder." 841 Dressier, "Justification", supra note 616 at 509. M2Ibid. at 510. 843 Dressier, "Justification", supra note 616 at 511. 844 These factors are beyond the scope of this dissertation, and are questions to be asked after the establishment of the defence. Dressier, "Justification", supra note 616 at 512, and he notes at 515 n. 20 that "exculpation of the ghetto defendant can at times be even stronger than for the coercively persuaded defendant . . . The conditions under which the ghetto defendant lives last longer than an episode of traditional coercive persuasion. Although the intensity is absent, there is no reason why long-term malnutrition and its effects, constant economic pressures, and peer influences, cannot wear down the average person more certainly than a cult situation . . . The person born into the ghetto clearly had no 152 In order to explain why brainwashing could be a full defence, Delgado offers a hypothetical situation that mirrors the situation upon which I will expand in the context of the battered woman.

Delgado creates a scenario where an individual is captured by an "outlaw gang" and is subjected to

"isolation, starvation, sleep deprivation, and guilt manipulation" until the gang demands that the victim perform criminal acts.845 Delgado notes that "[u]nder traditional criminal defense theories, exculpation would be available for those crimes the victim commits during the initial stages of captivity, when classic duress and coercion exist, but not during the latter stages, when such overt coercion no longer is necessary for the captors to maintain control. Such a result is surely wrong."846

Delgado argues that the "breakdown of the victim's identity" in this process "destroys the very mechanisms by which he might have offered resistance." It is the very nature of this phenomenon that the victim is no longer able to fight the captors and is more likely to acquiesce.848

When the first research was being published on BWS, Steinmetz commented that "[o]ur burgeoning body of knowledge about family violence requires such a reformulation of the dynamics of wife battering in order to resolve discrepancies between previously held assumptions and recent findings."849 The same could be said today. There is a great deal of research on BWS and its impact on women around the world. However, it is now time to extend that knowledge to those women who need a further definition and a legal defence. As examined above, the defences of self-defence,

choice of birthplace, and likewise had no choice of living environment during his formative youth. Although the prisoner of war or kidnap victim had no choice, the cultist initially chooses to enter the religious organization." 845 Delgado, "Ascription", supra note 52 at 8. This example is much like the Patty Hearst case. M6Ibid. M1lbid. u%lbid. 849 Suzanne K. Steinmetz, "Wife Beating: A Critique and Reformulation of Existing Theory" (1978) 6 Bulletin of the American Academy of Psychiatry and the Law 322 at 322 [Steinmetz]. 153 duress, necessity, NCRMD, and automatism are not available in many situations and diminished responsibility is not an option within Canadian law.

It has been noted that BWS "is not itself analogous to an indoctrination defense. Indoctrination may, but need not, involve fear of death or serious bodily harm. Indoctrination is not a self-defense claim. Rather, the essence of the defense is that the defendant's will is no longer hers."851 The question remains, how will this defence be conceptualized if it were to be recognized? Like duress, brainwashing is difficult to establish given that "despite the existence of mens rea the defendant is morally blameless because the guilty mind with which the defendant acted was not his own. Unlike duress, however, the threat does not have to be imminent. Rather, the defendant must establish that the crime was committed while under the coercive influence."852 Thus, some of the limitations of immediacy and presence inherent in the defence of duress would be avoided with brainwashing.

Warburton notes that the standard should be the same as in the case of duress. She notes that a

'"reasonable person' standard would be inappropriate because no two defendants will respond in the same way to psychological manipulation."853 By way of example, Warburton explains that "persons with low self-esteem are more susceptible than others to coercion, therefore the degree of low self- esteem may alter the time and extent to which they are affected by coercion."854 Warburton rationalizes that our system accepts that a person's choice can be reduced to no choice at all in duress; thus, a framework for brainwashing could be built on the same foundation.855 Most pertinent to my own research, Warburton looks at other analogous defences that use the same sort of coercion from a

Schneider, supra note 271 at 117. 1 Nolan, supra note 320 at 454. 2 Warburton, supra note 58 at 84.

154 third party. In particular she examines duress and BWS (marital coercion).856 Warburton speculates

that the future of a brainwashing defence might be through duress and the concept of BWS.857

Warburton notes that BWS and brainwashing "provides several lessons because both defenses

involve a person coerced to act in a manner in which he or she presumably would not act if not under

the influence of another."858 She recognizes that there are other similarities between the defences:

"First, expert testimony is necessary to dispel layperson views and to explain novel concepts. Second,

lay witness testimony is useful to bolster the expert's assertion that the actor exhibited indicia of

coercion. Third, the defense is most effective when used for mitigation purposes." 59 Since there are

these overlapping issues in both BWS and brainwashing, Warburton concludes that "[d]uress in

conjunction with the BWS defence establishes the foundation for legitimizing the brainwashing

defence. Duress is analytically and functionally similar to brainwashing, but has some important

differences. It is time for the legal community to acknowledge an existing class of defendants and

accept the defense."860 Yet, fully conceptualizing the defence is problematic.

Delgado argues that a "person under direct threats of death will rarely cling to even deeply held beliefs. Rarer still is the individual who can resist protracted, unremitting, coercive thought reform techniques."861 Even those trained to resist these tactics cannot resist the power of brainwashing,862 so it seems extraordinary that an individual who depends on her financial and emotional support and security from her captor should be expected to flee. In the very narrow selection of the coercively persuaded victims of the sexual sadist, that ability to leave the relationship and the related violence

856 Ibid, at 82. 857 Ibid, at 75. 858 Ibid, at 87. 859 Ibid, ""ibid. 861 Delgado, "Ascription", supra note 52 at 8. 862 Ibid, at 3-4 n. 16. 155 may be almost impossible. As Delgado notes, their ability to reject the orders of their abuser is the first thing that is destroyed by the sadist. They may be left with no tools with which to refuse.

In light of the fact that the brainwashed offender is left with no tools with which to refuse commands from the captor, the important element to give coherence to the claim may be the concept of the superimposed intent. As Delgado has said "a brainwashed defendant intends the consequences of his actions and believes his actions are justified. Therefore, the requisite mens rea and actus reus are present. A brainwashed defendant, however, is not wholly responsible because the intent involved was superimposed."8 Warburton states that the defendant is not fully culpable because he "acted with the intent of another. The superimposed intent was a result of intentional coercive influences that overcame his free will."864 However, it is possible that brainwashing in a very specific situation, such as in relation to the victim of the sexual sadist, could be a full exculpatory defence using the concept of superimposed intent that in this situation really did overcome the rational free will of this type of abused individual.865 The defence, therefore, could run the gamut from mitigation of an offence in sentencing to a full defence, depending on the specific facts of the case.

i. Superimposed Intent

In light of the significant difficulty in fitting brainwashing within traditional defence definitions, and the difficulty in conceptualizing it as an entirely new affirmative defence, there may be good reasons to focus on brainwashing as a unique mens rea claim in which superimposed intent negates mens rea. Our developing knowledge of superimposed intent and hypnotism lends support for this conceptualization. Given that brainwashing does not fit within traditional defence definitions and given the knowledge of superimposed intent and hypnotism, should brainwashing be developed as an affirmative defence or as a unique form of mens rea in which superimposed intent negates mens rea.

863 Ibid, at 88. SMIbid. *65Ibid. 156 For this approach Delgado lists 6 criteria to determine if, in fact, there has been a transfer of mens rea

to distinguish those cases which require a criminal defence from those who have "given in to

temptation, learned to commit crimes, or voluntarily adopted the behavior patterns of a criminal

subculture."866

1. The mental state of the accused is the product of "unusual or abnormal influences" including drugs, hypnosis, prolonged confinement, physiological depletion, and deliberate manipulation of guilt, terror, and anxiety."867 The presence of these factors implies that the mens rea was not that of the victim. 2. The state of mind is markedly different than their "ordinary mode of thinking."869 Was the process very slow (which would suggest a normal process of change) or very rapid to the point of being a "change of identity?"870 Where it is found that the state of mind to the criminal offence is "implanted, inauthentic, and not of his own choosing" the defendant warrants acquittal. 7 3. The mens rea is not self-imposed as could be said in some situations where individuals freely choose to become part of a cultic organization.872 Delgado notes that if this choice was freely made, the choice is blameworthy and this individual is an "appropriate object of punishment."873 4. The criminal offence perpetrated is for the benefit of the oppressor with an apparent lack of benefit for the victim. Delgado notes that this is particularly the case where the "actions induced are dangerous and are ones the individual showed no interest in performing before falling under the control of the captors." 4 5. The victim genuinely rejects these beliefs when outside of the influence and recognizes that these beliefs were "not his own, but were wrongfully implanted or superimposed." 5 6. Delgado also identifies what he calls "symptoms typical of the coercively persuaded personality" including "flattened affect, reduced cognitive flexibility, drastic alteration of values, and extreme dissociation.876

Delgado recognizes that using these guidelines in practice may be difficult, but where many of the elements are characteristic of the accused, there should be exculpation. A compelled coercion defence is compatible with the philosophy of determinism because human behaviour is governed by i66Ibid. 867 Ibid, at 19-20. ™ Ibid, at 20. 869 Ibid. ™Ibid. 871 Ibid. 872 Ibid, at 20-21. 873 Ibid, at 21. mIbid. 875 Ibid, at 21-22. 876 Ibid, at 22. 157 "preexisting conditions" and not simply an individual's will.877 Moore said that "[d]eterminism tells

878 us that human choices and actions are caused and that those causes themselves have causes." From this statement it has been noted that "[d]eterminism is incompatible with moral blame because, if the criminal's acts are produced by forces over which he had no control, society should assign blame for the act to those forces rather than to his agency."879 To explore the victim of compelled coercion from this very different perspective requires one to look at the criminal law in a very different manner.

Delgado notes that the "victim of thought reform typically commits criminal acts fully aware of their wrongfulness. He acts consciously, even enthusiastically, and without overt coercion. Yet, in an important sense, the guilty mind with which he acts is not his own. Rather, his mental state is more appropriately ascribed to the captors who instilled it in him for their purposes."8 ° This concept is intuitively very difficult, but Delgado argues that there is what he calls a "transferred or superimposed mens rea" that is not comprised of the actor's own thoughts. Thus, it is arguable that the brainwashed actor has neither the requisite mens rea nor actus reus. Although the actor appears to be aware of his/her actions, those acts are involuntary and unintended. To transform this theory through a concrete example, Delgado argues that the defence of "hypnosis" allows for the concept of

"transferred mens rea" which recognizes the "marked dependency and helplessness of the subject."882

Delgado refers to some cases which have found that the hypnotist assumed responsibility for the illegal acts, not the individual who performed the crime. Dressier criticizes Delgado's theory of

"superimposed mens red''' which would create a "new legal fiction by treating the actor's mens rea as

877 Henry Campbell Black, ed., Black's Law Dictionary, 7th ed. (St. Paul, Minn.: West Pub. Co., 1999) 5. v. "determinism" [Black's]. 878 Moore, "Causation ", supra note 420 at 1112. 879 Coughlin, supra note 520 at 11 n. 35. 880 Delgado, "Ascription", supra note 52 at 11 [emphasis in original]. 881 Ibid. ™2Ibid, at \3. mIbid. 158 legally non-recognizable. Legal blame would attach solely to the indoctrinator." Yet, Warburton

defends this model arguing that the "intent involved was superimposed . . . [and] he is not wholly

responsible because he acted with the intent of another. The superimposed intent was a result of

intentional coercive influences that overcame his free will."885

There are many who object to brainwashing as a transferred mens rea defence. It is also

noteworthy that some of this criticism comes from those who believe that psychiatry has influenced

the criminal justice system excessively, and additionally from the intuitive thought that "individuals

ought to be held accountable for their acts."886 Rightly, Delgado responds that there are many

situations where the justice system allows individuals to defend their actions with the assistance of

psychiatry.887 Furthermore, the "law has accommodated excusing conditions when paradigmatic cases

were recognizable and moral intuitions demanded exculpation, despite the absence of a fully

developed theory or model capable of explaining the difficult, confused, or borderline cases." This

is the way of the evolution of the criminal law defences in the common law world. Oftentimes the

development is caused by a need to exculpate a specific actor who may not fulfil the "perfect case."

Although it is unlikely that superimposed intent will be wholly recognized, the system has accepted

analogous ideas in the areas of entrapment and false confessions.

I. Entrapment

An area of the law where superimposed intent has been successful is in the law of entrapment. It has been noted that the defence of entrapment has been analyzed in "terms of transferred mens red" and the concept that the "criminal intent originates not with the defendant but with the police

884 Dressier, "Justification", supra note 616 at 503. 885 Warburton, supra note 58 at 88. 886 Delgado, "Ascription", supra note 52 at 23. 887 Ibid, at 24. Delgado notes, at 24, tat "[cjertainly, psychiatric knowledge of coercive persuasion need not be complete for it to be of use to courts. Such a requirement is not realistic; moreover, it was not observed in connection with the development of other mental defenses, which were recognized long before a universally accepted scientific model was available." 888 Delgado, "Ascription", supra note 52 at 24. 159 authorities." The Supreme Court in the Canadian case R. v. Mack found that types of entrapment

are legitimate law enforcement activities because:

the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law . . . There is a crucial distinction, one which is not easy to draw, however, between the police or their agents — acting on reasonable suspicion or in the course of a bona fide inquiry — providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution.890

Although some presume Mack only to be applicable to restraint on policing, dicta points to the

possibility of "creating a crime." 891 This concept has had a long history beginning with one of the

earliest American cases: Sorrells v. United States. The case involved an undercover police officer

who induced the defendant to sell him liquor using stories of wartime service.893 The Court found

although there was a range of activity that the police had at their disposal for investigative purposes, a

"different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged

offense and induce its commission in order that they may prosecute."894 The Court concluded that the act was not the defendant's, but rather a "creature" of police officer. 5 Fletcher notes the similarities to duress saying that in "one case the actor is seduced by the wiles of a duplicitous police officer; in the other he is coerced by the threats of an overbearing will."896 Similarly, in the 1973 case of United

States v. Russell the Court found that the "function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.

™Ibid. at 15. 890 R. v. Mack, [1988] 2 S.C.R. 903 at para. 17-18, S.C.J. No. 91 [Mack]. See also Simon Bronitt, "The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe" (2004) 33 Common Law World Review 35 [Bronitt]; and C. Perelli-Minetti Robton, "Causation and Intention in the Entrapment Defence" (1980) 28 U.C.L.A. L. Rev. 859 [Robton]. 891 Ibid, at para. 17-18. 892 Sorrells v. United States, 287 U.S. 435 (1932) [Sorrells]. False confession cases do date back to 1783, see Richard A. Leo, et al, "Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century" (2006) Wis. L. Rev. 2006 at 488 [Leo]. 893 Ibid, at 439. 894 Ibid, at 442. s95Ibid. at 441. 896 Fletcher, Rethinking, supra note 569 at 542. 160 Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police

897

officer." The Court goes on to say that it is "only when the Government's deception actually

implants the criminal design in the mind of the defendant that the defense of entrapment comes into

play."898 There have been many critics of entrapment both in the United States and Canada. Hughes

argues that entrapment "is illegitimate proactive law enforcement because it involves law enforcement

wrongly interfering with the volitional capacities of those it targets by manipulating their intentions

and desires so that they are more likely to commit crimes."899 However, the leading Canadian case of

Mack disregards superimposed intent and instead decides the case on a procedural assessment.

II. Police Interrogations

Imposed intent has also been used in various police interrogation cases. For example, in the

American case Reck v. Pate the Court examined the situation of a nineteen-year-old "mentally

retarded" man who was held in police custody for four days.900 The young man was subjected to

seven-hour interrogations, public humiliation, lack of food, and badgered until he vomited blood.901

The Court notes that "long-continued interrogation under conditions of stress can give the interrogator

effective command over the prisoner. The judge also cited the interrogation techniques including

"(1) disorientation and disillusion; (2) synthetic conflict and tension; (3) crisis and conversion; (4)

rationalization and indoctrination; (5) apologetics and exploitation."903 The confessions of murder

signed by Reck were deemed inadmissible. The famous case of Miranda v. Arizona goes even one

897 United States v. Russell (1973) 411 U.S. 428 at 434-35 (1973) [Russell]. B9SIbid at 436. 899 Paul M. Hughes, "Temptation and Culpability in the Law of Duress and Entrapment" (2006) 51 Crim. L.Q. 342 at 355 [Hughes]. Critics would say that brainwashing is something much more fundamental than "counselling" another to perform an act. Entrapment is simply an example on the scale of coercion, and arguably on the least coercive end of the continuum. 900 Reck v. Pate, 367 U.S. 433 at 436 (1961) [Reck]. 901 Reck, supra note 918 at 436-37. 902 Ibid, at 445. 903 Ibid. 161 step further in judging the implanted intent in a victim of severe police interrogation methods. The

Court specifically analyzes the use of these techniques and the fact that "custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals" and cites an unreported case, stating that the "most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed. When this was discovered, the prosecutor was reported as saying: 'Call it what you want — brain-washing, hypnosis, fright. They made him give an untrue confession.'"905 Richard Leo states that as of 2006 in the United States there are "over 170 DNA exonerations of convictions, approximately 20 to 25 percent of which resulted in whole or in part from police-induced false confessions."

Most applicable to the discussion at hand is the 1974 case of Reilly v. State of Connecticut.

After coming home one night to discover the body of his mother, the 18-year-old Reilly was interrogated by police, with the use of a polygraph, and eventually confessed to her murder. Sherrin summarizes his confessions saying that documentation shows Reilly:

progressively agreeing with more and more of the police theory of the crime until he finally offers a full confession. For instance, part way through the interrogation he accepts the police theory as to motive: that his mother had constantly badgered him throughout his life and that he was angered when she started badgering him on the night of the murder. Reilly was eventually exonerated when previously undisclosed evidence established that he had no opportunity to commit the crime. 09

904 Miranda v. Arizona, 384 U.S. 436 (1966) [Miranda]. 905 See N.Y. Times, Jan. 28, 1965, p. 1, col. 5 cited in Miranda, supra note 904 at 456 n. 24. 906 Leo, supra note 910 at 484. 907 Reilly v. State of Connecticut, 355 A.2d 324 (1976) [Reilly] (subsequently not followed on other grounds.) 908 Saul M. Kassin, "The Psychology of Confession Evidence" (1997) 52 American Psychologist 221 at 226 [Kassin]. 909 Christopher Sherrin, "False Confessions and Admissions in Canadian Law" (2004), 30 Queen's L.J. 615 at 615 n. 61 [Sherrin]. Sherrin cites the work of Drizin and Leo in which they list 125 cases of false confessions from 1971 to 2003. 162 It seems from accounts of this case that Reilly actually believed that he had killed his mother. He was told that there was an "infallible lie-detector test" that he had failed.911 Delgado notes that the

"concern" in this case was not just that the accused had falsely confessed, but most shocking was the

"suspect's subjective belief that he was, in fact, guilty."912 The police seem to have convinced the accused that because he killed mother, but just could not remember doing so.913 Delgado notes that the confession was the "product of the young man's low self-esteem and suggestibility resulting from induced guilt and exhaustion. The psychiatrist compared the methods used in procuring this confession to prisoner of war thought reform."914 The parallels between this implanted belief and brainwashing are readily apparent. Kassin notes that "[tjranscripts of the interrogation sessions revealed that Reilly underwent a remarkable transformation from denial to confusion, self-doubt, conversion ('Well, it really looks like I did it'), and the signing of a full written confession."915 The

Connecticut court eventually re-opened the case, ordered a new hearing and eventually dropped all

910 See Donald Connery, Guilty Until Proven Innocent (New York: G.P. Putnam's Sons, 1977) [Connery]. 911 Kassin, supra note 908 at 226. 912 Delgado, "Ascription", supra note 52 at 17. 9,3 Ibid. ™Ibid 915 Kassin, supra note 908 at 226. Kassin also notes several other cases in which the accused was convinced to believe that he/she had committed the crime. In one case an accused named Thomas Sawyer confessed to rape and murder after a 16-hour interrogation in which the police asked Sawyer to imagine how he might have killed the girl in an alcoholic blackout. Kassin notes that "[a]t first Sawyer vehemently denied the charge. Then after several hours, he became confused about his memory. Finally, he capitulated: 'I guess all the evidence is in, I guess I must have done it.'" See Kassin, supra note 926 at 226, that in another case 19-year-old Bradley Page confessed to the murder of his girlfriend after asking police if he might have killed her and had no memory. The police said that this often happened, and Page was sentenced to nine years in prison. Kassin also discusses, at 226, the case of Paul Ingram who was accused of participating in satanic rituals including the rape of his daughter and the murder of babies. Kassin notes, at 226-27, that "[ajfter 23 interrogations, which extended for five months, Ingram was detained, hypnotized, provided with graphic crime details, told by a police psychologist that sex offenders typically repress their offenses, and urged by the minister of his church to confess." Ingram received 20 years in prison for crimes there was no evidence even occurred. Kassin notes, at 227, that Richard Ofshe testified at the re-trial that Ingram was "brainwashed" into thinking that he had committed these crimes through "recalled" memories. 163 charges. Kassin notes that all of these examples shared two factors: "(a) a suspect who is

'vulnerable' - that is, one whose memory is malleable by virtue of his or her youth, interpersonal

trust, naivete, suggestibility, lack of intelligence, stress, fatigue, alcohol or drug use and (b) the

presentation of false evidence such as a rigged polygraph or forensic tests (e.g., bloodstains, semen,

hair, fingerprints.)"917

A typology of confessions has been created with one called "coerced-internalized" false

confessions.918 Kassin describes this type of confession as the "most interesting, psychologically

speaking." He describes that these are confessions in which:

an innocent person - anxious, tired, confused, and subjected to highly suggestive methods of interrogation - actually comes to believe that he or she committed the crime. This type of false confession is particularly frightening because the suspect's memory of his or her own actions may be altered, rendering the original contents potentially irretrievable.920

The long history of false confessions in Canadian law was noted in the recent Supreme Court of

Canada case of R. v. Oickle921 In Oickle the Court acknowledged that a "large body of literature has

developed documenting hundreds of cases where confessions have been proven false by DNA

Delgado, "Ascription", supra note 52 at 17. It was playwright Arthur Miller who took up the cause of Reilly and convinced the court to re-open the case. See John Corry, "Arthur Miller and Others Contend Clock Absolves Youth Convicted of Matricide" New York Times (16 December 1975) at 81 [Corry "Clock"], John Corry, "Arthur Miller Turns Detective in Murder: Playwright Digs Into the Past in an Effort to Clear Connecticut Youth Convicted of Killing His Mother in 1973" New York Times (15 December 1975) at 65 [Corry "Detective"]. 917 Kassin, supra note 908 at 227. Kassin notes search on University students who were accused of sabotaging a lab experiments. The students were told to sign a handwritten "confession" that they had touched the wrong key on the computer (although none had done so.) Kassin notes, at 227 that "69% of all participants signed the confession, 28% internalized guilt, and 9% confabulated details to support their beliefs." 918 Ibid, at 226. 919 Ibid. 920 Ibid. See Kassin, supra note 908 at 226, that although a full discussion of the research surrounding false confessions is beyond the scope of this thesis, G.H. Gudjonsson, The Psychology of Interrogations, Confessions, and Testimony, (West Sussex: England: Wiley, 1992) has developed several tests to examine the ability to "shift" memory, and has identified factors that would make an individual more susceptible to falsely confessing. 921 [2000] 2 S.C.R. 3, S.C.J. No. 38 [Oickle]. See also Kent Roach, "Unreliable Evidence and Wrongful Convictions: The Case for Excluding Tainted Identification Evidence and Jailhouse and Coerced Confessions" (2006) 52 Crim. L.Q. 210 [Roach]. 164 evidence, subsequent confessions by the true perpetrator, and other such independent sources of evidence . . . Given the important role of false confessions in convicting the innocent, the confessions rule must understand why false confessions occur."922

Although it has been established that there are several types of false confessions, Sherrin has recognized those which he terms "internalized" false confessions, where the individual actually believes his false confession. He describes this type of confession as one where the:

suspect comes to believe in his or her own guilt, despite having no memory of committing the crime. For this to happen, it is believed that the suspect must lack confidence in his or her memory of an event or time period. An interrogator can take advantage of this weakness, sometimes unwittingly, through highly suggestive questioning and proffered explanations for the suspect's alleged lack of memory. The suspect is unable to detect errors and deflect the suggestions; and begins to adopt them until he or she finally comes to accept guilt. The suspect usually retains an element of doubt, believing only that he or she may have committed the crime, but that is enough to lead to the acknowledgement of responsibility and to a confession. 4

Sherrin lists several examples of internalized false confessions, noting that a "man in Norway came to believe that he had killed his cousin; testing of forensic evidence from the crime scene excluded him as a potential source, and a court eventually ruled that he was probably innocent. A man in Iceland accepted that he must have stolen a purse from his drinking companion; the purse was later found behind a couch."925 He also cites the Canadian example of Romeo Phillion who was arrested on another charge and instead "confessed to the 1967 murder of Ottawa firefighter Leopold Roy." The

Court of Appeal quashed the conviction and ordered a new trial for Phillion in March 2009 after finding that his confession could be proved unreliable. Sherrin identifies several factors which can make one more susceptible to false confessions, including sleep deprivation, coping strategies, and

Oickle, supra note 921 at para. 35-36. 923 Sherrin, supra note 927 at 620. 924 Ibid, at 621. 925 Ibid, at 621-22. 926 R. v. Phillion, [2009] O.J. No. 849, 2009 ONCA 202 [Phillion]. See also Sherrin, supra note 927 at 602. 165 self-esteem.927 The Court has also mentioned that interrogation techniques could be akin to brainwashing during an interrogation and polygraph test. In the Canadian case of R. v. Terry the

Court analyzed the voluntariness of a confession, finding that "I am satisfied that the line of questioning and the technique used by the polygraph operator overstepped that line that I say is the limit in which reasonable questioning should go. I am hesitant to say that it went as far as brainwashing, but it was extremely skilled and was bordering on that limit, which, in my opinion, takes it beyond the appropriate limit for questioning."928 Nolan argues that even if brainwashing finds its way into our law there is still a question about the form it should take.929

ii. Conclusion

Generally, there are three broad categories when it comes to the legal literature on brainwashing.930 The first states that there should not be a defence of brainwashing in any fashion, like that argued by Dressier. The second is a more moderate position like that of Delgado, who argues that, if not an affirmative defence, brainwashing should simply be a factor of mitigation upon sentencing.931 Thirdly, there is the position that there should be an affirmative defence of coercive persuasion, including brainwashing, that would be a full defence which is akin to the defences of necessity, duress, self-defence, provocation, or automatism. Nolan advocates for a model of the recent

U.S. cases which find it cruel and unusual punishment to execute the "mentally retarded."932 Nolan argues that:

[c]ommon experience and scientific research support the contention that people are subject to powerful influences, and some more than others. The proponents of this defense argue passionately that victims of indoctrination are simply robbed of their ability to fully exercise

927 See Sherrin, supra note 927 at 633. A full discussion of these factors and the susceptibilities of individuals is beyond the scope of this thesis. 928 (1986) C.L.B. 2343 (Man. Prov. Ct.) at para. 23 [Terry]. 929 Nolan, supra note 320 at 456. 930 lb id. 931 Ibid, at 455. 932 Ibid, at 460. Nolan examines the U.S. cases of Atkins v. Virginia, 122 S.Ct. 2242 (2002) [Atkins] and Wiggins v. Smith, Warden, et al, 539 U.S. 510 (2002) [Wiggins]. 166 their free will because of environmental factors over which they have no control . . . [Lee Boyd Malvo's lawyers] argue that at least some people, particularly the very young, can be controlled, bullied, indeed 'brainwashed' to the point that they are no longer able to recognize the inherent wrongfulness of certain conduct.

Nolan argues that the same reasons that are applied to the mentally impaired defendant apply to the

coercively persuaded defendant in that it is "possible to deprive a person of her ability to reason, control impulses, and understand and process information."934 Nolan looks at the disturbing American case of Tison v. Arizona where the Court found that the eighth amendment does not prohibit the death penalty in those actors whose mental state was one of "reckless indifference."935 Psychological reports on the two young men who were under control of their father showed severe impairment.936

The dissenting opinion offered by Justice Brennan quoted the psychologist's report, which noted that:

[t]hese most unfortunate youngsters were born into an extremely pathological family and were exposed to one of the premier sociopaths of recent Arizona history. In my opinion this very fact had a severe influence upon the personality structure of these youngsters ... I do believe that their father, Gary Tison, exerted a strong, consistent, destructive but subtle pressure upon these youngsters and I believe that these young men got committed to an act which was essentially 'over their heads.' Once committed, it was too late and there does not appear to be any true defense based on brainwashing, mental deficiency, mental illness or irresistible urge. There was a family obsession, the boys were 'trained' to think of their father as an innocent person being victimized in the state prison but both youngsters have made perfectly clear that they were functioning of their own volition. At a deeper psychological level it may have been less of their own volition than as a result of Mr. Tison's 'conditioning' and the rather amoral attitudes within the family home.937

In a capital case with evidence that they were not acting out of their own volition, use of mitigation of sentence would serve the very purpose argued in this thesis. Nolan has noted that given "the finality of a death sentence, the intuitive sympathy for those who have allegedly been indoctrinated (most notably Patty Hearst)," and the power of the state, "indoctrination should be considered at least as

933 Nolan, supra note 320 at 460. 934 Ibid. 935 Tison v. Arizona, 107 S.Ct. 1676 (1986) [Tison]. 936 Ibid, at 1693 937 Ibid. 167 mitigation evidence in the penalty phase of a capital case." However, Nolan advocates only for the

use of indoctrination evidence in capital cases, ruling out the possibility for the defence in Canada.939

Nolan does put a caveat on this conclusion, however, noting that "indoctrination as a mitigating factor

would likely be a two-edged sword; the same characteristics that ostensibly allowed a person to

become the victim of nefarious indoctrination might also make her a potentially dangerous individual

in the future because of her particular vulnerability to manipulative forces."940 However, Nolan

concludes by saying that "[g]iven the lengths to which our criminal justice system will go to prevent

the execution of all but the most morally reprehensible criminals, there must be a presumption in

favour of any and all available mitigating evidence that has any measure of reputable scientific

support."941

Through this discussion of these varied positions, and regardless of which argument appears to

be most persuasive, at least one critical point emerges: While brainwashing has not been fully

accepted as an affirmative defence, nonetheless it persists as an important element in examining issues

related to brainwashing. Entrapment and interrogation methods have been identified as a study worth

pursuing, and so too is the concept of brainwashing. Interestingly, Coughlin notes that Delgado's

theory of superimposed intent is not wholly new, but rather is akin to the "marital coercion

doctrine."942 Thus, one can follow from the discussion of superimposed intent, to an examination of

women, and battered women, in particular. Coughlin notes that the doctrine "which endured for

centuries in our cases and statutes, was founded on the concept that a wife could not be held

responsible for her criminal misconduct because the misconduct was the product, not of her own

939 Ibid, at 461. 939 Ibid, at 463. Nolan argues, at 463-64, that this bright-line would be workable within the existing system, and it would be a "compromise between intuitive moral judgment and psychological uncertainty." 940 Ibid, at 464 n. 154. Nolan notes, at 464, that although this "proposal would not save Patty Hearst from incarceration, but it might save 18-year-old Lee Boyd Malvo from the electric chair." 941 Ibid, at 464. 942 Coughlin, supra note 520 at 23 n. 112. 168 choice, but of her husband's choice, and that the husband, therefore, was criminally liable for the

misconduct."943 Although this patriarchal legal structure is certainly not the result sought for a

forward thinking defence for coercively persuaded women, there are lessons to be learned from this

very old concept. Our law did recognize situations where an individual was not blameworthy for her

actions. Although a complete discussion of marital coercion is beyond the scope of this dissertation,

there are elements of this defence which can be revived to make way for a brainwashing defence.

BWS and its related elements have been accepted in our law. Science and law have come together to

recognize human frailties in this specific context. Given this established tradition, it is important to

explore the defence of brainwashing in the context of Battered Woman Syndrome.

943 Ibid. See Coughlin, supra note 520 at 23 n. 112, that in a situation of superimposed intent, the brainwashing defence would be open to all defendants, not just women. 169 Part III -Brainwashing and Battered Woman Syndrome (BWS)

a. The Battered Woman

The reason that the BWS model is an important element of this analysis is because it provides a

scenario which is most analogous to a situation of an individual in a coercive environment who

commits an anti-social act. Traditionally, in BWS the violence is directed toward the aggressor, while

in brainwashing (for the purpose of this dissertation) it will target third parties. However, before

entering into any discussion of BWS in the Canadian law, it is important to note that BWS is not a

defence. BWS has been used in conjunction with already established defences like self-defence and

duress but it is not itself an affirmative defence. Rather, in the context of self-defence, the

understanding of BWS has led to a re-conceptualization of how courts assess the reasonable fear and

reasonable response of a spouse claiming self-defence.

Clearly, that the thread that runs through the research on battered women is that "[a]ssaults of

wives by their husbands have long been considered a family, rather than a legal, matter." 5 It has

been noted that wife abuse in North America has existed "since the founding of the Colonies. English

Common Law and Christianity, foundations of this nation's culture, accepted wife abuse as the

husband's prerogative. Marital violence was his privilege. In order to find a time in history when

wife beating did not enjoy having custom and law on their side, it is necessary to go back ... to pre-

biblical times."946 Blackstone wrote in his commentaries that "[f]or as [the husband] is to answer for

Battered Woman syndrome does not specifically appear in the DSM IV. 945 Angela Browne, When Battered Women Kill (New York: The Free Press, 1987) at 164 [Browne]. 946 Steven M. Morgan, Conjugal Terrorism - A Psychological and Community Treatment Model of Wife Abuse (Palo Alto, CA: R and E Research, 1983) at 4 [Morgan] citing T. Davidson, "Wifebeating: A Recurring Phenomenon Throughout History" in M. Roy, ed., Battered Women: A Psychological Study in Domestic Violence (New York: Van Norstand Reinhold, 1977) 233 [Davidson]. Morgan notes, at 6, that in England "beatings were so common in some districts, they were known by the manner of beating administered there. Liverpool was known as the 'kicking district' because the husbands kicked their wives with hobnailed boots." 170 her misbehaviour, the law thought it reasonable to intrust [sic] him with this power of chastisement, in the same moderation that a man is allowed to correct his apprentices or children."

i. Lenore Walker

In her seminal book, The Battered Woman Syndrome, 8 American psychologist Lenore Walker, who coined the term "battered woman" in 1984, looks at the historical basis of this phenomenon. She notes that spousal abuse can be "traced back to the times when history was first recorded."

Although the phenomenon may have a long history, many agree that "men continue to use violence as a method of getting what they want because it is successful and no one stops them."950 Walker was the first to develop the fundamental pattern of spousal abuse which has been adopted by many working in the area of spousal abuse. She describes a cycle which has three phases:

(1) tension building, (2) the acute battering incident, and (3) loving-contrition. During the first phase, there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other mean intentional behaviors, and/or physical abuse . . . The woman attempts to placate the batterer, doing what she thinks might please him, calm him down, or at least, what will not further aggravate him . . . Often she succeeds for a little while which reinforces her unrealistic belief that she can control this man. It also becomes part of the unpredictable noncontingency response/outcome pattern which creates the learned helplessness. The tension continues to escalate and eventually she is unable to continue controlling his angry response pattern . . . The second phase, the acute battering incident, becomes inevitable without intervention. Sometimes, she precipitates the inevitable explosion so as to control where and when it occurs, allowing her to take better precautions to minimize her injuries and pain . . . "Phase two is characterized by the uncontrollable discharge of the tensions that have built up during phase one." . . . The acute battering phase is concluded when the batterer stops, usually bringing with its cessation a sharp physiological reduction in tension ... In phase three which follows, the batterer may apologize profusely, try to assist his victim, show kindness and remorse, and shower her with gifts and/or promises. The batterer himself may believe at this point that he will never allow himself to be violent again . . .This third phase

947 Blackstone, Commentaries on the Laws of England(Oxford: Clarendon, 1862) at 444 [Blackstone] cited in Browne, supra note 945 at 165. See Shaffer, "Coerced", supra note 732 at 275 n. 7 who notes that "[b]y saying that wife abuse is largely a gendered phenomenon, I do not mean to suggest that partner abuse does not occur within gay and lesbian relationships, nor that female violence against male partners does not exist." This is not to discount the research showing women's violence against men, and the violence between those within a same sex relationship. For the purposes of this thesis, violence of men perpetrated on women will be the focus. 948 (New York: Springer, 1984) [Walker, Syndrome]. 949 Ibid, at 142. 950 lb id. 171 provides the positive reinforcement for remaining in the relationship, for the woman. Many of the acts that he did when she fell in love with him during the courtship period occur again here. Our research results demonstrated that phase three could also be characterized by an absence of tension or violence, and no observable loving-contrition behavior, and still be reinforcing for the woman. Sometimes the perception of tension and danger remains very high and does not return to the baseline or loving-contrition level. This is a sign that the risk of a lethal incident is very high. 51

Although this model has been accepted by the legal and psychological disciplines, there has been criticism. Schuller and Rzepa note that the methodology of Walker's studies is flawed as there may have been "leading questions" used in the interviews of battered women.952 They note that it is possible that the "questions used by the interviewers conveyed the hypotheses to the women and thus provided them with responses that they might otherwise not have given . . . [Additionally] they may have interpreted more consistency with the hypotheses than the responses in fact warranted."953 Not only the methodology but the term itself has been subject to scrutiny. It has been noted that the definition of this term is unclear in both the legal and psychological literature.954 Yet, the impact of this syndrome, whether or not methodologically or definitionally precise, is hard to ignore. Schuller and Jenkins explain that BWS has been admitted with some frequency not only in the U.S., but in

951 Walker, Syndrome, supra note 948 at 126-27 (citations excluded, quotation marks in original). 952 Regina Schuller & Sara Rzepa, "The Scientific Status of Research on Domestic Violence Against Women" in David L. Faigman et al. eds., Modern Scientific Evidence: The Law and Science of Expert Testimony (St. Paul MN: West, 2002) 32 at 44 [Schuller & Rzepa]. Schuller & Rzepa note that women are typically interviewed when they seek "assistance from various social agencies (e.g., shelters, police, hospitals), thus limiting the generalizability of the findings. The practicality of such a criticism must be considered, however, within the context of battered women research. Do the responses of women who have failed to seek assistance differ from those who have not?" Schuller & Rzepa also note, at 68, that many of the interview studies attempt to obtain women's accounts of the relationship and its impact upon them throughout the course of the relationship, the potential biases inherent in these data limit both the reliability and validity of the findings. For example, as most of the studies that report the percentage of women who return to an abusive relationship used brief follow-up periods, the finds are likely an underestimation of the return rate. Similarly, battered women's tendencies towards denial and minimization of the violence would suggest that women's reports may underestimate their actual experiences of the violence. 953 Ibid, at 44. 954 Ibid, at 56. 172 courtrooms across Canada, Great Britain, Australia, and New Zealand." What is clear is that despite this inconsistency and definitional imprecision, BWS has been accepted by the Canadian courts and is currently being used as a legal concept within the Canadian justice system.

It is important to note that the psychological violence experienced by women is often more debilitating than the physical violence. Mega et al. note that in one study "psychological abuse was rated as worse than all but the most extreme levels of physical violence."956 Walker has defined a battered woman as:

a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice [and if] she remains in the situation, she is defined as a battered woman.957

Brodsky defines BWS as "a descriptive term which attempts to explain the unique combination of psychological stresses that result from the deliberate and repeated infliction of mental and physical

958 abuse." He also defines "syndrome" as "a descriptive expression for an identifiable group of symptoms that occur together, the sum of which characterize the behavior and state of mind of the battered woman." 59 Today, this syndrome is also termed "intimate partner violence" which includes a "combination of physical, sexual, and psychological abuse, usually directed against women."960

Regina A. Schuller & Gwen Jenkins, "Expert Evidence Pertaining to Battered Women: Limitations and Reconceptualizations" in Mark Costanzo, Daniel Krauss & Kathy Pezdek, eds., Expert Psychological Testimony for the Courts (Mahwah: NJ, Lawrence Erlbaum, 2007) 203 at 203 [Schuller & Jenkins] (references omitted). Schuller and Jenkins also note, at 208, that BWS is "not specifically listed in the Diagnostic and statistical Manual of Mental Disorders." 956 Lesly Tamarin Mega et al. "Brainwashing and Battering Fatigue: Psychological Abuse in Domestic Violence" (2000) 61 North Carolina Medical Journal 260 at 260 [Mega et al.]. 957 Lenore E. Walker, The Battered Woman, (New York: Harper & Row, 1979) at xv [Walker, Battered]. 958 Daniel J. Brodsky, "Educating Juries: The Battered Woman Defence in Canada" (1987) 25 Alberta Law Review 461 at 462 [Brodsky]. 959 Ibid, at 462. 960 Mega et al, supra note 956 at 260. Intimate violence is also perpetrated against men, but as Mega et al, supra note 956 at 260, notes "[w]omen are victims of intimate partner homicide about eight times more often than men, and women are assaulted by their partners seven times more often than men are. However, the number of male victims may be underreported, influenced by male stereotyping: men may be less 173 Most recently, a particular type of battering (the focus of this thesis) has been defined as "intimate

terrorism"961 which theorist Lewis Okun adopted from brainwashing literature.962 Okun compared

woman battering to torture and used the term "conjugal terrorism" to depict the "threats and the larger

pattern of control by which batterers construct the victims' decision-making powers."963 This lack of

control and blind acceptance are characteristics of this debilitating condition which can be described

as terror. Johnson uses the term "intimate terrorism"964 to denote a situation where the batterer is

"violent and controlling" while the partner is not.965 Stark has noted that "woman battering is

qualitatively different than other forms of abuse or assault in that it extends over time and through

social space and exacts a significant toll that cannot be explained by injury or violence." Many

battered women today prefer the term "battered woman survivor" and there is a growing literature on

willing to reveal themselves as victims, and authorities may be less sympathetic to their complaints." However, note that, Steinmetz, supra note 849 at 323 noted that since the 1970's there has been evidence that "men were as likely as women to be the victim." She notes, at 323, that there are "studies suggesting that wife-to-husband violence is at least as common as - perhaps more common than - husband-to-wife violence." For the purposes of this thesis, I will be focusing on intimate violence involving a woman as victim, and male partner as batterer. 961 Michael P. Johnson, "Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence" (2006) 12 Violence Against Women 1003 at 1003 [Johnson, "Conflict"]. See also Evan Stark, "Commentary on Johnson's 'Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence'" (2006) 12 Violence Against Women 1019 at 1019 [Stark, "Commentary"]. 962 Okun, supra note 268. 963 Stark, "Commentary", supra note 961 at 1021. Stark explains, at 1021, that coercive control (CC) is involved in "exploitation and deprivation as well as its links to 'psychological abuse.' If most battered women experience CC rather than domestic violence, this would explain why 'abuse' continues even when couples separate, why 'minor' violence can have significant consequences, why battered women are entrapped and develop a unique problem profile." 964 Also see Michael P. Johnson, "Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women" (1995) 57 Journal of Marriage and the Family 283 at 287 [Johnson, "Patriarchal"] who also uses the term "patriarchal terrorism" as a term in which "men systematically terrorize their wives." Johnson discusses, at 287, that patriarchal terrorism is a situation where the "beatings occur on average more than one a week, and escalate in seriousness over time. The violence is almost exclusively initiated by the husband, most wives never attempt to fight back, and, among those who do, about one-third quickly desist, leaving only a small minority of cases in which the women respond even with self-defensive violence." 965 Johnson, "Conflict", supra note 961 at 1003. 966 Stark, "Commentary", supra note 961 at 1020. 174 the "active efforts" of these survivors. However, the fact remains that BWS, "although it may be

repugnant to some, it is now specifically cited in much statutory and case law."968 It has been noted

that counsel may have little choice but to use the term if they wish to have the jury hear experts on the

intricacies of domestic violence. For that reason, the term BWS will be used throughout this thesis,

but will draw on the terminology of coercive control and conjugal terror.

ii. Learned Helplessness

A researcher named Martin Seligman coined the phrase "learned helplessness" in his studies on

dogs, much like the Pavlovian experiments. He applied electric shocks to animals in an experiment on

learning theory and realized that even when the dogs were allowed to escape the shocks, they did not

attempt to escape the boxes with open doors. Instead, "the dogs made a cursory attempt to get away,

by running round inside the box, and then instantly gave up, resigned to quiet whining while suffering

the series of shocks."970 What the dogs had learned from a previous situation of inescapable pain was

transferred to the new situation even though there was means of escape.

Subsequently, learned helplessness has come to represent the "psychological condition which is

based upon the finding that when an individual is subjected to repeated experiences over which she

perceives she has no control or escape what may result is impairment in motivation and control of

future outcomes even after the uncontrollable situation disappears."971 Brodsky notes that this theory

was tested on dogs who eventually laid helplessly taking shocks that were avoidable. He noted that

Elizabeth M. Schneider, "Feminism and the False Dichotomy of Victimization and Agency" (1993) 38 N.Y.L. Sch. L. Rev. 387 at 390 [Schneider, "Feminism"]. Schneider has noted, at 390, that "[rjesource and advocacy materials on battered women now emphasize the human strengths and capacities of battered women who struggle to survive, protect themselves and their children, and keep their families functioning." 968 Sarah M. Buel, "Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct" (2003) 26 Harv. Women's L.J. 217 at 301 [Buel\. 969 Buel, supra note 968 at 301. 970 Winn, supra note 59 at 70. 971 Brodsky, supra note 958 at 462. n 175 this lack of control was "found to cause disturbances in human motivation and behavior."972 Walker

found that battered women "learn that their voluntary responses really don't make that much

difference in what happens to them. Thus, it becomes extraordinarily difficult for such women to

change their cognitive set to believe their competent actions can change their life situation. Like

Seligman's dogs, they need to be shown the way out repeatedly before change is possible." 73 The

transfer from animal studies to battered woman gained support.

Okun has noted that the use of "noncontingent reinforcement by unpredictable rewards and

punishments" is something that Lifton saw as a key to thought reform, and that Walker saw as

essential in the process of breaking the battered woman.974 This can lead to others conceptualizing the

battered woman as "blameworthy."975 Okun has noted that a "woman can become quite apathetic

about her household chores when she faces an equal likelihood of being beaten for doing the chores or

for neglecting them."976 There is little question that "[l]earned helplessness conveniently ignores the myriad economic, social, psychological, and legal obstacles victims face, inviting unfettered victim- blaming by courts, juries, and the public." 7 Schuller and Jenkins explain that "not only is the focus on learned helplessness and the woman's passivity incongruent with her reactive and fatal response to the batterer . . . [but] researchers have consistently documented a wide range of strategies and help- seeking behaviors employed by battered women in their attempts to end the violence."978 Yet, despite these criticisms, Walker herself noted in her early work that it is "also probable that helplessness is learned on a relative continuum. There may be different levels of learned helplessness that a woman

972 Ibid. 973 Lenore E. Walker, "Battered Women and Learned Helplessness" (1977-78) 3-4 Victimology: An International Journal 525 at 529 [Walker, "Learned Helplessness"]. 974 Okun, supra note 268 at 129. 975 Ibid. 976 Ibid. 977 Buel, supra note 968 at 297. 978 Schuller & Jenkins, supra note 955 at 210. 176 learns from an interaction of traditional female role standards and individual personality

development." 7

Despite the difficulties with definitions, history, and cycles of violence, one thing remains

empirically demonstrable: Some of the most recent Canadian statistics from the 2003 General Social

survey have found that "spousal violence accounted for one-quarter [sic] of all violent crimes reported

to police services in 2001. Two-thirds of these cases involved violence committed by a spouse or ex-

spouse, 85 percent of the victims were female, and over two-thirds of these women were victimized

by a current spouse." Meda Chesney-Lind has similarly summarized that in the United States:

[e]very 15 seconds, a woman is beaten in her own home. One in every three women report having been physically attacked by an intimate partner some time in her life. In 1999, women were three times more likely to be killed by their intimate partners than were men and accounted for 85% of all victims of domestic violence. A National Institute of Mental Health study (based on urban area hospitals) estimated that 21% of all women using emergency surgical services had been injured in a domestic violence incident; that half of all injuries presented by women to emergency surgical services occurred in the context of partner abuse; and that over half of all rapes of women over the age of 30 had been perpetrated by an intimate partner . . . Battering also tends to escalate and become more severe over time. Almost half of all batterers beat their partners at least three times a year.981

Today, many researchers are loath to use the term "learned helplessness" to describe this

vulnerable population, and many are now instead using the term "survivor theory." It has been

noted that "[s]urvivor theory acknowledges 'that some battered women do experience low self-esteem,

guilt, self-blame, depression, vulnerability, and futility - all of which are identified with learned

Walker, "Learned Helplessness", supra note 973 at 529. 980 Sarah Todd & Colleen Lundy, "Framing Woman Abuse: A Structural Perspective" in Ramona Alaggia & Cathy Vine, eds., Cruel But Not Unusual: Violence in Canadian Families (Waterloo, ON: Wilfrid Laurier University Press, 2006) [Todd & Lundy]. 981 Meda Chesney-Lind, The Female Offender: Girls, Women, and Crime 2nd ed. (Thousand Oaks, Calif.: Sage Publications, 2004) at 97-98 [Chesney-Lind, Female]. Chesney-Lind, at 149-50, also cites surveys of women prisoners which show that "female prisoners were far more likely than their male counterparts to say that domestic violence was a theme in their adult abuse; fully half of the women said they had been abused by a spouse or ex-spouse, compared to only 3% of male inmates." 982 Ruth Jones, "Guardianship for Coercively Controlled Battered Women: Breaking the Control of the Abuser" (1999) 88 Geo. L.J. 605 at 619 [Jones, "Guardianship"]. 177 helplessness,' but explains the symptoms as an 'adjustment' to the inadequacies of available help."983

Jones argues that the "coercively controlled battered woman cannot realistically perceive her situation and the options available to her. Abuse has caused her to think and behave in a manner more consistent with the learned helplessness model than the survivor model."984 Using Stark's work on battered women, Jones advocates that courts considering the coerced battered woman should take into account the batterer's techniques rather than just the psychological result in the battered woman.985

She notes that this group of women is unable to make the choices needed to seek a resolution986 and she argues that the woman's family should be able to use the guardianship process to take control of the woman and break the bonds of control. Jones notes that "[cjoercively controlled battered women, immobilized by violence, need a more aggressive state intervention than those provided by empowerment-based remedies." 88

iii. Criticism

It is very important to recognize that BWS is not wholly accepted by all scholars and professionals, and it has not been used in a consistent manner within Canadian criminal law. Research after Walker has been critical of the cycle of violence theory because it was "not present in some abusive relationships and also because it implied that abuse was predictable and intermittent, thereby obscuring the ever-present controlling behavior of the batterer."989 Many theorists have also explored the obvious links between BWS and post traumatic stress disorder (PTSD).990 Walker has also been

983 Jones, "Guardianship", supra note 982 at 620. 984 Ibid, at 620. 9K Ibid, at 621. 986 Ibid, at 622. 987 Ibid, at 641. This is very much like the remedy sought by parents to take control of their children who they believed were brainwashed in a cult. 988 Ibid, at 628. 989 Mega et al, supra note 956 at 261. See also Schuller & Rzepa, supra note 952 at 62. 990 lb id. 178 criticised for "pathologizing women and implying that battered women suffer from mental illness."99'

Schneider notes the danger in BWS that:

it focuses on the woman's defects, the woman as subject to the 'syndrome.' It implies that she is limited because of her weaknesses and her problems, and does not appear to affirm the circumstances of her act . . . the battered woman 'suffers' from the syndrome and therefore should not be expected to leave her home, not because it is relevant to the reasonableness of her act; the court is willing to extend its 'protection' and admit the testimony because the battered woman is perceived as weak . . . The psychological aspect of the description sounds like i 992

incapacity and excuse.

There are researchers who rightly challenge the use of "syndrome evidence" in court. The U.S.

Department of Justice commissioned a report titled "The Validity and Use of Evidence Concerning

Battering and Its Effects in Criminal Trials" to examine this issue. 3 With the input of experts such as Schuller, the committee found that the term BWS "does not adequately reflect the breadth or nature of knowledge concerning battering and its effects" and that the term in the "context of the knowledge developed within the past 20 years, is imprecise and, therefore, misleading."994 The report concluded that the term BWS is "not adequate to refer to the scientific and clinical knowledge concerning battering and its effects germane to criminal cases involving battered women."995 They identify some of the common problems with the term saying that it "evokes a stereotypic image of battered women as pathological or maladjusted."996 Researchers like Schuller have noted that rather than pathologizing women, the intent of expert testimony is to provide jurors with a '"social framework' for interpreting the woman's beliefs and actions - an interpretive social schema from which to view

991 Jacobsen, Mizga & D 'Orio supra note 6 at 38. 992 Schneider, supra note 271 at 135-36. 993 U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, The Validity and use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (Washington, D.C.: U.S. Department of Health and Human Services, National Institute of Mental Health: 1996) [Validity]. 994 Validity, supra note 993 at 17. 995 Ibid. 996 Ibid, at 19. 179 her actions as reasonable rather than aberrant." 7 These critics further point to the need for different

explanations of coercion to account for the actions and mindset of the battered woman.

There are also critics, such as Sharon Allard, who state that this syndrome cannot be applied to

non-white women.998 Some have noted that many women have been forced to fit "stereotypes of

femininity that harm women who are too assertive, aggressive, or insufficiently remorseful, and racial

stereotypes that produce special hurdles for women of color, thus rendering most women unable to fit

the definition." Thus, BWS is viewed by many as exclusive rather than inclusive.

Today in the United States there is more domestic violence than all other types of violence put

together. Eighty-five percent involve female victims, and one-third of all female murder victims are

murdered by their male partners each year (while less than 4 percent of all male murder victims are

killed by female partners.)1000 Most women who kill do so to "defend themselves from men who have

repeatedly beaten them."1 However, some recent American studies, including the Oakland County

study conducted by Jacobsen et al, found that in the cases of 82 homicides in one American county in

1986-88:

women defendants in these cases were convicted at a much higher rate than men. Black women were convicted at an even higher rate than all others, and women who were victims of domestic violence were also convicted at a higher rate. The most startling result in the study is the discrimination in sentencing against victims of domestic violence, resulting, in part, because of their higher conviction rate. Overall, a white female defendant with no prior convictions convicted by a jury of killing a white person could expect an average sentence of 10 to 30 years. However, if that woman was a victim of domestic violence, her predicted sentence increased to life.1002

997 R. A. Schuller & N. Vidmar "Battered Woman Syndrome Evidence in the Courtroom" (1992) 16 (3) Law and Human Behavior 273 [Schuller & Vidmar] (citations omitted). 998 See Sharon Allard, "Rethinking the Battered Woman Syndrome: A Black Feminist Perspective" (1991) 1 UCLA L.J. 191 [Allard]. 999 Jacobsen, Mizga & D'Orio, supra note 6 at 38. 1000 Ibid, at 31-32. miIbid at 31-32. 1002 Ibid, at 52. 180 However, Herman has suggested that learned helplessness is wrongly applied to battered women and those who are chronically traumatized.1003 She states that "[s]uch concepts tend to portray the victim as simply defeated or apathetic, whereas in fact a much livelier and more complex inner struggle is usually taking place. In most cases the victim has not given up. But she has learned that every action will be watched, that most actions will be thwarted, and that she will pay dearly for failure."1004 The concept of learned helplessness has also been criticized as "engendering] stereotypical ideas of a battered woman, which are then used to exclude those women who perform competently in other areas of their lives."1005 Simply because an individual feels trapped in an intimate relationship does not mean that she cannot perform fully in other aspects of her life. Many commentators have noted that to understand:

battered woman syndrome, and why women stay in relationships with abusers, we must examine gender inequality in our society. In fact, battered women use many strategies for their own survival, from placating their abusers to fighting back, and from efforts to stop the abuse and calling the police to leaving. However, the lack of support from law enforcement, social services, and the medical establishment tend to converge with society's predisposition to blame battered women for their own abuse.

Other theorists have made the point that it is important not to assert that a woman must completely fit within the cycle of violence to qualify as a battered woman. Buel has noted that "[v]ery often, the battered client does not experience abuse in either the sequence or the manner that Walker describes.

Many battered women do not receive warning of impending violence and are never given apologies for the abuse . . . While Walker characterizes the first two phases as creating 'cumulative terror,' this term is probably applicable to most victim's abuse and not limited to those patterns that exactly follow

13 Herman, supra note 400 at 90-91. 1004 Ibid, at 91. Herman also looks extensively at survivors of Nazi prison camps. This topic is beyond the scope of this thesis, but see Herman, supra note 400. 5 Jacobsen, Mizga & D 'Orio, supra note 6 at 38. 1006 Ibid, at 39. See also Laurie Wardell, Dair L. Gillespie & Ann Leffler, "Science and Violence Against Wives" in David Finkelhor, The Dark Side of Families: Current Family Violence Research (Beverly Hills: Sage Publications, 1983) 69 at 69 [Wardell, Gillespie & Leffler}. 181 Walker's temporal sequence."1007 Coughlin concludes her detailed study of BWS and marital coercion laws by finding that there cannot be a "defense that does not effectively withhold from women the respect for their achievements and authority over their lives that the capacity for responsible conduct presently secures for men."1008 In fact, she concludes that the "battered woman syndrome defense, at least as it is presently constituted, is profoundly anti-feminist."1009 A concept which was meant to explain why a woman would stay in an abusive situation has adopted a very negative connotation to some. Thus, BWS does not have an unquestioned status within Canadian criminal law. However, for the purposes of this dissertation, the current use of the syndrome will be recognized, and used in juxtaposition to a potential brainwashing defence. This is not to accept all elements of BWS or to suggest that it is properly used by the courts. It is simply used as representative of what is happening within many Canadian courts today.

iv. BWS and the Canadian Courts - Self-Defence, Duress, Diminished Responsibility NCRMD, and Automatism

BWS first entered the Canadian criminal law discourse through self-defence in R. v. Lavallee}m

Lavallee was 22 years old at the time that she shot her abusive partner in the back of the head as he left a room in their home.1 ' The defendant lived in an atmosphere of constant violence over a significant period of time. She had been to the hospital several times for "severe bruises, a fractured nose, multiple contusions and a black eye." The Court concluded that expert psychological evidence was needed because it was difficult for the average jury member to understand the actions of

1007 Buel, supra note 968 at 297. 1008 Coughlin, supra note 517 at 87. 1009 Ibid. Coughlin argues, at 91, that "special excuses for women, in whatever form, reinforce incommensurable gender differences, in which the qualities characterized as male inevitably are privileged over those characterized as female." 1010 What needs to be very clear about the role of BWS in the Canadian courts is that it is not a stand-alone defence. BWS is used alongside already established defences, and it has not been used consistently, nor has it been wholly accepted by all professionals. 1011 Lavallee, supra note 6. 1012 Ibid, at para. 2. 1013 Lavallee, supra note 6 at para. 2. 182 a battered spouse. The Court found that this evidence was necessary because it is "up to the jury to

decide whether, in fact, the accused's perceptions and actions were reasonable." Lavallee was

ultimately acquitted.1015

With the foundation of the established excuse of self-defence, the 1998 case of R. v. Malott

concerned another battered woman who shot her spouse and attempted to kill his girlfriend.1016 The

Court found it was necessary that the jury be instructed on BWS and how it related to the law of self-

defence; however, Malott's appeal of her conviction was dismissed. In the dissent, L'Heureux-Dube

and McLauchlin J.J. noted that the "utility of such evidence in criminal cases is not limited to

instances where a battered woman is pleading self-defence, but is potentially relevant to other

situations where the reasonableness of a battered woman's actions or perceptions is at issue (e.g.

provocation, duress or necessity)."1017 This provided for the possibility of the use of BWS in other

defences, and BWS has, in fact, played a fundamental role in the development of the defence of

duress. Yet, as discussed above, many have linked this condition with the element of prior fault and

have sought to exclude this defence from those offenders. However, the use of duress is essential

because many female inmates report having been under duress from their partners during their

offence.1018 Walker theorized that there are:

many more women inmates [that] had been battered than had been previously known, even when the battering had a direct impact on their crimes. Offenses such as forgery, burglary, assault and sale and use of drugs were committed by these women, usually under duress, as a

Ibid, at para. 74 [emphasis in original]. 1015 In this case the court was interpreting s. 34 (2) and self-defence. 1016 R. v. Malott, [1998] 1 S.C.R. 123, S.C.J. No. 12 [Malott]. 1017 Ibid, at para. 36. 1018 Shaffer, "Coerced", supra note 732 at 307. In Lenore Walker's book, The Battered Women Syndrome (New York: Springer, 1984) at 142, cited in Isabel Grant, "Exigent Circumstances: The Relevance of Repeated Abuse to the Defence of Duress" (1997) Can. Crim. L. Rev. 331 at 332 [Grant] "there is a growing awareness that many women currently in prisons across the country have been battered. Estimates of up to one-half of them committed the crime for which they are being punished to avoid further beating. Forging checks to pay his bills, stealing food or other items that he denied the children, selling drugs to keep his supply filled, hurting someone else so he didn't hurt her were all acts committed under control of the batterer's threat of, or actual violence." 183 way to meet their batterers' demands and avoid another beating. All of the battered women who were interviewed in the research study understood that the violence in their homes could escalate to homicide and suicide.1019

Shaffer notes that most of the focus on BWS has been on self-defence and little attention has been paid to offences which do not involve harm to the batterer.1020

Despite increased awareness about BWS, "the belief that a woman could stop the abuse by simply leaving the abuser persists."1021 The Court found in Hibbert that the standard to consider is modified to acknowledge the "personal circumstances of the accused."1022 The Court in Ruzic addressed some of these questions.1023 It examined the argument made by Laskin J.A. at the Court of

Appeal that there are two particular circumstances where the safe avenue of escape test will need to be modified when it comes to the battered woman, and the first is in the case of a battered spouse who feels that there is no escape. The Supreme Court finds that "it would be contrary to the principles of fundamental justice to punish an accused who is psychologically tortured to the point of seeing no reasonable alternative, or who cannot rely on the authorities for assistance. That individual is not behaving as an autonomous agent acting out of his own free will when he commits an offence under duress."1024 The Court recognizes this very real situation, but there are a number of barriers that may face women using BWS, including the element of escape.

1019 Lenore E. Walker, Roberta K. Thyfault & Angela Browne, "Beyond the Juror's Ken: Battered Women" (1982) 7 Vermont Law Review 1 at 3 [Walker, Thyfault & Browne] 1020 1020 Shaffer, "Coerced", supra note 732. 1021 Ibid, at 317. 1022 Hibbert, supra note 621 at 1021. 1023 Ruzic, supra note 571. 1024 Ibid, at para. 88. Note that there have been many critiques of BWS. See Grant, supra note 1018 at 345-48. Many say, as stated by Grant, supra note 1018 at 345, that many "abused women are not passive but rather make numerous efforts to end the abuse and escape form the situation" and that BWS literature has been criticized as being "under-inclusive in terms of race, class and sexual orientation" among others. The preferred way of approaching BWS is to cited the words of Lenore Walker in Terrifying Love (1989) at 1980 as cited in Grant, supra note 1018 not to see it as describing "a peculiar mental or physical characteristic" but rather "a terrified human being's normal response to an abnormal and dangerous situation." See dissent in R. v. Malott, supra note 1016. 184 In the United States parties have argued the defence when the criminal act was against third

parties in situations of drug-related crimes, embezzlement, fraud, bank robbery, and even murder.1025

However, the Courts have been far less sympathetic for the domestic abuse victim when there is a

third party, and seem far more sceptical of the defence.1026 This seems ironic since BWS theory is

actually "more descriptive of the battered woman who submits to her batterer's request, however

unlawful, than one who uses force against him." 027 The Courts in the United States seem to have no

convincing basis upon which to admit BWS in self-defence cases, and yet they often disallow the

defence of duress and seem satisfied with the unexplained "policy-based conclusion that the

extensions of such evidence to the duress context would be 'unwise.'"1028

There have been attempts to extend the defence of duress through BWS. An example is the 1994

American case of Washington v. Riker} In Riker the defendant attempted to show that she was

previously battered by men, and this abuse ultimately led to her conviction for selling cocaine to a

police informant who coerced her to act. The defendant had no intimate or long-term relationship

with the informant. Experts testified that "Riker could not distinguish the informant's threats from

those of her previous abusers" but admitted that this was a novel application to a situation where "no

Alafair S. Burke, "Rational Actors, Self-Defense, and Duress: Making Sense, not Syndromes, Out of the Battered Woman" (2002) 81 N.C.L. Rev. 211 at 250 [Burke]. 1026 See Neelley v. Alabama, 494 So.2d 669 at para. 8 (1985) [Neelley] where the court found that there were distinguishing facts between other BWS cases and the one at hand because the defendant "did not choose to kill her batterer. She chose, instead, to kill an innocent third party, a choice which falls outside any acceptable notion of self-protection. The battered woman syndrome offers no plausible explanation for that choice, and the court is unconvinced that the battered woman syndrome provides any reason for mitigating [Neelley's] sentence." 1027 Burke, supra note 1025 at 251. Interestingly, unlike in North America where BWS initial was introduced with self-defence, BWS was first introduced in Australia in connection with the defence of duress in the case ofR. v. Runjanjic and Kontinnen [1992] 56 S.A.S.R. 114 [Runjanjic & Kontinnen]. The two women defendants held and assaulted another woman and pleaded duress. The two women argued that they acted under duress by a man named Hill who was "the de facto partner of both defendants." See J. Stubbs and J. Tolmie, "Falling Short of the Challenge? A Comparative Assessment of the Australian use of Expert Evidence on the Battered Woman Syndrome" (1999) 23 Melbourne U.L. Rev. 709 at 722 [Stubbs & Tolmie]. 1028 Burke, supra note 1025 at 258. 1029 123 Wash.2d351 (1994) [Riker]. 185 intimate relationship existed." ° Ultimately, the defence was not permitted. The Court found

that:

[w]ithout requiring a foundation which would distinguish Debbie Riker's fear from that of every other citizen who has a troubled past there is a danger that the evidentiary doors will be thrown open to every conceivable emotional trauma. Ultimately, the jury's finding of duress would rest upon sympathy for the defendant, rather than an evaluation of her present danger. These considerations are more appropriately a part of sentencing.1032

It is ironic that battered offenders are put in a losing situation, as "excusing battered offenders under the banner of duress hinges on distinguishing the coercive circumstances surrounding a battered woman's crime from those surrounding other offenders not entitled to excuse." However, the

"more a battered offender bases her claim of duress on the external society pressures to which she is subject (i.e., battering), the less 'abnormal' her situation arguably becomes and the less entitled she is to special legal treatment via expansion of duress."1034 Thus, the battered offender has to decide whether to bring her particular fallibilities to the court room while still fitting within the duress lexicon.1035

1030 Buel, supra note 968 at 312-13. 1031 However, Buel, supra note 968, argues that "Riker exemplifies the need for an expansion of BWS to address precisely such situations where, but for the history of abuse, the battered woman would likely not have responded to current threats in the same manner." 1032 Riker, supra note 1029 at 366 n. 5. 1033 Dore, supra note 574 at 761. 1034 Ibid. 1035 There is this inherent contradiction in BWS. As Milhizer, supra note 559, says at 838 citing the sources of the discussion "Professor Coughlin and others are clear - any excuse available only to women, because they are women, enfeebles women, and thus in her words 'institutionalises negative stereotypes of women.' It is irrelevant to many BWS proponents whether the excuse theory fits - it is bad social policy, albeit for a good social cause, and thus is unacceptable. This leaves many BWS supporters face-to-face with imponderable dissonance. On the one hand, they want to argue that the devastating effects of domestic abuse cause women to acquire the 'learned helplessness' of BWS, which supports holding them to a different, lesser, standard of conduct. On the other hand, they wish to assert that battered women are justified in killing their batterer and they do not suffer any mental impairment or disability. However, the first proposition argues against the second, and vice versa, leaving BWS theorists with the choice of either modifying their theory or endorsing a paradoxical hybrid of excuse and justification." A full discussion of BWS and all of its forms is beyond the scope of this thesis. For more information see Appel, Susan D. "Beyond Self-Defense: The Use of Battered Woman Syndrome in Duress Defenses" (1995) U. 111. L. Rev. 955 [Appel]; Sue E. McClure, "The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?" (1997) 85 Ky. L. J. 169 [McClure]; National Clearinghouse for 186 I. Prior Fault

One of the biggest difficulties with a defence of brainwashing of the battered spouse is the view of many that the abused woman brought the situation upon herself in what has been termed "prior fault." Again, a proposed defence of brainwashing would likely have the same proviso as duress does in Canadian criminal law insofar as the actor cannot be found to have committed any prior fault to lead them to their coerced position. However, this defence would be considered an excuse defence which "exculpates an actor who has satisfied all the elements of an offense and who has caused net harm but who, due to a confirmable disability that creates an excusing condition, cannot be considered responsible for his conduct." There is research that shows that institutions (like marriage) entered into voluntarily and where the individual may withdraw, can be "as coercive as the physical constraints previously described." Schein identifies that in this "voluntary" membership, "[n]ot only is voluntary withdrawal generally defined as failure, but the act of entry into the institution may constitute a more or less irrevocable commitment in that the individual often cuts himself off from alternate paths when he makes his decision . . . [and] termination is defined by all concerned as an act of moral weakness." Many women may find themselves in this involuntary decision within the voluntary institution of marriage.

Robinson notes that there are three types of excusing conditions that would consider an individual blameless: "the conduct is not the product of his effort or determination or the actor does not perceive the physical nature or consequences of his conduct; the actor does not know his conduct is wrong; and the actor's ability to control his conduct is so impaired that he cannot be fairly held

the Defense of Battered Women, "Annotated Bibliography" (1993) [Clearinghouse] for historic references to cases involving battered women. 1036 Robinson, "Causing", supra note 38 at 3 n. 5. 1037 Schein, Coercive, supra note 151 at 275. Schein adds to the list, at 275, "educational institutions, religious orders, AA, psychoanalysis, revival meetings, [and] fraternities." 1038 Ibid, at 275-76. 187 accountable for it."1039 He explains that in the case of duress, a defence is available if the individual

who, "due to a state of coercion brought about by a threat that a reasonable person could not resist,

cannot sufficiently control his conduct so as to be held accountable." 40 Just because someone is not

deserving of condemnation does not automatically mean that they are morally innocent. This inquiry

results in the absurdity of labelling conduct morally innocent which deserves condemnation, and the

labelling conduct criminal which is not blameworthy. Thus, when it comes to the brainwashed

actor, they might fulfil the requirement for subjective mens rea but may not have a "guilty mind."

When examining this type of offender it is impossible to divorce morality from the discussion.

Many say that a woman who stays in appalling conditions deserves the consequences of that

decision, especially, again, if she saw glimpses of a "dark side" early in the relationship.1042 Robinson makes the hypothetical example:

One who is reckless as to placing himself in a situation where he will be subjected to coercion is not necessarily reckless as to being coerced into injuring another. Similarly, although an actor may intentionally place himself in a coercive situation to help a relative held hostage, he does not necessarily intend to be coerced to commit a robbery. To bar a duress defense in such a case simply does not generate liability proportionate to the actor's culpability.1043

The same can be said of the brainwashed battered spouse. She may have entered into the potentially coercive situation by beginning a relationship with another; however, she does not have the intent to be forced to commit sadistic crimes. To deny her a defence of brainwashing does not produce liability in proportion to her culpability. Robinson states that the:

causal theory for imputing objective elements has a counterpart for imputing mental elements: A required mental element will be imputed to an actor if he is causally responsible for criminal conduct committed in the absence of the mental element ... It is this same concern for the actor's culpability for causing his own disability that supports analogous results when an actor

1039 Robinson, "Causing", supra note 38 at 3 n. 5. 1040 Ibid. 1041 Stribopoulos, supra note 520 at 285. 1042 Janet I. Warren & Robert R. Hazelwood, "Relational Patterns Associated with Sexual Sadism: A Study of 20 Wives and Girlfriends" (2002) 17 Journal of Family Violence 75 at 84 [Warren & Hazelwood]. 1043 Robinson, "Causing", supra note 38 at 20. 188 causes in himself conditions of a general excuse such as hypnotism, duress, impaired 1044

consciousness, involuntary act, or somnambulism.

Kadish notes how important a role excuse plays in the criminal law and in moral consciousness because the "practice of blaming is intrinsically selective. It cannot survive if all harm-doers are to be blamed, any more than it can if none are [sic]. Excuse is one of those central concepts that serve to draw the line between the blameworthy and the blameless and so make a blaming system possible."1045 The brainwashed defendant is a paradigmatic example of someone who is not blameworthy and does not deserve moral condemnation any more than they do legal sanction.

II. Escape

Escape is another issue that is raised in response to defences and BWS. If the accused is supposed to act in a way consistent with a reasonable person similarly situated, there are many questions that arise. For example, in considering a battered woman who commits a string of crimes over a long period of time, Shaffer notes that: [e]ven if on each occasion the woman acts to protect herself from violence at the hands of her abuser, should her fear of violence excuse the commission of all the offences she commits over this period? Will there come a point at which she must make the hard choice to seek police protection rather than to continue to commit offences even if she fears for her life or for the lives or safety of her children? Similarly, where the offences the woman is forced to commit involve the infliction of harm on third parties, how should the courts determine whether leaving the abuser - with all the problems that involves - was a reasonable option in the circumstances? Should the law say that if faced with a choice between harming a third person or seeking protection against her abuser the woman should always choose the latter, regardless of whether she has a safe place to go or whether she believes that her abuser may come after her? Or, should the law seek to balance the difficulties a woman may have in leaving an abusive relationship and the danger to herself or her children that would be entailed with the harm she is forced to inflict? These questions persist with any defence incorporating BWS. Shaffer also discusses what has come to be known as a "generalized fear" of harm rather than a specific harm and how that can be taken into

Paul H. Robinson, "Imputed Criminal Liability" (1984) 93 Yale L.J. 609 at 639 [Robinson, "Imputed"]. Kadish, supra note 50 at 257. Shaffer, "Coerced", supra note 732 at 318. account, and how this is also an impediment to a duress defence.1047 The other limiting aspect with

battered women is the requirement in duress that the defendant did not bring the coercion on herself.

There are some courts that have the attitude that if an abused woman stays in an abusive relationship

she should be precluded from a defence. It is for this reason that research on the practical differences

between men's and women's experiences is particularly important.

Commentators have noted that there is this focus on escape and the common "perception that

a woman should have left the violent relationship. The question is always, 'Why didn't she

leave?'"1048 Schneider notes that this view:

trivializes the woman's victimization, the physical harm that she has suffered, and the trauma that she has experienced; it also does not take account of the complexity of the relationship, the social, psychological, and economic factors that impeded her, and the risk of death that she faces in leaving. The exclusive focus on a particular form of agency - exit - renders invisible all the other active efforts that the woman may have made to protect herself and her children.1049

The woman attempts to keep her relationship intact which "further aggravates the victim's

deteriorating psychological condition, reinforcing her negative estimate of her self-worth, and

underscoring her belief that she should not and cannot escape. The brainwashing is a success."1050

The battered woman may necessarily feel unable to escape.

Kasian et al. review the position in the U.S., and the use, prior to the 1980's, of a "diminished

capacity" defence. This is a potential area of research as this historic defence in the U.S. stated that

the defendant was "not responsible for her actions because of the presence of mental disease, defect of

reasoning, lack of knowledge of the wrongfulness of the act, or an incapacity to refrain from the

1047 Ibid, at 321. 1048 Schneider, supra note 271 at 390. 1049 Ibid. 1050 Doris Del Tosto, "The Battered Spouse Syndrome as a Defense to a Homicide Charge Under the Pennsylvania Crimes Code" (1981) 26 Vill. L. Rev. 105 at 112 [Del Tosto] [emphasis in original]. 190 commission of the act."1051 This could be a potential avenue to pursue in terms of marital mind control, but the authors also note the limitations of the defence under the heading of mental disorder and the issues that arise with "treatment" of those in this state. Again, diminished responsibility seems to be a closed avenue in Canadian law.

Building on the automatism studies, it has been noted that "[b]ehind the norm of domesticity, the most obvious explanation when an otherwise respectable ('normal') woman responded violently to abuse was that she was insane."1052 Buel has noted that some cases have argued "insanity or diminished capacity out of the mistaken belief that it is the only excuse a jury will accept."1053 This has changed through the last decades with the development of the theory behind BWS to the point that

"insanity is no longer the prevalent defense for battered women . . . [but rather] an option of last resort." It has been noted that this is because of the "recognition that a battered defendant's behavior is often a logical reaction to the abuse, not pathological."1055 Stark notes that the "dilemma posed by the insanity defense was that women who wanted to claim its protection had to deny that their response was rationally motivated by the same logic that guided other human beings."1056 It is important to note at this point in the analysis that, as Walker has observed, BWS is a "terrified human being's normal response to an abnormal and dangerous situation. Psychiatrists and other helping professions tend to confuse the effects of domestic abuse with 'masochism,' 'borderline personality disorder,' or any number of other inapplicable diagnoses . . . We must also break through our denial about the severity of the sadistic manipulation and psychological control - amounting, in some cases,

1051 Marilyn Kasian et al. "Battered Women Who Kill: Jury Simulation and Legal Defences" (1993) 17 Law and Human Behaviour 289 at 290 [Kasian et al.]. 1052 Stark, Coercive, supra note 269 at 145. 1053 Buel, supra note 968 at 316. 1054 Ibid m5lbid. 1056 Stark, Coercive, supra note 269 at 146 . 191 to real brainwashing - that a batterer may exert over a battered woman."1057 It is clear from the forgoing discussion that there is a real need for another defence to use in conjunction with BWS.

v. Proper Conceptualization and Expert Evidence

Knowing that BWS is not a defence itself, but rather a modern conceptualization of older defences, it becomes critical to closely examine the expert evidence which supports the re- conceptualization of existing doctrine.1058 Kasian conducted a study which involved 237 first-year psychology students ranging in age from 17 to 70.1059 There were 40 mock "juries" with five to eight members each. The participants were randomly assigned to one of 4 groups presented as "(a) automatism/no expert, (b) automatism/expert, (c) self-defense/no expert and (d) self- defence/expert."' ° Each jury was shown a videotape of a trial, (using the same actors from a local association) involving a battered woman who killed her husband. Scripts were based on several actual second degree murder cases. The tapes contained an opening statement from the judge, Crown, defence, and three witnesses for the Crown (who were cross-examined), three witnesses for the defence (who were cross-examined), closing statements, and jury charge. The battered woman described the violent behaviour of her husband, including "beating, kicking and rape," her miscarriage due to violence, her isolation from friends and family, and her attempts to leave the situation.

According to the scenario presented to the subjects, on the night of the incident the battered woman shot her sleeping husband and did not remember what happened just prior to the act. Two of the four

1057 Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (New York: Harper & Row, 1989) at 180 [Walker, Terrifying]. 1058 Kasian et al, supra note 1051 at 291. 1059 Ibid, at 292. 1060 Ibid. 1061 Ibid, at 293. The Crown witnesses were an arresting officer, coroner, and a character witness for the victim. The defence witnesses consisted of a "domestic abuse officer" who had been to the house during an incident, a doctor who had treated the defendant prior to the homicide, and the battered woman. 1062 Kasian et al, supra note 1051 at 293. The accused also testified, at 293, about her feelings of "helplessness and terror" and testimony about how her husband "threatened to kill her on the night of his death, and she testified that she believed him." 192 scenarios included testimony from a psychiatrist describing the "misconceptions commonly held about battering, batterers, and battered women, a discussion of the cycle theory of violence, and, finally, the opinion of the expert witness on the tenability of the defendant's plea."1063

Half of the juries were presented with the automatism defence, half of those were presented with an expert witness. The theory of the automatism case was that the defendant could "no longer cope with the stress of her relationship" and that she suffered a head injury right before the incident which resulted into her slipping into "a dissociated state at the time of the murder" so that she could not understand the "consequences of her actions."1064 The other half of the juries were presented a self- defence theory of the case. Again, half were provided with an expert and half were not. The expert group had information identical to the automatism juries with the difference that "the defendant acted in a reasonable way, under the circumstances, to protect herself from serious bodily harm or death." 5 The participants were asked to rate the guilt or innocence of the accused on an 10-point scale with "0" being not guilty and "10" being guilty, at several intervals: "(a) after the opening statements of the judge, prosecutor, and the defense; (b) after all the witnesses had been heard

(excluding the expert witness where applicable); (c) after the closing statements of the defense, prosecutor, and judge; and (d) following their deliberations."1066

The battered woman's credibility was rated on a 5-point scale from "1," not credible, to "5," credible. The juries had to be unanimous and were given 90 minutes to reach a decision or their group would be considered "hung." The results of this experiment were as follows: (1) Jurors were most

1063 Ibid. The authors note that all actors were male except the battered woman, the expert, and the medical doctor. 1064 Ibid, at 294. The theory of the Crown's case, at 294, was that the defendant killed her husband out of anger and "concocted the story of dissociation in order to escape punishment." 1065 Ibid. The Crown theory was that most battered women do not kill their abusers, her belief was not reasonable and that she "could have pursued legal alternatives or simply left the batterer in order to prevent harm from occurring to herself." 1066 Ibid. 1067 Ibid, at 295. 193 likely to find the battered woman not guilty if she used the automatism defence.1068 The use of the self-defence plea had a 30% acquittal rate where the automatism defence had a 45% acquittal.1069 (2)

Expert testimony was important along gender lines as males changed their guilty verdict to not guilty.

Females changed a not guilty to a guilty over deliberations.1070 Overall, juries found the defendant guilty despite expert testimony. (3) Prior to deliberation, the males were more likely to believe the defendant was guilty, and females were more likely to think that the accused was not-guilty; following deliberation, more males with an expert were likely to change their verdict from guilty to not-guilty where women with an expert were more likely to change from not-guilty to guilty.1072 Experiment 2 was similar to Experiment 1 in that a jury was more likely to convict after a plea of self-defence than automatism, with 66% of the self-defence juries finding guilt, compared with 15% not-guilty in the automatism juries.1 7 This leads again to the conclusion that it is essential that these defendants use

1068 Ibid, at 296. 1069 Ibid, at 298. 1010 Ibid, at 295. 1071 Ibid, at 298. 1072 Ibid, at 299. The authors note that these differences resulted as "[fjemales may have used testimony to support a not guilty verdict thus convincing some males to change a guilty verdict to a not guilty verdict. Alternatively, males may have focused on inconsistencies in the expert's testimony to convince some females to change a not guilty verdict to a guilty verdict. In essence, the expert may have functioned as a 'third party' in the deliberation proceedings by providing jurors with arguments for either supporting or refuting verdicts. When such information was unavailable (i.e., the no expert condition), verdicts remained constant across deliberation proceedings." See Kasian et al, supra note 1051 at 299. The authors also completed a second experiment which is not as relevant to my research. They created a fictitious defence of "psychological self-defence." Although this is not relevant, this defence was based on the work of C.P. Ewing who noted that when there is a choice of "killing or being killed by an abusive partner" the woman's life becomes "an existence devoid of meaning because of the batterer's control over them." Conceptualizing this theory, Ewing suggests that "severely abused women are denied basic rights and freedoms" which includes the right to "life in a psychologically meaningful manner" which is denied by the batterer. Kasian et al. note that those who do not have a psychologically meaningful life suffer a sort of "psychological death," something women should be able to resist as much as they would if someone was killing them physically. This is an argument which is not frequently forwarded, but one that may assist with the brainwashing elements of BWS. 1073 Kasian et al, supra note 1051 at 307. 194 the most advantageous defence.1074 It is also noteworthy that the automatism juries had the highest

occurrence of hung juries (seven in automatism, two in self-defence and four in psychological self-

defence.)1075 Kasian et al. note that the use of self-defense is "sex-biased" and that the system is not

serving those female offenders, especially when the perpetrator is the spouse.1076 The authors argue

that because automatism was more successful than the self-defence plea, the juries were more able to

accept that a battered woman was "mentally unstable for staying with a man who abused her ... Thus

as long as the crime could be justified as a deficit in the woman's personality (i.e., mental illness), jurors were willing to concede that the crime could not have been prevented." 077

Again, there could be an argument for some type of diminished capacity defence "as a means of

dealing with situations where a recognized moral value (e.g., the right to kill a tormentor) conflicts

with a law (e.g., taking a life). According to this view, society allows defendants to be construed as

'temporarily insane' as a compromise measure which, on the one hand, acknowledges the

wrongfulness of their act, while on the other hand, at least partially, excusing their legally culpable

behavior."1078 A type of continuum for these cases might be the answer to the issues surrounding

battered women. Finally, the authors conclude that because the jurors voted for automatism was

consistent that most found the defendant's behaviour "morally defensible, but legally culpable."1079

This could lend support to the conclusion that there is another category of battered women which

could be conceptualized from a diminished capacity standpoint. Hart notes that with diminished

1074 As noted at Kasian et al, supra note 1051 at 307, the psychological self-defence option there were 11% more acquittals than self-defence, but 41% fewer acquittals than in the automatism groups. The authors also note at 308 that there were more acquittals with the level of abuse being severe rather than moderate. 1075 Kasian et al, supra note 1051 at 308. 1076 Ibid, at 309. 1017Ibid, at 3\0. wliIbid. 1079 Ibid. 195 responsibility, "if we punish at all we punish less, on the footing that, though the accused's capacity

for self-control was not absent its exercise was a matter of abnormal difficulty."1080

Schuller has also conducted a series of studies to explore whether a woman is seen as

pathologized or "damaged" and whether alternative expert evidence (e.g., evidence that eliminates the

terms battered woman syndrome, learned helplessness, and PTSD) can be effective in gaining

acquittals for these women. Thus, rather than "psychopathologizing the defendant's reaction to the

batterer's domination, the alternative form of evidence placed greater emphasis on the battered

woman's agency (i.e., effortful and active rather than passive and helpless) and social realities (e.g.,

lack of social support). As such the researchers labelled the testimony "social agency" evidence."1082

Schuller and Rzepa have documented that expert testimony on BWS may not simply show the

battered woman's behaviour as reasonable, but rather the evidence may "operate by evoking feelings

of sympathy for the defendant." °83 A series of subsequent studies have shown that greater leniency

was demonstrated when expert testimony was presented compared to a no expert testimony

condition. However, studies have also shown that there is an association between the testimony

and "explanations of diminished capacity and insanity" which confirm the notion that BWS evidence

is likely to be associated with interpretations of dysfunction.1085 Schuller et al. conclude that it is

essential to provide "jurors with information about the (limited) choices confronting battered women

1080 Hart, supra note 521 at 153 [emphasis in original]. 1081 Schuller & Jenkins, supra note 955 at 218. 1082 Ibid. 1083 Ibid, at 216 citing R.A. Schuller & S. Rzepa, "Expert Testimony Pertaining to Battered woman Syndrome: Its Impact on Jurors' Decisions" (2002) 26 Law and Human Behavior 655. Schuller & Rzepa examine jury nullification within this context. 1084 Schuller & Jenkins, supra note 955 at 219 citing R. A. Schuller, B.M. McKimmie & T. Janz, "The Impact of Expert Testimony in Trials of Battered Women who Kill" (2004) 11 Psychiatry, Psychology and Law 1. 1085 R.A. Schuller et al, "Rethinking Battered Woman Syndrome Evidence: The Impact of Alternative Forms of Expert Testimony on Mock Jurors' Decisions" (2004) Canadian Journal of Behavioural Science 127 at 134 [Schuller et al] (citations omitted). 196 in their attempts to end the violence in their lives." Clearly, expert evidence is an important part of a defence for these women; however, there may be alternative forms of evidence that will be more effective and address the shortcomings perceived in BWS evidence and the perception of these women as those with a "psychological dysfunction."1087 Given all of these studies, Schuller & Jenkins conclude that "an alternative form of testimony that emphasizes the social aspects of the battering relationship and omits references to the terms battered woman syndrome, learned helplessness, and

PTSD may be as successful as the traditional form of testimony in terms of verdict decisions.

Furthermore, it appears to avoid some of the pitfalls typically associated with the syndrome

1088 1089 evidence." This raises the important point that "expert testimony need not remain static."

I explicitly recognize that there are scientific and psychological limitations to BWS and that this has serious implications for the brainwashed defendant. There is a real possibility that evidence regarding BWS will change, and the term may no longer be used in this context. Despite these limitations, BWS is still currently being used in this present form, and I will proceed on this basis for the purposes of this dissertation. With this point established, one must look at the role of brainwashing and the battered spouse.

b. Brainwashing and the Battered Spouse

Given that BWS has been accepted by the Canadian courts, and given that brainwashing does not relate acceptably to any established defence, it is important to juxtapose the phenomena of brainwashing and the battered woman. If BWS and brainwashing share identity, perhaps they can share a place in Canadian law. A clear understanding of BWS could assist the court in determining if brainwashing would be relevant in Canadian law as a reformulation of excuse. Although the links between these two populations has not been extensively researched, some research in the 1970's 1086 Schuller et al, supra note 1085 at 135. 1087 Schuller & Jenkins, supra note 955 at 220. 1088 Ibid. 1089 Ibid, at 221. 197 explored this connection. Stark notes that his theory of coercive control and the battered woman

found its roots in the 1950's and 1960's "with the application of learning theory to the experiences of

persons undergoing severe restraint in nonfamilial settings, particularly hostages, prisoners of war,

inmates, mental patients, and members of religious cults. The parallels between these experiences and

abuse extended from the tactics deployed to the proximate and long-term harms inflicted."1091

Steinmetz noted that brainwashed battered spouses are "fearful, isolate, dependent, helpless, and

trapped, overcome by anxiety, depressed, and full of guilt and shame." The similarities between

prisoners of war and the process that is experienced by the battered woman is surprisingly similar.

1090 See testimony of Edward Hunter, Un-American, supra note 93 at 20 who noted the "delay in revealing brainwashing left the public with a twisted conception of it. People still think it has something to do only with prisoners of war, and possibly foreigners put under arrest.. . Brainwashing only incidentally concerns military prisoners or foreigners." 1091 Stark, Coercive, supra note 269 at 200. 1092 Steinmetz, supra note 849 at 326. Steinmetz also notes, at 327, that "[b]rainwashing is made possible by isolating individuals from the supports and rewards of their previous milieu. This isolation results in hypersuggestiblity and increased receptivity to reinforcement of new values and behaviors. The only validation of the person's worth is that offered by the individuals enforcing the isolation. Inconsistent, confusing, threatening treatment, interspersed with kindness, produces an effect similar to the submissive, overdependent behavior exhibited by a child of inconsistent parents." 1093 There have been many American cases which have acknowledged this link. See Missouri v. Edwards 60 S.W.3d 602 [Edwards] (where the court comments, at 613, that there "is no easy answer to why battered women stay with their abusive husbands. Quite likely emotional and financial dependency and fear are the primary reasons for remaining in the household. They feel incapable to reaching out for help and justifiably fear reprisals from their angry husbands if they leave or call the police. The abuse is so severe, for so long at time, and the threat of great bodily harm so constant, it creates a standard mental attitude in its victims. Battered women are terror-stricken people whose mental state is distorted and bears a marked resemblance to that of a hostage or a prisoner of war. The horrible beatings they are subjected to brainwash them into believing there is nothing they can do. They live in constant fear of another eruption of violence" [emphasis in original]); Kansas v. Hundley, 693 P.2d 475 (1985) [Hundley] (where the court notes, at 479 and 480, that this case was a "textbook case of the battered wife, which is psychologically similar to hostage and prisoner of war cases . . . Battered women are terror-stricken people whose mental state is distorted and bears a marked resemblance to that of a hostage or a prisoner of war. The horrible beatings they are subjected to brainwash them into believing there is nothing they can do. They live in constant fear of another eruption of violence. They become disturbed persons from the torture.") 198 Mega et al. note that the batterer attempts to maintain power over his victim by using

'"brainwashing tactics' similar to those used on prisoners of war, hostages, or members of a cult."1094

In short, they note that:

[c]ommon features of brainwashing include isolation, humiliation, accusation, and unpredictable attacks. The abusive environment produces real and anticipated fear, which contributes to the battered woman's belief that her situation is hopeless and that she must depend on her abuser. She develops coping strategies to deal with her oppressive environment, but eventually exhibits symptoms of 'battering fatigue,' similar to the battle fatigue of soldiers in combat who, like battered women, live in fear of being killed or severely injured.1095

This creates an environment of fear that is ever-present in the life of the battered woman which contributes to her belief that "her situation is hopeless and that she is dependent on her abuser."1096

Browne notes that battered women are like other victims of trauma, and that the long-term reactions may be to become "dependent and suggestible, and find themselves unable to make decisions or to function alone."1097 This model is seen in the case studies of battered women.

Okun has also studied the links between these populations, noting that the "battered woman's situation obviously resembles that of a prisoner subject to thought reform. Like brainwashed captives, battered women are subjected to verbal abuse, beatings, other forms of physical abuse, and to confinement or imprisonment."1098 Okun also states that declarations of guilt are common in POW's are also forced by the batterer upon his victim. Okun explains that the "batterer coerces a false confession from the battered woman in order to justify or to rationalize his assault of her. Often this

1094 Mega et al., supra note 956 at 260. 1095 Ibid. 1096 Ibid, at 261. 1097 Browne, supra note 945 at 123. Browne notes, at 125, that "[pjarallels also exist between the principles of brainwashing used on prisoners of war and the experiences of some women in battering relationships. Key ingredients of brainwashing include isolation of the victim from outside contacts and sources of help, and humiliation and degradation by the captor; followed by acts of kindness coupled with the threat of a return to the degraded state if some type of compliance is not obtained. Over time, the victims of such treatment become apathetic, sometimes react with despair, and may finally totally submit." 1098 Okun, supra note 268. 199 involves her confessing nonexistent extramarital sexual contacts." The batterer often forces the victim to agree that she is responsible for her abuse. Okun notes that "[a]ny time that a battered woman attempts to mollify her abuser by apologizing and claiming her own fault for his abuse of her, this can be viewed as identical in kind to confessions elicited in brainwashing. These false confessions by woman abuse victims can be induced by the batterer through physical, emotional, or economic coercion, or through a mixture of the above."1100 Clearly, it is important to distinguish between battered women who simply confess to fictitious events to save themselves from beatings in the short-term, and women who actually have thoughts implanted into their psyche which they carry with them in the long term.

Okun summarizes that there are many similarities between the battered woman and the prisoner of war:

In both situations a male captor or set of captors subjects the prisoner to enforced confinement involving a regimen of physical brutality and violence, imposed physical hardship, dehumanization, and verbal and emotional abuse. The threat of the victim's death is usually presented by the captor in word and/or deed. Escape is either literally impossible, or very nearly so, or else escape is the most dangerous of all the prisoner's alternatives. Throughout both the thought reform and woman abuse ordeals, the captor portrays himself as utterly laudable, worthy, and inviolable, while demonstrating to the victim that she or he is entirely guilty, worthless, and eminently violable.

Ibid, at 116-17. Okun, at 117, cites an actual example, stating, "Kellie recounted how she had been beaten and interrogated by her husband for at least four hours. He demanded she confess to having had sex with a mutual friend of theirs. She truthfully insisted that she had not had any extramarital sexual contacts, even though she was beaten almost continually for her refusal to confess. When her husband took out a sawed-off shotgun, loaded it, and demanded again that she own up to this imaginary sexual affair, she finally gave in and confessed in fear for her life. He continued to interrogate her at gunpoint, forcing her to fabricate details of her nonexistent tryst, especially specific sexual acts. Sixteen months after this interrogation ordeal, Kellie's husband would still cite her false confession to justify beating her." 1100 Ibid, at 117. Okun notes, at 117, that "[bjattered women can be coerced into taking blame in order to dissuade police officers from arresting the abuser. Especially if witnessed by a third person, false confessions can later be used against battered women in civil suits concerning divorce, custody and property settlements, child visitation rights, and damages. False confessions later recanted by the victim can be used to establish her unreliability as a witness in civil or criminal justice proceedings. Perhaps most important, confessions of this sort can be used to subvert the battered woman's reputation among her closest friends and family." 1101 Okun, supra note 268 at 132. 200 Okun notes that there is a "shocking similarity between the specific procedures and techniques of thought reform and woman abuse."1102 He notes that the:

intended results for both thought reform and woman abuse are also similar. Thought reform is intended to produce a psychological breakdown so that the prisoner becomes malleable . . . brainwashing him into compliance with his captors. In woman abuse, the process involves a male captor (the batterer) breaking a woman's spirit and bending her to his will. That the purpose and result of woman abuse may not be consciously premeditated, while thought reform was a carefully conceived procedure, is irrelevant to the aim and usefulness of the present discussion. What is important here is the chilling overall similarity of woman-battering to brainwashing.1103

Okun concludes that it has become "compellingly - though terrifyingly - obvious that some conjugal relationships or families resemble a prison or concentration camp or torture chamber more than they exemplify the usual positive connotations of the words 'couple' or 'family.'" 104 This link between battering and torture is unsettling. More recently, this category of battered woman has been described as the "coercively controlled battered woman."1105 Ruth Jones advocates that these coercively controlled women do not fit within the current discourse on battered women because the studies

"suffer from one important flaw: the empirical data upon which they are based ignore battered women who are not actively seeking help." ] This is an important note on the research as the brainwashed battered woman may not see any means of escaping her situation and may not actively seek assistance.

There have been those who were sceptical of BWS, but it has still found widespread acceptance within the law. This recognition goes to the study of how determined choice can be recognized.

Ibid. Okun notes that better understanding of this similarity could be useful to those who think that conjugal relationships should stay together despite the problems. He notes, at 133 that these "individuals might change their priorities and their policy preferences if they learned that sometimes 'preserving the family' amounts to aiding and abetting the brainwashing process of coercive control." 1104 Ibid, at 136. Okun notes, at 137, that awareness of this reality for many is "important to halting domestic abuse, however. If blinded by the positive connotations of family to its potential for torture and coercive control, helpers and policy makers will be, at best, ineffective in halting family violence, and they more likely will unintentionally help perpetuate abuse." 1105 Jones, "Guardianship", supra note 982 at 609. 1106Ibid, at 613. 201 Okun also notes some important differences between brainwashing and battering. He argues that

a "battered woman generally will not have a strong inclination not to cooperate with their

husband/partner . . . Thought reform prisoners, subjected to imprisonment and abuse by adversaries in

a foreign land, would generally feel more motivated than battered mates to resist their coercive

controllers."1107 He also notes that another key difference between the two situations is that "[v]erbal,

physical, and sexual humiliations from a husband or lover take on an enormous impact that similar

behavior by a foreign adversary would achieve with greater difficulty, if at all. The fact that the

batterer often is simultaneously the most rewarding and most dangerous person in the battered

woman's life poses tremendous psychological difficulties for the victim."1108 The addition of the

intimate partner relationship makes the situation more complex.

Brainwashing by an abuser can be just as devastating as more traditional brainwashing. Taylor

notes that:

a skilled abuser can use every trick in the influence technician's repertoire, from authority to commitment traps to sheer brute force, building up even an initially small inequality in power into an imbalance so huge that the abused partner in effect becomes a slave. Such abusers achieve a degree of control over their victims which is closer to the traditional idea of brainwashing than any situation mentioned so far, with the possible exception of the most extreme cults. All that is required is the imbalance of need whereby the victim rates her partner's 'love' more highly than he rates hers, and is willing to compromise in order to keep him happy . . . The abuser will take care to act as if he is superior in whatever domain she respects: if she is proud of her intelligence, he will be cleverer; if of her salary, his will be bigger (or else he'll find a good reason why it isn't).1109

Walker also discussed the use of mind control on the battered woman. She described the subjects in her study as indicating they had "ways they learned to keep control of their own minds, recognizing that the batterer had the ability to control their bodies. They let the batterers think they were stupid or suggestible and appeared to conform to his wishes. Sometimes, despite these efforts at only making believe, his mind control techniques were successful. For some of the women who kill, however, their

1107 Okun, supra note 268 at 119. imIbid. 1109 Taylor, supra note 46 at 86-87. 202 violence is a desperate attempt to keep him from gaining total control of their minds, too."1110 These attempts at power domination lead to a situation which can be described as brainwashing.

In the ultimate test of brainwashing, those who are battered often come to see their batterer as their protector in a situation very much like Stockholm Syndrome. As Herman explains, "[s]urvivors of domestic or political captivity often describe occasions in which they were convinced that they would be killed, only to be spared at the last moment. After several cycles of reprieve from certain death, the victim may come to view the perpetrator, paradoxically, as her savior."1111 Again, as seen with prisoners of war, the battered woman is often under the complete control of the batterer in that the "perpetrator supervises what the victim eats, when she sleeps, when she goes to the toilet, what she wears. When the victim is deprived of food, sleep, or exercise, this control results in physical debilitation."1112 Again, what many do not understand is that the hope of a "meal, a bath, a kind word, or some other ordinary creature comfort can become compelling to a person long enough deprived."1113 Martin Symonds has called this kind of co-operative dependence on a captor and resulting terror "frozen fright."1114 Symonds says those exposed to terror exhibit a "basic anxiety" which "causes adults to set aside recently learned experience and to respond instead with the early adaptive behavior of childhood for survival" which he terms "traumatic psychological infantilism."1115

Symonds claims that "traumatic psychological infantilism compels victims to cling to the very person

Walker, Syndrome, supra note 948 at 50. 1111 Herman, supra note 400 at 77. 1112 Ibid. Herman goes on to note at 78 that "sexual and domestic prisoners frequently describe long periods of sleep deprivation during sessions of jealous interrogation as well as meticulous supervision of their clothing, appearance, weight, and diet." un Ibid, at 78. 1114 Martin Symonds, "Victim Responses to Terror" in Frank M. Ochberg & David A. Soskis ed., Victims of Terrorism (Boulder, CO: Westview Press, 1982) 95 at 98 [Symonds]. 1115 Ibid, at 99. 203 who is endangering their life. It accounts for the obedient, placid, compliant, and submissive behavior

seen in frozen fright."1116

Isolation is also a key component of this cycle of violence filled with "jealous surveillance, such

as stalking, eavesdropping, and intercepting letters or telephone calls, which results in solitary

confinement of the battered woman within her home."11 7 Again, these moves are not made in large

steps but rather in "small symbolic concessions" which "reluctantly made . . . slowly and

imperceptibly destroy their ties to others." Some have noted that the relationship of the battered

woman and her abuser is much more difficult to navigate than that of the hostage and hostage-taker.

In the hostage situation, the hostage is "taken prisoner by surprise. She initially knows nothing about

the captor, or she regards him as an enemy ... In domestic battering, by contrast, the victim is taken

prisoner gradually, by courtship."1119 This initial attempt at power is seen as a "sign of passionate

love. She may at first feel flattered and comforted by his intense interest in every aspect of her life.

As he becomes more domineering, she may minimize or excuse his behaviour, not only because she

fears him but also because she cares for him."1120

Okun also notes the deprivation that is similar in both the prisoner of war and the battered woman. He notes that "[inadequate food, clothing, shelter, heating, and medical care are considered

neglect when they occur in families . . . More often than not, this is not a matter of poverty . . .

Perhaps the most common pattern is for the batterer's alcoholism to exhaust the couple's or family's

Ibid. Symonds says, at 98, that he saw frozen fright when interviewing an "8 lA year-old incest victim. During our interview, she was bright, vivacious, talkative, and very cooperative. Afterwards, when I said she could go, this youngster took a deep breath, sighed heavily, and said, "I thought I would never get out of here alive." 1117 Herman, supra note 400 at 80. ""Ibid m9Ibid. at 82. 1120 Ibid. Herman also notes, at 82, that since many "women derive pride and self-esteem from their capacity to sustain relationships, the batterer is often able to entrap his victim by appealing to her most cherished values. It is not surprising, therefore, that battered women are often persuaded to return after trying to flee from their abusers." 204 1121 finances, at times to the point of literally starving the battered woman and her children." Okun

also discusses sleep deprivation which is a basic tool used against prisoners of war. He notes that

most "battered women suffer loss of sleep. Anxiety-induced insomnia is common; the batterer also

often takes steps to prevent his mate from sleeping. Sleep deprivation procedures include lengthy

harangues and interrogations into the night; making loud noise with stereos, television or machinery;

threats of battering or murder if the woman falls asleep; and enforcement of the expectation that the

battered woman be awake when her mate returns home."1122 Many women are also subjected to

unrealistic work requirements (including child care and house work) that will drive them to the point 112^ of exhaustion.

Teresa Ramirez Boulette and Susan M. Andersen wrote an article on the topic of brainwashing

and the battered woman in 1985 before the brainwashing discourse disappeared. 124 Boulette and

Andersen argue that the "coercion and deception" used by abusive men is akin to the mind control used by cult systems.1125 They seek to identify a form of '"mind control' or 'brainwashing' - that is, a set of potent social influence techniques levied against the victimized female by the abusive male" which they acknowledge has also been called "marital brainwashing syndrome."1126 The authors note that this "familial pattern is characterized by many of the same features of psychological coercion and deception that may be used to distinguish religious or political cults from other tightly knit sociaL systems in society."1 27 The coercion felt within the confines of a relationship is distinct from these other types of control.

1121 Okun, supra note 268 at 121. n22Ibid. at 122. 1123 Ibid. 1124 Their focus was on low-income couples. 1125 Teresa Ramirez Boulette & Susan M. Andersen, '"Mind Control' and the Battering of Women" (1985) 21 Community Mental Health Journal 109 at 109 [Boulette & Andersen]. meIbid. at 110. 1127 Ibid. 205 The authors identify that the same elements can be seen in both phenomena including "isolation and the provocation of fear; alternating kindness and threat to produce disequilibrium; the induction of guilt, self-blame, dependency, and learned helplessness." 128 These elements arise repeatedly in both the context of BWS and brainwashing. Boulette and Andersen also draw the link between these elements and cults, noting that both are expected to give up "all that is familiar, prohibitions against free expression and dissent, the regular mobilization of fear and guilt," and are instead expected to establish an "omnipotent master who demands self-sacrifice."1129 The authors even suggest that those battering situations that involve "social isolation, threat of harm, confusion and guilt, love that is strictly contingent on certain actions . .. and deception" warrant classification as "cultic systems."1130

B. Marie Brady also seeks to explain the connection between mind control and the battered woman in that "mind control is the standard of abuse in relationships and is considered merely a variation to the battering phenomenon."1131 The debilitating results of mind control through battering include techniques such as described above. 132 Brady further explains that "cultic" systems are used as "an omnipotent master demanding self sacrifice, social isolation, threat of harm, confusion and guilty, and 'love' contingent on actions lying, and limiting of options. The dominant techniques of abuse are implemented by what are known as the 'three D's' of abuse: Debility, Dependency, and

Dread." Brady explains that, with the use of debility, dependency and dread the battered person experiences "paralyzing fear, terror, constant anxiety, apprehension, vigilance, feelings of impending doom, which result in panic disorder, major recurring depression, dysthemic disorder, and somatization disorder, in addition to physical trauma."1134

1128 Ibid. These are exactly the elements found by Lifton. 1,29 Ibid. U3°Ibid. 1131 Brady, supra note 66 at 18. 1132 Ibid. imIbid. 1134 Ibid, at 18. 206 The results of these totalistic controls are "pathological and degrading interactions, which are

normally progressive in degree of abuse."1135 Brady also characterizes the effects of repetitive abuse as severe, and cites that in one study 78% of 6000 victims interviewed had partial to "total amnesia in relation to the traumatic experience."1136 BWS in particular is considered in the context of ritual abuse, which Brady describes as initiating a "love/hate duality in the creating of conflict."1137 Brady describes the progressively violent relationship that results in the modification of the victim's "actions to cease the abuse and they hid the abuse from others creating 'invisible violence.' This was felt to be a 'face saving' strategy to maintain their own sense of self-identity."1138 This might assist the analysis that these women are under unique pressures that need to be defended and explained in the terms that one would use for a cult. Clearly, there are different levels of battering, and these women who are coercively persuaded to this level should be individually studied.

The authors identify the following ten factors that "differentiate battering that involves mind control from other types of battering."1139 Battering that involves mind control has the following aspects: (1) Early verbal and/or physical dominance - In the verbal/physical violence the male establishes himself as master which the woman interprets as being a "strong male."1140 (2)

Isolation/imprisonment - The male isolates the female from friends and family ("geographically and emotionally") while insisting on "escorting" her everywhere to weaken her supports and prevent an escape through a "more docile and influenceable spouse."1141 (3) Fear arousal and maintenance - The male incites fear in the woman by verbal and physical abuse ranging in severity from "holding his wife hostage for hours at knife-point, to locking her out of the house naked, forcing her onto a busy

1135 Ibid. 1136 Ibid, at 19. 1137 Ibid. imIbid. 1139 Boulette & Andersen, supra note 1125 at 111. 1140 Ibid. 1141 Ibid. 207 freeway, or simply leaving her to walk home alone at night."1142 (4) Guilt induction - The man blames

the woman for her abuse until she adopts this reasoning herself.1143 (5) Contingent expressions of love

- The abuser inculcates that if the woman does whatever her partner demands, she will be, even

temporarily, "loved." If she does not comply she will continue to be "degraded, devalued, and

maligned."1144 (6) Enforced loyalty to the aggressor and self-denunciation - There is often a belief

that the woman can "save" the man from his "irresponsibility, vulnerability, temper or alcoholism" as

she is the only one to understand him.1145 This is very similar to the feelings of POW's and those with

Stockholm Syndrome whose "pathological attachment is associated with the captive's terror and

gratefulness for not being further damaged or killed."1146 (7) Promotion of powerlessness and helplessness - These factors are part of the cycle because the female is debilitated as her "isolation

effectively weakens her support systems; her chronic stress debilitates her; her failure to predict or control her abuse promotes learned helplessness; her husband's control over available monies impoverishes her; and the victim-blaming postures of helpers who believe in a just-world hypothesis promote further self-blame and powerlessness."1147 (8) Pathological expressions of jealousy -

Jealousy also enters the relationship through accusations against the wife even though there are often

"affairs" perpetrated by the male. He is jealous of all relationships that she has, even with other women. (9) Hope-instilling behaviors - Hope is kept alive in that the "beatings, the manipulation, and the sense of imprisonment will end if she pleads, cries, prays, endures, or sacrifices long enough."1148

The cycle of reinforcement of this belief assists in further adherence to her batterer.1149 (10) Required

1142 Ibid. ""Ibid U44Ibid. U45Ibid. 1146 Ibid. 1141 Ibid, at 112. 1148 Ibid. 1149 This characteristic of the batterer/battered relationship is very reminiscent of the testimony of Edward Hunter before the Un-American Activities committee. Hunter noted, Un-American, supra note 93 at 16, 208 secrecy - Secrecy is always a part of the relationship which is formed on "dominance and by

defensive, dictatorial control."1150 Shame reinforces the secrecy and the woman often blames alcohol

abuse or other external factors on her partner's behaviour. 151

Boulette and Andersen also discuss the risks of escape from this type of battering relationship.

They note that the feelings of "insecurity, lethargy and fear" are very similar to those of cult members

who are trying to escape.1152 For this reason leaving the batterer is often characterized by a return to

the abuse or a failure to leave as planned. The authors have found a pattern to the abuse when the

spouse attempts to leave a "cultic" spouse: First is a "cocky disbelief that the wife will leave; second

is a "confused searching" where the husband tries to find the spouse in a panicked fashion; third is

"bargaining" in which he attempts to convince her to return while professing his love;1153 fourth is

"pleading" where, on the failure of bargaining, he will beg for another chance followed by a brief

"honeymoon" period; fifth is "threatening" when the other stages have not been effective he will

threaten to kill her, her children, or friends and family; and finally, "revenge" is where he vows to

harm her and anyone who assisted in her escape, which often ends in violence against some or all of the parties involved.1154

Boulette and Andersen seek to explain this behaviour in terms of "coercive power" which

suggests that battering may be based on his "feelings of dependency on the targeted person and his

doubts about the sufficiency of his own power to influence this person. These feelings may then

that brainwashers "sought to remove a man's trust in his own side, and to convince him that he was being let down and even betrayed by his own country and relatives, especially by his wife or girl friend. The Reds sought to deprive him of all hope. Once they could accomplish this, they presented themselves to him as his new friends, as 'Big Brother,' who would always stand by him through thick and thin, who would always love him. The cruelties they had perpetrated on him they now interpreted as the discipline of a kindly father." 1150 Boulette & Andersen, supra note 1125 at 112. ""Ibid. 1152 Ibid. 1153 Ibid, at 113. 1154 Ibid at 113. 209 provoke hostility and anxiety and may lead the powerholder to strike out violently or to construct

other elaborate methods for gaining control. Thus, the battering males may be excessively dependent

on their mates and may feel insecure about their own worth, masculinity, and influence."1155 The

authors argue that out of these abandonment issues comes the hostility and anger toward a spouse.

The authors also discuss "social learning theory" in that the abuser was abused in the past, and they examine "role expectations" and personal vulnerabilities.1156 It is also theorized that using mind control in this situation can create a result that women from "any number of different backgrounds might be seduced and retained within. Such is the power of the cultic techniques of mind control that may be adopted by the powerholder in a relationship to influence the decisions and outcomes of his partner."1157 Thus, the compliant victim can be anyone.

The authors define this as "marital mind control" which is a "psychiatric condition affecting both male and female participants and one that typically involves physical violence but that may primarily involve painful emotional abuse."1158 This concept has not been revisited much in subsequent literature. These three states (DDD) are also "remarkably similar to what is experienced by victims of chronic battering and by victims of rape."1159 Boulette and Andersen describe the reaction as

"paralyzing terror, constant anxiety, apprehension, vigilance, and feelings of impending doom."1160

The authors note that denial is often a "coping mechanism" of these women and that they "rarely express anger over their plight and typically report multiple somatic and other symptoms that fit within the diagnostic categories of panic disorder, major recurrent depression, dysthymic disorder, or somatization disorder."1161 The authors advocate that separation of the participants is essential "not

1155 Boulette & Andersen, supra note 1125 at 114. Ibid. US1 Ibid, at 114-15. I158/6/ct at 115. U59lbid. moIbid. 1161 Boulette & Andersen, supra note 1125 at 115. 210 only for treatment but for the woman's survival," yet ironically this may expose her to an "ever-

increasing probability of violence."1162 The husband's need to control may necessitate that the woman

stay away on a long-term basis or possibly permanently and that resources are used to facilitate

escape.1163

c. "Conjugal Terrorism"

Some researchers have found that the term "battered woman" does not capture thoroughly

enough the experiences of these women. Steven M. Morgan has coined the term "conjugal

terrorism." He notes that "conjugal terrorism is a term describing the behavior of the violent

husband whose attitudes and behavior bear remarkable resemblance to those of the political terrorist.

Conjugal terrorism is the use or threatened use of violence in order to break down the resistance of the victim to the will of the terrorist."1165 He explains that, like a political terrorist, the conjugal terrorist feels "morally superior to those he associates with . . . [and] believes he must assume the moral responsibility for his wife.""66 The explanation for this is obvious since the "conjugal terrorist uses indiscriminate, ruthless violence and also feels exempt from the law because the criminal justice system does not make him accountable for his acts."11 7

Okun explains that this "severe external threat is provided by the coercive controller upon whom the victim's survival and/or well-being depends. In woman abuse, the batterer functions as a coercive controller." Okun cites Serum as believing that "anyone - no matter how strong their pre-existing personality - breaks down under the influence of coercive control."1169 Okun explains that others use

1162 Ibid. ""Ibid 1164 Morgan, supra note 946. 1165 Ibid, at 30. u66 Ibid, at 31. U61lbid. 1168 Okun, supra note 268 at 87. 1169 Ibid. See Okun, supra note 268 at 87 where he notes that Serum draws upon the Bettelheim studies of inmates in German prison camps, and finds that there are 10 common features among battered women and 211 this guilt, lack of self-esteem and fear of escape to "support the concepts of masochism or

predisposing psychopathology in victims of conjugal abuse." Okun summarizes the tools used by

the batterer as:

imprisonment or confinement; social isolation; beatings; torture; starvation or malnourishment; sleep deprivation; threats of murder or of torture; random and unpredictable leniency, coupled with equally unpredictable punishment; humiliation and revilement; complete prescription of the use of time and space; manacling or other forms of bondage; coerced false confessions, and other methods of directly inducing guilt such as denunciations of the victim to authorities or significant others.1171

Okun explains that this isolation "increases the victim's suggestibility to behave as directed by the

coercive controller" and that dependency is increased through this technique.1172 He notes that, unlike

the battered women who experience this same process, the "studies of brainwashing do not seriously

question the effectiveness of these techniques, nor do they seek to discover personalities strong

enough to withstand brainwashing. No hypothetical attribution of masochism or weakness is made

against prisoners who succumbed to brainwashing techniques. Rather, the brainwashing process is

taken as sufficient explanation for its psychological impact."117 This understanding is not extended to

the battered woman.

Okun asks, "[W]hy are battered women subjected to almost identical conditions as brainwashed

prisoners believed to be masochists and provocateurs, while the prisoners are not so accused?"1174 He

concludes that "ignorance of the severity and sophistication of woman-battering obscures for many

camp survivors. He notes that they include: "1) guilt feelings, with an attendant sense of deserving the victimization; 2) significant loss of self-esteem; 3) detachment of emotion from incidents of severe violence, and extreme reactions to trivial incidents; 4) failure to observe the controller's rules because of the arbitrariness of punishment; 5) extreme emotional reactions; 6) difficulty planning for the future and delaying gratification; 7) fear of escaping the coercive control situation; 8) child-like dependency on the controllers, and identification with them; 9) imitation of controllers' aggressiveness, and adoption of their values; 10) maintenance of the hope that the controller is kind and just." 1170 Okun, supra note 268 at 87. 1171 Ibid. U72Ibid. m Ibid, at 88. imIbid. 212 observers the similarities between the treatment of hostages, brainwashed prisoners, people interned in

concentration camps, and battered women."1175 In addition, marriage or entering into this conjugal

relationship is deemed to be wholly voluntary; this is not the case for the other subjects.1176 He also

concludes that "[ajnother major reason that battered women are accused of masochism and emotional

immaturity and may be viewed as deserving their victimization - while the predominantly male

victims of brainwashing are not - is that they are women."1177 He notes that "psychoanalytic precepts

assume from the outset that women are masochistic. Other sexist attitudes also reinforce a negative

evaluation of battered women. These include values that hold women responsible for the success of

their marriages, perceptions of women as childish and immature, and the tradition of blaming women

victims that is best demonstrated in connection with popular attitudes about rape."1178 Although some

of these ideas have changed in the 22 years since this was written, many of these biases remain today.

Okun argues that unlike Walker's cycle of violence, "the coercive control interpretation makes no

acknowledgment whatsoever of the importance of predisposing factors existing in the battered woman

before marriage/cohabitation. According to the literature on brainwashing, no predisposition to

succumb to brainwashing is necessary or even relevant . . . The coercive control model avoids

conclusions that blame the victim or portray her as inviting abuse."1179

1175 Okun, supra note 268 at 88. 1176 Ibid. 1177 Ibid. See also Jones, "Guardianship", supra note 982 at 614, who notes that the "first generation of feminist researchers had to challenge early research and the widespread belief that battered women were masochists or somehow caused their own abuse. Their findings dispelling these notions provided justification for aggressive state intervention against abusers. The concern that feminist research emphasizing the passivity of battered women would result in victim blaming, which had resulted from the initial research on battering, steered more recent scholarship away from examining the coercive elements of abuse that prevent empowerment. In spite of these limitations, these first generation studies and the theories they spawned explain the psychological dynamics of physical and emotional abuse and provide insight into the psychological of coercively controlled battered women." 1178 Okun, supra note 268 at 88. 1179 Ibid, at 88-89. Okun does acknowledge, at 89, that a problem with the coercive control model is that "it is vague about the minimum criteria that determine whether a situation indeed involves coercive control." 213 d. Battle Fatigue

Sargant studied the Blitz during WWII, its connection to Pavlov, and subsequently to humans.

Sargant observed that "[o]nce a state of hysteria has been induced in men or dogs by mounting stresses which the brain can no longer tolerate, protective inhibition is likely to supervene."1180

However, most interestingly Sargant notes that in "human beings, states of greatly increased suggestibility are also found; and so are their opposite, namely, states in which the patient is deaf to all suggestions, however sensible."1181 Sargant makes the connection to troops, saying that hysteria "has produced sudden and unexplained panics in most wars; often among troops famous for their battle- record." Sargant noted that even among the "finest fighters of the ancient world," after "ten to thirteen years of continuous campaigning in Gaul they also could break down suddenly."1183 Most important to the study of battered women Sargant noted that individuals were "temporarily able to accept new and sometimes strange beliefs without criticism."1184 He notes that the result of induced fear can be judgement which is impaired and sugesstibility.1185

Some commentators have noted that what is experienced by battered women over the long term of the abusive relationship is what was described in soldiers as "battle fatigue."1186 Grant's 1995 research has found that battered women describe the violence "as a blur, one episode melting into the next. The women repeatedly emphasized the psychological abuse and torment they experienced and yet minimized the impact that type of abuse had on their functioning. The majority of the women spoke in terms of their partner's needs and not about their own needs"1187 Mega et al. note the fatigue,

1180 Sargant, Battle, supra note 73 at 49. 1181 Ibid. m2Ibid. xmlbid. m4Ibid. 1185 Ibid, at 128. 1186 Mega et al., supra note 956 at 261. 1187 Christine A. Grant, "Women Who Kill: The Impact of Abuse" (1995) Issues in Mental Health Nursing 315 at 321-22 [Grant, "Women"]. 214 saying that they were '"anxiety-ridden, confused, depressed, suicidal, helpless, and full of guilt and

1 1 CO

shame.' In other words, battered women are not 'sick' but they are in a 'sick situation.'"

Browne has noted that battered women fit into the reactions seen in trauma victims. She notes

that the "women in these situations often attempted to appease the aggressor by compliance and to

work through the relationship to obtain leniency and safety. Their primary concern during assaultive

incidents was to survive. Their main concern after abusive incidents was to avoid angering the partner

again."1189 Browne explains the battered woman's incomprehensible compliance because the

"battered women's affective, cognitive, and behavioral responses are likely to become distorted by

their intense focus on survival."1 Mega et al. note that "[h]ints of impending danger often increase

a soldier's - or a woman's - feeling of terror and impair the ability to function. A soldier hearing a

distant explosion, anticipates that the enemy will soon be near. A battered woman, hearing her

abuser's footsteps, the rate of his speech, or the way he looks at her, is alert to potential danger. These

stimuli are ever present, constantly reminding both soldiers and battered women of their vulnerable

position."1191 Mega et al. have named this reaction, and its resulting incapacitation in the battered

woman, "battering fatigue."1192

e. Torture1193

It is not difficult to categorize the acts perpetrated on some battered women as torture. Okun has

noted that:

1188 Mega et al, supra note 956 at 261. 1189 Browne, supra note 945 at 125. 1190 Ibid. 1191 Mega et al, supra note 956 at 263. 1192 Ibid. 1193 Rafael Gumucio, "My Tortured Inheritance" (2004) New York Times A27 (December 13, 2004) (referring to the Pinochet regime in Chile) [Gumucio] who notes that "Torture is an act that stems not from savagery but from extreme cultural and scientific sophistication. It makes the survivors feel that they are among the privileged, traitors to the cause. It kills people's spirits but keeps their bodies alive, transforming all those who escape it into zombies in the service of another despicable torturer: fear. It is a gruesomely effective tool, for it knows just how to manipulate imagination and paralyze instincts for rebellion or resistance." 215 [s]ome torture techniques used against battered women are chillingly creative and sophisticated in their morbid, sadistic fashion. Apart from beatings, common methods of torture in woman abuse include cigarette burns; twisting limbs to, or past, the breaking point; submerging the victim to near drowning; choking and suffocating; bamboo or wood chips under the fingernails; mutilation with knives or sharp instruments; branding; introducing painful irritants to the eyes. All of these techniques are reminiscent of espionage fiction or of factual accounts of torture under political repression. To shelter workers, American homes at times seem to form a sort of "Gulag Archipelago" in which women and children are subjected to myriad atrocities.1194

Okun also describes the sexual abuse that also forms part of the torture of battered women. He argues that battered women are "frequently subjected to conjugal rape and/or other sexual abuses that amount to physically debilitating torture."1195 Okun has noted the technique of the "creation of disunity and distrust among prisoners by use of information" which "has its analogies in woman abuse."1196 He notes that the "batterer may play the children's interests against those of the battered woman in order to foment divisiveness."1197 Okun describes that, for example, "the batterer may assault or sexually molest the children in order to prove that their mother is an inadequate protector to the distrusted.

Children can be enticed or coerced by the batterer to act as informants - even as false witnesses - against the battered woman. Similarly, the battered woman can be coerced into selling out her children's interests in favour of protecting herself." Going beyond the battering situation envisioned by Walker, these acts are arguably torture. The battering of women has begun to be recognized as a world-wide human rights abuse. In their "Declaration on the Elimination of Violence

Against Women" Article 1 the United Nations declared in 1993 that violence against woman is "any act of gender-based violence that results in, physical, sexual or psychological harm or suffering to

1194 Okun, supra note 268 at 123. 1195 lb id. U96Ibid. at 125. 1197 Ibid. U9*Ibid. 216 1

women, including threats of such acts, coercion, or arbitrary deprivations of liberty, whether occurring

in public or private life."1199

Evan Stark has written extensively on the role of coercive control in the lives of women. He has

noted that it is not just physical control that keeps many battered women from leaving. He terms the

captivity that they feel "coercive control."1200 He notes that coercive control: remains officially invisible despite the fact that it has been in plain sight at least since the earliest shelter residents told us in no uncertain terms that 'violence wasn't the worst part.' Cognitive psychologists in the late 1970's and 1980's tried to capture what these women were experiencing by comparing it to 'coercive persuasion,' brainwashing, and other tactics used with hostages, prisoners of war, kidnap victims, and by pimps with prostitutes. Although this view was largely ignored by academic researchers, the understanding of abuse as coercive control was developed in popular literature and incorporated at least implicitly into how various practitioners approached the problem.1201

Stark notes that the American Medical Association (AMA) defined abuse as having "coercive

behavior that may include repeated battery and injury, psychological abuse, sexual assault, progressive

social isolation, deprivation, and intimidation perpetrated by someone who was or is involved in an

intimate relationship with the victim."1202 Stark recognizes that despite this recognition of something

akin to brainwashing in the life of the battered woman, "coercive control remains marginal to

mainstream thinking. It is rarely acknowledged in policy circles, has had almost no impact on

domestic violence policing or criminal law, and commands no special funding."1203 Aptly, Stark notes

that so many basic rights are taken away.1204 Stark notes that coercive control "entails a malevolent

1199 Declaration on the Elimination of Violence Against Women, GA Res. 48/104, U.N. Doc. A/RES/48/104 (1993) [Declaration]. 1200 Stark, Coercive, supra note 269. 1201 Ibid, at 12. 1202 Stark, Coercive, supra note 269 at 12 citing the American Medical Association, "Diagnostic and Treatment Guidelines on Domestic Violence," (1992) 1 Archives of Family Medicine 39. 1203 Ibid, at 13. 1204 Ibid, at 15. He notes that "entrapment of women in personal life is also hard to discern because many of the rights it violates are so basic - so much a part of the taken-for-granted fabric of the everyday lives we lead as adults, and so embedded in female behaviors that are constrained by their normative consignment to women - that their abridgement passes largely without notice . . . women who had to answer the phone by the third ring, record every penny they spent, vacuum 'till you can see the lines,' and dress, walk, cook, 217 course of conduct that subordinates women to an alien will by violating their physical integrity

(domestic violence), denying them respect and autonomy (intimidation), depriving them of social

connectedness (isolation), and appropriating or denying them access to the resources required for

personhood and citizenship (control)."1205

f. Explanations for Why Brainwashing the Battered Woman is Effective

According to Delgado, the process of conversion is one that proceeds step by step. He notes that

a "defining feature of psychological totalism that the totalist demands of the victim both behavioral

and attitudinal conformity. These twin demands reinforce each other; the criminal acts serve to

increase the psychological distance between the victim's past and present life, while the ideological

indoctrination makes future criminal acts more acceptable to the victim."1206 This is not a situation

where the individual asks for full compliance to horrific acts from the first instance, but rather trains

the brainwashee to slowly accept the acts on a continuum until they feel trapped and powerless to

resist.1207 The following four concepts help explain why the slow conversion of the brainwashed

victim becomes more effective over time.

i. Stanley Milgram and Authority

For many, it is exceedingly difficult to understand how someone who had never before

committed a crime could be convinced to do so by a spouse, especially to the extent of harming a third

party. However, perhaps this phenomenon is best demonstrated in the classic study by Stanley

Milgram, where he persuaded ordinary American students to use electric shocks on strangers behind

glass. Volunteers were assigned to either the role of "teacher" or "learner," but what the individuals

talk, and make love in specific ways and not in others, always with the 'or else' proviso hanging over their heads." 1205 Ibid. 1206 Ibid, at 362. 1207 See section below on battered women whose crimes are used by the batterer against her even though he was the one who coerced the crime to occur. 218 1208 did not know was that the learner was not another volunteer but a control in the experiment.

Electric shocks were to be administered by the teachers in response to an incorrect answer, and the

shock would increase to a maximum of 450 volts. The subjects were told that the learner would not be harmed by this administration.12 Winn explains the responses of the learner to the shock:

"[W]hen supposedly receiving a 75 volt shock, he grunted in discomfort; at 120 volts, he complained; at 150 volts, he demanded to be released from the experiment; at 285 volts, he emitted an agonised scream and then nothing was heard from him."1210 The subject was kept in a separate room with no 1211 way of knowing what happened to the "learner."

Taylor notes that Milgram not only used the authority of the psychologists who were instructing the students to shock the subject, but the experiment also used "commitment and consistency as well."1212 Taylor explains: Although the "level of supposed electric shock was initially very low; it increased by degrees to dangerous levels as the experiment progressed. So the initial commitment to participate in the experiment, and even to step through the first few levels of shock, was relatively easy one to make. But every time a participant agreed to increase the shock level he or she fell deeper into a commitment and consistency trap which made it harder and harder to refuse."

The teachers were given "prods" to convince them to advance to the next level of discipline. They were told "1. Please continue, or, Please go on. 2. The experiment requires that you continue. 3. It is absolutely essential that you continue. 4. You have no other choice. You must go on."1214 If the subject resisted all of these prods the experiment was over.1215

1208 Winn, supra note 59 at 46. 1209 Ibid. moIbid. miIbid. 1212 Taylor, supra note 46 at 73. 12,3 Ibid. 1214 Stanley Milgram, Obedience to Authority (New York: Harper Torchbooks, 1969) at 23 [Milgram] [emphasis in original]. 1215 Winn, supra note 59 at 103. 219 In the Milgram experiment nearly two-thirds of the participants complied with the demands to

shock up to a hypothetically lethal dose. Milgram argues that this is "perhaps, the most fundamental

lesson of our study: ordinary people, simply doing their jobs, and without any particular hostility on

their part, can become agents in a terrible destructive process. Moreover, even when the destructive

effects of their work becomes patently clear, and they are asked to carry out actions incompatible with

fundamental standards of morality, relatively few people have the resources needed to resist

authority."1216 If someone who is not subject to the brutal violence (routinely experienced by the

battered woman) can commit these acts of violence against a stranger, it is not hard to imagine the

same from the terrorized battered woman.

ii. Bonding Theory

Another explanation is the type of bonding that occurs between the abuser and the abused which has been recognized for many decades. Mega et al. note that in:

1942, Anna Freud explained this type of behavior as 'identification with the aggressor.' This mental state has been compared to the 'Bettelheim Syndrome,' referring to those concentration camp inmates who coped psychologically with their traumatic environment by identifying with their guards in hopes of survival. Unable to change their situation they become depressed, showed little anger toward their captors, and did not try to escape. 17

There has been some research done on "bonding theory" in abusive relationships. One such study was conducted by Dutton and Painter. These Canadian psychologists conducted an experiment with 75 women who had recently left a battering relationship. Overall, the researchers found that there was

"support for the effect of relationship dynamic factors such as extremity of intermittent maltreatment and power differentials on long-term felt attachment for a former partner, experienced trauma symptoms, and self-esteem, immediately after separation from an abusive partner and again after a six

16 Milgram, supra note 1214 at 7-8. 17 Mega et al, supra note 956 at 262. 220 month interim."1218 Thus, there is scientific proof of this "attachment" felt toward the batterer in these types of relationships which theorists call "traumatic bonding."1219

These findings challenge the historic notion that one can only form attachments with positive acts, that "secure attachment was the result of a long term evolutionary development which rivalled

1220 feeding and mating in importance." Dutton and Painter find that this same sort of attachment can arise with "intermittent good-bad treatment." The cycle of violence traditionally shown to a battered woman strengthens this bond because at the beginning of the abuse, "the abusive incident appears to be an anomaly, occurring at a time of relationship novelty and optimism. This, coupled with its relative lack of severity and post-incident contrition by the man, operates to strengthen the affective attachment at a time when the belief has not yet formed that the abuse will be repetitive and inescapable."1222 By the time the victim realizes that she is trapped, "the traumatically produced 1223 emotional bond is quite strong."

There are two elements that combine to create this phenomenon: power imbalance, and intermittency of abuse. 4 Dutton and Painter describe the situation of battering as one where there is a "microcosm in which the subordinate individual feels powerless" and compares this to the sociological experiments that found that after only four days volunteers in a "prisoner" role were

"relegated to powerlessness in a simulated prison situation."1225 This situation of powerlessness can 1218 Donald G. Dutton & Susan Painter, "Emotional Attachments in Abusive Relationships: A Test of Traumatic Bonding Theory" (1993) 8 Violence and Victims 105 at 105 [Dutton & Painter]. 1219 Ibid. See also Schuller & Rzepa, supra note 952 at 48 who note that, according to Dutton & Painter, that this is a phenomenon where the '"development and course of strong emotional ties' that develop 'between two persons where one person intermittently harasses, beats, threatens, abuses or intimidates the other.'" Schuller & Rzepa note, at 48, that what "develops is a cycle that, eventually, results in a strong affective bond to the high power person." 1220 Dutton & Painter, supra note 1218 at 105. 1221 Ibid. U22Ibid. at 106. 1223 Ibid. n2Ubid. 1225 Ibid, at 107. The authors also note, at 107, that just as the victim feels powerlessness, the "dominator" as an "inflated sense of their own power." 221 form very quickly. This type of relationship is dependent on the batterer maintaining control and

power, and often the abuser will do anything to maintain this dynamic. The authors state that "in

romantic relationships, as well as in cults, power imbalances magnify so that the person's sense of

power or powerlessness feeds on itself. In the process, persons (or groups) become welded together to

maintain the psychological subsystem which fulfills the needs created ... by the power dynamic

itself."1226 Thus, creating this power imbalance can actually "serve to maintain the relationship

homeostasis."1227

The second feature of these relationships is the intermittency of abuse, just as described by

Walker,1228 which alternates between abuse and the "contrition phase" of the cycle of violence which

1229

is "comprised of promises to change, promises to not be abusive again, proclamations of love, etc."

Through this process, these abusive relationships can create very strong bonded relationships which seem to be most effective with intermittent abusive periods.1230 As Walker notes, these bonded relationships with batterers and their victims during the cycle of abuse "bind a battered woman to her batterer just as strongly as 'miracle' glues bind inanimate substances."1231 Herman has noted that this bonding phenomenon might result in an "intense, almost worshipful dependence upon an all-powerful, godlike authority. The victim may live in terror of his wrath, but she may also view him as the source

1226 Dutton & Painter, supra note 1218 at 107. 1227 Ibid. In her ground-breaking work, The Battered Woman, (New York: Harper & Row, 1979) [Walker]. 1229 Dutton & Painter, supra note 1218 at 107. 1230 Ibid, at 108. The authors review, at 108, studies which show that in both animals and infants, cruelty by a mother figure unexpectedly becomes more bonded despite violent and rejecting behaviour by the parent. The authors, at 108, cite H.F. Harlow & M. Harlow, "Psychopathology in Monkeys" in H.D. Kinnel, ed., Experimental Psychopathology (New York: Academic Press, 1971) 202 as noting that in these experiments rather than "producing experimental neurosis, we have achieved a technique for enhancing maternal attachment." Similarly, at 108, Dutton and Painter cite additional experiments by B. Seay, B. Alexander & H.F. Hadow, "Maternal Behavior of Socially Deprived Rhesus Monkeys" in (1964) 69 Journal of Abnormal and Social Psychology 345 at 353, which found that "a surprising phenomenon" in that there was a continuing attempt "by the infants to attach to the mother's body regardless of neglect or physical punishment." 1231 Walker, supra note 1228 at xvi. 222 of strength, guidance, and life itself."1232 She notes that many have described an "exclusive, almost

delusional world, embracing the grandiose belief system of their mates and voluntarily suppressing

their own doubts as a proof of loyalty and submission." 3 Thus, the woman ceases to see her abuser

as captor and more as saviour.

Dutton and Painter argue that traumatic bonding has a notable effect on trying to leave a

battering relationship. The authors note that the "attachment process" is like an "elastic band" which

stretches with time but "snaps" the woman back to her abuser as she "alters her memory for past

abuse, and her perceived likelihood of future abuse."1234 The authors note consistent findings studying those who leave an abusive relationship and there are 3 main predictors of whether the victim will permanently leave her abuser:

First, most studies indicate that economic independence contributes to the likelihood of women leaving abusive relationships. Second, the longer the duration of the relationship at the time of the woman being interviewed, the greater the likelihood of the woman returning to the abuser. Whether this indicates commitment, investment, or something else is not clear. Third, neither abuse in childhood nor severity of violence in the current relationship are reliable predictors of relationship breakup.1235

In the study by Dutton and Painter they conclude that "attachment, experienced trauma and lowered self-esteem constitute a syndrome of interrelated effects of abuse." Thus, traumatic bonding theory finds that even when a woman leaves the relationship this attachment may be exposed as the fear dissipates and she is "emotionally drained and vulnerable, and it was at these times in the past that the husband was present, contrite, and (temporarily) loving and affectionate. As the fear subsides and the needs previously fulfilled by her husband increase, an equilibrium point is reached where the woman

1232 Herman, supra note 400 at 92. 1233 Ibid. 1234 Dutton & Painter, supra note 1218 at 109. The authors note, at 109, that the factors that affect leaving the batterer and those who remain has more to do with economics than psychological issues. 1235 Ibid. m6Ibid. at 116. 223 may suddenly and impulsively decide to return." It is difficult for many to understand why a woman would return to this situation once she is successfully in a safe environment, but an understandable phenomenon in traumatic bonding theory, and a possible explanation why women would continue criminal acts for their batterer even though they are physically removed from the batterer's control. Dutton and Painter note that this "'undertow' back to the batterer with time from separation will be accompanied by an increase in positive memories of him, and a tendency to diminish memories of the severity of the battering."12 Traumatic bonding theory will be an important tool for explaining the criminal acts perpetrated by battered women, especially those victims of the sexual sadist.

The link between these hostages and battered women was noted by Jacobsen et al. in that:

Walker's early research on battered women was later expanded to include the psychological reactions to long-term abuse exhibited by hostages, prisoners of war, and victims of terrorism. One of these, the 'Stockholm Syndrome,' . . . include[s] identification by the captives with their captors as a defense or survival mechanism, the fear that the captives may also be hurt by rescuers, and empathy for the captors as human beings with problems, grievances, and a point of view. The theory explains that captives who feel in danger and who do not believe they can escape a situation unharmed will, as a means of survival, begin thinking in ways that seem incompatible with their situation, but which, when more closely examined, are actually emotionally and physically safer for them, because they are not antagonizing their captors.1239

Graham and Rawlings have noted that there are definite connections between these groups.1240 They note that the victim, thus, "takes on the world view of the abuser" allowing her own needs, or the

1231 Ibid, at 111. 1238 Dutton & Painter, supra note 1218 at 118. See Jacobs, supra note 518 at 459 n. 3 who has acknowledged in the battering literature that there is a phenomenon called "separation assault" where the "period of time when a woman tries to leave her batterer as one of the most dangerous periods during the relationship. 1239 Jacobsen, Mizga & D 'Oho, supra note 6 at 38 n. 66. See Graham, supra note 51 at 1. 1240 Graham and Rawlings in Dee L. R. Graham and Edna I. Rawlings, "Bonding with Abusive Dating Partners: Dynamics of Stockholm Syndrome" in Barrie Levy ed., Dating Violence: Young Women in Danger (Seattle, WA: Seal Press, 1998) 119 at 121-22 [Graham & Rowlings]. They note that "abuser (or captor) traumatizes a victim, who cannot escape, by threatening her (physical or psychological) survival. As a result of being traumatized, the victim needs nurturance and protection. Being isolated from others, the victim must turn to her abuser for the needed nurturance and protection if she turns to anyone. If the abuser shows the victim some small kindness, this creates hope in the victim, who then denies her rage at the terror-creating side of the abuser — because this rage would be experienced as overwhelming - and 224 needs of others to fall away. This theory also explains why the battered woman does not leave:

Because she has denied the "violent, terrifying side of the abuser as well as her own anger, the victim sees no reason to leave him."1241 A type of push-pull relationship results as the woman may subconsciously know that her very survival is threatened by her captor, but experiences a pull to "help the abuser because he needs her, of feeling that she is the only one who really understands him, and of wanting to protect him as she perceives that he has protected her."1242 The difficulty in leaving is that the woman has been conditioned to see herself through the eyes of her abuser, and she fears to lose the only relationship she has. It has been noted that "[ljeaping into the unknown is sufficiently frightening to be difficult even for people in healthy environments and it is considerably more difficult for someone whose survival depends on the fragile feelings of predictability and control produced by cognitive distortions and the whims of a terrorist."1 As Graham identifies, "battered women who bond to their abusers are seen as masochistic, while 'political' hostages who bond to their abusers

(captors) are seen as smart but unpatriotic."1244 This dichotomy is one which has limited the ability of battered women to access a defence, while others are seen as unfortunate victims of circumstance.

iii. Captivity

Herman has also studied the effect of brainwashing on battered woman, and she focuses on the captivity that these women feel, much like those who are prisoners of war. She notes that while a

"single traumatic event" can occur to anyone, a "repeated trauma, by contrast, occurs only in circumstances of captivity."1245 She notes that when "the victim is free to escape, she will not be abused a second time; repeated trauma occurs only when the victim is a prisoner, unable to flee, and

bonds to the positive side of the abuser. With the hope that the abuser will let her live, the victim works to keep the abuser happy, becoming hypersensitive to his moods and needs." 1241 Graham & Rowlings, supra note 1240 at 122. 1242 Ibid. 1243 Ibid, at 123. 1244 Ibid. 1245 Herman, supra note 400 at 74. 225 under the control of the perpetrator." She notes that, "[s]uch conditions obviously exist in prisons,

concentration camps, and slave labor camps."1246 However, she goes on to say that while this type of

captivity, like the POW, is easy to identify, this is not so with the victims of domestic violence. She

argues that in most homes there are few physical trappings of captivity. There are "no bars on the

windows, no barbed fences . . . The barriers to escape are generally invisible. They are nonetheless

extremely powerful. Women are rendered captive by economic, social, psychological and legal

subordination, as well as by physical force."1247 Herman explains that the coercive control that denotes this type of relationship does not have to be physical, and the "psychological impact of

subordination to coercive control may have many common features." Even more disturbing to many is that this invisible control is just that: invisible to all those outside.1249

Herman goes on to describe that the abuser's first goal is "despotic control over every aspect of the victim's life" and she notes that "[h]ostages, political prisoners, battered women, and slaves have all remarked upon the captor's curious psychological dependence upon his victim."1250 She explains that "[p]erpetrators of domestic battery demand that their victims prove complete obedience and loyalty by sacrificing all other relations. Sex offenders demand that their victims find sexual fulfillment in submission."1251 The similarity of victims of domestic violence to POW's is noteworthy, and Herman observes that the "methods that enable one human being to enslave another are remarkably consistent. The accounts of hostages, political prisoners, and survivors of concentration camps from every corner of the globe have an uncanny sameness."1252 This sameness is extraordinary given that in violence in the home "the batterer is not part of any larger organization and

1246 Ibid. 1247 Herman, supra note 400 at 74. ,248 1248 ,/^.at75, . . Qf -7^. 1249 Ibid. 1250 Ibid, at 75-76. 1251 Ibid, at 76. 1252 Ibid. 226 has had no formal instruction in these techniques, he seems time and again to reinvent them."1253

Walker has also noted this striking similarity from batterer to batterer saying that "the coercive techniques, although unique for each individual, were still remarkably similar."

Many observers have expressed difficulty with the lack of escape attempted by these women.

Although a woman may flee after a particular incident, she is "often persuaded to return, not by further threats but by apologies, expressions of love, promises of reform, and appeals to loyalty and compassion."1255 Okun has noted that "[l]ike thought reform prisoners, battered women [are] subjected to extremes of confinement and/or physical restraint, such as binding."1 5 This captivity is not only physical, and it is not only mental. Okun has identified that many women face "constricted decision-making powers and some experience a total prohibition on their independent decision­ making."1257 He has explained that for some women this means that "she could not urinate or defecate in private, nor even change her tampon in solitude."

iv. Failure to Protect and Guilt

Creating shame in the women is an integral part of their battering by an intimate partner.

Involving the children is also an important tool. Often the "batterer uses or insists on forms of inappropriate discipline that the mother is too fearful to stop . . . Usually because they believed the alternative discipline by the male partner would be worse, mothers . . . have put their children in an ice-cold shower, beat them with a belt, burned their hand on a stove, kept them in a basement with no access to the house, and delayed reporting (or used useless home remedies to treat) serious injury."1259

"" Ibid. 1254 Walker, Battered, supra note 974. 1255 Herman, supra note 400 at 79. 1256 Okun, supra note 268 at 122. nsi Ibid, at 126. U5BIbid. at 127. 1259 Stark, Coercive, supra note 269 at 261. 227 Stark explains that once the mother has done things that she is ashamed of "she is even more vulnerable to degrading insults and threats that she will be reported for child neglect or abuse."1260

There is also a growing literature on mothers who fail to protect their children which leads to the murder of the child by the batterer.1261 As Jacobs notes, a "woman who is charged with allowing her abuser to kill her child is not viewed in the same light as a woman who kills her abuser."1262 Jacobs notes that:

[h]er legal claim is also based on the right to self preservation but is complicated by the loss of the life of an innocent child. The societal expectations that operate in this sphere contrast the right of the mother to live against the expectation that the mother will do everything possible to see to it that her child survives, even if the mother herself must die. It is much more difficult to reach the conclusion that the mother's self preservation rights superseded her responsibility to protect her child. Yet, as unsympathetic as the mother whose child has been killed may be, even she has a small group of scholars, who still acknowledge that the violence directed against her entitles her to cling to the claim of self preservation.1263

Although this topic is far beyond the scope of this thesis, there is an assumption that a mother should be willing to die to protect her child, at any cost.1264 Buel notes that "[m]others are expected to be able to protect themselves, yet they are also expected to forfeit their lives to protect their children."

In Canada, provisions under failure to protect legislation "make mothers accountable in certain situations: hypothetically, mothers are viewed as failing to protect their children from witnessing and being exposed to domestic violence if they are unable to leave the abusive relationship. Children can

1260 Ibid. 1261 Jacobs, supra note 518 at 462. 1262 Ibid. 1263 Jacobs, supra note 518 at 462. 1264 See generally, Buel, supra note 968 at 288; Heather R. Skinazi, "Not Just a 'Conjured Afterthought' Using Duress as a Defense for Battered Women Who 'Fail to Protect'" (1997) 85 California Law Review 993 [Skinazi]; Jacobs, supra note 518 at 652 who analyzes cases of battered women who fail to protect their children. She notes one case where the corrections officer on the case recommends that the mother be "put to death" because "[i]n my opinion it is atrocious for a mother not to risk her life - everything, to save her child." Jacobs notes that this would "place a mother above and beyond what black letter law calls for in omission cases. Even in civil law jurisdictions, where bystanders have an affirmative obligation to rescue, no country requires the rescuer, even if related, to risk death or serious injury. Yet, this is exactly what we expect and require from mothers." 1265 Buel, supra note 968 at 289. 228 be apprehended under these circumstances."1266 Alaggia notes the devastating consequences of failing

to seek help as "women may be even more reluctant to disclose domestic violence as they already fear

any negative involvement with authorities, especially child welfare involvement that could result in

losing their children. It is quite conceivable that the services designed to help women and children

living with domestic violence are being avoided altogether by women."1267 This leads to the point of

establishing a basis for the defence of brainwashing through the specific example of the battered

woman caught in this cyclical nightmare.

1266 Ramona Alaggia & Sarah Maiter, "Domestic Violence and Child Abuse: Issues for Immigrant and Refugee Families" in Ramona Alaggia & Cathy Vine, eds., Cruel But Not Unusual: Violence in Canadian Families (Waterloo, ON: Wilfrid Laurier University Press, 2006) 99 at 109-110 [Alaggia & Maiter]. 1267 Ibid, at 110. 229 Part IV - Brainwashing, the Battered Spouse and Liability for Harm to Third Parties

a. The Battered Woman and the Third Party Victim

It is through the recognition of the link between brainwashing and BWS that one can explain why some battered women commit crimes against third parties. Buel has noted that "social science research indicates that women arrested for drug offences, theft, and prostitution are overwhelmingly victimized by intimate partners, yet most feminist scholarship ignores this group of victims in favour of focusing on those who kill their abusers in self-defense."1268 Okun has noted that crimes against third parties can often be used to produce guilt in the battered woman.1269 He notes that:

[p]robably the most common illicit or culpable-seeming activities into which battered women are forced are: sex with one or more persons outside the conjugal relationship, illicit drug transactions, child abuse, or criminal activities such as larceny or passing bad checks. The batterer can then humiliate and/or blackmail the battered woman in various ways for her involvement in these activities, and he can also use these incidents to his legal advantage in divorce actions or related civil suits. This blackmail can be powerful enough to dissuade the woman from attempting either to flee or to sunder the relationship because she fears the potential impact of the batter's denouncing her.1270

Taylor has her own explanation of why a battered spouse could be persuaded to commit crimes against third parties. She explains that "[a]buse clearly illustrates the gradual nature of psychological control techniques. Human brains are good novelty detectors, but they have thresholds below which they cannot detect a change, and they have to make a special effort when tracking perceptions over long periods of time. This means that they are bad at detecting long-term, cumulative change if each

i 271 step of that change is very small." Other crimes are also required of the battered woman so that she will lose employment or be seen lacking credibility if the matter ever comes to the authorities.1272

Stark recalls one of his clients who was given a "list of clothes he wanted her to steal, drove her to the department stores, and waited outside. On the several occasions when she was caught, he would 1268 Buel, supra note 968 at 254. 1269 Okun, supra note 268 at 127. 1270 Ibid. 1271 Taylor, supra note 46 at 87. 1272 Stark, Coercive, supra note 269 at 261. 230 simply disappear, knowing she would be too fearful to tell the police the truth."1273 Although these crimes are not as "serious" as those which will be explored below, there is the element of shame in that there is now something that the abuser "has" over his partner. This can be used to threaten and to seek compliance in the next criminal act which he wishes her to commit.

Okun notes a similarity to what was perpetrated against Patty Hearst and her involvement in the bank robbery. He explains that her involvement in this crime "changed her status from a victim to be rescued by law enforcement officers into a hunted outlaw. This, in turn, decreased her motivation to be found by the police and increased her motivation to see the SLA evade arrest." Okun notes that this is the case with battered women who are "coerced by their mates into illicit activities [and who] have less motive to receive third-party intervention, less reason to reveal their victimization, more motivation to comply with the batterer, and more reason to hope he will not face any negative repercussions for his abusive behavior."1275 Women, like Patty Hearst, who fall into this category are treated punitively by the criminal justice system, just as, historically, they have been treated very punitively for killing their batterer.1276 Although the law of self-defence for these defendants may be developing, in many other areas they are simply not evolving.

b. Examples of Battered Women Who Commit Crimes Involving a Third Party

The following American examples show that there are many cases in which battered spouses harm third parties; however, there are no fully exculpatory case studies. However, the one thing that

ni3Ibid. 1274 Okun, supra note 268 at 127. 1275 Ibid, at 127-28. 1276 See Browne, supra note 945 at 11 notes that women often have "harsher penalties than men who kill their mates. FBI statistics indicate that fewer men are charged with first- or second-degree murder for killing a woman they have known than are women who kill a man they have known. And women convicted of these murders are frequently sentenced to longer prison terms than are men. The following case illustrates the discrepancies in attitudes that may lead to this uneven sentencing: In 1978 an Indiana prosecutor, James Kizer, refused to prosecute for murder a man who beat and kicked his ex-wife to death in the presence of a witness and raped her as she lay dying. Filing a manslaughter charge instead, Kizer commented, "He didn't mean to kill her. He just meant to give her a good thumping." 231 these examples show is that this is a live issue of some prevalence today. The American Task Force

for Federally Sentenced Women "contends that 80 percent of women serving federal sentences have

been victimized before their incarceration."1277 Herman notes that the legal system is a foreign world where "strategies of aggressive argument and psychological attacks replace those of physical force.

Women are generally little better prepared for this form of fighting than for physical combat."1278 She notes that the justice system protects men from the state, but not women from the power of men, noting that if "one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law."1279 Some theorize that the system is designed to re-victimize these women. Martha Shaffer focuses on two American examples where the legal system is failing vulnerable women. In the case of West Virginia v. Lambert, a battered woman was charged with welfare fraud after she did not inform the state of her husband's employment. 80 Ms.

Lambert had been the subject of extensive abuse by her husband including his holding a gun to her head when she was pregnant. Nonetheless, she was convicted of welfare fraud and her sentence of

1287 1 to 5 years was upheld by the Court of Appeal.

In another case, Neelley v. Alabama, Ms Neelley agreed to kidnap a young girl for her husband to sexually abuse. She eventually injected the girl with six syringes of drain cleaner, shot her in the head, and pushed her into a canyon. In fear of the mental, physical and sexual abuse of her husband, she also tried to kidnap two other girls. In order to escape this abuse she participated in

"robbery, firebombing, forgery, conspiracy to commit murder, and procuring girls with 'small sex

1277 Jennifer Kilty & Sylvie Frigon, "Karla Homolka - From a Woman In Danger to a Dangerous Woman: Chronicling the Shifts" (2006) 17 Women & Criminal Justice 37 at 42 [Kilty & Frigon]. 1278 1278 Herman, supra note 400 at 72. 1279 Herman, supra note 400 at 72. 1280 West Virginia v. Lambert, 312 S.E.2d31 (Sup. Ct. App. 1984) [Lambert]. 1281 Shaffer, "Coerced", supra note 732 at 273. 1282 Ibid. 1283 Neelley, supra note 1042. 232 organs.'"1284 Neelley admitted the acts but denied responsibility by "reason of mental disease or defect induced by the abuse she endured at the hands of her husband."1285 The Court characterized her defence of a "combination of duress . . . battered woman syndrome . . . and coercive persuasion" as a weak tactic to assert that she had been "'programmed' by him to do his bidding."1286 Although the defence demonstrated how Neelley had been subjected to "such violent and gross mental, emotional, physical, and sexual abuse that she would have done anything, and did do everything he asked," the

Court convicted her and sentenced her to death. Neelley appealed her sentence of death but the decision was affirmed.

Shaffer identifies many women who commit crimes against third parties on instructions from an abusive partner. Shaffer notes that in Canada the "impact of abuse on a woman's actions has focused almost exclusively on one situation: that in which a woman claims self-defence for killing or harming her abuser. Little attention has been paid to women who, as a result of repeated violence at the hands of their intimate male partners, commit other criminal offences - that is, offences which do not involve harm to the batterer."1287 Shaffer notes that women have been forced to participate in

1288 situations "from property crimes to prostitution to crimes of violence against third parties." She relies on the defence of duress as a means of exploring this unstudied population but says that "[fjhis does not mean that all battered women who commit criminal offences should be acquitted on the basis of the defence of duress. It does mean that in setting the parameters of the defence, the law must take into account the different ways in which men and women may be forced to commit crimes they do not 1289 wish to commit."

1284 Shaffer, "Coerced", supra note 732 at 273-74. 1285 Neelley, supra note 1042 at 675. 1286 Ibid, at 676. 1287 Shaffer, "Coerced", supra note 732 at 274. 1288 Ibid. 1289 Ibid, at 275-76. Okun, supra note 268 at 133, has tied the discussion of the similarities between battered women and forced crime to the discussion of forced prostitution. He says that the "process used to 233 Shaffer notes that there is evidence that women are frequently forced into crimes against third parties. Specifically, Shafter discusses cases and social science data that show that "women have been

involved in committing offences ranging from welfare fraud to drug trafficking to prostitution to child abuse to murder."1290 Disappointingly, most of the defences to these crimes have been rejected by the

Courts because of a denial of abuse, and the failings of the duress defence itself. It is for this reason that another conceptualization of BWS is needed in order to capture this large number of women offenders whose possibility for a defence is ignored by the system.

Shaffer also makes the point that there needs to be different paradigms of coercion, and the force felt by men and women is different because "[b]attering is largely a gendered phenomenon. It is a way in which women may be forced to commit offences that differs from the forms of coercion men typically face."1292 Shaffer outlines the reasons that the defence of duress often fails specifically for battered women: As discussed above, they fail to meet the presence and immediacy requirements as often their batterers are not present at the crime scene; there may not have been a specific threatening event but rather a generalized atmosphere of terror for the battered victim; and there may still be offences that are precluded from utilizing the duress defence.1293 Shaffer acknowledges that often

"battered women will commit offences outside of the batterer's presence. In fact, the control that an abuser exercises over the woman he batters may make it more likely that a battered woman will commit an offence outside of her threatener's presence than a person who is not in an abusive coerce women into prostitution is called 'seasoning,' and is analogous to the unfreezing process of thought reform." He further explains, at 133, that, like "thought reform, the purpose of seasoning is to inculcate the victim behavior and attitudinal changes desired by the controller." For further information on this process, which is beyond the scope of this thesis, see Okun, supra note 268 at 133 following. 1290 Shaffer, "Coerced", supra note 732 at 307. 1291 Ibid, at 307-08. 1292 Shaffer, "Coerced", supra note 732 at 308. Specifically with reference to duress, Shaffer notes at 308 that the "reformulation of duress will not be based solely on a male norm, but will take the ways in which women are coerced into account." 1293 Ibid, but note that this article was written before the case of Ruzic. Although the court in Ruzic found that these requirements in section 17 of the Criminal Code were unconstitutional, the role of these elements in future cases is unclear. Similarly it is unclear what excluded offences might remain under section 17. 234 relationship. She notes that there are several crimes including drug related offences and

prostitution which preclude the presence of the abuser.1295 The Court is not always sympathetic to the

abused woman who wants to "avoid incurring the wrath of her abuser and the beating that will

inevitably follow, [so] the law will view her as protecting herself from future rather than immediate

harm."1296

Louisiana v. Barnes provides an example of these concerns within the defence of duress of how a

brainwashing defence would be more appropriate. 7 Barnes was denied the defence of duress at trial

and appealed primarily because her batterer was not present at the crimes even though she had

1298

suffered "horrific abuse" by her husband. Similarly in United States v. Gaviria the Court found

that the battered woman's life had been an "extraordinary trial of physical and emotional abuse and

coercion."1299 Interestingly, although the U. S. Court recognized this fact they noted that her "actions

were legally 'voluntary,' but they were not the result of free rational decisionmaking. Her life is a

classic example of the plight of a subservient, abused woman."1300 Although Ms. Gaviria was 18

years old at the time of her arrest, her case exemplifies the problems with the existing duress defences

even in the face of evidence of overwhelming involuntariness. Yet, the principles set out in Gaviria

were subsequently followed in another case called Bonneau v. United States of America. The use

of these principles in the United States occurs most often in sentencing, as it did in Bonneau. The

1294 Shaffer, "Coerced", supra note 732 at 310. 1295 Ibid. 1296 Ibid [emphasis in original]. 1297 Ibid, citing Louisiana v. Barnes, (1986) 489 So.2d 402. 1298 Ibid, at 311. 1299 United States v. Gaviria, 804 F.Supp. 476 (1992) at 481 [Gaviria]. It is interesting to note that many battered women describe the emotional abuse as more damaging than the physical abuse. See Schneider, supra note 271 at 65 following. Schneider cites one woman's experience, at 65, as she said "[w]hat he did wasn't exactly battering but it was the threat. I remember one night I spent the whole night in a state of terror, nothing less than terror all night. . . And that was worse to me than getting whacked." Schneider acknowledges that many women "refused to define their experiences as domestic violence as long as the abuse remained infrequent." 1300 Gaviria, supra note 1299 at 281. 1301 2002 WL 1552086 (2002) [Bonneau]. 235 defendant had been brutally abused by her partner who admitted that "he used physical and emotional

abuse to control Bonneau and that she and her children were financially dependent on him."1302

Despite this, the evidence was only used upon sentencing.

The Court found, using the decision in Gaviria, that although the defendant could not use a

complete defence of duress, "her pattern of dependence might be relevant to her blameworthiness and

therefore her sentence ... In light of Bonneau's physical and emotional abuse at the hands of Sapia,

and in light of her subservience to him and economic dependence on him for herself and her children,

her case fell outside of the heartland of cases. As in Gaviria, Bonneau's actions were 'legally

voluntary, but they were not the result of free rational decisionmaking.'"1303 These American cases

show that the influence of battering on a defendant is considered useful in sentencing but does not go

to liability. Shaffer argues that the assumption from Gaviria that a battered woman can simply leave

an abusive situation is very dangerous. She notes that the Court assumes she could have left even though it is noted that she did not "speak English, was dependent on her husband, and that leaving him would be an act of 'extraordinary courage and perhaps recklessness.'"1304 Shaffer notes the frequent assumptions made of battered women including that there may be nowhere for the victim to go.

Often, "[w]omen may have become isolated as a result of the abuse and have no friends or family to whom to turn. Women in rural areas may not have access to women's shelters. Immigrant women may lack access to shelters because they do not speak the dominant language or may view shelters as an alien and unwelcoming environment." Similarly, many women have had negative encounters with authorities when they have sought help, or fear for their children if they do not comply.1306

Shaffer notes that women who try to end abusive relationships also face deadly violence, and she cites

m2Ibid at 3. 1303 #>/

were killed by their male partners had separated or were in the process of separating."1307

Delgado notes the miscarriage of justice if the defence of brainwashing is not recognized "for

fear of difficult line-drawing" which could be "needless" and perhaps "inhumane."1308 He

acknowledges that the brainwashing continuum may have "genuine moral ambiguity" but this is no

different than other types of mental health related defences.1309 He warns that "[fjear of such

problems need not prevent us from addressing those compelling polar cases that call for

compassionate, informed treatment" and that it is "hardly a noble doctrine that sacrifices individuals

for the sake of preserving an artificial conceptual simplicity in the law of criminal excuses."1310

Delgado responds to those who say that this defence is "incompatible with freedom of the will."

He notes that this defence can be limited to those cases which are extreme. 12 Delgado emphasizes

that these are individuals who would not otherwise have offended and, thus, a new defence is needed.

By overbearing the will of the individual, this undermines the voluntariness of the actus reus and

liability should not flow to the actor.1313 He argues that this new defence could exist without opening the floodgates to everyone who has ever been coerced.1 l This new defence would allow those who

are not culpable to avoid punishment "without placing additional stress on already overextended

1307 Ibid, at 315 citing Elizabeth Sheehy, Julie Stubbs & Julie Tolmie, "Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations" (1992) 16 Crim. L. J. 369 [Sheehy, Stubbs & Tolmie]. 1308 Delgado, "Ascription", supra note 52 at 27. 1309 Ibid. 1310 Ibid. Delgado notes, at 27, that this was the mistake during the court-martial cases in the United States and the Department of Defence later repudiated the actions that ignored brainwashing because it did not "fit into existing legal categories of insanity or duress." 1311 Ibid. 1312 Ibid, at 28. This might be the case with the coercively persuaded spouse of the sexual sadist. 1313 Ibid, at 33. 13,4 Ibid. 237 existing theories such as insanity, duress, and diminished capacity."1315 It is clear that these avenues have been exhausted.

One of the most important elements to take from this review of successful and unsuccessful attempts at a brainwashing defence is that the defence has not been categorically rejected in North

America. As noted by Nolan, although the Court in the American case of Fishman found that the

"American Psychological Association (APA) and the American Sociological Association (ASA) have not unequivocally supported the Singer-Ofshe coercive persuasion/indoctrination thesis, neither have the organizations unequivocally rejected it."1316 Using this basis, we then need to examine other interpersonal relationships and use the knowledge of BWS to look at a broader application and the legal implications. Making the leap from a battered woman who protects herself or others, to a brainwashed battered spouse who commits crimes against third parties is very difficult for many to conceptualize. However, there are established paradigms that help to explain the phenomenon.

c. Folie a Deux (Shared Psychotic Disorder, SPD)1317

Many have theorized that the key to brainwashing might be within established psychological disorders. The diagnosis offolie a deux was first identified by French psychiatrists Lasegue and Falret in 1873 who explained that this condition was concerned primarily with the absurdity or gullibility on the part of one partner.1318 The DSM-IV-TR defines it as when a "delusion develops in an individual in the context of a close relationship with another person who has an already-established delusion . . .

[and is] similar in content to that of the person who already has the established delusion."1319 SPD

136 Nolan, supra note 320 at 455. 1317 Franzini & Grossberg, supra note 316 at 139 note that this is also called "shared insanity," "dual madness," "contagious insanity," or "induced psychotic disorder." 13,8 Ibid, at 140. 1319 DSM-IV-TR, supra note 62. It is noted that if "the relationship with the primary case is interrupted, the delusional beliefs of the other individual usually diminish or disappear. Although most commonly seen in relationships of only two people, Shared Psychotic Disorder can occur among a larger number of individuals, especially in family situations in which the parent is the primary case and the children, 238 occurs where there is "intermingling of two people's fantasies, delusions, or fears" resulting when the

paranoid-delusional persons manage to infuse their lovers (or parents or siblings) with their own

insanity. Because they're charismatic, and the person they're with is hyperimaginative and

suggestible, their version of reality becomes the dominate one."1320 Very much like brainwashing, it

has been noted that it is proof of the devastating effects of "isolation, loneliness, and abandonment.

The secondary, or submissive, partner is gradually worn down by the primary, dominant partner and

eventually surrenders, preferring to adopt crazy ideas rather than threaten his or her only human social

relationship."1321

There are at least 200 case reports of this phenomenon, including nuns in a German convent who

started biting one another, which spread to other convents in Germany, Holland, and Italy; wild

dancing in Italy called "tarantism" because the participants behaved as if they had been bitten by tarantula spiders; sisters who both experienced false pregnancies; nuns who meowed like cats every day for hours; a Russian case where a young woman convinced a group of believers that the world was ending and that they should bury themselves alive to avoid the end; a woman who believed she had the child of Satan within her who convinced her three neighbours to remove her uterus because it was the "seat of all evil in the world."1322

sometimes to varying degrees, adopt the parent's delusional beliefs. Individuals with this disorder rarely seek treatment and usually are brought to clinical attention when the primary case receives treatment . . . Little systematic information about the prevalence of Shared psychotic Disorder is available. This disorder is rare in clinical settings, although it has been argued that some cases go unrecognized. Limited evidence suggests that Shared Psychotic Disorder is somewhat more common in women than in men." This family situation has also been called folie a trios, folie a quatre, folie aplusieres. 1320 Pearson, supra note 1 at 186. Interestingly, Pearson notes, at 186, that "women are, overwhelmingly, the charismatics to whom men or other women succumb." 1321 Franzini & Grossberg, supra note 316 at 139. 1322 Ibid, at 139-142. 239 One of the most famous cases of this condition was the killer Henry Lee Lucas, who was

suspected of 500 murders between 1951 and 1983.1323 He was convicted of nine, including the

murder of his mother. When he was released from prison for the murder of his mother, he teamed

with Otis Toole and they together explored Satanism, religious cults, and necrophilia. Toole ended up

serving a life sentence in Florida.1324 Pearson argues that the "self-imposed social isolation of the

couple is a critical ingredient in folie a deux, in that they're removed from reality checks and begin to

drift."1325 Just as in brainwashing, after the isolation is complete, "[o]ne partner is gradually exposed

to the other's mindset and accommodates the madness bit by bit."1326 The couple is also under the

delusion that someone or something is hunting them in order to destroy them. 7 Also similar to the

sexual sadist, the couple believes, in a delusion of grandeur, that they are "better, more powerful and

glamorous, more entitled than those around them."1328 Many have analyzed Hindley and Brady in the

context offolie a deux, suggesting that her personality combined with his insanity.1329 However, this

may not fully explain this situation because "in a male-dominated society, for a woman to adapt her

character in order to blend in with that of a man is a common enough outcome of socialization, and of

the pressures within heterosexual relationships. So if Myra Hindley came to adopt her boyfriend's

ideas, if she changed to accommodate him, that is not, in itself, unusual. The question is rather why

most writers have assumed that Brady's ideas would have been alien to Myra unless she was under an

evil spell."1330 What is important to distinguish folie a deux from brainwashing, other than the rarity

of the disorder, is that, just as the definition in the DSM IV states, there must be an "already-

1323 See Stephen Williams, Invisible Darkness (Toronto: McArthur & Company, 1996) at 430 [Williams, "Invisible"]. 1324 Ibid. 1325 Pearson, supra note 1 at 186-87. m6Ibid. at 187. 1327 Ibid. 1328 Pearson, supra note 1 at 188 [emphasis in original]. 1329 Cameron & Frazer, supra note 17 at 145. 1330 Ibid, at 146 [emphasis in original]. 240 established delusion" in the primary focus of the concept. This is different than in the case of brainwashing, where there was no pre-existing delusion, and thus, folie a deux is of limited application to the present discussion. If this psychological explanation was correct, these cases may qualify for a s. 16, NCRMD, defence. However, NCRMD is not the direction of this defence; rather, the research being done by the FBI into sexual sadism and psychopathy is the future of the brainwashing defence.

d. Sexual Sadism1331

To limit the scope of this research I propose to study a subset of abused women which I characterize as the victims of the "sexual sadist." Roy Hazelwood, Janet Warren and Paul Dietz have written a series of articles over the last two decades1332 that recognize that the battered spouse of the sexual sadist experiences a process of coercion akin to brainwashing. Warren, Hazelwood & Dietz use the term "compliant victims" to describe the women's role in the crimes to reflect "the acquiescent nature of these women's cooperation in their own and others' victimization. It is not intended to excuse the women's criminal behaviour in those instances in which the women became accomplices to sexually violent crime."1333 This term seems most descriptive of the violence and the reaction of the spouse to that abuse. The authors hypothesize that this relationship is characterized by "some of the most brutal forms of sexual violence and entails the transformation of a women's sense of self and of her behavior in response to intimate contact with the fantasies and the overtly expressed desires of a sadistic male." They have noted that these women go through a "systematic manipulation of

1331 Roy Hazelwood & Stephen G. Michaud, Dark Dreams (New York: St. Martin's Press, 2001) at 86 [Hazelwood & Michaud] notes that the "The most resourceful, destructive, and elusive of all deviant offenders is the ritualistic sexual sadist. Just as the great white shark is the renowned predator of the oceans, the sexual sadist is the most dangerous and cunning of all aberrant criminals. 1332 Warren & Hazelwood, supra note 1042; Roy Hazelwood, Janet Warren & Park Dietz, "Compliant Victims of the Sexual Sadist" (1993) 22 Australian Family Physician 474 [Hazelwood, Warren & Dietz]; Park Elliott Dietz, Robert R. Hazelwood, & Janet Warren, "The Sexually Sadistic Criminal and His Offenses" (1990) 18 Bulletin of the American Academy of Psychiatry and the Law 163 [Dietz, Hazelwood & Warren]. 1333 Warren & Hazelwood, supra note 1042 at 77. 1334 Ibid. 241 rewards and punishments in the context of social isolation" which "can alter self concept,

expectations, and behaviours among at least some victims."1335 What is often most striking about

these individuals under this type of influence is that they do not seem to take obvious means of

escape.1336 This "willingness" and even "enjoyment" of the participation of criminal acts is one of the

ongoing problems of those acting under coercion, because the accused who might use the defence of

brainwashing must show that they were not complicit in bringing the coercion upon themselves.

Many times it has been argued that the battered spouse stayed in this relationship and, thus, accepts

responsibility for all actions which flow from it, and many argue that they experience satisfaction in

participating. Yet, Hazelwood et al. note that in this type of domestic abuse the "'captor' not only

seeks compliance, but also seeks opportunities for continuing abuse of the victim."1337 These captors

gain full control over their partners to the point that these women will endure long-term and horrific

violence and will participate in deviant sexual, and sometimes murderous, crimes.1 8

Most recently these researchers have noted that the motivation for the woman to submit herself to

these acts is complex and not simply to please her abuser, as was once assumed.1339 Interestingly, in

some cases "the women become assimilated into the sexual aggression of their partners."1340 This

explanation may shed light on why a woman might appear to be an active and eager participant in the

crimes perpetrated. For the first time, research by Hazelwood et al. has noted that another motivation

1335 Roy Hazelwood, Janet Warren, Park Elliott Dietz, Robert R. Hazelwood & Janet Warren, "The Sexually Sadistic Criminal and His Offenses" (1990) 18 Bulletin of the American Academy of Psychiatry and the Law 163 [Hazelwood, et al.] 1335 Hazelwood, Warren & Dietz, supra note 1332 at 474. 1336 Ibid. 1331 Ibid. 1338 It is worth noting that 100% of the sexual sadist studied by Hazelwood et al. were men. See Dietz, Hazelwood & Warren, supra note 1332 at 167-68, where they note that all but one of the 30 studied was white, all were male, 43% were married, 30% had children, 43% had post-secondary education and represented a range of occupations, including candy maker, sheriffs deputy, law student and military officer. If there are in fact no, or very few, female sexual sadists, this gives credence to the argument that these women would not have committed this sadistic acts without their male partner. 1339 Warren & Hazelwood, supra note 1042 at 76. 1340 Ibid. 242 could be the "sense of exhilaration in sharing behavior that is extreme and outside all definitions of normalcy."13 ' They theorize that "these women become involved in this type of behavior subsequent to the establishment of intimacy, and that their response to this paraphilic interest in the man lies at the core of gradual assimilation of behavior that integrates the sadist's sexual desires into their own behavior. It is the erosion of self-preserving and law-abiding boundaries that lies at the heart of this descriptive effort."1342 This helps to explain why these margins disappear in these compliant victims who "actively" participate even when it appears that they could leave, they could refuse to perpetrate these disproportionate crimes, or they could seek assistance. Since relatively little is known about these women, this is a subset of offenders who are largely convicted without defence in the Canadian criminal justice system. To analyze these offenders and the women who become complicit in their criminal actions, it is informative to look at three studies by a group of psychologists.

i. The Sexually Sadistic Criminal and His Offences

The concept of the sexual sadist is by no means new. Dietz, Hazelwood and Warren note that

"sexual sadism" was coined by Richard von Krafft-Ebing based on Donatien-Alphonse-Francois,

Marquis de Sade (1740-1814) for behaviours that combined "sexual acts with domination, degradation, and violence."1343 Krafft-Ebing noted that "[s]adism is the experience of sexually pleasurable sensations (including orgasm) produced by acts of cruelty, bodily punishment afflicted on one's own person or when witnessed in others, be they animals or human beings. It may also consist of an innate desire to humiliate, hurt, wound or even destroy others in order thereby to create sexual

1342 Ibid, at 77. 1343 Dietz, Hazelwood & Warren, supra note 1332 at 163. Cameron & Frazer note, supra note 17 at 55, that de Sade was not a murderer, noting that his many "hagiographers hasten to assure us that he was sickened by the smell of blood from the guillotine." 243 pleasure in one's self." The birth of this term gave rise to a new way of conceptualizing the

criminally deviant. As Foucault has noted:

sadism is not a name finally given to a practice as old as Eros; it is a massive cultural fact which appeared precisely at the end of the eighteenth century, and which constitutes one of the greatest conversions of Western imagination: unreason transformed into delirium of the heart, madness of desire, the insane dialogue of love and death in the limitless presumption of appetite.

Ever since the inception of this term, attempts have been made to access the elusive world of the

sexual sadist who believes, to some extent, that "lust and cruelty are very similar stimuli."1346 Dietz,

Hazelwood and Warren have attempted to trace the modern manifestation of the sexual sadist in three

corresponding articles: "The Sexually Sadistic Criminal and his Offences" in 1990; "Compliant

Victims of the Sexual Sadist" in 1993; and "Relational Patterns Associated with Sexual Sadism: A

Study of 20 Wives and Girlfriends" in 2002.1347 In particular they have focused on those sexual

sadists who translate their proclivities into criminal acts "unencumbered by ethical, societal, and legal

inhibitions."1348 The authors identify that these offenders are elusive and rare, but that they are an

Richard von Krafft-Ebing, Psychopathia Sexualis: With Especial Reference to the Antipathic Sexual Instinct: A Medico-Forensic Study (New York: Physicians and Surgeons Book Co., 1933) at 80 [Krafft- Ebing]. See Cameron & Frazer, supra note 17 at 94, that Krafft-Ebing wanted to expose sexual crimes as pathological rather than simply deviant. Cameron & Frazer note, at 95, that since "its first publication in German in 1886, and 1903, the book went through a large number of editions and new material was progressively added. Through Krafft-Ebbing was pleased by the book's success, he never intended it to be read by the lay public and did his best (as his prefaces explicitly point out) to make sure that only professional experts could read it by using exceedingly technical language and translating the most obscene parts into Latin - an expedient to which he restored more and more with each successive edition of the work." As explained by Cameron & Frazer, at 96, Psychopathia Sexualis has case studies of two women but their sadistic tendencies were expressed in a very mild manner. One woman would have sex only if her husband would cut his arm and allow her to drink his blood, and another woman who liked to bite her husband until she drew blood. See Cameron & Frazer, at 98, who note that later sexologists like Alfred Kinsey criticized Krafft-Ebbing for his lack of scientific rigor. M. Foucault, Madness and Civilization: A History of Insanity in the Age of Reason (London: Pantheon, 1965) at 210 [Foucault]. 1346 Cameron & Frazer, supra note 17 at 57. 1347 Dietz, Hazelwood & Warren, supra note 1332, Hazelwood, Warren & Dietz, supra note 1332, and Warren & Hazelwood, supra note 1042. Note that the Warren & Hazelwood article was cited in the Galligan Report. 1348 Dietz, Hazelwood & Warren, supra note 1332 at 163. The authors note, at 164, that many of these individuals are not available for study because it is "possible that a majority of sexual sadists never engage 244 unimaginable threat to the unsuspecting public.1349 Dietz, Hazelwood and Warren describe, in their

first article, the difficulty in doing a large scale study of sexual sadists because of the infrequency of

these cases. Nonetheless, they gathered a group of 30 offenders who fit the study's parameters.1350

Dietz, Hazelwood and Warren discuss the difficulties in identifying and diagnosing these

offenders, as "even seasoned clinicians . . . find themselves tempted to ascribe psychosis to those who

engage in extraordinarily cruel acts despite the absence of delusions, hallucinations, or markedly

illogical thinking." This could explain why these offenders are more likely to be convicted of

crimes because of their lack of psychosis or an explanation for their actions. Thus, it is difficult to

diagnose because "sexual sadism can occur in the absence of any other diagnosable mental disorder or

in combination with any other diagnosis. Even here, however, diagnostic errors are common."1352

Surprisingly, the authors note that these offenders often have "considerable insight into their sexual

deviation and devote significant energy to self-scrutiny."1353 The authors also note that this group of

offenders is difficult to study because they are "cunning and accomplished at deception. He

rationalizes his actions, feels no remorse or guilt, and is not moved by compassion. He considers

himself superior to society in general and law enforcement in particular."1 5 These types of offenders

study their victim and crime scene meticulously, and focus on the perfection of their crimes. For this

reason, they are extremely hard to apprehend.

in a sexually sadistic act, much less a crime. Among those who act on their fantasies, there are those who limit their actions to lawful behaviors with consenting partners or to behaviors with paid partners." 1349 Dietz, Hazelwood & Warren, supra note 1332 at 164. 1350 Ibid, at 163. 1351ftMatl64. 1352 Ibid, at 164. The authors note, at 165, that although this type of sadism can be linked with "mutilation followed by murder, murder followed by mutilation, and cannibalism" but these actions are "not necessarily indicative of either sexual excitement or sexual sadism." 1353 Ibid, at 165. 1354 Robert R. Hazelwood, Park Elliott Dietz & Janet Warren, "The Criminal Sexual Sadist" (February 1992) FBI Law Enforcement Bulletin. [Hazelwood, Dietz & Warren]. 245 Most noteworthy in reference to the crimes committed was the fact that 93% of the offenders

"carefully planned their offences," 90% used a "con approach" where they approached the victim

"under a pretext such as requesting or offering assistance, asking directions, or making an arrest."

Almost 60% held their victims captive from 24 hours to six weeks before releasing or murdering them, and three sadists "coerced former captives to return for additional abuse."1356 A variety of

1357 sexual acts was performed on the captives including anal rape and foreign object penetration.

Eighty-seven percent of the offenders were described by their victims as having an "unemotional, detached affect" and 100% of the sadists "intentionally tortured their victims."1358 The authors further explore the detachment of these offenders, calling their actions "methodical," "deliberate" and "calm" during the victims' "obvious and intense distress."1359 The authors hypothesize that this control and dominance over the situation reflects the lack of empathy felt for their victims that could "reflect psychopathy, narcissism, an extraordinary capacity to dehumanize victims, or a combination of these."1360 They also noted that the men were often "grandiose, lacked empathy, responded to criticism with rage, and demanded a show of admiration from those victims they kept captive," and may have regarded themselves as "super criminals."1361

Dietz, Hazelwood & Warren, supra note 1332 at 170. 1356 Ibid. 1357 Ibid, at 171. 1358 Ibid. 1359 Ibid, at 175. 1360 Ibid. 1361 Ibid. See Kirk Makin, "Killing Timed for Alibi, Homolka says Bernardo Wanted French Alive Longer as 'Sex Slave,' but Wife Persuaded him Easter Dinner was Cover" The Globe and Mail (28 June 1995) A4 [Makin, "Alibi"], where it was reported in the media that Homolka testified about Bernardo's belief that he was invincible say that he "felt like nothing could touch him, like he was totally invincible." 246 The 30 men interviewed had murdered a total of 187 known victims, and were suspected of

killing a total of more than 300.1362 Dietz, Hazelwood and Warren make some observations about the

behaviours of these offenders, including that a:

[fjascination with police activities and paraphernalia reflects the offenders' fantasies of and strivings for power. Sexual partners are shared with others as a means of humiliation. Victims are held captive for ready access, to reshape their behaviour through 'training,' and to prolong their suffering. Victims are told what to say during assaults in order to recreate previously fantasized scenarios with idealized partners. Victims' corpses are concealed ... to reduce the likelihood of rapid discovery and therefore apprehension.

The authors note that the record-keeping that these sadists produced regarding their actions is often

quite detailed. Although they may be "forthcoming about their criminal acts, they are rarely

forthcoming about the pattern of sexual arousal that motivates or accompanies the crimes."1364

Although they had all perpetrated elaborate and "grotesque" crimes, "not one was perceived as

particularly odd by those who knew them well before their offenses."1 5 In fact, some had attempted

to get professional assistance for their proclivities but none was successful.1366

The researchers had asked one sadist how a woman could prevent a rape by an offender such as

himself. The man responded that, "there's a lot of steps you can take to help eliminate the average

criminal [who is] just spontaneous and reckless and careless . . . [but] [i]f somebody wants somebody

bad enough ... it's nearly impossible [to prevent] . . . They could have the best security in the world.

They could have guards and dogs and everything else. But if you have the time and the patience, the

1362 Dietz, Hazelwood & Warren, supra note 1332 at 172. As noted at 172, an unusually high proportion of the murders were from "asphyxial causes of death (61%)." However, the authors also note, at 173, that there are many other sexual sadists who committed far less crimes but would not be studied by the National Center for the Analysis of Violent Crime and were therefore not included in this study. 1363 Ibid, at 174. m4Ibid. at 175. 1365 Ibid 1366 Ibid. The authors explain at 175 that these men had been examined for "military discharge, incarcerations for earlier offenses, or for other purposes." As explained at 176, one man went to see a psychiatrist to explain that he was concerned that he wanted to add murder to his sexual experiences, but "his elderly psychiatrist fell asleep" and he left therapy; another left commitment in a state hospital to commit more murders, and one psychotherapist did not recognize that the writings of one of the men contained recollections, not fantasies. 247 opportunity is going to arise when you can hit somebody."1367 What should be flagged is that the

"hallmark of their offenses is intentional torture of the victim to sexually arouse the offender."1368

This was one of the first studies to look at the characteristics of the sexual sadist, but in the context of studying this subset of offenders, the authors became very interested in the other victims of this attention: the wives and girlfriends that were subjected to this brutal and degrading abuse. Dietz,

Hazel wood and Warren noted that 37% of the men studied had a partner who assisted in the crimes including 11 male partners and seven females.

At least as perplexing as the behaviours of the sexual sadist are those of the women who fall prey to their influence. Again, the concept of the sexual sadist and the women who assist in their crimes is not novel. The Marquis de Sade's wife, Pelagie, procured women to satisfy his sexual interests. She was instrumental in engaging servants, "all very young and nubile, all obviously chosen for purposes of sexual exploitation" in what would famously become known as the "Little Girls Episode," which was his "most extravagant, outrageous bacchanal to date." Biographers have noted that "[i]t is abundantly clear that Madame de Sade knew the purpose of hiring the Ganymede 'secretary' and the accompanying nymphets, and that she played a central role in choosing them. During the preceding weeks, she had even prepared the ground by a shrewd bit of duplicity" by informing the parents of the children that they were being hired by her family members other than the Marquis de Sade.1371

Pelagie also was instrumental in hiding the girls after the six week episode, as they "could not be returned to their parents as long as their bodies still bore marks of the Marquis's abuse."1372 The same

1367 Dietz, Hazelwood & Warren, supra note 1332 at 176. 1368/£>/

manage to suspend her moral judgment, her ethical scruples, the entirety of her conscience?"137 It is

interesting that du Plessix Gray concludes that Pelagie was "sexually aroused by her husband,

intensely so, and may have been further stimulated by witnessing his carousings," ignoring the

evidence that there may have been much more than sexual gratification occurring. Others have

commented on Pelagie's "total subservience to her husband," as it was noted that one should "[n]ever

expect to hear a complaint from her. She would allow herself to be chopped to pieces rather than

admit that he could ever do her harm."1375 It was speculated how long she could "continue to tolerate

such brusque alternations of derision, deep affection, and violent rage."1376 The Marquis's anger was

noted by the prison commander at the institution where he was ultimately imprisoned, who observed

that he treated his wife "with torrents of injuries and abuse" and suggested that if he were free "she

would fear for her life."1377

1373 Ibid, at 159. U74Ibid. at 160. 1375 Ibid, at 167. u76Ibid. at 261. 1377 Ibid, at 285. Warren & Hazelwood, supra note 1042 at 87-88. Warren & Hazelwood conclude with the fact that sexual sadists are not a recent phenomenon by looking at the Marquis de Sade. Parts of this last quotation are extremely important so I have quoted it in full here. Francine du Plessix Gray talks about this relationship between Sade and his "rather innocent and sexually naive wife, Pelagie" in her book At Home with the Marquis de Sade. Warren & Hazelwood describe this relationship where the couple met just before a marriage which was to benefit the wealth of both families and would assist in decreasing the "outrage among the bourgeoisie with the Marquis' sexual exploits. Despite the highly structured nature of this introduction, over the course of the marriage, Pelagie grew increasingly entranced by her husband, abandoning her three children to the care of her mother, while she assisted the Marquis de Sade with his sexual exploits and devoted herself to ardent attempts to free him from his increasingly routine periods of imprisonment. In the famous 'Little Girls Episode,' which reportedly lasted 6 weeks in the winter of 1774, Pelagie assisted the Marquis not only in hiring six young, nubile servants for sexual purposes at their castle, La Coste, but also was instrumental in dispersing them to various convents when parents began to accuse her husband of having abducted their children through a process of seduction. In letters written later by the Marquis de Sade to his wife, he makes reference to these sexual exploits in a manner which indicates that Pelagie was either participating or watching. With rather extraordinary insight, Pelagie's mother, who arranged for a number of police raids on the castle, observed, 'if they stay together ... he will drag her into the abyss with him,' while observing that her daughter also exerted an effect on her detested son-in-law: 'when he is in the castle with her, he thinks of himself as too powerful, too secure, and he permits himself all kinds of excess.' This description of sexually sadistic fantasies and behavior becoming a shared 249 One notion that persisted into the 20th century was that of the female masochist who must "want it," and Walker notes that as late as the 1950's women were beaten who "liked it and deserved it."1378

She discussed that it was suggested that women who are beaten are those "who suffer from negative personality characteristics, including masochism."1379 Walker explains that it was agreed that the woman experienced "pleasure, often akin to sexual pleasure, through being beaten by the man she loves. Because this has been such a prevailing stereotype, many battered women begin to wonder if they are indeed masochistic." Walker notes that historically, '"[g]ood wives' were taught that the way to stop assaults was to examine their behavior and try and change it to please men: to be less provocative, less aggressive, and less frigid."1381 She asserts that the women bear the responsibility for male violent behaviour.1382

Herman describes a 1964 study of battered women titled "The Wife Beater's Wife" where the wives studied were described as "castrating," "frigid," "aggressive," "indecisive," and "passive." 1383

Herman summarizes the study which sought to treat the women's "masochistic needs" in order to provide treatment to the women. Herman explains that "[i]n one case they managed to persuade the wife that she was provoking the violence, and they showed her how to mend her ways. When she no longer sought help from her teenage son to protect herself from beatings and no longer refused to

preoccupation in a marriage that was contrived primarily for social and economic reasons illustrates the compelling nature of this type of interchangeable sexuality that emanates from the eroticization of domination and control." 1378 Walker, Battered, supra note 974 at 20. 1379 Ibid. moIbid 1311 Ibid m2Ibid. 1383 Herman, supra note 400 at 117 citing J.E. Snell, R.J. Rosenwald, and A. Robey, "The Wife Beater's Wife," (1964) 11 Archives of General Psychiatry 107 [Snell, Rosenwald & Robey]. 250 submit to sex on demand, even when her husband was drunk and aggressive, her treatment was judged

,,1384 a success.

As seen in case studies of the victims of sexual sadists, the very subtle development of coercion follows the pattern of small steps towards a larger goal in the future. Taylor explains that "[fjrom the start, the abuser may exploit this weakness by testing his partner's tolerance in small ways, perhaps with a snide remark here or there. A victim of abuse may initially register each individual put-down as trivial ('He's tired, he's had a bad day, he didn't mean it'), and unless she has made that special effort and conceptualized the remarks as a part of a whole (as a concerted campaign, whether planned or not, by the abuser) she will not keep track of them - or their cumulative effect on her self- esteem."1385 As illustration Taylor uses the "urban legend" that if you slowly turn up the heat on a frog placed in a pot of water, it will die without an attempt at escape.1386 It is evident from an examination of many of these cases that the abuser "ratchets up control in slow degrees" and each time that the "victim does not object, does not set her tolerance boundaries and stick to them, the next slight will be that little bit more hurtful, slowly lowering the victim's belief in her own competence while building up her perception of the abuser's abilities."1387 Taylor notes that if the abuser is physically dominant there may be learned helplessness and "[Repetitive verbal abuse focusing on her weakness, worthlessness, and isolation will reinforce this behaviour. She may also come to depend on the abuser for everything, particularly if he has demanded, as some cults do, that she withdraw from

1384 Ibid. Herman notes, at 117-118, that there was a push in the mid-1980's to revise the diagnostic manual of the American Psychiatric Association, and a group of male doctors wanted to add "masochistic personality disorder" to describe a person who "remains in relationships in which others exploit, abuse, or take advantage of him or her, despite opportunities to alter the situation." Women's advocates were outraged and demanded that women be included in the framing of this disorder. Herman was a participant in the process and noted that one member found discussing battered women "irrelevant" and that another noted "I never see victims." Herman notes that the APA was persuaded to change the disorder to "self- defeating personality disorder" which automatically excluded those who were "physically, sexually, or emotionally abused" and was not in the main body of the text but as an appendix. 1385 Taylor, supra note 46 at 87 [emphasis in original]. 1386 Ibid. m7Ibid. 251 ties with friends and family." 8 Taylor also identifies that if there is resistance by the victim of abuse, the sadist will beg forgiveness and attempt the situation at another time. Or, "he may use threats: desertion, poverty, humiliation, violence to her or her children. If she threatens him, he will know how to play on her guilt; the helpless small boy act is often very effective . . . The continual denigration of her abilities, coming from someone she may once have loved, or may still love, but has come to fear, will change her self-image until she no longer thinks of herself as someone who is capable of threatening." Taylor answers the question of those who still ask why the victim of a sexual sadist/abuser does not leave the situation because this condition transforms the woman from a

"functioning individual to a trapped and terrified creature whose cognitive horizons have so shrunk that she cannot even comprehend the possibility of escaping her predicament."1390

Taylor makes the connection between a totalitarian society and the abuse victim with the use of brainwashing. She explains that the "abuser seeks to dominate the victim's environment, the stimuli that reach her brain, and hence the content of her thoughts. Abusers often also make use of a cult of confession in which the victim is allowed no privacy and must render detailed accounts of actions and thoughts."1391 This is reinforced by showing the victim how helpless she is, and how superior he is by

"maximizing the contrast between his power and his victims helplessness, partly by demonstrating his control over her, by force if need be."1392 Taylor extends this analogy between totalitarian regimes and abusers saying that both "practice forms of mystical manipulation, sacred science and loading the language, and insist on their demands for purity and the primacy of doctrine over person. Ego threats,

™%Ibid. 1389 Taylor, supra note 46 at 87. 1390 Ibid. 1391 Ibid, at 88. 1392 Ibid. 252 which are after all expressions of alternative ideologies, are minimized as much as possible (demands

for purity.)"1393 She notes that the abuser will:

load his language with simplistic, pejorative remarks, often based on little actual knowledge, which denigrate not only the victim but her family, friends, background, and opinions. The victim's psychological and physical health are less of a priority than the maintenance of the abuser's fragile ego (the primacy of doctrine over person), and the victim is not allowed to challenge this situation even though the abuser may provide no rational justification for his behaviour ... his superiority is taken for granted, first by him and later by his victim.1394

Taylor notes that the type of brainwashing involved in domestic abuse can be particularly debilitating

because "our ability to detect deceit is far from perfect. Particularly problematic are influence

attempts which occur gradually over a long period ... the influence attempt may be hard to recognize

as such, especially if the victim is strongly motivated not to acknowledge it."1395

Beth Richie analyses why battered women commit crime from the perspective of African

American women.1396 She argues that "[gjiven the broader social conditions that the African

American battered women lived in, staying/or them meant participating in illegal activity. From their

perspective - created by their experience of abuse and their marginalized social location - becoming

involved in crime was a reasonable behavioral response to abuse - it was a part of their survival strategy."1397 Richie analysed African American women detained at Rikers Island detention facility.

She notes that the "analogy of being battered to being held hostage by terrorists, which is made by some experts on violence in intimate relationships, offers a helpful context for understanding how a battered woman could not intervene to save her child's life."1398 Buel has also noted that "[cjourts and

1393 Ibid, at 89. 1394 Ibid. 1395 Taylor, supra note 46 at 251. 1396 Beth E. Richie, Compelled to Crime: The Gender Entrapment of Battered Black Women (New York: London Routledge, 1996) [Richie]. 1397 Richie, supra note 1396 at 149 [emphasis in original]. 1398 Ibid, at 153. In addition, Richie notes, at 154, that many of the women that she studied "took the rap for their mutual criminal behavior . . . Other African American battered women in the sample reported that their male partners threatened them with violence if they did not enter a guilty plea as the primary defendant in the cases. Other abusive African American men set up the battered women so that they would 253 media often distinguish between 'good' and 'bad' battered women. Those who are married, passive, and religious are the 'real' battered women, as opposed to those who are angry, have fought back, or have a criminal record, and are thus considered undeserving of remedial assistance."1399 These women feel that offending against others is simply a factor in their own survival.

ii. Compliant Victims of the Sexual Sadist

This second article in the series by Hazelwood et al. was essential in the psychiatric evaluations of Karla Homolka, and thus will be pivotal for explaining why a woman acting under brainwashing or marital coercion may actively participate in the crimes dictated by her abuser. This study is based on interviews with seven women who had been the partners of sexual sadists who were identified in FBI investigations. Hazelwood et al. found that there was a pattern to the sexual, emotional and physical abuse and the "process of transformation" that each woman experienced.1401 Three of the women were married for 2 to 13 years, and the other four were in relationships ranging in length from

3 to 18 months.1402 Six women were "sexually naive" when meeting their abuser, all had low self- esteem, and none had experienced sadomasochism in the past.1403 All were products of "middle to upper-middle class backgrounds"1404 and were "non-aggressive, remorseful, and guilt-ridden. They

be arrested by leaving them uncovered or by planting illegal drugs or weapons on them, then neglected to post bail." 1399 Buel, supra note 968 at 265. 1400 Hazelwood et al, supra note 1336 at 474. The authors define, at 474, a "sexual sadist" from an original study that they had completed where they had interviewed 30 men who "were sexually aroused by the intentional torture of victims. Their crimes were also characterized by careful planning, selection of strangers as victims, recording of the offences by various means, keeping personal items taken from their victims, restraints of the victim, and a pattern of holding the victims captive for periods ranging from 24 hours to 7 years before killing or releasing them." 1401 Ibid. m2Ibid. at 474-75. 1403 Ibid, at 475. 1404 I agree with the statement of Graham and Rawlings in Graham & Rowlings, supra note 1240 at 119 that "it makes no more sense to attempt to explain why particular women get into abusive relationships (while others do not) by analyzing their childhoods or personalities than to attempt to explain why particular Americans are aboard an airplane that is skyjacked (while other Americans are aboard airplanes that are not skyjacked) by examining their childhoods or personalities." See also Graham, supra note 51 at 49 who notes that it is absurd to think that kidnappers "wait until they see someone with a weak 254 berated themselves for 'being so stupid' and could not accept the fact that they had been manipulated to such a degree by the men."1405 All but one was "successful" professionally when they met their abuser.1406 Hazelwood and Michaud note that it is important to the sexual sadist to select professional women because he wants to prove that he can transform a "woman from a nice middle-class family" to a "sexual slave willing to join him in any act, no matter how degrading or depraved, to prove her love or to keep him from leaving."1407 The challenge of coercing a successful, professional woman who would be seen as capable of leaving the relationship seemed to be part of the game.

The range and scope of the physical abuse catalogued by the researchers is noteworthy. All were frequently beaten by the abuser by hand or with objects. One woman was bound with "adhesive tape" over her entire body for three days, and was continually beaten. Four had broken bones, five were whipped, one was hung by the wrists and whipped, four were burned, all were bitten.1410 Five women had "clamps" used on their labia and nipples with one woman noting that her "boyfriend wanted to place an earring through her labia but he could not find 'one he liked.'" Six were strangled in some manner during sex to the point of unconsciousness, and bondage was used on all of the women to increase discomfort. Even though many had serious injuries, only one sought any medical attention. All were sexually abused; three with foreign objects (including a large flashlight

personality walking down the street before they pounce? More broadly, are we to assume that only people with weak personalities are held hostage and abused? This is absurd. Similarly, we would argue that battered women and abused children are not battered because of a personality defect or their socialization; it is their abusers who have the personality defect and/or abusive backgrounds.'''' [emphasis in original]. 1405 Hazelwood et al, supra note 1336 at 475. 1406 Ibid, at 474. The authors note at 476 that the women were employed; the range of their occupations included a bank employee, fire system engineer, business owner, insurance broker, student nurse, and retail clerk. 1407 Hazelwood & Michaud, supra note 1332 at 111. 1408 Hazelwood et al, supra note 1336 at 475. 1409 Ibid. moIbid. ""Ibid m2Ibid. 255 and a piece of wood) and most were anally penetrated, usually with an object to cause pain.1413 A

wide range of humiliating acts were reported, including forced fellatio, ejaculating on their face or

mouth, being urinated on, forced enemas, sex with third parties, and sex with other kidnapped

parties. All stated that their partners were "sexually insatiable."1415

All of the victims of the sexual sadist suffered emotional and psychological abuse, three were

kept captive for 24 hours or longer, three were forced to "write and sign documents of slavery or

servitude," six were "scripted" by the abuser, four had their sexual acts recorded in some manner

(photographs, drawings, audiotapes, and writings) and some were later blackmailed with these

recordings. All were verbally abused, which "lowered their self-esteem, but also kept them in a

constant state of fear and depression."1417 The transformation of these women who led "relatively normal patterns of living" to a "bizarre, destructive, and dangerous forms of exploitation and

perversion" was strikingly similar.1418 The authors note a very similar pattern of brainwashing among the women, with five common factors found in most of the women: (1) Selection of a vulnerable woman - the men sought "naive, passive, and vulnerable" women which the sadist would exploit for their own "need for dominance, control, and sadistic sexual behaviours," and they would select "nice" women who had not been subjected to these practices before. (2) Seduction of the targeted woman

- all of the women stated that their abuser was "charming, considerate, daring, unselfish, and attentive" when they began dating, and all entered into a relationship quickly "even though they

1413 Ibid. m4Ibid. m5Ibid 1416 Ibid, at 476. The authors define "scripting", at 476, as "being required to repeat words or phrases given theme by the men, being forced to verbally describe the sexual acts taking place, pleading for sexual or physical abuse, using derogatory terms for themselves or parts of their bodies, or developing obscene fantasy scenarios for the men." Homolka alleged that she was "scripted" by Bernardo. 1417 Hazelwood et al, supra note 1336 at 476. w%Ibid. at 477. 1419 Ibid. 256 recognised a sinister side to them." The abuser was careful to be sure of "genuine affection" from

the women until he was "confident in his ability to manipulate and use the woman in ways that were

sexually gratifying to him." (3) Shaping sexual behaviour - this was dependent upon the

malleability of the woman to engage in alternative sexual acts, and the abuser reinforced his gratitude

towards her for participating in these activities, and his disappointment if she did not until these acts

became regular.1422 Eventually, resistance was met with threats of violence. (4) Social isolation - the

sadists became "possessive and jealous" of activities that did not involve them and rejected her friends

so that "the world of these women became increasingly circumscribed and their circle of confidants

eventually dissipated."1 (5) Punishment - psychological and physical punishment was the final step

as the women became completely dependent on the sadist who reinforced that they had participated in

acts that no "nice" woman would perform, and three were forced to call themselves "evil."1424 The

punishment included all of the acts described above, and the authors note that four of the women were

made to participate in "criminal activities.

Hazelwood et al. identify that it is noteworthy that the "women were compliant for so long with

the men who degraded, exploited and abused them," especially as most took a "competent woman of

1420 Ibid. 1421 Ibid. Hazelwood & Michaud, supra note 1332 at 112 note that the "compliant victim loves almost unconditionally; she'll endure remarkable amounts of abuse, pain, and heartache once she's fallen in love. And she'll acquiesce in loathsome acts of which she once was utterly incapable." 1422 Hazelwood et al., supra note 1336 at 477. The authors note at 477 that the women agreed that "once anal intercourse became a regular part of their sexual repertoire, vaginal intercourse ceased to interest their partners." 1423 Ibid. Again, this is reminiscent of the stories of brainwashed POW's. Edward Hunter noted in his testimony before the Un-American Activities committee, supra note 93 at 18, that "[n]o man has ever been brainwashed whose mind has not first been put into a fog . . . The patient first has to be deprived of his bearings, to be shaken loose from whatever belief and convictions he formerly held, until he loses faith in them entirely." 1424 Hazelwood et al., supra note 1336 at 477. 1425 Ibid. Hazelwood & Michaud, supra note 1332 at 113 explain why the sadist conditions this response in the women making them degrade themselves. They theorize that "he has thoroughly conditioned her to comply with his perverted sexual demands; and because she does so, he is able to affirm his belief that all women are evil. He reasons that no decent woman would participate in such disgusting behavior. Because she does participate, she justifies the hatred he has secretly had for her from the beginning. In his twisted logic, she deserves to be punished." 257 higher status and transformed her into a sexually and psychologically compliant slave." The

common link that joined these women was a vulnerable "sense of self which made her "a prime

target for moulding by her eventual captor."1 7 This very similar pattern was observed for all of the

women studied, and their backgrounds and characteristics were clearly similar. The authors make the

link between this distinct group of battered women and brainwashing. They note that "[m]any of the

dynamics used in other kinds of 'brainwashing' or 'mind control' seem to be used in this context. Not

only does the sadist isolate the women from other intimate relationships, but he also physically abuses

her, deprives her of sleep, repeatedly degrades and humiliates her, and gradually introduces new

behaviours into her repertoire accompanied by both positive reinforcement for compliant behaviours

and negative reinforcements or non compliant behaviour."1428 Hazelwood and Michaud cite one of the women from their studies who explained how she was forced to sign a "slave contract."1429 The

authors changed the names of the subjects but noted that the content of the document was drafted to

read, "I, Ann, do hereby bequeath to Lyle total ownership of my person and possessions. This entitles him to do whatever he pleases to me. He has the right to impose punishment as he deems necessary. I release Lyle from all liability, both personal and financial. I will be responsible for all of my own bills. I have willingly entered into this contract."1430 "Ann" described her adherence to this contract to the authors, noting:

I became convinced I was his slave . . . and he could do anything he wanted to me, even kill me. I didn't enjoy what he was doing, and I didn't want him to do these things to me. But when I refused to cooperate, he would hurt me so bad that I was afraid not to do as he ordered.

1426 Hazelwood et al., supra note 1336 at 478. The authors cite Lenore Walker, at 478, noting that although they do not believe that anyone is "victim-prone" the fact that there had been such a history of abuse in their childhoods and past relationships leads to the conclusion that their backgrounds might have made them targets for the sexual sadist. 1427 Ibid. 1428 Ibid. The authors also note, at 478, that drugs were occasionally used in the process of transformation. 1429 Hazelwood & Michaud, supra note 1332 at 116. 1430 Ibid. 258 If I did what he wanted, he would be nice and not hurt me so much. Because of this I wanted to be the best slave possible, and I worked hard at it.1431

These same issues arise in those brainwashed in other circumstances as those comments made by this

group of women abused by sexual sadists. It is difficult for many to understand how someone who

was subject to this kind of abuse could want to be the "best slave possible" but these issues continue to

arise in the context of the compliant victim of the sexual sadist.

In their previous study, Hazelwood et al. were given a definition of sexual sadism by one of the

participants who explained where his arousal came from. He said that the:

wish to inflict pain on others is not the essence of sadism. One essential impulse: to have complete mastery over another person, to make him-her [sic] a helpless object of our will, to become her God, to do with her as one pleases. To humiliate her, to enslave her are means to this end, and the most important radical aid is to make her suffer since there is no greater power over another person than that of inflicting pain on her to force her to undergo suffering without her being able to defend herself. The pleasure in the complete domination over another person is the very essence of the sadistic drive.

The stories of these women confirm this domination as they describe the need of their partner to

control them in all aspects of their lives. This is the element that most do not understand when

looking at these women in a legal perspective. Many note that "the most extreme case was a woman

who voluntarily returned to abysmal conditions of captivity despite frequent opportunities to escape.

The psychological control of the sadist was graphically expressed as a physical reality."1433 The need

1431 Ibid. Note that these are the words of a 36-year-old successful insurance broker who by the time of the trial was so damaged that she asked if she could hold a teddy bear during her testimony. See Hazelwood & Michaud, supra note 1332 at 117. See Hazelwood & Michaud, supra note 1332 at 118 where the authors note that the judge in this trial believed that Ann was not a willing participant to the drug abuse to which she was subjected. 1432 Hazelwood et al, supra note 1336 at 478 citing, Park Elliott Dietz, Robert R. Hazelwood, & Janet Warren, "The Sexually Sadistic Criminal and His Offenses" (1990) 18 Bulletin of the American Academy of Psychiatry and the Law 163 at 165 citing sexual sadist Mike DeBadeleben identified in Hazelwood & Michaud, supra note 1332 at 87. 1433 Hazelwood et al, supra note 1336 at 478. There are several examples of women returning to the sexual sadist when outwardly they appear "free" not to do so. Hazelwood & Michaud, supra note 1332 at 94-95 describe one sexual sadist who would capture women and keep them captive in his house for approximately six weeks until he no longer wanted to hold them hostage. He conditioned their behaviour with poisonous snakes. He eventually told all of the women that they were allowed to leave, but "the women were instructed that they must return to him if he so demanded. If they didn't, or if they reported him to the 259 for overt controls over this woman slowly disintegrates until she feels as if she could never escape, whether or not this is the truth. The psychological control is just as effective as the physical control of the victim.

Many question why the sexual sadist feels it necessary to bring other third party victims into the relationship where they already have a compliant victim. They note that the "availability of consenting partners with whom they can legally act out these sexual scenarios raises the question as to why the sadists simultaneously choose to commit crimes against additional victims, despite the risk of apprehension."1434 The reason may be the power felt in dominating even more women. For this reason, one of the subjects commented on why killing became part of their arousal, noting that "I never thought it would be so easy to kill a person, or that I would enjoy it. But it was easy and I was enjoying the feeling of supremacy. A supremacy like I have never known before."1435 It is for this same reason that it seems that sexual sadists coerce their victims to commit crimes.

The authors also discuss the fact that "several of the women eventually became co-conspirators with the sadists in serious criminal activities."1436 Hazelwood et al. note that BWS has been successfully used in self-defence claims, and note that Patty Hearst's alleged brainwashing was involved in her criminal acts. The authors note that the wife of the sadist who kidnapped victims is serving a sentence for assisting her husband on the grounds of a guilty plea for a shorter sentence.

The authors do not discuss in detail the legal fate of the coercively persuaded battered woman. I believe that this is the final link in this very important analysis.

police, he warned them they very likely would find a snake in their shower, under their bedcovers, in their car, or in their mailbox. It was a very effective form of psychological coercion. The women did as they were told, without exception." 1434 Hazelwood et al, supra note 1336 at 478. It is questionable whether some of these acts described within this thesis can ever be consensual. 1435 Hazelwood et al., supra note 1336 at 478 citing their previous study, Dietz, Hazelwood & Warren, supra note 1332 at 165. 1436 Hazelwood et al, supra note 1336 at 478. 260 iii. Relational Patterns Associated with Sexual Sadism: A Study of 20 Wives & Girlfriends

This follow-up study used some of the same seven participants from their previous research with the addition of 13 more women. Again, Warren and Hazelwood studied the subset of women under the control and domination of a sexual sadist. They describe a situation where the offender coerced his "girlfriend, wife, and eventual codefendant" to kidnap and hold captive young teenagers for his sexual fulfillment.1437 Again, the researchers looked at situations where women are compelled to commit crimes in which the "sexual fantasies of the man become a part of the voluntary and

'compliant' behaviour of the woman." 8 The same methodology was used, including interviews with victims who experienced emotional, physical and sexual behaviours, which included the

"domination, control, and suffering of partners" including "scripting" in order to have "ultimate control over the life, and death, of another."143

For the first time, however, the authors note that the motivation for the woman to submit herself to these acts is "complex and diverse," as it is not just the "attention and affection" of the male that they seek.1440 Interestingly, in some cases "the women become assimilated into the sexual aggression of their partners."1441 They note that some are motivated by love, isolation, dependency, fear for their lives, fear for the lives of their children or a combination thereof; however, again the authors recognize that there are other motivations including the "sense of exhilaration in sharing behavior that is extreme and outside all definitions of normalcy."1442 Thus, there is recognition that there may be something beyond pleasing the sexual sadist behind the actions of these women.

1437 Warren & Hazelwood, supra note 1042 at 76. 1438 Ibid. H39Ibid. U4°Ibid m]Ibid. m2Ibid. 261 The same methodology employed in the first study on the compliant victims was used, and the background of these women was very similar to the patterns found in the earlier research. Again, many of the women were educated and led professionally successful, "conventional, stable, and non­ criminal lives." Most were not "economically vulnerable," and 17 of the 20 women had no criminal history.1444 Five of the women were eventually charged with crimes; one was given probation for her testimony against her husband, and another was convicted for conspiring to murder the sexual sadist.1445 The other three women had reduced sentences for their testimony against their partner, and several of the women were not charged with some of their crimes, including "possession of an illegal substance, smuggling, theft, and accessory to incest."1446

Warren and Hazelwood focus on the four women who were involved in murder. The first subject is "Susan," who was married in her teens to a sexual sadist.1447 Susan wanted a child, and her husband told her she could have one if he could have a sexual slave.1448 Susan agreed to help abduct a young girl, and she stayed upstairs as her husband raped and tortured the captive girl. Susan told the researchers that she could "feel herself 'floating' above herself, looking down at herself, thinking that she should do something about what was happening in the basement but finding herself unable to move." Her husband muted the captured girl by slitting her vocal cords, upon which she died from excessive bleeding. Susan's husband forced her cooperation in burying the girl, and she felt that he might kill her next.1450

1443 Ibid, at 77-79. 1444 Ibid, at 78-79. The authors note, at 79, that the remaining three women had been arrested for very minor misdemeanor offences including a stolen lipstick, typewriter, and cheque. 1445 Ibid, at 80. As noted at 80, this woman had been sexually abused over a long period of time, so she arranged to have him beaten, but the hired men eventually set him on fire. 1446 Warren & Hazelwood, supra note 1042 at 80. Interestingly, the authors note at 80 that "[s]ince being separated from the men, two have been arrested for felony offenses and two for misdemeanor offences." 1447 Ibid, at 80. 1448 Ibid. 1449 Ibid. 1450 Ibid, at 81. 262 "Wendy" loved the sadistic male she was involved with, even when he started to date other women, including a woman named "Carla" to whom he became engaged.1451 The sadist convinced

Wendy to give Carla "sex-therapy," and told Carla that if she did not participate she would die.1452

Wendy left the room and Carla was dead when she returned. The abuser told her that she had to assist in burying the body or she would be "charged with conspiracy to murder, and they would both go to prison for the rest of their lives."1453

"Francis" was 17 years old when she met her abuser, and she was coerced into participating in the sexual assault of a woman that her partner found attractive.1454 The other woman died during the rape, and Francis was convinced by the sexual sadist to tell the police that it was because the other woman was drinking excessively that she died. Francis eventually testified against her husband when it was discovered that he was involved with the deaths of two other women.1455

"Teresa" believed her husband was devoted to her happiness and she agreed to increasingly abusive sex acts. She was coerced into assisting in the kidnapping of a young woman whom he sexually assaulted.1456 He murdered the girl and convinced Teresa that she would be an accessory to murder if she did not continue to assist him. They eventually killed five victims over a few months.

Teresa eventually testified against her husband. 7

The researchers express doubts whether the women knew that these murders were going to happen, or whether they were influenced by their partners saying that they would be co-defendants in the murders.1458 Warren and Hazelwood note that this explanation does not "adequately encompass the obvious willingness of the women to participate in the sexual assault of another woman and to

1451 Ibid. U52Ibid. 1453 Ibid. U5AIbid. 1455 Warren & Hazelwood, supra note 1042 at 81. 1456 Ibid, at 82. 1457 Ibid. U5BIbid. 263 participate in behaviors that were physically and emotionally tortuous to them. As such, it would require distinguishing for them between a willingness to participate in rape and assault, but not murder." 59 So what should be taken into account by the Courts?

Warren and Hazelwood again briefly describe 3 case studies, and they report their responses to why these women got involved with these sexual sadists to further understand their motivation. They found that "15 (75%) attributed it to love and a subsequent desire to please the man, 2 described themselves as being extremely naive, 2 indicated that they wanted to get away from home, and one could not explain her behavior."1460 Eighty-five percent of the women described a very loving courtship where they were lavished with gifts and attention.1461 However, some women were cognizant of a "darker side" to the men, as 45% reported "explosive anger" during courtship and 55% experienced sadomasochistic acts.1462 Thirteen women married their abuser and were married from 18 months to 26 years.1463 The researchers divided the women who committed murder into those who knew the "dark side" of their partner and those who did not.1 They note that "[tjhese dynamics highlight the pervasive polarities of responsibility/culpability as well as victimization that characterize the experience and behavior of these women. Although the men were motivated to exploit, assault and, in some instances, kill others as part of their unique sexual and personality characteristics, the women seemed to be activated into participation only though the relational effect of the man and his sexual deviance."1465 With this key distinction, it seems unlikely that these women would have ever offended if not for their abuser, while their abuser would have committed similar crimes but possibly sought out another accomplice.

1459 Ibid. 1460 Ibid, at 83. 1461 Ibid. 1462 Warren & Hazelwood, supra note 1042 at 83. 1463 Ibid, at 84. 1464 Ibid. m5Ibid. 264 Warren and Hazelwood characterize the abuse suffered by these 20 women including object

insertion, fetishism, whipping, bondage, costuming the women, verbal and or/behavioral abuse,

scripting, hanging, strangulation, and incestuous relationships with children.1466 The researchers also

asked the question (often posed), "Why did you stay?" They found that three "stayed out of love,

seven because of fear, one emotional dependence, one financial dependency and eight 'stupidity,

naivete, or expectation that their [partner] would get better.'"1467 The reasons why they eventually

left: eight of the women left "out of fear for their own lives, three for fear of the children's lives, three

because of the arrest of the partner, five for other reasons and, in one instance, the offender left the

woman when she refused to participate in his sex with his new girlfriend."1468 Many of the women

reported that they had lost interest in sex and seventeen had ongoing medical concerns.1469 When

asked about their feelings toward the sadist, "18 reported anger or hate, 1 pity, and 1 was unsure of

how she felt."1470

The researchers note how skilled the abusers were in seducing them into this life.1471 Warren and

Hazelwood conclude that "the behavior these women experienced, and their own involvement in

criminal behavior, grew out of a combination of these factors, and had either the developmental or

relational components been missing, the events would not have occurred."1472 The researchers also

conclude that "the women would not have decided to perpetrate the murders independent of the men; alternatively, the behavior of the men suggests that the men would have murdered as an expression of their sexually sadistic urges independent of the availability of their female partner."1473 The authors also make the point that the sexual sadists are a unique group of offenders where "dominance, control,

1466 Ibid. U61lbid. U6slbid. 1469 Ibid, at 86. 1470 Warren & Hazelwood, supra note 1042 at 86. 1471 Ibid, at 87. 1472 Ibid. mIbid. 265 and humiliation have become eroticized and integrated into the sexual fantasy life and the sexual

arousal of the male."1474 They note that it is their opinion that "these men and their behaviors do not

reflect the more extreme end of the continuum of behavior associated with 'wife batterers.' Although

some men who batter their wives may also be sexual sadists, it is our impression that the majority of them are not."1475 Again, this reinforces the point that these offenders are a very distinct class that

cannot be generalized into the larger population of batterers, and perhaps their victims/partners cannot be understood within the typical model of the battered woman.

e. Brainwashing, the Victim of the Sexual Sadist, and Crimes Against Third Parties

The final piece of the puzzle that distinguishes the victims/partners of the sexual sadist from other battered women is the sexual violation, and the eventual violation of third parties. Herman has noted that the "final step in the psychological control of the victim is not completed until she has been forced to violate her own moral principles and to betray her basic human attachments.

Psychologically, this is the most destructive of all coercive techniques, for the victim succumbs and loathes herself. It is at this point, when the victim under duress participates in the sacrifice of others, that she is truly 'broken.'"1 7 Those women who are found guilty of criminal acts on third parties are

"subjected to extraordinary censure."1477

Examining these situations, one still comes back to the question of how these women, so brutally abused themselves, could possibly commit these kinds of crimes against others. It has been noted that in examining the "growing mound of legal literature on battered women, it is clear that the majority of all published material on the subject is written about women who have killed spouses or intimate

1474 Ibid. 1475 Ibid. 1476 Herman, supra note 400 at 83. W1 Ibid, at 115. 266 others."1478 However, there are many other women who do not kill their batterer but commit crimes

against innocent third parties. 1479 As Jacob notes, "the linkage between crime and domestic violence

is well established."1480 She notes that "[i]f we believe violence can force a woman to engage in

behavior as violent as killing [her abusive partner], it seems logical that women would also engage in

other kinds of criminal activity when under the pressure of violent abuse.1481 Jacobs also notes that

"prostitution, drug use, and theft are the three categories of offenses which repeatedly involve women

who have been subjected to violent abuse."1482 Jacobs notes that in various studies "the women

identified the experience of being beaten and abused within their homes as the factor that propelled

them into the activity for which they were eventually arrested."1483 However, as Jacobs notes, "there

are other scenarios as well which are more complicated, including ones where the abused woman

1478 Michelle S. Jacobs, "Prostitutes, Drug Users, and Thieves: The Invisible Women in the Campaign to End Violence Against Women" (1999) Temple Political & Civil Rights Law Review 459 at 461 [Jacobs, "Prostitutes"]. Jacobs continues, at 461 to explain that "[i]t is easy to understand why so much attention is paid to the woman who kills. After all, she is usually facing serious criminal charges, which can carry exposure to a sentence of life in prison, or even to death in states with capital punishment. Her legal needs are vast. She may also garner the lion's share of society's interest because although society generally abhors a killing, it reserves a special place in legal jurisprudence, and indeed morally in our minds, for that person who kills to protect his or her life." 1479 There is always a danger of talking of victims that the net will be cast too broadly. Scholars have discussed the role of the victim. A full discussion is beyond the scope of this thesis but see generally Martha Minow, "Surviving Victim Talk" (1992) 40 UCLA L. Rev. 1411 at 1426 [Minow] who notes that the "recovery movements tend to treat all families as 'toxic,' as incubators of a disease called 'toxic shame"; those suffering from addictions or other types of compulsive behavior "are encouraged to see themselves as victims of family life rather than self-determining participants . . . people use the language of victimhood to avoid responsibility and to try to convert what were once called bad habits into addictions." Minow goes on to say at 1427 that "[fjinding intimate violence everywhere trivializes it and obscures important distinctions in gradations of harm." There is little question that the victims of intimate terrorism discussed in this thesis would not fit squarely within the victim purview. These are tortured and abused women who do not need to be pathologized, but do need to be recognized. 1480 Jacobs, "Prostitutes", supra note 1478 at 463 citing Richie, supra note 1397. 1481 Ibid at 463-64. 1482 What is most often referred to is drug use/prostitution. See Jacobs, "Prostitutes", supra note 1478 at 463. Jacobs also notes, at 463, that the "absence of support for these women is puzzling. On the one hand, it is harder to write about them because they are less sympathetic in the eyes of the public and probably to feminists as well." Again, although beyond the scope of this thesis, Jacobs, "Prostitutes", supra note 1478 at 472 notes that "drug use is one of the ways a woman can medicate herself to dull her senses to the violence she may be experiencing at home." 1483 Jacobs, "Prostitutes", supra note 1478 at 466. 267 engages in crime with her abuser because it represents an 'opportunity for mutuality and shared

power.'"1484 Jacobs notes that "[fjhese women will surely test the limits of our ability to think

expansively about violence against women on levels other than the rarefied one to which we have

become accustomed."1485

One way to conceptualize this process is to look at Post-Traumatic Stress Disorder (PTSD). The

DSM-IV-TR defines PTSD as the:

development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury . . . The person's response to the event must involve intense fear, helplessness, or horror . . . The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal... Traumatic events that are experienced directly include .. violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration I486 camp.

The battered woman experiences many of these traumatic symptoms, and many experience them

all.1487 One of the main benefits of this type of analysis is that it shows a "woman's behavior as a normal psychological response to traumatic events, rather than as the psychological dysfunction posited by BWS."1488 Like many of the women who have been discussed, those with PTSD exhibit

"intrusive, avoidance, and arousal symptoms as a result of a psychologically distressing 'event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others.'"1489

UMIbid. at 474. 1485 Ibid. 1486 DSM-IV-TR, supra note 62. miIbid. 1488 Jones, "Guardianship", supra note 982 at 618. 1489 Ibid, citing the DSM-IV-TR, supra note 62. 268 One of the features of this disorder in the most traumatized individuals is "avoidance or

constriction."1490 Herman explains that these individuals have been "reduced to a goal of simple

survival, psychological constriction becomes an essential form of adaptation. This narrowing applies to every aspect of life - to relationships, activities, thoughts, memories, emotions, and even

sensations. And while this constriction is adaptive in captivity, it also leads to a kind of atrophy in the psychological capacities that have been suppressed and to the overdevelopment of a solitary inner life."1491 Herman explains that "[p]eople in captivity become adept practitioners of the arts of altered consciousness. Through the practice of dissociation, voluntary thought suppression, minimization, and sometimes outright denial, they learn to alter an unbearable reality."1492 Herman notes that there is not enough of a psychological explanation for why this happens, and resorts to the term

"doublethink," created in George Orwell's 1984.im Doublethink is defined as:

the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them. The [person] knows in which direction his memories must be altered; he therefore knows that he is playing tricks with reality; but by the exercise of doublethink he also satisfies himself that reality is not violated . . . Even in using the word doublethink it is _ IT 1.7 1494 necessary to exercise doublethink.

Herman notes that the "ability to hold contradictory beliefs simultaneously is one characteristic of trance states. The ability to alter perception is another."1495 It is arguable that this is exactly what the battered victim of the sexual sadist does when she is forced to commit crimes against third parties.

She is able to hold those contradictory beliefs and continue to function.

There is a distinct focus on blaming the victim in these circumstances. It is often clear that after escaping this type of relationship, these individuals are no longer "ordinary or healthy."1 6 As

1490 Herman, supra note 400 at 87. 1491 Ibid. 1492 Ibid. 1493 George Orwell, 1984 (London: Penguin, 1949) [Orwell]. 1494 Orwell, supra note 1493 at 223. 1495 Herman, supra note 400 at 87. 1496 Ibid, at 116. 269 Herman observes, the "tendency to blame the victim, however, has interfered with the psychological understanding and diagnosis of a post-traumatic syndrome. Instead of conceptualizing the psychopathology of the victim as a response to an abusive situation, mental health professionals have frequently attributed the abusive situation to the victim's presumed underlying psychopathology."1497

Delgado notes this choice saying that the battered victim of the sexual sadist has choice, but that this choice is "unrealistic."1498 Delgado asserts that it is a "defining feature of psychological totalism that the totalist demands of the victim both behavioral and attitudinal conformity. These twin demands reinforce each other; the criminal acts serve to increase the psychological distance between the victim's past and present life, while the ideological indoctrination makes future criminal acts more acceptable to the victim."1499 This indoctrination is the root of what is happening within many of these women.

f. The Use of the Brainwashing Defence in Interpersonal Relationships - Case Studies

This section will examine four cases studies involving individuals living under the control of a partner. All of these cases involve notorious, well known males who (largely) appear to fit the pattern of a sexual sadist. These cases are part of our popular culture which captured the imagination of the public through books, movies etc., but they have not resolved the liability issue regarding the manipulated party. All of these cases have in common the horror of the crimes that judges and juries were very loath to excuse. None of the defences was fully successful, but that lack of success may be a reflection of this horror rather than of doctrine or science. Juxtaposed with these cases is that of

Patty Hearst whose crime of robbery now seems relatively minor. It would be interesting if Hearst was tried today based on the science and flexibility of the doctrine, and whether she would be

Delgado, "Response", supra note 771 at 362. Ibid. 270 acquitted without the context of the social fears of the race/youth revolution of the 1960's. Yet,

because of these few precedents the courts will have to be bold in order to accept this defence.

Much of the case material which follows involves hypothesizing because both Janice Hooker

and Karla Homolka did not go to trial for their crimes. 00 Both women were seen as victims, though

in very different ways, and both agreed to be the key witness against their sadistic partners. The

picture painted of each of these women had a great deal to do with the "image" sought to be portrayed

by the prosecutors, and the evidence provided fulfilled that requirement. It is clear in both cases that

the state went to great lengths to present evidence of these women in a particular way. The

information provided on each of these women might be seen as the conventional view, but this does

not mean that it is wholly accurate. Interestingly, when Karla Homolka's home was searched after the

revelation of her husband's crimes, one of the books seized recounted the experiences of Janice

Hooker.1501

i. Janice Hooker

A young woman named Colleen Stan was abducted in the 1970's while she was hitchhiking

down the West coast of the United States. She trusted the young couple with a baby that pulled over

to pick her up. 5 The couple were Cameron and Janice Hooker, and Stan would become known in

the early 1980's as the "girl in the box" after she was kept for seven years as a sex slave in a

handmade coffin that was kept under the bed of the couple in their middle class home.1503 Janice had

originally been the subject of the sadistic abuse of her husband, but she agreed to participate in the

There seems little question that Hooker would not be charged in return for her testimony against her husband, and Homolka testified in return for a 12 year plea deal with the Crown. 1501 Christine McGuire & Carla Norton, Perfect Victim: The True Story of "The Girl in the Box" by the D.A. Who Prosecuted her Captor (New York: Dell, 1988) [McGuire & Norton]. This recounting of the story is from the District Attorney who prosecuted the case. The point of view is likely biased, but is used to expose the main facts as presented by the state. See Williams, Pact, supra note 1566 at 199, 202, that this book was found in the Bernardos home. 1502 Ibid, at 6. Stan had turned down a ride from a car of men whom she thought was too risky. 1503 Ibid, at 9. 271 kidnapping and care of her husband's slave in order to minimize her own abuse. Stan was soon

introduced to what she would come to know as the "head box."1504 Christine McGuire was the

District Attorney who prosecuted this case and, along with Carla Norton, wrote her recreations of the

facts as they were presented to her. She described that the head box:

was this man's special creation. Its construction was deceptive, for though it was made of plywood and was only about the size of a hatbox, it was surprisingly heavy, weighing nearly twenty pounds. Dense insulation was sandwiched in between its double walls, and it was hinged with metal. He opened it now. The circular hole at the bottom split into semicircles on either side. The interior of the box was carpeted. Forcing his hostage to lie down, he manoeuvred her head into the box, fitting her neck into the sculpted hole. Then he closed it around her head with a snap. It shut out all light. It muffled all sound.1505

Again, as Stan was being subjected to this capture and subsequent torture, Hooker's wife Janice

outwardly continued with life as "normal."

Janice was introduced to Hooker when she was only 15 years old and was described as "shy,"

"insecure," and "pliant."1506 Within the first months of their relationship Hooker asked if he could

"hang her up, suspend her by the wrists from a tree without her clothes on."1507 Janice sought to please Hooker, and she agreed despite the painful effects of this treatment. She described Hooker as so affectionate when he let her down that it was easy to consent to the treatment the next time.15

Janice married Hooker when she was only 16 years old, and the violence increased. Hooker would choke Janice until she passed out, he would put a knife to her throat and ask if she wanted to die, he would show her crimes from the newspaper and tell her that is how he would kill her.1509 He would make her wear an army surplus gas mask that was sealed, but he would have to gag her to keep her from screaming. Hooker's fantasies became more violent and terrifying, until he suggested he would

1504 McGuire & Norton, supra note 1501 at 9. 1505 Ibid, at 8-9. m6 Ibid at 18. 1507 Ibid, at 19. ms Ibid, at 22. ]509Ibid. 272 like to introduce a third party to their relationship. He wanted a girl "who couldn't say no."1

McGuire and Norton described that:

[d]espite his darker habits, Jan still felt that she loved Cameron; she'd grown so dependent on him, she could hardly imagine being without him. So, while she was relieved by the idea of Cameron focusing the more painful acts - especially the hangings - on someone else, she was insistent that there should be no sexual intercourse between her husband and this other woman. They were man and wife, and as she saw it, true intimacy should be reserved solely to them. It's not clear exactly when or how, but ultimately Cameron and Janice reached an understanding. It was a trade-off. He could kidnap someone if she could have someone as well. She wanted a baby.151'

Hooker fitted their basement with what he called a "rack" upon which to hang his new sex slave, constructed the "head box," and began to stalk some women that were potential captives, and Janice got the baby that she so desperately wanted.151

Hooker and Janice were out for a drive with their new baby when they saw a hitchhiker on May

19, 1977. Hooker was asked, in his testimony at trial, whether Janice knew what he was going to do when they picked up Stan, and he confirmed this.1513 This started seven years of captivity and torture for Stan, much of which was spent in a coffin sized box under the couple's bed.1514 Stan was subject to "whippings and hangings, as well as incidents of strangulation, dunking, burning, electrocution, and sexual molestation." Eventually, Hooker presented Stan with a "slavery contract" which was typed by Janice.15 Among other things, the contract provided that Stan would "immediately, diligently, and enthusiastically comply with and submit her full being to any and all directions or desires of

1510 McGuire & Norton, supra note 1501 at 22. 1511 Ibid, at 23. 1512 Ibid. 1513 Ibid, at 306. Hooker also noted that he and his wife could "communicate without words." 1514 McGuire & Norton, supra note 1501 at 45. However, it is even more shocking that Stan was eventually allowed to be a caretaker to the couple's children, and eventually worked outside the home. McGuire and Norton summarize the disbelief of many, at 45, who said "[h]ere was a woman who had been going to work and returning home every day; how could it be that she was held against her will? Why didn't she just run away?" 1515 McGuire & Norton, supra note 1501 at 74. See McGuire & Norton, supra note 1501 at 114, that, like many of the victims of a sexual sadist described above, Hooker had inserted a gold earring through her right labia. m6Ibid. at 75. 273 Master or His assigns," and she "shall never cross her legs . . . shall wear no undergarments . . . and shall cover no part of her body with apparel or material."1517 Hooker, with the assistance of Janice, created an elaborate fiction that Stan was one of many sexual slaves in the United States which were overseen by the "Company."1518 If Stan did not obey, Hooker said that he would "not be allowed to keep her, and she might be turned over to someone not as nice as he was."1519 He said that he had paid $ 1,500 to have her registered with the Company, and now he was also under the control of the

Company who provided security and were "watching the house, monitoring the phones."1520 He told her, in detail, that if she ran away she would be found by the Company and they would torture her and she would be "lucky if she survived" because they would "nail her hands to a beam and let her hang for days" and her family would be killed.1521 Stan believed these stories, and felt trapped under the power of Hooker, Janice and the "Company."

It has been noted that Janice "appeared to accept the presence of another woman in their home because she could avoid being the subject of her husband's sadistic sexual rituals" (although this did not make her immune to continued torture) but there was evidence that Janice was more than a by­ stander.1522 Eventually it was Janice who contacted the police seven years after they had kidnapped

Stan. Unlike the Homolka case, there seems to be very little discussion of how Janice agreed to testify against her husband for full immunity for herself. There also does not seem to be any criticism that while Janice was on the witness stand she frequently "responded after long, empty pauses - or sometimes not at all. She often offered nothing more than, 'I can't remember' or 'I don't know.'"1523

What does not seem to be recognized at all is how complicit Janice was in the kidnapping and

1517 McGuire & Norton, supra note 1501 at 77. 1518 Ibid, at 79. 1519 Katherine Ramsland, "The Company" in The Case of the Seven-Year Sex Slave, www.trutv.com/library/crime/criminal_mind/psychology/sex_slave/6.html [Ramsland, "The Company"]. 1520 McGuire & Norton, supra note 1501 at 79. 1521 Ibid, at 79-82. Ewing & McCann, supra note 371 at 84. 1523 McGuire & Norton, supra note 1501 at 633. 274 subsequent captivity and abuse of Stan. Janice was also "free" to leave the home, and indeed she had

gone to bars to drink and meet men with Stan.1524 Janice was described by Hooker's lawyers as a

"jealous woman, desperate to get Stan out of the house and away from her husband."1525 Janice was

also engaged in sexual acts with Stan. McGuire and Norton note that toward the end of her captivity

Hooker "ordered his wife and his slave to entertain him with lesbian acts. And finally, with

considerable effort, he succeeded in swaying Janice to his position."1526 Janice testified about the final

rape of Stan and that Stan asked for Janice's permission to sleep with Hooker.1527 The obvious

question was if Hooker was the dominant and powerful force of control in the house, why did Stan

have to ask Janice's permission? Janice was asked in her testimony if she was jealous of Stan, and

why. She responded "I think that's a little obvious, why a wife would be jealous of another woman in

the house." When asked how she felt about Stan returning to her home, Janice responded that "I

felt threatened."1529 When asked why, she said that "it would start all over again."1530 In her testimony, Stan said that Janice told her "that if I ever stepped one foot out of the door, I might as well put a gun to my head and shoot myself."1531 Stan told of an incident when she incorrectly completed a

"project" they had given her. Janice got upset and told Hooker, who then tortured her with live electrical wires.15 Stan also said that she at no time contacted the police when she was released because Janice had asked her not to.153

1524 Ibid, at 65. 1525 Ibid, at 66. 1526 Ibid, at 195. 1527 Ibid, at 254. 1528 Ibid. 1529 Ibid, at 255. 1530 Ibid. 1531 Ibid, at 259. 1532 Ibid, at 261. 1533 McGuire & Norton, supra note 1501 at 265. Janice disputes this, but this might indicate some level of Stockholm Syndrome. 275 There is some evidence that Janice was able to free her husband's sex slave. Janice was questioned at trial about an incident on the second day that Stan was in the house. Stan testified that

Janice came downstairs to where she was being held. She testified that "[s]he asked me if I knew where I was, and I said, yes, that I was in Red Bluff, and she said, no, I wasn't in Red Bluff. And she asked me, if she let me go, what would I do, and I told her I would go to the police and tell them I was kidnapped. And she told me I was stupid, and she shut the box back up and went away."1534

Similarly, the abuse against Janice also continued even though Hooker had his sex slave.1535 McGuire and Norton note the abuse saying:

Cameron's 'sex slave' had done little to ease the physical hardship on Jan, though that had been the reason, initially, that he'd given for kidnapping another woman. Janice detested bondage, and Cameron knew it, but still he hung her up and whipped her on a regular basis. With the exception of the head box and the electrical shocks and burns, Cameron used on her all the devices he used on [Stan], making her sweat and weep with pain. Jan was hung, whipped, tied in various strange ways, blindfolded, gagged, stretched on the stretcher, forced to wear the gas mask, and dunked to the point of near-drowning. And yet she felt powerless to resist. This strange marriage was all she knew.1536

McGuire and Norton note that guilt grew in Janice, especially with Hookers' new plan to kidnap as many as four more women whom he planned to have more children with.1537 Although the abuse against Stan was reduced as time went on, the torture of Janice had increased.1538 Janice feared that she would lose her two daughters, now six and eight years old, and was convinced that no one would believe her story. She also knew that she had nowhere to go if she fled. 3 Janice became close to

Stan, and finally on August 9, 1984, McGuire and Norton note that Janice went to Stan and said that

"Cameron lied to you about everything. The Company, the slavery contract, all that he told you about

1534 Ibid, at 68. 1535 After Cameron forced Stan to sign the sex slave contract, he re-named her "K." 1536 McGuire & Norton, supra note 1501 at 165. 1537 Ibid, at 169. 1538 Ibid, at 190. 1539 Ibid, at 198. 276 me being a slave, all that was just lies. He lied to scare you, to make you stay his slave."1540 The

women waited until Hooker went to work the next day and they fled to Janice's parents' house. Stan

contacted her father for bus fare, and went home. Some have speculated that Janice's motive was

partially self-serving because she had her "own emotions of jealousy."1541

Hooker did not threaten Janice but implored her to come home. Janice was worried about how to

support her daughters so after a week, she and her daughters returned to Hooker.1542 Upon arriving

home, on Janice's suggestion they burned the pornography, bondage equipment and evidence of the crimes they had perpetrated.1543 Thus, much of the material which may have implicated Janice in crimes against Stan was destroyed.5 Eventually, Janice left Hooker for the last time and went to the police at a point very close to emotional collapse. The police immediately recognized that proving this case would be very difficult without Janice, and they immediately talked to the D.A. about immunity for her cooperation with the case.1545 McGuire and Norton devote a very small paragraph to the entirety of this negotiation saying that "District Attorney Lang . . . was highly sceptical of Janice

Hooker's story, particularly that unlikely business about Stan having been a slave. It took some time, but [the investigators] eventually swayed him, and Mrs. Hooker was granted immunity from prosecution."1546 The next day Janice made a full statement. Janice admitted that there was another victim named Marie Elizabeth Spannhake who disappeared January 31, 1976. The Hookers had

1540 Ibid, at 200. 1 41 Franzini & Grossberg, supra note 316 at 88. 1542 McGuire & Norton, supra note 1501 at 202. 1543 Ibid at 204. 1544 For more see that Colleen Stan gave an interview to A & E Home Video, "The Girl in the Box", DVD American Justice (New York: A & E, 2005) [American Justice]. One odd detail of this case was that Stan continued to speak on the phone with both Janice and Cameron on a regular basis, as confirmed by phone records. However, when asked how she had endured those years she responded, "you kinda shut down a lot of your emotions, you really do. It's just because you have to, or you can't survive. Can't get through it. And not to say that I didn't cry, I cried every day. But not in his presence I wouldn't do it." And later, responding to her strength she said, "God. He has purpose for me, and I wouldn't have made it through this." 1545 McGuire & Norton, supra note 1501 at 213. 1546 Ibid. 277 kidnapped her after offering her a ride home. Once inside their house, Hooker sought to silence his new sex slave and cut her vocal chords, then shot her with a pellet gun, and finally strangled her to death. Hooker and Janice disposed of the body that was wrapped in a blanket and put in the trunk of their car, and together they buried her in a shallow grave.1547

Hooker also testified about his wife's involvement in the situation, and alleged that the sex slave contract was Janice's idea. He stated that he had found an article in the publication Inside News and had shown it to Janice. It was his testimony that she said, "[W]ow, what if something like this really existed?" and suggested that Stan would not go to the police if she feared the Company.1548 Hooker also testified that Stan became depressed because Janice would yell at her and was "treating her like a slave." 9 Hooker said that one time when he hung Stan, he came back into the room to find that

Janice had attached electrical wires to her thighs. Hooker unplugged the device, and was yelled at by

Janice and told that it was "none of my business."1550 He also said that it was Janice's idea that Stan was to be kept in the box under their bed for extended periods of time to keep her away from their children.1551

Why did Stan stay even when she had numerous opportunities to escape while jogging, grocery shopping in town by herself, or caring for the couple's children? Janice Hooker told the press her

"own distinctly unconventional explanation: brainwashing. Police had aired the brainwashing theory to the press shortly before the preliminary hearing, and a handful of articles appeared linking this case to mind control. But McGuire instantly rejected this argument as ridiculously melodramatic and

1547 Ibid, at 213-215. These similar acts resulted in a substantial prison sentence for Homolka. The ease of securing Janice's testimony is in stark contrast to the complicated negotiations that Homolka's counsel had in securing a deal for a 12 year sentence for her involvement. 1548 McGuire & Norton, supra note 1501 at 310. 1549 Ibid, at 311. 1550 Ibid, at 313. 1551 Ibid, at 315. 278 legally unsupportable."1552 Yet McGuire wanted the jury to understand that "what appeared to be

freedom was in fact a form of captivity that was based on her fear of trying to run away. She wore

invisible chains."1553 However, more witnesses were interviewed about the role that Janice played in

this matter. Connie Fleming, a friend of Janice, told the prosecutor that Janice had been near a mental

breakdown before she went to the police. She eventually told Connie about Stan and the Company,

and said that "Stan was brainwashed."1554 Referring to the definition of brainwashing adopted for the

purposes of this thesis, it is possible through the torture endured by Stan she did experience the

forcible implantation of ideas by Hooker. She believed that the treatment was now part of her life, taking away any impetus for her escape.

The more relevant question is why did Janice stay? This question was asked by McGuire as she observed during preparation for the trial that Janice "still seemed under Cameron's sway. At times it sounded as if she were operating as his mouthpiece, passing on information for him. And she played both sides: Apparently she wanted him locked up so he couldn't kidnap or torture anyone else, but didn't want to feel responsible for whatever justice might be meted out."1555 Dr. Chris Hatcher, who testified later in the Homolka trial, also testified in the Hooker trial. He outlined the 16 coercion methods that were used on Stan, but perhaps the techniques were just as successfully used on Janice, which eventually made her an accomplice in the torture of Stan. He described these common brainwashing methods as including a sudden abduction and isolation; removal of her clothes, accentuating her vulnerability; removal of normal daylight patterns; control of urination, defecation, and menstruation; control of food and water; random punishment; requirement of permission for any action; a pattern of sexual and physical abuse; continued isolation with no access to information other than from the captor; presentation of a method for pleasing the captor; threats to friends and family of

1552 Ibid, at 107. 1553 Ramsland, "The Company", supra note 1519. 1554 McGuire & Norton, supra note 1501 at 108. 1555 Ibid at 156. 279 the same treatment if there was not compliance; threats to sell the captive to someone more sadistic;

continuing irregular torture; unexpected periodic leniency; confessions and documents signed; and the

incorporation of new "behavioral goals."1556 Cameron Hooker used all of these techniques and Stan's

experience was "extraordinarily traumatic. Her extreme fear for the safety of her family, as much as for her own welfare, and her genuine belief of the outlandish stories about the Company accounted for

Stan's willingness to stay with the Hookers despite the opportunities for escape that later arose. She had been totally dependent on Cameron for her very existence. Her guiding principle was that if she could please him, perhaps she could survive."1557

Hooker was convicted often felony charges and he was sentenced to 104 years in prison.1558

Not only did Janice not serve any time in prison for her substantial involvement in these crimes, she was never arrested. McGuire and Norton note that "Jan goes to counselling and thinks deeply about how she ended up in such a strange and toxic situation. She believes she and Stan were both brainwashed. 'It can be done to anyone,' she says."1559 She also commented to the authors that

"Stan's personality made it easier for Cameron to dominate her. He is very perceptive, Janice believes, and he picked a victim who was submissive, compliant, someone who tended toward destructive relationships. Reflecting on the changes she has made, Janice says, 'I chose not to be a

Franzini & Grossberg, supra note 316 at 90-92. 1557 Ibid, at 93. See Ewing & McCann, supra note 371 at 86. Dr. Hatcher, who was also an expert in the Homolka matter, said that he didn't believe that Stan's confinement resulted in brainwashing. He said that there was a continuum from simple persuasion at one end of the scale, coercion in the middle, and brainwashing at the extreme. He said that what Stan survived was extreme coercion used by a sadist to control her, adding that this pressure "would be sufficient to coerce the majority of individuals into desired behavior pattern and to give up any overt resistance." See Ewing & McCann, supra note 371 at 88, noting that Dr. Lunde was also an expert witness who compared what Stan had survived to Marine boot camp, and said that for coercive persuasion to exist there must be constant physical control over the individual. See Ewing & McCann, supra note 371 at 88 that the judge in the Hooker trial noted at the jury verdict that "I want to particularly commend you for having the intelligence to reject the testimony of Dr. Donald Lunde, the defense psychiatrist. I think witnesses like that are a real menace to the criminal justice system. They come in here posing as objective scientists, when, in fact, they are nothing but paid advocates . . . I'm happy that you had the good sense to see through him." 1558 McGuire & Norton, supra note 1501 at 361. The eleventh count resulted in a hung jury. 1559 Ibid, at 368. 280 victim. I hope Stan makes that choice. Not to just walk out but to make a total change, to become an unvictim [sic], to take charge."1560 As will be seen below, it is arguable that these are the exact reactions for which Homolka was vilified. To understand Hooker, the case needs to be juxtaposed with the case of Karla Homolka.

ii. Karla Homolka1561

Another example which may link brainwashing and the battered spouse is the Canadian case involving Karla Homolka and Paul Bernardo1562 who were eventually incarcerated for the sexual assault and murder of three young women. Homolka successfully negotiated a plea agreement of 12 years imprisonment in return for her testimony against her husband. However, after the plea deal, videotapes were found showing Homolka actively participating in the sexual crimes against the young girls. The public sentiment immediately turned to horror that, in particular, a woman could be capable of these acts. The media portrayal of Homolka and her culpability in the deaths of her sister Tammy,

Leslie Mahaffy, and Kristen French was overwhelmingly negative, painting Homolka as a willing and culpable participant in these crimes. Nowhere is this more obvious in the media than in the descriptions of the video tapes of Homolka, Bernardo and the young girls. For example, Maclean's magazine described the tapes as:

full of adolescent smiles and Christmas cheer. A blond and beaming Karla Homolka, then 20, giggles with her sisters, Lori, 19, and Tammy, 15 . . . those scenes were recorded by Paul Bernardo, Homolka's future husband, on the evening of Dec. 23, 1990, at the Homolka family home in St. Catharines, Ont. A few hours later, Homolka and Bernardo appeared in another lMM Ibid at 369. 1561 Interestingly, Williams, "Invisible", supra note 1323 at 113, notes that Homolka was accepted at "both the University of Toronto and York University, but she decided not to pursue a higher education and continued working at the Number One Pet Centre." Please note that due to strict publication bans, much of the material is not available to the public. This case study is based on the information available. 1562 See Williams, "Invisible", supra note 1323 at 17, who noted that Newsweek named them the "Ken and Barbie of Murder and Mayhem." Bernardo and Homolka had applied to have their names changed to "Teale" after watching the movie Criminal Law. See Williams, "Invisible", supra note 1323 at 121, who notes that "Criminal law was about a young, good-looking, wealthy serial rapist and killer named Martin Thiel (pronounced Teale), played by Kevin Bacon. Like Paul, he sexually assaulted young women. Unlike Paul, [at that point in time] he then killed them." 281 home-made video - this time as they raped Homolka's drugged and unconscious sister Tammy in the basement recreation room while the rest of the family slept upstairs.

Journalist D'Arcy Jenish goes on to say that on other tapes Homolka "seems a willing - even enthusiastic - participant in her future husband's fantasies."1564 The question of whether Homolka was "cunning or coerced" seemed unquestionably answered by the media who wholly discounted her abuse, and in many cases did not report her abuse at all.1565 One may question whether there was a point in time where Homolka moved from being simply the battered spouse of a sexual sadist, to a participant in the sexual assault, torture and murder of young girls.

In 1996 an overarching review was completed by the Honourable Patrick T. Galligan into the circumstances surrounding the plea deal with Homolka.1566 In the course of his research, there was considerable material regarding the documented evidence that Homolka may have been acting involuntarily in her involvement in the deaths of Mahaffy, French, and her sister Tammy. Although

Justice Galligan concludes that a finding of whether Homolka acted voluntarily was not necessary for the purview of the inquiry, he noted that there was a question whether "Homolka acted with volition when she participated with Paul Bernardo in unspeakable atrocities or whether as the victim/accomplice of a psychopathic sexual sadist she acted involuntarily because she was unable to

1563 D'Arcy Jenish, "The Two Faces of Karla Homolka" Maclean's (12 June 1995) 50 [Jenish, "Two Faces"]. 1564 1564 Jenish, "Two Faces", supra note 1563. 1565' Ibid. 1566 Canada, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, (Toronto: Ontario Ministry of the Attorney General, 1996) [Galligan Report]. See also Archie G. Campbell, Bernardo Investigation Review (Toronto: Solicitor General and Correctional Services, 1996) [Campbell] and Martin Dionne, "Voices of Women Not Heard: The Bernardo Investigation Review: Report of Mr. Justice Archie CampbelF (1997) 9 Can. J. Women & L. 394 [Dionne]. See Stephen Williams, Karla: A Pact with the Devil (Toronto: Seal Books, 2004) at 321 [Williams, Pact] who notes that he believes that the report was a "total whitewash," and had said so on national television. He explains that this is because "it accepts Karla's version of events and ignores crucial evidence that puts her behavior and motivations in a vastly different, brighter light." There are still questions about Galligan's access to psychological materials, the accuracy of his conclusions, and his perception of Homolka. 282 extricate herself from his complete domination and control."1567 It was a finding of the Galligan report, however, that her husband, Paul Bernardo, was a "sexual sadist."1568

Homolka and Bernardo met in a hotel in October 1987 when Homolka was 17 and he was 22 years-old.15 Homolka testified about the almost immediate power that Bernardo had over her, saying, "[h]e just has this magnetism. It sounds stupid, but from that night I met him, I knew I would marry him. It's like he has this power over women. He just draws them to him. It's his personality.

People want to be around him."157 In adherence to the patterns of control by the sexual sadist,

Bernardo lavished gifts and attention on the 17-year-old Homolka when they began to date, but eventually:

he started to exercise control over her. He began telling her what to wear and how to style her hair. He told her where she could go and where she could not go. He began to encourage her to disassociate herself from her friends because they were immature and stupid. He began encouraging her to drink more and more alcohol. He began changing the nature of the sexual activity in which he wanted her to engage.1571

Soon Bernardo was scripting what Karla was to say and made her repeat phrases such as, "My name is

Karla, I am 17 years old. I am your little cocksucker. I am your little cunt. I am your little slut."1572

The sexual nature of their relationship became more violent as Bernardo insisted on anal intercourse while Homolka was wearing a "dog chain choke collar."1573 Several months into their relationship

1567 Galligan Report, supra note 1566 at 17. 1568/6/^. at 18. 1569 McGillivray, supra note 16 at 261. McGillivray notes, at para. 14, that the couple had sex within an hour of meeting. 1570 Kirk Makin, "Homolka describes Bernardo beatings" The Globe and Mail (20 June 1995) Al at Al [Makin, "Beatings"]. 1571 Galligan Report, supra note 1566 at 23. See Makin, "Beatings", supra note 1570 at Al, where Homolka testified to this control by Bernardo saying that "[h]e would tell me I couldn't wear miniskirts to school. I couldn't dye or perm my hair. I couldn't go out with friends to dances. I used to wear things like ballet shoes and boxer shorts. He wanted me to dress more preppy. I used to colour my hair red and other colours. He didn't want me to colour it any more. 1572 Galligan Report, supra note 1566 at 23-24. 1573 Ibid, at 25. Media reports, Makin, "Beatings", supra note 1570 at Al, note that when Homolka testified about the pictures of her having sex with Bernardo with a knife to her head and a cord around her neck she said that "[i]t was his idea. He used to call me his little slave and his little sex slave. I used to refer to myself as that. Because that's how he treated me. When he wanted something, I would do it. When he 283 Bernardo began beating Homolka. After the first incident he apologized, but Homolka soon blamed

herself for the abuse because she had argued with him.1574

Between these beatings he would treat her well but would alternate between calling her names

such as "slut, bitch and cunt" and alternately "princess," and he began to call her, and she called

herself, his "sex slave"1575 and identified their relationship of "one of master and servant." 57

Although Justice Galligan noted that it was unnecessary to recite her abuse for the purpose of his

report, he did comment that "Homolka related in great detail an ever increasing cycle of physical and

psychological violence toward her which wore her down so that she became more and more subject to

his control."1577 Even though Bernardo drove Homolka out of town and repeatedly "beat her and

kicked her in the back, shoulders, leg and stomach" she did not tell her parents because she loved him,

and her "confidence level was very low."1578 Justice Galligan cites the obvious scepticism about the

violence, questioning why she "would do his bidding, no matter how monstrous, yet she still loved

him and would not rid herself of him," even though she could have sought help from her parents

where she still lived, and because she did not confide in a friend about the abuse.1579 Justice Galligan told me to get something, I would get it. If I didn't do it, he would verbally abuse me or threaten me or hit me." 1574 Galligan Report, supra note 1566 at 26. 1575 Ibid, at 26-29. 1576 Kilty & Frigon, supra note 1277 at 38. Williams, "Invisible", supra note 1323 at 393, is critical of Homolka's reliance on the compliant victim research. Williams believes, at 393, that detectives sought justification for her behaviour in Hazelwood's articles, noting that even before detectives "had the slightest idea about exactly what Karla had done or knew the true extent of her participation, he had her excuse." 1577 Galligan Report, supra note 1566 at 29-30. 1578/tod at 31. 1579 Ibid, at 32. At Bernardo's trial, John Rosen pursued this line of questioning, that it seemed unreasonable that Homolka would not seek help from the parents that she was close to emotionally and physically. See Kilty & Frigon, supra note 1277 at 48 citing R. v. Bernardo, 1995, p. 1323, citing the Bernardo transcript about the abuse she suffered: Rosen: Yeah. You had professionals to deal with, you had parents to rely on, you had all your support system that was with you in St. Catharines, right? Homolka: Yes. Rosen: Okay. And the person who you say was being abusive and pushing you around was the one who lived in Toronto, an hour and a half away, right? Homolka: Yes. 284 cites the article "Compliant Victims of the Sexual Sadist" and says that he kept an "open mind" based on this article. 80

The Crown also submitted expert reports by several doctors who had the chance to evaluate

Homolka. Dr. Chris Hatcher's findings were reproduced in one of the Court proceedings on the admissibility of psychiatric evidence for Homolka.1581 Using the MCMI-III psychological test on

Homolka, Dr. Hatcher came to the conclusion that Homolka's:

[fjeelings of depression, loneliness, and isolation may have typified extended periods of her life, although she is not inclined to play up these troublesome moods. Her underlying tension and emotional upset are present in disturbing mixtures of anxiety, sadness, and guilt. Her insecurity and her fear of abandonment account for what may appear to be a quiet, accepting and benign attitude towards life's difficulties ... By submerging her individuality, sabotaging opportunities, subordinating personal desires, and submitting at times to abuse and intimidation, she hopes to avoid what she fears most-total abandonment.1582

Dr. Hatcher went on to note that Bernardo's "sexual fantasies focused upon his dominance over females, especially young virgin pre-adolescent and adolescent-appearing girls who would be willing and submissive to his sexual demands. His fantasies required that the young girls state their

Rosen: He's the stranger in that group? It isn't like he lifted you out of your support system and isolated you in a strange city, among strange people, and no support system? He didn't do that, did he? Homolka: You don't have to be physically isolated to feel emotionally isolated. Kilty & Frigon, supra note 1277 at 48 note that Rosen's "attempt to discredit Homolka is not simply damaging to her credibility, it is damaging to our comprehension of other battered women. His failure to recognize the process and cyclicity of many abusive relationships is detrimental to women suffering violence from their partners. It suggests that there is a degree of certainty as to the exact method of development or pattern of abuse." 1580 Galligan Report, supra note 1566 at 168. See Hazelwood, Warren & Dietz, supra note 1358. Justice Galligan notes that the paper was authored by "Robert R. Hazelwood, M.A., Janet I. Warren, D.S.W. and Park E. Dietz, M.D., M.P.H., Ph.D. . . . Robert Hazelwood is a Supervisory Special Agent at the Federal Bureau of Investigation's Behavioral Science Services unit at Quantico, Virginia. Janet Warren is Associate Professor in the Department of Behavioral Medicine and Psychiatry at the University of Virginia. Park Dietz is a forensic psychiatrist and Associate Professor in the Department of Psychiatry at the University of California, Los Angeles." 1581 R. v. Bernardo [Evidence - Psychiatric - Karla Homolka], [1995] O.J. No. 2249 at para. 8, 42 C.R. (4th) 96 (Ont. Ct. J.) [Bernardo, Homolka]. See Williams, Pact, supra note 1566 at 274 that Dr. Hatcher was a witness in the Hooker case detailed below. 1582 Bernardo, Homolka, supranote 1581 at para. 8. 285 acceptance of him as the most powerful male, and as their master."1583 These were all behaviours and attitudes which were also required of Homolka.15 Justice LeSage found that the Crown experts were

"certain that while Homolka was with the accused she suffered from Battered Spouse Syndrome."

The process of the sexual sadist continued to the point where Bernardo was demanding other

"sex slaves" and he asked Homolka to pretend to be her 15-year-old sister Tammy during sex.

Bernardo demanded that Homolka assist in sexual relations with Tammy and said that the assault would be over quickly if they could drug her. Justice Galligan notes that Homolka "agreed to help him with his plan, [and] the violence to her and the threats to her and her family would cease."1586 In the course of her employment at an animal clinic, Homolka came in contact with the drug named

"Halcion" and the anaesthetic "Halothane." Bernardo told her to get the drugs for Tammy. Both

Bernardo and Homolka performed sex acts on the drugged 15-year-old, and the episode was videotaped. Tammy eventually vomited, stopped breathing, and subsequently died. Bernardo and

Homolka hid the evidence of their involvement and the death was ruled accidental.1588

1583 Ibid. 1584 A video played at Bernardo's trial showed how this power was exerted, and how it really was part of the arousal for the sexual sadist. See Williams, "Invisible", supra note 1323 at 527 where Homolka describes what is occurring in a video with an adult blonde woman who is having sex with Homolka. She explained that in August 1992 the couple stopped in Atlantic City on their way back from Florida. Homolka remembers that she had been beaten badly, and Bernardo insisted that they get a prostitute for Homolka to have sex with. Bernardo set up a video camera, but he did not become aroused by the prostitute. Some have noted that this was because the sex worker was experienced and professional making Bernardo incapable of performance because for the sexual sadist violence and power is the aphrodisiac. 1585 Bernardo, Homolka, supra note 1581 at para. 11. 1586 Galligan Report, supra note 1566 at 34. 1587 Ibid, at 28-29 and 34. Unlike many reports of this incident, the Galligan Report states that it was Bernardo that told Homolka that "he wanted Tammy that night as his Christmas present," not that it was Homolka's decision to "give" her sister. In other reports it is a least implied that Homolka gave her sister as a Christmas present. McGillivray, supra note 16 at 262, notes that "[o]n 23 December 1990, as a Christmas present to Bernardo, Homolka drugged Tammy with Halcion and Halothane, tranquilizers obtained through her connection with the veterinary clinic where she worked as an 'Animal Health Technician.'" However, in the transcripts of the sentencing hearing that are included as an attachment to the Galligan Report, supra note 1566 at 255, in the submission of Mr. Segal he said Homolka's "husband told Karla that he wanted Tammy as a Christmas present." 1588 Ibid, at 35. 286 The Galligan Report states that Homolka continued to obey Bernardo's demands for more drugs because "she felt totally trapped after Tammy's death and became more and more subject to

Paul Bernardo's domination."15 9 Homolka moved in with Bernardo as the abuse escalated with the threats that he would expose her involvement in her sister's death, and she testified that he "would tell me I was nothing without him. He made me feel I was totally dependent on him."15 Bernardo then demanded that Homolka bring young girls to their house for sexual purposes. These girls included

Jane Doe,1591 Mahaffy and French. Homolka was not involved in the kidnapping of Mahaffy, but she was involved in sexual assaults with the 15-year-old which were videotaped, and she did assist with the disposal of her body in concrete blocks in Lake Gibson on June 17-18, 1991.1592 Homolka also cleaned the house to eliminate evidence of the crimes. Two weeks later, on June 29, 1991, their wedding night, Bernardo revealed to Homolka that he was the notorious "Scarborough Rapist," and her abuse continued "unabated."1593 Justice Galligan describes some of the continuing abuse, stating that Homolka:

Makin, "Alibi", supra note 1362 at A4. See Nick Pron, Lethal Marriage (Toronto: Seal Books, 2005) at 208-09 [Pron] where he describes how Homolka was beaten when she refused to get more Halcion for more victims after the death of her sister. He notes that she was ordered to take off her clothes and was whipped with a belt and Bernardo raped her anally for refusing. He notes, at 209, that she "had welts all over her body and didn't go to work for several days until the bruises healed." 1591 Jane Doe was her 13-year-old friend that she met at a local pet store. Jane Doe is the subject of much of the debate over whether Homolka tried to hide her involvement in the repeated sexual assaults. 1592 Galligan Report, supra note 1566 at 38. See J.M. Kilty, The Case ofKarla Homolka: From the (Re) Construction of Womanhood in Danger to Dangerous Womanhood (2003) [unpublished, archived at Halifax NS] [Kilty] at 91 citing R. v. Bernardo, 1995, at 1824. At Bernardo's trial John Rosen tried to allege that it was Homolka who was the one who had suffocated Mahaffy using a pillow and her knees dug into her back. Although McGillivray suggests that Homolka assisted with the dismembering of her body and its placement in concrete blocks, the submissions of Mr. Segal at the sentencing hearing of Homolka cited in the Galligan Report, supra note 1566 at 259, state that on "Monday, Karla went to work at the clinic. Later that day she learned that Paul Bernardo had dismembered Leslie Mahaffy and placed her in concrete blocks. Karla Bernardo had to help her husband carry the heaviest block to the car, that being the one that contained Leslie Mahaffy's torso. Karla Bernardo joined her husband on two occasions to dispose of blocks in the lake." In Homolka's own testimony, recorded in Makin, "Alibi", supra note 1362 at A4, she was asked who dismembered Leslie Mahaffy and she responded "Paul did. I was at work. He told me he was going to do it, but I didn't believe he actually would." 1593 Galligan Report, supra note 1566 at 39. 287 was often required to accompany him on trips in his car. He thought that she would make good cover for him since his car would not be suspected if there was a woman sitting in it. . . She described trips when he watched women. She described trips when he stalked women. She described occasions when he would follow women home and go to the windows of their houses . . . she described plans that he was making to kidnap a woman whom he had stalked. She testified that Paul Bernardo began talking of getting a place in the country with a sound-proofed dungeon where he could take girls and use them as sex slaves.1594

Homolka was involved in the abduction of Kristen French and her subsequent abuse. It was much reported that Homolka was left alone with French in the house on two occasions when Bernardo left to buy food, but she did not attempt to free their captive.1596 In newspaper accounts of the trial Homolka said that she "thought about" letting French go free but she said that she was "so involved. All I could picture was the two of us going downstairs and Paul coming home right then and finding us, and killing us."1597 Homolka testified that she had started to go "numb" with the death of Tammy, and continued to get more numb after Mahaffy and French had been in the house.1598 She explained that

"I didn't want to be there and I felt extremely bad about what we were doing . . . It's my body's way

1594 Ibid, at 39-40. 1595 According to the transcripts of the sentencing hearing attached to the Galligan Report, supra note 1566 at 260, the submissions of Mr. Segal stated that Homolka lured Kristen French to their car "on the pretext of asking directions. Karla Bernardo held a map up as part of her role-playing. Paul Bernardo came around the car and forced Kristen French into the vehicle with a knife . . . Karla Bernardo jumped in the back of the car. Paul Bernardo drove holding a knife and threatening Kristen French. Karla Bernardo grabbed a hold of Kristen's hair to help secure her. As pre-arranged, Karla placed a blanket over Kristen on the way home. They drove to the Bernardos' home. Karla Bernardo opened the garage door. Kristen French was brought in. Karla Bernardo closed all the blinds and collected and hid all the telephones in the house. Karla was told to stay downstairs while Paul Bernardo had his way with Kristen French." 1596 According to the transcripts of the sentencing hearing attached to the Galligan Report, supra note 1566 at 261, the submissions of Mr. Segal stated that "Karla Bernardo thought about freeing Kristen French but did not out of fear of being beaten by her husband and being found out by the police." 1597 Jim Rankin, Nick Pron & John Duncanson, "Homolka had 2 chances to let French go free" The Toronto Star (27 June 1995) Al [Rankin, Pron & Duncanson]. 1598 Ibid, at Al. See Graham, supra note 51 at 165-66 who argues that because "women's survival depends on knowing how things affect men's moods, we come to experience the world from men's perspectives. Eventually, we are no longer aware of our own feelings, thoughts, and moods; we are only aware of theirs. Several factors facilitate this process. One is that it is advantageous for women to deny our own feelings because they only get in the way of looking after men's feelings, which women must attend to in order to reduce male violence against us." 288 of protecting myself. I just go numb." The Crown experts explained that this comes from a process called "normalization" which is related to BWS.1600 In another ruling in this case, Justice

LaSage related this principle to Homolka, commenting that it "is an attempt to mix and integrate a criminal act into normal aspects of one's life. An example of this is Homolka's ability to prepare and serve Father's Day dinner while Leslie Mahaffy's dead body lay in her root cellar." Justice

LaSage also cites Dr. McDonald's report which states that expert testimony is necessary to allow the jury to understand why Homolka "relates past events, including sexual assault, the apparently un­ intended [sic] death of her sister, sexual and physical abuse of herself by her husband and the eventual kidnapping, sadistic sex and murder, with seeming nonchalance" and to explain her "flat affect."1602

Justice Galligan notes the continuing abuse to which Homolka was subjected, saying there was "ample support for Karla Homolka's assertions that she was the subject of continuous and unrelenting abuse at the hands of her husband. In June, she left him to go back to her parents, but returned when he threatened to expose her role in their crimes."1603

Like those sexual sadists described above, Dr. Hackler, as the Crown expert, noted that those

"involved in the commission of repetitive violent sexual crimes of kidnapping, rape, and homicide write text or record thoughts which reflect their view of themselves, their victims, and the

Rankin, Pron & Duncanson, supra note 1597 at Al, and Homolka also explained that she had to perform the acts demanded by Bernardo or she would have been beaten. She also noted that she told French to "make Bernardo happy" because she did not want French to be beaten. There were also questions why Homolka smiled for the camera and seemed to be enjoying the sexual acts she was performing on the women. Appended to the Galligan Report, supra note 1566 at 331 is a letter from James A. Treleaven of the Ministry of the Attorney General to Inspector Vince Bevan and Acting Inspector Tony Warr of the Green Ribbon Task Force that said, "[w]e found particularly troublesome the segment of a tape in which Homolka smiles at the camera while apparently administering halothane to the unconscious victim, while the victim is being sexually violated by Bernardo. Although there were misgivings, Homolka's explanation that she was forced to perform in this fashion by threats of violence from Bernardo is borne out by the evidence, including medical opinion, recently obtained by you. We note that Kristen French was at one point forced by Bernardo to smile for the camera." 1 00 Bernardo, Homolka, supra note 1581 at para. 12. 1601 Ibid. 1602 Bernardo, Homolka, supra note 1581 at para. 12 citing Dr. McDonald's Report at 2. 1603 Galligan Report, supra note 1566 at 41. 289 implementation of their violent sexual fantasies." 604 Dr. Hucker, another Crown expert at Bernardo's trial, concluded that Bernardo fulfilled the criteria for a diagnosis with a paraphilia,1605 and that he likely met the criteria for a sexual sadist in addition to that for urophilia, 6 toucheurism, coprophilia, and a "narcissistic personality disorder." 609 Hucker concluded that Bernardo demonstrated evidence of being a sexual sadist before he met Homolka, and had chosen a "vulnerable, but not necessarily psychologically abnormal" spouse.1610 He notes that the "[i]nitial behaviour of the couple is moulded by the dominant partner who socially isolates his spouse, punishes her into subservience and involves her in his crimes." As noted in the research on the sexual sadist, one step in the process led to the next. Hackler noted that "[o]nce the acting out of Paul Bernardo's sexual fantasies began, each successful step in bringing this sexual fantasies [sic] to life further reinforced the potential to further explore and implement these fantasies." 2

Hackler noted in his report that "Homolka came to accept Paul Bernardo's very significant physical abuse of her, sexual abuse of her, and extreme sexual fantasies as part of a price to be paid in order to maintain the image to herself and to the world of a successful, happy couple."1613 He

1604 Bernardo, Homolka, supra note 1581 at para. 8. 1605 j^js was prevjous]y referred to as a sexual deviation or anomaly. 1606 A sexual preference for urine. 1607 Grabbing unsuspecting women sexually. 1608 Feces or defecation. See Kilty, supra note 1592 at 87 citing R. v. Bernardo, 1995, at 262 that Homolka was made to eat Bernardo's feces during an argument. 1609 Bernardo, Homolka, supra note 1581 at para. 8. moIbid. 1611 Ibid. 1612 Bernardo, Homolka, supra note 1581 at para. 8. 1613 Ibid. See Williams, Pact, supra note 1566 at 322. Many deny that Homolka was subject to violence by Paul Bernardo. Williams discusses, at 322 that there is "absolutely no evidence for [the abuse.] In fact, there is a great deal of evidence to the contrary, including medical records compiled by numerous doctors Karla saw in 1988 and 1989 as well as numerous statements taken by police from family, friends and co­ workers. There are also a considerable number of photographs from that period, including nineteen, explicitly pornographic Polaroids for which Karla posed in the summer of 1988 that reveal a voluptuous, unblemished teenage body in full bloom. The look on her face throughout all of these pictures is one of complicit rapture. There is no fear whatsoever in her eyes, or any marks on her body from abuse." However, see Pron, supra note 1590 at 280, who describes ongoing violence, including on the couple's honeymoon. He notes one incident, at 280, on their honeymoon where Homolka did not take pictures as 290 concluded that Bernardo's physical abuse and "Homolka's intense need to maintain the relationship

would eventually lead to a belief that her survival and the survival of the relationship would depend upon her cooperation in the acting out of Paul Bernardo's sexual fantasies."1614 At some point in this process it seemed as if Homolka knew that this was the price to pay for the life she wanted, and that price eventually included murder. The definition of brainwashing states that there is "forcible indoctrination process designed to induce the subject to abandon existing political, religious, or social beliefs in favour of a rigid system imposed by the indoctrinator."1615 Bernardo indoctrinated

Homolka's social value system to make her believe that if she wanted the perfect life, there were sacrifices to be made, including the sexual assault and murder of young girls.

The life that Homolka was actually living was far from the perfect image she sought to portray. Dr. Hucker notes that "Bernardo increasingly dominated his wife during the relationship.

There is nothing to suggest a personality or other psychiatric abnormality in Ms. Homolka; [sic] before she met Mr. Bernardo." 16 In fact, Justice Galligan makes the comment that if this evidence is

"truthful" then Homolka's life at the end of 1992 was "nothing short of a horror story. It is somewhat

per Bernardo's instructions so he "grabbed some large headphones that he had brought with him and started hitting her on the head. One blow cut her forehead, and the blood streamed down her face. Fetching her a towel, he told her to clean up." She allegedly received another beating in a car on a tour during their honeymoon. Pron notes, at 287, that Karla described this time during her testimony as the "honeymoon from hell." Pron also notes, at 294, that there are portions of the honeymoon videos which are blank. In one such portion of a tape Bernardo says to Homolka, "[fjucking get something . . . you're so stupid" followed by a blank where Homolka alleges he hit her. Pron also notes, at 306, that co-workers at her place of employment noticed bruises for a long time, but Homolka had blamed them on wrestling with her dog Buddy. However, Pron reasons, at 307, that her silence had more to do with her fear of being caught than in escaping her batterer. Yet, see Pron, at 405, where he describes some brutal accounts of her abuse, including with a heavy flashlight beating her legs and back, and occasionally her face. Pron observes, at 502, that "Homolka had been seen as the loser in a power relationship with a madman, and she had suffered greatly. When she talked of how Bernardo started using a flashlight to hit her because his hands were getting sore, even some of the more cynical journalists almost started to feel sorry for her. Almost, but not quite." 1614 Bernardo, Homolka, supra note 1581 at para. 8. 1615 Delgado, "Ascription", supra note 52 at 1. 1616 Bernardo, Homolka, supra note 1581 at para. 8. 291 of a surprise that she is still alive and sane." Bernardo himself described his battering episodes on

Homolka as "nightly terrorist attacks."1618 McGillivray notes that after French's death the abuse escalated against Homolka.1619 Her abuse was also discussed by Justice Kovacs in Homolka's sentencing hearing. Justice Kovacs found that Bernardo:

strangled her, threw knives at her, hit her with firewood, hit her with his shoes and finally with a flashlight. He stabbed her with a screwdriver, pulled handfuls of hair from her head, punched her, kicked her and raped her. He pushed her down stairs. On one occasion her foot was punctured when he pushed her onto a board with a rusty nail. He systematically made her feel unworthy and cut the contact with her family down.1620

Her final beating in early 1993 resulted in her being taken to the hospital.1621 This beating is described by one of the doctors in the emergency room as the "worst case of wife assault that he had seen in his experience as an emergency room physician."1622 The medical reports stated that her:

eyes reveal raccoon's eyes, bruising all around the orbits, large contusion to her head with what feels almost like a depressed fracture, although x-rays have ruled this out. She has a subconjunctival haemorrhage in the left eye . . . She has several bruises down the left side of her neck, along her arms, with a very large bruise in the upper right arm which is about three centimetres by three. About 75% of her legs from mid-thigh down are bruised, quite dramatically and swollen to touch. She cannot move them due to pain. On the right thigh, about 3 cm above the right knee, there is a puncture wound which she says was caused by Paul Bernardo when he punctured her with a screwdriver.162

1617 Galligan Report, supra note 1566 at 41. 1618 Kirk Makin, "Homolka Says She Felt Blackmailed Secret of Her Role in Sister's Death Kept her Tied to Bernardo, she Testifies" The Globe and Mail (21 June 1995) Al [Makin, "Blackmailed"]. 1619 McGillivray, supra note 16 at 263. 1620 Decision of Kovacs J., at the sentencing hearing appended to the Galligan Report, supra note 1566 at 309. 1621 See Williams, "Invisible", supra note 1323 at 587 who disputes this account of how Homolka left the house. Williams alleges that there were several versions of what happened including one where Karla searches for the videotapes before leaving the house. 1622 Galligan Report, supra note 1566 at 41. 1623 Galligan Report, supra note 1566 at 167. The Galligan Report also cites Bernardo jurors who state that "Homolka was, in fact, a battered woman. One of them is quoted as saying that the evidence was there 'in huge, huge quantities.' Another juror, a man, wrote to the Homolka family after the trial. I quote one sentence from his letter: T personally believe she was manipulated, controlled and battered.'" See also Galligan Report, supra note 1566 at 42. According to the transcripts of the sentencing hearing attached to the Galligan Report, supra note 1566 at 290, the submissions of Mr. Walker stated that the beating was "systemic and sadistic" and that there were "markings on the neck consistent with strangulation, or the application certainly of some sort of ligature applied to the neck of my client. Again, keep in mind that this beating was not detected and was kept from the Homolka family, and it is my position that Paul Bernardo 292 This description of Homolka's face was recorded in medical photographs taken at the St. Catharine's

General Hospital which "provided a visual image to the police, the courts, and the media, that could not be easily discounted or dismissed."1624 McGillivray noted that Homolka "could not walk. She had been handcuffed, bound with the electrical cord used to strangle Mahaffy and French and left in the root cellar where the bodies had been stored."1625 Hackler notes that "[o]nce dominated by Paul

Bernardo, in fear of physical injury, in fear of risk to her own life, and in fear of loss of their family,

Karla Homolka attempted to develop a survival strategy for herself, a survival strategy which did place her own welfare above that of others."1626 It is also cited in the sentencing submissions of Judge

Kovacs, that Dr. Malcolm, another of the psychiatric team that diagnosed Homolka, stated that

Homolka, "knew what was happening but she felt totally helpless and unable to act in her own defence or in anyone else's defence. She was in my opinion, paralysed with fear and in that state she became obedient and self-serving."

tried to, and deliberately tried to stop my client's family from coming over to see her, what condition she was in." 1624 Kilty & Frigon, supra note 1277 at 46. 1625 McGillivray, supra note 16 at 264. According to the transcripts of the sentencing hearing attached to the Galligan Report, supra note 1566 at 262, the submissions of Mr. Segal stated that "Karla Bernardo thought that she would be the next to die. She was locked in their home's root cellar." Kovacs J. noted in his sentencing submissions, appended to the Galligan Report, supra note 1566 at 310, that Bernardo "handcuffed the accused's hands behind her back and tied her legs together with the same electrical cord he used on the other victims." However, others have noted that there was no history of abuse. See Williams, Pact, supra note 1566 at 585, who notes that although Homolka alleged that Bernardo would not let her seek medical attention, "between 1989 and 1992, Karla had been to the doctor twenty-six times, an average of 8.3 visits per year. None of these doctors had noticed anything unusual about Karla's mental state or her physical condition. According to their records, Karla was a physically fit, well-adjusted, young, white female." 1626 Bernardo, Homolka, supra note 1581 at para. 8. 1627 Coercive persuasion is cited in the sentencing transcript found appended to the Galligan Report, supra note 1566 at 311. Also note, The Galligan Report also cites Bernardo jurors who state that "Homolka was, in fact, a battered woman. One of them is quoted as saying that the evidence was there 'in huge, huge quantities.' Another juror, a man, wrote to the Homolka family after the trial. I quote one sentence from his letter: 'I personally believe she was manipulated, controlled and battered.'" However, some See Williams, "Invisible", supra note 1323 at 622, as others have argued that Homolka was not a battered woman. Although it is acknowledged that there was "no doubt Karla Homolka had been physically and emotionally abused by Paul Bernardo at some point. Karla might even have gone through one cycle of the 293 I. Homolka and Brainwashing1628

Psychiatric evaluations were conducted on Homolka before the plea bargain for a period of six weeks under the care of two psychiatrists and two psychologists chosen by the Crown.1629 Justice

Galligan reviewed the psychiatric reports completed on Homolka after she had contacted the police.

Psychiatric reports revealed that Homolka suffered from "dysthymia, also known as reactive depression, and a serious post traumatic stress disorder."1 30 One of her doctors compared her experience with Bernardo from the age of 17 to that of a "concentration camp survivor" who was subject to "horrendous tragedies and had to go through and perform actions in order to survive that under normal circumstances they would clearly have stayed away from, but in the interest of self- preservation or in the interest of preserving other people's lives, did see themselves helpless and went through the actions as had been required of them."1631

Justice Galligan cites extensively from her psychiatric reports in which it was concluded that: (1)

She shows no signs of a "psychotic disorder";1632 (2) There were some minimal "residual organic brain disorder" indications but would not impair rehabilitation;1633 (3) She did not suffer from a personality disorder nor the "instability, impulsiveness, and inappropriateness of the person with

Borderline Personality Disorder";1634 and (4) She has an understandable "crisis in self-image," she abuse pattern." However, Williams argues that Walker's model dictates that a battered woman must experience this cycle at least twice. He concludes that what "evidence there was, along with Karla's own statements and the substantial medical records available to the court, said that Karla had undergone through the cycle only once and had then left, never to return." 1628 Williams, "Invisible", supra note 1323. Williams is extremely biased against Homolka, and paints her as a potential mastermind behind the murders. He notes, at 44, that Homolka had a "darker side" since she was a child. He explains, at 44-45, that she would often give her friends an inscribed book which was "always of a certain type. In this instance it was Brainchild, a B.F. Skinner-inspired horror story about behavioral psychologist who program human beings for their own nefarious purposes." This sounds much like the brainwashing explored in this thesis. 1629 McGillivray, supra note 16 at 267. 1630 Galligan Report, supra note 1566 at 77. 1631 The Report of Dr. Arndt cited in Galligan Report, supra note 1566 at 41. 1632 Galligan Report, supra note 1566 at 77. 1633 Ibid. ia*Ibid 294 was anxious and depressed resulting in a "dysthymia" as a result of "disagreeable life situations"

which results in "sleep disturbances, a low energy level, low self esteem, a diminished ability to make

difficult decisions, and a marked feeling of hopelessness.1635 For these reasons, it is unlikely that

Homolka would fall into the category of those acting within afolie a deux because she likely did not

have a pre-existing psychiatric condition.

However, given the comments of those who examined her, it is possible that Homolka was the

subject of brainwashing. It is telling that her psychiatrists also note that she experienced:

all of the factors that constitute psychological torture as defined by Amnesty International. There was social isolation, exhaustion stemming from deprivation of sleep, monopolization of the perception through the exhibition of intensely possessive behaviour, threats of death against the person or the person's relatives, humiliation and denial of power, and the administration of drugs or alcohol to diminish self control. Karla was systematically subjected to all of these things.1636

The medical report also noted that:

Karla was subjected to repeated sadistic sexual attacks. She was humiliated, beaten, tied up and raped over a period of years. She was manipulated into being a participant in what eventuated in the death of a much loved sister. She was advised on her wedding night that her new husband was a rapist. She was told that if she ever tried to leave her husband he would track her down and kill her. Or else he would kill her remaining sister and her parents. She was living with a sexual sadist and she was convinced that from this bewildering fate there was no escape.1637

Justice Galligan notes that two other psychiatrists and two other psychologists diagnosed Homolka with PTSD, and three of the four noted that this was the result of the abuse she suffered.1638 Dr. Long

1635 Ibid. 1636 Ibid, at 78. According to the transcripts of the sentencing hearing attached to the Galligan Report, supra note 1566 at 289, the submissions of Mr. Walker that "it was quite clear that Karla was starting to develop alcoholism." 1637 Ibid, at 79-80. Kirk Makin, "Homolka Denies Killing French with Mallet 'I Never Hit Anyone in My Life,' Witness Replies to Defence Charge that she Bludgeoned Kidnap Victim While Bernardo was Out of House" The Globe and Mail (14 July 1995) A7 [Makin, "Mallet"] where it was reported that when Homolka was asked on the witness stand by Bernardo's lawyer John Rosen about why she did not leave she said "I was absolutely terrified . . . Until you have been in that situation yourself, Mr. Rosen, you will never understand." Homolka explained that her conduct is "very difficult for me to explain so that people understand." 1638 Galligan Report, supra note 1566 at 81. 295 has similar comments in his report: After noting her depression and her withdrawal he noted that she

was a "person suffering severe remorse for her participation in the illegal acts referred to."1639 Again,

like the POW or cult member, being removed from the brainwasher allows a person to snap back into

reality, allowing her to experience remorse. He noted that she "suffers from and requires treatment for

the effects of extremely severe prolonged exposure to her husband's sadistic acts and the ominous

atmosphere he created."

Dr. Long describes that she had a history of adopting passive behaviour as a coping mechanism

since early in life, and that there was no evidence that she would act aggressively on impulse, nor did

she seem to have "masochistic tendencies in terms of finding pleasure by being hurt herself nor her

observing the suffering of others."1641 Dr. Malcolm confirmed this by saying that he had "no doubt

that Karla was a passive, non-violent person . . . Even in her extremity she was unable to attack Paul

in a final attempt to protect herself from what seemed certain death."1642 Dr. Long concludes that:

she was sufficiently hoodwinked and intimidated by Paul Bernardo that she found herself in a compromising position as a result of a sequence of experiences with him that escalated in the intensity of their deviousness and severity. This reached a climax with the death of her sister and, from that point on, she believed that she was trapped in the same manner that an abused wife considers herself to be trapped and then having to fend for her life.1643

Yet, Dr. Long was unable to reconcile her psychological issues with the law. He notes that her psychological state does not "excuse her morally" for her role in the crimes committed as she was

"technically of sound mind and free of disease of the mind of sufficient severity to cloud her awareness or cause her to be unable to appreciate the nature and quality of her acts. Indeed, she was a victim herself and is in serious need of continued psychiatric care."1644 Justice Galligan notes that

1639 Ibid at 80. 1640 Ibid 1641 Ibid. 1642 Cited in the sentencing transcript found appended to the Galligan Report, supra note 1566 at 311. 1643 Ibid, at 80-81. It is important to note that these reports pre-date the discovery of the video tapes which and depend on Homolka's self-reports. 1644 Galligan Report, supra note 1566t a81t .81 . 296 there was "strong evidence" suggesting that Homolka was battered and her crimes were committed

"while she was under extreme duress and while she was under the control and domination of Paul

Bernardo."1645

Later while in prison, Homolka was also assessed by two additional psychiatrists and

psychologists.1646 Dr. Brown, a consulting psychiatrist, again spoke to the trauma experienced by

Homolka, noting that these included "physical assaults including blows to the head using foreign

objects, sexual abuse including many personal indignities, a wide range of psychological abuse

including social isolation, the deliberate removal of any feeling of self esteem and self assertiveness

and the enforced misuse of alcohol and mind altering drugs." 7 Dr. Brown also noted that the

"systematic forms of abuse that Ms. [Homolka] was subjected to amount, in my opinion, to the form

of torture seen commonly in concentration camp reports and in 'brainwashing' techniques used in

POW interrogation." Justice Galligan references a "forty-five page document prepared by the

police entitled 'Abuse Timeline.'"1649 Although this is not included in the report because of concerns

about protected identities and because of the sheer length, there is a great deal of information about

the abuse suffered by Homolka at the hands of Bernardo. Dr. Peter Jaffe, an expert in this area, was

also quoted in the Galligan Report after spending 10 hours interviewing Homolka.165 Jaffe concluded

that Homolka:

exhibits all the signs and symptoms of a young woman who has been extremely traumatized by an abusive relationship. She reports a clear and consistent history of emotional, physical, and sexual violence that trapped her in an abusive relationship. In our opinion, she fits all the criteria for the battered woman's syndrome. In our views, she was groomed, by Mr. Bernardo,

1645 Ibid, at 123. See Kilty, supra note 1592 at 129 citing R. v. Bernardo, 1995, at 1498 where Rosen had asked Homolka if she had ever denied Bernardo sexually. She responds that "I never denied Paul." When further questioned on this matter she answered, "I was his property." 1646 Galligan Report, supra note 1566 at 151. m7Ibid. at 153. 1648 Report of Dr. Brown, cited in Williams, "Invisible", supra note 1323 at 591. 1649 Galligan Report, supra note 1566 at 155. 1650 McGillivray, supra note 16 at 268. Jaffe is an authority on spousal abuse, and he consulted with Lenore Walker on his findings. 297 to become involved in increasingly bizarre and dangerous behaviour that was harmful to herself and others. Mr. Bernardo involved her in three deaths that gradually increased her role and participation. According to Ms. Homolka, Mr. Bernardo's next instruction was for her to kidnap and kill someone by herself.

The Galligan Report also comments on what would have happened to Homolka if the plea bargain was revoked and she was charged in connection with Jane Doe. The Galligan Report cites the

1651 McGillivray, supra note 16 at 268 citing the Galligan Report, supra note 1566 at 156. See Williams, "Invisible", supra note 1323 at 612 who notes that Dr. Jaffe's conclusion that Homolka suffered from PTSD is not supported in the tests conducted on Homolka. Williams notes, at 613, that if "Dr. Jaffe's interpretation were accepted and his conclusions ignored, Karla would again be diagnosed as a severely disturbed borderline personality, a histrionic, a psychopath." See also Galligan Report, supra note 1566 at 167. Looking at the testimony at the Bernardo trial, there is also evidence that Homolka was not totally acting under her own volition. This extends as far as the speech patterns which she used on the infamous videotapes. To those who were determined to show that Homolka was complicit, the transcripts of the tapes seemed to support their point of view. However, in the context of the false statements of prisoners of war, and the speech patterns expected of the compliant victims of the sexual sadist, these transcripts take on new meaning. For example, one can look at the following exchange: Bernardo: [Referring to the videotaped sexual assault of Tammy] Did you like watching that? Homolka: I loved watching it. Bernardo: How did you feel? Homolka: I felt proud. I felt happy. It's my mission in life to make you feel good. Bernardo: What did it teach you? Homolka: Well we like little girls. Bernardo: What age? Homolka: Thirteen. Bernardo: Why? Homolka: Cause it'll make you happy. Bernardo: But why 13? Homolka: That's a good age I guess. They'll still be virgins. Bernardo: So what are you saying? Homolka: I'm saying I think you should take their virginity. They're our children and I think you should make them ours even more. Bernardo: I think you're right. You're absolutely right, good idea. Is it because Tammy's gone? Homolka: It's the closest thing we can get. We did something a few days ago. We raped a little girl down here in my room. You went out and you found her; got her. Brought her back to the house, brought her downstairs. I was shocked. I gave you that. I let you do this because I love you. Because you're the king. I want you to do it again. Bernardo: When? Homolka: This summer because the wintertime is too hard. If you want to do it 50 times more we can do it 50 times more. Every weekend. We can do it every weekend. Because I love you. Because you're the king. Because you deserve it. Bernardo: Will you help me get the virgins? Homolka: I'll go in the car with you if you want. Or I'll stay here and I'll clean up afterwards, like I did on Sunday. I'll do everything I can 'cause I want you to be happy, 'cause you're the king. Many analyzing this conversation without the benefit of the explanations of the sexual sadist provided above might think Homolka absolutely culpable. However, the speech patterns fall directly within the purview of the sexual sadist and the scripted dialogue that many women are forced to perform. 298 case of R. v. Lavallee1652 as recognizing BWS in self-defence of a woman who killed her abuser, but it is noted that this still does not excuse Homolka's conduct.1 5 Homolka's counsel speculated that he would argue the defence of duress but that:

section 17 of the Criminal Code is inapplicable because charges of sexual assault and aggravated sexual assault are specifically exempted from the benefit of that section. However, because there is substantial evidence that Karla Homolka was a battered spouse to such an extent that she was completely under the control and domination of Paul Bernardo, it would be contended that her acts were not voluntary ones controlled by her own mind.1654

Justice Galligan speculates that the defence of necessity might be proven, but the requirement of proportionality might have been difficult to establish.1655 He notes that there is evidence that

Homolka's actions may have been morally involuntary as she was "virtually under his complete control and domination." 5 Justice Galligan notes that he does not express an opinion about the validity of any such defence, but that any trial would have been "extremely complicated, both legally and factually, and most certainly would have been long, difficult and with an uncertain outcome."1657

Similarly, McGillivray has noted that "acquittal would be unlikely but the trial would be long and complex and sentence would be token."1658 Critics still maintain that there is a "disconnect" between

2 Lavallee, supra note 6. 1653 McGillivray, supra note 16 at 268. 1654 Galligan Report, supra note 1566 at 166. As it worked out, at her sentencing hearing counsel for Homolka and the Crown both stated that, at Galligan Report, supra note 1566 at 263-64, "compulsion by threats is not relevant for purposes of her criminal liability." i655Ibid. at 166. 1656 j^s comment was ma(je in relation to "Jane Doe." Jane Doe was a surviving victim who was unidentified by her own choice. See Galligan Report, supra note 1566 at 167. See Galligan Report, supra note 1566 at 211 where it is noted that Justice Galligan interviewed Jane Doe about the incidents in question. He noted that at the time of the interview she was 20 years-old, and informed Justice Galligan that she did not believe that charges should have been laid against Homolka for the crimes that involved her sexual assault. She said that, "in her heart, she knew that Paul Bernardo was the bad person. She told us that Karla Homolka was her friend and then said: 'she had to do what she did, not because she wanted to, but because he made her do it." Jane Doe added, at 211, that her second reason was that "she just wants to be left alone. The events still weigh heavily on her mind. She wants to be left alone so that she can get on with her life." 1657 Galligan Report, supra note 1566 at 169. 1658 McGillivray, supra note 16 at 265. 299 the abuse committed on her, and the abuse she committed on others. However, it is this adherence to the model of "moral vacuity" to which many cling.1660 This judgement that Homolka did not behave as a battered woman "ought" proliferates the accounts of the case.

Homolka's lawyer, George Walker, noted in his submissions that Homolka was not denying her involvement, saying that this was a battered woman in the clutches of a sexual sadist as:

[i]t moves on to the occasional violent, physical assault, the promises of not doing it again and it continues on a gradual scale, and ultimately in my submission it would have followed that my client would not have escaped Mr. Bernardo. It was only a matter of time. She does not seek to minimize her involvement. . . She was there when both Kristen French and Leslie Mahaffy died and she was there when her own sister died. But, once the sister died, Paul Bernardo had her. But from that point on, as the doctor said, indicated, there was very little that she could do in her own mind.16

There was little escape from this coerced existence that Bernardo had created. Yet, it is impossible to know if this defence would have worked in a trial setting. Williams notes that "[a]though it was true

Paul Bernardo had battered her and she had been abused, it would not work as a defense with crimes as deliberate and heinous as the ones she and her husband committed. The 'Battered Woman' defense seldom worked in cases where the woman lashed out and killed her abusive partner. It would never work with a woman who, after participating in the kidnapping, confinement and rape of teenage strangers, also participated in murdering them."1662

Homolka was criticised for what the media called her "grim poise" even in the face of humiliating and debilitating testimony.1663 She was also questioned by Bernardo's counsel, John

1659 Ibid, at 268. 1660 Ibid, at 268 citing R. v. Bernardo [voir dire, admissibility of psychiatric evidence on Karla Homolka] [1995] O.J. No. 2249 DRS 95-15614 Court File No. 274/94 (Ontario Court of Justice General Division) at para. 9. McGillivray, at 268, comments that this evaluator seems to explain this difficulty with reference to Hazelwood et ai, but does not record how this explains this problem. 1661 Kilty & Frigon, supra note 1277 at 47 citing R. v. Bernardo (6 June, 1993), St. Catharines Registry No. 125, (unreported) Ont. Ct. J. (Gen. Div.) [Bernardo]. 1662 Williams, "Invisible", supra note 1323. 1663 Makin, "Beatings", supra note 1570 at Al. Also see O'Sullivan, supra note 23 at 234, who notes that the media called her "saucy and impudent" and "lusty in her pugnacity." See Pearson, supra note 1 at 193, 300 Rosen, about her intelligence which placed her in the top two percent of the population. It has been

noted that the implication in this line of questioning was that being intelligent is inconsistent with

being battered, or conversely, just to show how intelligent one had to be to carry off these crimes,

perhaps as the real mastermind.1664 Some commentators completely reject the view that Homolka was

a compliant victim, but most offer little explanation other than the videotaped evidence that they claim

"proves" her complicity. For example, A.J. Cooper notes that a "Bernardo-Homolka type of

synergistic partnership is to be sharply distinguished from a scenario in which a male psychopathic

sexual sadist compels a 'brain-washed' woman, such as a wife, an acquaintance, or even a kidnapped

victim, to assist in the abduction, torture, and murder of other women . . . [as] has been

comprehensively described by Hazelwood et a/."1665 Cooper goes on to summarize the findings of

Hazelwood et ah, and notes that the compliant victim may be forced by the sadist to participate:

in serial criminal activities, including torture, rape and murder of other women. Despite the fact that these hapless individuals have been 'transformed' by 'brainwashing' from decent human beings to 'compliant appendages,' if apprehended as a co-offender, they have usually been deemed to be legally culpable, although they may receive shorter sentences because of their subordinate role to that of the dominant male. 666

Without stating any precise evidence, the suggestion that Homolka could have been a compliant

victim is dismissed saying that instead Homolka was trying to "save her own skin" and that eventually

"Homolka assumed a much more significant role; indeed, on some occasions, she may well have been

quoting Homolka who said that '"I have this ability,' she said in court, after viewing herself rape Tammy on the small courtroom monitor, her face fascinatingly impassive, 'to watch but not to see.'" 1664 o'Sullivan, supra note 23 at 238. Many have commented that it was difficult for her to take the drugs from her place of employment and calculate the dosages without detection. Also see Williams, "Invisible", supra note 1323 at 23, who notes that "[i]n spite of his good looks, yuppie aspirations and university education, there was something callow about Paul Bernardo that suggested the crimes with which he was charged were beyond his scope." 1665 A.J. Cooper, "Female Serial Offenders" in Louis B. Schlesinger ed., Serial Offenders: Current Thought, Recent Findings (Boca Raton: CRC Press, 2000) 263 at 277 [Cooper]. 1666 Ibid, at 279. See Williams, "Invisible", supra note 1323 at 641, who notes that Homolka sent out highlighted copies of the article "Compliant Victims of the Sexual Sadist" and had wrote to one individual that it is "frightening to know that there are so many of these men out there. But it's also a relief to know that I'm not the only woman who has ever gone through this . . . Please note that the woman referred to in the last highlighted paragraph is not me. It's so eerily similar that I thought I better make that clear." 301 the instigator and the main perpetrator" and that there was enough evidence, although what evidence is not cited, to show that both offenders "satisfied current criteria for sexual sadism."1667 Critics say that it is because the video evidence is so damning because her culpability is captured on celluloid.

The images which come out of those tapes make it difficult for many to see her as anything but

•u 1668 guilty.

O'Sullivan notes that it is because "the media/public could not justify stretching a defence formulated to excuse women who have killed their abuser to tacitly exculpate someone for the deaths of three innocent third parties merely because of an implied threat to their life."1669 Certainly it became clear that Homolka's "status as a battered woman could not explain all her actions and did not tally with media and public expectations as to how a battered woman should behave."1670 But, Kilty and Frigon note that Homolka went beyond what she needed to disclose, revealing her "involvement in the death of her younger sister, a crime the police had ruled as accidental and were not investigating further."1671 They note that this "demonstrates her willingness not only to cooperate with the authorities but also to ensure that the truth surrounding her criminality be known," but after the videotapes were found, "Homolka's discourse of forced participation seemed to dissipate, and the re­ construction of Homolka as dangerous and narcissistic ensued."1672 Once released from the

1667 Ibid, at 277. 1668 It is important to note that the evidence which represents her as Bernardo's victim is through medical reports, the submissions by the Crown which were, to some extent, self-serving, and by her lawyer. The only evidence that appears to be irrefutable is the video. 1669 Q 'sumvaYlt SUpra note 23 at 281. 1670 Ibid, at 295. 1671 Kilty & Frigon, supra note 1277 at 44. Critics also cite her disclosure of Tammy's death as an explanation of why Homolka was involved in the deaths of Mahaffy and French. Some say that this was essential in her mitigating her role in relation to the subsequent murders. 1672 Kilty & Frigon, supra note 1277 at 45. There are other examples of couples involved in the kidnapping and assault of young girls. One of the most recent examples is the Canadian case of R. v. Traverse, [2006] M.J. No. 427, CCS. No 7586 (Man. Q.B.) [Traverse]. The case involved a couple who kidnapped young girls and kept them as a sex slaves in their home. The court found that the woman, Lynette, was involved in the confinement and care of the young girls and would sit, naked, beside the girls as they would be sexually assaulted by her common-law spouse. Lynette told the girls if they did not have sex with her 302 domination of her abuser, many argue that Homolka was frank about her involvement in the crimes, as much as she could recall.

Some psychiatrists later said that Homolka developed survival technique strategies, that is, "she turned off her mind to much of what Bernardo said or did and tried her best just to please him, hoping to improve their relationship; she developed something akin to Stockholm Syndrome, taking the side of the person who was holding her prisoner, agreeing with him even though he was abusing her."

However, the video seemed to take on a life of its own in what has been called the "mediatization" of society because "experiences that have been processed through the video camera are somehow more reliable or authentic than those that haven't."1674 McGillivray paraphrases Foucault in that "evil went out of the world at the end of the Middle Ages and madness came in."1675 McGillivray argues that it was a Crown tactic to paint Homolka as a battered woman to shore up sympathy for her, and add credibility to her testimony against Bernardo,1676 but it was the videotapes that would shift the "image of Homolka-as-prey" to "Homolka-as-predator in the public mind."1677 McGillivray argues that

spouse he would beat her, and the girls believed this to be true. See Michelle Macafee, "Crown Appeals Sentences Given to Winnipeg Couple who Lured and Raped Girls" (12 December 2006) Canada.com http://www.canada.com/topics/news/national/storv.html?id=29aff74a-c390-48c0-936c- 4990ea2f068&k=22093. Lynette was found by the court to have been involved in the sexual assault of one child, and a party to another offence when she held the girls hand and told her to relax, and in the unlawful confinement of the girls. She received a sentence equal to the two years of her pretrial custody. Macafee notes that one of the victims was Lynette's young cousin, but the names were not released to protect their identity. 1673 Pron, supra note 1590 at 187. Pron also notes, at 187, that "other psychiatrists said that, knowing what would happen to her if she told the truth, she put her personal comfort first, and lied about everything else to protect it. She had no conscience about her role in her sister's death, they said. Only later did she show any grief because that helped her situation with the authorities." 1674 Frank Davey, Karla's Web: A Cultural Investigation of the Mahaffy-French Murders (Toronto: Viking, 1994) at 144 [Davey]. 1675 McGillivray, supra note 16 at 256 paraphrasing Foucault, supra note 1371 at 223. 1676 Ibid, at 267. McGillivray also notes at 267 that it was not contemplated at the time that the videotapes would reveal something different. 1677 Ibid. 303 Homolka remade herself from the "accused sex killer to a battered woman seduced into perversion, beaten into murder."1678 The argument frequently made is the one that McGillivray raises in that:

underlying the disquiet was a fear that gender somehow won, that Homolka, being female, was held less culpable on that basis alone. This denied women's equality and moral autonomy. Conversely, it was a sort of witchery through pretended weakness, lies and manipulation, the successful use by an evil woman of obnoxious female traits. Feminists and anti-feminists could unite in their disapprobation of Homolka and her self-created images, first of normality - pretty teen, party girl, beautiful bride, dutiful daughter, supportive wife - and then of the controlled and battered woman with symptoms culled from the Lenore Walker classic on her gaol cell bookshelf.1679

McGillivray notes that many are loath to recognize an "evil" woman and that "[w]omen who participate in sex killings are so demonised that femaleness itself becomes a perversion."1680 Some argue that this is why transforming Homolka from murderer to battered woman "centres domesticity and enhances womanliness" making her someone who deserves not to be punished as severely is something undeserved and the tool of a malingerer.1681 She states that there is a "therapeutic transformation from defendant to victim, from action to passion, from agency to compliance" where the "domestic identity" is revised, which emphasizes her "girlish love, marital aspirations, housekeeping, battering - in deliberate contrast to Bernardo's extramural stalking and rapes."1

McGillivray admits that Bernardo used all of the tactics contained in the sexual sadists study, and that he practiced these techniques on previous girlfriends.1683 She notes that he "found or made a devoted

1678 Ibid, at 256. 1679 McGillivray, supra note 16 at 257. Many commentators are extremely critical of the books that Homolka and Bernardo had in their house. Williams, "Invisible", supra note 1323 at 430 notes that they had a "cache of what they had been told by the FBI was predictable reading material for a sexual deviant" such as "Suffer the Children, Punish the sinner, Flowers in the Attic, Dark Angel, The Funhouse, The Fury, Fallen Hearts, Perfect Victim, In Broad Daylight, A Deadly Silence, Lisa, Hedda and Joel, In His Garden, the Violent Year of Maggie MacDonald, Ritual Abuse, Bitter Blood, A Killing in the Family, Across the Border, the 1-5 Killer, Who Killed Cindy James?, Masquerade, the Ultimate Evil, Childgrave, Small Sacrifices, Teacher's Pet, the Anarchist's Cookbook, Petals in the Wind, When the Wind Blows, Life with Billy, Poisoned Bloodand The Confessions of Henry Lee Lucas." I find it interesting that I personally own many of these titles. 1680 Ibid, at 258. 1681 McGillivray, supra note 16 at 258. 1682 Ibid. 1683 Ibid, at 273. 304 pupil in Homolka. He took legal advantage of the institution of marriage, with its privacy and conferral of spousal immunity, bearing traces of coverture. Homolka could not be compelled to testify against him . . . [and he] involve[d] her directly in procurement and murder . . . Coverture shuts doors. Battering, with its control of will, act, meaning and identity, shuts more."1684 McGillivray states that the "blame . . . lies with reductivist legal and academic feminist discourses that prefer to believe that women who kill are victims of the Svengali influence of men. Such discourses refuse to confront female aggression. Women can be evil, too."1685 What McGillivray does not understand is that women can be brainwashed, too.

On the other hand, McGillivray notes that "too much agency is problematic."1686 She responds that "[d]emonising offenders like Homolka creates a hyper-agency resulting in excessive prosecution of women . . . Demonising women ignores the impact of intimate violence in childhood, adolescence and adulthood."1687 McGillivray speaks at length about the "psychiatrising of women" and addresses the common criticisms of BWS that "cuts two ways."1688 She notes that:

[m]oral will is eroded by intimate violence. This erosion lowers or erases agency and criminal responsibility. Alternatively, it syndromizes women, reducing the social roots of battering and women's inequality to an individualized medical condition and thus relieving society of the burden of addressing those roots. Battered Women's Syndrome is a wedding of feminism, psychiatry and law, a new addition to the taxonomy of culpability in the old alliance of law and the psy disciplines. It is rarely a complete defence. Usually, as in Homolka's case, it figures in charge and sentence reduction. Had Homolka killed Bernardo, it is likely that she would have been exonerated. She killed others and this falls outside the parameters of the legal defences. Bernardo and Homolka were assigned medical identities - battered woman and sadistic psychopath - leading to different legal results. Battered women's syndrome diminishes legal fault. Psychopathy, the inability to feel another's pain, does not.1689

1684 Ibid, at 273-74. 1685 Ibid, at 274. 1686 Ibid. m7Ibid 1688 Ibid, at 276. 1689 McGillivray, supra note 16 at 276. McGillivray notes, at para. 52 that psychopathy in "lay mythology, criminology and medicine are contradictory and incoherent." 305 Thus, one could argue that the medicalization of the two defendants in this case cast them in very

different roles. Kilty and Frigon also conclude that Homolka is a "oddity in criminal law and socio-

legal construction; she does not fit the mould of typical female offenders . . . Homolka's involvement

in these crimes created a moral panic, and posed the question that if a white middle-class woman from

a good home could commit such crimes, then how are we supposed to differentiate between good and

bad women?"1690 Yet, Kilty and Frigon note that "she had some choice within constraint and that that

choice was to save herself. Suggesting that she had agency free from domination neglects the abuse

she experienced."1691

McGillivray does note that "Bernardo is not just an ordinary batterer. He is a sexual sadist doing

to nice young middle-class women what other sexual sadists have done before. This is the clincher

for Galligan and it almost convinces her most sceptical evaluator, although he continued to wonder at

her moral vacuity. Homolka is not the ordinary victim of spousal assault and cannot be expected to

act like one, because her batterer is not ordinary."16 McGillivray cites the very criticism that is

frequently levelled against Homolka that she is:

just another battered partner of a sexual sadist, corrupted by his gaze, caught with her victims in a rare tragedy. But that troubling moral vacuity remains. Could Homolka not have lifted up her head for a moment in her five years with Bernardo, worked out the logic, saved a life besides her own? What so insulated her from these children's suffering that she would enable their torture and murder rather than risk her body or her marriage? . . . She procured more victims for Bernardo, twice repeated the deadly Tammy scenario with Jane Doe, videotaped and starred in all events, scrubbed up afterwards and give a father's day dinner while one child's body lay in the cellar of their Barbie-pink house. The victims were children, three are dead and Homolka could have saved them . . . Perhaps we are just surprised at the banality of

It is for these critics who cannot fathom Homolka's inaction to "save" these young girls that

Homolka's culpability is clear. With the inability to see Homolka as a victim, McGillivray picks up

Kilty & Frigon, supra note 1277 at 56-57. x Ibid, at 49. 2 McGillivray, supra note 16 at 269.

306 the concentration camp metaphor and those who followed orders under Hilter's regime. She notes that a "psy1694 description of Homolka ... as a 'concentration camp' survivor brings home the terrible domesticity of the death camp and its trustees. More than any other metaphor of vampire or devil, or psy label of battered woman or compliant victim, it conveys the duality of this privileged child caught in iniquity and the inadequacy of metaphor when the camp walls are psychological."1695 Perhaps this is why this concept and this group of offenders is so misunderstood, because it defies most explanations. It is far too easy to say "she could have done something" when one has never been captive in the same "prison" where some, if not all, of these women found themselves. More difficult to understand is that they are not poor, they are not powerless, they are not unsuccessful in the work world, and they did have somewhere else to go. The fact that they do not take these options speaks volumes. The fact that they do the things their partners demand, including raping and killing, also speaks to the issue. These are not typical battered spouses, so they speak to a new paradigm.

It is still difficult to see why after Bernardo's trial his role is discounted, and the anger felt toward Homolka is still very real.1696 Is Homolka critically judged because she is a woman, and she should not have let these things take place? Since Bernardo is a sexual sadist and his actions can be explained and he can be locked away from the public for an indeterminate sentence, is his complicity somehow discounted while Homolka must pay for being the one that is free to live the rest of her life outside of prison? Most of the time with sexual assault and murder the public can only imagine how the victim must have suffered, what they said, what participation each of the parties had. With

Homolka, the public did not have to imagine, they had the video evidence right before them.

Regardless of the explanation of Homolka's disposition on the videos, other individuals have a very

1694 McGillivray uses this short-form for psychology, psychiatry etc. It will be quoted as used by McGillivray in this thesis. 1695 McGillivray, supra note 16 at 271. 1696 jjjjs anger js uniikeiy t0 dissipate given that Homolka "only" served 12 years and that she is now free to live her life, have children, and move forward with life given that she had some part in the extinguishing of three lives, and the shattering of many more. 307 difficult time believing that a woman could perform these atrocities, let alone appear to enjoy her participation with no visible gun to her head. That visual the public might be able to tolerate, but nothing less. Whether either of these women could have used the proposed brainwashing defence will be explored below the last two case studies.

iii. Manson Family

There have been multiple cases where a brainwashing defence was attempted, but none as publicized as the case involving Charles Manson and his "Family" of women who were convicted for the violent murder of Sharon Tate and several others. The Family members tried for these acts were

Susan Atkins (Sadie), Patricia Krenwinkel (Katie), Linda Kasabian, and Charles Tex Watson.1697

Manson was obsessed with the Beatles, and particularly one song named "Helter Skelter" which he believed to be a warning from the Beatles about the coming race war.1698 Disillusioned with his own failure as a musician, Manson collected a group of followers who obeyed his every wish and taught them about the coming revolution of black Americans against white while equating himself to Jesus

Christ.1699 Manson was particularly fascinated by hypnotism, psychology and Scientology.1700 In an effort to explain these crimes, the prosecutors presented a case that Manson ordered the killings to

"foment a revolution of black people against the white establishment, with the family as the eventual beneficiary."1701

Manson followers called themselves the "Family" and believed that they were on a spiritual quest with Manson as their leader. The members of the Family, most of whom were women, had many similarities. It has been noted that they all:

1697 Scheflin & Opton, supra note 7 at 25. 1698 California v. Manson, 61 Cal. App. 3d 102 at 129 (1976) [Manson]. See Wilson, supra note 2 at 573. Manson had in actuality spent most of his adult life in jail, but he dreamed of being in the pop music business, and even lived with the Beach Boys during the 1960's in order to try to launch his music career.1698 1699 Manson, supra note 1698 at 102. 1700 Scheflin & Opton, supra note 7 at 32. 1701 Manson, supra note 1698 at 102. 308 felt alone and afraid in the world around them - essentially the world of their parents. They saw no comfortable niche in life for themselves and drifted from one lifestyle to its direct opposite while searching for something to believe in and someone to belong to. They did not have clear identities in search of a place. Rather, they searched for a place to obtain an identity. Each came to view Manson as a healer, a father and a Messiah who would teach them to find their place in the world. 702

To start the revolution, Manson and four "disciples" including three women and one man drove to the house of a pop music producer against whom he had a grudge.17 However, instead of the producer, the house was now occupied by Roman Polanski and his pregnant wife, Sharon Tate. Polanski was not at the home, but Jay Sebring, Abigail Folger, Voytek Frykowski and Stephen Parent were visiting the house.1704

The Family ultimately killed all five individuals who were at the house that night. 5 Hours later, Manson, Linda, Sadie, Tex, Katie, Leslie Van Houten and Steve (Clem) Grogan entered the home of Leno LaBianca and murdered Leno and his wife and wrote "death to pigs" and "Helter

Skelter" on the walls in blood. 7 Manson and his followers were eventually arrested, resulting in the longest and most expensive trial in Los Angeles history. 7 7 Members of the family who had "fallen under the influence of the cult leader . . . sought to introduce evidence of that influence in mitigation of sentence."1708 This use of a brainwashing defence was unsuccessful and both Manson and members of the cult were convicted of first degree murder. However, evidence was allowed to be

1702 Scheflin & Opton, supra note 7 at 35. See Scheflin & Opton, supra note 7 at 35 following for more information on the Family and their backgrounds. 1703 Wilson, supra note 2 at 573. 1704 Scheflin & Opton, supra note 7 at 25. 170 Wilson, supra note 2 at 573. See Scheflin & Opton, supra note 7 at 25 in that these were particularly brutal crimes as Tate was stabbed 16 times; Folger 28 times; Sebring 7 times; and Frykowski 51 times. 1706 Ibid, at 574. 1707 Wilson, supra note 2 at 574. Vincent Bugliosi & Curt Gentry, Helter Skelter: The True Story of the Manson Murders (New York: Norton, 1974) at 413 [Bugliosi & Gentry]. Bugliosi notes, at 594, that this trial was the "longest murder trial in American history, lasting nine and a half months; the most expensive, costing approximately $1 million; and, next to the Lindbergh kidnapping-murder case, the most highly publicized; while the jury had been sequestered 225 days, longer than any jury before it. The trial transcript alone ran to 209 volumes, 31,716 pages, approximately eight million words, a mini-library." 1708 Richard Delgado, "Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment" (1977-78) 51 S. Cal. L. Rev. 1 at 4 [Delgado, "Totalism"]. For a further discussion on mitigation of sentence see Part VIII below. 309 introduced on brainwashing and the "proposition that thought control that falls short of inducing insanity is at least relevant to the question of criminal liability."1709

Many of the members of the Family concluded that they had been hypnotised, given Manson's interest in this field, but Scheflin and Opton note that this "explanation may be no more than a description of how much power they permitted Manson to have over them rather than a description of how he attained that power."1710 Brooks Poston, a member of the family, was questioned about whether he believed that Manson had hypnotised the family. Poston replied, "No, I do not think that

Charlie had a hypnotic spell... I felt he was Jesus Christ. That is power enough for me." Dr. Joel

Hochman, who assessed Susan Atkins, noted that a "more comprehensive description of her condition will necessitate further study. But at this time we might suggest the possibility that she may be suffering from a condition offolie afamille, a kind of shared madness within a group situation." 7

Dr. Joel Fort testified at the Manson trial that Leslie van Houten underwent influence that "was used, in effect to brainwash or produce a new form of thinking, a new pattern of behavior for the girls living in that group with Mr. Manson."1713 He noted, after examining her, that "Mr. Manson's influence played a very significant role in the commission of the murders."1714 Dr. Fort was asked on examination if he knew of a situation where one would be programmed to commit crimes.1715 Dr. Fort replied, "Yes. In one sense, that is what we do when we program soldiers in a war . . . The Army uses a peer group technique and the patriotic ideals that are instilled in citizens of a particular country to

1709 Ibid, at 4-5. 1710 Scheflin & Opton, supra note 7 at 39. See also Winn, supra note 59 at 168. Scheflin & Opton, supra note 7 at 39 quote a member of the Family named Charlie who said that Manson was an "insane genius" and that he "would talk to you in a soft, soothing voice, like someone lulling you to sleep, and even though he'd later suggest things that would seem impossible, yet you could not stop yourself- even if you were in a straight world, from going out and doing it." 1711 Bugliosi & Gentry, supra note 1707 at 498. Bugliosi, at 509, described Manson's testimony at trial as a hypnotic "performance ... not unlike the ones he had cast over his impressionable followers." 1712 Ibid, at 599. 1713 Reeves, supra note 83 at 473. 1714 Bugliosi & Gentry, supra note 1707 at 573. 17,5 Ibid. 310 bring about this pattern of behavior."1716 This startling statement demonstrates the important role of brainwashing. The Court at the California Court of Appeal noted the power that Manson had, saying:

[w]ithout doubt, Manson was the leader of the Family. The scope of his influence ranged from the most simple to the most complex of matters. He decided where the Family would stay; where they would sleep; what clothing they would have, and when they would wear it; when they would take their evening meal and when they would move . . . Manson's position of authority was firmly acknowledged. It was understood that membership in the Family required giving up everything to Manson and never disobeying him . . . They regarded him as infallible and believed that he was a 'God man' or Christ. Family member Danny DeCarol testified that each co-appellant said that 'Charlie sees all and knows all.' Kasabian was told by the others 'We never question Charlie. We know that what he is doing is right.'1717

Prosecutor Vincent Bugliosi described Manson as the "dictatorial leader of the Family," explaining that "everyone in the Family was slavishly obedient to him," and that this "total domination" led the

Family to commit these gruesome murders. 7 Juan Flynn, a member of the Family, testified that

Manson had attempted to bring him into the Family and told him, "I will get you a big gold bracelet and put diamonds on it and you can be my head zombie." Flynn said in an interview that following this conversation after the murders had taken place, Manson grabbed him by the hair and put a knife to his throat, saying, "You son of a bitch, don't you know I'm the one who's doing all of

Manson, supra note 1698. The court quotes the testimony of Paul Watkins, at 129, who describes why Manson would give group lectures every night saying Manson thought "most people were like computers. In other words, they did not know anything that had not been put in them by schools, churches, parents, friends, relatives, radio, television and everything, and every other means of communication. Nothing they had was their own; that they didn't know anything. They [sic] only thing they knew is what they had been told and programmed, and that he with his music and his words could unprogram, take those programs out and leave a void, or nothing, in which love could come through." See Scheflin & Opton, supra note 7 at 39 that repetition is key to persuasion noting that Manson "preached his philosophy daily, over and over again. Every day at dinner, he would sit on top of a large rock and lecture, with the Family members sitting in a circle below . . . [Manson concluded] 'You can convince anybody of anything if you just push it at them all the time ... [t]hey may not believe it 100 percent, but they can still draw opinions from it, especially if they have no other information to draw their opinions from." 1718 Bugliosi & Gentry, supra note 1707 at 413. The authors note, at 427, that members of the family said that it "seemed that the girls worshiped him, just would die to do anything for him." Linda Kasbian, quoted by Bugliosi and Gentry at 437, was asked whether she was "controlled by Mr. Manson's vibrations." She responded, "[pjossibly . .. he's doing it right now." 1719 Bugliosi & Gentry, supra note 1707 at 441. 311 these killings?"1720 Defence counsel tried to argue that the female members of the family were not

guilty of the crimes because "if you believe they were mindless robots, they cannot be guilty of

premeditated murder ... To commit first degree murder . . . you must have malice aforethought and

you must think and plan. And these people did not have minds to make up . . . Each of the minds of

these girls and Mr. Watson were totally controlled by someone else."172 Evidence was presented that

it may be possible that there was a superimposed intent and it was realistic to control someone to the

extent of committing crimes against innocent third parties.

Many have questioned why the women stayed with Manson, and why they would remain loyal,

in the same vein that women are repeatedly asked why they stay with an abusive partner. However, it

is important to note "that although the exploitation of the women by Manson was socially bizarre, it

was not unique. If we do not ask whether prostitutes or battered wives have been brainwashed, why

do we ask it of the Manson women?"1722 It has been argued that Manson "did not coerce people to

1723 join him." He began by simply asking these people to follow him. Manson waited until they had joined him (unlike Hearst) and then began his systematic influence over these individuals. Manson's

coercion was, thus, much more subtle. The Family was "[ijsolated from the outside world, dependent

on Manson for their emotional fulfilment, [and] Family members accepted his authority over every

aspect of their lives. He used drugs, aggressive interrogation, and constant repetition of his doctrines

to reinforce that authority."1724 Patricia Krenwinkel testified at trial that she had fled because she was

frightened of Manson hunting her down and killing her.1725 Others note that the "girls were subjected

1720 Ibid. 1721 Ibid, at 528. A member of the Family, Paul Watkins, is quoted by Bugliosi, at 599, as saying that "I know Charlie. I know him inside and out. I became Charlie. Everything I once was, was Charlie. There was nothing left of me anymore. And all of the people in the Family, there's nothing left of them anymore, they're all Charlie too." 1722 Scheflin & Opton, supra note 7 at 47. 1723 Ibid, at 40. 1724 Taylor, supra note 46 at 30. 1725 Bugliosi & Gentry, supra tnote 170e 1707 a7t 570at 570. . 312 to considerable pressure, tailor-made to hit target - their most vulnerable inner selves. Whether they

were coerced into belief or willingly abdicated the responsibility for thinking, in outcome they became

subservient to Manson's will. They were victims of their own human need for affection, warmth,

security, their human failings of guilt and fear and yearning for certainty in an uncertain world."172

Instead of beginning with violence like with the POW's or with Hearst, Manson began with

acceptance and "love" for these lost individuals.

Scheflin and Opton argue why brainwashing was not a defence in the Manson case. Many are

critical of the attempt of the Family to use the brainwashing defence. In a very standard argument

about why brainwashing should not be recognized as a defence they note that the:

Manson women could have stopped themselves from killing. They simply chose not to do so. Because they had the free will to say no, they ought to be punished. The alternative, as the Court of Appeals suggests indirectly, would be that a valid criminal defense would be available any time a person was talked into something. Society has the right to insist that its members be more responsible for themselves than that. To accept the argument of the defense would be to say that weak-willed persons are not responsible persons. If they are not responsible for their acts then someone must take care of them. The result would be a tremendous loss of personal autonomy with a concomitant increase in the number of people legally empowered to control the lives of others. Our society finds that alternative unsatisfactory. People do not always make the right choices in their lives, but they must be judged on the basis of the decisions they make. It is no defense not to have known better at the time. While it is true that Manson did exploit his followers, it is just as true that they let him do so. And for that they are held accountable.1727

However, this dismissal of the defence of brainwashing is not as clear-cut as Scheflin and Opton contend. The authors argue that it is because of the particular facts of the Manson trial that an alternative defence was provided to rationalize that which could not readily be explained. They note that a "scary" defence was used to explain the "scary" facts of the case.1728 They also argue that the term brainwashing has "great emotional power even though its meaning is not at all clear. That emotive power stems precisely from a failure to articulate the so-called brainwashing phenomenon in

Winn, supra note 59 at 170. Scheflin & Opton, supra note 7 at 49.

313 an understandable way. It is not without significance that the word is most often used by people who have little knowledge of either the genesis, or the process it labels."1729 However, emotion is part of the package. Scheflin and Opton conclude that "brainwashing becomes an explanation that avoids the necessity for looking inward," ° but perhaps it does necessarily look inward to the victims under this power. However, they rightly state that the problem did not cease to exist when the "heavy doors of death row slammed shut on Charles Manson." If the members of the Family had been brainwashed, the California Court of Appeals did not agree that they should be acquitted. They found that "peer pressure, being a cult follower, or coming under the influence of a charismatic leader was not enough to relieve a person from criminal liability"1732 and the women were sentenced to life

1733 imprisonment.

iv. Lee Boyd Malvo

The Courts have also recognized the potential for complete interpersonal domination in the case of Lee Boyd Malvo. Malvo, the young sniper who terrorised the southern United States in October,

2002, was tried and convicted of the capital murder of Linda Franklin1734 and was implicated in the deaths of 9 others and the injuries of three.1735 Apprehended were John Allen Muhammad, age 42, and Malvo who was only 17 years old at the time of the shootings. 7 It has been acknowledged that

1729 Ibid. 1730 Ibid, at 50. 1731 Ibid. 1732 Taylor, supra note 46 at 31. 1733 See Scheflin & Opton, supra note 7 at 50 where they cite Manson from the witness stand who understood that the problem was not solved with his incarceration saying, "[w]hat about your children? .. . You say there are just a few? There are many, many more, coming in the same direction. They are running in the streets - and they are coming right at you!" 1734 Virginia v. Malvo, 63 Va. Cir. 22 at 1 (2003) [Malvo]. 1735 Dahlia Lithwick, "The Pied Sniper: Was Lee Boyd Malvo Brainwashed into a Killing Machine?" Slate (25 September 2003), online: Slate.com [Lithwick, "Pied"]. 1736 Nolan, supra note 320 at 451. See Raymond M. Brown, "The 'American Taliban' versus the Junior 'Beltway Sniper': Toward Understanding Death, 'Brainwashing,' 'Terror,' and Race in the Court of Public Opinion" De Paul Law Review, Vol. 53, Summer 2004, Symposium Issue 1663 at 1663 n. 4 [Brown, "Taliban"] who notes that Malvo was "charged with two counts of capital murder in violation of Va. Code 314 the "public expressed vehement outrage at the crimes, and demanded quick and full retribution.

Attorney General Ashcroft decided that the appropriate forum for the trial of both would be the state of Virginia (a forum in which the death penalty was considered a more likely outcome).1737 As expected, prosecutors decided to seek the death penalty for both, despite Malvo's being 17 at the time of the offense."1738 In response to the charges, Malvo's counsel attempted a defence of

"indoctrination."1739

There was evidence presented that Muhammad took "a sweet, bright, attention-starved boy and turned him into a paramilitary freak, half starving him on a diet of honey and crackers and desensitizing him with video games, weapons training, and talk of a race war." ° Evidence was provided that Malvo changed his religion and his name to John in order to please Muhammad, and circumstances got to such a level that Malvo's mother "traveled from Jamaica to the United States in an unsuccessful attempt to free him from Muhammad's influence."1741 Brainwashing references were found in the descriptions of their apprehension, saying that Malvo was '"under the spell' of

Muhammad. The media seemed to recognize Malvo's dependent relationship, though often disparagingly referring to Malvo as 'mini-me' and to Muhammad and Malvo as the 'man-boy couple.'

Ann. § 18.2-31(13) (2003), and use of a firearm in the commission of a felony in violation of VA. Code Ann. § 18.2-53.1 (2003) in the shooting death of Linda Franklin in Fairfax County, Virginia on October 14, 2002. He was more broadly alleged to be part of a murder spree with John Allen Muhamad [sic] covering five jurisdictions." 1737 Nolan, supra note 320 at 451. See Eric Lichtblau & Adam Liptak, "Threats and Responses; On Terror, Spying and Guns, Ashcroft Expands Reach" New York Times (March 15, 2003) [Lichtblau & Liptak] who state that "with different jurisdictions vying to prosecute them, Mr. Ashcroft made the final call based in large part, his aides acknowledged, on where the two suspects would stand the best chance of being executed if convicted. 'It is appropriate - it is imperative - that the ultimate sanction be available for those convicted of these crimes,' he said in announcing that Fairfax and Prince William counties in Virginia would get the cases . . . James Wyda, a lawyer who represented Mr. Mohammad in Maryland, said the death penalty' is driving the Justice Department's decision-making in unprecedented ways." 1738 Ibid. 1739 Ibid, at 435. 1740 Lithwick, "Pied", supra note 1735. 1741 Brown, "Taliban", supra note 1736 at 1666. 315 Scores of news reports referred to the older man as 'Svengali' in his relationship to Malvo."

Outwardly, this dependence was evident.

Even some sceptics were willing to accede that Malvo "may actually have one of the most

credible claims of brainwashing in legal history."1743 There is little question that Malvo:

meets Lifton's original criteria for POW brainwashing almost exactly: An individual who was isolated, degraded, forced to perform repetitive tasks, made to renounce earlier values - Malvo converted to Islam under Muhammad's guardianship - and cut off from external sources of information . . . Muhammad lived with the boy in shelters, in cars, and with friends, moving constantly, training him for combat, and prohibiting close connections with others . . . [Muhammad] turned him into an army of one, training him as a sniper, encouraging him to play hours of video games, insisting on a demented regimen of health food and exercise, and talking constantly of the race war in America.1744

Although the main defence for Malvo was insanity, the defence attorney argued that Muhammad was

the victim of brainwashing and he was "programmed as to what to say to the enemy."1745 It was

argued that Malvo had wrongly confessed to some of the crimes committed in order to save

Muhammad, whom he viewed as a father.1746 The defence asserted that "John Muhammad is his sole

support. John Muhammad is his confidant and military commander. In short, John Muhammad is Lee

Malvo's whole world." 7 Using this basis they argued that Malvo was transformed into "an

instrument of death and destruction," as Muhammad had "created what Lee became just as surely as a

potter molds clay."1748 Commentators noted that "[j]uries typically put more stock in the concept of brainwashing than do members of the psychiatric field. Still, the jurors might prove tough to persuade

in this case, if only because polls have shown that verdicts are more conditioned by jurors' visceral

1742 Ibid. 1743 Lithwick, "Pied", supra note 1735. 1744 Ibid. 1745 Adam Liptak, James Dao & Lisa Bacon, "2nd Sniper Trial Opens, Its Focus on Audiotapes" New York Times (November 14, 2003), online: nytimes.com [Liptak, Dao & Bacon] (quoting Malvo's attorney, Craig S. Cooley) [Liptak, Dao & Bacon]. 1746 Ibid, (quoting Malvo's attorney, Craig S. Cooley). 1747 Ibid. ™Ibid. 316 fear of the defendant than by their understanding of insanity's legal contours."1749 Commentators have used this case to emphasize how this evidence would be important to establishing the defence, and that the "information must be narrowly tailored to the specific characteristics of the defendant."1750 This evidence establishes that "although the defendant intended the consequences of his action, the intent with which he acted was not his own," supporting the theoretical basis of a separate defence.1751

Even more pivotal to the evolution of a brainwashing defence was Muhammad's disposition.

It has been noted that to "find Muhammad guilty, the jurors needed to accept a slightly counterintuitive proposition: that Muhammad - who never touched a gun as far as we know - was so in control of his youthful accomplice, Lee Boyd Malvo, that the boy himself was the murder weapon.

The jury had to have believed that Muhammad's act of instructing and assisting the boy in the killings was tantamount to pulling the trigger himself. . . [T]he Muhammad jury bought it."1752 Some have noted that if Muhammad was convicted (as he was) then this should exonerate Malvo, asking,

"Doesn't the Muhammad verdict definitively mean that, yes, Malvo was manipulated and used?"1753

Many questions arise from this situation including "agency and manipulation, with both prosecution teams asking jurors to consider the boundaries of human influence over others: Who is responsible for our actions? Are children more readily influenced than adults? In one case, Muhammad's agency was assumed by the jurors but never proved. In the other, Muhammad's agency may well be proved but may still be legally irrelevant to an insanity defense."1754 Muhammad's defence team showed that

1749 Dirk Olin, "Nuts to Whom? The Insanity Defense is Crazy" Slate (18 November 2003), online: Slate.com [Olin]. 1750 Warburton, supra note 58 at 89-90. 1151 Ibid at 90. 1752 See Dahlia Lithwick, "I Was Brainwashed! If Muhammad's Guilty is Malvo Innocent?" Slate (17 November 2003), online: Slate.com where it was noted that Muhammad was found guilty after only 6 hours deliberation [Lithwick, "Muhammad"]. 1753 Ibid. ™Ibid 317 there was much physical evidence that proved Malvo's guilt, including his prints on the gun, Malvo's

DNA at the scene, and witnesses identifying Malvo at the scene. Yet, there was little physical

evidence from Muhammad except his ownership of the car seen at the murders. Regardless,

Muhammad was found guilty of capital murder.1755

However, although convicted, Malvo was not sentenced to death.1756 As discussed, some

commentators have concluded that brainwashing would be best disposed of at the sentencing stage.

They review the sentencing aims of deterrence, retribution, isolation and rehabilitation, and argue that

brainwashing deals with of each of these concerns because the accused is under extreme coercion and

the defendant "usually readopts traditional values readily." 757 This is what occurred in the Malvo

case. The Virginia jury convicted Malvo for two counts of capital murder with a life sentence, while

Muhammad was sentenced to death.175 It has been noted that "jurors in Virginia - one of the few

American states that still countenances the death penalty for juveniles - were receptive to the

mitigating argument that the youthful Malvo had been significantly influenced by Muhammad."1759

As Nolan notes, Malvo's lawyers "painted a picture of his geographical and cultural displacement, abandonment, and utter dependence on his elder companion . . . While the jury did reject such evidence as a basis for exoneration, it did accept it as a basis for sparing Malvo's life."1760 If the defence can be believed in this case, "Malvo was a lonely, disaffected, impressionable youth who, through no apparent fault of his own, fell under the oppressive influence of an exceptionally evil man."1761 If a jury can believe that this portrait of a malleable youth is the truth behind these crimes, there could be support for an affirmative defence for such an offender.

1755 Ibid. 1756 Nolan, supra note 320 at 435. See Lithwick, "Muhammad", supra note 1756. 1757 Lunde & Wilson, supra note 92 at 381. 1758 Brown, "Taliban", supra note 1736 at 1671. 1759 Ibid. 1760 Nolan, supra note 320 at 455. Malvo was sentenced to life imprisonment without parole. 1761 Ibid, at 459. 318 v. Would a Defence of Brainwashing be Successful in Any/All of these Case Studies?

Many have stated that the right way for the criminal law to move is to allow an affirmative defence of lack of responsibility due to brainwashing. There is a strong sympathetic argument for such a defense in cases where the defendant would never have willingly participated in criminal conduct, except that her/his personality and beliefs were forcibly implanted. In such cases, it might, to some seem "unfair to punish the [brainwashing victim] for conduct which he would not have undertaken, but for the brainwashing."1762

Thus, the establishment of firm, principled criteria for a brainwashing defence might begin with certain precepts. To avid inconsistency, it is apparent that the current scientific understanding and the current doctrinal approach to excuse in Canada would allow the courts to construct a set of criteria to make the defence manageable and capable of consistent application. The criteria should include:

1. This defence should consider both the mens rea and actus reus elements of the offence and focus on a marked departure of the individual's behaviour to the point of a "change in identity;"1763 2. It would be limited to a very concise definition including only the "forcible indoctrination process designed to induce the subject to abandon existing political, religious, or social beliefs in favour of a rigid system imposed by the indoctrinator"1 6 and these beliefs must be imposed through means such as "prolonged confinement, physiological depletion, and deliberate manipulation of guilt, terror, and anxiety;" 7 3. Questions of safe avenue of escape, prior fault, susceptibility issues that have historically plagued the other defences (especially duress) will be explained by the addition of expert medical, psychological and social science testimony at trial and will include only states which are "imposed on the subject, rather than self-induced or consciously selected;" 766 4. The actor must be able to show that they were able to "snap-back" after removal of the influence upon the individual (understanding that this may take some time); 5. Finally, there should be a recognition that this new defence can be "applied without fatally eroding the assumption of freedom of the will or opening the floodgates to every defendant

1762 Davis, supra note 822 at 478-79. 1763 Delgado, "Ascription", supra note 52 at 20. ""Ibid at I. 1765 Ibid at 19-20. 1766 Ibid at 20. 319 who has been subjected to some degree of persuasion" by following these guidelines. This can be done without "placing additional stress on already overextended existing theories."17 8

Following these criteria would enable the court to distinguish between mere counselling and mild coercive persuasion, and the most severe end of the continuum which includes the defence of brainwashing.

In this vein (as mentioned at the outset of this dissertation), I suggest that the proposed defence would provide the following:

Brainwashing - A person who commits an offence under brainwashing is excused if: 1) There is a forcible and/or violent indoctrination1769 which is enforced through: a) Prolonged confinement; and/or b) Physiological depletion; and/or c) Deliberate manipulation of: i. Guilt; and/or ii. Terror; and/or iii. Anxiety; d) The state is imposed on the individual rather than by self-induced or consciously selected means; and e) There is a change in the individual's behaviour to the point of change in identity; and f) There is an abandonment of previous beliefs and an adoption and/or an implantation of new beliefs; and g) The new beliefs are foreign to the brainwashee; and h) The brainwashee keeps these beliefs until removed from the control of the indoctrinator for a significant period of time1770; and

2) The brainwashee is not knowingly a party to a conspiracy or an association which is commonly known to be subject to compulsion; and 3) There is proportionality between the severity of crime committed and the threat made.

1767 Delgado, "Ascription", supra note 52 at 33. 1768 Ibid. 1769 For a definition of indoctrination I adopt the definition of Delgado, as discussed, Delgado, "Ascription", supra note 52 at 1, as the "forcible indoctrination process designed to induce the subject to abandon existing political, religious, or social beliefs in favour of a rigid system imposed by the indoctrinator." 1770 The party must be seen to "snap back" after some, potentially lengthy, period of time. Similarly, the proportionality provision, although technically inapplicable to a brainwashing defence, would likely be considered by the courts as it is in the duress defence. 320 The question remains, would any of the individuals in the case studies have a defence? Would

Hooker and Homolka have used such a defence at trial? The answer might be in the evidence. Janice

may have been just as complicit as Homolka was seen to be, and this may have been documented in

the films and pictures that she insisted on destroying. What is clear is that these women would not be

able to use a defence of "mental disorder, duress or necessity ... in Homolka's circumstances . . .

[i]mmunity from prosecution could not be granted. Psy evaluators helpfully agreed. Homolka was

'technically of sound mind and free of disease of the mind of sufficient severity to cloud her

awareness or cause her to be unable to appreciate the nature and quality of her acts.'"1771 The agency

that was afforded Homolka was considerable, and perhaps was too much when one looks at the

extensive evidence of her abuse. Of course, there are substantial difference in attitudes towards

women between the 1970's and the 1990's, yet the differences seem to be more encompassing than

time.

Williams notes that there were real differences between the cases: "Colleen Stan had not been

murdered. And details of the case were certainly bizarre. The Hookers would actually let the victim

go into town by herself and shop. Once, they even let her visit her family for two or three days. She

always returned."1772 There are also fundamental differences between the two: Janice did not

participate in the killing of a close family member (that was discovered), she ultimately helped free

Stan without just saving herself, and whatever physical evidence the Hookers created was destroyed

before the police were involved. Janice was also the one that went to the police, which is a major

difference from Homolka. Although there is no substantive evidence which can prove this, it may have been this one act of semi-contrition by Janice which saved herself from a fate of being incarcerated as Homolka was. Again, perhaps this case would have been very different if there was surviving video/audio evidence of Janice "enjoying" her participation in these violent and sadistic

1771 McGillivray, supra note 16 at 268. 1772 Williams, Pact, supra note 1566 at 202. 321 acts; because Homolka smiled for the camera, she was placed in another category. This reaction has

been described as the "hysterical vilification of women involved in sadistic crimes. If they are not to

be ridiculed, they are to be painted as much more wicked than any man."1773 Perhaps the truth of the

relationship between Homolka and Bernardo and the Hookers will never be known, and perhaps there

will never be the perfect account of a brainwashed spouse.

Clearly, it would be impossible to predict whether a brainwashing defence would have been

successful for Janice Hooker. The physical evidence was destroyed, and so were her liabilities.

However, it seems relatively clear that Janice would meet the preconditions for the suggested

brainwashing defence: there seemed to be very violent indoctrination through manipulation and

physical torture. Although she chose to marry Cameron Hooker, it may be argued that this was not a

consciously selected life; there was evidence that this behaviour was a departure from the Janice

before she met her sadist husband; there also seemed to be an adoption of the new beliefs of "the

Company" even though she may have had a hand in the creation of this fiction. However, there is no

evidence about the "snap back" after Janice went to the police, and there may be a problem meeting

the test of proportionality (but again, Stan was not murdered). The defence may, or may not have

been available for Janice.

For Homolka, even with the plethora of evidence which was available, what is evident from this

case study is that the different psychological experts differed drastically in their perceptions of her

disposition. There was absolutely no consensus on whether Homolka was the victim or the

victimized. Any possibility for the use of a brainwashing defence would depend wholly on how the

evidence was introduced at trial, and would depend on a jury to make a normative conclusion.

Although there are certainly arguments that Homolka would fit each of the elements of the defence,

Cameron & Frazer, supra note 17 at 25. 322 there are absolute problems with the experts who would determine whether Homolka would fit the

criteria.

Stepping into the larger realm of interpersonal relationships, the case of the Manson Family is

also problematic for this defence. The problem lies substantially in the fact that the girls did not "snap

back" to their former beliefs after they were taken away from the ultimate control of Manson. The

girls continued to worship Manson, chant his songs in court, and some of the Family may still feel this

same pull decades later. Thus, some have said that there was no real conversion and there must have

been something wrong with these individuals before they came in contact with Manson. Some say that in all of these examples there is not a conversion but rather a triggering of anti-social behaviour.

This argument is most relevant in the example of the Family.

Malvo is in some ways is the best example of a case which could use the brainwashing defence.

The facts are relatively straightforward, and elements like the age and susceptibility of the young man are supportive of the criteria as set out (although age was not effectively used in the Dennis Ryan case.) Malvo was not ultimately sentenced to death which indicates that the jury saw something in this young man worthy of excuse. However, this case is very different than Hooker, Homolka or the

Manson Family in that there did not seem to be the violent abuse which is characteristic of the defence. Yet, this case demonstrates the power of psychological conversion which may or may not be coupled with severe physical abuse. For this reason, the proposed defence provides that there may be forcible indoctrination by the deliberate manipulation of guilt, which is more characteristic of this case study. All of the other elements of the proposed defence are fulfilled, including the suggestion that

Malvo did "snap back" to his previous personality after being removed from the influence of

Mohammed. The only element which may be in question was the proportionality of the crime in relation to the manipulation and/or threat made. However, for a scared child who risked losing the only father-figure in his life, his actions might have been proportional in his own mind, even when

323 murder was demanded. None of the case examples are perfect, but each does make the point that the consideration of a brainwashing defence is critical not only for these cases, but for those which are sure to come in the near future.

324 Part V - Mitigation and Concluding Remarks

Knowing that the science of brainwashing is under-developed and the creation of an affirmative defence does not fit perfectly within doctrine, many theorists have concluded that mitigation of sentence is the only appropriate place for a discussion of the brainwashed defendant. Similarly, when considering the defence of duress, many have argued that it should only be a matter for mitigation.

There is evidence that "relates to an ancient era preceding the middle ages when justifications absolved, while excuses were merely a matter for mitigation of punishment." 77 Lunde and Wilson come to the conclusion that the:

three principal mental defenses to criminal liability are not available to the process of compelled conversion or 'brainwashing,' and because the coercion and duress standards are as rigorous as they are, no conceptual basis exists for finding a defendant not guilty of acts committed while harboring non-traditional beliefs for a reason other than mental illness. The question thus becomes whether the circumstances of individual cases should be considered as factors in mitigation of the sentence imposed on the defendant. 5

They propose that a judge in the sentencing phase of a brainwashing case should consider three factors developed from a 1956 case on military prisoners of war. 7? First, they should consider the

"susceptibility of the defendant to compelled conversion."1777 They argue that there are some people who are more able to resist the control of others, and the Court should investigate through a

Williams, supra note 56. 1775 Lunde & Wilson, supra note 92 at 377. Lunde & Wilson propose, at 377, that "the defendant still be charged with guilt for crimes committed, but that several factors be considered for mitigation. Such a disposition would be consistent with the Korean War case law, and with the general purposes of the criminal system, and could be applied to the Hearst case and future cases with relative ease." 1776 This standard is modified from the test developed in "Prison Camp", supra note 320 at 786-87. However, the author of this note makes it clear that in this circumstance the "entire problem is colored by the fact that the actors involved are soldiers and not civilians. As a vast organization whose primary job it to fight wars to win, the Army can reasonably demand conduct which will not undermine morale, patriotism, and discipline nor reduce the high standards necessary for effective operation. Although it has been stated that the Army and the nation have a right to expect a soldier to give his life for his country, whether on the battlefield or in the prison camp, that sacrifice should only be asked when the evil it prevents so merits." 1777 Lunde & Wilson, supra note 92 at 377-78. 325 1778 psychiatric expert whether the defendant "resisted as much as he or she was capable of doing."

Secondly, they argue that one must then look to the "severity of the offense and the amount of coercion involved."1779 They advocate for a sliding scale of coercion to crime to measure whether the defendant acted appropriately. This comes from the 1956 article on the military where it was argued the amount of pressure a "prisoner should be expected to endure should be in direct proportion to the degree to which the act he is asked to perform is detrimental."1780 For example, if giving information on another prisoner is going to cause their death, the "informant himself should suffer death," while a prisoner should "not be asked to endure great privation rather than signing a peace petition or surrender leaflet."1781 The author notes that the "severity of the compulsion employed and the degree of mitigation should vary proportionately until there is complete exculpation in the case of extreme torture," and at least a "reduction in punishment" for the most extreme of crimes.1782

Lastly, they argue that it should be examined whether the accused had the "opportunity to avoid threatened harm or otherwise avoid performing the crime."17 They note that this is an "evidentiary control on the voluntariness of the defendant's conversion,"1784 and that, although this would relax the current standard of a duress defence, a "defendant seeking to win acquittal at trial would still have to meet the rigorous test."1785 Lunde and Wilson note that judges are "better equipped to engage in sliding scale type determinations of guilt or innocence, where juries are better left with precise instructions."1786

1778 Ibid, at 378 [emphasis in original]. I argue that it should be just the opposite. It is the role of the criminal law defences to protect the least capable, the most vulnerable members of our society. 1779 Lunde & Wilson, supra note 92 at 378 [emphasis in original]. i78o «prjson Camp", supra note 320 at 786. 1781 Ibid, at 787. The author goes on to "rank" crimes. 1782 Ibid, at 788-89. 1783 Lunde & Wilson, supra note 92 at 378. 1784 Ibid. m5Ibid. 1786 Lunde & Wilson, supra note 92 at 378 n. 128. 326 Even a modest proposal for mitigation is rejected by some, and Nolan is critical of the formulation of Lunde and Wilson. He notes that this process would be "administratively unworkable.

Implementing it systematically would require either significant legislative reform, or large numbers of

1787 judges willing to completely yet uniformly disregard precedent -neither of which seems likely."

Nolan notes that the "current understanding of the 'brainwashing' phenomenon within the psychological community simply does not unequivocally support the moral intuition underlying the proposal, namely, that so-called 'brainwashed' defendants are not as responsible for their crimes as

'non-brainwashed' defendants."1788 He goes on to argue that there is "no workable way to distinguish between those defendants who have been subjected to mere nefarious influences and those who have been subjected to 'coercion.'"1789

However, it is necessary to examine defences like duress and brainwashing at sentencing because

"courts have very wide discretionary powers in dealing with offenders, including the power to grant an absolute discharge where appropriate. In addition, there are various administrative procedures which may be employed ... the discretion not to prosecute, the exercise of the royal prerogative of pardon, the powers of review of the Parole Board. 790 Just as in duress, if a brainwashing defence was fundamentally relevant to mitigation "it would allow the Court to pass one of a wide variety of sentences to match the diversity of cases that shelter under the umbrella."1791 There could be benefits to the accused under this scheme as:

1 Nolan, supra note 320 at 458. 1788 Ibid, at 458-59 [emphasis in original]. 1789 Ibid, at 459. Nolan notes, at 459, that Lunde & Wilson argue that "Patty Hearst was somehow less blameworthy for her crimes than the average bank robber. It would, however, be something of an understatement to say that the residents of the District [sic] Columbia, and the families and friends of the sniper victims, do not have a similar degree of moral sympathy for Lee Boyd Malvo." 1790 Ian H. Dennis, "Duress Murder and Criminal Responsibility" (1980) 96 Law Q. Rev. 208 at 236 [Dennis]. Note that the "royal prerogative" is purely a British construct in the case of murder. 1791 Martin Wasik, "Duress and Criminal Responsibility" [1977] Crim. L. Rev. 453 at 457 [Wasik, "Duress"]. 327 this would mean that the court could pay greater attention to the individual circumstances of the offender. This does not mean that the court would be necessarily more sympathetic to the offender, but an absolute discharge would be available where it was felt that the accused was morally blameless for what had happened. One can envisage cases where a lesser prison sentence than would otherwise have been imposed, a suspended sentence, or even a probation order would be the most appropriate sentence open to the court . . . [W]here the defence fails, the court has the normal sentencing discretion and can give effect to shades of culpability and • • • 1792 complicity.

Using brainwashing evidence in sentencing would also placate those who criticize the exculpatory power of the defence as it would punish those offenders most deserving of reprimand. Individual characteristics could again be considered in the particular case.

Delgado also examines brainwashing from the perspective of punishment. It does not follow that sentencing aims to punish those who, "once removed from the coercive environment, soon lose their inculcated responses and return to their former modes of thinking and acting. This return often is accompanied by expressions of anger, in which the former captive accuses his captors of the 'rape' of his mind and personality."1793 This is also seen in those battered women who are able to gain perspective on what they have done after they are removed from the situation. Delgado rightly concludes that "[p]unishment of such individuals does little to promote the rationales of the criminal justice system."1794 The author notes that protection of society is not an aim, as "after the programmed-in responses wash away, the victim is no more likely to commit violent crime than the average person."1795 In fact, Delgado argues that if the "informed public views the 'brainwashing' victim as morally blameless, there is no purpose in punishing such victims to enforce respect of, or fear of, the law. Punishment in such cases could, in fact, weaken the utilitarian basis of deterrence.1796

1792 Ibid. 1793 Delgado, "Ascription", supra note 52 at 8-9. 1794 Ibid, at 9. Perhaps there is an argument that women who are "susceptible" to the kind of persuasion found in this abusive relationship might be prone to entering into other situations with similarly controlling and abusive partners. I do not know how much credence this argument would be given. 1795 Delgado, "Ascription", supra note 52 at 9 n. 40. 1796 Ibid. 328 Lunde and Wilson note that the concern for "general deterrence is satisfied by the rigorous

standards for acquittal; a conviction would be the likely outcome of most cases like the Hearst or

prisoner of war cases, ensuring that society still expects victims of compelled conversion to resist and

holds them accountable if they do not."1797 In contrast to Delgado, Lunde and Wilson believe that a

conviction is needed in order to satisfy deterrence. They go on to explain in terms of mitigation that

where there is a "predictable pattern, one can expect individuals to be deterred from illegal conduct

according to their own evaluation of the risk of and severity of sentence for their acts. If no

predictable pattern emerges, deterrence remains, because the threat of conviction for one's

transgressions remains."1798 Others have noted that the deterrent effect will be lost if mitigation is

permitted; however, it is aptly noted that "surely if the prime object of the law were to deter, it would

treat duress as an aggravating circumstance." 7 Even though conviction may be necessary for

deterrence and utility, this does not address the criminal law's need for retributive justice. Putting

aside the need for maximizing utility, there are few principled reasons to convict or punish the

brainwashed defendant. However, regarding punishment an:

important ingredient in such moral condemnation is a belief that the offender had the possibility of controlling his conduct - the ability to understand the rules, to deliberate without undue impairment of his capacities, and to reach decisions concerning his choice of conduct . . . [I]f one accepts the view that the coercively persuaded victim lacks these capacities, the moral basis for retributive punishment vanishes. Unlike alcoholism or drug addiction, there is not even an original moral fault, since the entire process is induced by another with no initiative on the part of the victim.1800

Brainwashing, like duress, is difficult for theorists to conceptualize fully. Could it be that

brainwashing naturally flows through different categories all the way from an excusing condition, to a

partial defence, to perhaps even a mitigating excuse? It appears very rational that "at a given stage in

Lunde & Wilson, supra note 92 at 381. 1798 Ibid. 1799 Andre Gombay, "Postscript, June 1985" [1985] Dialogue: Canadian Philosophical Reports 612 at 586 [Gombay, "Duress"]. 1800 Delgado, "Ascription", supra note 52 at 10 n. 40. This is denying the claim of some that the battered woman "chooses" her abuser. 329 the history of criminal law, policy claims against admitting a particular excuse as an excusing

condition will be seen as more or less compelling."1801 So the question remains as to whether the

brainwashed accused is so lacking in blameworthiness that it is an incomplete response to relegate the

brainwashing evidence to a mere sentencing factor. As some have argued:

criminal law excuses are so morally and legally significant that they must be considered prior to the verdict. These are the excuses towards the higher end of the 'scale of excuse' where maximum exculpatory power outweighs considerations of policy and expedience for not admitting the excuse as an excusing condition. To transfer these issues to the sentencing stage, as some would have us do, would sacrifice individual culpability to social policy.1802

This is the same argument given in Wilson's dissent in Perka, where she noted that where "a defence

by way of excuse is premised on compassion for the accused or on a perceived failure to achieve a

desired instrumental end of punishment, the judicial response must be to fashion an appropriate

sentence but to reject the defence as such." Perhaps this is the more practical avenue for

brainwashing.

Some believe that brainwashing is a convenient excuse causing one to shift blameworthiness and

avoid personal reflection.1804 Brainwashing certainly was not taken casually in the 1950's; rather, it was a phenomenon that promised the loss of free will and outraged normal citizens.1805 However, it is also true that since the 1950's when the general public became aware, there was still the stigma of the dark side of popular culture, and the thought that it was just a "last resort" explanation.1806

1801 Martin Wasik, "Partial Excuses in the Criminal Law" [1982] Mod. L. Rev. 516 at 525 [Wasik, "Partial"]. 1802 Ibid, at 532. 1803 Perka, supra note 571 at para. 105. 1804 Taylor, supra note 46 at 6. 1805 Ibid. Taylor notes, at 6, that brainwashing "was a terror - a fear of losing control, free will, even identity. Reviled as another lethal aspect of the Red Menace, it was quickly taken up to fuel the first of popular outrage." 1806 Taylor, supra note 46 at 25 who says that "when it was first enunciated, the concept of brainwashing has spent much of its life in the seedy undergrowth of popular culture. Lurking in movies and thrillers, increasingly despised by academia, it has surfaced into public awareness typically as a response to certain extreme traumas, a last resort for commentators trying to explain the apparently inexplicable." 330 Brainwashing was a product of the cold war: If American Servicemen and Catholic leaders were willing to espouse communist doctrine, then everyone was at risk.

Today brainwashing is still seen as a disguise for the elements we cannot explain in ourselves.

Similarly, some have said that brainwashing simply covers our lack of understanding about the human condition, and an easy answer when we do not want to examine things any further. Sceptics have long held that it satisfies our ignorance in explaining the actions of Patty Hearst, or why several beautiful young women would follow Charles Manson. Many have noted that we have no other explanation for the inexplicable.1 But, Scheflin and Opton assert that more than propaganda, it is also a "strangely attractive idea. At the same time that it frightens, it paradoxically reassures. . . . The reason the term reassures is that it sounds like an explanation, so it excuses both speaker and audience from the need to contemplate alternative explanations that might be even more disquieting . . . We do not want to confront Pogo's famous insight, 'We have met the enemy, and he is us.' How much more comforting to think, "We have met the enemy, and he . . . has been brainwashed by Communists.1811

Shifting responsibility is something that the law is able to do in situations where it is warranted.

Unfortunately, the sensationalistic instead of the scientific has been at the forefront, and the use has sometimes been seen as limiting thought, and yet it has remained a worthwhile pursuit even though it is not fully understood. There is an inherent need to accept that this is a real phenomenon because many are loath to accept that we are ever out of control, because we do not want to admit that we can be controlled by another to perform actions we have not willed1813 The question of whether

1807 Streatfeild, supra note 82 at 338. 1808 Taylor, supra note 46 at 7. 1809 Ibid, at 8 who notes that "brainwashing has a guise as a concept of last resort, a screen pulled across to hide the abyss of our ignorance. We invoke it when we have no other explanation, or are not motivated to look for one." moIbid. 1811 Scheflin & Opton, supra note 7 at 23-24 [emphasis in original]. 1812 Scheflin & Opton, supra note 7 at 24. 1813 Winn, supra note 59 at 177. 331 brainwashing was simply a marketing technique that could be delivered to every home in North

America, or something very real, has been answered. It is true today more than ever that "dedicated cults, and fanatical terrorists, continue to plague us, and thinking of them in stereotypical terms only makes the problem worse. They cannot simply be dismissed as alien, because the damage they can do, as 9/11 showed, is out of all proportion to their size. For the same reason, we need to understand that brainwashing is neither a joke nor a mystery. Previously law-abiding people can indeed be persuaded to chase the dream of mind control, even into the abyss of suicide and murder.1814 This is the concern of those who believe that a floodgate will be opened by considering a brainwashing defence. From a policy standpoint, many would rather not have a defence for terrorists who could use a defence which is, in theory, easy to assert and difficult to disprove. But, if this is true, we should not have the defence of duress, mental disorder, automatism, intoxication, diminished responsibility and necessity. Time and again it has been shown that these defences are rarely used, and even more infrequently successful. The same protections could be afforded brainwashing.1815

Some have suggested that brainwashing has been conceptualized with NCRMD to make the defence fit within the established defences.1 ! It is somehow more acceptable to say that the brainwashed individual is mentally deficient and that this act is aberrant. As with BWS, the defendant is acting under an altered perception caused by psychological abuse.1817 Thus, the reasonable person test may be irrelevant and each case must be examined separately because of the lack of scientific knowledge.1818 Although, as described, brainwashing does not fit within the established defence, theorists recognize that "[brainwashing is poised to take its place within the legal justice system as a doctrinally acceptable defense. Its predecessors - duress and BWS - have paved the way . . . [I]t is

1814 Taylor, supra note 46 at 268. 1815 In fact, Nolan, supra note 320 at 464, notes that "[i]n light of its past, the future of the indoctrination defense is anything but certain. However, the stage does appear to be set for another revival." 1816 Warburton, supra note 58 at 96-97. 1817 Ibid, at 97. 1818 Ibid. 332 clear from precedent that brainwashing is unsuccessful when asserted as a complete defense. If nothing else, brainwashing is clearly a mitigating factor. By tracing the life of the defendant, the defense will be better able to explain why and how the free will of the specific defendant was overborne."

It is also clear that a fear of medicalization that has stifled serious research into the phenomenon because of concern that brainwashed individuals will be seen as sick, and in need of protecting themselves from themselves.1820 Much like with BWS, there is fear that the brainwashed actor will be seen as someone who is broken, rather someone who is acting in a rational way in an irrational circumstance. This fear of allowing a concept that acknowledges that the actor is out of control, and a fear of pathologizing those who are susceptible in some way, has lead the legal process to deny the existence of such a phenomenon. It has been observed that while there might be some benefit in recognizing brainwashing, there are objections on many grounds including that it is simply a

Communist scare technique as, perhaps, it was designed to be.

There has been a great deal of wholesale discounting of the term "brainwashing," as some note that the term should not be used by serious scientists.1822 The term has proven even more difficult to accept from a legal perspective. It has been noted that it requires a "long, airy lead of logic to believe

1819 Warburton, supra note 58 at 97. 1820 Robbins, Anthony & McCarthy, supra note 142 at 325 who note that "dubious notions of brainwashing and mind control express moral disapproval of the way in which someone has been influenced by someone else. The terms lend a spurious scientific rationale to such disapprobation. The brainwashing metaphor evokes the medical model of deviant behavior as symptomatic of pathology. The brainwashee's thought processes are viewed as involuntary symptoms; i.e., he can no more control his thoughts than someone with measles can control his skin rash. He must therefore be restrained and controlled for his own good so that he may be cured." 1821 Streatfeild, supra note 82 at 340 who notes that brainwashing "distracts us from the true causes of destructive or uncharacteristic behaviour, leaving us unable to eliminate them, and susceptible to further similar behaviour. The second is that brainwashing itself, while reassuring us that we are normal and others abnormal, can become a scare story in its own right. At various points in the phenomenon's history, brainwash-phobia has reached near-epidemic proportions: it makes our enemies seem even more cunning and sinister than they really are. If they're clever and evil enough to do this, well, what aren 't they clever and evil enough to do . . ? Brainwash paranoia is horribly contagious" [emphasis in original]. 1822 Jowett, supra note 88 at 202. that a subject released from physical restraint will continue to obey the commands of her captors for

protracted periods of time."1823 But, extreme forms of brainwashing are quite real, especially as seen

in the analysis of coercion in intimate partnerships. Even though the dynamic of a dysfunctional

intimate partnership lays a foundation for a brainwashing defence, it is not easy to say which women

"deserve" this defence because it is difficult to say who is "only a victim," or "only a perpetrator."

Schneider notes that women, in particular, are only seen as a pure victim or a pure agent "when in fact

they are profoundly interrelated. Neither victimization nor agency should be glorified, understood as

static, viewed in isolation or perceived as an individual or personal issue, for gender subordination

must be understood as a systemic and collective problem - one in which women experience both

oppression and resistance."1824 As Kilty and Frigon note, overemphasizing women as victims leads to

the risk of taking away their moral agency to make their own decisions.1825 However, there is a real

difficulty in determining the role of agency in the battered woman. Stark notes that it is possible to

ignore the "interplay of agency, coercive control, victimization, and resistance in the lives of battered women."1826 He explains that abused women are victims but cannot only be understood through their victimization, and many of these individuals minimize the oppression that they are experiencing in order to retain what control they have of the situation. 7 This model of coercive control is in opposition to the model of victimization which says that one should fight vigorously against any

1 828 oppression. Instead, it should be understood that many abused women can live with the belief that they are making their own choices. Stark explains that this survival strategy may appear as

1823 Dahlia Lithwick, "The Brainwashed Defense: Will Walker's, Moussaoui's, and Reid's Lawyers Breathe New Life into an Old Tactic" Slate (28 January 2002), online: Slate.com [Lithwick, "Moussaoui"]. 1824 Schneider, supra note 271 at 396 [emphasis in original]. 1825 Kilty & Frigon, supra note 1277 at 42. 1826 Stark, Coercive, supra note 269 at 215. 1827 Ibid, [emphasis in original]. 1828 Ibid. 334 compliance to their abuser as "agency and victimization live one within the other in abuse and the

presence of one is evoked by the other, some time long after the literal battering has ended."

Coughlin argues that agency is absolutely needed in the case of the battered women because our

system cannot deny that a woman governance of her life that is enjoyed by men.1830 Coughlin argues

that the denying women an opportunity for responsible conduct is a disservice to women." She

concludes that, practically, a criminal sentence is not the goal for these women but that it is important

to "leave intact the competing life stories that the theory constructs and makes available for excused

actors and responsible human beings to experience."1832 Determining the line between a battered woman's inability to break free of coercive control and where her agency as a full responsible human agent will continue to occupy theorists far into the future.1833

There is little doubt that the victim of brainwashing is deserving of compassion. However, despite the laudable object of showing compassion, it is clear that acting upon a vague concept like compassion will lead to inconsistent decisions. Fletcher noted the difficulties of leaving compassion to the Courts. He notes that there are far too many variables when left to human emotion noting that whether the "conduct is blameworthy can hardly depend on whether the judge feels like blaming the defendant. The judge's proper response is not to ask whether she feels like blaming the defendant, but whether the defendant deserves blame.1834

Fletcher argues that it is only in these circumstances that society will see the need for individualized standards of excuses. This also applies to the proposed defence of brainwashing.

1829 Ibid, at 216. 1830 Coughlin, supra note 517 at 6. 1831 Ibid, at 23-25. 1832 Coughlin, supra note 517 at 25. 1833 Ibid. 1834 George P. Fletcher, "The Right and the Reasonable," (1985) 98 Harvard Law Review 949 at 970 [Fletcher, "The Right"]. Fletcher notes at 970 that the right to be excused applies only against the court as it would be difficult to decide that, at the time of the act, the shipwrecked individuals in Dudley & Stevens, supra note 601, had a right to kill and eat the boy, and that the boy had a duty to submit to his killing. 335 Despite the subjectivity and inconsistency of a compassion based defence, there still remains the sense

that mitigation in sentence alone does not give full expression to the sentiment, as Fletcher states that,

"if there is a system of discretion built within criminal justice ... we should choose a public system of

excuses instead of a semi-secret system of administrative grace."

I suggest that it is always imperative to seek justice for those who might not fit squarely

within a paradigm and not simply look at an offender as victim or "monster."1836 There is no doubt

that our courts will have to address the issues surrounding brainwashing given the radical proliferation

of cases of fanaticism and terrorism, both within and beyond our borders, that will demand excuse.

We also have certain societal judgements about those who "allow" themselves to be brainwashed. It

has been noted that there are judgements that we make about individuals who are able to withstand

brainwashing, and those who do not. 8 A lack of understanding and empathy for this difficult

concept allows many to withhold praise for those who have succumbed to the feeling that we could

have done a better job. Some say that this has "nothing to do with judging him as deserving blame

- if he should feel anything, it is not guilt but shame - and it is entirely compatible with the belief that

he had actually no choice but to do what he did . . . It is just because we recognise that we cannot

expect better from him that we hold him in a certain contempt."1840 Not being able to expect better

from others leads us to face what our own actions would be when confronted with an impossible

choice. Expecting identical firmness of character from each individual is simply unrealistic. The

1835 Fletcher, "Individualization", supra note 575 at 1309. 1836 O'Sullivan, supra note 23 at 318. 1837 Merton & Kinscherff, supra note 43 at 8. 1838 Harry G. Frankfurt, "Coercion and Moral Responsibility" in Ted Honderich, ed., Essays on Freedom of Action (London: Routledge & Kegan Paul, 1973) 26 at 79 [Frankfurt]. m9Ibid. moIbid. 336 frame of mind of one who has been ritualistically tortured into submission may not be a mind that we wholly comprehend, and yet we must strive to understand and excuse it.

Researchers including Robert Jay Lifton, Martin T. Orne, Louis J. West, Edgar Schein, Margaret

Singer, and even Ivan Pavlov, William Sargant and Kathleen Taylor have spent their careers showing that there are techniques that can be used to infiltrate the brain in order to compel people forcibly to adhere to alien beliefs.1842 These methods were applied to POW's like Colonel Frank H. Schwable, just as they appear to have been used on a variety of individual civilians, various cult members, and they will presumably continue to be used. Within these contexts various groups and individuals are continuing to practice all of the methods of manipulation and control.1843 A recent example is that of

"John Walker Lindh, the American who fought with the Taliban .. .'If he got involved in the Taliban,' his mother said, 'he must have been brainwashed.' The same excuse was offered for Richard Reid, the notorious 'shoe bomber.' The mother of Zacarias Moussaoui, accused of helping to organize the

9/11 attacks, put it more bluntly: 'He was clearly brainwashed.'1844 There may be a time when individuals may say they were influenced by someone like Osama Bin Laden. The hard question that will have to be addressed is if it out system wishes to accept such a defence.1845

Is it an inevitable result that anyone who is the subject of radical extremism is understood to be brainwashed? What is happening today is strikingly familiar to what is happened in the Cold War.

Scheflin and Opton have noted that during the Cold War North Americans gave up some of their rights to freedom of speech and privacy which was designed to seek out those with other political

1841 McGillivray, supra note 16 at 274. 1 Streatfeild, supra note 82 at 347. m3Ibid 1844 Hitt, Jack. "The Return of the Brainwashing Defense" (2002) New York Times (December 15, 2002) online: CESNUR Center for Studies on New Religions [Hitt]. 1845 Lithwick, "Brainwashed", supra note 429, who says that this defence may come down to "Your Honor, Osama made them do it." 337 beliefs.1846 However, the question is just as pertinent today as it was 40 years ago: does everyone have a breaking point? Streatfeild answers that question in reference to a 1969 CIA document advising U.S. military how to withstand brainwashing and torture by focusing on one's faith,1847

Streatfeild cites CIA officer George Stanton as saying that those with faith are "able to resist much more effectively than those with a weak faith or none."1848 The point made is that those adherents to the tenets of the Taliban, Heaven's Gate, SLA, etc. may have just as much faith as the stereotypical

U.S. military operative.1849 Extremism of every type is on the rise in North America, and this study is much more than of academic interest. Yet, it is absolutely true that we need answers about "human susceptibility to evil influence and the human ability to resist persuasion, however coercive."1850

As we struggle scientifically to offer some explanation, the legal system will have to deal with the human casualties who revert to their former ideologies and who will not wait for scientific study.

What is clear is that "[wjhatever the juridical rubric - insanity, duress, or coercive persuasion per se - through which the facts of each such case are presented, jurors will be called upon to honor the proposition advance by Hugo Bedau that 'the moral quality of an act inheres not solely in the act but also in the actor's frame of mind."1851 Although the context of that mind is illusive, the devastating impacts are not, nor are they limited to a relic of the past. Brainwashing is a real phenomenon in need of real answers.

1846 Scheflin & Opton, supra note 7 at 229. 1847 Streatfeild, supra note 82 at 377. 1848 Ibid. m9Ibid. 1850 Nolan, supra note 320 at 465. 1851 Merton & Kinscherff, supra note 43 at 8. 338 Bibliography

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361