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"It is a truism that almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so, and will follow it by suppressing opposition, subverting all education to seize early the minds of the young, and by killing, locking up, or driving underground all heretics."
--Robert A. Heinlein, postscript to Revolt in 2100

REFERENCE: Robbins, Shepherd, and McBride, editors, "Cults, Culture, and Law: Perspectives on New Religious Movements". Scholars Press, California. pp. 81-91. 1985.

Coercion, Coercive Persuasion, and the Law by Herbert Fingarette

I must begin with a few words about the perspective from which the following analyses are relevant to the topic of coercive persuasion in the context of the new religions. I have not done detailed research in connection with the new religions or the concept, specifically, of "coercive persuasion," though I read generally in the field with the intent of getting more involved in the study of these topics. However, I do feel I can bring something positive and specific to thought about the topic. This is because for a number of years my research has covered the area of mental disability, especially in the context of law, and most especially in connection with the criminal law and criminal responsibility. Specifically, I have worked on such topics as criminal insanity, diminished capacity, intoxication, addictions, and on other related notions that one runs across in the law, such as automation, unconsciousness, and involuntariness. Obviously these questions of mental disability and legal responsibility are also closely related to what falls under the rubric of "coercive persuasion."

Moreover, I have more recently been working on the theory of excuses in the law, most specifically on the notions of coercion, duress, compulsion, and undue influence. These are not merely criminal law concepts but are used in a wide variety of legal contexts. And when one thinks of the ways in which people try to importune, plead, deceive, dominate, tyrannize, and otherwise control, coerce, or influence "unduly" other people's minds and actions, then it is evident that all this, too, has close connection with the sorts of thinking that are going on in the area of controversy about "coercive persuasion" in the new religions context, as well as in war prisoner and political indoctrination contexts.

So I thought that I could bring out how the notion of "coercive persuasion" looks to me, as I stand off in the mid-distance, viewing it as a topic still to be explored, balancing what I may lose because of my naivete about the detail against the fact that I come at it fresh, as an informed outsider, so to speak. Therefore, I shall not try to present a thesis on the topic which is very sharp and precise, but rather to develop an angle of vision on the *legal* aspects of the matter that I think might be usefully suggestive -- no more than that, but I hope no less.

First of all, one might ask, what does "coercion" mean in the law? The answer is that there are various legal tests; they differ, depending on the legal context. The doctrines and the theories relating to coercion are not very clear; there are not only controversies about how to define it but also about the rationale justifying the various legal uses of the notion.

There is, however, a common theme, a thread that runs through all legal definitions, explanations, or accounts of what constitutes coercion and, for that matter, undue influence as well. It is the idea that in coercion the victim's "will" is "overthrown," or "overcome," or overborne," or "destroyed," or "neutralized," or "subverted" -- or something of the kind. The exact language varies but no matter the specific legal context one finds a constant refrain expressed in some recognizable variant of this idiom: the victim's will was overcome. And that also seems to be the sort of thing that is at issue when there are allegations of coercive persuasion, or brainwashing, or thought reform. In some way, you overcome or destroy or subvert the will of the person. In all these usages, it is implied that the will is not just overcome but is then also dominated by the person who is doing this. So that the victim then becomes a kind of agent, a tool, an extension of the will, of the coercer.

Therefore, in order to bring out the significance of this idiomatic language in law, I want now to run through some of the more specific legal uses of the notion of coercion, and examine these in relation to this basic idiom of the overcoming and dominating of the will. I want to replace metaphor and idiom with a more analytical account.

Let me say at once that while the words, the idiom, the metaphors suggest that the law is here concerned with some kind of profound, perhaps traumatic, psychological event in the mind of the victim, I aim to show that the psychology of the matter is not of the legal essence at all. Even though it appears that the essence of coercion consists in some stimulus that has produced a catastrophic, or at least a very serious breakdown in the psyche of the victim, and that therefore in order to legally identify instances of coercion, one would have to delve into the psychology of the victim, this seemingly trivially obvious conclusion is radically wrong. Or at least so I hope to show in what follows.

Let me begin by taking up first what is perhaps the most readily thinkable kind of coercion, the gun-at-the-head situation. The gun-at-the-head situation no doubt typically includes some kind of psychological turmoil or even mental trauma in the victim. But one thing that we can immediately emphasize is that the notion of a mental breakdown, a *destruction* of the will, is inappropriate even in this extreme case. The point can be made in a very strong way: it is not only that there need not be a breakdown or that in certain cases there is not such, but that there could not be coercion if there were a mental breakdown of some major sort. What is necessary for coercion is that the victims keep their wits about them, that they pay attention to what the coercer says and act promptly and rationally to obey. Coercion breaks down if the person panics or loses control, if the mind breaks down in its functioning in some way.

If there is no traumatic breakdown in coercion with a gun at the head, what is it that constitutes the "overcoming of the will"? I will quickly run through some of the logical possibilities -- even some that are obviously not appropriate for practical purposes -- to see if the precise meaning of the "overcome will" can be captured.

One thing that we might mean is that there is no will at all. If something like that *were* the case, then even if the victim committed an unlawful act, the legal implication would in general be that the coerced person would be excusable. For if there is no will, the act cannot be voluntary, and involuntariness is typically a defense in law. But absence of any will at all is obviously not what is at issue here. It does not fit the facts of coercion. An absence of will would exist, for example, in the behavior of someone in an epileptic fit, or in the behavior of someone tripping and falling. And that obviously is not at all the kind of thing factually at issue in the case of coercion. So when we say the will is overcome, we do not mean that the person acts without will.

We might try to go right to the nub of the matter and say that by overcome will" the law simply means "involuntary." Of course, as we have just seen, we could not mean "involuntary" in the sense that there is *no* will. Then, in what sense can one who acts *with* will be acting *in*voluntarily?

One possibility that comes to mind in the legal context is that there is some kind of mistake or ignorance. If a person was ignorant or mistaken about some fact material to an offense that the person committed, so that in the person's eyes the act did not constitute an offense, then the offending act may be spoken of in law as involuntary. It was not done intentionally or knowingly, hence not voluntarily. This would be an excuse in many legal contexts. But, again, it is obviously not what is at issue in the case of coercion. In coercion we are not dealing with conduct based on mistake or ignorance.

Another thing one might mean in law when one speaks of involuntary behavior is that the person is in some sense irrational. Sometimes the courts do speak of irrational behavior, for example, insane behavior, as involuntary. Of course insanity is an excuse. But irrationality, whether in the form of insanity or any other legally recognized form, obviously does not fit the facts of the coercion case. As noted earlier, coerced behavior in the gun-at-the-head situation is not irrational behavior; quite on the contrary, it is necessarily rational behavior.

Perhaps the behavior is involuntary in the sense that the person is acting under some kind of "irresistible impulse." This is another kind of involuntariness that we run across in the law. The existence of an irresistible impulse could indeed provide a legal ground for excuse. So if coerced behavior were such, this would provide a rationale explaining why coercion is a legal excuse. There are difficulties with this approach, however. First of all, the notion of irresistible impulse is for theoretical purposes a very troublesome notion. The problem is well expressed in the old saying: How do we tell the difference between "He could not resist his impulse" and "He did not resist his impulse"? This becomes in practice a very troublesome issue in the law. Typically, when it comes up openly, as in insanity cases, for example, it involves psychiatric testimony. Since there is no theoretical understanding of how to apply the distinction, what happens is that we get the expert testimony as to the facts about the defendant -- facts as to which not infrequently there is general agreement -- and yet the experts disagree as to whether the impulse, desire, or mood was irresistible or not. This, of course, is a pretty good sign that what we are dealing with here is not a question of fact, but a question of ideological differences among different schools of psychology and psychiatry.

Now, my point here is not simply that this causes trouble in the courts, but that when we deal with coercion defenses, we do not see this kind of trouble arising. Coercion defenses do not generally call for extensive psychiatric testimony, and do not generate the typical problems and confusions of psychiatric testimony. This, to me, is very good evidence that coercion in law does *not* raise an irresistible impulse type of issue, and that therefore the involuntariness of coerced behavior is not to be understood along these lines.

A close cousin to irresistible impulse and legally much more respectable these days is the notion of loss of self-control. If we stipulate that there was loss of control, then indeed we might in law be on our way towards some kind of legal defense based on involuntariness. Does coercion excuse because coercion is loss of self-control? Again we have to remember that in the case of coercion the victim does not -- and must not -- lose self-control.

I repeat, for purposes of orientation, that what I am doing here is to look for some way of interpreting "involuntary," having moved from overcome will" to "involuntary" and in doing so in legal terms that would both fit the typical facts of coercion and also provide a legal excuse. For the object here is to understand what is at issue in law when the notion of coercion is used and to understand it in terms less metaphorical and vague that the idiom of the "overcome will."

An approach to getting at the meaning of coercion is the saying that when there is coercion the victim has no real choice." variants of this are that the victim had no free choice," or had 'no fair choice." As far as "free choice" goes, the problem is that this is a phrase that is probably more problematic than the one we want to explain, i.e., "coercion." Certainly the notion of "coercion" and unfree" are not equivalent. Thus, one can be not free to make a choice and yet not have been coerced: for example, I am not free to talk Swahili, but for reasons that have nothing to do with coercion. Moreover, it is arguable that one can be coerced and yet be free. One example of this that has been offered is the case where one person threatens a second with some terrible mortal threat, and thus induces the latter to perform an unlawful act -- the reality being that the person who made the threat never had any means whatsoever of carrying it out. In such a case, the victim was in reality free to act either way, but acted under coercion. One may be a little troubled as to whether this latter example rests on questionable interpretation or misuse of terms. But that is not important. What is important here is that one finds these examples in the literature, that they do have a certain plausibility, that as soon as one tries to link freedom up with coercion, one funds that, rather than clarifying matters, one has introduced a whole new set of problems and controversies. Therefore, I find the notion of no free choice" to be unhelpful in clarifying the notions of "involuntariness" and "coercion."

What about the idiom, "no fair choice"? Here, I think, we have something that will be useful, especially with further refinement. If a criminal holds a gun at your head, threatens you, and orders you to help him, then you do not have a fair choice. A way of putting this in legal terms is that the person who coerces you has done something unlawful, something unfair" in a legally cognizable sense. To characterize the choice as "unfair" suggests that there is a plausible basis for viewing the choice, and hence the act, as in law not voluntary; and this in turn would generally warrant being excused. Not every lack of fair choice need arise out of coercion (it might have been deception, for example), but every case of coercion would be an absence of fair choice -- i.e., an *unlawful* threat as the decisive reason for the choice.

But something odd has now happened. The crucial element -- the unlawfulness of the coercer's threat -- is not within the victim's mind but consists of the legal status of the coercer's act. Instead of matters of psychology, we have to do with legal norms and the acts of others. This changes radically the focus of the legal inquiry from what the phrase overcome will" initially suggested.

Before pursuing this further, let us turn for still further insight to the last of three possibilities embodying the term "choice": the idea that where there is coercion, there is "no *real* choice." Obviously, this is a highly idiomatic approach. It certainly would not stand if taken literally; the coerced person does have a real choice in the obvious sense that the person could refuse to obey. Most writers on this topic agree that it is appropriate to describe the victim as someone who literally does make a choice. It may well be a deliberate choice, and indeed some people -- more brave or more foolish than average -- do indeed choose to resist. Yet, there is plainly a certain appropriateness, idiomatically speaking, if one says, "I didn't really have a choice because he was holding a gun at my head." Our question must be: Can we express plainly and more literally what this idiom tells us?

It has been suggested, I think correctly, that what we are getting at here is the absence of a *reasonable* choice. Generally speaking, there is no reasonable choice if refusal means you immediately get your head blown off. One has the power to resist, but it is typically totally unreasonable to do so. If we allow this analysis of "no real choice" as a first approximation, we could make the transition plausibly from coercion" to "no real choice," and thence to 'not voluntary." The law often must rest on the concept of doing what is reasonable, a close cousin to doing what the "reasonable man" would do.

But, once again, this account in the present context results in a surprising, and even a paradoxical insight. It again turns out that involuntariness is not a matter of some psychic process internal to the mind of the victim; the issue turns on the reasonableness of the choice to be made, a very different sort of issue indeed. We have to do here with the standards or canons of reasonableness, which can be quite objective and which in the legal context are typically taken to be objective.

To sum up the preceding analyses: In the attempt to find out what "overcome will" might mean, as used in the legal context of the coercion defense, the two plausible successes in giving it any sense have turned our attention away from the "inside" of the mind of the victim to something "outside," to standards of law and reasonableness. Other and more psychological uses of "involuntariness" in law turned out to have no application in the factual situation of coercion.

The matter can now be developed more positively by looking directly at the classical legal test used for a coercion defense, rather than by focusing on the vague idiom of the "overcome will." The classic test is quite specific There has to be a well-grounded or a credible threat of imminent death or serious injury for failure to obey the coercer's demand. And, classically, in English and American law, this will be a defense to any criminal charge except murder. Now it is quite true, as I remarked earlier, that a person who is in a spot like this might very well experience great inner turmoil -- not a breakdown, but intense emotion. But we need to ask how essential this is to the existence in law of coercion. Suppose, for example there is an ex-soldier who is experienced in combat, perhaps temperamentally has a devil-may-care attitude, or in any case for one reason or another is unfrightened and is not going through significant emotional turmoil here even though the threat is genuine. He understands quite well that he is threatened with imminent death if he does not obey, and that there is no escape and so, sensibly enough, he obeys. Certainly he has a coercion defense in law, and this being so, it is clear that such a defense does not rest essentially on any inner breakdown or inner trauma. There is no need to show loss of self-control or irresistible impulse. The earlier suggested analysis does quite well here: the legal test singles out a situation in which the victim is unlawfully deprived of any reasonable choice except to obey. So we have eliminated psychology entirely, and we remain with questions of reasonableness and questions of lawfulness as these are interpreted in legal terms.

Let us now test this approach for its generalizability by turning to coercion in a different area of the law, the area of coerced confessions. In the area of coerced confessions, the legal tests of coercion, and the relevant circumstances, are very different from those where a person has committed a criminal act and is claiming coercion as a defense. Making a confession is not a criminal act at all, so there is no question of coercion as a defense to a criminal charge. Here we have a question of doing something under coercion that is lawful but damaging to one's interests. The claim of coercion is a claim that the confession ought not to be admitted in evidence because it was not voluntary. The classic legal tests here are specific and are adapted to this special type of circumstance. The *Bram* test, which still dominates doctrine in this area, was a late nineteenth century case. In substance, it specifies that if the person confessed because of any kind of threat or promise or any improper influence whatsoever, then the confession was coerced, hence involuntary, hence inadmissible. Here we have the other extreme from the criminal defense, for the criminal defense of coercion requires a mortal threat. When one thinks of that paradigmatic gun-at-the-head situation, it is plausible to think of the "will overcome." But the *Bram* test merely requires any kind of improper influence, no matter how slight. Here it would seem no longer plausible at all to talk about overcoming or destroying the will or subverting the will. And yet, the surprising thing is that the courts use this traditional rhetoric in the confession cases, too.

In the famous *Culombe* case, for example, Justice Frankfurter spoke of a "suction process' at work on Culombe's mind. What were the facts? The police had his wife and children come visit Culombe in the jail, and the police encouraged them to appeal to him to confess. Culombe was a person of low intelligence, but he knew what he was doing. He had consistently refused to confess, but his family talked to him and persuaded him that he ought to confess. So he decided to confess, and did so, giving appropriate reasons, and sticking by his decision. I think Frankfurter's rhetoric about a suction process that drained him of will is not descriptively apt. I would say that what happened was that the police unlawfully created a situation in which it became reasonable in Culombe's judgment to confess. According to the legal test, it needed only to be the slightest bit of additional (improper) influence on one side of the issue, so long as this effectively made the difference in deciding to make the confession.

One can imagine someone whose mind is rather evenly balanced, is unsure but has decided not to confess, and then, by some wrongful device, the police presented a situation where now there is just a little bit more reason to confess rather than not. So the person does confess. This does not at all fit the model suggested by the language of the will overcome, destroyed, neutralized, subverted, the language of powerful psychological influences. Why, then, do the courts continue to use the dramatic rhetoric of the broken will here? I think the answer is along the following lines. It is quite evident that the evil to be corrected is the improper use of state power by police officers to oppress an individual who is at least temporarily under their influence. Basic constitutional principles of individual liberty and of restraint on state oppression make it appropriate to impose strict constraints on police power here. So even mild impropriety, if it could have any influence on something so important as a confession to crime, is impermissible. Hence the confession may not be used if the police have used such influence. But when the specific concept of "coercion" is used as the key element in the legal rationale, the courts must speak in the ways defined by legal precedent. When confessions were induced by torture, the notion of "coercion" and 'overcome will" had plausibility. Nowadays, the improper influences" are often nothing at all like torture -- and so the courts have had to explain away the implausibility by speaking of "subtler" forms of "pressure" or "suction." Thus the necessary legal rhetoric is used, but it has lost its sense. (And indeed the tendency has recently been to invoke "exclusionary rules" explicitly based on impropriety rather than to argue in terms of 'coercion.")

Let me now shift to another, very different area of law, in order to complete my survey and decisively demonstrate my point. I refer to the area of so-called economic or business law, and to the legal notion of "economic coercion." Consider the case of a railroad company subject to a tax which it thinks is unconstitutionally being imposed upon it. The company does not want to pay the tax, but, on the other hand, the tax law has an automatic trigger penalty provision, such that if they do not pay the tax properly and on time, they will in effect be shut down instantly. This would of course be a major economic loss to them. So they pay under protest, and then they sue for redress, for return of the tax money, on the ground that they had paid under coercion. The court agrees that it was an unconstitutionally imposed tax, and therefore the company had been unlawfully threatened. The court also finds that the company had no reasonable alternative, that it could never have gotten suitable redress if the railroad had been shut down for refusal to pay up at once. Thus, since the company was unlawfully deprived of any reasonable alternative but to pay, the payment was coerced.

Notice once again that the crucial issues are "objective" -- legal and economic. The threat was unconstitutional; the reasonableness of the alternatives was calculable in terms of profit, loss, and procedures for legal redress. Thus, we really have eliminated the psychological element entirely from the concept of coercion here. Moreover, we are dealing with corporations, impersonal (non-psychological) entities. The psychology of the executives who are involved is totally irrelevant. If the president of the company were afraid of something, this might be of some interest, but it need not be so, and is legally totally relevant.

Yet, if one looks at the text of this and other such cases, one finds that the familiar psychological imagery is used. The courts speak of the company being "compelled to yield." The term "coercion" triggers it and by precedent calls for it.

It is true that we might have to do with individuals who are subject to economic duress, for example, an employee who is threatened with being fired by his employer for refusal to sign a waiver. The employee may indeed be frightened and worried. And the courts will always mention this sort of thing, because it does fit the traditional rhetoric of coercion. But even if the employee were cool and calculating about it, it still would be economic coercion if he were unlawfully threatened in such a way that the only reasonable thing to do was to agree. And it remains ultimately a legal question, for the court to decide, whether the options were or were not reasonable.

By now I have taken a long trip through the windings and turnings of law -- the reason being that only careful and specific analysis of the law on coercion can convincingly lead one to the correct but counterintuitive conclusion -- a conclusion that not only is likely to be surprising to the non-lawyer but is also likely to be only obscurely appreciated by the law professional. It is, in a nutshell, that the legal concepts and doctrines falling under the rubric "coercion" (or "duress" or "undue influence") do not in essence pertain to psychological questions.

Questions of incompetence and irrationality are pertinent to law, and do rest on psychological evidence, but the recently devised psychological notion of coercive persuasion" can be radically misleading if one is trying to fix the *legal* status of the phenomena at issue. My impression is that "coercive persuasion" cases will properly fall under the law as to mental incompetence and not the law on coercion. These two are legally mutually exclusive -- one who is coerced must be rational in order to be coerced, and "undue influence" can in law only apply if the victim is mentally incompetent. So it is important to keep these notions distinct.

On the other hand, coercive persuasion" law cases can raise the coercion or undue influence issues -- as I see it -- if the victim is assumed to have remained mentally incompetent, and if the emphasis of the claim is on the allegation that the influence exerted was in itself unlawful or wrongful in law (independent of whether it is also "coercive.") Thus, if the persuader talks or acts wrongfully (threatens in an unlawful way, assaults unlawfully, uses deception on material matters, etc.), and if this conduct makes it reasonable to one in the victim's situation to act as the victim did, then undue influence or coercion may exist in law. The legal remedy would depend on the circumstances. But in any case the psychology of the victim would at most be peripherally relevant and never lies at the core of the case.

One may think that the law should be changed so that the psychological dimension is also centrally relevant to coercion, just as it is in the ordinary use of that term. However, I am not trying here to argue about reform of the law but to answer the question whether and how the law of our land, as it is *now*, applies to "coercive persuasion." After all, that is at least a necessary step before one can even consider whether and how to reform the law; and in any case, it responds to a more immediate question in regard to current litigation. Moreover, it is not uncommon for legal terms to develop their own technical meaning and to depart increasingly from the original everyday use of the terms. Sometimes this is undesirable. But often it rises over time and out of real needs and important considerations regarding precision of legal language and justice. In the case of "coercion" I think the latter is the case; the legal technical use is well fitted to the legal context, and has its roots in a wide variety of legal contexts. Hasty change to make legal terms conform to popular usage, without study of the legal contexts that led to the technical use, is likely to do more damage in unforeseen ways than the benefits, if any, of the "cure."

Against this total background of my discussion and with much trepidation and tentativeness, I would like to mention why I think the doctrine of coercion and undue influence are not likely in the long run to be the principal doctrines invoked when cases of alleged "coercive persuasion" in connection with religious sects come before the law. I think this because the legal wrongfulness of the alleged coercer's conduct is so crucial to coercion or undue influence, and because there is such great constitutional restraint on the courts in regard to interfering with or making judgments about religion. Methods of persuasion that might be plainly wrong in law when used in, for example, an economic or domestic context, may very well be protected by the claim that they are intrinsic to religious worship. Beliefs and tactics that most people might consider bizarre in any other context may be protected in the religious context. The reluctance of the courts to interfere -- mandated at bottom by our (Constitution -- places an exceptionally heavy burden on one who would show the conduct to be unlawful, and this in turn makes a claim of coercion very difficult to sustain in the religious context. It seems to me that, on the whole, the more likely legal terrain for such claims would be defined by the claim that the purported victim had been rendered or become mentally incompetent in some respect or degree. However that, too, can be a difficult question to settle legally when one person's mental incompetence is another's religious belief and ascetic practice.

In the end this is a factual question: how gross was the wrong done the victim, or how gross is the incompetence? No doubt after a certain point even the Constitutional restraints on the court dissolve, no matter how insistently a religious rationale is offered.

The law is still in flux on these matters, and I am trying to chart long-term probable trends on the basis of fundamental legal doctrine. Obviously other factors will come into play, too. As I said at the outset, I hoped to throw light from one certain angle, but I have no firm, clean, and overall conclusions about "coercive persuasion." Certainly -- as is obvious -- I have not attempted to take up here the profoundly important moral, religious, political, and psychological dimensions of this question. And a final but important disclaimer: nothing I have said implies or is meant to imply the soundness or unsoundness of the claims pro or con as to the existence of "persuasive coercion" in particular sects. I have been concerned with determining what law is generally relevant to these claims, not with what the legal decision would be or should be in actual cases.

Related Links:
Group Psychodynamics and CULTS Margaret Singer, Ph.D.
The Scientology Matrix ( what a scientologist faces leaving Scientology )
The Art of Deception, by Arnie Lerma
The Art of Deception II
Declaration of ex-Scientology Attorney Joe Yanny

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