NCJ Number
56342
Journal
Minnesota Law Review Volume: 63 Issue: 2 Dated: (JANUARY 1979) Pages: 335-360
Date Published
1979
Length
26 pages
Annotation
COUNTERING THE PROPOSED MENS REA DEFENSE THEORY OF PROFESSOR DELGADO, THIS ARTICLE CONCLUDES THAT COERCIVELY PERSUADED DEFENDANTS ARE BLAMEWORTHY UNDER CURRENT SOCIETAL STANDARDS AND DESERVE PUNISHMENT.
Abstract
THE TRIAL OF PATRICIA HEARST AND THE MASS-SUICIDE IN GUYANA HAVE REVIVED THE LEGAL ISSUE OF COERCIVE PERSUASION AS A DEFENSE TO CRIME. THIS DEFENSE CAN BE UTILIZED IN POLITICAL SITUATIONS OF TERRORIST KIDNAPINGS AND CULT INDOCTRINATION. PROFESSOR DELGADO OF THE UNIVERSITY OF WASHINGTON SCHOOL OF LAW ADVOCATES THE EXCULPATION OF CRIMINAL DEFENDANTS WHO HAVE BEEN 'BRAINWASHED,' AND THE PROSECUTION OF PERSONS WHO PERPETRATED THE COERCION. DELGADO ADOPTS THE MORAL PREMISE THAT PERSONS WHO HAVE, WITHOUT FAULT UNDERGONE BRUTALIZING EXPERIENCES, SHOULD NOT BE HELD ACCOUNTABLE FOR ACTIONS STEMMING FROM THOSE EXPERIENCES. DELGADO'S CONCEPT, HOWEVER, FAILS TO DIFFERENTIATE BETWEEN THOSE PEOPLE THAT SOCIETY DEEMS BLAMEWORTHY, AND THOSE WHO ARE NOT. THE DELGADO THESIS WHICH WOULD ALLOW THE RELEASE OF HARMFUL PERSONS BY PERMITTING EVERY CRIMINAL DEFENDANT TO PRESENT HIS OR HER LIFE HISTORY AS EVIDENCE OF 'MORAL BLAMELESSNESS,' APPEARS TOO AMORPHOUS TO BE EFFECTIVELY ADMINISTRATED. RATHER THAN BEING ALLOWED THE SAME DEFENSE AS THE INSANE DEFENDANT, THE COERCED PERSON SHOULD BE RECOGNIZED AS ONE WHO STILL POSSESSED SUFFICIENT FACULTIES TO MAKE INDEPENDENT CHOICES, AND WHO HAD THE NECESSARY CRIMINAL INTENT FOR HIS ACTIONS. THE LITERATURE CONCERNING THE PSYCHOLOGICAL AND LEGAL ASPECTS OF COERCION IS REVIEWED IN FOOTNOTES. FOR THE ORIGINAL ARTICLE SEE NCJ 53192. FOR RESPONSE TO THIS CRITIQUE SEE NCJ 56343. (TWK).