FRANCE: BILL “TO REINFORCE THE FIGHT AGAINST CULTIC DEVIANCES”

FRANCE: BILL “TO REINFORCE THE FIGHT AGAINST CULTIC DEVIANCES”
 
A REAL THREAT TO FREEDOM OF CONSCIENCE, RELIGION AND BELIEF
 
 
Executive Summary

The draft law "aimed at reinforcing the fight against cultic deviances", presented to the Council of Ministers on November 15, 2023, and immediately forwarded to the Senate Law Commission under accelerated procedure, will be discussed in plenary session in the Senate on December 19 [1]. Comprising 7 articles, if passed into law, it would seriously undermine basic principles of freedom of conscience, religion and belief, and poses real problems of conventionality and conformity with the French Constitution and international law on fundamental freedoms.
 
- Article 1 of the bill creates a new offence of "placing or keeping in a state of psychological or physical subjection" in the penal code. Psychological subjection" (or mind control) is a pseudo-scientific concept repeatedly rejected by scientists the world over, which application in criminal law, and in particular to the religious and spiritual sphere, represents a danger to democracy and fundamental freedoms. The ECHR itself has already ruled that "there is no generally accepted and scientific definition of what constitutes 'mind control’ ".
 
The adoption of this article would lead to the criminalization of many religious practices, which could easily be considered as "techniques capable of altering judgment" leading to psychological subjection. It would also lead to a worrying trend in criminal law, allowing psychiatrist to interpret vague legal definitions, since in the end, it would be the appointed psychiatrist who would be called upon to decide on the validity of a religious or spiritual practice, and the validity of a devotee's consent to a particular faith and practices.
 
- Article 3 of the draft law would enable associations antagonistic to minority religions, some of whom may be entirely financed by the State and known for their discriminatory practices towards religious minorities, to act as civil parties (plaintiffs) in lawsuits that would otherwise not concern them at all, thus seriously undermining the right to a fair trial guaranteed by the article 6 of the European Convention on Human Rights.
 
- Article 4, against the advice of the Conseil d'Etat (French supreme administrative court which has also a role of advisor to the government when it comes to draft laws), creates an offence of "provocation to abandon or refrain from following a therapeutic or prophylactic medical treatment". The Conseil d'Etat considered that this article would allow "the criminalization of challenges to the current state of therapeutic practices", endangering "the freedom of scientific debate and the role of whistle-blowers. It considered that "such provisions constitute an attack on the exercise of freedom of expression", and advised the government, in vain, to withdraw the article. Whilst this article may only affect some peripheral religious practices it shows the intolerance of the drafters and intent to maintain a kind of “orthodoxy” with regards to medical treatments as it would potentially criminalise many areas of alternative medicine practice.
 
- Article 6 is designed to enable MIVILUDES (Interministerial Mission of Vigilance and Fight Against Cultic Deviances, a French governmental agency based in the Ministry of Interior, also known for its intolerance towards minorities) to be called upon by public prosecutors or the courts in the context of criminal proceedings. The Conseil d'Etat, in its November 9 opinion on the bill, considered "that a State service, not specially empowered as an expert before the courts, could not intervene on its own initiative in legal proceedings without infringing the right to a fair trial guaranteed by articles 16 of the Declaration of 1789 and 6 of the European Convention on Human Rights."
 
It is of special concern that this law is being proposed at this current time when the social and political climate in France makes it difficult to oppose such legislation due to such proponents being pilloried as would be tarred in the media as "cultists” or “cult apologists” without any regard to the basic principles of freedom of religion or belief. 
 

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Further explanation

 
Article 1
 
Article 1 of the draft law creates a new offence in the penal code of "placing or maintaining a person in a state of psychological or physical subjection resulting from the direct exercise of serious or repeated pressure or techniques designed to alter his or her judgment and having the effect of causing a serious deterioration in his or her physical or mental health, or of leading this person to an act or abstention which is seriously prejudicial to him or her" (new article 223-15-3 of the penal code). While this offence appears to be modelled on the one created by the About-Picard law in 2001, which was already highly contested at the time of its adoption, it differs from the latter in several respects, and goes much further in terms of interference with freedom of religion and belief. Under the About Picard law, it was the offence of "fraudulent abuse of a state of weakness created by psychological subjection" which was punishable. It was therefore necessary to identify an abuse, a fraud, a "psychological subjection" (an indefinable pseudo-scientific term), all of which having to lead to an act or abstention seriously prejudicial to the person.
 
The About Picard law already heavily criticized at the time
 
Even back then, the law was heavily criticized. As Professor Patrice Rolland (An eminent jurist, university professor at Paris and member of the École pratique des hautes études) wrote in 2003 [2] : "In September 2000, the National Advisory Commission of Human Rights and the Human Rights League issued a negative opinion, which Parliament and the government took into account. The public commitment of the churches and representative bodies of the various religions was overwhelmingly critical and negative. The Council of Europe expressed strong mistrust of the law. Without concluding that there had been a clear violation of the European Convention on Human Rights, the Resolution adopted referred to the possible judgment of the European Court, and invited the French government to review the law".
 
However, the new bill goes much further. It is no longer fraudulent abuse that is punished, but simply "maintenance or placement in a state of psychological or physical subjection", with all the vagueness that this notion leaves (Patrice Rolland writes: "How can we define, for example, what has the effect of creating psychological subjection? Can't a political party or a trade union also fall within the scope of such a question?) And it is no longer necessary for this placement or maintenance to result in "an act or abstention seriously prejudicial to the person", but only that "serious or repeated pressure" or "techniques likely to alter his judgment" have had "the effect of causing a serious deterioration in his physical or mental health".
 
It is easy to see how the continued insistence of a minister towards individuals to pray for forgiveness of sins, could also be characterised as psychological or physical subjection by a former church member. And what of monks and nuns who submit to a strict regime even more intensely that a normal parishioner? All that is needed is for an ex-parishioner to complain about how he was forced to pray when he did not really want to for a sin, which he no longer considers a sin,, or did not really think it was at the time but was so in the eyes of the minister; or for a nun to assert that she had been subject to a harsh physical/psychological treatment regime, after leaving the order – these examples could easily lead to a criminal action under the present law proposal.
 
All the "victim" has to do is obtain a psychiatric report which determines that there has been "psychological subjection" and that this subjection has created a serious deterioration in his or her mental health, for the offence to be characterized. Thus, the conclusion of the criminal case will rest solely on the arbitrariness of the psychiatric expertise, which alone will determine the outcome of the legal debate. When you consider that a not inconsiderable current of psychiatry considers religious belief to be the manifestation of a psychotic delusion, you can see the danger of leaving the conclusion of the trial in the hands of the "expert".
 
Psychological subjection: a pseudo-scientific concept
 
This is all the more dangerous given that the concept of "psychological subjection", interchangeable with those of "mental manipulation", "mind control" and "brainwashing", applied to "cults" or religious movements in general, has long been widely regarded as pseudo-science internationally.
 
This notion of "mind control" originated in the USA in the 50s, but was applied to new religious movements in the 1980s by psychiatrist Margaret Singer. Singer set up a task force on "Deceptive and Indirect Methods of Persuasion and Control" by minority religions, and submitted a report to the American Psychological Association (APA). On May 11, 1987, APA's Board of Social and Ethical Responsibility for Psychology formally rejected Singer's notions of "coercive persuasion". The APA Council declared that "in general, the report lacks the scientific rigor and evenhanded critical approach needed for APA imprimatur". In May 1989, the APA, the American Sociological Association, the Society for the Scientific Study of Religion and individual sociologists reiterated the APA's position in an amicus brief to the U.S. Supreme Court. They asserted that Singer's theories on religious brainwashing had "no scientific validity". Since then, American courts have consistently rejected these theories as applied to new religious movements.
 
Fascist Italy at the forefront of "mind control”
 
Closer to France, in Italy, an offence of mental manipulation known as "plagio" existed in the Penal Code, inherited from the Fascist period. Its use against minorities - first homosexuals, then Catholic charismatic priests, who were unpopular in the 1970s - led to the elimination of the article from the Penal Code by the Constitutional Court in 1981. “Plagio" was considered by academic psychiatry to be so vague and of such dubious existence that it constituted a danger to democracy.
 
ECHR confirms lack of scientific basis for mind control
 
More recently, the European Court of Human Rights, in its final judgment of June 10, 2010 CASE OF THE JEHOVAH WITNESSES OF MOSCOW AND OTHERS v. RUSSIA (Application no. RUSSIA (Application no. 302/02), noted in recital 110: "The Court observes at the outset that the term “coercion” in its ordinary meaning implies an action directed at making an individual do something against his or her will by using force or intimidation to achieve compliance", which effectively excludes the notion of "psychological subjection", which does not require any force or intimidation. Then, in response to the fact that "The Russian courts also held that the applicant community breached the right of citizens to freedom of conscience by subjecting them to psychological pressure, ‘mind control’ techniques and totalitarian discipline", the Court replied: "there is no generally accepted and scientific definition of what constitutes ‘mind control’".
 
The criminalization of beliefs and the psychiatricization of law
 
With the bill "aimed at reinforcing the fight against cultic deviances", any religious practice could be considered as "techniques capable of altering judgment". What about prayer, confession, mantra recitation, meditation practices, spiritual exercises like those of Loyola, or rigorous monastic practices? Obviously, with such vague wording, all these practices could fall foul of the law. It would be enough for a former devotee to claim that he has suffered psychologically, that these practices (which we know can be demanding) have altered his judgment, and to convince a psychiatrist of this, for the offence to be characterized.
 
What's more, such a formulation could lead to the situation where a faithful believer who is still practicing could be considered to be under psychological subjection, and thus have his or her consent considered vitiated. In this way, free will, the essential foundation of our democratic vision of society, would disappear in favor of a paradigm in which the State decides, through psychiatric expertise, who sincerely believes and who is not capable of freely deciding on his or her beliefs.
 
This is a criminalization of religious practice, a psychiatricization of criminal procedure, and an unprecedented attack on fundamental freedoms.
 
Article 2
 
Article 2 makes "psychological or physical subjection" an aggravating circumstance for the following crimes: murder, acts of torture and barbarism, violence and fraud. This article does not call for any particular comment beyond what has already been said about the pseudo-scientific notion of "psychological subjection".
 
Article 3
 
Article 3 of the bill opens up the possibility for anti-cult associations to act as civil parties in criminal cases for "cultic offences", once they have been approved by the Ministry of Justice. While the article may seem trivial, it is far from it. Whereas, as a rule, there are exceptions allowing a legal entity to act as a civil party, even when it is not the direct victim of an offence, so that civil society can compensate for the State's failure to prosecute, here we have associations which are merely an extension of Miviludes (Mission Interministerielle de Vigilance et de Lutte Contre les Dérives Sectaires - Interministerial Mission for Vigilance and Fight against Cultic deviances) and have no vocation whatsoever to act as a counterweight.
 
These anti-cult associations are almost exclusively funded by the State (often in a very dubious way: several criminal complaints have recently been lodged concerning serious offences allegedly committed in connection with the funding of these associations, notably UNADFI and CCMM, by Miviludes). They can be considered a quasi-State service. It was precisely as a result of lobbying by these associations, which have to justify their existence, that this bill was drafted and submitted to parliament. Anti-cult associations almost exclusively target the religious minorities they loathe, and the blank cheque they would be given to act as civil parties in lawsuits that do not directly concern them would have a deleterious effect on the right to a fair trial.
 
Article 4
 
Article 4 creates a new offence of "incitement to abandon or refrain from following a therapeutic or prophylactic medical treatment, when this abandonment or abstention is presented as beneficial to the health of the persons targeted when, given the state of medical knowledge, it is clearly likely to have serious consequences for their physical or mental health, given the pathology they are suffering from".
 
In its opinion on the bill, issued on November 9, the Conseil d'Etat considered that this article did not "guarantee a balance between constitutional rights, in particular so as not to jeopardize the freedom of scientific debate and the role of whistle-blowers by criminalizing challenges to the current state of therapeutic practices. It considers that, insofar as they aim to prevent the promotion of so-called "unconventional" healthcare practices in the press, on the internet and on social networks, such provisions constitute an infringement of the exercise of freedom of expression." The Conseil d'Etat therefore advised the government not to include this article in the bill. This advice went unheeded by the government.
 
Article 5
 
Article 5 aims to facilitate disciplinary sanctions against deviant practitioners, particularly in the field of cultic deviances, by including in the code of criminal procedure the obligation for the public prosecutor's office to transmit to the professional orders concerned the convictions of these practitioners for offences linked to cultic deviances. We have no particular comment to make on this article.
 
Article 6
 
The purpose of article 6 is to enable government departments, including MIVILUDES, to be called upon by public prosecutors or the courts to provide them with any general information they may require, thus introducing the amicus curiae mechanism into criminal proceedings.
 
In its opinion of November 9, the Conseil d'Etat "considers that a State agency, not specially empowered as an expert before the courts, cannot intervene on its own initiative in legal proceedings without infringing the right to a fair trial guaranteed by articles 16 of the Declaration of 1789 and 6 of the European Convention on Human Rights".
 
Article 7
 
Article 7 extends to New Caledonia, French Polynesia and the Wallis and Futuna Islands the application of the provisions of the Penal Code and Code of Criminal Procedure amended by the bill, and calls for no comment on our part.
 

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