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The Elizabeth Smart Case:
Why We Need Specific Laws Against Brainwashing

Thursday, Mar. 27, 2003

Elizabeth Smart's rescue from her abductor, Brian David Mitchell - a fundamentalist extremist who kidnapped her to make her one of his seven divine wives - has been the subject of intense press coverage. But that coverage has been curiously circumscribed.

Over and over, analogies have been made to the Patty Hearst case. Like Smart, Hearst was a girl apparently brainwashed by her captors. But there are significant differences between the two cases. First, Smart was sexually assaulted by an adult, which should have led to stories about the psychological effects on children of repeated sexual abuse by adults in control of them.

Second, the brainwasher in Smart's case used religious brainwashing, which should have brought to mind the charges brought against the Reverend Moon's Unification Church and suicide cults such as Jim Jones's. Religious brainwashing can be extraordinarily powerful, and dangerous to those who are either too young or too disabled to withstand the religious pressure.

Brainwashing, particularly religious brainwashing, is a phenomenon about which Americans are largely in denial. The law is in denial too - and that's why the charges Utah has brought against Mitchell do not fully reflect the crux of what was done to Smart.

Denial Is Often a Problem When Religious Brainwashing Is Claimed

Why has the religious brainwashing analogy not been explored in the papers? One answer may be that it is very difficult for Americans to come to terms with the fact that religious individuals and organizations can willfully harm others. This kind of denial may explain why it took decades for the media to break the extent of the Catholic clergy abuse scandal. It may also explain why it is still the case that precious few are covering it with the vigor it demands from the perspective of the public--and especially the children's--good.

Another answer may be that there is a second level of denial here, because Americans have a fundamental belief in free will. To those with that belief, brainwashing is especially terrifying, because it involves the loss of the core of individual liberty.

Accordingly, the early questions about Smart assumed her free will was intact during her captivity. They focused, then, on why she had not escaped on her own. Had her captors threatened her? Did they have weapons? Was she ever left alone? These, however, are the wrong questions.

Smart was reportedly kidnapped at knife-point and sexually attacked. Her captors also threatened her family. But these were not the only reasons that she could not use her free will to escape. They were part of a set of tactics by which her captors ensured she would no longer have free will to exercise in the first place. And those tactics included not just these physical threats and assaults, but also a number of kinds of mental manipulation connected to Smart's own religion.

One Who Has Lost Her Free Will Is No Less a Prisoner

Children (as well as emotionally or mentally disabled adults) are at serious risk of being subject to manipulation, especially when religion is involved. Consider, for instance, the manipulation Smart - after being separated from her family, friends, and indeed, everyone she knew - endured.

Smart was devout to begin with. Mitchell professed to practice a purer version of her own religion. He claimed a divine revelation had shown him he should take her as his wife. He changed her name to one he had chosen. And all the while, he espoused his own eccentric version of Mormon fundamentalism.

The press has given us these few facts in outline, leaving the previous religious brainwashing cases to the side, and, further, it has done precious little to further explore the dynamics of the sexual element of the sort of crime suffered by Smart. Children who are sexually abused seriatim, as it appears Smart was, are subject to a cognitive distortion that leads them to identify with and think like the offender. This explains why the clergy victims often tell stories of repeated abuse and later guilt. It also explains why victims of incest may not be able to tell others for years. The sexual nature of the manipulation combined with its religious elements was a lethal combination.

If Smart, in this climate of physical and mental manipulation, became Mitchell's religious devotee, as reports have suggested, it is not surprising.

The evidence points to the fact that she was Mitchell's prisoner every bit as much as if she had been locked in a cage every single day of the nine months she was gone. Unfortunately, however, the charges against Mitchell filed by Utah involve only aggravated kidnapping, aggravated sexual assault and aggravated burglary. Serious charges to be sure, but these charges do not get to the further crime against Smart: brainwashing.

(The other missing charge against Mitchell was statutory rape. Unfortunately, Utah statutory rape law does not protect girls who, like Smart, are fourteen or older. Like other states, Utah should recognize that statutory rape ought to apply to older girls--at least up to those who are 16 years old --as well.)

The Need for Specific Anti-Brainwashing Laws

Despite the high value placed on free will in the United States, the harm caused by the brainwashing of children and disabled adults has rarely been addressed by any specific legislation. The criminal law ignores this unique crime, and civil claims do not directly address it either.

In order to sue for civil damages, lawyers therefore must craft a complaint from existing tort theories - such as intentional infliction of emotional distress - that are difficult to prove. Yet, people like Mitchell do far more than inflict garden-variety emotional distress; they undermine the very foundation of their victims' personalities and independence.

No adult should be permitted to take a child from her parent or guardian, and then take away her nascent free will. Society should guard against such abuse, as well as the more obvious types of physical and sexual abuse it already prohibits (though in many cases not as robustly as one might have hoped). The violence done to Smart's mind was every bit as heinous as the violence done to her physically - and both the criminal law and the civil law should recognize that.

Anti-brainwashing laws could be restricted to instances where victims are disabled, or minors, to prevent overuse of the laws. They could also include an exception for parents and legal guardians, who should have the latitude to provide their children with the religious education they see fit (so long as their conduct stays within the boundaries of the law).

But it is outrageous that the law currently does not make it a specific crime or tort for a stranger or acquaintance to take it upon himself to conduct harmful indoctrination of a child - unbeknownst to the child's parent or guardian and without their consent.

France's Anti-Brainwashing Law, and The Way the U.S. Tried to Block It

France, which has witnessed several suicide cults in recent years, has taken a wiser - and more direct - approach to brainwashing. The U.S., however, rather than following France's lead, tried to impede it from doing so. I am fully aware this is no environment within which to advocate the views of the French, but on this issue, they are on the money.

France drafted a law to address the brainwashing of children and mentally disabled adults by religious cults. The U.S. International Religious Freedom Commission, which I discussed in a previous column, complained, however, that the law singled out cults or sects for prosecution.

But, of course, religious freedom hardly includes the right to brainwash - or, particularly, the right to brainwash those who cannot adequately defend themselves against mental manipulation. Mitchell and his adult wife can believe anything they want. But what they did to Elizabeth Smart was unconscionable. And the line is not that difficult to draw.

In the end, France passed a bill that outlawed mental manipulation by any group, not just religious sects. It is probably just as well that the law was broadened - it now can be used against religious sects, individuals who may be French versions of Mitchell, and those manipulating children through secular beliefs.

But it is ironic, to say the least, that the U.S. made it its business to meddle in France's draft anti-brainwashing law, when its own states still lack any counterparts.

All States Should Consider Specific Anti-Brainwashing Criminal and Civil Laws

If no other good comes of this, perhaps at least Utah can start to examine what it might do better if one of its citizens does this to a minor again. Creating a specific crime of brainwashing, and a specific cause of action for it, would be a good start.

Moreover, there is no reason to limit such inquiry to Utah alone. Every state owes it to its children to find ways to protect the children within its boundaries from the same harms that came to Elizabeth.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her previous columns on church/state issues can be found in the archive of her articles on this site. Her email is

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