International Journal of Cultic Studies, Vol. 6, 2015, 69-82
Supporting Human Rights by Testifying Against Human Wrongs
Paul Martin Lecture of ICSA's 2014 Annual Conference in Washington, DC
Alan W. Scheflin
Santa Clara University School of Law
No one owns his own personality. Your ego, or individuality, was forced on you by your genetic constitution and by the society into which you were born. You had no say about what kind of personality you acquired, and there's no reason to believe you should have the right to refuse to acquire a new personality if your old one is antisocial. The Constitution does not guarantee you the right to maintain inviolable the personality it forced upon you in the first place
—James V. McConnell (1970, p. 74)
Dr. Paul Martin was a mental-health clinician, a teacher, a trainer, and a testifier. It is this last role, as an expert who appeared in courts to testify about coercive mind manipulation, that serves as the subject of my paper. Inside the courtroom, and outside it as well, Paul fought diligently for every person’s right to have a free mind in a free society. No battle is more important. And no warrior fought harder than Paul.
Paul would have been appalled by the above-quoted comment from psychologist James V. McConnell. I am too. Even McConnell was forced to backtrack after adverse reaction to his remarks overwhelmed him.
Freedom of thought was especially precious to the Founding Fathers. They knew that, without it, all other freedoms are relatively meaningless. And because of its suppression in England, especially in regard to religious and political thought, America came into existence. Thomas Jefferson, on September 23, 1800, wrote a letter to Dr. Benjamin Rush, whose face now appears on the seal of the American Psychiatric Association. The human mind was a subject of great interest to both gentlemen, the politician and the psychiatrist. Jefferson wrote, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”
Jefferson’s pledge found support a century and a half later when the General Assembly of the United Nations passed The Universal Declaration of Human Rights (December 10, 1948). Article 18 of that document, intended to be a covenant binding all governments and all people of our planet, states, “Everyone has the right to freedom of thought, conscience and religion….” These freedoms are the birthright of being a person.
Jefferson and the United Nations had in mind the suppression and punishment of political and religious speech—the ability of government to eliminate the individual freedom to choose what a person believed or worshiped. Their concern was the censoring of external expressions of conscience. Although people could neither publicly express nor practice their beliefs, they were still free to harbor secret thoughts, opinions, and beliefs.
Today we confront a more frightening prospect: that people could have their minds internally invaded and controlled, so that they cannot formulate and cherish their own personal, private opinions. This new threat, more insidious than anything that has preceded it, is my topic.
Social influence is the sea in which human communication and interaction swims. We may all, individually, be atoms, but we strive to connect with others to become molecules. Influence is the bond that accomplishes that process.
While influence is inevitable, it is not always lawful. There are moral and legal limits to the manner in which one person may treat another. Nowhere is this point clearer than in the social interaction called brainwashing.
Edward Hunter coined the term brainwashing in the late 1940s as part of his job as a government public-relations specialist seeking to discredit the communist ideology. The genesis of the term was not scientific; it was political. Hunter’s creation of the term brainwashing, intended to call attention to disturbing social occurrences in the Soviet Union, Korea, and China, was hugely successful for propaganda purposes. The word shocked and frightened people, and it created support for American opposition to communism.
Because brainwashing was a political term, many professionals saw it simply as rhetoric, not science. They ignored the underlying facts that made brainwashing an effective image for real events. For example, Dr. Thomas Szasz, an outspoken psychiatrist who often wrote cogently against the inherited wisdom of his profession, once colorfully said that one can no more “wash” another’s brain “than he can make him bleed with a cutting remark” (Szasz, 1976, p. 11). Szasz, however, failed to see that sometimes there is fire behind the smoke.
Other professionals were more savvy. They saw the real threat of extreme mind manipulation. On April 10, 1953, CIA Director Allen Dulles delivered a speech to Princeton alumni at Hot Springs, Virginia. He said that the United States and the Soviet Union were in a “battle for men’s minds,” and that the Soviets possessed the power to
A few days later, Dulles authorized the CIA to begin the most massive covert scientific program on mind and behavior control ever conducted (Scheflin & Opton, Jr., 1979).
When brainwashing as a technique of intense indoctrination and mental hijacking passed from government to private cultic organizations, the need for expert testimony to protect innocent victims became crucial. To understand and explain government extreme-influence efforts, these experts, of course, used the scientific literature that had developed. So the experts talked about brainwashing, thought reform, and mind control. But these experts faced problems in their efforts to bring brainwashing explanations into the courtroom.
Objections to Brainwashing As a Defense
When I became President of ICSA in 2003, one of my first concerns was that we shift the dialogue away from the use of terms such as brainwashing or mind control or thought reform. It’s not that I opposed these colorfully descriptive words and the accurately disturbing images they correctly conjure up in one’s mind; it’s that I found them to be ineffective when used in courts of law. Brainwashing is not a juridical concept. There is no civil wrong (tort) of brainwashing, no crime of brainwashing, and brainwashing is not recognized in any jurisdiction as a defense to civil or criminal misconduct. According to Lunde and Wilson (1977), “No reported case in Anglo-American law has accepted brainwashing as a defense to criminal liability” (pp. 354–355).
I also had another concern in mind at that time. Brainwashing, mind control, thought reform, and similar labels, while initially used to describe real events involving real victims and real manipulators in places such as Hungary, the Soviet Union, Korea, and China, had long since stopped being publicly recognizable historical references. Most people today know little or nothing about the social events in those countries that gave rise to the fears that the mind was more malleable than we ever imagined. The 1950s were a long time ago. Brainwashing and similar terms had passed into the realm of rhetoric, science fiction, and Hollywood horror movies. Talk about brainwashing, and people were less likely to take you seriously. Even when used in reference to cultic groups, these words had acquired a derisive meaning that undercut any serious discussion of the important topic they raised—freedom of the mind from external malevolent manipulation. These terms had passed from fact into fiction. Indeed, they mostly dwelt in the realm of cultural insult—if you didn’t like someone’s opinion, you would say that person had been brainwashed. Most importantly, however, these terms had lost any scientific significance, which made expert testimony virtually impossible.
The Scientific Objection
In the landmark decision Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the United States Supreme Court provided a four-prong test, now referred to as the Daubert test, to determine the admissibility of expert testimony:
The Daubert test applies in all federal and most state courts.
Courts have been disinclined to give scientific credence to what they consider to be political concepts. In United States v. Fishman (1990), federal judge Jensen concluded that brainwashing/thought-reform theory did not meet the criteria of general acceptance in the relevant scientific community, and therefore could not be the basis for expert testimony. Other judges since have relied on his opinion to reach similar conclusions.
The Prejudice Objection
Expert testimony that might otherwise be admissible may be excluded if its probative (evidentiary) value is substantially outweighed by the danger of unfair prejudice. Prejudice occurs where the testimony is likely to cause the jurors to make their decision based upon their confusion, passion, or emotion, and not on the evidence presented. As an example, extremely gory pictures that accurately depict the crime scene might be excluded from consideration by the jurors because the photos will so inflame them that they will be distracted from engaging in a careful consideration of the evidence.
Even if judges were to accept the scientific validity of brainwashing by recognizing that it is merely a colorful label for extreme social processes that are studied in courses on social psychology, they are still reluctant to have these issues raised. As a federal appellate court recently noted, “Cult-brainwashing arguments rarely succeed” (Robidoux v. O’Brien, 2011). Judges often look at such arguments as at best a Hail-Mary pass or as an admission that no other recognized theory will help the client.
I should add that many courts are not troubled by the introduction of expert testimony about brainwashing, and the judges in those cases understand that the legal issue involved is not about the concept of brainwashing per se, but rather is about whether tactics of extreme social influence have overridden the plaintiff’s autonomy of mind. In other words, these judges see past the label, unlike other judges who are more often interested in simplifying the cases over which they will preside (United States v. Fishman, 1990).
Nevertheless, the legitimacy of an expert’s testimony on extreme-influence tactics should not depend on the whim of an individual judge. It makes no sense to say that Dr. X can testify in Florida, for example, but that he cannot give the exact same testimony in Illinois. Citizens in every American jurisdiction should be entitled to equal protection of the law and should be given an equal opportunity to present their cases in full scientific detail.
A Solution: Undue Influence As a Defense
Stepping back from these objections, can anyone seriously doubt that innocent people fall prey to clever hucksters who enslave or cloud their minds in order to command their behavior and acquire their obedience and assets? These victims need relief and, in my view, deserve it. But courts have not acknowledged any viable legal theory that would provide a remedy in these cases. I was troubled by this fact, as was Paul Martin. It became necessary to find the right way to do the right thing to protect human dignity.
It was at that point that I remembered Florence Roisman. Ms. Roisman was a lawyer in Washington, DC in the 1960s who represented tenants living in squalid apartment buildings owned by wealthy slumlords. In case after case, she successfully appealed to the hearts of the judges, but not to their minds. Their message to her was that she was presenting a case of property law, and it is clear that the owners of property have all the legal rights. Her clients had none. One day, however, everything changed. Florence entered the courtroom and said in essence that “I am not here arguing the law of property. I am arguing under the law of contracts. My clients have a right to habitable dwellings; otherwise, the rent contracts they signed are illusory.” The judges similarly answered, “Oh, you are arguing contract law. That is an entirely different thing.”
Notice that the facts of the squalor in which Ms. Roisman’s clients were living did not change— only the legal theory she argued for redress. Roisman won her case, and within a decade every state in the country required landlords to supply tenants with decent sanitary dwellings because every contract for housing carried with it a judicially created, implied warranty of habitability.
With this success story in mind, I began encouraging a shift away from brainwashing to the concept of undue influence or, in these cases, what we may call extreme influence. For more than 500 years, undue influence has been a legitimate legal concept utilized to provide a remedy for people who have become victims of con men and women. With this shift, the problem of judges not taking brainwashing claims seriously seemed solved.
Not surprisingly, however, the shift to an undue-influence legal theory has encountered a few wrinkles that still need to be ironed out. I will first identify these new challenges before suggesting innovative solutions.
The Unfamiliarity Problem
Paradoxically, although the legal system for several centuries has recognized the validity of undue-influence challenges, most judges have never seen the issue addressed in their courtrooms. According to Professor Madoff (1997),
Every year over $100 billion passes hands at death in the United States. In conjunction with lack of mental capacity, undue influence is the most frequent ground for invalidating a will…. And yet, despite its prominence, little scholarly work has been done examining the parameters and justification of the undue influence doctrine. (p. 572)
According to legal scholars, the creation of undue-influence law was a direct response to the growing concern that “the church was taking advantage of...the [deathbed] fears of the faithful for its own aggrandizement” (Sherman, 2008, p. 581). As noted in an ancient English case, “[T]here are no instances where men are so easily imposed upon as at the time of their dying, under pretense of charity....” (Attorney-General v. Bains, 1708, p. 272) Thus, the law of undue influence was developed as a means of protecting private wealth from overzealous and predatory religious clerics. As the centuries passed, undue-influence cases expanded beyond religion to include situations in which financial interactions raised the possibility that the transfer of assets at the time of death might not have been the product of a free and voluntary choice.
These testamentary will and financial cases involved assets, not ideas, and not identity. However, today we see the subtle and seductive techniques of influence and control deployed to change ideas, to implant beliefs, and to alter the identity of the person influenced, all to serve the best interests of a cunning and manipulative influencer.
When we move from the physical realm involving the exchange of money to the mental realm of the creation, alteration, and insertion of belief systems, and even identity, other problems give judges serious concerns. Naturally, these more modern cases are even less familiar to judges, and thereby create other obstacles for testifying experts.
The Clarity Problem
Two prominent legal scholars, Jesse Dukeminier and Stanley M. Johanson (1995), have correctly pointed out that “Undue influence is one of the most bothersome concepts in all of law. It cannot be precisely defined” (p. 160).
This definitional issue is neither unusual nor fatal. Many concepts in law, such as due process of law, can be understood only after considerable interpretation based on analysis of varying fact patterns brought before the courts. Indeed, the concept of reasonable doubt, which is an important part of every criminal trial, is no clearer, and many states forbid judges to even attempt to define it for juries because the definitions themselves are too confusing. As the Missouri Supreme Court said in State v. Robinson (1893), “It is difficult to explain simple terms like ‘reasonable doubt’ so as to make them plainer.... Every attempt to explain them renders an explanation of the explanation necessary” (p. 1069).
The California Supreme Court (Rice v. Clark, 2002) has defined undue influence as “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency” (p. 528). This statement provides little guidance for when the undue-influence doctrine will be applied. But one fact gives us a clue.
If the influencer is determined and clever enough, and the techniques utilized are sophisticated and powerful enough, experts believe that few people will be able to resist becoming victims of undue influence (Quinn, 2010, p. 93). A California appellate court 80 years earlier, in a will-contest case, is in agreement (In re Olson’s Estate, 1912):
I take these independent comments to mean that everyone, almost, under certain circumstances, is potentially vulnerable; and that suggests to me that the undue-influence doctrine should not be limited to cases involving wills, nor to cases involving other financial misdeeds. In other words, the shift by influencers from targeting bank accounts to targeting ideas and identities makes the undue-influence doctrine of even more immediate concern to protect vulnerable victims.
The Sliding-Scale Problem
When undue influence escapes from the fiscal confines in which it was largely contained, a most serious issue arises: where to draw the line. There are no clear demarcations as one passes from guidance, to advice, to education, to suggestion, to seduction, to indoctrination, to thought reform. This progression puts the judge in the difficult position of deciding on the basis of opinion, not law or science, because the law is not capable of telling us in advance what is permissible and what is not, except at the extremes. As one court noted, “although kindness and attention alone would not constitute undue influence, they might, when combined with other factors, amount to such influence” (In re Rohde’s Estate, 1958, p. 495).
What is helpful for me, and I hope will be for you, is to focus not on the specific law, but rather on the policy behind the law. The law of undue influence, in my opinion, must find what I call the point of unacceptable interaction. This point occurs when you would say to yourself about someone’s conduct, “You just can’t treat people like that. And if you do, the law will step in and you will be punished.” This perspective does not specifically clarify anything, but for me it helps to state the task.
In all civil cases, the person who brings the lawsuit is saying that the status quo is wrong and the court should remedy it. That person has the burden of proving that the judge should step in and not just leave the parties in their current situation. No law could ever precisely, and in advance, define when the judge should act because each fact pattern is unique. But I like the idea that an informal test should be “You just can’t treat people like that,” and that the evidence and science must support that claim.
There are two analogies in law that help us understand this perspective. The law of contracts recognizes the concept of unconscionability. When two people meet to bargain and eventually sign a contract that memorializes their final agreement, the law will enforce this contract because it was a mutually agreed-upon exchange. The fact that one party gets the better deal is not a sufficient reason to decide that the contract should not be enforced. But what if the agreement is grossly unfair, as was the case in the situations Florence Roisman argued for her tenant-clients? Unfairness generally is not judicially remedied. However, if the unfairness is a product of exploitation, to the point at which a person’s vulnerability has been so compromised that the choices made cannot be considered to have been voluntary, judges will declare the contract void.
The other analogy involves the law of torts. Courts have long recognized the tort of intentional infliction of emotional distress. In these cases, one person’s behavior toward another is so morally and socially outrageous that it “shocks the conscience” and demands judicial redress.
Unconscionability cases and intentional- infliction-of-emotional-distress cases have precisely the same sliding-scale problem as do the undue-influence cases. All of them are resolved with a “shock the conscience” test that basically says, “You cannot treat another person that way.” In my terms, all three types of cases involve the point of unacceptable interaction. It is generally the function of juries to decide when that point has been reached.
The Paradox Problem
One may argue that the only true way to protect freedom of thought is not to interfere with it at all. People make decisions; let them be bound by them. There is a very strong preference in the law for free will, individual autonomy, and holding people accountable for their choices. And this is a good thing; it protects the right to be oneself. For this reason, there is reluctance to expand the scope of justifications and excuses to override choices, no matter how unfortunate those choices might turn out for the person who made them.
This judicial hands-off policy clearly pits undue influence against freedom of choice. Thus we have a paradox: Courts are asked to protect your freedom of choice by denying or altering the choices you already made. Judges are very sensitive to not becoming an alter ego of disgruntled litigants. They assume that it is not the function of a court to substitute its own decision for that made by the litigant. The paradox is easily understood in the context of will cases.
Suppose an 80-year-old man becomes involved with a 27-year-old woman. After he does, it is discovered that in the few months the two people were together, the man changed his will and left his fortune to his young girlfriend, leaving nothing to his family. What should the court decide when the family challenges the will? When more than money is involved, when beliefs and identity are at issue, the paradox for courts becomes even more pronounced. Do you protect mental freedom by doing nothing, or by undoing the choices seemingly made by the influencee under circumstances in which impermissible influence might have occurred?
Many state courts used to have a test for answering these questions. The test was whether the influencee had been duped by an “artful and designing person.” I confess to being fond of that test, not because it is clear, but because, in its Dickensian language, it attracts our attention to the key ingredients of undue influence—a vulnerable victim outmatched by a self-interested and clever manipulator.
But whatever the test, the paradox remains. Do you protect freedom of mind by upholding the choices actually made, or by undoing the decisions on the grounds that they were the product of a sophisticated fraud?
The Constitutional Problem
Even if a judge would be inclined to step in and find undue influence, there is the problem of the First Amendment, which protects freedom of expression and freedom of religion. Fortunately, in most cases the problem does not arise because behaviors, not specific beliefs, are at issue.
In April of this year, the Nigerian Islamic extremist group Boko Haram kidnapped more than 200 teenage girls. A video was released showing approximately 150 of the girls attired in traditional Muslim dress reciting or chanting verses from the Koran. Boko Haram leader Abubakar Shekau claimed he had liberated the girls and that many of them had become Muslims after having been living as infidels.
Would anyone claim that to rescue these girls and undo the mental harm they have suffered, including the coerced involuntary indoctrination they endured, would violate freedom of religion? The basic policy in awarding damages in the law of torts is that when a harm has been done to someone (such as false imprisonment and battery), the individual is entitled to a remedy that would put her back in the position she was in before the harm occurred. So the forcibly abducted and coercively indoctrinated young girls should be entitled to be returned to their families and to the beliefs they held before being captured. However, this conclusion raises an intriguing “which side are you on” issue: If it is impermissible to use sophisticated and yet subtle tactics of indoctrination to induce a person to hold certain religious beliefs, is it permissible to deprogram that person out of those beliefs (Fautré, 2014)?
There is no time here to discuss or develop the intricacies of tort law or First Amendment law, other than to say that courts are wary of intruding in any case in which religion is a factor. However, two current developments merit mentioning because they may change the contours of how we think about religion and undue influence.
The first is the ongoing issue of what constitutes a religion. Scientology has qualified as a religion in some courts, but what about yoga (Fraser, 2014)? These cases are now pending. And what about Satanism (Harvard, 2014)? And what about atheism—one court has just held that atheism (“secular humanism”) qualifies as a religion (American Humanist Association v. United States, 2014)? How far will courts be willing to go to grant religious status to an increasing number of organizations and belief systems (Fautré, 2014; Hamilton, 2014; Irons, 2007)?
A second and related development is the very recent backlash against special treatment for religious organizations. Bill Moyers (2012), in a thoughtful video essay subtitled “How do we honor religious liberty without it becoming the liberty to impose moral beliefs on others?,” has raised the issue of whether there should be a corollary to the First Amendment freedom of religion. That corollary would be freedom from religion. Moyers summarized, “Our practical solution is ... protect freedom of religion ... and protect freedom from religion.”
This idea is getting a lot of attention (Mutch, 2014), especially in the aftermath of the United States Supreme Court’s 5-to-4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014). On one side is what has been called “the religious right.” Republican Governor of Louisiana Bobby Jindal (2014) has recently stated that
The other side adheres to the idea that protection of religion has gone too far and now religion enjoys freedoms that are being imposed on people with other or no such beliefs. Those who currently seek protection from religion draw support from another staunch Republican, who was also a governor (of Illinois), but one who lived 150 years ago. Robert Ingersoll (1878) said that
To Ingersoll’s concerns we may add those of Voltaire, writing a century before Ingersoll about religion and mind control: “Those who can make you believe absurdities, can make you commit atrocities.”
As a consequence of the Hobby Lobby Stores, Inc. case, the contours of First Amendment freedom of religion are in the process of being rewritten. In the balance lies the fate of many cases involving claims of undue influence. It is far too early to tell how the dust will settle, but it is already clear that Governor Jindal is partially right: There is indeed a form of war involving the appropriate role courts should play when religious issues are argued before judges.
Undue Influence in Court
In the early will-contest cases, courts formulated a test for deciding whether undue influence had been applied to the testator. In essence, the test articulates what a person must prove when claiming that undue influence has been applied. The test is simple but helpful because it paves the way for understanding why experts should be allowed to testify in undue-influence cases and what they must say.
The SODR Test
Because the concept of undue influence is not well defined, courts have struggled to find a suitable conceptual framework in which to evaluate the facts in each case. The most successful has been the SODR test, which has the following four elements:
There is no indication that the courts which have utilized the SODR test have applied it to the admissibility of expert testimony. Indeed, there is almost no information from these courts as to how the judges applied it, if at all, in reaching their decisions. But the test does have one aspect that is of value. It is an indication that some of the problems discussed earlier involving clarity and sliding scales can be overcome with a science-friendly structure for the presentation of expert evidence and for the determination of where the point of unacceptable interaction may occur in a given case.
Social Influence Model (SIM)
I have converted the SODR test into a Social Influence Model (SIM) for use by experts testifying in court. SIM is designed to accommodate several different goals. First, it is layperson-friendly. It succinctly conveys the relevant dimensions of an influence process, and it does so in an understandable manner. Second, it is expert-friendly. The SIM allows the presentation of the relevant science that supports mind manipulation. It provides a way to simplify complex studies and present them more easily. Third, it is judge-friendly. Judges who research or preside over undue-influence cases are bound to discover the SODR test. Because the SIM is similar to the SODR test, it will more likely be accepted as an appropriate vehicle for the presentation of factual and scientific evidence. Finally, the SIM lends itself to visual learning. Lawyers can make a chart of the SIM to aid jurors (and judges) in seeing how they may assess and understand the evidence. Thus, it serves as an effective persuasive tool.
Here is the SIM:
In developing the SIM, I was originally inspired by a portion of a poem in Rudyard Kipling’s Just So Stories (1902). The poem is “My Six Servants.” The portion quoted below (italics added) is taught to journalists as a guide to writing a complete and compelling story that will inform and also hold an audience’s attention. Here it is:
I would apply Kipling’s poem to the SIM in the following way:
Experts in undue influence, especially those who have been trained in the literature of brainwashing and thought control, are familiar with many different approaches to understanding these extremely manipulative processes—for example, Lifton’s eight criteria for thought reform (Lifton, 1989); Hassan’s BITE model (Hassan, 2012); and Singer and Lalich’s six conditions for thought control (Singer & Lalich, 1995). These approaches can easily be fit into the SIM for use in courtrooms.
No matter which of the approaches is utilized, the purpose is to determine whether the influence process has resulted in what Doctors Louis J. West and Paul R. Martin colorfully called “pseudo-identity disorder” (West & Martin, 1994), or what the law might call involuntary mental servitude.
Time permits only a brief illustration of how one may utilize the SIM to present expert scientific evidence in court. This section is intended to be illustrative, not exhaustive.
INFLUENCER’S MOTIVES (Purpose) [WHY]
INFLUENCER’S METHODS [WHAT/HOW]
INFLUENCEE’S RECEPTIVITY/VULNERABILITY [WHO]
Emerging Scientific Support for Brainwashing and Undue Influence
Events of the past decade and in process today raise the interesting prospect that courts and others may be more responsive to claims of brainwashing and undue influence in psychological, as opposed to financial, situations. For example, Kathleen Taylor’s Brainwashing: The Science of Thought Control (2004) invites neuroscientists to study the physiological implications of brainwashing and other forms of extreme social influence. Can brainwashing be described and understood from inside the brain by examining the physiological changes that occur when methods of extreme influence are employed to alter a person’s thoughts and beliefs? Taylor poses five psychological questions she believes deserve neuroscientific investigation:
Whether such studies will clarify or cloud our understanding of extreme-influence processes remains to be seen. What is important, however, is that brainwashing is a concept that is attracting the attention of a whole new group of scientific researchers.
Another book brings together substantial research on more benign aspects of suggestion and interaction. The Science of Social Influence (Pratkanis, 2007) and the appearance of the journal Influence make a good case for the fact that sufficient psychological research data exists to support claims that expert testimony on matters of influence, from the conversational to the coercive, can meet the legal standards of admissibility.
Put another way, psychology and sociology have now produced data-based and theory-tested explanations of how influence works, or does not work, depending on the variables that fit within the SIM. The days when brainwashing can be called mere rhetoric or an outmoded piece of political propaganda may be coming to an end.
Perhaps even more important is the expansion of interest in influence theory brought about by recent international events. Cult stories still arouse some interest in the media, but the headlines now involve terrorism and fundamentalism. The old question has returned: How can ordinary people be turned into religious/political zealots who engage in suicide bombings and violent acts of terror against innocent citizens? The research literature on this important topic has increased exponentially.
Many government officials are now more willing to hear from thought-reform experts as problems in their countries increase due to extensive and intensive indoctrination with fundamentalist ideas. In short, unlike in the past, when belonging to a cultic group might have been involuntary, but not externally dangerous, in today’s world there is much to fear unless we understand and thwart brainwashing.
Other headlines may bode well for the resurrection of interest in brainwashing and the understanding of the science behind it. Two examples immediately come to mind. First, after several decades of horrific child molestations by religious leaders, and the cover-ups that have shielded the full extent of the problem, we now can talk about the concept known as grooming (Weber, 2014). Grooming is not relegated just to child sexual abuse, nor to such abuse by priests. Studying the gradual process by which innocent youths are converted into victims enables researchers to shed light on aspects of the more comprehensive brainwashing process.
A second, though related, example is human trafficking, which has become an international problem and disgrace. Professor Kim (2011) has articulated many relevant connections between grooming, undue influence, and situational coercion. My point is that people who would have had little reason to talk with each other previously—the brainwashing specialists, the terrorism fighters, the child protectors—suddenly find they have much common ground.
Because the attacks on mental integrity persist and have become more widespread and dangerous, we unfortunately seem to have entered a new era of interest in thought reform and undue influence. The need for the work that we do as experts testifying in defense of human rights is greater than ever.
United States Supreme Court Justice Robert H. Jackson made a statement that is as true today as when he wrote it more than 60 years ago:
In 1983, I published an article entitled “Freedom of the Mind As an International Human Rights Issue.” I pointed out that while many international conventions protect freedom of the body from torture, precious few protect freedom of the mind from undue exploitation or manipulation. The First Amendment to the United States Constitution protects freedom of expression (“abridging the freedom of speech”). But such protection is meaningless—indeed, it is a cruel hoax—if a mind is not free to express its own thoughts. The right to parrot another person’s beliefs or to speak as his ventriloquist’s dummy may not offend freedom of expression, but it does offend freedom of mind, thought, and conscience.
Significantly, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) has one provision (Article 9) that protects “freedom of thought, conscience and religion,” and another provision (Article 10) that protects freedom of expression. Partsch (1981) pointed out that, under the European Convention, “the right to freedom of opinion is a private matter and is absolute with no infringements allowed, whereas freedom of expression, as a public matter of social importance, has some limits by its very nature” (p. 217).
Those experts who seek to protect mental autonomy by testifying in court about the science of undue influence are fulfilling the promises contained in the United Nations’ International Covenant on Civil and Political Rights (ICCPR) (1966; 1976). In particular, two very important provisions are pertinent to the admissibility of such testimony:
I agree with Lord Thomas Robert Dewar’s marvelous observation that “Minds are like parachutes: they only function when open.” Along with memory, a person’s identity is inextricably interwoven with a free mind and a free conscience. Both are needed to answer the fundamental existential question we must all ask: “Who Am I?”
This thought has been expressed magnificently by Oxford University professor Daniel N. Robinson (1980), in one of his writings on neuropsychology:
With Socrates, we witness the first example in the entire history of recorded thought of prolonged, patient, and reasoned argument as a method of arriving at “eternal” truths. The older Orient, the Egyptians, the civilizations of Minos and Mycenae all had highly developed systems of thought. They could boast of advanced technologies and agricultural sciences. But none had philosophy. Pharaoh told the masses the law but never examined the meaning of justice. Siddhartha Gautama, the Buddha, urged India to join in ascetic simplicity that it may know the good life. But what is the end? What is good? What is true? No argument is offered. And even if the teachings could somehow be established as facts, they are not reasoned facts. With Socrates the format changed. The opposition is given a voice and the arguments are forced to oblige an adversary. “I give you one philosophy after another,” Socrates says to Theatetus in the Phaedo, “in order that you may come to know your own mind.” Here is a statement of the objective: not the happy life, not immortality, not riches, not popular regard, not practical success, but to know one’s own mind. (p. 4)
The key to an open mind is doubt—the freedom to agree or disagree with any idea or belief, even one’s own, as one sees fit. Nearly seventy years ago, Bergen Evans (1946) wisely observed that “Freedom of speech and freedom of action are meaningless without freedom to think. And there is no freedom to think without doubt” (p. 275).
Paul Martin dedicated himself to preserving and protecting the most fundamental human right of them all—the right to be free to doubt; the right of every person to be the owner of his or her own mind and identity. For me, this right precedes the First Amendment and becomes a necessary precondition for its validity. It is the right to be yourself.
I would like to close with another quote from which I draw inspiration:
American Communications Association v. Douds, 339 U.S. 382, 438 (1950). (Justice Robert H. Jackson, concurring and dissenting opinion.)
American Humanist Association v. United States, 2014 WL 5500495 (D. Ore., 2014).
Attorney-General v. Bains, Prec. Ch. 270, 24 Eng. Rep. 131 (1708).
Brown, D., Scheflin, A. W., & Hammond, D. C. (1998). Memory, trauma treatment, and the law. New York, NY: W.W. Norton.
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L.Ed.2d 675 (2014).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993).
Dukeminier, J., & Johanson, S. M. (1995). Wills, trusts, and estates. New York, NY: Aspen Law and Business (p. 160).
Dulles, A. (1953, May 8). Brain warfare: Russia’s secret weapon. (Speech delivered to Princeton alumni April 10, 1953, Hot Springs, Virginia.) U.S. News & World Report, pp. 54, 56, 58.
European convention for the protection of human rights and fundamental freedoms. (1950). Available at http://human-rights-convention.org/
Evans, B. (1946). The natural history of nonsense. New York, NY: A. A. Knopf (p. 275).
Fautré, W. (2014). Cultic issues and religious freedom, 5(1), ICSA Today, 11–15.
Footlick, J. K., Howard, L., & Monroe, S. (1975, October 20). Bailey for the defense, Newsweek, p. 64.
Fraser, G. (2014, February 14). Religion’s conceptual shape-shifting is maybe its survival mechanism at work. The Guardian. Retrieved from http://www.theguardian.com/commentisfree/
Hamilton, M. A. (2014). God vs. the gavel: The perils of extreme religious liberty (Revised Second Edition). Cambridge, England: Cambridge University Press.
Harvard club drops much-criticized satanic event. (2014, May 13). CBS News. Retrieved from http://www.cbsnews.com/news/
Hassan, S. (2012). Freedom of mind: Helping loved ones leave controlling people, cults, and beliefs. Newton, MA: Freedom of Mind Press.
Ingersoll, R. G. (1878). Individuality. In R. G. Ingersoll, The gods and other lectures. Peoria, IL: C. P. Farrell. Also available online at http://hermiene.net/essays-trans/individuality.html
In re Olson’s Estate, 19 Cal. App. 379, 386, 126 P. 171 (3rd Dist. 1912).
In re Rohde’s Estate, 158 Cal.App.2d 19, 323 P.2d 490 (1st Dist. 1958).
International covenant on civil and political rights (ICCPR) (adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March 1976). Available online at http://www.ohchr.org/en/professionalinterest/
Irons, P. (Ed.). (2007). God on trial. New York, NY: Viking.
Jindal, B. (2014, May 10). Bobby Jindal: Government waging “silent war” on religious freedom. CBS News. Retrieved from http://www.cbsnews.com/news/bobby-jindal-government-waging-silent-war-on-religious-freedom/
Kim, K. (2011). The coercion of trafficked workers, Iowa Law Review, 96, 409–474.
Lifton, R. J. (1989, 1961). Thought reform and the psychology of totalism: A study of “brainwashing” in China. Chapel Hill, NC: University of North Carolina Press.
Lunde, D., & Wilson, T. (1977). Brainwashing defense to criminal liability: Patty Hearst revisited, Criminal Law Bulletin, 13, 341, 354–355.
Madoff, R. D. (1997). Unmasking undue influence, Minnesota Law Review, 81, 571–629.
McConnell, J. V. (1974, June). Letter to the editor, APA Monitor.
McConnell, J. V. (1970, April). Criminals can be brainwashed—now. Psychology Today, 3(11), 14, 16, 18, 74.
Meacham, J. (2007). American gospel: God, the Founding Fathers, and the making of a nation. New York, NY: Random House.
Moyers, B. (2012, February 16). Essay: Freedom of and from religion. Moyers & Company. Retrieved from http://billmoyers.com/content/bill-moyers-essay-freedom-of-and-from-religion/
Mutch, S. (2014, July). Religious cults, human rights and public policy: The secular perspective. Paper delivered at the International Cultic Studies Association Conference, Washington, DC.
Partsch, K. J. (1981). Freedom of conscience and expression, and political freedoms. In Louis Henkin (Ed.), The international bill of rights (p. 209).
Pratkanis, A. R. (Ed.). (2007). The science of social influence: Advances and future progress. New York, NY: Psychology Press (Taylor & Francis Group).
Quinn, M. J. (March 2010). Final report to the Borchard Foundation Center on Law and Aging. Undue influence: Definitions and applications. Available online at http://
Rice v. Clark, 28 Cal. 4th 89, 120 Cal.Rptr.2d 522 (2002).
Robidoux v. O’Brien, 643 F. 3d 334 (1st Cir. 2011).
Robinson, D. N. (1980). The enlightened machine: An analytical introduction to neuropsychology. New York, NY: Columbia University Press.
Scheflin, A. W. (1983).Freedom of the mind as an international human rights issue.” Human Rights Law Journal, 3, 1–64.
Scheflin, A. W., & Opton, E. M., Jr. (1979). The mind manipulators. New York, NY: Paddington Press.
Sherman, J. G. (2008). Can religious influence ever be “undue” influence? Brooklyn Law Review, 73(2), 579–644.
Singer, M. T., & Lalich, J. (1995). Cults in our midst: The hidden menace in our everyday lives. San Francisco, CA: Jossey-Bass.
State v. Robinson, 117 Mo. 649, 23 S.W. 1066 (1893).
Szasz, T. (1976, March 6). Some call it brainwashing. New Republic, 10, 10–12.
Taylor, K. (2004). Brainwashing: The science of thought control. Oxford, England: Oxford University Press.
United Nations General Assembly. (1948, December 10). The universal declaration of human rights. Available online at http://www.un.org/en/documents/udhr/
United States v. Fishman, 743 F.Supp (N.D. Ca. 1990).
Voltaire. (1765). Questions Sur Les Miracles.
Weber, G. M. (2014). Grooming children for sexual molestation. Available online at http://www.vachss.com/guest_dispatches/
West, L. J., & Martin, P. R. (1994). Pseudo-identity and the. treatment of personality change in victims of captivity and cult. In Stephen J. Lynn and Judith W. Rhue (Eds.), Dissociation: Clinical and theoretical perspectives. New York, NY: Guilford Press (pp. 268–288).
About the Author
Alan W. Scheflin, JD, LLM, is Professor of Law, Emeritus at Santa Clara University School of Law in California and past president and current member of ICSA’s Board of Directors. Among his several dozen publications is Memory, Trauma Treatment, and the Law (coauthored with Daniel Brown and D. Corydon Hammond), for which he received the 1999 Guttmacher Award from the American Psychiatric Association, one of 18 awards he has received. Professor Scheflin is also the 1991 recipient of the Guttmacher Award for Trance on Trial (with Jerrold Shapiro). A member of the Editorial Advisory Board of ICSA’s International Journal of Cultic Studies, Professor Scheflin received the 2001 American Psychological Association, Division 30 (Hypnosis), Distinguished Contribution to Professional Hypnosis Award. This is the highest award that Division 30 can bestow. He was also awarded in 2001 The American Board of Psychological Hypnosis Professional Recognition Award. This Award was created to honor his achievements in promoting the legal and ethical use of hypnosis. Professor Scheflin has delivered more than a hundred invited addresses at professional conferences. In 2004 the ICSA awarded Professor Scheflin the Herbert L. Rosedale Award in recognition of leadership in the effort to preserve and protect
International Journal of Cultic Studies ■ Vol. 6, 2015
 The original version of this paper was presented as the Paul Martin Lecture at the International Cultic Studies Association’s annual conference entitled Government, Human Rights, and the Cult Phenomenon in Washington, DC on July 3, 2014. I would like to thank Dr. Rod Dubrow-Marshall and Dr. Michael Langone for their assistance with this paper
 McConnell (1974) later wrote that he never meant to suggest that people’s behavior ought to be changed, only that it could be changed.
 Then known as The American Family Foundation.
 Interestingly, when attorney F. Lee Bailey agreed to represent heiress Patty Hearst after she had been kidnapped and indoctrinated by a militant organization that involved her in a bank robbery, he did not mention brainwashing as his defense; rather, he said it would be “induced insanity” (Footlick, Howard, & Monroe, 1975).
 Brown, Scheflin, and Hammond (1998) identify six different types of compliance with suggestions:
(a) Source Credibility
Training and Experience
Familiarity [agrees with your prior beliefs]
Perceived Status [Awards; Appointments]
(b) Post-Event Misinformation Effect
(c) Interrogatory Suggestibility
(d) Hypnotic Suggestibility
(e) Exposure to Systematic and Sustained Influences
(f) Brainwashing/Coercive Persuasion/Extreme Influence