University of Waterloo, St. Jerome's University

Assistant Professor

Frances worked at University of Waterloo, St. Jerome's University as a Assistant Professor

Cohen Highley LLP

Articling student/Associate lawyer

Frances worked at Cohen Highley LLP as a Articling student/Associate lawyer

Lakehead University

Associate Professor

Assistant Professor teaching first year foundations, torts, criminal and professional responsibility.

Lakehead University

Assistant Professor

Frances worked at Lakehead University as a Assistant Professor

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

Canadian Contractual Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?

Global Studies Law Review

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

Canadian Contractual Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?

Global Studies Law Review

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.

Introduction to Legal Studies

Nelson Education

Introduction to Legal Studies, First Edition presents students with information surrounding the interpretation of laws, societal factors that are taken into account when creating laws, and the effects that those laws have on society, using the case law-based method employed at Canadian law schools. In this text, students will also be exposed to the fundamentals of the Canadian legal system in several areas of the law, including ethics and professional responsibility, civil litigation, tort law, contract law, administrative law, family law, constitutional law, criminal law, criminal procedure, evidence, the Charter of Rights and Freedoms, criminal defences, criminal sentencing, and alternative dispute resolution.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

Canadian Contractual Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?

Global Studies Law Review

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.

Introduction to Legal Studies

Nelson Education

Introduction to Legal Studies, First Edition presents students with information surrounding the interpretation of laws, societal factors that are taken into account when creating laws, and the effects that those laws have on society, using the case law-based method employed at Canadian law schools. In this text, students will also be exposed to the fundamentals of the Canadian legal system in several areas of the law, including ethics and professional responsibility, civil litigation, tort law, contract law, administrative law, family law, constitutional law, criminal law, criminal procedure, evidence, the Charter of Rights and Freedoms, criminal defences, criminal sentencing, and alternative dispute resolution.

Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion

The University of Alabama School of Law

False confessions are the subject of much research; however, what has been termed the “coerced-internalized” subset has received little attention. These admissions involve an individual who falsely confesses but believes in their guilt despite objective evidence to the contrary. In R. v. Oickle, the Supreme Court of Canada recognized the long history of false confessions in Canada and examined the importance of understanding why these confessions occur. This paper will examine the role of one of the most unique and misunderstood forms of false confessions in the context of police interrogations and an analysis of the Billy Wayne Cope case. Key words: coerced, internalized, false, confessions, interrogations, police.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

Canadian Contractual Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?

Global Studies Law Review

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.

Introduction to Legal Studies

Nelson Education

Introduction to Legal Studies, First Edition presents students with information surrounding the interpretation of laws, societal factors that are taken into account when creating laws, and the effects that those laws have on society, using the case law-based method employed at Canadian law schools. In this text, students will also be exposed to the fundamentals of the Canadian legal system in several areas of the law, including ethics and professional responsibility, civil litigation, tort law, contract law, administrative law, family law, constitutional law, criminal law, criminal procedure, evidence, the Charter of Rights and Freedoms, criminal defences, criminal sentencing, and alternative dispute resolution.

Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion

The University of Alabama School of Law

False confessions are the subject of much research; however, what has been termed the “coerced-internalized” subset has received little attention. These admissions involve an individual who falsely confesses but believes in their guilt despite objective evidence to the contrary. In R. v. Oickle, the Supreme Court of Canada recognized the long history of false confessions in Canada and examined the importance of understanding why these confessions occur. This paper will examine the role of one of the most unique and misunderstood forms of false confessions in the context of police interrogations and an analysis of the Billy Wayne Cope case. Key words: coerced, internalized, false, confessions, interrogations, police.

Implanted Choice: From Prisoners of War to Patty Hearst to Lee Boyd Malvo, Examining the Past to Determine if there is Room for a Modern Criminal Defence of Brainwashing

Criminal Law Bulletin

It is difficult for some to conceptualize, but mind control has been accepted by a wide range of professions even though the term reminds many of a U.S. Central Intelligence Agency (CIA) conspiracy or the Manchurian Candidate. What remains is a “fractured” approach by scientists to “brainwashing.” The complexity of studying this phenomenon is great because it concerns intangible and immeasurable concepts like free will. Data cannot be easily collected and dissected; the only basis is the overwhelming evidence of prisoners of war (POW) who experienced a similar set of occurrences. Even with this evidence there is struggle to define and study the free-will involved in brainwashing. This paper explores the potential for a defence of “brainwashing” by examining the historical and juridical basis. Part I of the article will focus on a brief history of “brainwashing” and the historical basis of this potential defense in North America with focus on POWs. Part II of the Article will examine the social and scientific basis of the defense as argued by experts in physiology, psychology and social science and the scientific models which have developed in this area. Part III explores whether we are all subject to brainwashing by questioning our ability to make "determined" choices. Part IV explores the current interface between criminal law and brainwashing, which includes a discussion of hypnosis and the Stockholm Syndrome. Part V speaks to several "test cases” such as the trial of Patty Hearst to gauge the extent to which brainwashing finds recognition in the criminal law. Drawing upon the foregoing discussion, Part VI proposes legislation establishing the parameters of the defense of brainwashing.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

Canadian Contractual Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?

Global Studies Law Review

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.

Introduction to Legal Studies

Nelson Education

Introduction to Legal Studies, First Edition presents students with information surrounding the interpretation of laws, societal factors that are taken into account when creating laws, and the effects that those laws have on society, using the case law-based method employed at Canadian law schools. In this text, students will also be exposed to the fundamentals of the Canadian legal system in several areas of the law, including ethics and professional responsibility, civil litigation, tort law, contract law, administrative law, family law, constitutional law, criminal law, criminal procedure, evidence, the Charter of Rights and Freedoms, criminal defences, criminal sentencing, and alternative dispute resolution.

Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion

The University of Alabama School of Law

False confessions are the subject of much research; however, what has been termed the “coerced-internalized” subset has received little attention. These admissions involve an individual who falsely confesses but believes in their guilt despite objective evidence to the contrary. In R. v. Oickle, the Supreme Court of Canada recognized the long history of false confessions in Canada and examined the importance of understanding why these confessions occur. This paper will examine the role of one of the most unique and misunderstood forms of false confessions in the context of police interrogations and an analysis of the Billy Wayne Cope case. Key words: coerced, internalized, false, confessions, interrogations, police.

Implanted Choice: From Prisoners of War to Patty Hearst to Lee Boyd Malvo, Examining the Past to Determine if there is Room for a Modern Criminal Defence of Brainwashing

Criminal Law Bulletin

It is difficult for some to conceptualize, but mind control has been accepted by a wide range of professions even though the term reminds many of a U.S. Central Intelligence Agency (CIA) conspiracy or the Manchurian Candidate. What remains is a “fractured” approach by scientists to “brainwashing.” The complexity of studying this phenomenon is great because it concerns intangible and immeasurable concepts like free will. Data cannot be easily collected and dissected; the only basis is the overwhelming evidence of prisoners of war (POW) who experienced a similar set of occurrences. Even with this evidence there is struggle to define and study the free-will involved in brainwashing. This paper explores the potential for a defence of “brainwashing” by examining the historical and juridical basis. Part I of the article will focus on a brief history of “brainwashing” and the historical basis of this potential defense in North America with focus on POWs. Part II of the Article will examine the social and scientific basis of the defense as argued by experts in physiology, psychology and social science and the scientific models which have developed in this area. Part III explores whether we are all subject to brainwashing by questioning our ability to make "determined" choices. Part IV explores the current interface between criminal law and brainwashing, which includes a discussion of hypnosis and the Stockholm Syndrome. Part V speaks to several "test cases” such as the trial of Patty Hearst to gauge the extent to which brainwashing finds recognition in the criminal law. Drawing upon the foregoing discussion, Part VI proposes legislation establishing the parameters of the defense of brainwashing.

"The Presumption of Sanity, Automatism and R v H (S): Is it Insane to Have a Presumption of Insanity?"

Criminal Law Quarterly - University of Toronto

This paper traces the history of the defence of automatism to understand how radical the transformation has been regarding the presumption of sanity in the last several years. In particular, the definition and historical perspectives of automatism will be discussed. The traditional burden of proof and a comparison of mental disorder and non-mental disorder automatism will then be explained. Then the history of the insanity defence will be examined with reference to the presumption of sanity. The cases of Rabey and Parks will be discussed with a focus on the continuing danger theory, and internal and external divisions within the defence of automatism. Then the case of Stone and the very recent Ontario Court of Appeal decision in R. v. S.H will be critically examined. Focusing on the latest word from the court that there should be a presumption of mental disorder on the part of the accused, the paper will close with a look forward to the future of this very troubled and all but eliminated defence in Canadian criminal law.

SAC Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO

American University Business Law Review

Brainwashing and Extreme Psychological Coercion: A Comparison of the Italian Offense of “Plagio” and the American Offense of Involuntary Servitude

Criminal Law Bulletin - Forthcoming 2015

In North America, many still believe that the defense of brainwashing is simply an excuse to avoid responsibility for one’s personal actions. This paper seeks to understand the North American use of this concept by the legal system by making comparisons to the concept in Italy. First, a general outline of the concept will be established by looking at a possible defence of brainwashing. Secondly, an overview of the Italian offence of “plagio” will be presented, and thirdly a comparison will be made to the American concept of “involuntary servitude.” Fourthly the historic case of Kozminski will be examined and contrasted with the modern case of Marcus. The paper will finish with a proposal for a North American offense of brainwashing and a call for more study into this very misunderstood area of the law. All of these concepts involve taking away the exercise of free will, and a consistent approach needs to be adopted that recognizes that psychological coercion may be as real as being physically caged.

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

Berkeley Journal of Gender, Law & Justice

This paper explores the issue of the potential for a Canadian defence of brainwashing in the context of battered spouses who commit crimes against third parties. Part I will briefly discuss a working definition of “brainwashing” and the historical basis of this potential defense. Part II will discuss the juridical basis for a new defence of brainwashing by examining the theory behind the proposed defense. This leads to an examination of the established defences of necessity, duress, automatism, and diminished capacity, which in turn moves the discussion toward the feasibility of an affirmative defence 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 defence and will examine brainwashing and the battered spouse. To limit the field of this research, I propose to study a subset of abused women that I characterize as the victims of the “sexual sadist.” Part IV concludes by analyzing the case of Karla Homolka and the future of a brainwashing defense.

Canadian Contractual Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?

Global Studies Law Review

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.

Introduction to Legal Studies

Nelson Education

Introduction to Legal Studies, First Edition presents students with information surrounding the interpretation of laws, societal factors that are taken into account when creating laws, and the effects that those laws have on society, using the case law-based method employed at Canadian law schools. In this text, students will also be exposed to the fundamentals of the Canadian legal system in several areas of the law, including ethics and professional responsibility, civil litigation, tort law, contract law, administrative law, family law, constitutional law, criminal law, criminal procedure, evidence, the Charter of Rights and Freedoms, criminal defences, criminal sentencing, and alternative dispute resolution.

Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion

The University of Alabama School of Law

False confessions are the subject of much research; however, what has been termed the “coerced-internalized” subset has received little attention. These admissions involve an individual who falsely confesses but believes in their guilt despite objective evidence to the contrary. In R. v. Oickle, the Supreme Court of Canada recognized the long history of false confessions in Canada and examined the importance of understanding why these confessions occur. This paper will examine the role of one of the most unique and misunderstood forms of false confessions in the context of police interrogations and an analysis of the Billy Wayne Cope case. Key words: coerced, internalized, false, confessions, interrogations, police.

Implanted Choice: From Prisoners of War to Patty Hearst to Lee Boyd Malvo, Examining the Past to Determine if there is Room for a Modern Criminal Defence of Brainwashing

Criminal Law Bulletin

It is difficult for some to conceptualize, but mind control has been accepted by a wide range of professions even though the term reminds many of a U.S. Central Intelligence Agency (CIA) conspiracy or the Manchurian Candidate. What remains is a “fractured” approach by scientists to “brainwashing.” The complexity of studying this phenomenon is great because it concerns intangible and immeasurable concepts like free will. Data cannot be easily collected and dissected; the only basis is the overwhelming evidence of prisoners of war (POW) who experienced a similar set of occurrences. Even with this evidence there is struggle to define and study the free-will involved in brainwashing. This paper explores the potential for a defence of “brainwashing” by examining the historical and juridical basis. Part I of the article will focus on a brief history of “brainwashing” and the historical basis of this potential defense in North America with focus on POWs. Part II of the Article will examine the social and scientific basis of the defense as argued by experts in physiology, psychology and social science and the scientific models which have developed in this area. Part III explores whether we are all subject to brainwashing by questioning our ability to make "determined" choices. Part IV explores the current interface between criminal law and brainwashing, which includes a discussion of hypnosis and the Stockholm Syndrome. Part V speaks to several "test cases” such as the trial of Patty Hearst to gauge the extent to which brainwashing finds recognition in the criminal law. Drawing upon the foregoing discussion, Part VI proposes legislation establishing the parameters of the defense of brainwashing.

"The Presumption of Sanity, Automatism and R v H (S): Is it Insane to Have a Presumption of Insanity?"

Criminal Law Quarterly - University of Toronto

This paper traces the history of the defence of automatism to understand how radical the transformation has been regarding the presumption of sanity in the last several years. In particular, the definition and historical perspectives of automatism will be discussed. The traditional burden of proof and a comparison of mental disorder and non-mental disorder automatism will then be explained. Then the history of the insanity defence will be examined with reference to the presumption of sanity. The cases of Rabey and Parks will be discussed with a focus on the continuing danger theory, and internal and external divisions within the defence of automatism. Then the case of Stone and the very recent Ontario Court of Appeal decision in R. v. S.H will be critically examined. Focusing on the latest word from the court that there should be a presumption of mental disorder on the part of the accused, the paper will close with a look forward to the future of this very troubled and all but eliminated defence in Canadian criminal law.

“‘Butcher of Women’: ‘Abortion Tourism,’ Canadian Abortion Access and the Cautionary Case Study of Kermit Gosnell”

Texas Journal of Women, Gender and the Law

To critically examine access to abortion, I examine the legal history of abortion, and the realities of securing an abortion today. I then compare those realities to a contemporary case of Dr. Kermit Gosnell from the United States to examine what happens when the system goes unchecked and legitimate access is denied. Dr. Gosnell preyed on vulnerable women in a scene that seems to be pulled out of the 1800s rather than contemporary Pennsylvania. He was convicted and sentenced to multiple life sentences after his horrific abortion-related crimes were discovered. This case study demonstrates that the historical barriers to access faced by women, particularly those who are underprivileged, continue to exist even where abortion is legalized when women still have uneven (at best) access to basic medical care.