NCJ Number
47058
Journal
Criminal Law Bulletin Volume: 13 Issue: 5 Dated: (SEPTEMBER-OCTOBER 1977) Pages: 341-382
Date Published
1977
Length
42 pages
Annotation
BRAINWASHING, COERCIVE PERSUASION, DURESS, AND MENTAL INCAPACITY ARE DISCUSSED AS A DEFENSE OF EXCULPATION OR MITIGATION OF CRIMINAL LIABILITY WITHIN THE CONTEXT OF THE TRIAL OF PATTY HEARST (1975).
Abstract
THE MAIN ISSUE IN THE TRIAL WAS WHETHER HEARST HAD VOLUNTARILY PARTICIPATED IN A ROBBERY OR WHETHER SHE WAS FORCED TO PARTICIPATE EITHER UNDER THREATS OF DEATH OR AS A RESULT OF BELIEFS INCULCATED IN HER THROUGH INDOCTRINATION BY HER KIDNAPPERS. BRAINWASHING IS NOT RECOGNIZED AS A LEGAL DEFENSE, AND ALTHOUGH THE TERM BRAINWASHING WAS NOT USED OR DEFENDED TO ANY EXTENT DURING THE TRIAL, THE JURY REJECTED THE IMPLIED BRAINWASHING DEFENSE AND CONVICTED HEARST. THE HISTORICAL BACKGROUNDS OF THE TERMS BRAINWASHING, COERCIVE PERSUASION, AND FORCED COERCION ARE REVIEWED, PARTICULARLY THEIR RISE TO POPULARITY DURING THE KOREAN WAR. THE ENVIRONMENT OF CAPTIVITY, ISOLATION, FEAR, AND REPETITION, WHEN COMBINED WITH STRESS, CONFUSION, AND DEPENDENCY, APPEARS TO HAVE BEEN A MAJOR FACTOR IN INDUCING COLLABORATION BY THE AMERICAN PRISONERS WITH THEIR KOREAN CAPTORS. THE CONCEPTUAL CONFLICT BETWEEN COERCIVE PERSUASION AND A DURESS DEFENSE IS EXAMINED PARTICULARLY AS IT APPLIED IN THE HEARST CASE TO HER ACTION DURING THE ROBBERY AND HER SUBSEQUENT LACK OF ESCAPE ATTEMPTS. IT IS SUGGESTED THAT BECAUSE OF THIS CONFLICT AND BECAUSE OF THE RATHER STRINGENT LIMITATIONS PLACED ON SUCH DEFENSES, IT MIGHT BE PREFERABLE TO RELY ON A MENTAL IMPAIRMENT THEORY. A MODEL OF COMPELLED CONVERSION IS PRESENTED CONSISTING OF THREE STAGES: A LOOSENING AND BREAKDOWN OF THE CAPTIVE'S EXISTING BELIEF SYSTEM; REPLACEMENT OF THE LOST BELIEF SYSTEM WITH THAT OF THE CAPTORS; AND RETURN TO THE ORIGINAL SYSTEM FOLLOWING RELEASE FROM CAPTIVITY. THE MENTAL IMPAIRMENT DEFENSE DOCTRINES ARE REVIEWED AS THEY PERTAIN TO COERCIVE PERSUASION. NEITHER THE STANDARDS FOR INSANITY OR UNCONSCIOUSNESS COVER COERCIVE PERSUASION. NOR CAN COERCIVE PERSUASION BE FITTED UNDER THE RUBRIC OF DIMINISHED CAPACITY. IT IS PROPOSED THAT SINCE COERCIVE PERSUASION DOES NOT FIT UNDER THE EXISTING DEFENSES, COERCIVE PERSUASION SHOULD BE VIEWED AS A MITIGATING FACTOR DURING SENTENCING. THE DEFENDANT WOULD BE SENTENCED ON THE BASIS OF A CONSIDERATION OF THE SUSCEPTIBILITY TO COERCED PERSUASION, THE SEVERITY OF THE OFFENSE, THE AMOUNT OF COERCION INVOLED, AND THE OPPORTUNITY TO AVOID THREATENED HARM. KOREAN WAR CASE LAW IS REVIEWED AS PRECEDENT FOR SUCH A POLICY, AND THE IMPLICATIONS OF THIS POLICY FOR DETERRENCE, PUNISHMENT, AND REHABILITATION ARE BRIEFLY EXAMINED. (JAP)