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The Case of Elizabeth Smart:
The Law of Kidnapping, and the Possibility an Insanity Defense May Be Raised


Thursday, Mar. 20, 2003

On June 5, 2002, 15-year-old Salt Lake City resident Elizabeth Smart was abducted from her home. Nine months later, on March 12, 2003, Elizabeth was found alive, and apparently in good physical health. In connection with the crime, the police arrested 49-year-old Brian Mitchell - a homeless man whom Elizabeth's parents had employed as a day laborer in their home shortly before Elizabeth's disappearance - and his wife, 57-year-old Wanda Barzee.

It was soon disclosed that for most of her absence, Elizabeth had been in the Salt Lake City area, often within short distances of her home. She had also frequently ventured out in public with her alleged abductors. As a result, many factual questions began to emerge. Had she tried to contact her family? Did she try to escape? Was she brainwashed? What was the motive for the kidnapping, and exactly what occurred during the months Elizabeth was gone? Were her kidnappers delusional?

In the main, these questions have yet to be answered. It is unclear, for instance, why Elizabeth did not take the opportunity to escape. Was she simply a very obedient child, as her pre-capture website posting stated? Did she fear for her life? Her young sister has claimed her abductor had a weapon. Was she "brainwashed" or experiencing "Stockholm syndrome" - a psychological state in which hostages are said to identify with their abductors and resist capture? Or is it possible that she believed, of her own volition, that she was called to be Mitchell's wife? Again, the website had described her as "very spiritual."

Fortunately, the legal backdrop, and some of the legal issues that are likely to arise, are clearer than the facts are at this point.

Kidnapping: The Evolution of the Crime

Kidnapping is actually a combination of two crimes. One is abduction, which involves taking a person from one place to another. The other is false imprisonment, defined as holding a person against his or her will.

Initially, kidnapping statutes - including the Federal Kidnapping Act - were primarily designed to punish taking people for ransom. One leading Supreme Court case interpreting that Act is Chatwin v. United States - a 1946 case with facts eerily parallel to those in the Smart case.

In Chatwin, the Supreme Court reversed the conviction of a 68-year-old widower and two others who had transported a fourteen-year-old girl to another state to enter into a Mormon "celestial marriage" with him. The Court held that the evidence supporting the charge of kidnapping - and in particular, the assertion that the girl had been "held" against her will or by deception - was insufficient, given the narrow purposes of the then-applicable Act.

Fortunately for prosecutors in cases such as Elizabeth's, modern kidnapping statutes are broader. The federal kidnapping statute that currently applies has a broader reach than the prior Federal Kidnapping Act. In addition, some states, including Utah, have "aggravated" kidnapping laws. Apparently, either federal or Utah law could be applied in the Smart case, for she was reportedly taken across state lines, to California.

On March 18, state prosecutors announced that they had charged Mitchell and Barzee with aggravated kidnapping, aggravated sexual assault, and aggravated burglary under Utah law. Both aggravated sexual assault and aggravated kidnapping carry maximum penalties of life in prison; convictions on the sex charges could mean that the defendants would be labeled as violent sexual predators, and confined for life in a state prison hospital in the event they receive less than life terms.

Lack of consent is an element of every kidnapping offense; but, for minors, there is a question of whose consent it must be. Under Utah law, if the victim is, like Elizabeth, between 14 and 18 years of ago, she cannot be detained or restrained against her own will. In contrast, if she were under 14, the power to consent would, instead, have belonged to her parents, and her own consent would have been irrelevant.

Thus to prevail on the aggravated kidnapping charge, the prosecutors will need to show that Elizabeth was detained against her own will. As the trial of Patty Hearst indicated (Hearst was convicted in connection with her abductors' bank robbery), proving that one was brainwashed or coerced is difficult.

The Different Types of Kidnapping, and Where Elizabeth's Fits

The FBI categorizes kidnappings according to the relationship of the perpetrator to the victim: family member, acquaintance, or stranger. Most perpetrators of child kidnappings are parents or acquaintances. Strangers account for less than a quarter of child abductions.

If Mitchell is indeed the perpetrator, then Elizabeth's kidnapping falls somewhere between a "stranger" and an "acquaintance" kidnapping. An "acquaintance" is usually defined as someone with an ongoing relationship with one of the parents - often a boyfriend or family friend. But Mitchell had limited contact with the family, by their own account; they say that he worked at the Smart house on one day, for only five hours.

If the Smart kidnapping is styled an "acquaintance" kidnapping, it is relatively typical. Such kidnappings are the most frequent kind when the victim is a teenager. In addition, "acquaintance" perpetrators often remove the victim from his or her home, as was the case with Elizabeth. They also snatch their victims at night - as was the case with Elizabeth - almost as often as during the daytime.

Thus, Elizabeth's was a typical "acquaintance" kidnapping, except for one fact: the suspect allegedly used a weapon in the abduction (Elizabeth's sister says Mitchell had a knife), which is unusual.

What if, instead, we view Elizabeth's kidnapping as a "stranger" kidnapping? In that event, it is somewhat atypical. According to the National Center for Missing and Exploited Children, 4,600 children are abducted each year by strangers, but the vast majority of these kidnappings by strangers are of short duration and result in nether physical injury or death. In only 100 or so of these cases is the child held for an extended period of time - as Elizabeth was - or killed, or made the subject of ransom demands.

Victims of stranger kidnappings are almost equally divided between children under 6 years of age and teenagers. Like acquaintance perpetrators, stranger perpetrators strike at night almost as often as they do during the daytime.

Though the Smart case fits fairly well into the typology of kidnapping, Mitchell and Barzee are not the usual perpetrators. Both are homeless and have histories of mental instability.

Brian Mitchell grew up in Salt Lake City, the third child in a family of six. His childhood was troubled, to say the least. In a March 16 interview with CNN, Brian's father, Shirl, revealed, among other things, that he had shared his obsession with pornographic pictures with his son; described how he had left Brian in a city park for a period of time at age 12, so that Brian could learn to appreciate having a home; and disclosed that Brian may have been sexually abused in day care.

As an adult, Brian Mitchell served as a low-level official of the Mormon Church, but he was excommunicated for criticizing the church's abandonment of polygamy. After that, Mitchell walked the streets of Salt Lake City in a long white robe allegedly preaching "the gospel of Jesus" and referring to himself as "Emmanuel" - a Hebrew word meaning "God is with us".

Mitchell is also said to have written a "manifesto," which he calls his own Book of Mormon (the Book of Mormon is the Latter Day Saints' equivalent of the Christian Bible or the Islamic Koran). His mother filed for a protective order to keep him and Barzee away from her, because she said they were threatening to destroy her home and to harm her for questioning the "manifesto."

Mitchell's attorney, Larry Long, said that Mitchell believed that he had been called by God to take Elizabeth as his wife. In disclosing this, Long may be laying the groundwork for an insanity defense. Could it work?

A Fine Line Between Fringe Religious Beliefs and Insanity

Psychiatric expert testimony will, of course, ultimately determine if Mitchell and Barzee can successfully assert an insanity defense, on the ground that they were suffering from a delusional or other psychotic disorder. Indeed, it has been suggested that the prosecutor added the aggravated sexual battery charge, in expectation of an insanity plea and to brand Mitchell as a sex offender. Speculations are that jurors will be less likely to accept an insanity defense if sexual assault is proven.

Utah has a very strict insanity defense law, similar to that of Texas (which I wrote about in a prior column on the Andrea Yates case). Notwithstanding the existence of a mental disease or defect, if a defendant had the intent to commit the crime - known as the mens rea element - he can be found guilty. The jury issue would be fairly straightforward: Did Mitchell and Barzee have the intent to take and hold Elizabeth against her will?

It may be difficult to determine where religious beliefs end and where mental instability, even mental illness, begins. What the law calls kidnapping, Mitchell thinks is divine revelation. Does this mean he believes religious authorizes him to break the law (which would not be a defense)? Or does it mean he is delusional?

Joseph Smith, father of the Mormon religion, was guided by a divine revelation. All Mormons believe that they existed as pre-mortal spirits before their human birth. They believe that certain Mormon men are "called" to the priesthood. Elizabeth's aunt and uncle are said to have had a dream the night before her return that she was alive and involved in a religious cult. Even her father said he had dreams about Elizabeth "coming walking into our room."

Meanwhile, Mitchell's wife, Barzee, may also have been delusional - though for her, the line may be easier to draw. A friend has reported that Barzee thought Elizabeth was her daughter. In the end, Barzee and Mitchell may be found to have been partners in psychosis, sharing delusions or fantasies - in a rare psychological phenomenon known as folie a deux.

What Are We To Make Of This Case?

We may never know the truth about Elizabeth's abduction and the time she spent in "captivity." The mental state and religious beliefs of her and her captors before, during and after the experience, relentless publicity, and intense pre-trial questioning that impedes accurate recall will all affect the trial version of events.

Just as investigators looking for tangible evidence are hampered by the passage of time and the spoliation of physical clues, so too are those who search for intangible and psychological clues thwarted by the way a case like this takes on a life of its own--a life that may, or may not, reflect what really happened to Elizabeth Smart in the nine months between June 5, 2002 and March 12, 2003.

Elaine Cassel practices in Virginia and the District of Columbia and teachers law and psychology. She is the author with Douglas Bernstein of a textbook on criminal psychology (Criminal Behavior, Allyn & Bacon, 2001). She is the chair of the Behavioral Science Committee of the ABA's Science and Technology Law Section. The views are her own and not reflective of those of the ABA.

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