12 International Journal of Cultic Studies ■ Vol. 9, 2018
product could be magazine subscriptions or any
other goods.
169F
170 Their technique could be door-
to-door sales or word-of-mouth.
170F
171 The
destructive nature of this category of cults is in
the leaders’ treatment of the salespeople.
171F
172 The
salespeople are often manipulated through fear,
guilt, and sometimes physical and sexual abuse
into selling products to the public to create
revenue for the cult.
172F
173
D. Cults and the Law
Court cases reveal two legal impediments to
prosecuting cult leaders and defending
vulnerable adherents. First, U.S. law strongly
protects religion.
173F
174 Second, U.S. evidence rules
generally impair prosecutors’ ability to introduce
evidence of brainwashing and coercion.
174F
175
1. U.S. Law Strongly Protects Religion
In the United States, every person has the right
to freely believe in and practice the religion of
his or her choice.
175F
176 Furthermore, any religious
group has the right to persuade and attract new
members to its ranks.
176F
177 This Constitutional
right to freedom of religion has, at times, been
misinterpreted.
177F
178
Although the First Amendment, which describes
the freedom of religion, is laudable in its
conception, deference to this constitutional right
has impeded legal intervention when cults tilt
towards destructiveness.
178F
179 An American court
has professed, “[t]he right to the free exercise of
religion unquestionably encompasses the right to
preach, proselyte, and perform other similar
170 See id.
171 See id.
172 See id.
173 See id.
174 American jurisprudence stems from the constitutional tenet of
free exercise of religion. U.S. CONST. amend. I.
175 See discussion infra.
176 U.S. CONST. amend. I see also Laura B. Brown, Note, He
Who Controls the Mind Controls the Body: False Imprisonment,
Religious Cults, and the Destruction of Volitional Capacity, 25
VAL. U. L. REV. 407, 410−11 (1991).
177 McDaniel v. Paty, 435 U.S. 618, 626 (1978) Brown, supra
note 174.
178 See MARCI A. HAMILTON, GOD VS. THE GAVEL: THE PERILS OF
EXTREME RELIGIOUS LIBERTY 18−21 (2d ed., Cambridge Univ.
Press 2014).
179 See HASSAN, supra note 55, at 316.
religious functions.”
179F
180 Courts have protected
persons’ freedom to practice their religion, as
our Constitution provides, but at what cost?
180F
181
While defending religious liberty is a right that
Americans should be proud to protect, the right
to proselytize should have limits. Similarly, the
right of religious leaders to preach to followers
should be within the bounds of common
dignity.
181F
182
As an illustration, former members of the
Unification Church brought an action against the
Church for fraud, false imprisonment, and
intentional infliction of emotional distress.
182F
183
Although the court was sympathetic to claims of
fraudulent inducement to join the Church, the
court stopped short of granting the plaintiffs a
remedy.
183F
184 In considering (in dicta) whether to
criminalize brainwashing, the court found such a
solution too “coercive” because it “could result
in the jailing of church members” and “would
clearly impose a greater burden on religion than
would civil tort liability for fraud.”
184F
185
2. U.S. Evidence Rules Generally Impair
Prosecutors’ Ability to Introduce Evidence of
Brainwashing and Coercion
The flip-side of prosecution also presents
challenges. Those further down the command
ladder of a cult have been unable to rely upon
undue influence or brainwashing as a defense
against prosecution for their criminal actions.
185F
186
For instance in 1974, Patty Hearst was captured
by the cult known as the Symbionese Liberation
180 McDaniel, 435 U.S. at 626.
181 See Scheflin, supra note 53, at 75.
182 See Michael D. Langone, Cults, Evangelicals, and the Ethics of
Social Influence, 2 CULTIC STUD. J. 371−88 (1985) (advocating
that “evangelism, if practiced according to Christian tenets, should
be ethical”).
183 See Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988), cert.
denied, 109 S.Ct. 2110 (U.S. May 22, 1989).
184 See id (“A government action burdening free exercise, even
though justified by a compelling state interest, is impermissible if
any action imposing a lesser burden on religion would satisfy that
interest.”).
185 Id. at 61 (Criminalizing brainwashing may not produce the best
result, anyway. If the cult recruiter has also been subjected to
brainwashing, then perhaps the remedy does not fit the target.).
186 See HASSAN, supra note 55, at 313 (blaming the American
Civil Liberties Union for being on the wrong side of these
litigations).
product could be magazine subscriptions or any
other goods.
169F
170 Their technique could be door-
to-door sales or word-of-mouth.
170F
171 The
destructive nature of this category of cults is in
the leaders’ treatment of the salespeople.
171F
172 The
salespeople are often manipulated through fear,
guilt, and sometimes physical and sexual abuse
into selling products to the public to create
revenue for the cult.
172F
173
D. Cults and the Law
Court cases reveal two legal impediments to
prosecuting cult leaders and defending
vulnerable adherents. First, U.S. law strongly
protects religion.
173F
174 Second, U.S. evidence rules
generally impair prosecutors’ ability to introduce
evidence of brainwashing and coercion.
174F
175
1. U.S. Law Strongly Protects Religion
In the United States, every person has the right
to freely believe in and practice the religion of
his or her choice.
175F
176 Furthermore, any religious
group has the right to persuade and attract new
members to its ranks.
176F
177 This Constitutional
right to freedom of religion has, at times, been
misinterpreted.
177F
178
Although the First Amendment, which describes
the freedom of religion, is laudable in its
conception, deference to this constitutional right
has impeded legal intervention when cults tilt
towards destructiveness.
178F
179 An American court
has professed, “[t]he right to the free exercise of
religion unquestionably encompasses the right to
preach, proselyte, and perform other similar
170 See id.
171 See id.
172 See id.
173 See id.
174 American jurisprudence stems from the constitutional tenet of
free exercise of religion. U.S. CONST. amend. I.
175 See discussion infra.
176 U.S. CONST. amend. I see also Laura B. Brown, Note, He
Who Controls the Mind Controls the Body: False Imprisonment,
Religious Cults, and the Destruction of Volitional Capacity, 25
VAL. U. L. REV. 407, 410−11 (1991).
177 McDaniel v. Paty, 435 U.S. 618, 626 (1978) Brown, supra
note 174.
178 See MARCI A. HAMILTON, GOD VS. THE GAVEL: THE PERILS OF
EXTREME RELIGIOUS LIBERTY 18−21 (2d ed., Cambridge Univ.
Press 2014).
179 See HASSAN, supra note 55, at 316.
religious functions.”
179F
180 Courts have protected
persons’ freedom to practice their religion, as
our Constitution provides, but at what cost?
180F
181
While defending religious liberty is a right that
Americans should be proud to protect, the right
to proselytize should have limits. Similarly, the
right of religious leaders to preach to followers
should be within the bounds of common
dignity.
181F
182
As an illustration, former members of the
Unification Church brought an action against the
Church for fraud, false imprisonment, and
intentional infliction of emotional distress.
182F
183
Although the court was sympathetic to claims of
fraudulent inducement to join the Church, the
court stopped short of granting the plaintiffs a
remedy.
183F
184 In considering (in dicta) whether to
criminalize brainwashing, the court found such a
solution too “coercive” because it “could result
in the jailing of church members” and “would
clearly impose a greater burden on religion than
would civil tort liability for fraud.”
184F
185
2. U.S. Evidence Rules Generally Impair
Prosecutors’ Ability to Introduce Evidence of
Brainwashing and Coercion
The flip-side of prosecution also presents
challenges. Those further down the command
ladder of a cult have been unable to rely upon
undue influence or brainwashing as a defense
against prosecution for their criminal actions.
185F
186
For instance in 1974, Patty Hearst was captured
by the cult known as the Symbionese Liberation
180 McDaniel, 435 U.S. at 626.
181 See Scheflin, supra note 53, at 75.
182 See Michael D. Langone, Cults, Evangelicals, and the Ethics of
Social Influence, 2 CULTIC STUD. J. 371−88 (1985) (advocating
that “evangelism, if practiced according to Christian tenets, should
be ethical”).
183 See Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988), cert.
denied, 109 S.Ct. 2110 (U.S. May 22, 1989).
184 See id (“A government action burdening free exercise, even
though justified by a compelling state interest, is impermissible if
any action imposing a lesser burden on religion would satisfy that
interest.”).
185 Id. at 61 (Criminalizing brainwashing may not produce the best
result, anyway. If the cult recruiter has also been subjected to
brainwashing, then perhaps the remedy does not fit the target.).
186 See HASSAN, supra note 55, at 313 (blaming the American
Civil Liberties Union for being on the wrong side of these
litigations).
