LEGAL
CONSIDERATIONS:
REGAINING INDEPENDENCE
AND INITIATIVE
Herbert L. Rosedale, Esq.
Exerpted from
Recovery From Cults, Help For Vicitms
of Psychological and Spriitual Abuse
Controversies between zealots and society are not new. They
go back to the establishment of the social contract and relate to many of its
subsequent implications. Aspects of the controversies surfaced during the period
of accommodation between ideological monarchies and the middle classes and
during the period of division between secular and ecclesiastical authority with
divergent claims to fealty. The controversies renew from time to time when
beliefs of individuals or groups are so strong that they lead them to ignore or
violate secular law. These conflicts arise over a wide range of legal issues
that arouse strong passions and, consequently, particularly stimulate zealots of
many different stripes. Examples include the injustice of racially
discriminatory laws, conflicts over right-to-lifers' attacking abortion
clinics, and orchestrated efforts to nullify laws offensive to a particular
group for ideological or economic reasons. In contemporary society,
controversies relating to destructive, totalistic cults have expanded markedly
during the past 15 years.
When I first started to speak out about cults approximately
10 years ago, I was one of an extremely small group of lawyers who were willing
to address cultic groups' broad range of challenges to individual freedom and
personal liberty. The podium had in fact been largely forfeited to a strident,
well-organized clique of "civil libertarian" experts who discoursed at length
upon the inviolability of the First Amendment and the rights, vulnerabilities,
and vitality of so-called new religious movements.
Those who challenged totalistic groups were concerned with
the deception and manipulation of recruits and members and the existence of
psychological, financial, and sometimes even physical abuse within the groups
without informed consent. The critics' priorities were education and
deterrence. Critics believed that individuals could be quickly and decisively
deprived of their ability to think critically and to make independent judgments
and that the process of deprogramming could restore cultists' ability to
independently choose a general course of conduct that could either involve
return to the group or to their pre-group life-style and values.
Early debates focused on a number of questions: Did these
groups obtain membership through volitional though nontraditional religious
conversions or through coercive manipulation or fraudulent tactics that deprived
the new member of his or her freedom of choice? Could totalistic groups, in
claiming members' complete allegiance and obedience, demand and enforce
termination of all familial communications? Could such a group require a member
to isolate children and grandchildren from family members outside the
organization? Was action initiated by perceived emotional and physical risk of
a new member justified by necessity in the face of criminal charges of
kidnapping when a group member was involuntarily removed from the group? Did
counseling of any kind, whether consensual or nonconsensual, violate civil
rights of members of totalistic groups, who claimed they were being subjected to
faith-breaking presentations? Did religious motivation immunize noncriminal
injurious activities? In short, legal analysis and discussion addressed at
length questions of irrational conversion, the nature of free will and volition,
and the extent of protection that should be afforded to bizarre religious
groups., These questions were addressed by, among others, Delgado (1977, 1979,
1982), Dressler (1979), Lucksted and Martell (1982), and Shapiro (1983).
Recently, however, using the First Amendment as an absolute
icon has become more difficult. It is now generally accepted that the right to
religious freedom does not confer upon anyone the concomitant right to injure
another or deprive persons of freedom under the guise of religious motivation.
Indeed, recent decisions appear to have given more weight to the primacy of
other socially validated concerns, such as monogamy, family structure, and the
prohibition of mind-altering drugs, over the desire to engage in a religious
practice.
In recent years it has become far more evident that
destructive cultic groups are not limited to those who claim religious bonds.
The same issues arise and must be dealt with when a leader exercising power and
control over members requires politically correct ideas, dictates behaviors for
achieving psychological or physical well-being, or prescribes an absolute course
of subordinate conduct in order to become wealthy, healthy, or wise.
As the field has broadened so has its perspective
lengthened so as to consider legal problems arising after a person emerges from
a cult and struggles to regain independence and a sense of self-worth. I have
personally dealt with several dozen such people for whom such concerns were
primary. A person's ability to help former cult members deal with the legal
issues that arise is necessarily predicated on an understanding of the process
to which they were subjected. In this chapter I examine such legal issues rather
than look back to the older debates in this area.
ROLE OF LAW IN THE RECOVERY
PROCESS
After a person leaves a totalistic group, he- or-she often
turns first to the question of how to restore the essential legal trappings of
individual independence. First and foremost, the person addresses changes that
occurred in his or her family during the period of group involvement.
Marriage
Dissolving a marriage entered into while a member of a
group to someone who has remained in the group is frequently a first order of
business. This is not always easy, because sometimes the spouse is physically
inaccessible (geographically or otherwise) to the one who left the group. On the
other hand, the spouse who remains in the group may not wish to stay married
either since retention of ties to someone outside the group poses a potential
danger to the group, as it may provide a source of outside information and
disruption encroaching upon the leader's ability to control the member remaining
in the group. Continuation of the marriage may also prevent a new union with
another group member.
First, the ex-member should determine whether the marriage
was legally contracted or merely ceremonial. If the marriage was legal, there
are various ways to dissolve it, usually by divorce or annulment. No-fault
consensual divorce is the most common method, but annulment is sometimes
available when it can be proved that the marriage was not entered into knowingly
or voluntarily or that there was fraud in its inducement. Since some ex-members
will want an annulment rather than a divorce because of religious values and
moral precepts, the possibility of annulment should be fully explored. In a
recent case, an annulment was granted based on a professional's testimony that
the marriage had been ordered by the cult leader, and therefore the marriage had
not been entered into with the couple's free will and consent.
Children
A second aspect of family structure that often must be
addressed deals with children. Child custody, visitation rights, education, and
religious practices are among issues that may arise (Greene, 1989; Kandel,
1987/1988). Cases dealing with the dissolution of marriages of persons with
mixed religious faiths offer guidance and legal precedent.
If the ex-member seeks legal custody, visitation rights, or
restrictions on the cult member's activities, much will hinge on expert
testimony about the practices of the group and their effects on the child.
Depending on a child's age and circumstances, it may be shown that the group's
practices may be harmful to the child's best interest. With proper use of expert
testimony, decisions have been made in which the parent emerging from the group
has been granted sole custody and, in some instances, limitations have been
placed upon the child's contacts with the parent remaining in the destructive
group, or participation in the group's activities.
It is necessary to carefully document actual and
prospective harm before going into a judicial hearing (Greene, 1989; Kandel,
1987/1988). Sometimes agreements are able to be reached between spouses when
there is a cooperative willingness to deal with the best interests of the
children. I am aware of many cases in which membership in a group has not so
dominated the views of parents that they are unable to perceive the jeopardy to
their children's welfare posed by the children's continued participation in
certain of the group's practices.
A difficult issue receiving current attention is how to
treat children who have spent major developmental portions of their lives in a
group that restricted their ability to interact with people in the outside
world. Very little study has been done to document this problem (see Chapter 17,
Children and Cults, in the book
Recovery From Cults).
Further study is needed, and comparisons to other groups living in separate
communities may be helpful.
The law is on the edge of establishing the rights of
grandparents to have communication with their grandchild. The thrust and pace of
this development in the law differs from state to state, in some instances
relying on statutes, in others being a matter of case-by-case decisions. These
issues arise most frequently when parents are members of a group and
grandparents, who are not members, seek communication or contact with their
grandchild and enrichment of their grandchild's life through exposure to
extended families. Issues also arise when grandparents discover serious
deficiencies in the medical treatment or education their grandchild receives in
or because of the practices of the group.
The decisive legal issue is the welfare of the grandchild.
What is important is the development of the law and its recognition of the value
of communication between children and all members of their families, including
grandparents, even in the face of parental opposition. While much is left
uncertain, this recognition should give great hope to the grandparent in this
situation who is hoping to gain access to the grandchild. I also believe,
although I know of no legal authority, that one should not reject out of hand a
potential assertion of aunts' and uncles' rights asserted by a sibling of a
parent in a cult.
Severing Contractual Commitments
It is usually necessary to sever cult-related contractual
commitments made while the person was a cult member. For example, the member's
lawyer may have been chosen by the group as a way of subordinating that person's
rights to group control. This lawyer may primarily represent the group's best
interests. Termination of that lawyer-client relationship as soon as possible
is essential, for it places shackles upon the will of the emerged person.
While this may seem self-evident, I offer as an example a
bizarre case in suburban New York. The judge in that case asserted that by the
act of discharging a group-chosen lawyer, a former cult member may have
evidenced a lack of independence of will. During this contest the group-chosen
lawyer, against the expressed intent of the ex-member, sought to stir up claims
against the ex-member's parents and interfered with her relationship with her
newly chosen lawyer. The judge ordered her to have a psychiatric examination to
determine her mental capacity. Despite arguments that firing one's lawyer is not
a sign of insanity, the woman was compelled to undergo a psychiatric
examination. Luckily it all worked out, but it was a humiliation the ex-member
should never have been subjected to.
Another area of concern may be contracts that the person
signed as a group member, some of which by their terms last millions of years.
An objective reading will show that it is absurd to think that these contracts
are legally enforceable documents. However, when a person emerges from a
totalistic commitment, he or she needs to be assured that these contracts are
legally unenforceable. In order to free the person from the oppressive fear that
the contracts constitute morally or legally binding obligations, it is also
important to explain to the ex-member why the contracts are not legally valid,
so the person can view them in a newly independent rational context, restoring
his or her respect for the legal system and deepening the person's
understanding of his or her exploitation by the group.
It is very important that all contracts made as a group
member be reviewed by a lawyer before the ex-member continues to honor them.
Some contracts may be voidable because the person was fraudulently induced to
sign them, or because the contract requires the person to perform illegal acts
or unenforceably restricts the person from taking desired action. Sometimes the
group will seek to pressure a former member to ratify a contract by asking the
ex-member to honor a commitment as a demonstration of goodwill. If a former
member, after leaving a group, continues to carry out his or her duties under a
contract, a court might rule that the contract has been ratified, even though
it could have been avoided. This might occur, for example, when the group bills
the former member for "unpaid" donations and the person pays these bills after
leaving the group. Contracts may also require unenforceable donations of
services or agreements to commit or refrain from certain activities.
It is essential that ex-members be able to turn to a lawyer
and supporter of their own choosing. Nothing should be done between the
ex-member and the group without consulting counsel.
Recoupment of Financial Losses
After severing their contractual burdens, former cult
members often try to recoup the financial losses they incurred during
membership. For example, a member may have been underpaid as an employee of one
of the group's businesses, may have been swindled out of money, or may have paid
money for services that were not completely used.
Group businesses must comply with applicable regulations
and labor laws. Groups operate gas stations, fur shops, newspapers,
restaurants, printing plants, publishing houses, and sell flowers and books.
These businesses must observe minimum wage laws and laws governing hours and
conditions of employment.
Numerous former members have won legal redress based on the
group's noncompliance with these laws, but claims must be made promptly because
of short statutes of limitations. In this area government agencies, such as
state and federal Departments of Labor, will frequently aid in the formulation
of a claim and effect a recovery; in such an instance, a lawyer is needed only
to guide the complainant through the appropriate state agencies. Additionally,
an injury that may have been incurred as a result of unsafe conditions of
employment may provide grounds for appropriate recourse and may likewise be
enforced by state agencies. Losses may have been incurred through job
exploitation, such as fraudulently induced donations or investments in a
cult-related enterprise based on sales representatives.
Alternatively, the member may have paid money to be set up
in a business franchise using the name of the group or a name owned by the
group. In such circumstances, the ex-member may be legally entitled to full
reimbursement if the group failed to comply with applicable laws at the
inception of the arrangement. Additionally, if a legally required "cooling-off'
period was not granted to allow the member to change his or her mind, certain
types of contracts may be void. In cases where the member was given a "license"
to use some of the trappings of the group or its "technologies," failure to
comply with state laws may invalidate the agreement. In other cases, where the
ex-member prepaid for services never received, the ex-member may be able to
recoup part of the money attributable to the unused portion of the services.
In no circumstances should financial losses be abandoned; a
lawyer should review the matter to see if legal recourse exists. However, the
law does not provide a right to the recoupment of all losses. An honest case
assessment should be made before an ex-member heads down the ofttimes costly
road of litigation, seeking a large recovery for real but nonrecoverable loss.
There are some losses that are simply too hard to prove or too remotely
connected to a wrongful act to be able to be recovered through the courts. That
does not mean the injury and pain of loss is not real. It merely means that the
law's reach does not extend as far as the greedy grasp of a destructive group.
Emotional or Consequential Loss
In many instances the most severe loss that a member has
suffered is an emotional damage incurred as a consequence of abuse. In such
cases recovery of damages is extremely difficult and often speculative. Again,
this does not mean that the injury is not real. What it means is that these
cases may not readily be settled by the group, and the time from inception to
financial recovery may stretch out over many, many years. Lawyers will be very
reluctant to take on such litigation because of the expense in prosecuting it.
While some lawyers do accept cases based upon sharing in a recovery, most will
reject such an arrangement where the recovery is long deferred or requires too
much time and expense to achieve. Also, during the process of litigation cult
groups seek to make recovery of a judgment extremely difficult so that even a
victory may not be translated into dollar recoupment. In recent periods we have
seen a number of significant recoveries against cult groups go up and down on
appeal in the highest courts of the Supreme Court, while a plaintiff who has won
verdicts remains uncompensated.
An additional factor in undertaking such litigation is the
emotional stress and strain upon the former cult member. The cult, in their
defense, will not hesitate to assert that the group was not the cause of the
plaintiff’s pain and loss. In doing so, the cult will use - to its benefit and
to the detriment of the former member -whatever private and confidential
information it has regarding the ex-member and his or her families, friends, and
acquaintances.
The time necessary for the ex-member's participation in the
litigation, as we know, can often be substantial and dragged out over long
periods of time, providing yet another impediment to the process of recovery and
the ability of the former member to reorganize his or her life.
I do not unqualifiedly discourage litigation, and note that
a few people made it work for them by achieving appropriate legal redress for
harm done, and others have gained a significant degree of self-esteem by having
the opportunity to confront their oppressor in the legal arena.
BROADER SOCIETAL ISSUES
In addition to the immediate legal issues that arise when a
member leaves a destructive group, there are larger social questions as well.
Abuse of Women and Children
Within totalistic groups there is a pattern of
victimization of the weak by the strong. Most prevalent is the systematic abuse
of women and children (see Chapters 17, Children and Cults, and Chapter 18,
Ritualistic Abuse of Children in Day-Care Centers, in the book
Recovery From Cults)
through the exercise of arbitrary power and the demand for perfect performance.
The very first resolution unanimously adopted by the Interfaith Coalition of
Concern about Cults in the New York metropolitan area was the condemnation of
the abuse of women and children by destructive totalistic groups.
It has become clear that the perpetration of such abuse is
not limited to religious groups. Exploitation of the weak, the naive, the
credible, and the vulnerable is an issue troubling our society and other
societies worldwide. Groups working to protect victims of destructive cults are
working more closely with groups representing those victimized by other forms
of familial or societal abuse.
In a number of states, governmental action has been
successful in extricating children from abusive groups to save them from further
injury. In some instances, courts have supported the government's interest in
the health and welfare of minors over the opposition of a parent who submits to
the group leader's unquestioned authority with unconditional obedience. Other
cases, unfortunately, have not succeeded in rescuing these children.
Significant controversy still remains concerning the denial of medical
treatment to children (see Chapter 17, Children and Cults, in the book
Recovery From Cults)
Progress with respect to sexual abuse and victimization of
women has been slow. More and more evidence of this type of abuse has surfaced,
much of it related to abuses of power and destructive rituals.
Many Varieties of Abusive Groups
The years of public education undertaken by critics of
totalistic groups have increased public awareness of the destructive
consequences for those who surrender their own independent judgment to cultic
groups. Education and publicity have also increased awareness of the risk in
abusive psychological groups that are not full-fledged cults. Indeed, such
abusive practices may occur in groups that seek a good purpose, such as a cure
for drug abuse or weight reduction. Similarly, we have become more aware of
abusive techniques in psychological well-being groups, "sport clubs," and
certain masters or "Svengalis" in the arts. Nothing more graphically illustrates
the irrelevance of the cults' professed purposes than the examination of the
variety of subject matters covered by them. Power and profit are the sole
unifying common elements.
Political Threats
A flickering of awareness of the political threat to our
society posed by totalistic and cult-controlled groups is developing. Activities
of the New Alliance Party, Lyndon LaRouche's political parties and front groups,
and Transcendental Meditation's Natural Law Party have recently sparked
meaningful debate. All these groups siphon support from federal sources. The
Unification Church has come under scrutiny for its politically active front
groups and its funding of ultraconservative political organizations here and
abroad. Additionally, attention has been directed toward the practices of a
number of groups that seek to create or cleanse society on religious or ethnic
grounds, and seek to co-opt and corrupt with cash offers in exchange for power
and control.
Religious Groups
During this period of time many conventional religions have
become aware and concerned about groups that have become abusive. Concern about
them and the harm they foist upon their members frequently has become a subject
of discussion among mainline religious leaders (see Chapter 12, Guidelines For
Clergy, in the book
Recovery From Cults).
Hopefully, this concern evidences a trend away from using religious motivation
as an immunity toward a recognition of civic responsibility regardless of
religious motivation.
Economic Power and the Legal System
Totalistic groups wield economic power and use it for
social and legal leverage. There is no counting the number of people who have
discovered that holding a valid legal right is worthless against a group that
can make it economically impractical to enforce. As a lawyer, I am keenly aware
of the deficiency in our legal system when one side has a "deep pocket" of
economic resources. An opponent with fewer resources may be prevented from
obtaining justice because of a seemingly limitless horde of opposing lawyers
imposing overwhelming costs and obtaining interminable delays.
I have been approached by many people who possess written
acknowledgment that sums are due them from certain groups, yet they cannot
enforce their rights because the legal fees would cost more than the amount
involved. Sometimes groups are willing to spend far more than is at issue to
defeat and delay recovery on a claim, just to deter others.
It is not that a new set of laws is needed. Totalistic
groups can be brought within the legal system rather than allowed to remain
outside or above it. Totalistic groups are not entitled to special treatment or
protection. They should become responsible members of our community.
THE PRESENT AND THE FUTURE
The role of the legal system in addressing problems arising
out of the presence of destructive cults in our society has gone through a
period of slow evolution. Existing legal modalities have been adapted to deal
with the problems created by destructive cults (Rosedale, 1989). In reaching
these conclusions significant controversies remain concerning the following:
relationships among family members, the balance between church and state, the
preservation of individual liberty and freedom of thought, and the application
of laws governing fraud and misrepresentation without regard to the motive of
the person or group committing these acts.
In many instances the legal system comes up short of being
just. It is hobbled by the economic cost of enforcing legal rights. It is
limited by the effort required to cut through the use of myth and the
perversion of language common to totalistic groups. An example of this appeared
in an exchange of letters (Rosedale, 1992; Small, 1992) in The American Lawyer
after its publication of an article (Home, 1992) about the Church of
Scientology's legal representation. A lawyer who had represented the church
pointed out that in his view the differences between the Church of Scientology
and ordinary litigants was that the church made decisions "as a matter of
principle" and was willing to litigate over principle more vigorously than other
citizens. His statement is morally neutral until you determine what the
principle is. If the "principle" is to crush dissent or financially punish
critics by using the legal system as a weapon, then the morally neutral
statement becomes a road map for oppression. When I confronted a lawyer about
his tolerance of his client's criminal conduct in a Scientology-related case, he
told me, "You do what you have to do to win." So much for "principle."
I understand all too well that the decisions of totalistic
groups to fight their critics to the death may be a matter of principle. That
principle is anathema in our pluralistic society and in an adversarial legal
system which still requires commitment to the survival of the disenfranchised.
The legal system provides some aid to those in the process
of recovery and disengagement from totalistic groups. It does not provide
emotional satisfaction in redressing a wrong, nor does it adequately compensate
for harm done. However, over a period of time it has enabled people who left
totalistic groups to at least partly pull themselves out of the morass that
they have entered into, to readjust their family relationships, to complete
their severance, and to impose upon the totalistic groups a degree of
accountability previously unknown. In this, the system has performed a useful
function, provided its limitations are acknowledged and understood. As we move
forward, I hope that the law will continue to address the wrongs that have
occurred and that it will be an instrument of private redress and a vehicle for
the reformation of behavior through accountability.
CHECKLIST FOR POST-CULT LEGAL ISSUES
Family Issues
Marriage
ü
Does the ex-member want to dissolve a marriage to someone still in
the cult?
ü
Was the marriage legally binding or just ceremonial?
ü
If legal marriage, can it be annulled because it was induced by
fraud or coercion?
ü
If not, is it possible to obtain a divorce?
Children
ü
Are there or does the ex-member anticipate child custody conflicts
with a spouse in the group?
ü
What custody arrangement is in the best interest of a child who
has one parent in a cult and one parent who has left the group?
ü
Would custody or visitation by the parent in the group be harmful
to the child because of the group's practices? If so, testimony by expert
witnesses is crucial for success in court.
ü
Do the grandparents wish to have contact with a grandchild, one or
both of whose parents are in a restrictive group?
Financial Issues
Contracts
ü
Are there loans, obligations, or contracts that ought to be
reviewed, either to avoid further obligations or to recover past payments? This
should be done as soon as possible by a lawyer of the ex-member's choosing. The
ex-member should be advised how to respond to pressure from the group to fulfill
a contract.
ü
Did the former member enter into damaging contracts with the group
that are legally unenforceable?
Financial Losses
ü
If the ex-member worked in a group business, has the group
violated wage and hour laws? Was the ex-member appropriately paid for services
rendered to the group? Because legal deadlines for pursuing these types of
claims are short, the ex-member must act rapidly.
ü
If the former member signed a contract giving the group money or
property, were state laws regulating contracts (such as the required
"cooling-off" period) violated so that the contract is void?
ü
Does the ex-member believe he or she might have been misled,
defrauded, or otherwise exploited in business dealings with the group or its
leader?
ü
Is the group interfering with contractual arrangements between
the ex-member and persons remaining in the group?
Physical and Psychological
Abuse
ü
Is the group violating laws that protect children and adults from
physical abuse?
ü
Is the government empowered to remove children from abusive
groups?
ü
Does the ex-member have reason to believe that he or she suffered
unusually severe emotional distress or residual physical injuries as a result of
the group involvement?
REFERENCES
Delgado, R. (1977). Religious totalism: Gentle and ungentle
persuasion under the First Amendment. Southern California Law Review,
5(1),1-97.
Delgado, R. (1979). A response to professor Dressler.
Minnesota Law Review, 63, 361-365.
Delgado, R. (1982). Cults and conversion: The case for
informed consent. Georgia Law Review, 16(3), 533-574.
Dressler, J. (1979). Professor Delgado's "brainwashing"
defense: Courting a determinist legal system. Minnesota Law Review, 63,
335-360.
Greene, F. (1989). Litigating child custody with religious
cults. Cultic Studies Journal 6(1), 69-75.
Home, W. W. (1992, July/August). The two faces of
Scientology. The American Lawyer, pp. 74-82.
Kandel, R. F. (1987/1988). Litigating the cult-related
child custody case. Cultic Studies Journal 4/5(1), 123-131.
Langone, M. (1993),
Recovery From Cults: Help For Victims
of Psychology and Spiritual Abuses W.W.Norton
Lucksted, 0. D., & Martell, D. F. (1982, April, May, &
June). Cults: A conflict between religious liberty and involuntary servitude?
FBI Law Enforcement Bulletin, 51(4, 5, 6), pp. 16-20, 16-23, 16-21.
Rosedale, H. L. (1989). Legal analysis of intent as a
continuum emphasizing social context of volition. Cultic Studies Journal, 6(1),
25-31.
Rosedale, H. L. (1992, September). Letter to the editor.
The American Lawyer, pp. 17-18.
Shapiro, R. (1983). Of robots, persons, and the protection
of religious beliefs. Southern California Law Review, 56(6),1277-1318.
Small, T. (1992, September). Letter to the editor. The
American Lawyer, pp. 17-18.
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