No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 April 2015
The venerable law of tort has emerged as an important legal weapon in the long history of church-state wars and religious persecution. Religious groups are being sued for millions of dollars in damages for intangible emotional injury and tens of millions more in punitive damages, all for what looks very much like their free exercise of religion. Unlike criminal sentences which are carefully circumscribed by statute, civil damages, particularly punitive damages, can pose an invitation to each jury to become both lawmaker and enforcer, free to impose a monetary sanction practically without limit.
Until recent years, no one imagined that these powers could or would be brought to bear upon churches for religious activities. Today, however, lawsuits are routinely filed that label as fraud, false imprisonment, or the intentional infliction of emotional distress, such fundamentally religious activities as conversion of new church members, the discipline and excommunication of wayward adherents, and pastoral counseling. Clerical scandals and debates over the application of church rules are brought before people wearing judicial robes, not clerical vestments.
If these once sacrosanct domains are being declared fair game for litigation against traditional religious institutions such as the Catholic Church and the major Protestant denominations, how much more have the imaginations of plaintiffs and their lawyers been active in dealing with the “new religions” or “cults,” such as Krishna Consciousness, the Unification Church, Scientology, The Way International, and Seventh-Day Adventists. Affiliation with those new religions has been called kidnapping and their most fundamental religious practices have been branded “coercive persuasion” and “brainwashing.”
1. First amendment protection of religious freedom derives from the establishment and free exercise clauses of the U.S. Constitution. These clauses provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …” U.S. Const, amend. I. The establishment clause forbids state or federal governments from creating or sponsoring a religion, or enacting laws that favor one religion over another. Everson v. Board of Educ., 330 U.S. 1, 15 (1947). Any government regulation that violates the mandate of religious neutrality will be found unconstitutional, unless the regulation furthers a compelling state interest and represents the least restrictive means of serving that interest. Widmar v. Vincent, 454 U.S. 263, 269-70 (1981).
The free exercise clause protects an individual's right to adhere to any religious beliefs, unfettered by government interference. Although the free exercise clause provides absolute protection for religious beliefs, religiously motivated conduct may be restricted under certain circumstances. Cantwell v. Connecticut, 310 U.S. 296 (1940). Religious conduct may be circumscribed where government can demonstrate a compelling state interest which cannot be achieved through less restrictive alternatives. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (Internal Revenue Service may deny tax-exempt status to religious schools engaging in racial discrimination); United States v. Lee, 455 U.S. 252 (1982) (government's overriding interest in the stability of the social security system outweighs Amish entrepreneur's refusal, on religious grounds, to pay social security tax for his employees); Johnson v. Robison, 415 U.S. 361 (1974) (upholding federal law granting educational benefits to veterans while denying the same benefits to conscientious objectors who, for religious reasons, performed alternative civilian service as required by law).
In order for a new religious group to be entitled to the protections afforded by the establishment and free exercise clauses, the group must qualify as a bona fide religion. A threshold question, therefore, in cases involving unconventional religious groups is whether the group constitutes a genuine or sham religion. Although the Constitution does not provide a definition of religion, Reynolds v. United States, 98 U.S. 145, 162 (1879), the Court has set forth certain general criteria for distinguishing religions from non-religions. See, e.g., United States V. Seeger, 380 U.S. 163, 185 (1965) (holding that religion does not require belief in a Supreme Being so long as the beliefs are sincerely held and occupy a central place in the life of the believer); Toracso v. Watkins, 367 U.S. 488 (1961) (recognizing non-theistic religions as falling within the protections afforded by the establishment clause); United States v. Ballard, 322 U.S. 78, 86-87 (1944) (first amendment precludes challenges to the genuineness of a religion based on the truth or falsity of its beliefs).
2. In Browning-Ferris Indus, v. Kelco Disposal, Inc., 492 U.S. 257 (1989), the Court held that the eighth amendment's prohibition of excessive fines does not bar juries from awarding punitive damages in civil cases between private parties. In Pacific Mutual Life Insurance Co. v. Haslip, 111 S. Ct. 1032 (1991), the Court indicated that “unlimited jury discretion…in the fixing of punitive damages” might, in some circumstances, transgress the due process clause, id. at 1043, but held that the Alabama system there at issue satisfied constitutional standards, id. at 1046. Two religion cases were among the seven that two weeks later were remanded for further consideration in light of Haslip. Church of Scientology v. Wollersheim, 111 S. Ct. 1298 (1991); International Soc'y for Krishna Consciousness v. George, 111 S. Ct. 1299 (1991).
3. Until relatively recently, the doctrine of charitable immunity completely barred civil suits against churches. In an 1846 English decision, which was later fully incorporated into American common law, Lord Cottenham stated that “[t]o give damages out of a trust fund [church coffers] would not be to apply it to those objects which the author of the fund had in view, but would be to direct it to a completely different purpose.” Feoffees of Heriot's Hosp. v. Ross, 12 C. & F. 507, 513, 8 Eng. Rep. 1508, 1514 (1846). The charitable immunity doctrine in the United States began to break down in the middle of this century, President of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942), and no longer holds sway. Yet, its long historical presence, bridging the period covered by the ratification of the fourteenth amendment, McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432 (1876); Perry v. House of Refuge, 63 Md. 20 (1885), carries with it a momentum of respect and presumptive validity vis-a-vis the Constitution's establishment clause. Indeed, in at least one case, the charitable immunity of churches was specifically upheld as against the argument that it constituted a gift to church organizations violative of the establishment clause. Makar v. St. Nicholas Ruthenian (Ukranian) Greek Catholic Church, 78 N.J. Super. 1, 187 A.2d 353 (1963).
4. The Restatement (Second) of Torts defines fraudulent misrepresentation as follows:
One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.
Restatement (Second) of Torts § 525 (1965).
5. The Restatement (Second) defines the tort of false imprisonment as follows:
(1) An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
Restatement (Second) of Torts § 35 (1965).
6. The Restatement (Second) defines the tort of intentional infliction of emotional distress as follows:
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
Restatement (Second) of Torts § 46 (1965).
7. The term “cult” is commonly used to vilify and stigmatize unconventional religions and to justify their discriminatory treatment. To describe a new religion or an old one simply new to America, like Krishna Consciousness, as a “cult” is in modern usage, to condemn it as fanatical, exploitative, coercive, and harmful. Since the objective of this article is not to praise or blame unorthodox religious groups, the term “cult” will not be used unless it is necessary to express the pejorative meaning intended by others. See Wood, , New Religions and the First Amendment: “The Law Knows No Heresy,” in Religion and The State: Essays In Honor of Leo Pfeffer 185, 204 (1985)Google Scholar (“The very use of the term ‘cult’ arises out of a value judgment that has no place in American law. Actually, the term ‘cult’ is a pejorative word used to denigrate religions other than one's own and is popularly applied to new religions so as to reinforce their deviation from the more socially established religious traditions.”); Pfeffer, L., Religion, State and the Burger Court 233 (1984)Google Scholar (“The word ‘cult,’ acceptable as it might be in the arena of sociology, contemporary literature, drama, and popular impressions, is not a legal term, at least not within the scope of constitutional law. It can be suggested, only half facetiously, that a cult is something that if you like it, it is a religion; if you don't care one way or another about it, it is a sect; but if you fear and hate it, it is a cult.”).
8. The terms “coercive persuasion” and “brainwashing” are typically used interchangeably to describe forcible indoctrination. See Peterson v. Sorlien, 299 N.W.2d 123, 126 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981) (“[c]oercive persuasion is fostered through the creation of a controlled environment that heightens the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The aftermath of indoctrination is a severe impairment of autonomy and the ability to think independently, which induces a subject's unyielding compliance and the rupture of past connections, affiliations and associations.”); Note, Brainwashing: Fact, Fiction and Criminal Defense, 44 Umkc L. Rev. 438 (1976)Google Scholar; see generally Hunter, E., Brainwashing: From Pavlov to Powers (1962)Google Scholar; Lifton, R., Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China (1961)Google Scholar; Shein, E., Schneier, I. & Barker, C., Coercive Persuasion (1961)Google Scholar. Critics assert that new religious movements recruit members by destroying the neophyte's ability for free thought and independent judgment. See, e.g., West, , Persuasive Techniques in Contemporary Cults: A Public Health Approach, in Cults and New Religious Movements 165 (Galanter, M. ed. 1989)Google Scholar; Clark, , On the Further Study of Destructive Cultism, in Psychodynamic Perspectives on Religion, Sect and Cult 363 (Halperin, D. ed. 1983)Google Scholar; Conway, & Siegelman, , Information Disease: Have Cults Created a New Mental Illness?, Science Digest 86 (01 1982)Google Scholar; West, & Singer, , Cults, Quacks, and Non-Professional Psychotherapies, in 3 Comprehensive Textbook of Psychiatry 3245 (Kaplan, H., Freedman, A. & Sadock, B.3d ed. 1980)Google Scholar; Rudin, A. & Rudin, M., Prison or Paradise? The New Religious Cults (1980)Google Scholar; Etemad, , Extrication From Cultism, 18 Current Psychiatric Therapy 217 (1979)Google Scholar; Singer, , Coming Out of the Cults 12 Psychology Today, 72 (1979)Google Scholar; Clark, , Problems in Referral of Cult Members, 9 Nat'l A. Private Psychiatric Hosp. 27 (1978)Google ScholarPubMed; Conway, F. & Siegelman, J., Snapping: America's Epidemic of Sudden Personality Change (1978)Google Scholar; Verdier, P., Brainwashing and the Cults (1977)Google Scholar; Patrick, T. & Dulack, T., Let Our Children Go (1977)Google Scholar; Delgado, , Religious Totalism: Gentle and Ungentle Persuasion Under The First Amendment, 51 S. Cal. L. Rev. 1 (1977)Google Scholar. The view that new religious movements use brainwashing to convert members has found acceptance in some courts; see Molko v. Holy Spirit Ass'n. for the Unification of World Christianity, 46 Cal. 3d 1092, 1109-1111, 762 P.2d 46, 252 Cal. Rptr. 122 (1988); Peterson v. Sorlien, 299 N.W.2d 123, 126 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981); however, other courts have rejected torts claims based on “brainwashing” theories as not legally cognizable; see Meroni v. Holy Spirit Ass'n for the Unification of World Christianity, 506 N.Y.S.2d 174, 119 A.D.2d 200 (1986); Lewis v. Holy Spirit Ass'n for the Unification of World Christianity, 589 F. Supp. 10 (1983); People v. Murphy, 413 N.Y.S.2d 540, 98 Misc. 2d 235 (1977). A number of commentators question whether brainwashing exists at all; see, e.g., Post, , The Molko Case: Will Freedom Prevail?, 31 J. of Church & State 451 (1989)CrossRefGoogle Scholar; Stark, R. & Bainbridge, W., The Future of Religion: Secularization, Revival and Cult Formation (1985)Google Scholar; Coleman, , New Religions and the Myth of Mind Control, 54 Am. J. Orthopshchiatry 322 (1984)CrossRefGoogle ScholarPubMed; Szasz, T., The Therapeutic State (1984)Google Scholar; Richardson, , Conversion, Brainwashing, and Deprogramming, 15 Center Magazine 18 (03/Apr. 1982)Google Scholar; Anthony, & Robbins, , New Religions, Families, and “Brainwashing,” in In Gods We Trust: New Patterns of Religious Pluralsim in America 263 (Robbins, T. & Anthony, D. eds. 1981)Google Scholar; Shupe, A. & Bromley, D., The New Vigilantes: Deprogrammers, Anti-Cultists, and the New Religions (1980)Google Scholar; Kelley, , Deprogramming and Religious Liberty, 4 Civ. Liberties Rev. 23 (Vol. 4, No. 2) (1977)Google Scholar; whereas others contend that physical abuse and physical restraint are necessary conditions for brainwashing to be effective. See, e.g., A. Scheflin & E. Opton, The Mind Manipulators (1978); R. Lifton, supra.
9. See supra note 1.
10. Two examples of state constitutions that provide explicit protection for the free exercise of religion are California and Oregon. See Cal. Const, art. I, § 4 (“Free exercise and enjoyment of Religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion”); Or. Const, art. I, § 2 (“All men shall be secure in the natural right, to worship Almighty God according to the dictates of their own consciences”).
11. Walz v. Tax Comm'r, 397 U.S. 664, 695 (1969) (Harlan, J., concurring).
12. Melton, J., Encyclopedia of American Religions (1988)Google Scholar; Melton, , Testing the Truism About the “Cults”: Toward a New Perspective on Non-Conventional Religions (11 19, 1988) (Paper presented Am. Acad, of Religion, Chicago, Illinois)Google Scholar.
13. Barrett, D., World Christian Encyclopedia (1981)Google Scholar.
14. The same dream of creating Utopian religious communities that brought the colonists to these shores has inspired religionists throughout the nineteenth and twentieth centuries in America. Communities established by contemporary religious movements are part of this rich tradition of religious diversity, following the communitarian legacy of the Amana, Shakers, Oneida, Dukhobors, Mennonites, Lutheran Salzburgers, Theosophists, Moravians, Mormons, and others. See generally Gaustad, E., A Religious History of America (1966)Google Scholar.
15. The deprogramming network represents the most recent outcropping of the perennial vigilantism practiced against new and minority religions. See infra notes S6-S8 and accompanying text. The late nineteenth century witnessed a spate of anti-Catholic organizations, of which the American Protective Association was the most prominent and powerful. Its activities included aiding the election campaigns of candidates who sympathized with its cause, organizing boycotts of Catholic merchants and lecturing on the dangers of Catholicism. Gaustad, E., A Religious History of America 208–11 (1966)Google Scholar.
Anti-Mormon groups with origins in the nineteenth century are still active today. Groups such as Ex-Mormons for Jesus issue warnings about the continuing threat of Mormonism, seeking to discredit Mormon theology and provide a public platform for apostates. For decades, the resources of Catholics and Mormons were substantially committed to self-preservation and self-defense. Civil suits and criminal proceedings, public hearings and proposed legislation, whatever their final disposition, only served to reinforce public negativity towards these religions. See generally, Heinerman, J. & Shupe, A., The Mormon Corporate Empire (1985)Google Scholar; Arrington, L. & Britton, D., The Mormon Experience: A History of the Latter-Day Saints (1979)Google Scholar; Billington, R., The Origins of Nativism in the United States, 1800-1844 (1974)Google Scholar.
16. See supra note 8, at 32.
17. See Herberg, W., Protestant—Catholic—Jew: An Essay in American Religious Sociology (1955)Google Scholar (Greek orthodoxy was an honorary member of the troika).
18. See. e.g., Pfeffer, L., Church, State and Religions (1967)Google Scholar; Gaustad, E., A Religious History of America (1966)Google Scholar; Raab, E., Religious Conflict in America (1964)Google Scholar; Olsen, B., Faith and Prejudice (1963)Google Scholar; Myers, G., History of Bigotry in the United States (1943)Google Scholar; Billington, R., The Protestant Crusade 1800-60 (1938)Google Scholar.
19. Id.
20. State v. West, 9 Md. App. 270, 263 A.2d 602 (1970) (striking down Maryland blasphemy statute as violative of first amendment establishment clause because the law sought to protect, preserve, and perpetuate the Christian religion). See generally Note, Blasphemy and Human Rights, 46 Mod. L. Rev. 338 (1983)Google Scholar; Levy, L., Treason Against God: A History of the Offense of Blasphemy (1981)Google Scholar; The Case for Abolition, 131 New L.J. 458 (1971)Google Scholar; Rushdie Book Generates British Blasphemy Law Controversy, L.A. Daily J., Mar. 17, 1989, at 8, col. 1. See also Whitehouse v. Lemon, 1 All E.R. 898 (1979).
21. Libraries of hate pamphlets, articles, and books have been written over the years attacking religions having cloistered ashrams, convents, and other retreats. Many new religious communities are little different from Catholic convents. See Bromley, & Shupe, , The Tnevnoc Cult, 40 Soc. Analysis 361 (1979)CrossRefGoogle Scholar. Some examples of anti-Catholic conversion literature include: Myhill, C., How Perversions Are Effected, Or Three Years Experience As a Nun (1984)Google Scholar; Ayesha, M., The Truth About a Nunnery (1912)Google Scholar; Holland, W., Nuns Walled Up and Nuns Walled In (1895)Google Scholar; Hogan, W., Auricular Confession and Popish Nunneries (1846)Google Scholar. Other examples of anti-Catholic literature include: see generally Biermans, J., The Odyssey of New Religious Movements: Persecution, Struggle, Legitimation (1988)Google Scholar; Bunkley, J., The Testimony of an Escaped Novice from the Sisterhood of St. Joseph, Emmetsburg, MD. (1855)Google Scholar; Smith, S., The Wonderful Adventures of a Lady of the French Nobility, and the Intrigues of a Romish Priest, Her Confessor, To Seduce and Murder Her (1836)Google Scholar; Reed, T., Six Months in a Convent (1835)Google Scholar.
22. Law professor Richard Delgado, psychologist Margaret Singer, and psychiatrists John Clark, Jr. and Louis West have emerged as the principle academic sources for the anti-cult movement in the United States. See, e.g., Delgado, , Religious Totalism: Gentle and Ungentle Persuasion Under the First Amendment, 51 S. Cal. L. Rev. 1 (1977)Google Scholar (recommending various forms of intervention into religious cults including compelled disclosure, procedures to request rescue, prohibition of behavior modification techniques, and court-ordered conservatorships); Delgado, , Religious Totalism As Slavery, 9 N.Y.U. Rev. L. & Soc. Change 51 (1979–1980)Google Scholar (equation of cults with slave organizations and proposal to use the thirteenth amendment as a means of abolishing cults without running afoul of the first amendment); Delgado, , Cults and Conversion: The Case for Informed Consent, 16 Ga. L. Rev. 533 (1982)Google Scholar (proposing that religious cults be required to obtain informed consent from prospective members before being permitted to proselytize and convert them); Delgado, , When Religious Exercise is Not Free, 37 Vand. L. Rev. 1071 (1984)Google Scholar (arguing that deprogramming is justified where cult members are unable to recognize or overcome the coercive and unscrupulous influences of religious conditioning); Delgado, , Options For Legal Intervention, in Cults and New Religious Movements 291 (Galanter, M. ed. 1989)Google Scholar (endorsing various legal interventions into religious cults). See also Delgado, , Ascription of Criminal States of Mind: Toward a Defense Theory for the Coercively Persuaded (“Brainwashed”) Defendant, 63 Minn. L. Rev. 1 (1978)Google Scholar (arguing that the defense of brainwashing should be made available to converts who were coercively persuaded to join cults and later committed crimes on their behalf, reasoning that mens rea is absent). But see Dressler, , Professor Delqado's “Brainwashing” Defense: Courting A Determinist Legal System, 63 Minn. L. Rev. 335 (1979)Google Scholar (arguing that mens rea is present even in cases of coercive persuasion).
See also Singer, , Therapy with Ex-Cult Members, 9 J. Nat'l A. Private Psychiatric Hosp. 14 (1978)Google ScholarPubMed (delineating the psychological problems experienced by former cult members and discussing a therapeutic technique to address these problems); Singer, , Coming Out of the Cults, 12 Psychology Today 72 (01 1979)Google Scholar (reporting that former cult members experience a number of emotional problems during their reentry into society, such as depression, indecision, passivity, and loneliness). Dr. Singer has also presented expert testimony against “cults” on numerous occasions. See, e.g., Kropinski v. World Plan Executive Council, 853 F.2d 948 (D.C. Cir. 1988); George v. ISKCON, 3 Cal. App. 4th 52, 4 Cal. Rptr. 2d 473 (Ct. App. 1992) (review denied and opinion ordered not to be published in official reports); Wollersheim v. Church of Scientology, 4 Cal. App. 4th 1074, 6 Cal. Rprt. 2d 532 (Ct. App. 1992); Molko v. Holy Spirit Ass'n., 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988); Christofferson v. Church of Scientology, 57 Or. App. 203, 644 P.2d 577 (1982); Witness Lee v. Duddy, No. 540-585-9 (Cal., Alameda County, Super. Ct. June 26, 1985).
See also Clark, J., Langone, M., Schecter, R. & Daly, R., Destructive Cult Conversion: Theory, Research, and Treatment (1981)Google Scholar (describing cults as deleterious to the health of converts and recommending treatment strategies); Clark, , On the Further Study of Destructive Cultism in Psychodynamic Perspectives on Religion, Sect and Cult 363 (Halperin, D. ed. 1983)Google Scholar (arguing that the destructiveness of cults arises from their emphasis on money, power, proselytizing, and severing of family ties); Clark, , Cults, 242 J. Am. Med. A. 279 (1979)CrossRefGoogle ScholarPubMed (arguing that the destructiveness of cults stems from the use of mind control techniques to render subjects vulnerable to conversion); Clark, , Problems in Referral of Cult Members, 9 J. Nat'l A. Private Psychiatric Hosp. 19 (1978)Google ScholarPubMed (arguing that cult members are mentally ill and require the services of a psychotherapist).
See also West, , Persuasive Techniques in Contemporary Cults: A Public Health Approach, in Cults and New Religious Movements 165 (Galanter, M. ed. 1989)Google Scholar (viewing cults as a serious threat to public health and proposing a public health strategy to address the problem); West, , Contemporary Cults: Utopian Image, Infernal Reality, 15 Center Mag. 10 (03/Apr. 1982)Google Scholar (arguing that many cults have a Utopian image, but the reality is closer to Dante's vision of hell); West, & Singer, , Cults, Quacks and Nonprofessional Psychotherapies, in 3 Comprehensive Textbook of Psychiatry 3245 (Kaplan, H., Freedman, A. & Sadock, B.3rd ed. 1980)Google Scholar (viewing newly indoctrinated cult members as suffering from traumatic neurosis).
23. The understanding of religion as ideology is associated with the work of Karl Marx. In Marx's view, the dominant class uses religion to justify existing injustices and to divert the attention of the oppressed from the real source of their suffering, capitalism. See Marx, , Critique of Hegel's Philosophy of Right (1843)Google Scholarreprinted in Writings of the Young Marx on Philosophy and Society 249, 250 (Easton, L. & Guddat, K. trans, ed. 1967)Google Scholar (“Religious suffering is the expression of real suffering and at the same time the protest against real suffering. Religion is the sigh of the oppressed creature, the heart of a heartless world, as it is the spirit of spiritless conditions. It is the opium of the people.”); see also Foss, & Larkin, , Worshipping the Absurd, 39 Sociological Analysis 157 (1978)CrossRefGoogle Scholar.
24. The psychopathological view of religion has its roots in the work of Sigmund Freud. According to Freud, religion is an illusion born of the need for relief from existential feelings of helplessness. Freud maintains that religion provides this comforting reassurance by emulating the developmental stage of infantile dependency, thereby giving believers the illusion of conquering the frightening realities of existence. The psychiatrist's role is to help believers put these illusions aside and replace them with a more mature and reasoned approach to life. See Freud, S., Future of an Illusion 43 (Strachey, J. trans. 1961)Google Scholar (describing religion as the “universal obsessional neurosis of humanity”); see also Freud, S., Civilization and its Discontents 32 (Strachey, J. trans. 1961)Google Scholar (describing religion as a form of “psychical infantilism” and “mass-delusion”); see generally Pruyser, , Sigmund Freud and His Legacy: Psychoanalytic Psychology of Religion, in Beyond The Classics? Essays in the Scientific Study of Religion 243 (Glock, C. & Hammond, P. ed. 1973)Google Scholar. Since the psychiatric profession tends to view all religious faiths aspathological, Tucker, , Religious Beliefs of Patients Often Ignored, Clinical Psychiatry News, 10 1989Google Scholar, at 1, Col. 1, “anti-cult” psychiatrists and psychotherapists consider devotees of new religious groups as particularly maladjusted. See, e.g., P. Verdier, supra note 8; F. Conway & J. Siegelman, supra note 8; Clark, supra note 8; Etemad, supra note 8; West & Singer, supra note 8. Contrary to the accusations of “anti-cultists,” research indicates that affiliation with new religious movements increases feelings of well-being, trust, social and psychological integration, and diminishes feelings of anxiety and neurotic distress. See Richardson, J., Stewart, M. & Simmonds, R., Organized Miracles (1979)Google Scholar; Downtown, J., Sacred Journeys: The Conversion of Young Americans to Divine Light Mission (1979)Google Scholar; Ungerleider, & Wellisch, , Coercive Persuasion (Brainwashing), Religious Cults, and Deprogramming, 136 Am. J. Psychiatry 279 (03 1979)Google Scholar; Ungerleider, & Wellisch, , Psychiatrists' Involvement in Cultism, Thought Control and Deprogramming, 16 Psychiatric Opinion 10 (01 1979)Google Scholar; Galanter, , Rabkin, , Rabkin, & Deutsch, , The “Moonies”: A Psychological Study of Conversion and Membership in a Contemporary Religious Sect, 136 Am. J. Psychiatry 165 (1979)Google Scholar; Galanter, & Buckley, , Evangelical Religion and Meditation: Psychotherapeutic Effects, 166 J. Nervous Mental Disorders 685 (1978)CrossRefGoogle ScholarPubMed; Nicholi, , A New Dimension of the Youth Culture, 131 Am. J. Psychiatry 396 (1974)Google ScholarPubMed; see generally Kilbourne, , Psychotherapeutic Implications of New Religious Affiliation, in Cults and New Religious Movements 127 (Galanter, M. ed. 1989)Google Scholar; Kilbourne, & Richardson, , Psychotherapy and New Religions in a Pluralistic Society, 39 Am. Psychologist 237 (1984)CrossRefGoogle Scholar.
25. The common law tradition of tort began in twelfth-century England and continues to this day in America. Judges exercise vast power in creating new torts and devising new means of assessing, punishing, and spreading risks and losses. See generally Potter, H., Historical Introduction to English Law 267 (2nd ed. 1943)Google Scholar; Keeton, W., Dobbs, D., Keeton, R. & Owen, D., Prosser and Keeton on the Law of Torts § 3, at 17–20 (5th ed. 1984)Google Scholar [hereafter Prosser & Keeton]; Dix, , The Origins of the Action of Trespass on the Case, 46 Yale L. Rev. 1142 (1937)CrossRefGoogle Scholar.
26. See Schwartz, , Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 Yale L. J. 1717 (1981)CrossRefGoogle Scholar; Abel, , A Critique of American Tort Law, 8 Brit. J. Law Soc. 2 (1981)CrossRefGoogle Scholar. Abel suggests that the choice of negligence in the mid-nineteenth century over strict liability was a subsidy for capitalism: “[P]re-capitalist tort law was based on the principle of strict liability, which was rejected with the rise of capitalism in order to subsidize capitalist entrepreneurs by externalizing accident causes by displacing them on victims.” Abel, supra, 1 n.2 (1981); see generally Friedman, L., History of American Law (1973)Google Scholar.
27. See Prosser & Keeton, supra note 25, § 3, at 15 (“Perhaps more than any other branch of the law, the law of torts is a battle ground of social theory.”).
28. Id., § 2, at 8. The goals of tort law are nearly identical to that of criminal law: (1) prevention of self-help by victims against those causing harm; (2) retribution against wrongdoers; (3) deterrence of wrongdoers; and (4) penalty against wrongdoer and compensation to the victim. Only compensation to the victim distinguishes tort law. Id., § 2, at 7-15.
29. Early tort law did not differentiate between intent, state of mind, fault, or even distinctions between man and beast. For example, a number of early cases were brought against pigs, rats, chickens, and even bees. See generally Evans, E., The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe's Animal Trials (1987)Google Scholar.
30. Examples of new torts created within the last 50 years include the common carrier's affirmative duty of care to passengers, Lopez v. Southern California Rapid Transit Dist., 49 Cal. 3d 780, 710 P.2d 907, 221 Cal. Rptr. 840 (1985) (liability of bus company employees for failing to go to the aid of passengers who become ill or are being attacked); psychotherapist's duty to warn third parties of danger, Tarasoff v. Regents of Univ. of Calif., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (liability of psychotherapist for failing to warn third party of the threat on her life by a patient); negligent infliction of emotional distress, Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) (liability for mental disturbance caused by witnessing an accident to one's child); wrongful birth action, Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967) (liability of doctors and other health care professionals for failure to prevent the birth of an unwanted child); strict liability of manufacturers and suppliers of defective products, Greenman v. Yuba Power Products, 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) (strict liability of manufacturer who places defective product on the market which causes injury to ultimate user or consumer of product); intentional infliction of emotional distress, State Rubbish Collections Ass'n v. Siliznoff, 38 Cal. 2d 330, 240 P.2d 282 (1952) (liability for emotional distress unaccompanied by physical injury).
31. The court has, for example, refused to extend the implications of the rulings in Tamery v. Atlantic Richfield Co., 27 Cal. 3d 167, 610 P.2d 1330, 164 Cal. Rptr. 839 (1980) and Seaman's Direct Buying Service Inc. v. Standard Oil Co., 36 Cal. 3d 752, 686 P.2d 1158, 206 Cal. Rptr. 354 (1984) that a tort action for wrongful discharge could be brought by a fired employee. See Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211 (1988), and the court has sharply limited insurance company bad faith liability, see Moradi-Shalal v. Fireman's Fund Ins. Co., 46 Cal. 3d 287, 758 P.2d 58, 250 Cal. Rptr. 116 (1988).
32. See Molko v. Holy Spirit Ass'n for the Unification of World Christianity, 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988); Wollersheim v. Church of Scientology, 4 Cal. App. 4th 1074, 6 Cal. Rptr. 2d 532 (Ct. App. 1992).
33. Hallack, , The Psychiatrist and the Legal Process, in Law and Change in Modern America 169 (Grossman, J. ed. 1971)Google Scholar.
34. Id.
35. Id. at 173.
36. Carroll, , The Anal-Erotic Origins of the Rosary, 26 J. Sci. Study Religion 486, 491 (1987)CrossRefGoogle Scholar.
37. Am. Psychiatric A., Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R) § 300.15, at 277 (3d ed. 1987) [hereafter cited as DSM-III-R]. A dissociative disorder is characterized by “a disturbance or alteration in the normally integrative functions of identity, memory, or consciousness.” Id.
38. Id.
39. See Ungerleider, & Wellisch, , Deprogramming (Involuntary Departure), Coercion, and Cults, in Cults and New Religious Movements 239, 249 (Galanter, M. ed. 1989)Google Scholar (“[U]nlike most conditions listed in DSM-III no signs, symptoms, or other criteria for diagnosis are listed! No psychological tests exist that diagnose the syndrome of coercive persuasion and we have found no indication of overt mental illness in our cult population study.”).
40. See T. Patrick & T. Dulack, supra note 8.
41. Deprogramming refers to “the process whereby individuals who are members of, or associated with certain religious groups are subjected to various procedures to persuade them to recant their religious beliefs.” Annotation, Civil Liability For “Deprogramming” Member of Religious Sect, 11 A.L.R. 4th 228, 229 n.l (1982). A massive amount of literature has developed on the subject of deprogramming. For a discussion among legal scholars of deprogramming see Bohn, & Gutman, , The Civil Liberties of Religious Minorities, in Cults and New Religious Movements 257 (Galanter, M. ed. 1989)Google Scholar; Wood, supra note 7; Parton, , When Courts Come Knocking at the Cult's Door: Religious Cults and the First Amendment, 9 Comm/Ent L.J. 279 (1987)Google Scholar; Katz, , Regulating Unpopular Religious Sects and Deprogrammers, 5 Glendale L. Rev. 115 (1983)Google Scholar; Aronin, , Cults, Deprogramming, and Guardianship: A Model Legislative Proposal, 17 Colum. J.L. & Soc. Probs. 163 (1982)Google Scholar; Kelly, supra note 8; Vermeire, , “Deprogramming”: From the Defense Counsel's Perspective, 84 W. Va. L. Rev. 91 (1981)Google Scholar; LeMoult, , Deprogramming Members of Religious Sects, 46 Fordham L. Rev. 599 (1977)Google Scholar; Panel Discussion: Regulation of Alternative Religions By Law or Private Action: Can and Should We Regulate?, 9 N.Y.U. Rev. L. & Soc. Change 109 (1979–1980)Google Scholar; Buel, , The Cults in Court, 2 Calif. Law. 56 (07 1982)Google Scholar; Robbins, , Even a Moonie Has Civil Rights, 224 The Nation 238 (1977)Google Scholar; Comment, , A New Cause of Action For Members of Religious Groups Suing Their Parents for Attempting To Deprogram Them, 7 Am. J. Trial Advoc. 656 (1984)Google Scholar; Case Comment, Tort Liability for Cult Deprogramming, 43 Ohio St. L.J. 465 (1982)Google Scholar; Comment, Civil Rights: A Civil Remedy for Religious Deprogramming Victims Under 42 U.S.C. § 1985 (3), 21 Washburn L.J. 663 (1982)Google Scholar.
For a discussion among social scientists of deprogramming see Shupe, A. & Bromley, D., The Anti-Cult Movement in America: A Bibliography and Historical Survey (1984)Google Scholar; 5 Studies in Religion and Society, The Brainwashing/Deprogramming Controversy: Sociological, Psychological, Legal and Historical Perspectives (Bromley, D. & Richardson, J. ed. 1983)Google Scholar; A. Shupe & D. Bromley, supra note 8; Ungerleider & Wellisch, supra note 24; Ungerleider & Wellisch, supra note 39; Anthony, , The Fact Pattern Behind the Deprogramming Controversy: Ah Analysis and An Alternative, 9 N.Y.U. Rev. L. & Soc. Change 73 (1978–1979)Google Scholar; Anthony & Robbins, supra note 8; Shupe, , Spielmann, , & Stigall, , Deprogramming: The New Exorcism, 20 Am. Behavioral Scientist 941 (1977)CrossRefGoogle Scholar.
42. See, e.g., Biermans, J., The Odyssey of New Religious Movements: Persecution, Struggle, Legitimation (1988)Google Scholar; Falling From the Faith: Causes and Consequences of Religious Apostasy (Bromley, D., ed. 1988)Google Scholar; Isser & Schwartz, The History of Conversion and Contemporary Cults (1988); Melton, J., Encyclopedic Handbook of Cults (1986)Google Scholar; Bromley, & Shupe, , Public Reaction Against New Religious Movements in Cults and New Religious Movements 305 (Galanter, M. ed. 1989)Google Scholar; Kilbourne, & Richardson, , Cultaphobia, 61 Thought 258 (1986)CrossRefGoogle Scholar; Sipchen, , The Cult Wars Ten Years After Jonestown: Battle Intensifies Over Influence of “Alternative” Religions, L. A. Times, 11 17, 1988, pt. V, at 1, col. 1Google Scholar; Dart, Formation of Cults Continues in 80s, L.A. Times, Nov. 19, 1988, pt. II, at 7, col. 1; Levine, , On the Trail of High Weirdness, U.S. News & World Report, 11 14, 1988, at 67Google Scholar.
43. T. Patrick & T. Dulack, supra note 8.
44. Deprogramming has been attempted on a member of the Episcopal Church and a member of the Socialist Labor Party. Kelley, supra note 8, at 27. Other victims of deprogramming have included members of transcendental meditation, awareness training seminars, various new age groups, and fundamentalist Christian sects. See Frame, , And Now: Deprogramming Christians is Taking Place, 27 Christianity Today 31 (04 22, 1983)Google Scholar. In 1985, Patrick was acquitted after an “attempt to sway a 20-year-old woman from lesbianism.” N.Y. Times, Apr. 25, 1985, at 20, col. 2 (national ed.). Another Patrick victim was Kathy Markis, who was subjected to deprogramming in Denver to extricate her from membership in the Greek Orthodox Church; Patrick was sentenced to seven days in jail. Worthing, Deprogramming, 72 Liberty Mag. 8, 11 (09 1977)Google Scholar. In another strange case, Patrick was acquitted of kidnapping a thirty-one-year-old woman whom he abducted, not to extricate her from a sectarian religious group, but because her mother claimed that her daughter's fiancee exerted undue psychological influence over her daughter. See Mother, Cult Deprogrammer Acquitted, The Oregonian, May 19, 1979, at A10, col. 1.
A number of Christian organizations have had members subjected to forcible abduction, false imprisonment, and faithbreaking by deprogrammers. See e.g., Frame, supra (Betsy and Witney Chase, two members of the Assemblies of God, were kidnapped and harassed by deprogrammers); Kelley, supra note 8, at 27 (an Episcopal Church member was kidnapped in an attempted deprogramming); San Diego Evening Tribune, Aug. 29, 1980, at Al (Patrick was convicted of kidnapping Roberta McElfish, whose Catholic family hired him to deprogram her).
In November, 1987, Cult Awareness Network (CAN) member Adrian Greek exhibited a list of several hundred names of “cults” on a television show in Portland, Oregon. Among the groups listed were:
Positive Action Center Telethon (Multnomah Cable Access, Nov. 21-22, 1987).
45. See Shupe, , Spielmann, & Stigall, , Deprogramming: The New Exorcism, 20 Am. Behav. Sci. 941 (07/Aug. 1977)CrossRefGoogle Scholar.
46. See, e.g., Alliance for the Preservation of Religious Liberty, the Anti-Religion Movement: An Abstract of Contenporary Terrorism, Kidnapping and Violation of Religious and Civil Liberties in America 21-22 (n.d.) (recounting cases of complicity between police, parents, and deprogrammers against the members of unconventional religions); Officer Denies Women's Kidnap Story, Liberty, Mar. 1975, at 11 (reporting that Patrick would notify law enforcement officials in advance of a deprogramming so that the police would look the other way when a “cult” member was abducted); see also A. Shupe & D. Bromley, supra note 8, at 134 (“numerous instances have been recorded in which police officers were present at the time of forcible abductions and allowed parents and deprogrammers to forcibly remove [Unification Movement] members from the scene.”). On one occasion, law enforcement personnel took affirmative steps to thwart deprogrammers, but on that occasion the officers involved were unaware that the victim was a “cult” member. See Burke v. Daniels, No. CA-3-79-0472 (N.D. Texas, June 13, 1979). In that case, Ellen Burke, a member of the International Society for Krishna Consciousness, was abducted in Dallas and taken to San Diego for deprogramming. In the middle of the night she was able to make a phone call and describe what she saw outside a window. The FBI was called in and mobilized a raid that led to her release. However, as soon as the FBI realized that Burke was an ISKCON member, it dropped the whole matter. When Burke returned to Dallas, she sued the deprogrammer, Cliff Daniels. Id. The lawsuit against Daniels did not dissuade him from his chosen career. Daniels masterminded the kidnapping of a member of Great Among the Nations, a group alleged to be a religious “cult.” See San Diego Union, Mar. 30, 1989, at B5, col. 5. The attitude of the FBI, three years after the Burke case, is described in Luckstead, & Martell, , Cults: A Conflict Between Religious Liberty and Involuntary Servitude?, 51 F.B.I. L. Enforcement Bull. 16 (1982)Google Scholar.
47. Jury nullification refers to the unreviewable power of the jury to acquit as a matter of grace or discretion, even when criminal conduct has been clearly established. There are many apparent examples of jury nullification and judicial sympathy for the illegal conduct of deprogrammers. One of the first deprogrammings to reach the courts was the 1973 case of Daniel Voll, a member of the New Testament Missionary Fellowship, who was abducted by Ted Patrick. Voll brought suit against Patrick, but a jury acquitted him of all charges. Worthing, Deprogramming, 72 Liberty Mag. 8, 10 (09 1977)Google Scholar. During the same year, Patrick was indicted on kidnapping charges for abducting Kathe Crampton from the Love Israel group. Once again, Patrick was acquitted of the charges. Id. at 11. The deprogrammers involved in the case of ISKCON member Madonna Slavin Walford pleaded no contest to charges of false imprisonment and were fined $100, which was subsequently suspended. See L.A. Times, Dec. 13, 1978, at 1, col. 1; see also L.A. Herald Examiner, Dec. 12, 1979, at 8, col. 2. In another such case, Patrick was acquitted of confining a twenty-four-year-old member of The Way International against her will for four days. See Cult Fighter Cleared of Kidnapping, Assault, Boston Sunday Globe, Feb. 25, 1979, at 22, col. 1. Patrick was also acquitted of felony charges in the kidnapping of Scientology member Paula Dain. See People v. Dain, No. F-62-207 (Cal., San Diego, Super. Ct. Aug. 6, 1980); see also San Diego Union, Aug. 6, 1980, at 1, col. 1. And a Minnesota man was acquitted of extortion charges stemming from the attempted religious deprogramming of two college women. See United States v. Larry Iron Moccasin, Lansing St. J. Apr. 7, 1983, at 8, col. 3. See generally A. Shupe & D. Bromley, supra note 8.
48. For example, Bill Eilers, a member of the Disciples of the Lord Jesus Christ, was abducted for purposes of deprogramming and confined against his will for five-and-one-half days. Eilers was subjected to physical abuse and spent at least two days handcuffed to his bed before escaping. Eilers was awarded only $10,000 in damages. Eilers v. Coy, 582 F.Supp. 1093 (D.Minn. 1984). Susan Peterson, a member of The Way Ministry, was awarded $10,000 in damages for intentional infliction of emotional distress arising from efforts by her parents and others to deprogram her. Peterson v. Sorlien, 299 N.W.2d 123, 126 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981). Scientology member Paula Dain was forcibly seized by deprogrammers and confined against her will for 38 days. Despite the length of her ordeal, the jury awarded Dain only $7,000 in damages. Dain v. Patrick, No. CV-82-1443-WMB (C.D. Cal. June 11, 1984); Unification Church member Wendy Helander was forcibly abducted, confined against her will, and subjected to verbal abuse and deprivation of food and sleep during an attempted deprogramming. Helander was awarded only $5,000 in damages. Helander v. Patrick, No. 195062 (Conn., Fairfield County, Super. Ct. Sept. 8, 1976).
49. See, e.g., George, 3 Cal. App. 4th 52, 4 Cal. Rptr. 2d 473 (review denied and opinon ordered not to be published in official reports)(former member of International Society for Krishna Consciousness and her mother initially awarded $32 million in compensatory and punitive damages, an amount later substantially reduced); Wollersheim, 4 Cal. App. 4th 1074, 6 Cal. Rprt. 2d 532 (former member of the Church of Sciontology initially awarded $30 million in compensatory and punitive damaes). See generally Dorfman, , Lawsuits Posing Greater Threats to Churches, L.A. Daily Journal, 05 22, 1989, at 1, col. 1Google Scholar.
50. In September 1976, Marilee Krishour, an International Society for Krishna Consciousness (ISKCON) member, filed a complaint against her mother and others for kidnapping in connection to an attempted deprogramming. A grand jury investigated and concluded that the mother was trying to “liberate her daughter's mind,” and refused to indict anyone. Instead the grand jury instructed the district attorney to investigate ISKCON and several of its officials for unlawfully imprisoning Krishour and another member of ISKCON, Edward Shapiro. The Supreme Court for Queens County dismissed the case. People v. Murphy, 98 Misc. 2d 236, 413 N.Y.S.2d 540 (Sup. Ct. 1977).
51. 764 F.2d 122 (2d Cir. 1985).
52. Id. at 127.
53. Id. at 128.
54. In 1975, FREE-COG evolved into Citizens Freedom Foundation (CFF). FREE-COG was originally organized by W. Rambur, who became involved in anti-cult activities because his daughter, Kay, had been a member of the Children of God. Kay was successfully deprogrammed by Ted Patrick. The members of CFF became active in deprogramming and maintained affiliate groups in every state. One of these groups, known as Free Minds, became a semi-autonomous deprogramming group in the Great Lakes area. As a direct result of deprogrammings performed by Patrick, other groups such as Love Our Children, and the International Foundation for Individual Freedom, were formed by former members who had been deprogrammed. These anti-cult groups play a central role in maintaining the underground network of communications, referrals, transportation, and housing necessary for continued deprogramming. See generally J. Biermans, supra note 21; J. Melton, supra note 42; A. Shupe & D. Bromley, supra note 8; Shupe, A. & Bromley, D., A Documentary History of the Anti-Cult Movement (1985)Google Scholar; ACLU, Deprogramming: Documenting the Issue (Feb. 5, 1977).
55. CAN sponsors national conferences that draw between 400 and 800 participants. Conferences have been held in the District of Columbia, 1982, Los Angeles, 1983, Pittsburgh, 1987 and Portland, 1988. CAN's subsidiary, Former Cultist Support Network (FOCUS), consists of former “cult” members.
56. See, e.g., Kushin, , Anti-Cult Groups: Now They're After Christians, The Christian Cause 16 (01 1987)Google Scholar (“anti-cult organization led by the Cult Awareness Network (CAN), the American Family Foundation (AFF) and Fundamentalists Anonymous (FA), attack not only a wide spectrum of what Christians would define as ‘cults,’ but a long list of highly respected Christian churches as well.”).
57. See, e.g., Hoekema, A., The Four Major Cults (1963)Google Scholar; Starkes, M., Confronting Popular Cults (1972)Google Scholar; Escape From Darkness (Adair, J. & Miller, T., ed. 1982)Google Scholar; Martin, W., The Kingdom of the Cults (1985)Google Scholar; Melton, J., The Encyclopedia of Cults in America (1987)Google Scholar; McDowell, J. & Stewart, D., Understanding the Cults (1982)Google Scholar; Larson, B., Larson's Book of Cults (1982)Google Scholar; Enroth, R., A Guide to the Cults and New Religions (1983)Google Scholar.
58. The term “cult” has been applied to an array of groups, such as “psychotherapy cult,” Custody Suit Lifts Veil Of ‘Psychotherapy Cult’, N.Y. Times, June 4, 1988, at 10, col. 1 (nat'l ed.), “new age cults,” Colorado Thriving Cults, N.Y. Times, May 1, 1988 § 6 (Magazine), at 37, and “cult killers,” Cult Exorcisms Leave Four Dead, Houston Post, June 28, 1988, at 1A, col. 1; Cultist Linked to Deaths Seized Near San Diego, L.A. Times, Jan. 8, 1990, at 1, col. 1.
59. The federal civil remedies most frequently sought against deprogrammers are 42 U.S.C. §§ 1983 and 1985(3). Section 1983 provides a cause of action for private citizens for the deprivation of constitutional or statutory rights under color of state law. Section 1985(3) provides civil relief to protected classes of people against defendants whose conduct is motivated by a class-based discriminatory animus. That is to say, the defendant's discriminatory conduct must have been based on the plaintiff membership in the protected class. Religious groups have been considered a protected class under § 1985(3). See, e.g., Ward v. Connor, 657 F.2d 45 (4th Cir. 1981), cert. denied sub. nom. Mandelkorn v. Ward, 455 U.S. 907 (1982); Rankin v. Howard, 457 F. Supp. 70 (D. Ariz. 1978), rev'd on other grounds, 633 F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981); Baer v. Baer, 450 F. Supp. 481 (N.D. Cal. 1978). But cf. International Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983) (Statute does not reach conspiracies motivated by economic or commercial animus). See generally Bohn & Gutman, supra note 41, at 278-81; Note, The Adjudication of Religious Beliefs in Section 1985(3) Deprogramming Litigation, 11 Okla. City U.L. Rev. 413 (1986)Google Scholar; Note, Civil Rights: A Civil Remedy for Religious Deprogramming Victim Under 42 U.S.C. § 1985(3), 21 Washburn L.J. 663 (1982)Google Scholar; Note, Federal Regulation of Intra-family Deprogramming Conspiracies Under the Ku Klux Klan Act of 1871, 23 B.C.L. Rev. 789 (1982)Google Scholar; Note, The Class-Based Animus Requirement of 42 U.SC. § 1985(c): A Suggested Approach, 64 Minn. L. Rev. 635 (1980)Google Scholar; Comment, The Deprogramming of Religious Sect Members: A Private Right of Action Under Section 1985(3), 74 Nw. U.L. Rev. 229 (1979)Google Scholar; Comment, A New Cause of Action For Members of Religious Groups Suing Their Parents for Attempting To Deprogram Them, 7 Am. J. Trial Advoc. 656 (1984)Google Scholar.
Cases brought against deprogrammers include: Peterson v. Sorlien, 299 N.W.2d 123 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981) (parents and deprogrammers attempting to extricate adult child from The Way Ministry were not liable for false imprisonment when they were acting in the belief that the judgmental capacity of the child was impaired as result of participation in the religious group and the child ultimately assented to the deprogrammer's actions); Eilers v. Coy, 582 F. Supp. 1093 (D. Minn. 1984) (holding that two members of the Disciples of the Lord Jesus Christ were entitled to a directed verdict for false imprisonment and stated a cause of action under 42 U.S.C. § 1985(3) for conspiracy to deprive them of their civil rights where parents and others abducted and confined them against their will for five and one-half days for purposes of deprogramming); Taylor v. Gilmartin, 686 F.2d 1346 (10th Cir. 1982), cert. denied, 459 U.S. 1147 (1983) (holding that temporary guardianship order procured by father and others for purposes of confining and deprogramming adult child from the Monastery of the Holy Protection of the Blessed Virgin Mary was illegal absent a showing of mental illness, violence, or danger to self or others); Cooper v. Molko, 512 F. Supp. 563 (N.D. Cal. 1981) (holding that member of Unification Church stated cause of action against parents, deprogrammers, and law enforcement officers under 42 U.S.C. § 1983 where it was alleged that police knew of the abduction and did nothing to prevent it and that the police had conspired with parents and deprogrammers to deny plaintiff equal protection of the law); Weis v. Patrick, 453 F. Supp. 717 (D. R.I.), aff'd mem., 588 F.2d 818 (1st Or. 1978), cert. denied, 442 U.S. 929 (1979) (holding that adult daughter who was abducted and kept captive against her will by mother and others who attempted to deprogram her had failed to show that the actions of her captors were motivated by animus against the Unification Church as a protected class under 42 U.S.C § 1985(3)); Baer, 450 F. Supp. 481 (holding that adult member of Unification Church failed to state cause of action for violation of 42 U.S.C. § 1985(3) where member was seized by parents and police pursuant to temporary conservatorship order for purposes of deprogramming); Ward, 657 F.2d 45 (holding that cause of action stated for violation of Unification Church member's civil rights where defendant abducted plaintiff and subjected him to coercive treatment in an effort to deprogram him of his religious beliefs); Rankin v. Howard, 527 F. Supp. 976 (reversing district court holding that member of Unification Church was not entitled to a hearing on whether the granting of a guardianship order to expedite member's seizure for purposes of deprogramming violated his civil rights under 42 U.S.C. § 1985); Mandelkorn v. Patrick, 359 F. Supp. 692 (D.D.C. 1973) (holding that complaint by member of Children of God religious group against his parents and others for torts committed during attempted deprogramming and for civil rights violation under 42 U.S.C. § 1983 stated cause of action); Katz v. Superior Court, 73 Cal. App. 3d 952, 141 Cal. Rptr. 234 (1977) (holding that California's conservatorship laws could not be used by parents of five adult members of the Unification Church for purposes of confining and deprogramming them absent a showing of mental incompetence).
60. See, e.g., Nichols v. Galper, No. 402875 (Cal., San Diego, Super. Ct., complaint filed Aug. 16, 1977) (Dr. Marvin Galper, San Diego, CA); Taylor v. Gilmarhin, 686 F.2d 1346 (10th Cir. 1982), cert. denied, 459 U.S. 1147 (1983) (Dr. Kevin Gilmartin, Tucson, AZ); Applebaum v. Trauscht, No. C77-0228-SAW (N.D. Cal. Oct. 12, 1976) (Dr. Michael Trauscht, Phoenix, AZ).
61. Ted Patrick has acquired a fairly extensive arrest and prison record from his deprogramming activities. Patrick's first felony conviction occurred in 1980, although he had previously been convicted of misdemeanor charges. See People v. Patrick, 126 Cal. App. 3d 952, 179 Cal. Rptr. 276 (1982). The kidnapping and deprogramming that finally brought Patrick a felony conviction did not involve a “cult” at all, but arose from a mistaken belief that a twenty-six-year-old waitress and mother, Roberta McElfish, had left the Catholic church. Patrick was sentenced to one year in San Diego County Jail, fined $5,000, and prohibited from deprogramming as a condition of five years' probation. See L.A. Daily Journal, Dec. 22, 1981, at 2, col. 2; L.A. Times, Aug. 19, 1980, at 38, col. 1. Patrick continued deprogramming and was subsequently sent back to prison in August, 1985, for violation of probation. Wash. Times, Aug. 14, 1985, at 4A. On May 19, 1975, Patrick was convicted in North Orange County Municipal Court, Fullerton, California, for kidnapping and unlawful imprisonment. He was sentenced to one year in jail and placed on the work furlough program. Patrick's work furlough privileges were subsequently revoked, however, because he would not terminate his deprogramming activities. See L.A. Times, Feb. 5, 1977, at 21, col. 5; Dart, Deprogrammer Facing New Detention Charges, L.A. Times, Aug. 20, 1977, at 14, col. 1. In 1974, Patrick was convicted in Denver, Colorado of false imprisonment and sentenced to one year in jail. People of Colorado v. Patrick, No. CR135 (2d Col. Dist. Ct. June 24, 1975). Patrick was convicted of kidnapping Wes Albright in Salt Lake City County Court. State of Utah v. Patrick, No. 79CR-51589, Aug. 29, 1979. Since March, 1975, Patrick has been barred from entering Canada because of his involvement in the kidnapping and attempted deprogramming of a Catholic nun. Wash. Times, June 30, 1988.
Other well-known deprogrammers have included Galen Kelly of New York, and Joseph Alexander, Sr. and Joseph Alexander, Jr. both of Ohio. A suit filed in New Jersey for civil damages against Kelly was dismissed. See Colombrito v. Kelly, 764 F.2d 122 (2d Cir. 1985). The Alexanders were sued in a case brought by a Unification Church member against several deprogrammers. See Augenti v. Cappellini, 84 F.R.D. 73 (M.D. Pa. 1979).
62. See L.A. Times, Jan. 3, 1977, at 1, col. 1 (Freedom of Thought Foundation); see also Montagno, , Is Deprogramming Legal?, Newsweek, 02 21, 1977, at 44Google Scholar; Robbins, , Even a Moonie Has Civil Rights, Nation, 02 26, 1977, at 238Google Scholar. A number of rehabilitation centers for “cult” members still exist today, including Unbound, Inc., Iowa City, Iowa; Positive Action Center, Portland, Oregon; Choicework Counseling Center, Baltimore, Maryland; West-lake Counseling Center, Westlake, California; New Horizons Center, Minneapolis, Minnesota; and Cook Home, Inc., Enid, Oklahoma. Jewish Federation Council of Greater L.A., Cults & Consequences (n.d.).
63. See Bohn & Gutman, supra note 41, at 272 (“[O]f interest to the mental health profession is the curious fact that, in a surprisingly large number of deprogramming cases, professionals, including psychiatrists, have supported applications for conservatorships based upon purported conclusions of the mental ill health of a proposed conservatee who had never been examined, and in many cases never even seen.”); see also Ungerleider & Wellisch, supra note 41, at 244 (criticizing as unethical the actions of psychologists and psychiatrists who render a diagnosis of “mental illness” solely on the grounds that individual is a member of a “cult”).
64. See, e.g., Walford v. Hughes, No. 76-3597-DWW (CD. Cal. July 5, 1977). Donna Grieving had been taken in 197S from the International Society for Krishna Consciousness by Patrick and was part of the team that took Madonna Slavin Walford a year later; she was subsequently a defendant in both civil and criminal proceedings. Id.
65. Many accounts of ex-members gained popularity in books. See, e.g., Edwards, C., Crazy For God (1979)Google Scholar; Underwood, B., Hostage to Heaven (1979)Google Scholar; Wood, A. & Vitek, J., Moonstruck: A Memoir of My Life in a Cult (1979)Google Scholar; Elkins, C., Heavenly Deception (1980)Google Scholar; Freed, J., Moonwebs: Journey into the Mind of a Cult (1980)Google Scholar; Durham, D., Life Among the Moonies: Three Years in the Unification Church (1981)Google Scholar; Kemperman, S., Lord of the Second Advent (1981)Google Scholar; Swatland, S., Escape from the Moonies (1982)Google Scholar. Some accounts of ex-members were made into movies. See, e.g., Heavenly Deception (Evangelical Films, 198—, sic); Ticket to Heaven (United Artists Classics, 1981).
66. Several law review articles have appeared on the use of conservatorships and guardianships to gain custody of sect members for purposes of deprogramming. See Parton, supra note 41; Aronin, , Cults, Deprogramming, and Guardianship: A Model Legislative Proposal, 17 Colum. J.L. & Soc. Probs. 163 (1982)Google Scholar; Bernick, , To Keep Them Out of Harms Way? Temporary Conservatorship and Religious Sects, 66 Calif. L. Rev. 845 (1978)CrossRefGoogle Scholar; Moult, Le, Deprogramming Members of Religious Sects, 46 Fordham L. Rev. 599 (1978)Google Scholar; Seigel, , Deprogramming Religious Cultists, 11 Loy. L.A.L. Rev. 813 (1978)Google Scholar. Note, Religious Deprogramming: A Solution Through Judicially Approved Guardians,” 7 Nova L.J. 383 (1983)Google Scholar; Note, Tort Liability for Cult Deprogramming, 43 Ohio St. L.J. 465 (1982)Google Scholar; Note, Religious Cult Members and Deprogramming Attempts, 15 Akron L. Rev. 165 (1981)Google Scholar; Note, Conservatorships and Religious Cults, Divining a Theory of Free Exercise, 53 N.Y.U.L. Rev. 1247 (1978)Google Scholar; Note, Legal Issues in the Use of Guardianship Procedures To Remove Members of Cults, 18 Ariz. L. Rev. 1095 (1976)Google Scholar; see generally, Annotation, Validity of Guardianship Proceeding Based on Brainwashing of Subject By Religious, Political, or Social Organization, 44 A.L.R., 4th 1207 (1986)Google Scholar.
67. No. C77-0164 (D. Utah Jan. 31, 1978).
68. Civ. LV 78-107-RDF, June 10, 1978.
69. 73 Cal. App. 3d 952 (1977).
70. See supra note 59.
71. Katz, 73 Cal. App. 3d 952.
72. Id. at 962.
73. Id. at 988-89.
74. 686 F.2d 1346 (10th Or. 1982), cert. denied, 459 U.S. 1147 (1983).
75. See, e.g., Wollersheim, 4 Cal. App. 4th 1074, 6 Cal. Rptr. 2d 532 (civil action brought by deprogrammed former member of the Church of Scientology); George, 3 Cal. App. 4th 52, 4 Cal. Rptr. 2d 473 (review denied and opinion ordered not to be published in official reports) (civil action brought by deprogrammed former member of International Society for Krishna Consciousness); Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (civil action brought by two deprogrammed former members of the Unification Church); Christofferson, 57 Or. App. 203, 644 P.2d 577 (civil action brought by deprogrammed former member of the Church of Scientology).