The High Court surreptitiously reintroduced the discredited and pseudoscientific theory of mind control.
by Patricia Duval
Article 4 of 7. Read article 1, article 2, and article 3.
Any restriction on the right to freedom of religion or belief must be based on serious grounds.
It is certainly not legitimate if it is based, as the courts did in this case, on a controversial and far-fetched theory of undue psychological influence or “mental manipulation,” which lends itself to discriminatory application.
Mental manipulation
Although the High Court did not use the term “mental manipulation,” it based its decision on that very theory. It ruled that the Church members had acted against the public welfare through “conduct aimed at restricting the free will of the targeted individual and placing them in a state where it is difficult for them to form an appropriate judgment regarding the appropriateness of making a donation, etc.”
The Court attributed this mental manipulation to the Church’s religious doctrine itself and found that the believers “suppressed the free will of target persons, placed them in a state in which it was difficult for them to make an appropriate judgment as to whether to engage in activities based on the Church’s doctrine, and further placed them in a state in which it was difficult for them to withdraw from the Church’s doctrine.”
Based on the judgments rendered in the civil liability cases cited in the petition for dissolution—in particular the provisions regarding the use of karma to instill fear and obtain donations—the Court found that the “degree of psychological influence” was excessive and had resulted in an infringement of the free will of the individuals concerned.
However, the international scientific community and the courts have ruled that the concepts of “mind control” and “undue influence” are neither scientific nor reliable.
In 1981, the Italian Constitutional Court ruled that the concept of “plagio” (the Italian early version of mental manipulation) was too vague and did not allow for a clear definition of the corresponding offense; it therefore ordered its removal from the Italian Penal Code (Constitutional Court decision no. 96, June 8, 1981).
The Constitutional Court provided a detailed rationale and, in particular, outlined the current state of scientific research in this field: “13. – Medical science has carefully investigated the shaping of persuasion, suggestion, and psychic subjugation, and the mechanics thereof. Amongst psychically normal individuals, a person’s communication of ideas and convictions to other human beings can result in an acceptance of such ideas and convictions, and so bring about a condition of psychic suggestion, meaning that such an acceptance consists of a transfer onto others of the product of a psychic activity performed by the agent, therefore a limitation of the person’s determinism. This limitation, as was scientifically proven and ascertained, can bring about a typical situation of psychic addiction which may reach, over time, a high degree of intensity, as is the case with a love affair, a priest/believer relationship, a teacher/pupil relationship, a doctor/patient relationship; it may even bring about a mutual influence relationship.”
Yet, the Court, about the crime of “plagio,” found that it was “extremely difficult, or even impossible, to isolate in actuality—and to differentiate for purposes of juridical consequences—a psychic activity of persuasion from an activity of suggestion, which is also psychic,” and that “there are no sure criteria to separate and describe one activity from the other, or to ascertain their exact borderline.”
The Court reasoned further: “The statement that in persuasion the passive subject still holds on to his power of choice based on the arguments he is given, so that he can refuse and criticize, whereas in suggestion the convincing action takes place directly and irresistibly, thus taking advantage of the other’s inability to criticize and to choose, implies necessarily that one has to make an evaluation not only about the intensity of the psychic activity by the active subject, but also of the quality of its results.”
As concerns the intensity of the psychological influence, the Court underlined that “the results of various psychiatric, psychological, psychoanalytical tests have shown that every individual is more or less prone to suggestion, but that it is impossible to find degrees of such activity, nor to ascertain in practice to what extent the psychic activity of the person giving out ideas and principles can prevent another from freely exercising their willpower.”
Given the current state of scientific knowledge, it is impossible to determine whether, and at what point, persuasion through communication can become psychological suggestion and result in the deprivation of the free will of the individuals concerned.
The Constitutional Court reached the following conclusion: “As for the evaluation of results, it will only be symptomatic, and will turn out positively or negatively to the degree that the activity performed on the passive subject brings him/her to devious behaviors as compared to ethically, socially, and juridically acceptable models.”
The question of whether the target person is psychologically subjugated is then decided arbitrarily, depending on the relationship’s degree of social acceptability and the influence in question.
This is why the application of concepts such as “infringement of free will,” “psychological influence,” and “impairment of decision-making capacity”—as used by the Japanese High Court in its ruling—is entirely arbitrary and depends on whether the behavior in question is deemed “socially deviant.”
This is precisely what happened with the Japanese courts, which held that the proselytism of Unification Church members deviated from social norms and was therefore inappropriate and infringed the free will and rights of the claimants.
The Italian Constitutional Court rejected the use of such concepts for criminal prosecution as they could only lead to arbitrary determination: “In the case of plagio, the ascertainment of whether this psychic activity can be classified as persuasion or suggestion, with all the juridical effects that may go along with it, will be far from certain, and will be left to the Judge’s decision. Indeed, whenever article 603 is enforced, any ordinary relationship—be it a love affair, a religious profession, a participation in ideological movements, or otherwise—if it is based on “blind, complete” adhesion of one subject to another and is considered socially deviant, may be criminally prosecuted as plagio.”
Consequently, the Court concluded to “an absolute arbitrariness of its practical application” and ruled that article 603 of the Penal Code had to be declared constitutionally unlawful.
For the same reasons, the concept of mental manipulation should be excluded from procedures for dissolving religious associations, a measure that amounts to a death sentence for legal entities.
The European Court of Human Rights has similar case law.
In the case of “Jehovah’s Witnesses of Moscow v. Russia,” the European Court held in 2010 that “there is no scientifically established and generally accepted definition of what constitutes ‘mind control,’” and rejected the argument by the Russian authorities that their proselytizing “infringed the rights and freedoms of its members or third parties.”
The Court ruled accordingly that the dissolution of the Jehovah’s Witnesses’ association constituted a violation by Russia of their right to freedom of religion.
This is without mentioning the entire body of case law in the United States, in a legal battle that ended in the 1990s, when U.S. courts rejected the theory of mind control as applied to religious matters, because it was neither scientific nor reliable.
It follows that this vague and arbitrary concept, which has been discredited worldwide, cannot be used to purportedly protect others’ fundamental rights or public order.
Patricia Duval is an attorney and a member of the Paris Bar. She has a Master in Public Law from La Sorbonne University, and specializes in international human rights law. She has defended the rights of minorities of religion or belief in domestic and international fora, and before international institutions such as the European Court of Human Rights, the Council of Europe, the Organization for Security and Co-operation in Europe, the European Union, and the United Nations. She has also published numerous scholarly articles on freedom of religion or belief.
