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It took less than a day for a jury to find Nxivm founder Keith Laniere guilty of all charges, including racketeering and sex trafficking. While it appears from reports that both the “cult experts” and the Nxivm victims who testified at the trial abstained from using the term “brainwashing” in their testimonies, news coverage of Nxivm and the trial has frequently alleged that “brainwashing” was somehow involved.
On June 14, the day that the subhead of a New York Times article asserted that, “Former Nxivm members testified they were brainwashed into being branded and assigned to have sex with him,” Kevin D. Williamson of the National Review published a short post titled, “There Is No Such Thing as ‘Brainwashing,’” in which he pointed out that the concept has “no scientific basis” and is generally regarded as “pseudoscience.” What his post does not mention, however, is that a long struggle between scholars culminated in the conclusion that the “brainwashing” thesis is unscientific and therefore is generally not admissible in trial testimony.
In a 2018 Vice article flagged in Williamson’s post, author Sarah Berman lamented the fact that many juries had rejected so-called brainwashing testimony, but that portrayal is a serious misrepresentation of developments in this interesting legal arena. The piece is replete with claims that are not factual, including attempts to blame juries when in fact key decisions have been made by judges who disallow juries to even hear such testimony because it’s so biased. The general public from whence juries are selected has not soured on “brainwashing” testimony, but the court systems have come to understand the problematic nature of it. Why and how this situation has evolved is worth a corrective recounting.
“Brainwashing,” as Williamson notes, is a pseudo-scientific concept that has been used for decades as a social weapon against unpopular groups and causes since a CIA operative, Edward Hunter, first used it in the 1950s. His writings were an effort to convince America that some powerful and heretofore unknown and horrific techniques were being used against citizens in China with the takeover by the Chinese Communist Party. That was not true, and what happened there, and with a few GIs in Korea who refused to be repatriated for a time after the Korean War ended, is easily explicable using well-known concepts and processes from sociology and social psychology. No magical black box of “brainwashing” is needed.
It took a while for courts and judges to realize that those opposing new religions were duping them, and problematic brainwashing testimony did prevail at the trial court level in some early cases. However, most of those victories turned out to be hollow ones, as appeal courts overturned verdicts based on such flimsy and prejudicial evidence. Indeed, it’s ironic that in her piece Berman focused on clinical psychologist Margaret Singer (1921-2003), who testified in over 40 cases promoting brainwashing theories because she contributed directly to the demise of brainwashing-based evidence in courts in the United States. Singer’s efforts in two important federal cases in which she either tried to, or did, testify led directly to “brainwashing” testimony being disallowed in court cases in the federal system, and those two decisions were influential in deterring use of such testimony in state court cases as well.
The first is a civil case, Robert Kropinski v. World Plan Executive Council et al (1988), brought by some former members against Transcendental Meditation and its leaders claiming fraud. Singer testified for the plaintiffs, which resulted in a victory, including a modest monetary award. However, the influential D.C. Circuit Court of Appeals overturned it ordered a new trial. In that 1991 trial, Singer’s testimony was disallowed because it did not meet the evidentiary standard of testimony being generally accepted in relevant disciplines.
Then, in a key criminal case, United States v. Fishman (1990), Singer and sociologist Richard Ofshe, the two strongest proponents of “brainwashing” theories in legal actions, were seeking to testify on behalf of Stephen Fishman, who was charged with mail fraud. Fishman had been a member of the Church of Scientology and claimed he was “brainwashed” into committing certain acts. The judge in the case reviewed expert statements, especially one by psychologist Dick Anthony (who had also consulted in the Kropinski case and others), and then disallowed such testimony on the ground that it was not generally accepted within the relevant disciplines.
Note that brainwashing-based testimony was disallowed in both a civil and a criminal trial in the federal court system. Following those losses, the American Psychological Association, the largest professional organization of psychologists, also rebuffed Singer’s efforts on behalf of brainwashing. She instigated and headed a special task force of the APA to investigate brainwashing-based claims. When the report was submitted and reviewed by the APA, it was soundly rejected, with directions that the report was not to be cited as support for any such theories. The report, and the APA decision rejecting it, have been cited in subsequent court cases, contributing to the demise of such testimony in court cases.
Singer’s credibility was also brought into question by other related actions she and Ofshe took against a group of sociology, psychology, and religious studies scholars who disagreed with their efforts to promote brainwashing theories in courts. They sued a group of scholars (including this writer) in federal court in New York for allegedly violating federal racketeering statutes (RICO) as we used the mail and phones to discuss how to counter their efforts to promote pseudo-scientific theories in court. That suit was eventually dismissed but not before causing considerable trouble and expense for those scholars. Singer and Ofshe then refiled the suit in California state court as a libel action, but that too was eventually dismissed, and Singer and Ofshe were ordered to pay the costs incurred for those being sued.
This history clearly shows why most courts in the United States are reticent to accept such theories today. The science underlying such claims is faulty, and courts have realized that accepting such claims undercuts the very basis of the legal system, which is that individuals are responsible for their own actions. Brainwashing-based claims have too often been used as an excuse to explain what is better described as poor decisions on the part of those using such claims to justify their actions.
Certainly those promoting brainwashing-based theories in court will continue to make such efforts and to change the language they use to get these notions accepted by the courts. And they may have occasional successes, given the strong anti-cult biases that exist in the populace and even among some judges. But the fact remains that brainwashing and related terms like “mind control” are pseudo-scientific concepts that are more of an “account” developed to justify previous actions now considered to be ill-advised. Brainwashing-based accounts may serve well to justify decisions now thought to be bad ones to friends and family, but courts should continue to treat them as scientifically invalid concepts.