Litigating Against Cults in Japan Practical Issues
ICSA Today, 13.1, 2022, 8-11
Litigating Against Cults in Japan: Practical Issues
By Takashi Yamaguchi, Esq.
At the International Cultic Studies Association conferences, Japanese lawyers, including my colleagues and I, have discussed a lot of cases in which we have prevailed. The road to get there was not easy, and we have suffered many losing cases that were painful experiences.
The judicial process requires ascertaining the facts and then applying the law, and I believe this concept is universal. Litigating1 a cult case means ascertaining the facts, or making sure that the court understands the specific indoctrination process of that particular group, the problems associated with the indoctrination, and the harm caused to the members as a result of the indoctrination. After litigation, applying the law provides a remedy according to the law of that particular jurisdiction, which may include possible civil remedies or criminal sentencing guidelines.
Any issue with the law should be left with the legal expert of the jurisdiction. We have learned a lot from US court cases such as Molko v. Holy Spirit Association and the decision by the California Supreme Court relative to the Unification of World Christianity (1988),2 and from doctrines of undue influence. We are also continuing to learn from the About-Picard law (2001)3 in France.
In this article, I deal with strategies for ascertaining the facts, and especially for effectively proving to the fact finder the existence of the indoctrination process. Factors that influence effective litigation against cults include the selection and support of your plaintiffs, including conducting effective interviews with the plaintiffs and other witnesses; the makeup of the courtroom audience; and having adequate funding for the process. What I say, of course, applies primarily to Japan, though the general principles I discuss should be relevant to other countries too.
Choose Your Plaintiff Carefully
The first step, especially when you are trying to bring a case against a particular group for the first time, is to choose your plaintiff carefully. This is the most important step in making a good case against cults.
Unless you have had some prior successes against the particular group, the plaintiff should be a “pure” victim, someone who will garner sympathy. Pure refers to someone who did not harm, recruit, or indoctrinate others. For example, former cult members who were successful recruiting other members or who had held senior positions would make great witnesses, but not necessarily good plaintiffs.
When Japanese lawyers began suing the Unification Church (UC) for spiritual sales (mind you, this was long before I became a lawyer), the attorneys started their cases with pure victims who were not even recruited into the UC; and then they went on to represent former members. They initially avoided former members who had performed important roles such as speakers, psychics, or soothsayers whose purpose was to intimidate the victims about the spiritual world and the wrath of their unsaved ancestors who were languishing in hell.
Another aspect to consider in choosing a good plaintiff is the nature of the damages that were inflicted on the plaintiff. Some offenses are short term, such as application of a huge amount of monetary exploitation in a short period of time, rape, intentional infliction of emotional distress, and so on. Such offenses are easier to prove and understand. However, long-term, accumulating harm is not as easy to prove. In the cases of the “Return Our Youths” [English translation of a Japanese phrase] lawsuits, the former members of the UC were recruited when they were young; therefore, they claimed that they had been illegally converted and made to engage in immoral and illegal activities, and furthermore, that the related process wasted precious time in their lives. It took a long time and many losses before the courts finally began to understand the issues involved in the UC recruitment and its activities. These cases could not have been won if the relatively simple cases about spiritual sales as a short-term offense had not successfully preceded them.
Support for the Plaintiff
Providing support for your plaintiff is also very important. Suing a cult means that the plaintiff will be under attack. At the very least, the plaintiff should expect emotional, psychological, and also physical attacks. The plaintiff will often be called a liar and traitor by the current members of the group. If the plaintiff has been involved in any past immoral or illegal activities, those activities will be exaggerated or, if there are none, even fabricated. There will also be tremendous character assassination. Do not forget that the cult knows almost everything about the plaintiff, since many cults make their new followers “confess” about their past mistakes and errors, often in an exaggerated manner or even falsely. The plaintiff will be asked about these issues during witness examinations, in reference to the declarations and testimonies given during depositions by people that the plaintiff thought were friends or comrades. One should expect the group to do everything necessary to intimidate and frighten the plaintiff, and much of this intimidation during the judicial process will be justified in the name of “impeachment.”
Thus, to effectively pursue a case, measures to support and help the plaintiff would be necessary. Lawyers alone cannot do that. In most of the successful cases, support for the plaintiff should be provided by the former members of that group. It would be ideal if the period that the former members were within the group overlaps with that of the plaintiff. Former members may also make good witnesses. Other useful support may come from former members of other groups, mental health professionals (provided that they have knowledge about the cultic phenomenon), and non-former members who had their lives affected by the cult. It is very important to let the plaintiff know that he was not the only person who had been victimized by a cult.
The successes for those who have sued the UC in Japan can be attributed to the support and mutual cooperation provided by the former members. A plaintiff of one lawsuit often became a witness in another. When we were preparing a case, it was always helpful to have a former member as a witness who knew about the church’s activities; and it was even more useful if the plaintiff and the potential witness had known each other when they were in the UC. And a former member who had senior status also would be able to provide information about the policies.
Another benefit of cooperating with other former cult members is the opportunity to gather and collect whatever objective evidence there might be. Sometimes a piece of a document, such as a missing part or an updated version, can be authenticated. Success may motivate other recent former members to contribute information and knowledge, the accumulation of which can become an important asset.
In the case against a group called the Home of Heart, which became the first case in Japan ever to use the word mind control and acknowledge it in a court decision, the close cohesion and mutual support by the former members became a valuable asset. Compared to the UC, the Home of Heart was a much smaller group; but seven former Home of Heart members had left the group at around the same time and were able to organize an opposition group, not just for the purpose of pursuing litigation, but also to help the members still within the group, especially the children. Of the seven former members who left, five became plaintiffs and sued the Home of Heart group and also those responsible for damages. In return, the Home of Heart Group sued two former members for libel and for “reporting false claims of child abuse to the authorities and having the children kidnapped.” The lawyers, Masaki Kito (head of the law firm for which I work) and I, were sued, as well; in addition, motions were made against the bar association seeking disciplinary action against us.
At its peak, our firm had five court cases pending with the Home of Heart. These cases placed a lot of stress and burden on the plaintiffs, some of whom became defendants and would not have been able to fight through it without the victims’ group. Although former members are quite determined to sue the group, anxieties do set in; at those times, it really helps not to be alone. When you organize a victims’ group, it is important for the group to cooperate and connect with former members from other groups, especially if those former members have previously experienced lawsuits, and to connect with the public, as well.
Importance of the Audience
During court proceedings, cults will often rally their believers to fill in the audience seats. You also should do so. Even for professional lawyers, it is much more comforting and assuring to make arguments in a courtroom that offers the feeling of “home” and not “away.” Especially during witness examinations, having the audience seats filled with friends will reduce the pressure on and enable the witness to testify calmly and accurately.
Fundraising
Any legal process costs money; therefore, fundraising is another important issue, although it is difficult to give specific suggestions regarding fundraising. Many factors come into play. Legal costs can vary markedly from country to country, and in the United States, these costs can vary significantly among states. Sometimes a victim of the group being sued (e.g., a parent or a former member) may be wealthy enough to fund lawsuits. In some countries, such as the United States, lawyers can take cases on contingency, which means that they cover expenses if they lose the case; but they also get a sizeable percentage of the judgment (e.g., one-third) if they win.
Fact-Finding
Fact-finding is persuasively rebuilding what has happened in the past, and this process includes multiple components that I discuss in the following sections. Fact-finding is a little bit like completing a jigsaw puzzle that has lots of missing pieces. Memories are often unreliable, and a fact finder must check vague points for accuracy. A fact finder can use objective evidence such as books, personal memos, diaries, schedules of events, bank records, faxes, and emails in which dates are fixed. Nowadays, websites and social-networking services also make good evidence. Documents created by the defendants prior to the case are useful, as well because it is difficult for a group or lawyer to deny what has been written in such instances.
Unsuccessful cases are those with weak plaintiffs (e.g., plaintiffs who exhibit frail memory, dishonesty, and so on), those without third-party witnesses, those that include little or no objective information about the group, and those that have had no assistance from other former members. And unfortunately, except for the weak-plaintiff issue, weak cases are the reality for plaintiffs from many of the one-on-one cultic groups.
The Interview Process
An essential aspect of fact-finding is the interview process. It is important to thoroughly interview the plaintiff and other former members. The US legal system includes depositions, in which the plaintiff and other former members have to give testimonies at an early stage, whereas in Japan, there is no deposition; so parties are not required to submit declarations or be subjected to examinations until near the end of the case. But whether the process occurs earlier or later, when one is interviewing, having assistance from another former member of the group is crucial. For instance, seemingly harmless words or phrases are often used in a different context than usual, and these former members are often able to more objectively explain what has happened to someone else than explain what happened to themselves. Having other former members available also may be helpful if they can provide additional information and support to the plaintiff for getting through the case. The presence of former members can help other victims who are not suing by also giving them a sense of usefulness, which is vital in maintaining the cohesion and harmony within the victims’ group.
Interviewing can be seemingly harsh for the victim. The lawyer has to make the plaintiff and the former members understand that a good lawyer always looks for facts. The facts are viewed from three directions to determine whether they are persuasive enough: the plaintiff/victim’s point of view, the adversaries’ point of view, and the fact finders’ point of view.
The crux of the interview is about obtaining the objective facts, including how the interviewee’s emotions, feelings, and thoughts were formed by various influences imposed by the group, and furthermore, how the person had acted in the group based on those emotions, feelings, and thoughts. And through the interview, all of this information is provided in that person’s own words. During my first interview with a plaintiff, I believe in the plaintiff’s integrity, but never in the accuracy of what the plaintiff says. Likewise, in working with victims, I am aware that victims love to analyze and evaluate, which is natural; but that is not their role. Facts win the day, not evaluation.
As I mentioned earlier, litigating a cult case means ensuring that the judge understands the indoctrination process of that particular group, the problems of the indoctrination, and the harm caused as a result of the indoctrination. Indoctrination occurs on a continuum, and all the events have a meaning. One must present the timeline from the victim’s initial encounter or recruitment to her act of leaving the group and take on all the facts as a whole. Generally, it is not effective to use an edited portion of the events to reflect the case one is presenting.
In this context, the plaintiff may want to discuss only a portion of what has happened; but the lawyer must make the plaintiff understand that, often, seemingly miscellaneous or trifling events can show the court how the group or the leader has established control over the plaintiff. The plaintiff needs to understand the importance of recreating the timeline from the initial encounter or recruitment to the end (when the plaintiff left the group). Otherwise, the other side can use omissions from the story to attack the plaintiff’s credibility. Even if the cause of action involves only a single event, it’s important not to overlook the course of events that preceded and happened after that event. As an example, in one of our cases against the Home of Heart, the plaintiff had first gone to a different lawyer who did not have any knowledge about the facts and had tried to make it a simple fraud case about a small portion of the damages. Then, when we presented the entire case, including all the facts, the other side claimed that the various acts we mentioned were not mentioned in the first letter from the previous lawyer, which made our case more challenging for us.
Preparation for Attacks
The lawyer and the plaintiff need to be prepared for impeachments based on examples of the happy times or good times the plaintiff experienced as a member of the cult. One can expect photos or videos from the defense showing the plaintiff smiling with a happy facial expression, or articles, essays, and letters that the plaintiff wrote initially about the new, wonderful experience. To avoid being taken by surprise, do not ignore those good feelings or good experiences, and be prepared to construe and explain such experiences within the context of, and along with, the lines of control that were imposed upon the plaintiff.
Use of Expert Witnesses
Again, remember that facts, not evaluation, win the day. From the Japanese experience, a case that has to rely on an expert witness to support the indoctrination and manipulation of the plaintiff in order to prove maltreatment is a weak case.
Let the facts speak for themselves. Expert witnesses are good to have, but if they are necessary to win, you have a weak case. We never went into academic arguments about psychology and mind control in Japan. Fact finders are not considered academics; so if you build your case based on academic theories, you are likely to fail. Remember, the burden of proof lies with the plaintiff. The other side can easily raise counterarguments, and they have the resources to look for and hire experts to testify on their behalf. There will also be cult apologists willing to testify. Their counterarguments don’t have to rebut or discredit your arguments; they merely need to raise doubt. If the fact finder thinks, “Gee; I am not so sure,” the defendant will prevail.
The credibility of witness testimony depends on the reliability of the underlying facts the expert witness presents. Those facts are the most important factor. If they are different from the evidence the fact finder has provided, the expert’s opinion will lose value.
Generalizations
Beyond the challenges of navigating the use of an expert witness, there is also a risk of focusing too broadly, and consequently generalizing an issue. For example, the issue in a particular case isn’t whether “mind control” exists in this world, but whether it was used on the plaintiff in this specific circumstance. It is helpful for you to gain an understanding of what your plaintiff has gone through because that understanding may give some assurance to the fact finder that mind control is possible. I do not deny the potential importance of psychology; however, you should not rely on it to persuade the fact finder. It’s important to convince the court, based on the facts, that the plaintiff was a victim of mind control.
Concluding Comments
Suing cultic groups is difficult. Lawsuits are expensive, and they can be psychologically debilitating to plaintiffs, who often need enormous support during the process. Plaintiffs, former members, experts, and others involved in such cases may be distracted by tangential issues and by the moral outrage they may feel. Legal cases, however, revolve around facts, not opinions or subjective judgements. The focus must be on “What events, documents, and testimony demonstrate that this plaintiff was subjected to undue influence that resulted in harm?” The lawyer’s primary challenge is to create a timeline of relevant facts that demonstrate how the plaintiff’s experience in the group caused harm that warrants a judicial remedy.
Notes
[1] The author is using the generic word litigating, as in preparing a case against a cult, regardless of whether it is in a criminal or civil case.
[2] See https://law.justia.com/cases/california/supreme-court/3d/46/1092.html
[3] See http://www.concordatwatch.eu/topic-47668.834
About the Author
Takashi Yamaguchi, Esq, practices law in Tokyo at the Link Law Office, founded by Masaki Kito. He represents and advises the victims of various cultic groups, and also individuals and entities confronted by those groups. He is a member of the National Network of Lawyers Against Spiritual Sales, a board member and executive director of the Japan Society for Cult Prevention and Recovery (JSCPR), and one of the founders of the All Japan Network of Universities for Counter Cult Measures. He is Japanese-English bilingual and is admitted to practice law in Japan and the State of California.