National Board for Certified
By Robert N. Levin, Esq.
In earlier columns in these pages I have suggested that mental health practitioners may not fully appreciate how little some judges and lawyers understand about hypnosis and why that might be troubling. Some examples or legal thought in this field may help make the point.
In Walker v. U.S., 617 A 2d 525, (D.C.App 1992), the Court discussed an analysis put forward by the United States Department of Justice on the constituent elements of the crime of kidnapping. As stated by the Court:
The proscribed seizure and detention may be accomplished through enticing, inveigling, or decoying another . . . If, for example, a defendant were to lure the victim through a ruse and prevent her escape through hypnosis, there would arguably be a kidnapping but no assault. Accordingly, the government's argument goes, the elements of assault with intent to kidnap are not "included in" the elements of kidnapping. (emphasis added)
That analysis, well steeped in Dracula movies as it may be, does not seem to represent a very realistic view of hypnosis.
In another case that has that wonderful Victorian era gone wrong feeling found in Bram Stoker's Dracula, the issues were very strange indeed. In re Stuart, 72 App.D.C. 389, 114 F 2d 825 (D.C. 1940), was a custody case in which the following claims were made by the mother about the actions of the father (Id.828-829):
Mrs. Stuart stated that she had struggled to protect the child from the father during the child's entire lifetime and that, as much as she loved the child, she would rather see her dead than in contact with her father. The reasons which the mother gave as the basis for her feeling that contact with the father is inimical to the child's welfare were that the father had frightened the child into hysterics on certain occasions when she was an infant because of manifestations of interest of a sexual nature. The purported actions on the father's part occurred when the child was less than a year old. The mother, according to her statement, was not actually present, but said she knew from the child's screams what had happened and that the child corroborated this some months later when she learned to talk. The mother also stated that the father had attempted to perform certain experiments of a hypnotic influence over the child by the means of thought transference, and that, if he and the child were brought into close physical proximity, this hypnotic influence which he exercises would become more potent and endanger the child.
The child, then 15 years old, also testified. As stated by the Court (Id):
The child further stated that her father had power to influence and to hypnotize people and that he had used this influence on her as she was growing up; that she knew these things were true, but that she could not explain how she knew.
The child also testified that despite the foregoing, if her father gave her and her mother enough money she would be willing to spend time with him. The mother won. That hypnosis by mental transference is great stuff.
United States v. Phillips, 515 F.Sup. 758, 760(E.D.Ky. 1981), represents an even more dramatic story than the child who was hypnotized before she had learned to speak but was able to explain it to her mother later. In Phillips, the defendant (Melissa) was charged with shooting two United States Marshals during an attempt to help her husband (Buster) escape from Federal custody as he was being brought by the Marshals to court. It would be hard to improve on the Court's statement of what occurred at trial (Id. 760):
Melissa's defense was to cast Buster as the villain of the piece, a role which he voluntarily and enthusiastically assumed. Buster portrayed himself as a Svengali of sorts or had induced Melissa to commit the offenses under hypnosis. Further, the defense contended, the systematic hypnotic program to which Buster had subjected Melissa over a period of several years had unhinged her mind to the point where she was legally insane at the time of the shooting.
[Buster] vividly described for the court and the jury how, over a period of years beginning long before these events occurred, he had been hypnotizing her since she was 15 years old, he said, sometime 10 or 15 times a day. He had made her believe that he was her mother and father, and her Lord and God . . . Under his hypnotic influence, he said, she had actually seen him be crucified, die and rise again . . . Therefore, his testimony was, since Melissa believed he was God, she was unable to distinguish right from wrong, since "if God tells you to do something, you think it's right."
Unfortunately for Buster and Melissa , the Government was permitted to prove that several weeks before the shooting at the courthouse, Melissa had used the same pistol to take a shot at a neighbor over an issue not related to Mr. Svengali. She was convicted and sentenced to 30 years in the pokey. Frankly, had I been the judge, I might have been more lenient out of gratitude for a great story and a few good laughs.
Before you laugh, Buster and Melissa and the kidnapping by hypnosis and the infant who explained having been hypnotized after she learned to speak appear in the official reports of the Federal courts. Somebody spent a lot of time and a lot of money in each of those cases and some people's lives were adversely impacted. The lesson is that in your work, keeping good records and giving careful explanations to the people to whom you provide services of what those services are and what they are not are very good ideas.
Robert Levin often writes for Interlink on thought-provoking issues in the legal world concerning hypnosis. Look for more stimulating analyses in future issues of the Interlink.
Robert N. Levin, Esq., is a partner in the law firm, Levin & Tepper, located in Bethesda, Maryland. He may be reached by calling: (301) 517-8287.
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