Friday, January 24, 2014

Religious totalism: Gentle and ungentle persuasion under the first amendment, by Richard Delgado

January 1, 1977, Law Center, University of Southern California, Southern California Law Review, Vol 51 November 1977, No 1,  Religious totalism: Gentle and ungentle persuasion under the first amendment, by Richard Delgado (Author) Unknown Binding,

Partial, uncorrected text found at Operation Clambake Message Board, page 18,
A search of the net shows that this priceless reference work has not been made available. This paper is cited by more cult/brainwashing authors than any single published piece of work. It is 100 page long, in the first 22 pages there 131 cites...in a very tough to OCR typeface, which will follow when I get to it. This is raw ocr, un-spell checked, please dont reweb this at this time. However, activists will benefit greatly from this being made available on the net. It outlines the legal strategy to use to gut a cult. 
This document was made available for scanning by the volunteers of Lermanet.com Exposing the CON by 25 year activist, Ms Ida Camburn of Hemet California. 

RELIGIOUS TOTALISM: GENTLE AND UNGENTLE PERSUASION UNDER THE FIRST AMENDMENT* RICHARD DELGADO** 


* The author gratefully acknowledges the support afforded him by the Program in Law, Science & Medicine at Yale Law School, where a portion of the research leading to this Article was completed. In addition, thanks are due the following individuals for assistance rendered at different points during the preparation of the manuscript: Professor Michael H. Shapiro, University of Southern California Law Center, who discussed the problem of brainwashing with me and made many trenchant comments and suggestions; Dr. Robert Jay Lifton, Professor of Psychiatry, Yale Medical School, who helped me to understand the psychology of totalism; and Professor William Powers, University of Washington Law School, who made a number of suggestions in connection with my treatment of consent and identity change. 

Throughout this Article, reference to confidential sources has been indicated by omitting names or reducing names to initials. Other sources containing confidential information have been retained on file with the author. For the protection and privacy of the individuals concerned, the author assumes sole responsibility for the content of interviews granted and letters sent or forwarded to the author and other confidential material on file with the author. **

Assistant Professor of Law, University of Washington. B.A. 1960, University of Washington; J.D. 1974, University of California, Berkeley. 

TABLE OF CONTENTS 

I. REGULATION OF RELIGION-BASED PROSELYTIZING: 

FIRST AMENDMENT LIMITATIONS ............................... 9 A.
THE STATE'S INTEREST ................................................. 10 
1. Harms to the Individual.......................................... 10 
a. Precipitation of psychiatric and physical disorders... 10 
(i) Psychiatric disorders ................................. 10 
(ii) Guilt, suicide, and self-mutilation ................. 16 
(iii) Maturational arrest................................... 17 
(iv) Physical disease and injury ......................... 19 ..... 
(v) Impairment of autonomy................................... 21 


2. Societal Harms .................................................... 25 
a. Harm to the family as an institution...................... 26 
b. Conflict with social and legal norms ..................... 31 
c. Potential for violence......................................... 33 
d. Aftereffects of the cult experience-social impact .... 35 

B. THE CULT'S INTEREST .................................................. 36 

1. Honesty and Sincerity ............................................ 38 
a. Deception in the recruitment process ..................... 38 
Deception in other areas .................................... 41 
1. Insincerity arising from an admixture of secular 
and religious aims............................................. 42 
(i) Political objectives ..................................... 42 
(ii) Economic aims ......................................... 44 
2. Centrality-The Requirement of a Core Belief.............. 46 
3. Promotion of Values Fundamental to the First 
Amendment ......................................................... 47 
4. Correspondence with Societal Norms ........................ 48 

I. PATERNALISM AND CONSENT-LIMITATIONS ON THE DECISION TO JOIN BASED ON VOLUNTARINESS.... 49 

A. TRADITIONAL FACTORS .................................................
SO 1. Coercion and Duress .............................................
SO 2. Deception............................................................ 52 
SO 3. Physical and Mental Debilitation .............................. 53 
4. Abuse of a Fiduciary Capacity ................................. 53 
B. FACTORS PECULIAR TO RELIGIOUS CULTS .......................... 54 
1. Manipulation of Knowledge and Capacity .................. 54 
2. Segmentation of the Joining Process .......................... SS 
C. ASSESSING VOLUNTARINESS: IDENTITY CHANGE AND THE ACQUIESCENT INDOCTRINEE ........................................... 57 

III. THE BOUNDS OF INTERVENTION-PRINCIPLES OF EXCLUSION AND INCLUSION ..... 62 

A. ON DRAWING THE LINE................................................. 63 
B. THE CULT INDOCTRINEE SYNDROME: TYPE I AND TYPE II ERROR......................... 69 
IV. REMEDIES .................................................................... 73 
A. PREVENTIVE REMEDIES ................................................. 73 

1. Identification ....................................................... 73 
2. "Cooling-off"Period............................................. 74 
3. Public Education .................................................. 74 
4. Prohibition of Proselytizing by Certain Groups ............ 75 
S. Licensing ............................................................ 76 
6. Request for Rescue ................................................ 77 
B. POST-INDUCTION REMEDIES ........................................... 78 

1. Self-Help and Deprogramming ................................. 78 
a. The defense of necessity .................................... 83 
b. Assessment of deprogramming ........................... 85 
2. Conservatorship and Guardianship........................... 88 
3. A Contract-Based Remedy-Mutual "Reassessments". 91 
4. Remedies Against the Cult or Cult Leaders ................. 92 
a. Civil remedies ................................................. 92 
(i) Tort actions ............................................. 92 
(ii) Actions for the return of money or objects 
donated to the cult..................................... 94 
b. Criminal remedies ........................................... 95 
CONCLUSION ............................................................... 97 

Charges that religious or pseudo-religious organizations abuse mind control techniques have become increasingly insistent in recent years. If behavior control technology is powerful enough, when applied by the state, to raise constitutional "right to treatment"' and "right against treatment"(2) issues in cases involving prisoners and mental patients, it is not surprising that these same techniques, which have also proven of interest to criminal and extremist groups and to belligerents during wartime, generate similar controversy when utilized by these latter groups.(3) 
"Brainwashing" has been asserted as a defense to charges of violations of the Uniform Code of Military Justice by American prisoners of war following the Korean conflict.' In the last few years, it has also made its appearance in two highly publicized criminal trials, People v. Manson(5) and United States v. Hearst.(6) Both trials involved outlaw gangs that had succeeded in capturing or captivating female victims and converting them, by a process that included fear, isolation, charisma, and physiological stress, 7 into willing confederates in a variety of criminal ventures.(8) 

In the Manson trial, some of the young women who had fallen under the influence of the cult(9) leader, Charles Manson, sought to introduce evidence of that influence in mitigation of sentence.(10) At the Hearst trial, a defense team led by F. Lee Bailey presented expert psychiatric testimony to the effect that Patricia Hearst, member of a powerful newspaper publishing family, had undergone coercive persuasion similar to that experienced by American POW's during the Korean conflict and by Chinese and Western intellectuals at Chinese revolutionary universities in the 1950's.(11) Although both defenses were unsuccessful,(12) the court in each case permitted the introduction of evidence concerning brainwashing. As a result, the proposition that thought control that falls short of inducing insanity is at least relevant to the question of criminal liability appears to be established." 
In a noncriminal context, claims of coercive persuasion or mind control have been raised with increasing frequency in connection with the activities of certain extremist, youth-oriented religious organizations, such as the Unification Church, the Children of God, the Hare Krishna, and the Love Family. These groups have come under fire from parents,(14) church groups,'s and government officials(16) for recruiting young persons by deceptive means,(17) making them dependent on the cult for emotional support,(18) and gradually conditioning them to accept a completely controlled, highly restricted lifestyle" and a world view drastically at odds with that of the prevailing society." Critics charge that religious cults recruit young persons when they are especially vulnerable (21) and entrap them by a sophisticated process that exploits known human weaknesses and propensities. (22) Cult leaders respond that they are bringing religious values to spiritually starved youths and that they are doing nothing that is not done by other highly regimented organizations, such as established religious orders or military academies.(23) It was recently estimated that one to three million Americans, mostly in their 20's or late teens, are members of these 200 to 1,000 religious cults.(24) Although this figure is probably an overestimate (25) the number is manifestly substantial." 

Because many jurisdictions deny prospective relief, parents have resorted to hiring lay "deprogrammers," such as Ted Patrick, who physically abduct cult members from street corners and religious communes and attempt to reverse the cult's influence in encounter-style therapy carried out in locked motel rooms." Although many youths appear to have been successfully deprogrammed,(28) and have subsequently expressed fervent gratitude at being freed,(29) deprogramming methods have resulted in violence,(30) bitter criticism, 31 and criminal prosecutions of deprogrammers.(32) 

This Article considers a number of the legal and social issues posed by the recruiting and indoctrinating activities of religious cults, particularly those raised by the prospect of state intervention. The Article consists of four parts. Since religious values are implicated-values that are ordinarily afforded substantial protection-a balancing test must be applied. There thus arises the important threshold issue of the harmfulness of the techniques used in obtaining and exercising control over members. The first part accordingly reviews the psychiatric and medical literature relating to religiously motivated thought reform and the hazards associated with 1t.(33) The proper weight to be assigned the sect's interest in carrying out thought reform is then considered." First amendment cases have upheld limitations on religion-based behavior where it has been shown that the behavior was socially harmful, not essential to the group's system of religious belief, and motivated by political or economic, rather than religious, concerns." The degree to which cults meet these criteria is explored.(36) 

Concluding that a showing of physical and psychological harm sufficient to override a cult's interest in practicing thought control can be made, the Article then raises a further question: Might the harm be considered consensual? Because our legal system is reluctant to impose limits on the self-regarding actions of competent adults, the voluntariness of the joining process becomes critical. Accordingly, the next section considers the process by which young persons are drawn into, and induced to remain in, religious cults.(37) It is seen that this process involves features that seriously erode the voluntary quality of their choice. These include coercion, deception, and conscious manipulation of knowledge and capacity in such a way that the convert's knowledge of the cult and his future role in it is increased only as his capacity to act intelligently and independently on that knowledge diminishes. A related problem is the segmentation of the joining process into a succession of stages, with the ultimate objective concealed from view. 

If there is harm of sufficient gravity to trigger scrutiny despite the protection ordinarily afforded religious conduct, and if this harm is not consensual, an additional question arises and is examined in the next section: Is it possible to distinguish-to "draw the line"-between illegitimate uses of control technology and those we normally accept?" Our society has traditionally tolerated certain areas and degrees of relative restrictions on freedom; accordingly, it is necessary to ask whether it is possible to distinguish the mind control techniques practiced by religious cults from those utilized, for example, in military training institutions, established religious orders, or advertising. Although the mind- and behavior-altering processes carried out by religious cults share certain elements in common with those that appear elsewhere, they are distinguishable by reason of the intensity and the pervasiveness with which they are applied. In assessing the intensity and pervasiveness of brainwashing processes, a scale of "ideological totalism," derived from the work of psychiatric and psychological theorists, enables distinctions to be drawn between mild and extreme degrees of coercive persuasion. 

A final question concerning choice of remedy is discussed in the next section.(39) Assuming that society may, consistently with the first amendment, impose limitations on privately imposed psychological bondage, and that meaningful distinctions may be drawn among the various degrees of influence, how are these limits to be enforced? It is proposed that the various stages in the brainwashing process call for differing legal solutions in order that the remedy encroach as little as possible on religious practice and belief. At early stages preventive remedies, such as a requirement of disclosure, might be imposed in order to ensure that potential converts are aware of the possible risks of proceeding-to membership in the cult. After induction, when the conditioning process has progressed further and it appears that the member's choice to join has not been freely made, more drastic remedies may be appropriate. Some of the remedies that have been developed or proposed are set out and evaluated under relevant first amendment doctrine. These include conservatorship proceedings, tort actions by parents and ex-members, consumer protection legislation, and self-help, including abduction and deprogramming. 

Postinduction remedies that risk overriding competent objection require consideration of the possibility of error.' Since no set of screening procedures designed to diagnose mind control can work perfectly, errors of two types may result. Type I error consists of overriding decisions to join that have been freely and voluntarily made. Type II error consists of withholding relief in cases when the individual's decision to join has resulted from illegitimate pressure and coercive influence. Since both types of error can result in serious losses of personal autonomy, it is essential that the consequences of both types of error be weighed in order that the resulting criteria be as risk-free as possible. Existing methods for diagnosing brainwashing are discussed, and recommendations are made concerning judicial mechanisms that might be used to assure that these procedures are applied fairly and that the right to make a competent decision to refuse treatment is protected.

I. REGULATION OF RELIGION-BASED PROSELYTIZING: FIRST AMENDMENT LIMITATIONS

While religious belief is protected absolutely," religiously motivated conduct is subject to a balancing analysis in which the interest of the religious group is weighed against the state's legitimate interest in regulating or 

1. Harms to the Individual 

a. Precipitation of psychiatric and physical disorders: (i) Psychiatric disorders:' The pressure, anxiety, and intense guilt manipulation characteristic of the cult induction process have been found to induce mental and emotional disorders in relatively well-adjusted youths. Individuals who have more severe personality problems at the beginning of the induction process may become acutely ill or suffer psychotic breakdowns. 
At a recent Vermont Senate hearing," a number of psychologists and psychiatrists testified about the mental health implications of cult membership. A Harvard University assistant professor of psychiatry testified that the dangers, which he found generally to be "extreme,' (48) vary according to whether the convert's decision to remain with the group is an expression of "restitutive" or "adaptive" forces.(49) The restitutive group is composed of persons who are, at the outset, borderline personalities. These individuals tend to be "seekers." They are uncomfortable with themselves and with reality, and are attempting to restore themselves by finding a place in a different reality.(50) In this respect, their effort is like that of schizophrenics who create a new, simplified world and style of thinking in place of the complex world they wish to leave. Approximately half of the cult inductees the psychiatrist examined fell into this group.(51) A second group, the adaptive individuals, were relatively free from pathology at the start. These were normal, developing young people, frequently college students, who were going through ordinary postadolescent difficulties or crises at the time they were inducted into the cult." 

The psychiatrist found that individuals in the restitutive group are "very much at risk," since the victim's tendency to find refuge in an unreal, fixed thought system is accelerated by living with a group whose thought, speech, and behavior patterns encourage these traits.(53) He compared the diminishing chances of members of this group to regain a relationship with outer reality with those of schizophrenics of past years whose condition deteriorated, as a result of confinement to the back wards of mental hospitals, to the point where they could no longer think or act effectively.(54) 

Individuals from the adaptive group present a somewhat different picture. Relatively normal at the outset.(55) these youths join a cult as a result of the combination of opportunity-a momentary state of discouragement or depression-and contact with a recruiter.(56) Lured into the cult by false representations and enticed to remain through the initial stages of indoctrination by flattery, offers of friendship, and peer pressure, members of this group find themselves confronted with a series of problems posed by the demands of cult membership." Desiring to preserve the psychic rewards of membership, these individuals respond to the challenges the cult presents to them by undergoing social, physiological, and psychological changes which, while not so blatantly pathological as those of the restitutive group, are nevertheless alarming and, if not interrupted, potentially irreversible.(58) 

The unceasing sensory barrage,(59) physiological depletion,(60) absence of mental privacy,(61) and lack of opportunity for reality testing(62) combine to produce in these individuals a state of narrowed attention and heightened suggestibility that one psychiatrist compared to a trance.(63) Once in this condition, the victims are compelled to reorganize their past lives and relationships into stereotyped patterns of right and wrong, good and evil.(64) The victims are compelled to sever all attachments to friends and family,(65) a decision which becomes easier by virtue of the remote setting in which indoctrination is carried out. (66) This forced rejection of the past, together with the intense focus on the present, makes it progressively more difficult for the recruit to identify with or reconstruct, in his imagination, his past life." The only reality becomes the present, with its intense preoccupation with the supernatural," cosmic struggles between good and evil and with the convert's growing dependence on the group for a framework in which to resolve these frightening problems. 
The victim's dependence on the group and the thought structures it offers results in gradual changes in the language base in which discourse and thought are carried out.(69) 61 Old, emotion-laden words are given new, rigid, simplified meanings.(70) The new vocabulary is at once literal, magical, and task-oriented. Converts' speech patterns demonstrate a lack of humor" and an inability to appreciate and use metaphor:" Critical thinking and the asking of questions is discouraged; converts are taught to feel rather than think.(73) 
When this adaptation process has progressed through a period lasting from a few days to several weeks, the convert may be judged by the elders as ready to assume the duties of full-fledged membership. These include proselytizing, money-raising on-street corners, and scavenging for edible garbage.(74) At this stage, complex rational thought, a career, and ordinary love relationships become impossible." The member appears simplistic in his thought processes, stereotyped in his responses to questions,(76) and unable to make even simple decisions. The recruit's impaired intellectual functioning appears to reflect a loss of many I.Q. points, (77) the possibilities of human intimacy are impaired, and the victim's judgment about events in the world is damaged because of a constricted ability to perform ordinary reality testing functions. (78) 

In addition to these impairments of mental and emotional functioning, the final stage for both groups is often accompanied by classic psychotic or neurotic symptoms." A psychiatric social worker with extensive experience in treating cult members implied at a meeting convened by a United States Senator that half of the individuals suffered from "schizophrenia or borderline psychosis" as a result of the cult experience.(80) Many had suicidal impulses; others required hospitalization. (81) Recovery was believed to require a year or more, which the social worker compared to the length of time required by brainwashed prisoners of war to return to normalcy.(82) 

Courts deciding cases involving conservatorship, habeas corpus, and child custody have considered the varieties and extent of psychiatric harm resulting from cult membership. A psychiatric deposition introduced in a conservatorship hearing spoke of the victim's "altered mental state, in which normal thought processes are obstructed by the presence of a structured and induced delusional system. "(83) The victim showed "characteristic manifestations" of cult-induced psychic alteration: "a perpetual, quizzical smile; a mood of false euphoria; a . . . glassy-eyed stare; and clipped, repetitive speech patterns. "(84) The psychiatrist found the young person "fixated-almost hypnotically-with a perception of all people and things cast in a fierce conflict between 'good' and 'evil.' "(85) The implantation of these ideas "has resulted in a drastic and harmful disruption of Mr. 's reality testing," and "memory of his past human interaction with the ordinary world has been re-molded into a conception of guilt and selfworthlessness. "(86) The victim had suffered loss of ego boundaries and impaired reality testing to the extent that he demonstrated "intense confusion and consequent helplessness to differentiate between reality and fantasy. "(87) 

These findings, which are illustrative of the psychiatric and psychological evidence relating to the effects of cult membership, suggest that the State can demonstrate a substantial case, based on the risk to mental health, for interference with the cult functions that result in such effects. 

(ii) Guilt, suicide, and self-mutilation: Cults have been found to utilize intensive exploitation of guilt to induce compliance, enhance their control over converts, and facilitate a break with the past.(88) Ex-cult mem bers also may experience personal guilt for having lied to their friends and family, or for having assisted in recruiting new members into the sect. Aftereffects related to guilt include terrifying dreams," often of suffering an illness or accident as punishment for having left the cult.' 

While in the cult, the forced preoccupation with guilt and damnation drives some members to engage in self-mutilative behavior, (91) sometimes as demonstrations of faith. One youth committed suicide by lying down on the tracks in the path of an oncoming train after running away from a Unification Church training center. (92) Physicians and residents of Duchess County, New York, site of one of Reverend Moon's training centers, have noted the large number of trauma cases and suicide attempts seen in local hospitals.(93) Activities at the center were reported to be under investigation by the county's district attorney. (94) 

The Unification Church teaches that the individual must "pay indemnity" for his sins, which include thinking evil thoughts. An individual who discovers himself to owe indemnity is required to do something painful ,(95) such as forfeit a night's sleep. One who wishes to become a core member of the Unification Church must fast at least 7 days.(96) Psychiatrists who have dealt clinically with ex-cult members find that the feelings of guilt and worthlessness induced by the cult experience are often long-lasting and can contribute to depression, feelings of impending doom, and apathy toward one's surroundings months after release. (97) 
(iii) Maturational arrest:(98) The limitations placed on language, thought, and experience; the loss of ego functioning; physical stress; and the forced acquiescence in the will of the leaders gradually reduce the decision making ability of cult members to such a degree that their behavior comes to resemble that of much younger persons.(99) As the developmental process ceases, the cult maintains the individual in a regressed state by "recapitulation of themes" from early stages of life. (l00) In this condition the possibilities for individual growth and development are severely impaired.(101) Oncebright university scholars have written letters of childlike simplicity to their siblings or parents. (102) Parents who have visited their offspring while in the cult have found them unable to make simple decisions. "A psychohistorically oriented physician has likened the processes involved to those exploited by a totalitarian society." Other psychiatrists believe some youths unconsciously use cult membership as a means to escape the responsibilities of adulthood. (105) Unaware of their own motivation, these youths became ensnared in an unreal world from which their "escape from freedom" is very difficult." 

(iv) Physical disease and injury: The health-threatening effects of a low-protein and very high-carbohydrate diet," insufficient amount of sleep, (108) overwork, (109) and substandard, cramped living conditions(110) are compounded by the belief, common to most cults, that medical science is useless and that illness is a sign of spiritual shortcomings. (111) In addition, a number of cults, including the Unification Church, encourage self-mortification as a means of purging the self of sin.(112) Members of one cult ingest dangerous substances in order to attain spiritual insights. (113) 

At a recent meeting convened by a United States Senator, statements were made concerning: an untreated eye condition'(114) (the young woman had been told her torn retina was an indemnity she must pay because her ancestor "was a peeping Tom"); an improperly set broken limb'(115) (the cult did not believe in doctors, so the boy's broken arm was set by other cult members); and an account of a young woman who suffered from an ovarian cyst so large that she appeared to be pregnant."' Other cult members suffered loss of feeling in their feet and toes from long hours of standing on street corners while fundraising or proselytizing."' One Hare Krishna follower, just after working in the streets, fainted in the presence of her visiting mother. On reviving, she told her mother that her body consisted of nothing but stool and urine and was of no concern to her."' Many members lost large amounts of weight,"' often accelerated by ritual fasting."' One colony was afflicted with hepatitis, which went untreated because Satan, not germs, was thought to cause illness.(121) Women ceased having menstrual cycles;(122) men suffered a slowing of facial hair growth (123) and loss of sexual interest.(124) One cult, until stopped apparently by publicity resulting from a number of deaths, ritualized the inhalation of the industrial solvent toluene, which they called "tell-u-all," in attempts to produce states of enlightenment. (125) 

Children born to cult members often suffer from neglect and inadequate medical attention. During a hearing conducted by a California legislative subcommittee, the runaway daughter of the leaders of the Alamo cult told of a case of a boy who died of malnutrition, colitis, and dysentery; medical advice had not been sought. (126) Another report described children with fevers of 104 to 105 degrees who were not permitted to be taken to the hospital and babies who were denied medication needed to combat disease. (127) Chronic vitamin deficiency and protein deprivation are common.(128) 

b. Impairment of autonomy: (129) One of the most striking outcomes of the cult indoctrination process, observed by psychiatrists, family members, and ex-cult members alike, is a severe impairment of autonomy and the ability to think independently. (130) A typical observation is that of an Arizona court psychologist that physiological debilitation, guilt, and anxiety "gradually reduce the decision-making process, the ego functioning, till the person almost becomes `autisticlike.' He doesn't go outside his little self-encapsulated beliefs," but instead accepts automatically the views and commands of the leaders. (131) Other observers have recounted that long-term cult members appear "zombie-like,"(132) or "programmed. "(133) Others described qualities such as a "glassy-eye stare," a "fixed facial smile," and stereotyped, robotlike responses.'(134)





Notice here how this big renowned professor at Jesuit Seattle University, Richard Delgado makes the distinction that jesuits are not a cult.
"In 'Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment' (Southern California Law Review, November 1977) Richard Delgado argues that it is possible to draw a line between the cults and other acceptable forms of recruitment and proselytizing. 'The first is that religious cults expose their indoctrinees to a greater variety of classic mind-control techniques than other groups do, and apply these with greater intensity. Jesuit and other training institutions may isolate the seminarinn from the rest of the world at various stages of the training period but the training does not involve physiological depletion nor does the order deceive the candidate concerning the duties required of members... the second answer concerns the end-state, or result, of religious mind control .... The legislative and judicial findings, first-person accounts by ex-cult members, case studies by psychiatrists and psychologists dispel any possibility of equating the effects of cult brain-washing with those of other groups and institutions. Television commercials may induce ennui and torpor but they rarely cause mental breakdows; Jesuit training rarely results in broken bones, scabies or suicide.'http://www.whyaretheydead.net/misc/Factnet/RI6.TXT


http://heinonline.org/HOL/LandingPage?handle=hein.journals/nyuls9&div=12&id=&page=




No comments: