evidence, however, that they feel under a similar duty of disclosure when proselytizing for new members. It would appear a simple matter to amend existing statutes to require the same disclosure by cults when they are recruiting new members as is required when they are fundraising

2 "Cooling off" Period

Other preventive remedies might include a mandatory "cooling-off"377 period in which prospective members are required to leave the group. During this time they could reconsider their situation, seek advice, and decide whether to return for additional indoctrination. Such a requirement would be more onerous in its effect on religious cults that practice thought control since it interrupts the continuity of the processStill, it-is-intrum ve only in that it affords an opportunity to leave to individuals who do not truly wish to join. Further, such a requirement is aimed at a group of individuals whose progress toward a condition of psychic servitude has proceeded further than that of individuals who are at the point of first contact with a recruiter. Hence, a slightly more intrusive remedy seems justified.

pressure tactics

378 See Dymally Hearing, supra note 16, at 120-21 (need for cooling-off remedy), Smith, supra note 62 (one youth, after spending a weekend at the camp, managed to be alone for several hours and decided not to return. "As soon as I had a chance to think, to analyze

what had happened and how everything was controlled, I felt free and alive again it was like a spell was broken"); Tampa Tribune, Feb. 7, 1976, at 3. col. 1 (ex-member reported that, with the help of her family and a deprogrammer, she realized she was disillusioned and struck by the absurdity of it all").

379 CNY Times, Oct. 14, 1974, at 37, col. I (Attorney General Lefkowitz asserts that alerting the public is one of the anticipated benefits of the Final Report on the Activities of the Children of God, LEPROWITZ REPORT, supra note 16), note 334 supra (Jesuil seminary candidaies encouraged to attend school for brief "ay-out" period; they then leave the seminary. reflect, and consider whether to return).

380 For the opinion that simple disclosure would prove helpful, see Vermont Hearings, Sup note 16, at 77-78 (college guidance professor and clergyman testified that "[if they told these young people the first time they saw them what it was all about, 99% would never go in. They would say that is a lot of hogwash ""); Vermont Senate Judiciary Committee, supra note 56, at 212 (comments on consideration of an ordinance requiring members of the Unification "Hubbard Church to wear identifying badges); cf. United States v. An Article or Device Electrometer," 333 F. Supp 157. 364-65 (D.DC 1971) (requiring labeling of Scientology EMeter equipment to protect public from unqualified scientific claims).

Note that, while there is a constitutional issue of free exercise of religion in each of the enumerated remedies, hese there is also an establishment-of-refigion issue The same caller boes of least onerous remedy apply to both issuES.

381 Es. U of R1 Daily. Apr 14, 1975, al 1 (reporting student senate vole to deny oncampus status to Collegiate Asa'n for the Research of Principles, a Unification Church front group, since this would not be in the best interests of the students'), SUNY Memo, suppo "must never be note 135 (denying campus status to Moon Group, and recommending that it granted S.A. [Student Association) recombee or any opportunity to function on campus' since it was considered harmful to students'").

mind control techniques. Such rules may be compared to existing quarantine statutes, under which the state acts to prevent contamination of outsiders by those known to have infectious diseases. Such a ban would also be similar in rationale to "snake cases and others which have upheld a public nuisance rationale to prevent exposing the public to harmful influences. Alternatively, the state's power to regulate in the interest of public health could be exercised to deny cults access to physically harmful b debilitating techniques used to facilitate mind control while tolerating their use of purely-psychological procedures such as guilt manipulation, isolation_devepugn and fear

5. Licensing

Another approach would utilize not outright prohibition, but the licensing power to forbid unqualified individuals from engaging in psychologically intrusive practices. Such practices could be considered examples of the illegitimate use of behavior modification techniques by persons who are not qualified psychologists or psychiatrists. Failure to abide by these restrictions would be punishable as practicing psychiatry or psychology without a license. Many states have such statutes and atleast one State Board of Psychology was reported to be developing rules relating to private use of behavior modification, intended to be applicable to religious mind control Because of the widespread concern over the proliferation of unlicensed encounter group leaders and lay therapists,388 such an application appears feasible.

382 E8, CAL HEALTH & SAFETY Cops $4 3050-3051 (West 1970); Mich. Comp. Laws | 329.1-3 (1970). 383 Eg, State ex rel Swann v. Pack, 127 S. W.2d 99, 112 (Tenn. 1975), cert. denied, 424 U.S. 954 (1976). See also Harden v. State, 138 Tenn. 17, 216 5. W.2d 708 (1968) (based on statute, rather than public nurance rationale). Although Swann has been criticized as overvalu ing a questionable state interest, 1976 WASH. U.L.Q 353, 362-63 (arguing that snake bites are less dangerous than the court assumed), and as failing to explore less restrictive alternatives, id. at 362, 365 (use of cages, prohibition of attendance by children and outsiders), these criticisms would not be applicable here if the state's interest in preventing harm is adequately substan tiated, see notes 46-206 and accompanying text supra, and the remedy selected represents the least onerous available, see notes 372-73 and accompanying text supra.

384. The state has the power to regulate activity in the interest of the physical health and well-being of its citizenry. See Prince. Massachusetts, 321 U.S. 158, 166-67, rehearing denied, 321 US 804 (1964), Jacobson v. Massachusetts, 197 U.S. 11, 23-26 (1905).

385. See Vermont Hearings, supra note 16, at 34 (suggesting such practices be in the hands of the medical profession under the aegis of the law). See generally notes 48-119 supra. 386 Licensing statutes, and their varying coverages, are discussed in Comment, Standard of Care in Administering Non-Traditional Psychotherapy. 7 U. CAL. D.L. Rev. 56. 77-81 (1974). These statutes fall into two prociped groups liveasing acts, which ban the unlicensed practice of psychology, and certification acts, which proscribe the use of certain titles or words in describing the services offered by unlicensed individuals. Licensing statutes generally include a comprehensive definition of the practice and forbid unlicensed persons from engaging in the activities falling under the defuntion. Id. at 77-78. For this reason, licensing statutes would constitute more effective bars to the unauthorized practice of behavior modification by cuits. Twenty states and the District of Columbia presently have statutes of this type. Id. at 78 & n. 148. In some of these states, practicing psychology without a license is a musdemeanor, and the unlicensed practitioner is held to the same standard of skill and care as one who is qualified to practice under the statute. Id at 78-79 la other states, the unixrased practitioner is conclusively presumed to be negligent and is not given the opportunity to show that the professional standard of care was met. Id. at 79.

187. Letter from David D. Blyth, President, Ohio State Board of Psychology. (Feb. 27, 1975) (on file with author). Ohio has a licensing-type statute, ser note 386 supra. Omo Rev. CODE ANN. 4732 21 (Page 1971).

388 Eg, Comment, supra note 186, at 62-67; Hearings on Abuses by Unregulated Therapists in the Mental Health Field, before Louis J. Lefkowitz, Attorney General of the State of New York (Dec. 15, 1972).

189. Compare CAL HEALTH & Safety Code ↑ 73R3-7195 (West Supp. 1977 termining “ withdrawal of medical case when aduil polient has directed, in advance, in writing, choe dèseres thus be done) with Kuiper, Die Proces of Euthanasia The Living Well A Propusat, LD. L. J. 139, 550-54 (1968).

A model instrument, prepared by a parents" obganization, reads as follows:
Kowall men by these presents, that I
employed'am studying at

~~~ years old, reside at being duty sworn depose and say t theshigh what I now know and scaberatangi tur! fraudulent methods and reasons. My true will was impaired by the group, and i was

psychologically atleted by

rescued should he come under the influence of a religious cult, together with a recitation that membership in any such group would be contrary to his wishes. This technique is sometimes used in connection with individuals who have recently left religious cults and are afraid that they might be tempted to rejoin the group in a moment of psychological weakness 390

Although it could be argued that this approach simply shifts the problem of ascertaining an individual's wishes to a more remote point-the moment when he signed the document-the procedure has the advantage that, properly used, it can avoid the problem of the deliberately altered personality whose profession of loyalty is itself programmed in. When used by ex-members, such living wills" can give courts an indication of what the signer's wishes were at a time when both knowledge and capacity were presumably unaffected by others. 391

Of course, nothing prevents cult leaders from requiring their followers to sign similar statements indicating that membership in the group is an individual's free decision, resulting in a potential "battle of the forms." Still, if it should appear to the court that the first document, unlike the second, was signed at a time when the individual was under no pressure and was making a free choice, the decision expressed by this document should be respected. This conclusion expresses an intuition that individuals should be permitted personal choices among possible futures and that these choices are entitled to legal protection against influences that can reverse such choices by making the individual less autonomous.392

i

Once the victim is inside the cult, extrication generally requires-forcible intervention, by either the state or a private individual, and the-remediesaccordingly become more, onerous. These may include self-help remedies, as well as actions in which various types of judicial assistance are sought.

1. Self-Help and Deprogramming

Prior to the development of conservatorship proceedings to remove cult victims from the group, the main remedy available to a parent or friend was self-help. This remedy is still used in jurisdictions where conservatorship and similar remedies are not available.

In self-help, the parents of a cult youth abduct the member from the cult residence or from a street corner, usually by force, and transport him to a home or motel room for deprogramming."a form of marathon encounter therapy designed to neutralize the effects of cult conditioning and restore the victim's mental independence." The deprogrammer, who may himself be

conditioned not to use my mind. I was led to believe that whatever was told to me, or ordered of me by my leaders was of God, and was taught to believe I should carry out the orders or wishes of the leaders without question.

I was living constantly under psychological control and at such time was not aware of said control. Оз I was rescued.. For the first time in I am able to think for myself and rationalize on my own. It is now my wish and desire to live the rest of my life without being denied by anyone the night to exercise my God-given right of freedom of choice. I love my family and am interested in mankind I once again feel like a useful member of society If in any event the or any other cult psycholog scally or physically kidnaps me or takes me back, I am requesting immediate action ny [sic] the authorities to come in and physically remove me from this cult as regardless of what I may say or do, I will not be acting of my own free will.

390

an ex-cult member, typically challenges the basis of the adherent's dependence upon and trust in the cult leaders and attempts to show him that he has been manipulated and duped. He may demonstrate that the cult leaders live in luxury a fact some members do not know-while the member's own standard of living and that of the rank and file members has

been extremely austere. He may point out inconsistencies in the cult's theological beliefs or attempt to show that they are contradicted by Biblical passages. He may also attempt to show that certain of the cult's teachings are false, such as that the young person's parents hate and reject him. Some deprogrammers adopt an abrasive and confrontational tone, although use of physical force appears to be rare. During the deprogramming the individual is not free to leave the room, excepi for sleeping and attending to personal needs. 400

The typical cult member at first responds passively, by chanting, or pretending not to hear what the deprogrammer is saying. Generally, however, the deprogrammer will succeed in engaging the individual's atten tion and will manage to draw him into an exchange-often an angry one." 402 Once the person "opens up," the deprogramming proceeds rapidly, as layers of false beliefs and programmed-in responses are peeled away." 433 Soon there comes a "breaking point," often a highly emotional scene during which the individual may laugh, weep, embrace the deprogrammer, or request to see his parents. At this point, the individual often expresses indignation at the cult for the theft of his mind and personality. After a successful deprogramming there usually follows a period of several months during which the individual undergoes a painful readjustment to life outside the cult. Until full integration occurs, the individual may experience

394 E... R. ENROTH, supra note 14, at 197; Danvers Herald, June 3, 1976, reprinted in ACLU DEPROGRAMMING CONFERENCE, supra note 157, at 43, 87.88 (citing number of deprorammed cult members who have joined deprogramming teams): LA Times, Jan. 3, 1977, pt. 1. at 1. col. 1, at 3. col 3. Some deprogrammers are priests or ministers, e... Jaffe à Nafsinger, supra note 226, at 3, col. 1.

395 See Vermont Senate Judiciary Committee, supra note 58, at 25-26, Clearwater Sun, Sept. 28. 1976, at 1-A, col. 1. reprinted in ACLU DEPROGRAMMING CONFERENCE, supra vænke 157, at 103-04, L.A. Times, Jan. 3, 1977, pt. 1, at 1, col. 1.

396. 397

Eg., R. ENROTH, supra note 14, at 79,T. PATRICK, supra note 27, at 12

T. PATRICK, supra note 27, at 25-26, 32, 67, 78; Gunther, supra note 21, at 16-17. Shapiro, tupra note 52, as 81; Tampa Tribune, Feb. 7, 1976, at 3, col. 1 (reading of complets texts of Biblical passages that had been presented out of context).

398. R. ENROTH, supra note 14, at 79-80 (parental love and communication as critical factors of deprogramming), Remsberg & Remsberg. The Rescue of Alison Cardais, Good HOUSEKEEPING, Apr. 11, 1976, at 109, 141 (critical aspect of deprogramming was parents' display of loval, Clear vater Sun, Sept. 28, 1976, 1A 1-A, cal. 1, nprinted in ACLU DEPCAL MING CONFERENCE, supra note 157, at 105, Interview with Cath, supra note 182 (importance of emphasizing love, and acceptance of youth's spiritual quest that prompted cult experience), ser T. PATRICK, supra note 27, at 34-36, 78-79 (parental love and affection is the critical point of the return process).

399. E.g.. T. Patrick, supra note 27, at 75, 78-79; Time, June 14, 1976, at 50; New Haven Advocate, Sept. 10, 1975, at 1, col. 2, at 6, col. 2 (Patrick speaks loudly, but "ail he does is try to get you to use your own mind " (statement of parent)). 400

gramming).

E.g.. T. PATRICK, supra note 27, at 68, 71-72, 97 (security arrangements during depro

402

E.g., id. at 60-61, 72; Gunther, supra note 21, at 17 (cult member finally began to nak questions and argue with her parents, "[t]hat's when I knew we had her back').

403. Eg.. T. Patrick, supra note 27, at 35, 79, 209. One technique deprogrammers may use is to play recordings and videotapes designed to show the victim more about the cults or cult leaders E.g.. Harayda, supra note 130, at 260 (deprogrammer played NBC documentary on Moon); ser R. Exroth, supra note 14, at 12, 34 (similarities among cults). But see Galper, supra note 62, at 2 (existence of a continuum of techniques applied and degree of isolation from previously established social support systems accomplished among various cults).

404. See Shapero, supra note 52, at 81-82 (medical professor describes process as "abreactive techniques" used to reinstate normal emotional and cognitive functioning).

405 Ser R. ENROTH, supra note 14, at 121 ("It's wonderful to be able to wake up in the morning and say. Thank God, I can do what I want today" "); T. PATRICK, 1upra note 27, at 79 (like waking up from a nightmare), Robins, supra note 100, at 37, 117 (thankful for his "freedom""); True, June 14, 1976, at 10 ("Telt as though a light had been turned on in the room and a banden lifted from my shoulders treaty was free'): Chicago Tribune, Aug 11, 1973, +3 (Tempo), at 1. col 2, at 3, col. 4 was like coming out of prison : My He had been

totally taken away. I was a robot. What a fantastic joy it was to be a person agma”).

406 Robits, pea note 100, at 37, 117 ("Boating" period following deprogramming); Open Jetter loom Morrin, supra note 22 (recovery process lasts up to one year, many are sick,

Although accurate estimates are difficult to obtain, it appears that approximately 1,000 deprogrammings have been attempted in the last few years, a majority of them successful. Perhaps partly because of their success, deprogrammers have been severely criticized by religious cults, who have filed both civil and criminal actions against parents and deprogrammers in several parts of the country 410 Law enforcement authorities frequently decline to proceed with charges on the ground that these are **family matters" best resolved outside the courts.411 In some cases, grand juries have refused to indict, and in one case, after hearing the evidence, a

grand jury decided instead to proceed with an indictment against the cult leaders for maintaining the youths in a state of unlawful imprisonment by psychological means.413

Critics of deprogramming argue that these methods amount to nothing less than an attack on freedom of religion," that they in themselves

constitute a brainwash, and that they promote violence as well as distrust between cult children and their parents. 417 Finally, some consider deprogramming to be simply a tool by which some parents seek to reassert their influence over children who reject them and their values.**

Defenders counter that strong measures are necessary to counteract the effects of months or years of conditioning," 41 and that virtually all those who

Open letter from Clark, supra note 105,

Interview with Cath, supra note 182.

459 T. PATRICK, supra note 27, at 37 (claiming over 1,000 deprogrammings); ACLU DEPROGRAMMING CONFERENCE, supra note 157, at 86-89 (majority of Hare Krishna deprogramthings listed were successful), Waters, supra note 15, at 100 (vast majority of more than 1,000 deprogrammings in recent years were successful); see ALL GODS CHILDREN, supra note 9, at 243, 252-74, 287; ACLU DEPROGRAMMING Conference, supra note 157, at 63-127.

410 Eg. United States Patrick, No CR.74120S (WD Wash Dec. 11, 1974) (deprogummer acquitted, defense of necessity upheld), Leal v. Trauscht, No 484579-9 (Alameda County (Cat.) Super CL, filed Aug. 20, 1976) (civil complaint for false imprisonment), People *. Florence, No. 8699 (Fullerton (Cal.) Mun. Ct. May 6, 1975) (deprogrammer convicted, parents fined).

411 T PATRICK, supre note 27, at 99, 192 (incidents where police took such an attitude), Telephone interview with MacPherson, fuera note 206 (on file with authur) (Canadiar police take a hands-off attitude toward deprogrammer's work; even absist in locating cult victims). 412 Interview with Patrick Wall, attorney, in New York, NY. (Apr. 5, 1976) (on file with author) (grand juries frequently refuse to indict).

41) Interview with Michael Schwed, Assistant District Attorney, in Queens, N.Y. (Dec. 29, 1976) (on file with author); see notes 509-16 and accompanying text infre 414. Vermont Hearings, supra note 16, at 123, 129, 137, 139, 153: Editorial Deprogramming and Religious Liberty, 29 Church & State 212 (conceding that cults may utilire unfair, high-pressure recruitment and indoctrination tactics, but arguing that the cure deprogram ming is worse than the disease).

413. ACLU DEPROGRAMMING CONFERENCE, supra note 157, at 5-8, 136, 138 (labelling Patrick's style as Inquisition-like).

416 See Letter from Michael Pancer, ACLU attorney, to H.C. (Sept. 7, 1973). But ser The Oregonian, May 17, 1977, at 4, col 1 (stories of violence in deprogramming described as cell propaganda to terrorize own members)

417 Eg. ACLU DEPrograming ComFERENCE, supra note 157, at 100 (attempted rescue caused conflict, breakdown in communications between cult youth and family): see ALL GODS CHILDREN, supra note 9, at 266 (deprogramming, if unsuccessful, can damage family relationship).

418 Brief for Respondents, People v. Sacks, supre note 30, Christian Sci. Monitor, Feb. 9, 1977, at 7, cols. 1, 2 (attorney states central issue of deprogramming is "the right to go to the church you want and not the church your momma wants you to"). See generally ACLU DEPROGRAMMING CONFERENCE, supra note 157, at 194, 201-07 ("The parents' desperation opens them to the deprogrammers' persuasions and any blame or guilt is shifted to whatever group the son or daughter may have joied Parents want to believe in brainwashing 19. badly because otherwise they have to admit to themselves that the kid they devoted 15 or 20 years to has rejected them and their values. That's a bitter thing for a parent to have to admit-Dr. Thomas Srast")

419 Eg.. LA. Herald-Examiner, Sept. 11, 1976, at AT col 2 (psychologist defends marathon technique as essential since culs indoctrinees "can hypnotize themselves by reciting chants of mantras," thereby destroying progress made in defirogramming). See also Vermont Hearings, rapra note 16, at 2: R. ENBOTH, supra note 14, as 79, Interview with Clark, supria note 101; note 467 infres (infrequency of voluntary departure from religious culta).

| complete deprogramming subsequently praise it and declare that without it their freedom would have been impossible. Deprogrammers assert that their methods do not seek to destroy religious belief, pointing out that many ex-cult members remain devout, although they may well reject the programmed-in values and catch phrases learned from the cult Deprogramming, they argue, seeks instead to release the individual from a state of psychological bondage which has nothing to do with true religious belief or practice. In response to the argument that deprogramming is simply a "second brainwash," they point out that deprogramming only attempts to return the individual to his former condition, it does not seek to implant new values, impose a new set of loyalties, or compel the young person to become a compliant son or daughter,

All agree that an attempt to utilize the therapeutic encounter to force the subject to accept his parents' control or values is illegitimate. A minority believe that encounter-type therapy may be unnecessary and that simple supportive therapy conducted in a neutral environment will permit the victim's personality to reassert itself in time.427 All agree that deprogramming must never include an attack on all religion or religious belief. 423

420

Note 405 supra Of course, it can be argued that the praise is itself the product of the deprogramming But an adequate response to this objection is that: (1) the deprogrammed individual understands his own deprogramming and can discuss intelligently and with full understanding the procedures used, notes 306-16 and accompanying text supra, (2) the proce dures are aimed at reinforcing, not bypassing or weakening, the individual's rational faculties, notes 99-103, 129-52 supra; (3) the individual views his present (deprogrammed) condition as the "natural" state, Le, as a return to the way he thought and felt formerty, see Shapiro, Legislating Control, supra note 1, at 255, 284, 303 See generally R. EnBOTH, supra note 14, at 95-96 (I would never have left on my own ... No way'), 120 ('I would have never left by myself").

421 R. ENROTH, supra note 14, at 80; T. PATRICK, supra note 27, at 77; ALL GODS CHILDREN, supra note 9, at 250-51, 289. But ter R. Euroth, supra note 14, at 34 (ex-cult member who did not undergo deprogramming, now is not concerned about religion"I've had an overdose "")

422 The Oregonian, May 17, 1977, at 4, col. 1 (statement of Margaret Singer, psycholo gist, that ex-cult members continue to be "deeply religious).

423 R. ENBOTH, supra note 14, at 195 (asserting that deprogramming is not a second brainwashing, deprogrammers do not use same techniques as cults, purpose of deprogramming is to "neutralize" coercive persuasion techniques and their effects). See also note 448 infra. 424 Interview with Clark, rupee note 101. See also ALL GODS CHILDREN, Exp note 9, al 240 (dangers of unqualified deprogrammers who "dabble in the vanity of... young people').

269

423. Letter from Cath, supra note 22 (suggesting that placing individuals in neutral atmosphere is designed to protect them from cult contact and domination).

426 Interview with Cath, supra note 182; Interview with Clark, supra note 101; Interview with Merritt, supra note 157.

427 Stoner & Parke, How to Rescue Your Child from a Cult, Oakland Tribune, June 19, 1977 (Magazine), at 18, col. 1. But tee ALL GODS Children, supra note 9, at 250.

428 Eg, Interview with Cath, supra note 182; Interview with Clark, supra note 101; Interview with Merritt, supra note 157; cf. T. PATRICK, supra note 27, at 82 (distinguishing cules and traditional region, implying that the list being attacked):

429. Upted States y Patrick, No CRH)S(WD. Wash Dec. H, 1974) (delcome 147) of necesbuy upheld), People Pack N320-778 (NYC CL Mar. 30, 1973); NY July 24, 1973, at 42, col. 1, noted in T. PATRICK, pra pote 27, a 179-80 With respond to i welawful imprisonment charges, the judge instructed the jury as follows:

[ you find that (culs member'al pasearmad the defendant were jusufted in theat belift that such indoctrination and domination by the New Testament Monary) Fellowship's elders was of a greater injury to Daniel than the conduct of the defendant and Daniel's parents, in taking dasiet from the publie streets and attempting to have

To be successfully asserted, the defense of necessity requires that the rescuer act under a belief that his intervention is necessary to avoid an evil greater than that likely to result from inaction. The purpose of the defense. is to prevent individuals from being forced to make a Hobson's choice: break the law, or obey the law and permit a greater harm." Accordingly, the remedy is not applicable where the actor has available a third choice that would have averted the evil without violating a statute. The defense is thus available only when a parent or other rescuer can demonstrate that no legal remedies were available. 435

Trial courts that have entertained such cases have split widely. Some, faced with expert testimony concerning the harmfulness of cult life, have permitted the defense to go forward. Others have denied the defendants an opportunity to present such a defense, often out of a concern that doing so would violate religious liberty. In those cases where the defense has been permitted to go forward, it generally appears to have been believed by the jury, as these cases have usually resulted in acquittal.439

Because of the development of remedies that do not require the parent to take the law into his own hands, it seems likely that the defense of necessity will recede in importance in the future. In the meantime, however, one observation may be made concerning its appropriate use.

The fear that permitting a defense of necessity uniquely raises first amendment problems is unnecessary. The harm that mind control techniques can cause has been documented in a number of legislative and

him deprogrammed by the defendant, then you may excuse the conduct of the defendant as it has been described to you.

People v. Patrick, N-320-778 (N.Y. Crim. Ct. Mar. 30, 1973), transcript at 4. The judge enumerated a number of considerations relevant to the jury's determination of a condition of * necessity that would warrant the parents' acts. These included domination by the elders of the youth's mental processes, severing of relationships with the world outside the cult, including the boy's parents, and instilling of fear of demons and guilt over past sins. Id. at 4A, 5. The defense of necessity has been rejected in a number of cases on various grounds. Eg.. People v. Pak, 541 P.2d 320 (Celo. 1975) (lower court refused to instruct jury on choice-of-evils defense because it is believed that, while there exusted danger to the young woman, there was no evidence of an imminent public or private injury on the day the action was carried out, Interview with John Smith, attorney, in Boulder, Colo. (July 2, 1976) (on file with author)); People v. Florence, No. 3599 Perple v Patrick, No. 8688, People v. Sacks, No. 8686, Court Transcript (Fullerton (Cal) Mun. Cl. May 6, 1975) (udge refused to permit defense of necessi ty, since doing so would infringe religious freedom and since the court would be unable to "draw the line between cult's beliefs and practices and those of other groups). MODEL PENAL CODE 3.02 (Proposed Official Draft, 1962),

430. 431 See statutes and cases collected in Arnoids & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 651 CRIM. L. & CRIMINOLOGY 289 (1974). 432 MODEL PENAL CODE 13.02(1) (Proposed Official Draft, 1962) (conduct which the actor believes to be necessary to avoid). Some states employ an "objective" standard in which the evil confronted must actually exceed the harm resulting from intervention. Eg.. N.Y. PENAL LAW 1 35.05(2) (McKinney 1975); see W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 381 (1972) (violation justified if the harm which will result from compliance with the law is greater than that which will result from violation of it"").

433.

See W. LAFAVE & A. SCOTT, supra note 432, at 381. If the child is an unemancipated minor, the parent may simply reassert his right to custody; indeed, the parent, if he knows his son or daughter is being exposed to hazardous conditions inside the cult, may be under an affirmative duty to rescue the child. W. PROSSER, supra note 156, § 56, at 342. For parents' right to control religious training of their minor children, see Wisconsin v. Yoder, 406 U.S. 205 (1972); West Virginia State Bd. of Educ. v. Barnette, 319 US. 624 (1943); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

434.

435.

W. LAFAVE & A. SCOTT, supra note 432, at 387.
Notes 434-76 and accompanying text infra.

436. See, eg, United States v. Patrick, No. CR-74-320-5 (W.D. Wash. Dec. 11, 1974) (upholding defense of necessity); People v. Patrick, No. N-320-778 (N.Y. Crim. Ct. Mar. 30, 1973), N.Y. Times, July 24, 1973, at 42, cols. 1, 2, reported in part in T. PATRICK, supra note 27, at 1.54-60

1-437. Sax, 2.8. People v. Florence, No. 89, Pedipla Patricia, No. 8688, People v. Sacks, No. 8666, Court Transit (Fullerton (Cal) Mtn. CT. May 6, 1975); People v. Patrick, $41 28

443

hear statements that have not already appeared elsewhere. Moreover, defense of necessity will not ordinarily be aimed at religious belief such, but rather at practices that are utilized to expand the numbers power of groups that happen to be religious. Religious practice or conc has historically been afforded a much lower standard of protection t religious belief and is subject to a balancing test in which the harmfulnes the practice is weighed against the interest of the group in practicing i This inquiry, which courts have pursued countless times, involves"< siderations no different from those likely to be considered in a defens necessity.

Permitting the defense to go forward thus raises no insurmount problems under first amendment doctrine. The defense will involve bea expert testimony by psychologists, psychiatrists, and ex-cult members regard to the practices of the group in question. The judge can easily bar material he deems scandalous, extraneous, or prejudicial.

b. Assessment of deprogramming: Whether pursued through 1 channels or as part of a self-help rescue attempt, deprogramming or e similar forms of confrontation therapy may well prove to be the only certain victims can be retrieved from a state of mind control. If so, therapy will best avoid conflict with first amendment principles if

443. 444

Note 42 and accompanying less Empra.

Although there are clear differences between deprogrammers and cut conditi both in motives and methods, as well as in the type of changes that each produces, there number of disconcerting similarities, particularly in case of lay deprogrammers such a Patrick. Physical or legal coercion is necessary to the beginning of a deprogramming. f cult member cannot be induced to enter into the process voluntarily. Deception is som used to initiate contact between the deprogramming team and the subject. Deception w employed during the deprogramming itself; Tod Patrick, for example, sometimes tells cultists that the process may take months, when in fact it is normally accomplished in hours or days. T. PATRICK, supra note 27, at 24-25. Deprogramming, like cut conditionin only be accomplished in a controlled environment. Locked rooms are essential, and val room is located on an upper story, all windows are sealed to prevent escaps. The sha protests of the subject must not be heard by police or passersby who might choose to int and disturb the deprogramming. At times, Ted Patrick limits the hours of sleep of his su allegedly in order to provide greater continuity to the process. Id. at 76-77; ALL GODs, DREN, supra note 9, at xiv (cult members reported being "deprived of sleep").

At times, some deprogramers adopt a totalist view toward the cult, reminiscent "we-they" attitude of cults toward life outside the commune. Positive aspects of cult m ship, if there are any, are ignored, and the ideals and leaders of the cult are ridiculi attacked. The deprogrammer may tear up images of the cult's leader, T. PATRICK, supe 27, at 189, draw a Devil's caricature on his photograph, id. at 24, or insult him ("Moon is { ...and you're nothing but a male prostitute," id. at 23). Practices such as trance-like d or speaking in tongues are mimicked and mocked.

Ted Patrick sometimes accompanies psychological attacks with the use of physical Though he argues that these actions are used only in response to violence by the subjec may also be used to frighten him into paying attention. The deprogramming of on Krishna member, for example, began with the forcible cutting of his pigtail, the a membership. Id. at 187.-8.

The manipulation of guilt and anxiety that characterizes cult indoctrination also counterpart in Ted Patrick's arsenal. The subject's feelings of guilt toward his fam sometimes stirred up and pressed by the deprograminer. Id. at 33-36. Guilt over fai achieve in life may be exploited by the deprogrammer's charges that the cultist in throm life away. After the "breaking point" is reached, the young subject is kept away fre associations and kept busy, preferably in the company of other ex-cuit members in o establish peer pressure to continue to reject the cult. It is even thought, by Patrick, "[k]eep him away from the Bible." Id. at 35.

Patrick's methods are clearly among the most extreme and are rejected by man deprogrammers. See notes 425-28 supra. Even so, it must be conceded that there a differences between his approach and that of religious cults.

The intent in deprogramming is to produce an autonomous individual able to make i dent choices. The deprogrammer-and, generally, the parens as well-does not control of the subject after the procesa id finished. There is hot continuing financial jai deprogrammer, even though he may the recaived several thousand delus for a fe work Parental motivés ir déprogramming that of libos Ba Mita uzmeščak, parefentigly exert pressure on the child to become conforme or achieveraens-curiented. In general, mon parents appear ip tolerate deviant lifestyles

be freely chosen by the individual. +

קק

maintained within certain guidelines:

(1) Involuntary deprogramming should not proceed unless there has been a prior judicial determination that the individual is incompetent or under mind control. 445

(2) Therapy should not proceed until milder measures, including removal to a neutral environment for a period of time, have failed.446

(3) Therapy should not be aimed at destroying or questioning the content of the individual's religious beliefs or the truth value of such beliefs 447

(4) Therapy should not be aimed at reuniting the individual with his parents or at convincing him to adopt a conventional set of values or lifestyle.44

(5) Therapy should be terminated as soon as it becomes apparent that the individual has been freed of mental restraints and is able to accept or reject further treatment."

(6) If the therapist perceives that the individual has recovered his freedom of choice and is physically able to function outside the treatment site, the therapist should ask the individual where he chooses to go and offer to assist him in making travel arrangements. If the therapist feels it desirable to ask the individual if he would like to return to his parents, he should also ask him whether he wishes to return to the cult. He should make clear to the individual that he is free to go wherever he chooses. 450

(7) If the therapist believes the individual would be helped by participation in group counseling with other ex-cult members, he should first ascertain that the orientation of any group he recommends is therapeut ic, rather than political or dogmatically anticult.45

445. See notes 454-76 and accompanying text infra (description of conservatorship-guardtanshup remedy).

446

Christian Sci Monitor, Feb 9, 1977, at 7, cols. 1, 2 (author proposes that conser:

vatorship remedy could be made fairer by requiring that young cultists "be placed in a neutral environment where they can't be propagandized by either side").

447 An assault on religious belief-as opposed to conduct-would, of course, be subject to the most intense scrutiny. Cantwell v. Connecticut, 310 US 296 (1940); ser note 42 supra. It could be argued that the Constitution's protection of free exercise of religion should be understood to include only religion that is chosen freely-i e, that the phrase "free exercise of reigos" means "exercise of free relpon. See notes 265-67 and accompanying text supra Peffersonian view of religious freedom), cf. United States v Jakobson, 325 F 24 409, 415 (24) Cir. 1963) ("The freedom which the Constitution protects is the freedom to exercise the religion of one's choice").

Thus assertion gains plausibility from he observation that the values implan ed in the victim could just as easily be ideological, see HEARST, supra note 6 (military-political); note 4 supra (POW cases), or those of a drug-criminal subculture, see BUGLIOSI, supra note 1. Conscientious objector cases, however, demonstrate that religious values are sui generis and not interchangeable with political values, economic theories, philosophical systems, or a merely personal moral code Welsh v. United States, 398 US 333, 342-44 (1970): United States v. Seeger, 380 U.S. 163, 165-66 (1965). Since the values implanted as a result of cuft conditioning are, at their inception, interchangeable with these other nonprotected belief systems, it could be argued that it is anomalous to afford them any greater protection once implanted into the mind of the nonconsenting recipient. See note 242 supro

Even if the values implanted are held to be religious and hence protectible, it may appear impossible to determine whether they are the victim's own. See HEARST, supra note 6, at 258, 260, 288 (forced adoption of an alternate personality), text accompanying notes 306-23 supra (identity change in cult members).

Since most deprogrammers claim to avoid any direct attack on religious belief, these arguments could only be tested in the presumably rare case in which a deprogrammer exceeded the usual bounds and set out to obliterate an adherent's religious belief itself.

448 One clinical psychologist writes that it is essential for the deprogrammer to resist the possible pressure from parents or others that the child be "re-programmed," rather than deprogrammed. "I feel a clinical obligation to permit the ex-cult member the opportunity to choose whatever value system be desires so long as he is utilizing ego functioning and is testing out reality and not responding to a socially-induced psychotic state." Letter from Gilmartin, supra note 88. Ensuring that deprogramming is carried out only by trained profes sionals and under the supervision of the court can limit the possibility that deprogramming will perve degitimate or above cock.

449 CF Kat. The Right to Treatment--An Enchanting Lifat Fiction", 36 U. Cht. L. Rev. 755, 778-79 (1969) (discussing suggestion that treatment of incompetents should centime only until they are able to understand their condition and accept of reject further treatment) 430 Cf Letter from Gilmartia, supra note 88 (youth should be free to choose whatever value system he desires).

431 Some rehabilitation centers" are cesters of amicul activity as well. E g.. ALL GOS "CHILDREN, supra note 9, at 285 (many 7** programs. serve simply to keep the subject

All states have mental health, probate, or conservatorship provisions that permit family members, interested persons, or the state to take control over an incompetent person. Sometimes these provisions also provide for temporary or emergency guardianships or conservatorships of brief duration following a hearing at which the moving party establishes the individual's need for protection.455 At the end of the period, typically 20 or 30 days, the individual and his guardian or conservator reappear in court, at which time the judge decides whether the control should continue. 456

Beginning in 1975, a team consisting of a court psychologist and two attorneys working for the prosecutor's office in Pima County, Arizona, have utilized conservatorship proceedings to achieve the release of nearly two dozen cult members pursuant to legal process. The prosecutors help families obtain a writ of habeas corpus ordering the cult authorities to produce the member for a court hearing on the issue of the member's competency. In order to prevent the cult's hiding the victim or transferring him to a distant commune, local sheriff's deputies may serve the writ without advance notice and in the early morning hours. Then, testimony on radical behavioral and mentational changes is given to persuade the judge to issue a temporary conservatorship order. During the ensuing conservatorship period, the cult member is questioned by a hired deprogrammer working under the direction of the court psychologist.462 At the end of the period, the member is free to return to the cult. Of the first nearly two dozen members deprogrammed, only one has chosen to return. The procedure has been upheld by local courts in Arizona," although challenges are in

454 455.

See id at 266-302 (collection of state statutes).

CAL PROB. CODE 2201 (West Supp. 1977) (temporary conservatorship of the person of an incompetent in emergency situations), UNIFORM PROB Coos 15-310 (temporary guardian ship for period not to exceed 6 months); C.JS Guardian and Ward 11, at 28 (temporary guardianships). Some judges have ordered temporary conservatorships in cult cases even in the absence of a statute, under the inherent powers of the court" to protect those under disability. Eg., Wash. Post, Oct. 10, 1976, at B-1, col. 1 (description of situation in which judge appointed a temporary guardianship) reprinted in ACLU DEPROGRAMMING CONFERENCE, supra note 157, at 166. At the time of writing, the Vermont legislature, after extended hearings, see generally Vermont Hearings, supra note 16, was reported to be considering enacting a temporary conservatorship statute that would enable parents or friends to extricate cult children ensnared in psychologically harmful environments. Telephone interview with Eric Schuppia, attorney, at Essex Junction, Vt. (Nov. 14, 1977) (on file with author). Several other states were reportedly considering similar legislation, N.Y. Times, Feb. 6, 1977, at 27, col. 1, and a bill was being drafted in Congress aimed at preventing psychological enslavement, id. See also NEWSWEEK, Feb. 21, 1977, at 44 (at least three states in addition to Vermont are considering conservatorship statules),

456. See, e... CAL PROB. CODS H 1754, 2201 (West Supp. 1977).

457. Eg. In re Petri, No. NCP 52679 (L.A. County (Cal.) Super. Ct. Mar. 1, 1976); In re Coleman, No. 16386 (Mendocino County (Cal) Super Ct. Dec. 3, 1975); In re Surber, No. G 946 (Pima County (Ariz) Super Ct Oct 24, 1975).

458

U.S. News & WORLD REP, June 14, 1976, at 53-54; Christian Sci. Monitor, Feb. 9, 1977, at 7. col. 1, 2, JA, Times, Jan. 3, 1977, pt. 1. &t t, col. 7, as 3; cod. 1. Letter from Trauscht, rupe nato 253. –

439 Us Nowa Woald Ren, sapee note 458, fans rece^el j 250 10

461 Id