Free Custom «Tort Law» Essay Paper

Free Custom «Tort Law» Essay Paper


The foregoing critique might suggest that legal claims based on such questionable science and religious belief will always fail and suffer summary judgment in the hands of an informed judiciary. However, this has not always been the case. Indeed, quite to the contrary, a number of legal actions based on such claims have been allowed, and to considerable effect. Although the legal acceptance of brainwashing-based claims has waned in recent years in the United States, such cases were often successful in the past and still may be successful under certain circumstances. The following is a discussion of the history of United States brainwashing cases in both the criminal and civil areas and the cases that can be filed against a church that has alleged been brainwashing people in to getting into criminal act and tort. In the criminal area, brainwashing claims have often been used quite overtly as a key part of the defense in cases in which deprogrammers have been charged with kidnapping. Usually these arguments have taken the form of a "choice of evils" or "necessity" defense, in which those involved in the deprogramming have claimed that leaving participants in a new religion was a worse evil than the kidnapping and rough behavior typically required to extract them forcibly from the group. Such defenses, if allowed by the court, have facilitated discussions of life inside the groups, as well as of the groups' belief system. The logic seems to be based on the idea that anyone who would accept such strange beliefs or engage in such deprivations must be brainwashed and that no one in their "right mind" would ever espouse such ideas. Such defenses have often, but not always, been successful. It cannot be denied that the church is the first to be considered as to be influential among any other organizations hence, it should be careful in persuading people (Hooper, 1993). Body Brainwashing claims have also been explicit in other cases, including a major case in which a federal court in California disallowed such claims. In United States v. Fishman, the defendant in a mail fraud case claimed in his explication of an insanity defense that he committed the acts in question while under the influence of "thought reform," a phrase sometimes used synonymously with brainwashing. Fishman's defense was rejected in a ruling containing strong language critical of such claims and disallowing major proponents of such theories from testifying to them in the case. Other criminal cases involving such theories include those in which the prosecution has made use of implicit, if not explicit, brainwashing theories in efforts to convict major figures in some of the more controversial new religions.
Two who have been convicted of tax-related offenses are the Reverend Moon, leader of the Unification Church, and Tony Alamo, leader of the Alamo Foundation. Brainwashing claims played a major role in both cases, with juries apparently accepting the popular idea that these and other controversial new religions brainwash participants. Such claims were crucial in both cases in convincing jurors that the religions were not legitimate and thus undeserving of usual protections and privileges afforded religious groups and their leaders under the tax laws of the United States. The role of such ideas was most clearly demonstrated in the Moon case, which attracted much national attention and involved a major pre-trial research project conducted by the Unification Church in an effort to determine how to best fight the charges. Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first session in 1946, before any human rights declarations or treaties had been adopted, the UN General Assembly adopted resolution 59(I) stating "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated."Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens cannot exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas and are not able to express their views freely. Freedom of expression is thus not only important for individual dignity but also to participation, accountability and democracy. Violations of freedom of expression often go hand in hand with other violations, in particular the right to freedom of association and assembly. Progress has been made in recent years in terms of securing respect for the right to freedom of expression. Efforts have been made to implement this right through specially constructed regional mechanisms. New opportunities are emerging for greater freedom of expression with the internet and worldwide satellite broadcasting. New threats are emerging too, for example with global media monopolies and pressures on independent media outlets. But then again, it can be said that Participatory democracy requires citizens to reflect and debate in order to distill public opinion into a clear will of the people that enable the political leadership to absorb these values and translate them into policy. Democracy is also about accountability and good governance. The public not only has a right, but is obliged by the very definition of a democracy, to scrutinize the actions of their elected leaders and to engage in full and open debate about their priorities and actions.
One of the most effective ways of addressing poor governance is through open and informed debate. This open and informed debate can take many forms and one should not ignore that in the light of day, well documented criticism can increase both knowledge and understanding, even though it might be both harsh and controversial. Hence, the freedom of expressions that are accustomed to the church is not absolute and is subject to the regulations and governance of the state. A large number of civil actions have been filed in the United States using brainwashing theories as their major justification. Usually these cases involve a former member of a group filing suit against the group for various torts, including intentional infliction of emotional distress, fraud, false imprisonment, and/or restitution. Although these or similar torts are listed as causes of action, the underlying theory in most of these cases is that the group brainwashed the person into joining the group and then used brainwashing techniques to keep them as a member. These cases are often successful, especially at the trial level, where juries seem quite susceptible to such claims. A number of multi-million dollar awards have been made to plaintiffs in these civil suits, usually with the bulk of such awards as punitive damages. Sometimes the awards are reduced by the trial judge or on appeal, but a number of them have been paid; some cases have been settled during the appeal process, and sometimes the judgment has simply been paid after appeals were exhausted. These suits have raised serious issues of religious freedom for minority religious groups. Some have suggested that filing such suits has been a deliberate tactic of the so-called anticult movement in an attempt to drive such groups out of business. This tactic became popular after it became apparent that a frontal attack seeking direct governmental action against the new religions would not be successful, in part because of difficulties arising from First Amendment protections afforded religious groups in America. The apparent logic behind filing such suits was that if the groups could not be stopped directly, then perhaps they could be put out of business by taking their financial resources. This has very nearly been the case with some groups. For instance, the Hare Krishna lost a multi-million dollar judgment, forcing them to use all their property in California as security for an appeal bond. Other civil cases that make use of brainwashing theories include suits against deprogrammers for false imprisonment, violation of civil rights, or other claims associated with a deprogramming. When deprogrammers are sued in civil actions, they usually attempt something similar to the "choice of evils" or "necessity" defense used in criminal actions. In effect, they seek to put the group on trial by describing the alleged exploitation that goes on in the group, claiming that they were doing a favor for the person being deprogrammed by trying to "rescue" them. This is usually done in an effort to explain the motivations of defendants accused of kidnapping, thus avoiding the constitutional protections that might be thought to preclude such discussions of group beliefs and practices. Such defenses have often been successful, with many jurors accepting these defenses as consistent with the preconceived ideas they bring to the jury box about so-called cults and their recruitment methods. Thus, the deprogrammers usually escape any liability for their actions, which have often involved kidnapping adults off the streets and incarcerating them against their will (Haliczer, 1987). However, in one recent case that has had major repercussions, these defenses were not successful. This case involved deprogrammer Rick Ross as the chief defendant; the well-known Cult Awareness Network ("CAN") was also listed as a defendant. A member of an evangelical Protestant group who was the target of a deprogramming sued Ross, the chief deprogrammer, and CAN, which allegedly conspired with Ross in the deprogramming. A jury found both defendants liable and awarded over five million dollars to the plaintiff. After the verdict, CAN declared bankruptcy and is now effectively out of business itself, with its assets, including its name, in the process of being sold to pay its part of the judgment. In order to regulate the freedom and the influence of the so-called church, tort law must be applied. While universality, indivisibility and inalienability are sacrosanct, The International Covenant on Civil and Political Rights lays out the general principles for their implementation. For Article 18, the Covenant says: ?3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.? And for Article 19, the Covenant says: 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.
It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Permissible restrictions on freedom of the press will have to be derived from the implementation guidelines for Article 19 as well as from civil and criminal law in any given country. It is important to note that the permissible restrictions in the Covenant for these two articles both refer to a double condition: the limitations must be provided by law AND should be necessary to protect a number of public areas as well as the rights of others. It is also important to underline that ?necessary? here means that there must be exceptional reasons for such restrictions (Paras, 2006). In general, these exceptional reasons must comply with the following principles: they must be clearly and narrowly defined; they must be applied by a body which is independent of political, commercial or other unwarranted influences, and in a manner which is neither arbitrary nor discriminatory, and which is subject to adequate safeguards against abuse, including the right of access to an independent court or tribunal. Furthermore, restrictions must respect the principle that no one should be penalized for statements which are true; neither should they be criminally penalized for the dissemination of hate speech, unless it has been proven they did so with the intention of inciting discrimination, hostility or violence. As for the media, the right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance, and prior censorship should not be used as a tool to restrict the space for debate and discussion. When sanctions are imposed they also have to be applied respecting some general principles. Care should be taken to apply the least intrusive and restrictive measures in order to minimize the chilling effect on freedom of expression; and any imposition of sanctions should be in strict conformity with the principle of proportionality. Offenses involving freedom of expression should never be considered under a penal code.


With all the foregoing, it cannot be denied that the church that is trying to persuade and brainwash a person as in the case at bar must be held liable under the tort law and without a relief from the freedom of religion since such must be regulated by the law as well in order to protect not just the belief and the culture of a person but as well as the society?s whole being by those who have nothing else to do but harm the social matrix.



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