We do not destroy the heretic because he resists us: so long as he resists us we never destroy him. We convert him, we capture his inner mind, we reshape him. We burn all evil and all illusion out of him; we bring him over to our side, not in appearance, but genuinely, heart and soul.
—George Orwell, 1984
This paper argues that there are compelling grounds for thinking that coercive indoctrination can defeat or mitigate moral culpability in virtue of being a form of non-culpable moral ignorance. That is, I defend a two-tier account such that what (at least partially) excuses an agent for a wrongful act is the agent’s ignorance regarding the moral quality of their act; and what excuses the defendant for their ignorance is that coercion or manipulation deprived the defendant of a fair opportunity to avoid that ignorance. I further argue that criminal defense theory would better track moral culpability were it to broaden existing defenses whose desert-base is moral ignorance—such as insanity or mistaken-belief self-defense—to include non-culpable ignorance due to diminished situational control. In this way, criminal law can plausibly recognize a defense of coercive indoctrination without postulating any new categories of defense.
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Patricia Hearst, Every Secret Thing (Doubleday & Company, Inc., 1982), p. 443.
“Ascription of Criminal States of Mind: Toward a Defense Theory for the Coeercively Persuaded (“Brainwashed”) Defendant,” Minnesota Law Review 63, pp. 1–33 at p. 7, n. 30.
Most notably Derk Pereboom’s four-case manipulation argument, originally presented in “Determinism al Dente," Noûs 29.1 (1995), pp. 21–45, and most recently in Free Will, Agency, and Meaning in Life (New York: Oxford University Press, 2014), pp. 71–82.
The Model Penal Code codifies this sense of mens rea under the heading of “Minimum Requirements of Culpability,” which it characterizes as holding when a person has “acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense” (§2.02(1)).
Cf. David Brink, “The Nature and Significance of Culpability,” Criminal Law and Philosophy 13 (2019), pp. 347–373; Douglas Husak, “ ‘Broad Culpability’ and the Retributivist Dream,” Ohio State Journal of Criminal Law 9.2, pp. 449–485.
Kenneth J. Reeves, United States District Court (California: Northern District), The Trial of Patty Hearst (San Francisco: The Great Fidelity Press, 1976), p. 6; See also, Jeffrey Toobin, American Heiress: The Wild Saga of the Kidnapping, Crimes, and Trial of Patty Hearst (Random House, 2016), p. 464.
Joost Meerlo, The Rape of the Mind: The Psychology of Thought Control, Menticide, and Brainwashing (Cleveland, OH: The World Publishing Company, 1956), p. 20.
The Trial of Patty Hearst, p. 7.
The Trial of Patty Hearst, pp. 589–590.
The Trial of Patty Hearst, p. 599, added emphasis.
“[T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion,” (§3.04, added emphasis) and “Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable…” (§3.02, added emphasis).
See James Brady, “Duress,” Archiv für Rects- und Sozialphilosophie/Archives for Philosophy of law and Social Philosophy 85.3 (1999), pp. 384–397 for a survey and discussion of several ways people have attempted to distinguish necessary and duress. Craig Agule (“Distinctive Duress,” Philosophical Studies  177: 1007–1026) argues that, as commonly understood, duress either collapses into necessity (ordinary justification) or incapacity (ordinary excuse), but that there is room for a genuinely distinctive duress defense. On Agule’s view, duress lies between excuse and justification in that the action is not “objectively” justified from an impartial perspective, but it is an action that manifests good moral agency insofar as the agent acts from a moral psychology that is appropriately contoured to the agent’s role as, e.g., parent or friend. That is, on Agule’s view, it is appropriate for parents to perceive threats to their children as greater and more normativley significant than they are and to act on the basis of that perception.
Cf. Claire Finkelstein, “Duress: A Philosophical Account of the Defense in Law,” Arizona Law Review (1995) 37:1, 251–284: “Where a defendant reasonably but mistakenly believes she has a valid duress defense, her conduct is excused” (p. 272); Joshua Dressler, “Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits,” Southern California Law Review (1988–89) 62, 1331–1386: “Conceptually, D is acquitted in such circumstances based on the conjunction of two ‘defenses’, mistake-of-fact and duress. As in other mistake situations, as long as an actor’s understanding of the factual circumstances was reasonably based, the common law usually interprets the situation as if the reasonable appearances were reality” (p. 1336, n. 26.). Hyman Gross (A Theory of Criminal Justice [New York: Oxford University Press, 1979], at pp. 281–82) and Paul Robinson (Criminal Law Defenses [St. Paul, Minnesota: West Publishing, 1984], at §184[a]) hold that reasonableness is a requirement for all mistakes of justification such as self-defense and necessity.
See Michael Bayles, “Reconceptualizing Necessity and Duress,” Wayne Law Review (1987) 33:4, 1191–1220: “Whereas commentators recommend that mistakes must be reasonable, penal codes often permit a necessity defense involving only a sincere mistake” (pp. 1216–1217).
As I discuss in the next section, this is only true for cases in which the mistake forms part of an affirmative defense, rather than negating elemental mens rea. This is consistent with literature on culpability for ignorance. Cf: Michael Zimmerman: “one is culpable for behaving ignorantly only if one is culpable for being ignorant” (“Moral Responsibility and Ignorance,” Ethics  107.3: 410–26, at p. 423); Gideon Rosen: “When a person acts from ignorance, he is culpable for his action only if he is culpable for the ignorance from which he acts” (“Culpability and Ignorance,” Proceedings of the Aristotelian Society  104: 61–84, at p. 64); George Sher: “when someone acts wrongly or foolishly, the question on which his responsibility depends is not whether he is aware that this act is wrong or foolish, but rather whether he should be (or, alternatively, whether a reasonable person in his position would be)” (Who Knew: Responsibility Without Awareness [New York: Oxford University Press, 2009] at p. 19).
This is consistent with John Hyman’s account of duress in Action, Knowledge, and Will (New York: Oxford University Press, 2015). Hyman argues that action under duress is involuntary and that “Whether someone acted voluntarily may turn on whether he believed he had a choice, so that it is impossible to decide whether he acted voluntarily without knowing what he thought” (pp. 97–98). It is also consistent with Gideon Rosen’s account of duress in “Culpability and Duress: A Case Study” Proceedings of the Aristotelian Society, Supplementary Volume (2014) 88: 69–90.
The Trial of Patty Hearst, p. 599, added emphasis.
I say more about this below in Sect. 4 on tracing.
The Trial of Patty Hearst, p. 8, added emphasis.
In American Heiress, Jeffrey Toobin provides reasons to be skeptical of Hearst’s version of events.
Henri Cauvin, “Neither Side Holding Back in Malvo Case,” Washington Post Nov. 14, 2003, B01.
Angie Cannon, “Sniper Insanity?” U.S. News & World Report Vol. 135 Issue 17, p. 35. Indeed, some observers believed that the defense team likely never expected the insanity defense to work, but were merely using it as a vehicle for introducing mitigating evidence into the minds of the jury as early as possible before the case reached the sentencing phase in which the jury would determine whether Malvo received the death penalty (see “Neither Side Holding Back in Malvo Case.”).
Robert Shepherd, “Malvo Closing Argument,” Criminal Justice, Spring 2004, pp. 73–76, quoted from p. 73.
“Malvo Closing Argument.”
“Malvo Closing Argument.”
Paul Robinson, Would You Convict? Seventeen Cases That Challenged the Law (New York: New York University Press, 1999), p. 191; the following description of Alex’s life also comes from this source at pp. 191–198.
Philip Hager, “208-Year Term in 1982 Child Molestation Case Rejected,” Los Angeles Times, Sept. 3, 1988; accessed at https://www.latimes.com/archives/la-xpm-1988-09-03-mn-3141-story.html.
“208-Year Term in 1982 Child Molestation Case Rejected.”.
Would You Convict?, p. 198.
To be clear: In neither case am I arguing that the defendant should be excused. I am only claiming that a plausible way to frame the defense is in terms of duress and insanity. To determine whether the defendants in these cases should be acquitted would require a more complete examination of the facts than can be accomplished in the context of this article.
M’Naghten’s Case (1843), 10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722]. Compare the Model Penal Code: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law” (§4.01). While there are important differences between the M’Naghten test and the MPC standard – the most important being the latter’s inclusion of volitional incapacity – they both fundamentally agree that the relevant incapacity concerns the ability to appreciate the wrongfulness of the action.
I take the notion of an “enabling condition” from Jonathan Dancy, Ethics Without Principles (New York: Oxford University Press, 2004), pp. 38–52. Dancy coined the term “enabling condition” to refer to a consideration that enables another consideration to count in favour of an action (i.e. to be a reason for action). For example the fact that a promise was not made under duress enables the fact that I made a promise to count in favour of doing what I promised.
Cf. David Brink, “Responsibility, Incompetence, and Psychopathy,” The Lindley Lecture, University of Kansas (2013), who distinguishes between a “clinical” from a “forensic” reading of the “mental disease requirement” (p. 18). On the clinical reading, the requirement states a separate condition which serves to narrow the kinds of incapacity that count as excusing, whereas on the forensic reading it refers to any incapacity. “Soft” or “dove” abolitionists reject the clinical reading as unnecessarily restrictive and argue that we should replace the defense of insanity with a broader excuse of normative incompetence.
David Brink and Dana Nelkin, “Fairness and the Architecture of Responsibility,” in Shoemaker (ed.) Oxford Studies in Agency and Responsibility, Vol. 1 (New York: Oxford University Press, 2013), pp. 284–313. This view combines the reasons-responsive view of free will and moral responsibility (E.g.: Susan Wolf, Freedom Within Reason [New York: Oxford University Press, 1990]; John Martin Fischer and Mark Ravizza, Responsibility and Control [New York: Cambridge University Press, 1998]; Dana Nelkin, Making Sense of Freedom and Responsibility [New York: Oxford University Press, 2011]) with the fair choice approach to criminal culpability (E.g.: H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd Edition (New York: Oxford University Press, 2008); Michael Moore, Placing Blame: A General Theory of the Criminal Law (New York: Oxford University Press, 1997); Stephen Morse, “Culpability and Control,” 142 University of Pennsylvania Law Review (1994), pp. 1587–1660).
Of course, culpability for the mistake – e.g. whether it was the result of negligence – may determine whether D1 is guilty of some other crime, such as manslaughter.
Here I follow Paul Robinson in conceptualizing the use of force of on the basis of false but reasonably held beliefs as an excuse, rather than a justification (see Structure and Function in Criminal Law [New York: Oxford University Press, 1997], pp. 105–121).
State v. Housley 322 N.W.2d 746 (Minn. 1982). I discuss the actual case below.
Assuming the other conditions were also met, such as that the force used was proportional to the threat.
People v. Mayberry 542 P.2d 1337 (Cal. 1975): “It is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact.”.
Placing Blame, p. 562.
Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown, Vol. 1 (1736), p. 51.
I say reasonably arrive at the correct belief, as the thought is that the relevant alternatives must be epistemically acceptable. I remain neutral on whether an alternative counts as epistemically acceptable simply in virtue of arriving at the correct conclusion, or whether one must take a sound deliberative route to that belief (in the same way that I was neutral on whether an action counts as morally acceptable in virtue of the consequences of the action or on it’s adherence to certain deontological restrictions.).
See Alex Guerrero: “some unpossessed evidence, E, is available to a reasoner R, in a world W, within a time-frame T, if and only if there are things that R could do in W within T that would lead R to possess E.” (“Intellectual Difficulty and Moral Responsibility,” in Philip Robichaud and Jan Willem Wieland (eds.) Responsibility: The Epistemic Condition [New York: Oxford University Press, 2017], p. 202).
State v. Housley, p. 749.
Brink and Nelkin, “Fairness and the Architecture of Responsibility,” pp. 304–305.
“Undiminished Confusion in Diminished Capacity,” Journal of Criminal Law and Criminology 75.1 (2003), pp. 1–55 at p. 31.
Brink, “Immaturity, Normative Competence, and Juvenile Transfer: How (Not) to Punish Minors for Major Crimes,” Texas Law Review 82.6 (2004), pp. 1555–1585.
I am grateful to an annonymous referee for raising the tracing objection. Explicit proponents of tracing include: Fischer and Ravizza, Responsibility and Control (op. cit.) and Fischer and Tognazzini, “The Truth About Tracing,” Noûs 43: 531–56. Daniel Dennett, Elbow Room (Cambridge: MIT Press, 1984) and Robert Kane, The Significance of Free Will (Oxford: Oxford University Press, 1996) also seem to defend or rely on a version of tracing. Skeptics of tracing include: Manuel Vargas, “The Trouble with Tracing,” Midwest Studies in Philosophy XXIX (2005), pp. 269–291; Andrew Khoury, “Responsibility, Tracing, and Consequences,” Canadian Journal of Philosophy 42.3/4 (2012), pp. 187–208; Matt King, “Traction without Tracing: A (Partial) Solution for Control-Based Accounts of Moral Responsibility,” European Journal of Philosophy 22.3 (2014), pp. 463–482; Craig Agule, “Resisting Tracing’s Siren Song,” Journal of Ethics & Social Philosophy 10.1 (2016), pp. 1–24.
Joshua Dressler, “Professor Delgado’s ‘Brainwashing’ Defense: Courting a Determinist Legal System,” Minnesota Law Review 63 (1978–79), pp. 335–360.
Khoury’s skepticism of tracing differs from Agule’s, King’s, and Vargas’s in that Khoury is also skeptical that people are culpable for the consequent harms of their culpable actions. On Khoury’s view, a person is not culpable for the harms that result from reckless behaviour, but for what such recklessness reveals about a person’s quality of will whether or not any actual harm results.
They would disagree on the locus of responsibility, with tracers holding the person responsible for the later offense and tracing-skeptics holding the person responsible only for failing to perform the earlier act (and possibly also for the latter offense as a foreseeable consequence of the earlier act).
Charles Ewing and Joseph McCann, Minds on Trial: Great Cases in Law and Psychology (Oxford University Press, 2006), p. 41.
Every Secret Thing, p. 86.
Every Secret Thing, p. 85.
See Kimberly Ferzan, “Patty Hearst Reconsidered,” Ohio State Journal of Criminal Law 15 (2018): 367–396, for a discussion of the nature of personal identity and whether “[i]f the indoctrinated Hearst became ‘Tania’, but then, as we are told, converted back to Hearst, is it correct to say that Hearst committed any crime at all” (p. 368).
Every Secret Thing, p. 97.
Every Secret Thing, p. 86.
Indeed, this is exactly how the defense tried to portray the situation, as defense witness Dr. Louis Jocelyn West testified: “[Hearst] was persuaded to take on a certain role and she complied with everything they told her to do. If they wanted her to clean a shot gun, she cleaned a shotgun. And if she took part in the group, she just tried to blend in with the others and behave in a fashion that she understood was expected if she was to be accepted. For her, it was to be accepted or to be killed” (Ewing and McCann, Minds on Trial, p. 37).
One response would be to rely on a quality of will view. For example, Gideon Rosen argues that duress can excuse even when the agent is not justified because an action can manifest a sufficiently good quality of will to undermine blameworthiness, even if not fully justified (“Culpability and Duress: A Case Study,” Proceedings of the Aristotelian Society Supplementary Volume 88, pp. 69–90). Similiarly, one could hold that an action non-culpably believed to be necessary to avoid a threat fails to manifest an ill quality of will. It would go beyond the scope of this paper to defend this view and it’s relation to the fair opportunity to avoid wrongdoing account.
“Professor Delgado’s ‘Brainwashing’ Defense,” p. 359.
“Professor Delgado’s ‘Brainwashing’ Defense,” p. 359.
“It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist.” (§ 2.09(1)).
For discussion, see Joshua Dressler, “Duress” in Deigh & Dolinko (eds.) Oxford Handbook of the Philosophy of Criminal Law (Oxford University Press, 2011); Edward Morgan, “The Defence of Necessity: Justification or Excuse?” 42 U. Toronto Faculty Law Review 165 (1984).
The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884).
Rosen, “Culpability and Ignorance,” Proceedings of the Aristotelian Society 103:1 (2003): 61–84, at pp. 64–65.
See, for example, Jan Wieland’s discussion of the “accessibility” of the moral fact that slavery is wrong, “What’s Special About Moral Ignorance?” Ratio 30:2 (2017): 149–164, at pp. 158–163.
See Alex Guererro’s discussion of how moral epistemology is relevant to discussions of cases like the ancient slaveholder: “Intellectual Difficulty and Moral Responsibility,” in Robichaud and Wieland (eds.) Responsibility: The Epistemic Condition (Oxford University Press, 2017), pp. 199–218, at pp. 213–17.
Austin, “Ifs and Cans” in his Philosophical Papers (Oxford: Clarendon Press, 1961), p. 166.
See Daniel Dennett, Freedom Evolves (Viking Press, 2003), pp. 75–76.
Or at least, it does not preclude this in a way that does not boil down to a debate about the compatibility of moral responsibility and causal determinism. While I do feel the pull of incompatibilist intuitions and arguments, for this paper, I am simply working from within a broadly compatibilist framework.
“Diminished Rationality, Diminished Responsibility” Ohio State Journal of Criminal Law 1.1 (2003), pp. 289–308, at p. 300, added emphasis.
“Diminished Rationality,” p. 301, added emphasis.
Nelkin, “Difficulty and Degrees of Moral Praiseworthiness and Blameworthiness,” p. 370.
Dressler, Understanding Criminal Law, pp. 222–23. See also, Wayne R. LaFave, Criminal Law, Third Edition (West Group, 2000): “self-defense generally require[s] that the defendant’s belief in the necessity of using force to prevent harm to himself be a reasonable one…” (p. 493); Stephen Garvey, “Self-Defense and the Mistaken Racist,” New Criminal Law Review 11:1 (2008): 119–171: “an actor is, generally speaking, permitted to use deadly force against an aggressor if—but only if—he reasonably believed that the use of deadly force was necessary to avoid death or grievous bodily harm to himself” (p. 121).
R. v. Maybin 2010 BCCA 527, at p. 17.
R. v. Maybin, at p. 28.
A previous version of this paper was presented at the 2018 Canadian Philosophical Association in Montreal, Quebec; I am grateful to my commentator, Chad Horn, as well audience members for their comments and criticisms. I am also grateful to Scott Andersen, Endre Begby, David Brink, Dana Nelkin, and Ben Villhauer for their helpful comments on previous drafts of this paper, and to Craig Agule for helpful discussion on criminal culpability and tracing. Finally, I would like to thank two anonymous referees for this journal for their constructive feedback on the original manuscript.
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Tiffany, E. Conceptualizing Coercive Indoctrination in Moral and Legal Philosophy. Criminal Law, Philosophy (2021). https://doi.org/10.1007/s11572-020-09556-3
- Moral ignorance
- Coercive indoctrination
- Fair opportunity