Intangible Captivity: The Potential for a New Canadian Criminal Defense of Brainwashing and Its Implications for the Battered Woman

Abstract

This Paper explores the potential for a Canadian defense of brainwashing in the context of battered spouses who commit crimes against third parties. Part I briefly discusses a working definition of “brainwashing” and the historical basis for this potential defense. Part II discusses the juridical basis for a new defense of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defenses of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defense of brainwashing through the concept of superimposed intent. Part III will explore the evolution of Battered Woman Syndrome (BWS) as a model for a new defense and will examine brainwashing and the battered spouse. The paper is limited to a subset of abused women termed victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense. INTRODUCTION 31 PART I: SETTING THE FOUNDATION 34 A. Definition of the Term Brainwashing 34 PART II: THE JURIDICAL BASIS FOR A NEW DEFENSE OF BRAINWASHING 35 A. Free Will and Choice Theory 36 B. The Established Defenses 39 C. Superimposed Intent 43 PART III: BRAINWASHING AND THE BATTERED SPOUSE 46 A. Battered Woman Syndrome (BWS) 46 B. The Battered Spouse and Prisoners of War 50 C. Sexual Sadism 54 † Frances E. Chapman, Assistant Professor of Legal Studies, St. Jerome’s University, University of Waterloo, Waterloo Ontario Canada. I thank St. Jerome’s University for its generous research support. MAIN CHAPMAN (DO NOT DELETE) 1/30/2013 5:07 PM INTANGIBLE CAPTIVITY 31 D. The Sexually Sadistic Criminal 56 E. Compliant Victims of the Sexual Sadist 58 PART IV: THE USE OF THE BRAINWASHING DEFENSE IN INTERPERSONAL RELATIONSHIPS—CASE STUDY 62 A. Homolka and Brainwashing 68 CONCLUSION 73