Cults in American Society: A Legal Analysis of Undue Influence, Fraud, and MisrepresentationDavid Hominek
This report explores the meaning of the term cult; explains the concepts of undue influence, fraud, and misrepresentation; reviews case law developments concerning these concepts in cult contexts; provides an extensive bibliography of articles, books, and cases; and includes an appendix addressing the changing standards for admission of expert testimony in cult-related cases. The report concludes that the current state of understanding of cultic groups is extremely limited and, despite the evolution of judicial opinions regarding undue influence and fraud and misrepresentation, strikingly little cross-fertilization has occurred.
Society’s scrutiny of groups often regarded as “cults” seems ever more intense. Instead of isolated incidents in remote locations involving unknown persons, we have become increas-ing-ly accustomed to finding coverage of cults of many kinds, both religious and non-religious, in our local papers and television reports. Cults are located where we live, and involve people and places we know.
AFF and CAN recently offered the following definition of “cult” in a Congressional statement:
What We Mean by “Cult”
By “cult” we refer to psychologically manipulative groups that may be religious or nonreligious (e.g., psychotherapy, political, or commercial). More specifically, a cult can be defined as a group or movement that, to a significant degree,
(a) exhibits great or excessive devotion or dedication to some leadership, idea, or thing, (b) uses a thought reform program to persuade, control, and socialize members, (c) systematically induces states of psychological dependency in members, (d) exploits members to advance the leadership’s goals, and (e) causes psychological harm to members, their families, and the community.
Cults need not be religious. The elements of de-cep-tion, manipulation and blind devotion to the leader can attach to other groups as well, such as certain self-improvement trainings or, even, magazine-sel-ling scams.
While society often initially rejects or may feel threatened by any new movement or group, some new movements eventually become ingrained in our structure, even developing into stabilizing forces in our society. Other movements, however, remain under continued critical evaluation as their methods of gaining new membership and support invoke inquiry as involving a degree of coercive persuasion beyond the level acceptable to many in society.
Although this study focuses on a legal analysis of undue influence and fraud in the cult context, these issues naturally cross into other religious and psychological areas. The cases address the legality or illegality of actions based on beliefs, thoughts, or fears that were frequently suggested or imposed on individuals by others, and the issues of psychological coercion and excessive psychological pressure. In addition, as a review of the significant cases will demonstrate, harm caused by cult activities to the family unit or family relationships is a strong undercur-rent in many cases decided on findings of undue influence or fraud.
On rare occasions, a court refers sweepingly to the consideration of psychological coercion in many aspects of American jurisprudence. So, for example, Supreme Court Justice Brennan (joined by Justice Marshall) wrote that “it would seem that certain psychological, economic, and social means of coercion can be just as effective as physical or legal means, particularly where the victims are especially vulnerable…. And drug addiction or weakness resulting from a lack of food, sleep, or medical care can eliminate the will to resist as readily as the fear of a physical blow. Hypnosis, blackmail, fraud, deceit, and isolation are also illustrative methods–but it is unnecessary here to canvass the entire spectrum of nonphysical machinations by which humans coerce each other.” United States v. Kozminski, 487 U.S. 931, 953, 955-56 (1988) (concurring opinion). More often, courts treat such related issues in isolation, under a particular rubric, such as fraud or duress or undue influence.
Finally, issues of psychological coercion are not new. For centuries, common law courts weighed undue influence (usually by individuals, sometimes by group leaders) as a grounds for setting aside gifts or wills. Even before American Independence, for example, an English court applied the doctrine to set aside a wo-man’s deed transferring property to a man accused of having a “spiritual domination” over her. Norton v. Relly, 2 Eden 286, 28 Eng. Reprint 908 (1764). A 19th-century English court set aside gifts finding that a spiritual medium’s domination over the mind of a wealthy widow persuaded her to believe that her deceased husband wanted her to adopt the medium and transfer significant funds to him. Lyon v. Home, 6 ERC 852 (1868). Even as early as 1821, a court in the United States found: “Cases are not wanting, in which courts of equity have relieved against bargains made by persons of full age and reason without proof of actual fraud and imposition, upon the ground, either of public policy, or the notion of an unconscionable advantage taken of a person’s peculiar circumstances and necessities.” Harding v. Wheaton, 11 F. Cas. 491 (C.C.R.I. 1821) (No. 6051), aff’d in part and rev’d in part sub. nom., Harding v. Hardy,24 U.S. 103 (1826).
Undue Influence: Legal Principles
The term “undue influence” has eluded a universally accepted, clear legal definition. Frequently, courts define the term in relation to the circum-stances of the case at hand. Some courts regard undue influence as closely linked to duress, others as a subspecies of fraud. But undue influence has a separate, distinct legal meaning.
What is necessary in undue influence actions is a showing that the free agency or will of the injured person was overcome. For a prima facie case, the presumption that this occurred can be shown by the existence of a confidential or fiduciary relationship.
Your distant cousin, age 82, lives alone and has always prided herself on being independent and self-sufficient. There’s a message on your answering machine from her insurance company that her check for this quarter’s payment “bounced twice” (as a precaution, years ago she listed you with the company to notify in the event of any problem, but you have never been contacted before).
To succeed in an undue influence claim, one must prove that the free will of the person injured was taken or destroyed and the will of another was substituted. The influence must be of such a degree as to control the mental decision operations of the one influenced, overcoming independent powers of resistance, and thereby resulting in effect in the adoption of the will of the other. In addition, the undue influence must have caused the influenced person to act (or desist from acting) as he would not otherwise have done. The exact extent or degree of control is not particularly relevant, as long as the threshold level to make the person act as another in the particular fraud situation is reached.
The four essential elements of undue influence are:
1. a person subject to influence;
2. opportunity to exert undue influence;
3. disposition to exert undue influence; and
4. result indicating undue influence.
She says the insurance company or bank must have made a mistake, informing you that an accountant from church has taken care of her finances through a free program for elder members. She hasn’t had “to worry about bills for months.” She gives you his name, but can’t show you any bank statements or financial records. AHe keeps all of that garbage.”
In determining whether undue influence existed, courts will often consider: the age, physical condition, and mental condition of the person influenced; whether independent and disinterested advice was available; any delay in making the questioned transaction known to family or third parties; the amount of consideration (if any); distress of the person influenced; the predisposition of the person to act; the value of the transfer in relation to the person’s overall wealth; the extent the transaction hinders the ability to provide for family; the methods of solicitation and persuasion used; and the relationship between the parties.
Frequently, age, mental condition, and physical condition are mentioned as factors in determining whether undue influence occurred. Advanced age and physical infirmities, alone, however, are often weak indicators. Mental weakness, on the contrary, often in itself can raise a presumption of undue influence especially in transactions between individuals with substantially different levels of mental ability.
The accountant is more than a little surprised to see you the next morning and refuses to discuss your distant cousin’s finances “for professional confidentiality reasons.”
The actual relationship between the parties is key in any undue influence action. When one person is in control or in a position of authority over another by virtue of the relationship, it is justified to assume that the other will not act inconsistent with his welfare. A transaction induced by unfair persuasion in such circumstances is presumed to be produced by undue influence. Undue influence is generally inferred in all cases of confidential or quasi-confidential relationships where the person in control or power receives a benefit.
In the absence of a fiduciary relationship, there is no presumption of undue influence. But where a fiduciary relationship exists, the presumption goes against the party with the superior, dominant position or control, shifting to him the burden to prove that the transaction was bona fide and not obtained by undue influence.
Mere friendship and confidence short of a trust relationship is not enough to establish the requisite fiduciary relationship.
You convince your cousin to visit the bank with you on the pre-text of “straightening out the bank’s error and not causing the accountant any additional work.” Records show that the insurance check had “bounced,” but was eventually covered along with a penalty fee after crediting the month’s social security check. Then you glance at her savings account record.
However, it is not necessary to prove that the beneficiary held such a dominant position that the person induced was entirely without power to assert his will. Nor need there be what would be considered a strict fiduciary relationship. What is required is that a confidential relationship existed and that the transaction results from the improper exercise of the relationship.
Generally, a presumption of undue influence may be rebutted by competent and sufficient evidence. The person charged with undue influence is given the opportunity to prove that the party allegedly influenced had benefit of disinterested advice, or that the person voluntarily and deliberately acted. Another defense to undue influence is that the transaction itself was equitable (that, for example, the influenced seller received fair market value). The mere opportunity to exercise undue influence is not sufficient in itself to prove undue influence, nor in non-fiduciary relationship situations does the fact of power, motive, and opportunity to exercise undue influence result in a presumption.
Reviewing her savings account, you’re shocked to see that during the past six months most of the $23,000 she had has been depleted. She tells you she knew about the savings: “Most of the monies have gone into the new church wing; they’re going to put up a plaque with my name on it in gold. I don’t have long here anyway.”
Ordinarily, actions taken based on undue influence are not automatically void, but voidable. A business contract, will, or property transfer is, therefore, open to attack–but until successfully challenged the actions are considered legitimate, even where a fiduciary relationship exists.
A presumption of undue influence arises in confidential relationships where the beneficiary is the dominant spirit in the transaction. What constitutes undue influence, however, is a question of fact dependent on individual case circumstances and, in general, are issues often submitted to a jury or judge as the trier of fact.
What, if anything, should and can you do to “help” your cousin? She knows, for the most part, how her money is being spent. The church leader is a pillar in the community, and your cousin has been a long-time member. But you know she has never given more than a few hundred, at most, to any charitable cause. And the accountant–what’s his role here. Does she really want to do this? The case decisions in the next section might assist you to begin answering these difficult questions.
Undue Influence: Case Law Developments in the Cult Context
Many nonprofit, philanthropic and religious organizations rely heavily on the practice of solicitation to remain in existence. These organizations often devote a significant portion of their staff and resources to increasing overall contributions. To the degree that the donations of money, property, or time are given willingly and with deliberate judgment, they are proper. To the degree that they are received without the donor’s use of deliberate discretion, reason, or judgment but as a result of another person exercising power through a confidential or quasi-confidential relationship, the gifts are subject to a challenge based on undue influence.
One prerequisite to a finding of undue influence is a determination that a confidential relationship existed. Courts have recognized various confidential relationships, including attorney-client, guardian-ward, parent-child, and priest-parishioner. The issue in the cult context is, when does the relationship between the advisor in a cult and the recipient of the advice rise to the presumption of confidentiality that would require the advisor to defend an undue influence charge.
Early cases involving church, spiritual, or religious leaders indicated that a confidential relationship is presumed per se in all religious situations. See Corigan v. Pironi, 23 A. 355 (N.J. 1891) and McClellan v. Grant, 82 N.Y.S. 208 (4th Dep’t 1903), aff’d 74 N.E. 119 (1905). While rebuttable, the relationship automatically gave rise to the presumption. See also, Ryan v. Saint Michael’s Roman Catholic Church of Whitlemore, 216 N.W. 713 (Iowa 1927) (finding no undue influence after shift of burden).
Other cases, even some from the late 1800s, cite factors in addition to the relationship itself as necessary before granting the presumption. In Muller v. Saint Louis Hospital Asso., 5 Mo.App. 390 (Mo. 1878), aff’d 73 Mo. 242, for example, the presumption (and subsequent decision) rested on the court finding that the patient who named the hospital as chief beneficiary in his will made the will in favor of his chief spiritual advisor’s organization, while within a facility owned and operated by the organization, and with the assistance of the organization’s employees.
The Muller court’s method of investigation beyond the mere priest-parishioner relationship has been adopted by the courts. The courts have generally concluded that the simple existence of the relationship does not evoke the presumption. See Guill v. Wolport, 218 N.W.2d 224 (Neb. 1974) (expressly rejecting Corigan); and see also Else v. Freemont Methodist Church, 73 N.W.2d 50 (Iowa 1955).
Traditionally, the evidence courts consider to determine whether a confidential relationship exists has included the mental and physical state of the donor. See Good v. Zook, 88 N.W. 376 (Iowa 1901). Frequently, as in testamentary cases and those in which transactions occur shortly before the actor’s death, available evidence on mental health and condition is circumstantial. While courts will consider other factors such as age and forgetfulness, standing alone these will probably not prove undue influence.
A crucial consideration in undue influence contests is the donor’s receipt of independent advice. In Klaber v. Unity School of Christianity, 51 S.W.2d 30 (Mo. 1932), a sizeable gift to the school was upheld even though the ninety-year-old donor was unquestionably both mentally and physically infirm. The school successfully defended the undue influence charge in large measure because they provided evidence that the woman had received independent advice on the gift.
On the independent advice issue, most courts have not restricted the advice in terms of its legality. The focus is on the independence and competence of the adviser. In a split decision, In Re Estate of Riley, 479 P.2d 1 (Wash. 1970) held that an attorney on retainer for a church nursing home operated by the sisters of the church was sufficiently disassociated from the church to provide some degree of independent advice. The court approved Riley’s change of wills, disinheriting two relatives, in part by recognizing Riley’s long history of limiting business discussions with others. While the advice she received may not have been sufficient to help overcome an undue influence charge involving many other individuals, it was sufficient in Riley’s case perhaps because her actions reflected her established character.
In another early undue influence case, a local Rhode Island religious sect directed by a married couple, the Dodges, compelled church members to transfer possessions to the sect and live in the sect’s house/church. Nelson v. Dodge, 68 A.2d 51 (R.I. 1949). A member, also the Dodges’ son-in-law, gave everything he owned, including his children’s life insurance policies, to the Dodges. Eight years later, he and his family were expelled from the church and left destitute. The issue before the court was whether by inducing the person to transfer all his property on the pretext that if he did not his and his family’s souls would be lost, the Dodges’ conduct amounted to undue influence. The court found a confidential relationship existed. Also, the court found the Dodges’ actions amounted to undue influence–noting the isolation of the community and the continual pressure imposed even after initial rejections by the son-in-law to transfer his property. The court also found that the eight year delay did not, in these circumstances, constitute laches.
In Robert-Douglas v. Meares, 624 A.2d 405 (D.C. 1992), parishioners alleged that their contributions were obtained through undue influence. The court reversed a lower court ruling and found that evidence of repeated individualized threats of eternal damnation for failure to contribute or increase contributions was relevant to the issue of whether undue influence existed. Although general invocations from the pulpit on God’s wrath could rarely, if ever, be the basis of an undue influence action, the court found that continued, one-on-one personal threats, made against vulnerable listeners may not be afforded First Amendment protection and could sustain an action in undue influence.
One case particularly illustrative of the presumption of undue influence and defense against the presumption is In Re The Bible Speaks, Dovydenas v. The Bible Speaks, 869 F.2d 628 (1st Cir. 1989) cert. denied 493 U.S. 816. Dovydenas was heir to a large estate valued at over $19 million. The court record showed that beginning about 1984, Dovydenas became increasingly interested in a ministry operated by Carl Stevens called The Bible Speaks (TBS). Stevens and Dovydenas began personal discussions in the mid-1980s, resulting in Dovydenas donating one million dollar to TBS. Stevens advised Dovydenas that he hoped her donation would prove to cure a TBS official of his migraine headaches. Stevens later lied and told Dovydenas that the gift had cured the migraines.
Believing that her donations had the power to cause temporal events, Dovydenas considered making another substantial contribution. Stevens then informed Dovydenas of a TBS pastor, restrained in Romania and probably suffering. He told her that her contemplated gift of $5 million would secure the pastor’s release. Dovydenas made the $5 million donation; Stevens told her not to inform her family or others about it. Three days later, the pastor returned and Dovydenas was led to believe that her gift was the catalyst–even though the pastor had been released before the $5 million donation was executed.
In 1985, Dovydenas contributed approximately $80,000 to TBS; during this period, she was also persuaded by Stevens to replace her attorney, accountant, and stockbroker with individuals associated with TBS. A new will was prepared for Dovydenas, leaving all to TBS with the exception of some jewelry and the minimum required by law to her husband.
Dovydenas told Stevens that she was experiencing marital problems in 1985, and she asked whether another gift would solve her problems. Stevens responded by suggesting a $500,000 donation could help.
Dovydenas’s marital problems presumably were resolved. She reconciled with her husband and other family. She then reconsidered the donations she had made to TBS and sued TBS to recover alleging undue influence.
On appeal, the circuit court in Dovydenas held that the first million dollar gift was proper on the basis that Dovydenas’s own motivation was the cause–although TBS did later misrepresent the effects of her donation. The court also refused to rescind the $80,000 in donations, finding no undue influence in those specific instances. However, the court upheld setting aside the $5 million donation based on fraudulent, influential statements made by TBS to Dovydenas about what the gift’s effects would be. The $500,000 gift was also set aside, as resulting from misrepresentations about the donations’ secular effects. The court also found that efforts by TBS to silence Dovydenas and remove her from independent advice significant.
The Dovydenas court expressly stated that its decision was not based on any general presumption of undue influence. The court required a finding of more than the confidential relationship. In fact, Dovydenas was required to demonstrate how undue influence specifically affected each donation. Stevens’s clear undue influence in one gift transaction did not substantially taint other separate transactions. The court inferred that had Stevens been truthful in his disclosures throughout, and had he not so isolated Dovydenas from outside advice, the ruling might have been entirely in TBS’s favor. Later obtained wisdom or a change in mind alone will not, in and of itself, serve to void unwise donations made to those in a confidential relationship. The Dovydenas court did note that its ruling on confidential relationships applies to non-religious undue influence situations as well.
In a similar case, Whitmire v. Kroelinger, 42 F.2d 699 (W.D.S.C. 1930), the court also distinguished between various gifts to a pastor. Gifts determined to be the result of the donor’s own choice were upheld. Other donations made after the pastor had become aware of the donor’s religious fervor and had begun concerted solicitation efforts were set aside.
However, religious fanaticism and actions based on religious fervor have not, in themselves, been held as grounds to find undue influence. In Held v. Florida Conference Assn. of Seventh Day Adventists, 193 So. 828 (Fla. 1940), the court in a split decision on appeal summarily upheld a lower court ruling allowing the donations. The donor in Held became a church member late in life and thereafter made a substantial testamentary donation to the church. The decision quotes the lower court: AA careful consideration of this record … may indicate that [the donor] was what some people call a religious fanatic. However, his peculiarities and conduct fail to disclose a state of mind which would indicate that, in contemplation of the law, he was insane, or that he was subject to any undue influence.”
The Held court found no evidence that the donor did not understand his business dealings or appreciate the significance of his actions. In fact, the donor’s religious fanaticism and devotion may have influenced the court to not find undue influence by the church in receipt of the large donation. The religious fervor pro-vided a logical basis for the donation.
When gifts provided to an organization are radically different from previously expressed intentions of the donor, however, undue influence may be indicated. For example, in In Re Hampton’s Estate, 103 P.2d 611 (Cal. App. 1940) and In Re Rupert’s Estate, 54 P.2d 274 (Or. 1936) (noncult cases), the courts set aside granting the bulk of the deceased’s estates to recently hired caretakers. No previous gifts to the parties were evidenced, nor was evidence presented to demonstrate that the donor had acted so spontaneously in giving in the past. But see Klaber.
Gifts to religious organizations have also been challenged on the basis that the donor either becomes impoverished through the gift or fails to adequately provide for his family. The focus in these cases is not on the size of the gift itself, but on the relative value of the gift to the estate. In Longenecker v. Zion Evangelical Lutheran Church, 50 A. 244 (Pa. 1901), for example, the court found a $5000 donation not out of proportion to the individual’s $60,000 estate.
In Redman v. Watchtower Bible and Tract Soc. of Pa., 630 N.E.2d 676 (Ohio 1994), sisters of the decedent contested a sixteen-year-old will which left most of the estate to the parent organization of the Jehovah’s Witnesses church. While finding that the extended period between execution of the will and the death did not bar an undue influence challenge, the period provided nonpresumptive evidence of the testator’s freedom from undue influence. The court also found the trial court had erred in its examination of witness religious beliefs to impeach a witness’s credibility. The religious beliefs of a witness can be used to show witness bias, but religious affiliation or beliefs (even beliefs alleged to justify misrepresentation) cannot be used to attack the credibility of the witness.
The undue influence issues surrounding donations of time, money, or property to cults and organizations, religious or not, revolve around when and under what conditions the donations were given. Courts differ on their focus, using the general principles mentioned, but often reviewing and emphasizing particular aspects of the questioned activities and transactions. As in the area of fraud and misrepresentation, an evaluation of case law leads to the conclusion that the decisions are decided in part on the “personalities” involved, frequently invoking circumstantial evidence, instead of a pure, absolute legal doctrinal basis.
Fraud and Misrepresentation: Legal Principles
Fraud, broadly defined, includes any misrepresentation or deception resorted to for the purpose of gaining advantage over another. All acts and concealments which breach a legal or equitable duty and result in damage are fraud. Without a breach of some legal or equitable duty, fraud cannot exist.
The term fraud is often confused as synonymous with duress. The essential difference between fraud and duress is that an individual injured in fraud lacks true knowledge of the facts or acts with reliance on misrepresentation; in cases of duress, the individual is fully aware and is compelled to act because of the awareness of the forces or threats.
Undue influence is also considered by some as a type of fraud. But again there is a distinction between the terms. Fraud always requires a misrepresentation; undue influence does not. The two, however, may exist together in the same action.
The two general types of fraud are actual and constructive fraud. In actual fraud there is a dishonest intent to deceive someone into relinquishing property or surrendering some right. Dishonesty or falsehood is an essential element of actual fraud. Constructive fraud arises out of a breach of duty, frequently a confidential relationship, and intended deception is not required, though it may often be present. These distinctions in the types of fraud, however, do not extend to legal effects.
Your son, Jason, is a sophomore at a business college upstate. You telephone, but learn Jason “just moved out yesterday” to live with a group of new friends. Jason does call that night; he’s “all right … just real busy working and studying.” You’re pleased that he finally took your advice about a part-time job and with his newfound enthusiasm for school. On why he moved, he explains, AI had no friends there; anyway, there’s no rent charge here while I’m in training.”
A brief list of the requirements of actionable fraud is: the representation (statement or information); its falsity; scienter (the knowledge that charges a person with the consequences of his actions); deception; and injury.
A more detailed list of elements required for actionable fraud is: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it should be acted on by another in a reasonably contemplated manner; (6) the hearer’s ignorance of the falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely; and (9) the hearer’s consequent and proximate injury.
Some state statutes and courts abbreviate or condense the essential elements of fraud; others specifically omit consideration of particular elements. In a minority of jurisdictions, for example, scienter is not required, in others fraudulent intent is not essential.
All jurisdictions, however, recognize actionable fraud to provide that someone who willfully misleads another with the intent to induce him to act or not act in a way causing injury is liable for damages.
An example of a standard state statutory definition for fraud is: an intentional misrepresentation, deceit, or concealment of a material fact where the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant thereby depriving a person or entity of property or legal rights or otherwise causing injury. Ala. Code ‘6-11-2.
Fraud may be committed by words, by actions, or by clear inferences taken from inaction. There can be no fraud without a misrepresentation. But a single misrepresentation may suffice.
Jason calls. You ask about school and “work.” School’s “o.k.” and he’s “still just learning the job, but it’s a great opportunity.” They promise all volunteers “good -paying jobs” after training. Beyond this, information is scarce.
Expressions or statements limited to hopes or desires on what may happen in the future cannot provide a basis for actionable fraud. Similarly, opinions cannot, in general, be fraudulent. However, this does not extend to protect those offering dishonest opinions which express misrepresentations or conceal material facts.
In addition, where a future promise is used as a device to commit fraud and a fiduciary or trust relationship exists, use of the promise as part of a general scheme to induce the person to act as he otherwise would and causing injury is actionable fraud.
A promise offered in good faith, however, is not considered actionable fraud. And the truth of the statement is determined at the time it was made. Also, society expressly accepts seller and dealer “puffing,” or trade talk, as not constituting actionable fraud.
Fraud may consist of concealment. Mere silence without a duty to speak or inform is not sufficient. But any relationship deemed confidential imposes a duty to reveal all material facts to the transaction. Confidential relationships include priest-parishioner, attorney-client, and parent-child, among others.
If fraud is proven, a court will assume an improper motive. The actual motive becomes immaterial. Misrepresentations for benevolent motives rather than self-interest do not negate the fraud.
Jason’s school notifies you that he’s been dropped from the active student roll due to his failure to complete course work, specifically attendance. Jason says he “couldn’t do both, and this is more important.” He promises he’ll return after a year or two of earning “good money.” You have doubts, but he’s nine-teen. So what can you do?
In nonconfidential situations, jurisdictions differ on whether the ability of the person injured by the fraud to know or to attain the truth refutes reliance, an essential element of any fraud. Most courts require that the injured individual acted with at least ordinary care. Courts do, however, consider whether circumstances or statements may have induced the injured person to desist from further inquiry.
The reliance factor, whether the hearer would have acted in the absence of the fraudulent misrepresentation, is essential. Misrepresentations without reliance are not fraud. If a confidential relationship exists, however, nothing other than proof of actual independent knowledge of the hearer will prevent recovery.
To warrant recovery in fraud, there must be a right to rely. Where the relationship between the parties is confidential, a party may rely on another’s representations without respect to their nature as opinion and without inquiries as to their truth. Confidential relations exist where trust and confidence lies in another under circumstances that impose on that person the obligation to act in good faith.
Even in confidential relationships with misrepresentations, actionable fraud does not exist absent damages. Damages is an essential element in all fraud claims. Damage, in general, must be shown by a pecuniary loss or personal injury caused by the alleged fraud. However slight, any damage will suffice. Courts have recognized many types of damages in fraud cases including loss through the purchase, sale, or exchange of property; physical injury; imprisonment; and loss of conjugal rights.
It’s a new business venture he heard about from a friend he now lives with. He said he’s soliciting new investors by telephone, learning “how to lobby, you know, convince people” and there’s that promised “good job” after training. “I’m learning more than I ever did in school.”
While damages are controlled by each jurisdiction’s case and statutory law, the Second Restatement of the Law of Torts notes that in certain circumstances compensatory damages may be awarded without proof of pecuniary loss for emotional distress. Restatement Torts 2d ‘905. But protection against disagreeable emotions not involving bodily pain is ordinarily only given when infringement of another interest occurs. Disruption of a marital relationship, for example, can be the basis of a tort action for the mental distress of humiliation. And the loss of freedom for a significant period, even without proof of physical harm or pecuniary loss, can result in damages if the defendant intentionally caused the imprisonment.
The focus for the courts is damage to the plaintiff, not benefit to the defendant. Even if the defendant received no benefit or gain actionable fraud still exists.
Generally, injury to a third party alone is not sufficient. A third party stranger to a transaction, who cannot claim under the person directly defrauded, has no personal right of action. But the courts will permit a third party to sustain an action where it can be proven that the third party was the real focus or target of the fraud.
A person cannot be held liable for fraudulent misrepresentations unless he made them himself or authorized another to do so. But anyone who knowingly accepts the fruits or benefits of fraud is liable–even if the person lacks direct participation in the fraud itself.
Substantive defenses of fraud claims, as a rule, focus on proving the absence of one or more of the essential statutory elements of actionable fraud. If a defendant can successfully argue that an essential element is missing, the fraud charge must be dismissed.
The major presumption in fraud cases involves fiduciary relationships. There is a presumption of fraud where a fiduciary profits at the expense of one who confides in him. The burden of establishing the existence of the fiduciary relationship resides with the injured party, but the burden then shifts to the fiduciary to attempt to prove that the questioned conduct was free of fraud.
Six months after Jason’s “training” began, the job promised remains illusive. Jason seems stressed, and shows signs of doubt. “Money’s down,” he says. AIf I don’t get more investors, the whole thing could fall apart. Maybe it will anyway.” He doesn’t pay rent, meals are provided, and there seems to be some type of “training,” but…
Without a fiduciary relationship, there is a usual presumption against fraud and favoring the existence of honest, fair dealing. In nonfiduciary cases, fraud must be proven by the preponderance of the evidence. Courts will often consider and rule based on circumstantial evidence, provided that the evidence proves a clear inference of fraud and not a mere suspicion or conjecture.
Relief in most fraud cases is a return to the status quo–placing the injured party in a position as close as possible to where he would have been had the fraud not occurred. In cases where plaintiffs prove a violation of a duty resulting from a trust or confidential relationship and a deliberate intent to injure, courts have also allowed exemplary, punitive, or vindictive damages.
Did other volunteers lure Jason into the venture by “fraudulent representations”? Will “training” really lead to a “good” job? Were the statements falsehoods or allowable business “puffing”? If false, were they known as such by the “speaker” at the time? Did Jason act relying on the statements or was he looking for any excuse to quit school? Did he have a right to rely on the promises? Was he injured? Did Jason commit fraud convincing others to invest? The case decisions in the next chapter might help you to answer these questions, or, at least, assist you to formulate the process courts could use to address these issues.
Fraud and Misrepresentation:
Case Law Developments in the Cult Context
Media coverage generated by actions of persons involved with cults or unorthodox religious sects often comment on the limited extent to which local, state, and federal governments can regulate such organizations in light of the protections afforded by the First Amendment to the United States Constitution. While the circumstances of the individual case will determine whether the First Amendment’s free exercise of religion clause will bar liability for tort conduct, the courts have found no absolute protection with respect to damages resulting from cults’ recruitment, indoctrination, or related activities. The courts specifically have found tort liability based on fraud or misrepresentation against religious organizations and cults.
When tort actions such as fraud are brought against religious institutions or officials of the institutions, the defense provided by the First Amendment guarantee of the free exercise of religion is often used. While the courts have generally upheld the extremely high value religious freedom is provided under the Constitution, the courts have nevertheless held that an organization’s or individual’s religious status does not provide an absolute shield of immunity from all tort liability.
In finding liability, courts frequently emphasize the distinction between religious belief, which receives absolute protection, and religious conduct, which receives protection balanced by those protections afforded society as a whole.
Often another initial consideration for courts has been whether the alleged fraud activity is in fact religious in character at all, or whether the religious nature of the institution or the individual is incidental to the fraud. Where the activity is religious, the degree of protection afforded by the First Amendment becomes the issue. Where it is not, the free exercise of religion defense is unavailable.
Another issue for the courts in determining the applicability of the free exercise of religion defense is whether the group claiming the protection is a religious group. At times, courts have required organizations to demonstrate their religious status before reaching the free exercise issue. The likelihood that the court will seriously inquire on an organization’s religious status often hinges on whether the “religion” is new or particularly unorthodox in its practices and beliefs.
Similarly, the allegedly injured individual’s status in relation to the organization is also a factor. This is especially true in cases involving internal church affairs–where group membership may be equated with consent to certain punishment or actions.
Tort actions in fraud against a cult or religious organization raise some of the most intriguing issues in the religious freedom context. While the truth or falsity of the defendant’s statements are usually core to any fraud action, the freedom to exercise religion clause simultaneously prevents a judge from reaching a decision based on the truth or falsity of the defendant’s religious beliefs themselves.
Restrictions on court examination of the veracity of religious beliefs has resulted in the courts’ generally finding no liability for fraud-based actions founded solely on statements of religious belief. The courts will, however, consider statements of a secular nature, including deceitful concealment of religious affiliation as unprotected by the free exercise clause.
The rights of individuals in society protected by tort law and the rights of individuals in that society as protected by the freedom to exercise religion clause can collide. With a similar approach to that taken when considering legislative infringements on religious institutions or practices, courts in free exercise clause cases have frequently adopted a balancing testCweighing the state’s legitimate interest in protecting the public against the legitimate interest to protect an individual’s right to religious freedom. Factors in the balancing test vary. Alleged fraudulent conduct frequently does not fall simply on one side of the scale or the other, but rests between the religious and secular. The scale itself may be tipped, often depending on the uniqueness of the institution or its doctrines. But the courts’ focus should not be on the truth or falsity of the beliefs nor on the unique or even illogical character of the beliefs. The inquiry should be on whether the teachings are of the type generally afforded First Amendment protection. In short, while guideposts have been marked, in many decisions the determining factors have been the specific factual circumstances of the case as presented, more than on results from any established constitutional litmus tests.
In 1940, the United States Supreme Court provided an authoritative interpretation of the freedom to exercise religion clause of the First Amendment which has been adopted in many tort actions. Cantwell v. Connecticut, 310 U.S. 296 (1940). The Cantwell court found that the First Amendment’s protection of religious freedom embraces two essential yet distinct concepts: (1) the freedom to believe and (2) the freedom to act. The Court further found that the freedom to believe is absolute, protected from all and any challenges. The freedom to act on those beliefs, however, has no such absolute protection.
In 1963, the United States Supreme Court in Sherbert v. Verner, 374 U.S. 398 (1963) expounded on the constitutional protections provided for the free exercise of religion. Reviewing a state law that prohibited unemployment benefits to persons unavailable to work every day of the week except Sundays, the Court held that laws which pressure individuals to abandon their religious precepts must demonstrate that the burdens imposed on the individuals are the least restrictive means for the state to achieve a compelling governmental interest.
The Sherbert “compelling state interest” test, with minor interpretations, remained the standard for evaluating the constitutionality of laws that burdened the free exercise of religion until 1990. In 1990, a divided Supreme Court abandoned the compelling state interest standard, at least in part. Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), reh’ring denied, 110 S. Ct. 2605. The Court held that except in cases where the law at issue burdens another constitutional right in addition to the free exercise of religion or where unemployment benefits are conditioned on an applicant’s willingness to work under conditions violating his religious beliefs, the lower rational relationship standard should be substituted for the compelling state interest standard. The matter before the Employment v. Smith court related to the denial of unemployment compensation to two Native Americans who were fired from a private drug and alcohol rehabilitation facility after admitting use of peyote as a sacrament during a religious ceremony in their Native American Church. The minority disputed the Court’s attempt to justify distinguishing between the types of protection provided the freedom to exercise religion.
As a result of the Employment v. Smith decision, Congress enacted the Religious Freedom Restoration Act of 1993. P.L. 103-141. The Act reasserts Sherbert, “creating a statutory prohibition against government action substantially burdening the exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the action is the least restrictive means of furthering a compelling governmental interest.”
While Congress has statutorily recognized broad constitutional protections for the exercise of religious freedom, restrictions on religious conduct nevertheless can be valid if the compelling government interest standard is satisfied. Thus conduct, even religious conduct, by its very nature remains subject to constraints imposed for the protection of society as a whole. Not all activity, therefore, even when taken in the name of religion and in compliance with religious beliefs, is protected by the free exercise clause, but may result in legal liability for damages caused.
In Van Schaick v. Church of Scientology, Inc., 535 F. Supp. 1125 (D.C.Mass 1982), an action brought by a former Church of Scientology member alleging fraud, the church argued that the challenged representations were religious practices and beliefs and, as such, protected by the First Amendment. The ex-member charged that the First Amendment protection did not apply, alleging that the church was in fact a commercial organization not truly religious in nature. The court avoided ruling on the church status issue, finding that even religious institutions remain liable for damages resulting from secular activities. The court reasoned that the freedom to exercise religion clause immunity is at least to some degree dependent on whether the court would be required to offer a judicial determination on the validity of the organization’s religious beliefs–which it cannot do. If the court does not have to reach a validity of belief issue, then the court may permit restrictions on the organization’s actions–as long as the restrictions are the least restrictive means to achieve the compelling state interest of protecting the public.
The Van Schaick court then focused on the allegations that the allegedly injured party was induced to participate in “auditing,” a practice of study related to dianetics, which in the advertisements for the course was Ascientifically guaranteed” to provide certain secular benefits such as increased intellect and physical well-being. The court concluded that while the distinction between secular and religious is not always clear, the First Amendment’s protection of religious beliefs does not extend to secular beliefs. The statements regarding the effects of auditing guaranteed by science were held to be proper misrepresentations for basing fraud action–even though the same guarantees without the evocation of science would not. The court not only looked at the belief itself, but the secular nature of the inducement which the allegedly injured individual was led to believe.
Similarly, in Kropinski v. World Plan Executive Council-U.S., 853 F.2d 948 (D.C. 1988), an appeal was taken from the district court granting over $137,000 in damages to a former student and instructor of Transcendental MeditationJ. Kropinski claimed that he was induced through misrepresentations to study and practice the organization’s methods of meditation which caused him physical, financial, and psychological harm. While not invoking the freedom to exercise religion protection, World Plan did argue protection for its statements based on the First Amendment protection barring libel actions based on opinions. The court held that the case challenged not opinions, but secular misstatement, such as that practicing Transcendental Meditation could lead to levitation. The court also held that evidence of fraud leading to thought reform could be admitted to show why Kropinski did not detect the alleged fraud after his injuries, thus opening up the possibility for the plaintiff to successfully defend a statute of limitations challenge.
In Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988), two ex-Unification Church members sued an individual, a church, and a related institution for a variety of tort offenses including fraud. The alleged fraud developed from misrepresentations made to induce the ex-members to join the church. A variety of deceptive tactics were involved including denial by those proselytizing of the Unification Church connection.
Molko reviewed the ex-members’ charges and found that their claims did not attack the validity of church doctrines nor even the validity of the beliefs of the converted. Instead, the fraud charges challenged the church practice of concealing or misrepresenting its identity so unsuspecting outsiders could more easily be brought into the church. The church practice is not belief, but conduct. The court, however, rejected the ex-members’ argument that the conduct was secular and not religious. The church’s practice of misrepresentation as experienced by the ex-members was founded on a church doctrine called AHeavenly Deception.” The doctrine taught that it is acceptable to lie to someone in order to give him the opportunity to hear the teachings of the church. While perhaps appearing secular on its face, the church’s fraudulent behavior was found to be “rooted in religious belief.” While this distinction did not absolutely protect the practice from state restrictions, it did require that any restrictions imposed survive a constitutional freedom to exercise religion test justifying the restrictions.
The Molko court cited Cantwell in reasoning that while religious beliefs are absolutely protected, action, even if compelled by belief, remains subject to restrictions imposed for the protection of society. The court then considered a balancing test, weighing the state interest to protect society against the burden that would be imposed on the religion. The court explained that the greater the burden imposed by the state, the greater the state’s interest must be to justify the burden. In addition, the state’s imposed burden must be no more imposing than necessary, non-discriminating between religions, and non-discriminating between religious and non-religious institutions. See Employment Div. Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (prohibiting use of peyote in religious ceremonies).
The Molko test became whether the state’s interest in allowing tort liability for church deceptive recruiting practices is important enough to outweigh the burdens such liability would impose on the church’s conduct. The court recognized the reality of the burden–the avenue for church recruitment would be somewhat closed–but concluded the burden was “marginal.” The court found the state interest, to protect its citizens from being deceived into unknowing submission into a potentially damaging atmosphere of coercive persuasion, compelling. Finally, the court concluded that permitting private action for fraud constituted the least restrictive means available to advance the state’s interest.
In Anderson v. Worldwide Church of God, 661 F. Supp 1400 (D.C.Minn. 1987), later proceed., 661 F. Supp. 1401, an ex-church member charged that the church committed fraud in misrepresenting that the world would end. In an attempt to avoid the First Amendment defense, the plaintiff argued the insincerity of the church’s beliefs and as evidence showed that the church continued to take actions protecting fiscal assets and inaction to prepare for the world’s end. The court held, however, that the freedom to exercise clause protection was justified, noting that under the official church doctrine church members and the church itself were taught to continue to lead normal lives in the areas of fiscal responsibility. The court also cited plaintiff’s admission of his belief that certain church ministers sincerely believed that the world was soon to end.
In Christofferson v. Church of Scientology, 644 P.2d 577 (or. 1982), an ex-member of the Church of Scientology filed a fraud action alleging that fraudulent misrepresentations were made to induce her into joining the organization. The church claimed freedom to exercise religion protection. As in Van Schaick, the ex-member alleged that the First Amendment did not apply because the challenged church conduct was purely secular. After recognizing the church as a religion, the court found that the church’s statements related to religious beliefs. Finally, the court considered whether the statements with a religious character were nonetheless made for a wholly secular purpose. More directly than in Van Schaick, the court focused on the intent of the language used by the church, not merely the words themselves.
The ex-member in Christofferson was informed that a course at the church’s school would provide her with more knowledge than any psychologist or psychiatrist, that the course’s theories (dianetics) were scientifically provable to cure a variety of illnesses, and that “auditing” increases intellect and cures physical and emotional problems. The court ruled that not all of the challenged statements were clearly religious in nature, thus potentially removing First Amendment projections. The court held that a question for the jury remained on whether the offer of courses was actually a part of a religious practice or, instead, a wholly secular activity. A wholly secular activity, the court noted, could include interests of the church solely to solicit funds–even if, as in this case, a condition of attendance was joining the church and religious materials were offered as course materials. A jury could find, the court explained, that the course offerings were purely secular in nature with an irrelevant religious designation merely “added on.” While the distinction between secular and religious is not always clear, protection does not extend to purely secular misrepresentations made by religious organizations. Thus, the court will not allow religious language to serve as a First Amendment shield for fraudulent secular activity conducted by a religious organization. While directing a verdict in favor of certain defendants for failure to demonstrate actual knowledge or participation by them in the fraud, the court ruled against the local church and church officials. Interestingly, the court used a business law “piercing the corporate veil” analogy in its distinction as to liability of the defendants.
Freedom to exercise religion defenses can be attacked, though often unsuccessfully, by directly questioning whether the church is a religious institution. This challenge was raised in the Van Schaick case mentioned above.
The Church of Scientology argued in Van Schaick that it was entitled to judicial notice that it was a religion with First Amendment protections. The court rejected the church’s argument, finding that Scientology was not an established religion at that time, and ordered the church to prove that it was a religion. Specifically, the court requested information on whether the church considered matters of “ultimate concern,” whether church doctrines are comprehensive, and whether the church has formal external characteristics similar to those of established religious organizations. The court further held that a prima facie showing by the church was rebuttable. However, the court warned that while rebuttable, the church’s claim to be a religion protected by the First Amendment could not be attacked through inquiry into the sincerity of church members’ personal beliefs, but would be limited to intrinsic evidence of the organization’s secular nature.
Similar to the issue of whether an organization is a church entitled to First Amendment protections is whether the plaintiff in a tort action against a church is or was a recent church member. Courts have held that an individual presumably consents to religiously motivated discipline or chastisement by being a member of a church. Membership is, in effect, a contract with the church. Damages resulting from discipline issued under the terms of the membership contract is nontortious.
Church elders’ public discussions of a church member who alleged emotional distress from the experience were held to be absolutely protected by the freedom to exercise clause. Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Ok. 1989). In Guinn, the public disciplinary proceedings exposing the person’s private life were protected, even though the individual disavowed church membership (church doctrine viewed all members as family, without the ability to disassociate from the family).
In Paul v.Watchtower Bible and Tract Soc., 819 F.2d 875 (Ninth Cir. 1987) cert. denied 108 S. Ct. 289, a church decision to “shun” or disassociate from a former member was upheld as not actionable. The court decided that it could not interfere with the church-member (or recent member) relationship.
However, in Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987), a tort action was upheld against a Baptist clergyman when the minister failed to produce sufficient evidence that the plaintiff was a church member.
The Watchtower case also provides an example of the limitations in court evaluation of church doctrines. When the church member in Watchtower had disassociated from the church, the “shunning” practice by church doctrine only applied to members who were formally excommunicated. After the plaintiff’s voluntary disassociation, the church changed its doctrine, applying “shunning” to disassociated former members as well. The court protected the “shunning” practice in this case, even though the doctrine permitting it was never in effect at the time the injured, complaining party was a church member.
In another similar shunning case, however, the court held that the First Amendment’s protections did not apply. In Bear v. Reformed Mennonite Church, 341 A.2d 105 (Pa. 1975), an ex-church member alleged that the shunning had extensive secular effects beyond personal emotional damages. He argued that as a result of the shunning, he was unable to hire employees, obtain business loans, or market his product. The plaintiff also alleged that the shunning extended within his family home, causing his wife and children to disassociate from him. The court reasoned that the shunning in this case caused damages through excessive interference with areas of paramount state interest and concern–both the continuation of commerce and the maintenance of the family structure. First Amendment protection was denied.
Interest to protect the family was addressed in the Molko decision as well. The Molko court recognized that when a person is unknowingly subjected to coercion and undue influence, frequently the family of that person suffers stress accompanied on occasion by significant financial loss. The damage fraud can cause extends beyond the individual directly injured. While third party claims to fraud are not generally recognized without an agency relationship, protection of the individual and the family can be considered in any weighing or balancing test where the aim is to expand church liability.
As the court in Bear provided civil protection once the negative secular effects of shunning extended beyond the emotional level of damages demonstrated in the Guinn and Watchtower cases, judicial interpretation of criminal statutes in coercion cases involving fraud have frequently more tangible or more objective evidence than victim testimony of emotional or mental coercion. In United States v. Kozminski, 487 U.S. 931 (1988), the U.S. Supreme Court held that for purposes of criminal prosecution of farm operators accused of conspiring to hold two persons with mental disabilities in involuntary servitude “threatened use of physical or legal coercion” is required. Evidence of other coercion and the victim’s special vulnerabilities were found relevant only insofar as they can be used to substantiate disputed testimony regarding threats of physical or legal coercion.
While agreeing with the result the majority reached in Kozminski, Justice Brennan filed a concurring opinion, joined by Justice Marshall, which challenged the appropriateness of the majority’s reliance on threats of a physical or legal nature as the trigger for criminal culpability.
To the contrary, it would seem that certain psychological, economic, and social means of coercion can be just as effective as physical or legal means, particularly where the victims are especially vulnerable…. Hypnosis, blackmail, fraud, deceit, and isolation are also illustrative methods–but it is unnecessary here to canvas the entire spectrum of nonphysical machinations by which humans coerce each other…. Indeed, this case and others readily reveal that the typical techniques now used to hold persons in slavelike conditions are not limited to physical or legal means.
The Kozminski court’s disagreement on the degree or type of coercive evidence required in criminal matters foreshadowed the ongoing debate in the courts on the standard of admissibility for psychological or psychiatric evidence, particularly in civil actions including those alleging fraud and undue influence. The strict standards formerly established for criminal cases have been modified by federal rules and have resulted in many jurisdictions expanding the boundaries of what will be admitted.
Finally, in one of the most celebrated criminal fraud cases of the decade, the court in United States v. LaRouche, 896 F.2d 815 (4th Cir. 1990) affirmed a criminal conviction on mail and tax fraud charges against Lyndon LaRouche, along with the convictions of six others on mail fraud counts only. According to the court decision, LaRouche and others knowingly orchestrated fund-raising activities in which fund raisers obtained loans from contributors by making false statements about when and whether the loans would be repaid. A former LaRouche fund raiser testified that when he began making telephone calls for contributions he was instructed:
You have to have only one thing on your mind. That is getting the money. No matter what the person you are talking to says, get the money. If you are talking to a little old lady and she says she is going to lose her house, ignore it. Get the money. If you are talking to an unemployed worker who says he has got to feed … a dozen children, forget it. Get the money. Most of these people are immoral anyway. This is the most moral thing they have ever done is to give you money.
In addition, evidence was introduced that LaRouche created a policy of nonrepayment of loans. Lenders would initially be approached to convert their loans into contributions. Lenders who refused to do so would, for the most part, simply not be repaid.
The LaRouche case demonstrates the difficulty in reaching an organization’s leadership when charges of fraud are brought. Although it was successful, years passed before a final decision was reached. Evidence against LaRouche and others was, based on the court records, collected over a lengthy period in great detail. The case also clearly demonstrates the ease with which well-organized groups using fraudulent practices can elicit volunteers who in turn elicit funds. (In 1984 and 1985 alone, the LaRouche organization National Caucus of Labor Committees “borrowed” more than $25 million from “contributors.”)
Today, cult “domination” of individuals remains a topic of public discussion and concern–both for the protection of the individual and of society as a whole. Hearings held jointly by subcommittees of the House of Representatives Committees on the Judiciary and on Government Reform in July and August 1995 reviewed law enforcement issues concerning David Koresh and the Branch Davidians near Waco, Texas, and refocused attention on Mr. Koresh’s amazing influence over his followers. The issue came up in Congress, in a floor colloquy initiated by the Chairman of the Congressional Task Force on Terrorism and Unconventional Warfare, Congressman Jim Saxton (R-NJ), who observed:
Many Americans are concerned and puzzled by the conduct of individuals involved in events such as the bombing of the Murrah Federal Building in Oklahoma City, the Sarin attack in the Tokyo subway and the extreme hold that David Koresh had on his followers.
The current state of understanding of such groups is extremely limited…. [W]e hope to increase our understanding of characteristics of such groups which are associated with increased potential for terrorism, violence or other criminal behavior; the manner in which such groups recruit individuals and influence their behavior sufficiently to move them toward terrorism, violence, and other criminality; the causes behind members leaving such groups; and mental health effects of membership in such groups.
This research project is limited to principles of undue influence and fraud. Even in these two areas, it is striking how distinctly the law has evolved and been expressed in judicial opinions, with so little apparent cross-fertilization as regards the similar psychological issues in the two categories of jurisprudence. Mr. Justice Brennan’s thoughtful synthesis in Kozminski is a rare exception. It appears that in the legal context as in the behavioral science context Congressman Saxton’s observation holds: “The current state of understanding of such groups is extremely limited.”
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Cases (cited in text)
Anderson v. Worldwide Church of God, 661 F. Supp 1400 (D.C.Minn. 1987), later proceed., 661 F. Supp. 1401.
Bear v. Reformed Mennonite Church, 341 A.2d 105 (Pa. 1975).
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Christofferson v. Church of Scientology, 644 P.2d 577 (Or. 1982).
Corigan v. Pironi, 23 A. 355 (N.J. 1891).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).
Else v. Freemont Methodist Church, 73 N.W.2d 50 (Iowa 1955).
Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), rehiring den., 110 S. Ct. 2605.
Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923).
Good v. Zook, 88 N.W. 376 (Iowa 1901).
Guill v. Wolport, 218 N.W.2d 224 (Neb. 1974).
Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Ok. 1989).
Harding v. Wheaton, 11 F. Cas. 491 (C.C.R.I. 1821) (No. 6051), aff’d in part and rev’d in part sub. nom., Harding v. Hardy, 24 U.S. 103 (1826).
In Re Hampton’s Estate, 103 P.2d 611 (Cal. App. 1940).
Held v. Florida Conference Assn. of Seventh Day Adventists, 193 So. 828 (Fla. 1940).
Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987).
Klaber v. Unity School of Christianity, 51 S.W.2d 30 (Mo. 1932).
Kropinski v. World Plan Executive Council-U.S., 853 F.2d 948 (D.C. 1988).
Longenecker v. Zion Evangelical Lutheran Church, 50 A. 244 (Pa. 1901).
Lyon v. Home, 6 ERC 852 (England 1868).
McClellan v. Grant, 82 N.Y.S. 208 (4th Dep’t 1903), aff’d 74 N.E. 119 (1905).
Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988).
Muller v. Saint Louis Hospital Asso., 5 Mo.App. 390 (Mo. 1878), aff’d 73 Mo. 242.
Nelson v. Dodge, 68 A.2d 51 (R.I. 1949).
Norton v. Relly, 2 Eden 286, 28 Eng. Reprint 908 (1764).
Paul v.Watchtower Bible and Tract Soc., 819 F.2d 875 (9th Cir. 1987) cert. denied 108 S. Ct. 289.
Redman v. Watchtower Bible and Tract Soc. of Pa., 630 N.E.2d 676 (Ohio 1994).
Riley, In Re Estate of, 479 P.2d 1 (Wash. 1970).
Robert-Douglas v. Meares, 624 A.2d 405 (D.C. 1992).
Rupert’s Estate, In Re, 54 P.2d 274 (Or. 1936).
Ryan v. Saint Michael’s Roman Catholic Church of Whitlemore, 216 N.W. 713 (Iowa 1927).
Sherbert v. Verner, 374 U.S. 398 (1963).
The Bible Speaks, In Re Dovydenas v. The Bible Speaks, 869 F.2d 628 (1st Cir. 1989) cert. denied 493 U.S. 816.
United States v. Kozminski, 487 U.S. 931 (1988).
United States v. LaRouche, 896 F.2d 815 (4th Cir. 1990).
Van Schaick v. Church of Scientology, Inc., 535 F. Supp. 1125 (D.C.Mass 1982).
Whitmire v. Kroelinger, 42 F.2d 699 (W.D.S.C. 1930).
Additional Cases (not cited in text)
Candy H. v. Redemption Ranch, Inc., 563 F. Supp. 505 (M.D. Al. 1983) (allegations of fraud and misrepresentation to obtain and retain residents for a home for female juveniles).
Church of Scientology Flag Service Org., Inc. v. City of Clearwater, 2 F.3d 1514 (11th Cir. 1993) (the First Amendment and local solicitation ordinances ).
Founding Church of Scientology v. United States, 412 F.2d 1197 (Ct.Cl. 1969) (determination of certain federal income tax exemptions for religious institutions).
George v. International Society for Krishna Consciousness of California, 4 Cal Rptr. 2d 473 (Cal. App. 4 Dist. 1992) (damages suit alleging emotional stress and “brainwashing”).
International Soc. for Krishna Consciousness, Inc. v. Lee, 112 S.Ct. 2701 (1992) (the First Amendment and the distribution of literature and solicitation of contributions).
Katz v. Superior Court, 141 Cal. Rptr. 234 (Cal. App. 1 Dist. 1977) (challenge to the appropriateness of the appointment and power of a conservator to “deprogram” ward).
Latham v. Father Divine, 85 N.E.2d 168 (N.Y. 1949) (fraud and undue influence in wills).
Lee v. Weisman, 112 S.Ct. 2649 (1992) (separation of church and state in graduation invocation ceremonies).
Maheras, In the Matter of the Estate of, 897 P.2d 268 (Ok. 1995) (undue influence and wills).
Miller v. Alamo, 748 F. Supp. 695, 699 (W.D.Ark. 1990), aff’d. 924 F.2d 143 (8th Cir. 1991), review denied, 61 U.S.L.W. 3643 (March 22, 1993) (organization’s individual leader responsible as the organization; infliction of extreme emotional and physical harm). “The court can conceive of no higher duty incumbent on it than the protection of children from outrageous batteries like the one that the evidence here so plainly reveals. No feeling person could fail … to be revolted by the cold-blooded and calculated manner in which the punishment of Justin Miller was carried out.” 748 F. Supp. at 698.
McKittrick, In the Matter of, 865 P.2d 1099 (Mont. 1993) (trusts and undue influence).
New Jersey v. Jurcsek, 588 A.2d 875 (N.J. 1991) (fraud and deception, communal group).
P.E.P., In the Matter of the Adoption of, 407 S.E.2d 505 (N.C. 1991) (fraud in the adoption context).
Polin, In the Matter of the Guardianship of, 675 P.2d 1013 (Okla. 1983) cert. denied 105 S.Ct. 167 (challenge to incapacity determination involving religious sect affiliation).
Sims v. Sims, 452 S.E.2d 761 (Ga. 1995) (estate planning and undue influence of son).
Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 6 Dist 1989) (tort action against religious organization for imposition of sanctioned punishment against member).
Tilton v. Marshall, 38 Tex. Sup Ct. 1140 (1995 WL 453268) (Tex. August 1, 1995) (allegations of fraud and infliction of distress against televised religious leader).
United States v. Article or Device, Etc., 331 F. Supp. 357, 359, 360, 361 (D.D.C. 1971) (scientific claims appear to be “devoid of any religious overlay”).
United States v. Fishman, 743 F. Supp. 713 (N.D. Cal. 1990) (admissibility of expert testimony on coercive persuasion and religious “brainwashing” in mail fraud case).
United States v. Kuch, 288 F.Supp. 439 (D.C.D.C. 1968) (Constitutional protection and religious drug use).
Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991) (fraud and undue influence alleged by child against stepmother).
Wisconsin v. Yoder, 406 U.S. 205 (1972) (separation of church and state; high school attendance).
Wollersheim v. Church of Scientology of California, 260 Cal. Rptr. 331 (Cal. App. 2 Dist. 1989) (former organization member sues) N.B.: readers may want to consider other related decisions in this lengthy challenge; see, for example, Wollersheim v. Church of Scientology of California, 832 P.2d 898, 10 Cal.Rptr.2d 182 (1992) and Religious Technology Center v. Wollersheim, 971 F.2d 364 (9th Cir. 1992).
Asch, S.E. Effects of group pressure upon the modification and distortion of judgments (New York: Holt, Rinehart and Winston 1952).
Brown, J.A.C. Techniques of persuasion: From propaganda to brain-washing (New York: Penguin 1963).
Chen, T.E.H. Thought reform of the Chinese intellectuals (New York: Oxford University Press for Hong Kong University Press 1960).
Cialdini, R. B. Influence: How and why people agree to things (New York: Morrow 1984).
Enroth, R. Churches that abuse (Grand Rapids, MI: Zondervan 1992).
Frank, J. Persuasion and healing (New York: Schocken Books 1974).
Group for the Advancement of Psychiatry. Factors used to increase the susceptibility of individuals to forceful indoctrination: Observations and experiment (Washington, DC: American Psychiatric Press 1956).
Group for the Advancement of Psychiatry. Methods of forceful indoctrination: Observations and interviews (Washington, DC: American Psychiatric Press 1957).
Group for the Advancement of Psychiatry. Leaders and followers: A psychiatric perspective on religious cults (Washington, DC: American Psychiatric Press 1992).
Hunter, E. Brainwashing in Red China: The calculated destruction of men’s minds (New York: Vanguard 1953).
Langone, M. (Ed.). Recovery from cults: Help for victims of psychological and spiritual abuse (New York: Norton 1993).
Lifton, R. J. Thought reform and the psychology of totalism (New York: Norton 1961).
Lifton, R. J. The future of immortality and other essays for a nuclear age (New York: Basic Books 1987).
Milgram, S. Obedience to authority: An experimental view (New York: Harper & Row 1974).
Mindszenty, J. Memoirs (New York: Macmillan 1974).
Mitchell, D., Mitchell, C., & Ofshe, R. The light on Synanon (New York: Seaview Books 1980).
Rogge, O. Why men confess (New York: Thomas Nelson 1959).
Schein, E., Schneier, I., & Barker, C. Coercive persuasion: A sociopsy-chological analysis of the “brainwashing” of American civilian prisoners by the Chinese communists (New York: Norton 1961).
Singer, M., with Lalich J. Cults in our midst: The hidden menace in our everyday lives (San Francisco: Jossey-Bass 1995)
Zimbardo, P. G., Ebbesen, E.B., & Maslach, C. Influencing attitudes and changing behavior: An introduction to method theory, and applications of social control and personal power (Reading, MA: Addison-Wesley 1977).
Chapters in Texts
Ofshe, R. “Coercive persuasion and attitude change,” in E.F. Borgatta & M.L. Borgatta (Eds.), Encyclopedia of sociology (New York: Macmillan 1992).
Singer, M. “Group psychodynamics,” in Merck Manual of Diagnosis and Treatment, 15th ed., Psychiatry Section ( Rahway, NJ: Merck, Sharp and Dohme 1986).
Singer, M., & Addis, M. “Cults, coercion, and contumely,” in A. Kales, C.M. Pierce, & M. Greenblatt (Eds.), The mosaic of contemporary psychiatry in perspective (New York: Springer-Verlag 1992).
West, L.J., & Singer, M.T. “Cults, quacks and nonprofessional psychotherapies,” in H.I. Kaplan, A.M. Freedman, & B.J. Sadock (Eds.), Comprehensive textbook of psychiatry, III (Baltimore: Williams & Wilkens 1980).
American Law Institute. Restatement (Second) of Torts.
Bardin, D. “Psychological Coercion and Human Rights” (pamphlet) (Washington, DC: AFF and CAN 1994).
Colloquy between Mr. Saxton and Mr. Porter during House of Representatives consideration of the 1995 Labor, HHS and Education Appropriations Bill. 141 Congressional Record, “Daily Edition,” August 2, 1995, p. H8248. (The House of Representatives passed the bill on August 3, 1995).
Joint Statement of AFF President Rosedale and CAN President Rehling at Oversight Hearings on Federal Law Enforcement Actions Related to the Branch Davidian Compound in Waco, Texas, July 19, 1995, before Subcommittee on Crime of the Committee on the Judiciary and Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee on Government Reform & Oversight, U. S. House of Representatives.
New organizations operating under the protection afforded to religious bodies: Resolution of the European Parliament. Reprinted 2(2) Cultic Studies Journal 275B277 (1985).
Sects or new religious movements: A pastoral challenge. Vatican Report on Cults, reprinted 3(1) Cultic Studies Journal 93B116 (1986).
State of Israel report of the interministerial committee set up to examine cults (Anew groups”) in Israel. Reprinted 6(1) Cultic Studies Journal 32B68 (1989).
The Council of Europe’s report on sects and new religious movements. Reprinted 9(1) Cultic Studies Journal 89B119 (1992).
Expert Testimony: Daubert and the Changing Standards
for Admission of Psychiatric, Psychological, and Other Evidence
A key element in many fraud and undue influence cases involving cults is evidence of the mental relationship between the parties. To the degree that the individuals charged can be shown to have mentally controlled or manipulated the alleged injured party, the greater the likelihood that the plaintiff’s suit will succeed. Issues which evaluate why a person acted are difficult, if not impossible, to answer in some instances. In addition to available extrinsic evidence, psychiatric or psychological testimony from experts on the mental state of the individuals involved can be helpful in these cases, if not essential.
In Molko v. Holy Spirit Assn., 762 P.2d 46 (Cal. 1988), discussed earlier, the admissibility of testimony from a psychologist and a psychiatrist, both experts on cult use of persuasive coercion, was a central factor in the case. The trial court and the court of appeals ruled inadmissible testimony from the experts that the Unification Church used sophisticated indoctrination techniques which rendered the two ex-member plaintiffs incapable of exercising their own judgments and unable to respond upon learning of the deceptive recruitment practices. The state supreme court reversed, allowing the testimony. In doing so, the court reviewed conflicting authorities on the topic of brainwashing. While not resolving the controversies surrounding the issue, it [the court] concluded that the existence of conflicting opinions by experts on the existence and effects of brainwashing raises a factual issue. The testimony would be allowed for consideration.
In Kropinski v. World Plan Executive Council, 853 F.2d 948 (D.D.C. 1988), the trial court allowed expert testimony that transcendental meditation was a “thought reform” system which changed the plaintiff practitioner’s perspective or “world view” even without physical threats or coercion. The defense challenged the admission as irrelevant, inflammatory, and scientifically unsupported. The defense relied on the Frye rule, which held that scientific evidence can be offered only upon a showing that the type of evidence is generally accepted in the field. See, Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923). The appellate court noted that Frye had only been applied in the jurisdiction in criminal cases, and that civil cases require a less stringent standard, indicating that a scientific theory with a “significant following” in the field would probably qualify. The court, however, rejected the expert testimony finding that even this lesser standard had not been proven and ordered that the admissibility issue would be reconsidered at trial.
In 1990, a federal district court reviewed the Frye standard in light of expert testimony on coercive persuasion and cults. In United States v. Fishman, 743 F. Supp. 713 (N.D. Cal. 1990), a criminal case, the defendant intended to plead insanity as a defense to mail fraud on the basis that he was brainwashed by the Church of Scientology, allegedly behind the fraud scheme. A forensic scientist was allowed to testify as to the defendant’s state of mind at the time of the charged offenses. The court rejected, however, testimony on coercive persuasion in religious cults as a thought reform theory not generally accepted within the scientific community. In addition, the court also rejected testimony proffered from a sociology professor who taught graduate courses on thought reform. The court found the sociologist lacked expertise to address the defendant’s state of mind or the church members’ as a group.
Whether, how, and to what degree expert testimony on the mental state of individuals in cult cases was permitted have unclear guidelines. These standards have recently once again been reopened for interpretation as a result of a general review of the federal rules governing admissibility of expert scientific testimony.
The United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) governs all expert testimony in federal court, rejecting the Frye rule in favor of a more complex formulation. Although not directly binding on state courts, the Supreme Court’s reasoning is likely to make matters related to psychiatric and psychological evidence in many jurisdictions more complicated than they once were.
Daubert overturned the seventy-year-old threshold federal standard for admitting scientific evidence which was established in Frye. At the same time, the state court standard was left in limbo as many state courts reexamine their rules in light of Daubert.
As Justice Blackmun’s opinion in Daubert explains, until 1993 most courts, federal and state, followed the Frye rule that psychiatric, psychological, or other scientific evidence could be offered in the courtroom only upon the showing that the type of evidence was generally accepted in the field. That general principle has been called into question with the determination that, at least in the federal courts, Federal Rule 702 supersedes Frye and does away with the “general acceptance” prerequisite. Instead, the new standard for federal courts is whether “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence to determine a fact in issue.”
What Daubert means for state courts is not yet entirely clear. A number of jurisdictions already were using less rigorous admissibility standards than Frye for scientific and technical evidence even before Daubert. Some jurisdictions are presently in the process of reviewing admissibility standards to determine whether they should be made more inclusive. And a number of states are opting to retain Frye or a close variation. See Note: “Daubert v. Merrell Dow Pharmaceutical, Inc.: Sounding the Death Knell for Frye v. United States in the Commonwealth,” 21 N. Kentucky L. Rev. 475, 491B92 (1994).
As a result, many state court litigators and courts must deal with all the traditional problems inherent with psychiatric and psychological evidence along with the uncertainties spawned by the Daubert decision, including which admissibility standard governs and how the standard should be applied to different types of psychiatric or psychological evidence. Post-Daubert judges have an enlarged gatekeeper’s function, with increased latitude to admit or exclude evidence. The door is open. The degree to which individual judges will screen expert testimony offered by psychologists, psychiatrists, and other professionals in cases involving undue influence or fraud and issues of the mental state and activities of the participants remains to be determined in many jurisdictions.
Significant Decisions by Jurisdiction on Expert Testimony Standards
(All citations are to state supreme court cases unless otherwise noted.)
Jones v. Arkansas, 862 S.W.2d 242, 245 (1993). Arkansas rejected the Frye standard before Daubert. See Prater v. Arkansas, 820 S.W.2d 429 (1991).
Nelson v. Delaware, 628 A.2d 69, 73 (1993).
Harrison v. Indiana, 644 N.E.2d 1243, 1252 (1995).
Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 885, 886 (1994).
Louisiana v. Foret, 628 So. 2d 1116, 1122, 1123 (1993).
Massachusetts v. Lanigan, 641 N.E.2d 1342, 1349 (1994). Accepts Daubert’s reasoning but suspects general acceptance will continue to be the significant, and often the only, issue.
Montana v. Moore, 885 P.2d 457, 471 (1994).
New Mexico v. Alberico, 861 P.2d 192, 203 (1993).
North Carolina v. Goode, 461 S.E.2d 631, 639 (1995).
Oregon v. O’Key, 899 P.2d 663, 680 (1995).
South Carolina v. Dinkins, 462 S.E.2d 59, 60 (1995).
South Dakota v. Hofer, 512 N.W.2d 482, 484 (1994).
Robinson v. E.I. DuPont de Nemours & Co., No. 94-0843 (6/15/1995).
Vermont v. Brooks, 643 A.2d 226, 229 (1993).
Cotton v. Virginia, 451 S.E.2d 673, 675 (Va. Ct. App. 1994). The Virginia Supreme Court rejected Frye in Spencer v. Virginia, 393 S.E.2d 609 (1990), cert. denied, 498 U.S. 908 (1990). Spencer test emphasizes reliability.
Wilt v. Buracker, 443 S.E.2d 196, 203 (1993).
Wisconsin v. Peters, 534 N.W.2d 867, 872 (Wis. App. 1995). Wisconsin rejected the Frye standard before Daubert. See Watson v. Wisconsin 219 N.W.2d 398, 403 (1974).
Springfield v. Wyoming, 860 P.2d 435, 442, 443 (1993).
Mattox v. Alaska Revenue Dept, 875 P.2d 763, 764 (1994). General scientific acceptance is a statutory requirement for admissibility of technical tests in paternity cases. The court uses Alaska Statute and a common law requirement for scientific evidence where no statute governs. Cited Pulakios v. Alaska 476 P.2d 474 (1970) (adopting Frye).
California v. Leahy, 882 P.2d 321, 331 (1994). The Kelly/Frye standard survives Daubert.
District of Columbia
Taylor v. United States, 661 A.2d 636, 651, 652 (1995).
Flanagan v. Florida, 625 So. 2d 827, 829 (1993).
Kansas v. Warden, 891 P.2d 1074, 1085 (1995). AThis court has adopted the Frye test concerning the admissibility of scientific evidence.” See Kansas v. Witte, 836 P.2d 1110 (1992).
Hutton v. Maryland, 663 A.2d 1289, 1296 (1995). Uses Frye/Reed standard. See Reed v. Maryland, 391 A.2d 364 (1978).
Nebraska v. Dean, 523 N.W.2d 681, 692 (1994).
New York v. Wesley, 633 N.E.2d 451 (1994). Concurring opinion states that all judges agreed to follow Frye.
Washington v. Gentry, 888 P.2d 1105, 1117 (1995).
No Decision by a State Supreme Court
Arizona v. Bible, 858 P.2d 1152, 1183 (1993). We leave Daubert for another day and apply Frye.
Lindsey v. Colorado, 892 P.2d 281, 288 (1995). Uses Frye standard. The court did not consider Daubert because the issue was not raised.
Connecticut v. Sivri, 646 A.2d 169, 189 (1994). Uses Frye because neither party asked the court to change.
Orkin Exterminating Co. v. McIntosh, 452 S.E.2d 159, 165 (Ga. App. 1994). “Daubert involves the application of FRE 702, which has not been adopted in Georgia. The applicable law in Georgia is OCGA ’24-9-67, which provides: ‘[t]he opinions of experts on any question of science, skill, trade or like questions shall always be admissible.’”
Dotto v. Okan, 646 N.E.2d 1277, 1279 (Ill. App. Ct. 1995). Adopts Daubert; general acceptance test is no longer proper.
Tungate v. Kentucky, 901 S.W.2d 41, 43 (1995). Uses Frye.
Michigan v. Lee, 537 N.W.2d 233, 248, 249 (Mich. App. 1995). Follows Davis/Frye standard. See Michigan v. Davis, 72 N.W.2d 269 (1955).
Minnesota v. Klawitter, 518 N.W.2d 577, 578 (1994). “We express no opinion on the continued validity of the Frye rule in Mn.”
Missouri v. Hill, 865 S.W.2d 702, 703 (Mo. App. 1993). Follows Frye.
New Hampshire v. Cavaliere, 663 A.2d 96, 97 (1995). Court used Daubert standard, but did not decide whether Frye is still valid.
Bahrle v. Exxon Corp., 652 A.2d 178, 192 (Super. Ct. App. Div. 1995). Follows Daubert.
Ohio v. Martens, 629 N.E.2d 462, 466 (Ohio App. 1993). Follows own test: Ohio v. Thomas, 423 N.E.2d 137 (1981). The test asks whether the expert’s theory is commonly accepted in the scientific community.
Taylor v. Oklahoma, 889 P.2d 319, 328 (Ok. Crim. App. 1995). Abandons Frye and adopts Daubert.
Pennsylvania v. Crews, 640 A.2d 395, 400 (1994). Whether Daubert will supersede Frye in Pa. is left to another day.
Dikeou v. Osborn, 881 P.2d 943, 946 (Utah App. 1994).
This research project was prepared by the American Bar Association’s Commission on Mental and Physical Disability Law (CMPDL) for the American Family Foundation (AFF) and the Cult Aware-ness Network (CAN). The primary author was David Hominik, CMPDL director. John Parry provided editorial assistance; Laurie Lewis assisted in research. David J. Bardin of Arent Fox Kintner Plotkin & Kahn, Washington, D.C., guided the project’s focus and provided significant editorial comments. Herbert L. Rosedale of Parker Chapin Flattau & Klimpl, New York City, and William Rehling of Chicago also provided constructive suggestions during the course of the project. Funding was provided by AFF, CAN, and the Cult Hot Line and Clinic of the Jewish Board of Family & Children’s Services (NYC).
The contents of this document are not to be construed as the official policy of the American Bar Association, the Association’s Commission on Mental and Physical Disability Law, the American Family Foundation, or the Cult Awareness Network.
Reproduction of this document in whole or in part may be made without permission provided no fees or handling costs of any kind are charged. Copies can be obtained by contacting CMPDL at (202) 662-1575; or at 740 15th Street, N.W., Washington, D.C. 20005-1009 ($10.00 plus postage per individual copy with discounts for multiple copies available). Copies can also be obtained at the same rate by writing: AFF, P.O. Box 2265, Bonita Springs, FL 33959-2265; or CAN, 2421 West Pratt Boulevard, Suite 1173, Chicago, IL 60645.