Undue Influence: Definitions and Applications - California Courts ...

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vulnerability of youths and whether there was legal justification for parents’ kidnappings and deprogramming of their children (Donohue, 1985). The ACLU concluded that for those who had reached the age of majority, there was no justification for mental incompetence proceedings, conservatorships, or temporary guardianships unless physical coercion or its threat had been used. In the absence of these factors, the ACLU concluded, adult inductees had the right to exercise their prerogative, and it was essentially criminal for “deprogammers” to kidnap cult members and “unbrainwash” them. Stockholm Syndrome or Traumatic Bonding The term Stockholm syndrome was coined by criminologist and psychiatrist Nils Bejerot, who assisted police during a 1973 robbery of a bank, the Kreditbanken, in Stockholm, Sweden (Bejerot, 1974). During the event, the robbers took four bank employees hostage and held them for six days. After their release, the hostages refused to cooperate with law enforcement or to testify against their captors. They saw law enforcement as the villains, and one hostage later married one of the captors. Although there is little published academic research on the Stockholm syndrome and the diagnosis is not described in any international classification systems (Namnyak et al., 2007), the syndrome is acknowledged by prominent law enforcement organizations, including the FBI, which defines it as a psychological response in which positive bonds develop between hostages and captors. According to the FBI's Hostage Barricade Database System, which contains data on over 4,700 reported federal, state, and local hostage/barricade incidents, 27% of captives show some evidence of Stockholm syndrome (deFabrique, N.; Romano, S.J.; Vecchi, G.M.; & Van Hasselt, V.B., 1999). An FBI directive states that the following conditions are generally believed to be necessary for the syndrome to occur (deFabrique et al, 1999): • A person held in captivity cannot escape and depends on the hostage taker for life. • Captors control their captives’ basic needs and their lives. • The hostages are isolated from others and have only their captors’ perspectives available. The captors keep information about the outside world’s response to their actions from captives. 77
• Hostage takers threaten to kill victims and give the impression they will do so. The captives judge it safer to align with the perpetrators, endure the hardships of captivity, and comply with their captors than to resist and face murder. • Captives see the perpetrators as showing some degree of kindness. Although kindness is viewed as the cornerstone of the syndrome, some have noted that captives often misinterpret a lack of abuse as kindness or benevolence. The Stockholm syndrome was originally seen as a barrier to the negotiation process. More recently, however, hostage negotiators and FBI officials have concluded that encouraging the process may in fact reduce victims’ risk. This conclusion is based on the assumption that if victims develop a bond with their captors, it may result in the hostage takers feeling compassion toward their victims (deFabrique et al, 1999). The Patty Hearst Case The 1974 kidnapping of 19-year-old publishing heiress Patty Hearst by members of the Symbionese Liberation Army (SLO) became a landmark in the debate about mind control. The SLO, a leftist terrorist organization, kidnapped Hearst and held her in captivity for almost two months, during which she appeared to align herself with her captors and join their ranks. Hearst participated in a San Francisco bank robbery with her abductors, for which she was arrested. Her defense attorney, F. Lee Bailey, was the first to introduce psychiatric testimony in an American courtroom that a defendant had been influenced by pressures that some people considered "brainwashing." Margaret Singer was among those who served as expert witnesses. According to the defense, Hearst was: • Isolated and made to feel that no one was going to rescue her; • Physically and sexually abused by members of the group; • Told that she might die; • Told how the establishment was oppressing her captors; and • Forced to record messages that disparaged those she loved. 78
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UNDUE INFLUENCE: DEFINITIONS AND AP
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Claims of undue influence can be di
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probate courts. They encounter it a
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4. Focus groups with San Francisco
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More recent law is contained in Cal
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searching bibliographic databases a
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submissiveness to point that victim
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Elements of Undue Influence Describ
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Category I Category II Category III
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Category I Category II Category III
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Focus Groups To gain greater insigh
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for love, emotional attachment, or
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who would deliver the money.’’
Page 27 and 28: esidence (as opposed to, for exampl
Page 29 and 30: percent), followed by a change in a
Page 31 and 32: escinding the sale of the house. Ri
Page 33 and 34: Capacity Declaration Form The menta
Page 35 and 36: Case Examples Case Five A 75-year-o
Page 37 and 38: to undue influence and to more reli
Page 39 and 40: Project staff have been invited to
Page 41 and 42: APPENDIX A REPORTS OF CASES DECIDED
Page 43 and 44: The facts upon which the allegation
Page 45 and 46: APPENDIX B A STATUTORY DEFINITION O
Page 47 and 48: whether undue influence has taken p
Page 49 and 50: etween the testator and the influen
Page 51 and 52: guardian/ward, physician or nurse/p
Page 53 and 54: undue influence reduced from the ca
Page 55 and 56: said at times that she was afraid o
Page 57 and 58: According to Dr. Spar, the common r
Page 59 and 60: disposition to exert undue influenc
Page 61 and 62: her overall mental and physical wea
Page 63 and 64: Familial relationships are frequent
Page 65 and 66: This presumption of undue influence
Page 67 and 68: element (4) requires a disposition
Page 69 and 70: intentions of testator). However, w
Page 71 and 72: APPENDIX C Literature Review on Und
Page 73 and 74: 7. How professionals exploit relati
Page 75 and 76: that can be brought to bear in doin
Page 77: professionals who became controvers
Page 81 and 82: Walker identified four general char
Page 83 and 84: of anxiety, avoidance behavior and
Page 85 and 86: and Vicary later retracted some of
Page 87 and 88: protecting themselves against manip
Page 89 and 90: not exhibit Stockholm syndrome, law
Page 91 and 92: financial gain. Others have focused
Page 93 and 94: esult or outcome of the undue influ
Page 95 and 96: Association, 2008). Naimark (2001)
Page 97 and 98: 2. Power Differentials Undue influe
Page 99 and 100: goes back even further. Abraham Nie
Page 101 and 102: the signing of contracts, the contr
Page 103 and 104: to the accused to show that there w
Page 105 and 106: The authors note that courts tend t
Page 107 and 108: ing a claim that the church had use
Page 109 and 110: 8. An elder’s will, living will,
Page 111 and 112: covered under the prohibited transf
Page 113 and 114: ecovery of damages, attorneys’ fe
Page 115 and 116: As noted earlier in this literature
Page 117 and 118: witnesses with respect to the impor
Page 119 and 120: Donohue, W. A. (1985). The politics
Page 121 and 122: Naimark, D. (2001). Financial explo
Page 123 and 124: Rusch, J. J. (1999). The social eng
Page 125 and 126: APPENDIX D Capacity Declaration For
Page 127 and 128: CONSERVATORSHIP OF THE PERSON ESTAT
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APPENDIX E Court File Review - Deta
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Table 8. Age of proposed conservate
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Table 12. Proposed conservatee’s
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Table 16. Other traits of alleged a
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Table 21. How long has the alleged
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Table 24. Other elements/characteri
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Borchard grant file review 1. Case
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Borchard grant file review 12. Tact
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Borchard grant file review 20. Does
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