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 395 Wellington Street 395, rue Wellington OttawaONK1A0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-54018-3 Our file Notre reference ISBN: 978-0-494-54018-3 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. 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While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 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.