NCJ Number
53192
Journal
Minnesota Law Review Volume: 63 Issue: 1 Dated: (NOVEMBER 1978) Pages: 1-33
Date Published
1978
Length
33 pages
Annotation
A DEFENSE BASED ON THE CONCEPT OF TRANSFERRED OR SUPERIMPOSED MENS REA--MENTAL STATE--IS PROPOSED FOR CASES, SUCH AS THAT OF PATRICIA HEARST, IN WHICH THE DEFENDANT HAS BEEN BRAINWASHED.
Abstract
THOSE WHO HAVE CONSIDERED THE PROBLEM OF THE COERCIVELY PERSUADED DEFENDANT HAVE CONCLUDED, LARGELY ON THE BASIS OF THE HEARST CASE, THAT NO LEGAL DEFENSE IS AVAILABLE TO SUCH INDIVIDUALS. HOWEVER, IF PUNISHMENT OF THE BRAINWASHED DEFENDANT CONFLICTS WITH BASIC INTUITIONS AND WITH JUSTIFICATIONS ADVANCED FOR INVOCATION OF CRIMINAL PUNISHMENT, YET CANNOT BE AVOIDED UNDER ANY EXISTING DEFENSE THEORY, IT BECOMES NECESSARY TO FASHION A NEW DEFENSE THEORY. TRADITIONALLY, MENS REA ANAYSIS HAS INQUIRED ONLY WHETHER A DEFENDANT POSSESSED THE REQUISITE STATE OF CRIMINAL MIND AT THE TIME OF THE ACT. IN THE CASE OF THE COERCIVELY PERSUADED DEFENDANT, IT IS APPROPRIATE TO ASK ALSO WHETHER THE INTENT THE ACTOR POSSESSED WAS THE ACTOR'S OWN. THE VICTIM OF THOUGHT REFORM TYPICALLY COMMITS CRIMINAL ACTS FULLY AWARE OF THEIR WRONGFULNESS, AND WITHOUT OVERT COERCION. BUT IN AN IMPORTANT SENSE THE ACTOR'S MENTAL STATE MORE APPROPRIATELY IS ASCRIBED TO THE CAPTORS WHO INSTILLED IT IN THE ACTOR FOR THEIR OWN PURPOSES. A CASE EXAMPLE IS PRESENTED IN WHICH CHARACTERIZATION OF A PERSON'S ACTIONS AS STEMMING FROM AN INTENT OTHER THAN THE PERSON'S OWN SEEMS INTUITIVELY PLAUSIBLE. VARIOUS EXISTING LEGAL DOCTRINES ARE THEN REVIEWED TO ASCERTAIN THE EXTENT TO WHICH CONCEPTS ANALOGOUS TO TRANSFERRED OR SUPERIMPOSED MENTAL STATES HAVE BEEN APPLIED TO RELIEVE THE ACTOR OF LIABILITY IN OTHER CONTEXTS. THE NOTION OF IMPLANTED MENS REA OFFERS, BOTH INTUITIVELY AND DOCTRINALLY, A TENABLE BASIS FOR A NEW CRIMINAL DEFENSE, AND CRITERIA FOR DETERMINING WHEN A TRANSFER OF MENS REA HAS OCCURRED ARE OFFERED. POSSIBLE OBJECTIONS TO THE NEW DEFENSE, INCLUDING THE CRITICISMS THAT IT WOULD HAVE NO CLEARLY DEFINED BOUNDARIES AND WOULD DESTROY THE CONCEPT OF FREE WILL THAT UNDERLIES THE CRIMINAL JUSTICE SYSTEM, ARE ADDRESSED. IT IS CONCLUDED THAT THE DEFENSE MAY BE APPLIED WITHOUT ERODING THE ASSUMPTION OF FREEDOM OF WILL OR OPENING THE FLOODGATES TO EVERY DEFENDANT WHO HAS BEEN SUBJECTED TO SOME DEGREE OF PERSUASION. AMONG FORESEEN BENEFITS IS THE LIKELIHOOD THAT, THROUGH THE FORUM OF CRIMINAL TRIALS, THE DEFENSE WOULD HEIGHTEN SOCIETY'S AWARENESS OF THE NATURE AND EFFICACY OF COERCIVE PERSUASION TECHNIQUES, THEREBY PROMOTING CONSIDERATION OF THE PREMISES UNDERLYING EXISTING CONCEPTS OF CRIMINAL RESPONSIBILITY. REFERENCES ARE FOOTNOTED FOR REBUTTAL, SEE NCJ-56342. FOR RESPONSE TO REBUTTAL, SEE NCJ-56343. (AUTHOR ABSTRACT MODIFIED--LKM)