In 1977, the American Civil Liberties Union, much to the anger of anti-cult proponents, issued a statement condemning forcible deprogramming and cult conservatorships (see appendix A at the end of this document). In 1978, they issued a full report on the subject. I posted the part of this report concerning conservatorship. If there is any interest, I can web the remaining part of the report (unadorned abduction and appendixes).
II. Abduction Under Color of State Law
A. Use of Conservatorship Law
To lend color of law to what would otherwise be unadorned abduction, a standardized method has been devised whereby a parent hires a lawyer to obtain a temporary guardianship or conservatorship over the adult child. Affidavits are prepared for the parent's signature which contain allegations that the child is a victim of "mind control" or "brainwashing", that the child's personality has undergone an abrupt change since joining the particular group and, sometimes, that the child has turned over assets to the group. This affidavit is presented to the court with a petition that one of the parents be appointed temporary conservator of the child.
Historically, guardianship or conservatorship proceeding have been readily obtained. The standards have been loose. These proceedings were perceived as beneficial to the subjects of the proceeding. Safeguards were neglected. A provision in the California law which expired this summer, similar to provisions in the laws of other states, allowed a thirty-day conservatorship for a person who "by reason of old age, disease, weakness of mind, or other cause, is unable, unassisted, properly to manage and take care of himself, of his property and is likely to be deceived or imposed upon by artful or designing persons." This standard could not withstand constitutional attack if it were part of the penal law designed to deprive a person of liberty. Even so, it was embodied in the state law used most frequently during the past year to obtain custody for reason of religious affiliation. In this context, the law is an application of the parens patriae doctrine under which the state becomes, in effect, a substitute parent. It was used most often to deal with elderly people in "second childhood."
Many states have temporary conservatorship laws which permit such an order to be signed without any notice to the conservatee. Proceedings are conducted ex parte. The prospective ward is afforded no counsel and no opportunity to appear in order to oppose the petition. There is no medical or psychological test to determine competency based on first-hand observations. Conservatorship orders often direct local law enforcement officers to assist in apprehending the ward. (Footnote: Human Behavior magazine reports that after such an order was issued for Love Petri, age 26, 'the special forces division of the Los Angeles County Sheriff's Department descended on the (Tony and Susan Alamo Christian Foundation) with helicopters, vans, squad cars, and thirty armed officers to forcibly remove her.') The first intimation the victim has that he or she is the subject of a judicial proceeding is upon being surrounded by agents of the parents and taken into custody.
Two Tucson, Arizona attorneys, Michael Trauscht and Wayne Howard, are the best known practitioners of this method. For a fee of $10,000 to $15,000, they obtain parental custody of the ward, who is then turned over to deprogrammers and often taken out of state, sometimes in defiance of the order, (Footnote: Michael Trauscht was officially censured by a judge of the Mendocino County Superior Court in California for advising a mother, contrary to law, that she had the power to take her two daughters, the subjects of a conservatorship order, out of Mendocino County, where the order was signed.) or despite its silence on that point. The deprogramming process culminates at the half-way house of the Freedom of Thought Foundation, a non-profit corporation supported by parents. Trauscht claims he is besieged by more than fifty calls a day from parents who request his services.
Trauscht and his associates have used this procedure more than one hundred times against members of religious groups. The process has been streamlined, with form affidavits to be signed by parents and former group members. These are part of a "legal deprogramming kit." One need only fill in the blanks. Often, court records are sealed so that attorneys for victims are denied access until the conservatorship order has been rescinded. When a conservatee breaks down under deprogramming or escapes, the action is dismissed so there is no opportunity to appeal and obtain from a higher court a determination of the constitutionality of the conservatorship statute. Lawyers seeking conservatorships regularly practice "forum shopping" obtaining an order from a more cooperative judge in another county when they prefer not to try to persuade a judge in the residence of the proposed ward to sign the order.
B. Four Cases
1. Philaret Taylor
Despite Michael Trauscht's reliance on the court order as protection against criminal charges of kidnapping and as a deterrent to civil lawsuits, there are a number of cases pending against him and his associates.
One such case originated when Father Philaret Taylor, age 22, an Old Catholic Monk, was abducted from his monastery in Oklahoma City by use of a conservatorship order and held for sixteen days in July and August 1976. Father Taylor says that his abductors ripped off his monastic clothes and, working in shifts, subjected him to verbal harassment for thirteen hours a day.
Fearing a new deprogramming attempt, Taylor now leaves the monastery only when accompanied by at least two other monks. He always carries a nightstick, tear gas and an air horn. An attempt to obtain an injunction from a federal judge against another attempt by the Taylor family and other alleged deprogrammers failed in June 1977.
Taylor filed suite in April 1977 against Kevin M. Gilmartin (a Tucson psychologist who gave expert testimony in support of court proceedings without having examined Taylor), Michael Trauscht, Wayne Howard, the Freedom of Thought Foundation, Inc. (FTF), the Alexander family and Gary Scharff, (who do much of the deprogramming for FTF), and the Taylor family.
The complaint charges violation of and conspiracy to violate civil rights, conspiracy to obstruct justice, medical malpractice, legal malpractice, intentional infliction of emotional distress, false imprisonment, and assault and battery. The complaint asks for $300,000 actual damages and $3,000,000 punitive damages for each of the seven counts.
2. Donna Seidenberg Bavis
Donna Seidenberg Bavis, a 24-years-old Hare Krishna devotee, filed a complaint in federal court in Baltimore last May. Her complaint alleged that eleven defendants, including the Maryland judge who granted a conservatorship order, conspired against her "as a member of a hated class" to deprive her of equal protection of the law.
The complaint states that a thirty-three-day-long deprogramming attempt against her began in February 1977. Donna was taken to a Baltimore motel room after being lured home by her mother on the pretext that she was giving a bridal shower in Donna's honor. When Donna hesitated at the door, according to her complaint, she was pulled into the room and the door was locked behind her. Four days of typical deprogramming followed, and Donna began to feign acceptance. She passed a telephone test by an unknown man who said he was analysing her voice to determine whether she was telling the truth.
Donna was then taken to the summer residence of George and Winifred Swope, two of the defendants in the suit brought by Donna Bavis, for four weeks of "rehabilitation", during which time, her complaint says, all doors were locked and Donna was kept under constant surveillance. Her complaint says that she was forced to write a letter to Montgomery County Circuit Judge Richard Latham thanking him for rescuing her by granting the conservatorship and renouncing her religion and her fiance, a Hare Krishna devotee. In March, Donna was driven to Boston for a conference with Jean Merritt, a psychiatric social worker and another defendant, who questioned her about her religious beliefs and congratulated her on her "successful deprogramming."
After she was taken home, she appeared before Judge Latham and said she was not being detained against her will. He dissolved the conservatorship. The following day, she returned to the Hare Krishna temple in Potomac where she was reunited with her religion and her fiance, whom she recently married.
The complaint contends that the entire conservatorship proceeding was a breach of the Maryland law governing conservatorships. The law, says the complaint, requires a mental examination, right to counsel, an adversary hearing before a jury, and prior notice to the subject before a conservatorship because of incompetency may be granted. Donna alleges that Judge Latham allowed none of these.
Her suit seeks an injunction against the deprogrammers and asks $250,000 in compensatory damages and $250,000 in punitive damages from the defendants.
3. Madonna Slavin Walford
Madonna Slavin Walford, a Hare Krishna devotee, was kidnapped and held for six days of mental and physical assault by deprogrammers hired by her parents. One of her deprogrammers told her, "I know enough about brainwashing that I can break you if I want to."
Los Angeles Superior Court Judge Harry Huff said, in refusing to dismiss the writ of habeas corpus served on Ms. Walford's father, "No one has the right to keep on in custody against one's will. A person's freedom is not to be tampered with, even if you disagree with a particular lifestyle."
After the habeas corpus proceedings, Ms. Walford requested and was granted a temporary restraining order forbidding eighteen defendants from seizing her again under the California conservatorship law. This restraining order, issue in February 1977, is the first time a federal court issued an injunction against a conservatorship. Ms. Walford has filed criminal charges and a $2.5 million civil suit against her abductors.
4. Christine Morris
A provision of the New York Mental Hygiene Law empowers judges to order the police to bring before the court anyone who appears to be mentally ill and acting in a disorderly manner or acting in a manner likely to cause a danger to him/herself or others.
In March 1977, a justice of the peace in Red Hook, New York, signed an order based on this provision, commanding the local police to bring Christine Morris, a 21-year-old Darthmouth senior, before him for questioning. Christine was, at that time, attending a seven-day workshop at the nearby Unification Theological Seminary.
In requesting the order, Christine's parents offered no real evidence of mental illness or disorderly or dangerous behavior. What they placed before the justice of the peace was a letter written by their family doctor, stating that Christine had a "reactive personality disorder of schizoid type. The doctor, neither a psychologist nor a psychiatrist, had never examined Christine in the previous seven years.
With the court order in hand, the police went to the seminary to take Christine into custody. Frustrated in their attempt to find her, and not satisfied with answers to their questions concerning Christine's whereabouts, they arrested the seminary's superintendent for obstruction of justice. The justice of the peace sent the superintendent to the Dutchess County jail without bail. Later, the judge released him, having set bail at $10,000.
A State Court judge dismissed the writ of habeas corpus brought by Christine's relatives against the Unification Church.
At a hearing before the original justice on July 1, 1977, Christine testified that she was not being held against her will by the church, and a psychiatrist testified that he had examined her and found no evidence of psychiatric or thought disorder nor evidence of defects in social judgement. The justice of the peace dismissed the original order. After four months, Christine was free to come and go as she pleased without fear of being taken into custody.
C. State Court Response to Use of Conservatorship Law
Problems of jurisdiction, abstention and standing make it uncertain whether a federal court will rule on the constitutionality of a state conservatorship law.
There have, however, been relevant proceedings in state courts.
The Supreme Court of Illinois reversed a lower court's conservatorship as an abuse of freedom of religion. A probate court order had allowed a conservator to consent, on behalf of a Jehovah's Witness, to transfusions of blood despite the repeated insistence of the patient that she did not wish such transfusions. The opinion states that "those cases which have sustained governmental action as against the challenge that it violated the religious guarantees of the First Amendment have found the proscribed practice to be immediately deleterious to some phase of public welfare, health or morality. The decisions which have held the conduct complained of immune from proscription involve no such public injury and no danger thereof."
Presumably, chanting, fasting, selling flowers on the street, and the like, present as little danger to the public welfare as the refusal, by a woman with no minor children, of a blood transfusion.
In March 1977, California Superior Court Judge S. Lee Vavuris ruled that five adult members of the Unification Church be remanded for thirty days to the custody of their parents. Judge Vavuris refused to bar deprogramming during the custody, but ruled that parents must be present at all times, saying, "The child is the child even though a parent may be 90 and the child 60."
An appeal was filed by the young people, and a California court of appeals forbade the parents to attempt deprogramming until the court heard further arguments on the constitutionality of the conservatorship. Parental custody, however, was upheld.
On April 12, the three-judge panel released the young adults from the custody of their parents and allowed those who wished to do so to return to the Unification Church.
An opinion on this case was issued by an intermediate court of appeals in October 1977 (Footnote: California Court of Appeals, First Appellate District, Division One, Katz v. Superior Court.) The court found that the provisions of California's Probate Code under which the conservatorships had been issued were unconstitutionally vague since these provisions furnished inadequate guidance for determining good cause for depriving an adult of freedom. The opinion states, "As applied in the present case, an individual seeking salvation through religion or associating in a social or political cause cannot tell whether or not he will be placed in the custody of another on charges that he has been deceived by artful and designing persons. When such charges are laid, the court or jury in examining the precepts and associates selected by the proposed conservatee has no better standards under which to evaluate the latter's conduct. Finally, there may be severe inroads on the individual's freedom to practice his religion and to associate with whom he pleases because of the threat of proceeding such as this." (p. 19)
The court then turned to the question of whether the Probate Code provisions for granting conservatorships had been properly applied in this case. It noted that in this case, it is the conservatee's mind rather than estate which is claimed to be in need of protection. It reviewed the conflicting testimony of psychologists who had been called in by both sides in this case. It cited the Supreme Court's decision in O'Connor v. Donaldson, 422 U. S. 563 (1975) which held that the state may not confine a non-dangerous adult solely for the purpose of providing custodial care. The opinion further stated that there was insufficient evidence to sustain a finding of any emergency requiring conservators in this case. To deprive a person of liberty and freedom of action without properly ascertaining the necessity of legal control over the person, stated the court, is "to license kidnapping for the purpose of thought control. (page 40)
The court further found that the temporary conservatorships granted in this case violated the conservatees' rights to freedom of religion and association. Recognizing that actions often accompany belief, the court noted that evidence was introduced that the proposed conservatees had changed their lifestyles after they had adopted their religion. Yet, stated the court, people may not be put to the proof of their religious doctrines or beliefs. "In the absence of such actions as render the adult believer gravely disabled as defined in the law of this state, the process of this state cannot be used to deprive the believer of his freedom of action and to subject him to involuntary treatment." (page 49) The court stated that even if the organization be deemed political, and not religious, there is freedom of association involved.
Because of the newly-formed network of tax-exempt groups actively working against unconventional religious groups, it is likely that the deprogramming movement will continue to flourishing coming months. Legal recourse is difficult because of the refusal by prosecutors to prosecute for kidnapping.
By seeking the facade of legalism and by purporting to act under state law, however, the deprogrammers have provided their victims with better access to federal courts. Federal civil rights law provides a cause of action against individual who, under color of state law, deprive a person of civil rights. Thus, depriving a person of liberty and interfering with freedom of religion and of association become grounds for a lawsuit in federal court when these acts are aided by laws or officials of the state.
Several states have considered legislation proposed by opponents of the religious groups with would relax the few existing due process safeguards in guardianship and conservatorship proceedings. None of these proposal have succeeded.
An encouraging trend is beginning to develop: Judges are not quite as routinely as in past months issuing orders authorizing individuals to be seized and detained, nor are they so thoughtlessly sealing court records.
The American Civil Liberties Union is committed to provide help to victims of deprogramming attempts, whether court sanctioned or not. This is, we believe, the most important issue of religious freedom of these times.
Kidnapping People from Religious Groups
Adopted by ACLU National Board
March 5, 1977
ACLU opposes the use of mental incompetency proceedings, temporary conservatorship, or denial of government protection as a method of depriving people of the free exercise of religion, at least with respect to people who have reached the age of majority.
Modes of religious proselytizing or persuasion for a continued adherence that do not employ physical coercion or threat of same are protected by the free exercise of religion clause of the First Amendment against action of state laws or by state officials. The claim of free exercise may not be overcome by the contention that 'brainwashing' or 'mind control' has been used,in the absence of evidence that the above standards have been violated."
Appendix B: Deprogrammings Victims
[follows a 9 pages list of victims of conservatorships or deprogramming]
ACLU Statement on Deprogramming and the Law