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CounterPunch
March 22,
2003
The Case of Elizabeth
Smart
The
Laws on Kidnapping and an Insanity Defense
By ELAINE CASSEL
On June 5, 2002, 15-year-old Salt Lake City resident
Elizabeth Smart was abducted from her home. Nine months later,
on March 12, 2003, Elizabeth was found alive, and apparently
in good physical health. In connection with the crime, the police
arrested 49-year-old Brian Mitchell - a homeless man whom Elizabeth's
parents had employed as a day laborer in their home shortly before
Elizabeth's disappearance - and his wife, 57-year-old Wanda Barzee.
Mitchell is claimed to have wanted to
take Elizabeth as one of his seven "celestial" wives.
(A celestial marriage, one that extends into the afterlife, must
take place in a Mormon temple, be performed by a Mormon priest,
and follow strict ceremonial rules.)
It was soon disclosed that for most of
her absence, Elizabeth had been in the Salt Lake City area, often
within short distances of her home. She had also frequently ventured
out in public with her alleged abductors. As a result, many factual
questions began to emerge. Had she tried to contact her family?
Did she try to escape? Was she brainwashed? What was the motive
for the kidnapping, and exactly what occurred during the months
Elizabeth was gone? Were her kidnappers delusional?
In the main, these questions have yet
to be answered. It is unclear, for instance, why Elizabeth did
not take the opportunity to escape. Was she simply a very obedient
child, as her pre-capture website posting stated? Did she fear
for her life? Her young sister has claimed her abductor had a
weapon. Was she "brainwashed" or experiencing "Stockholm
syndrome" - a psychological state in which hostages are
said to identify with their abductors and resist capture? Or
is it possible that she believed, of her own volition, that she
was called to be Mitchell's wife? Again, the website had described
her as "very spiritual."
Fortunately, the legal backdrop, and
some of the legal issues that are likely to arise, are clearer
than the facts are at this point.
Kidnapping: The Evolution
of the Crime
Kidnapping is actually a combination
of two crimes. One is abduction, which involves taking a person
from one place to another. The other is false imprisonment, defined
as holding a person against his or her will.
Initially, kidnapping statutes - including
the Federal Kidnapping Act - were primarily designed to punish
taking people for ransom. One leading Supreme Court case interpreting
that Act is Chatwin v. United States - a 1946 case with facts
eerily parallel to those in the Smart case.
In Chatwin, the Supreme Court reversed
the conviction of a 68-year-old widower and two others who had
transported a fourteen-year-old girl to another state to enter
into a Mormon "celestial marriage" with him. The Court
held that the evidence supporting the charge of kidnapping -
and in particular, the assertion that the girl had been "held"
against her will or by deception - was insufficient, given the
narrow purposes of the then-applicable Act.
Fortunately for prosecutors in cases
such as Elizabeth's, modern kidnapping statutes are broader.
The federal kidnapping statute that currently applies has a broader
reach than the prior Federal Kidnapping Act. In addition, some
states, including Utah, have "aggravated" kidnapping
laws. Apparently, either federal or Utah law could be applied
in the Smart case, for she was reportedly taken across state
lines, to California.
On March 18, state prosecutors announced
that they had charged Mitchell and Barzee with aggravated kidnapping,
aggravated sexual assault, and aggravated burglary under Utah
law. Both aggravated sexual assault and aggravated kidnapping
carry maximum penalties of life in prison; convictions on the
sex charges could mean that the defendants would be labeled as
violent sexual predators, and confined for life in a state prison
hospital in the event they receive less than life terms.
"Aggravated" kidnapping is
typically defined as kidnapping undertaken for the purpose of
committing another crime, for the purpose of committing a sexual
crime, or with the intent to harm the victim. The kidnapping
of Patty Hearst - done in part to force her to commit robbery
- would be a clear example.
Lack of consent is an element of every
kidnapping offense; but, for minors, there is a question of whose
consent it must be. Under Utah law, if the victim is, like Elizabeth,
between 14 and 18 years of ago, she cannot be detained or restrained
against her own will. In contrast, if she were under 14, the
power to consent would, instead, have belonged to her parents,
and her own consent would have been irrelevant.
Thus to prevail on the aggravated kidnapping
charge, the prosecutors will need to show that Elizabeth was
detained against her own will. As the trial of Patty Hearst indicated
(Hearst was convicted in connection with her abductors' bank
robbery), proving that one was brainwashed or coerced is difficult.
The Different Types
of Kidnapping, and Where Elizabeth's Fits
The FBI categorizes kidnappings according
to the relationship of the perpetrator to the victim: family
member, acquaintance, or stranger. Most perpetrators of child
kidnappings are parents or acquaintances. Strangers account for
less than a quarter of child abductions.
If Mitchell is indeed the perpetrator,
then Elizabeth's kidnapping falls somewhere between a "stranger"
and an "acquaintance" kidnapping. An "acquaintance"
is usually defined as someone with an ongoing relationship with
one of the parents - often a boyfriend or family friend. But
Mitchell had limited contact with the family, by their own account;
they say that he worked at the Smart house on one day, for only
five hours.
If the Smart kidnapping is styled an
"acquaintance" kidnapping, it is relatively typical.
Such kidnappings are the most frequent kind when the victim is
a teenager. In addition, "acquaintance" perpetrators
often remove the victim from his or her home, as was the case
with Elizabeth. They also snatch their victims at night - as
was the case with Elizabeth - almost as often as during the daytime.
Thus, Elizabeth's was a typical "acquaintance"
kidnapping, except for one fact: the suspect allegedly used a
weapon in the abduction (Elizabeth's sister says Mitchell had
a knife), which is unusual.
What if, instead, we view Elizabeth's
kidnapping as a "stranger" kidnapping? In that event,
it is somewhat atypical. According to the National Center for
Missing and Exploited Children, 4,600 children are abducted each
year by strangers, but the vast majority of these kidnappings
by strangers are of short duration and result in nether physical
injury or death. In only 100 or so of these cases is the child
held for an extended period of time - as Elizabeth was - or killed,
or made the subject of ransom demands.
Victims of stranger kidnappings are almost
equally divided between children under 6 years of age and teenagers.
Like acquaintance perpetrators, stranger perpetrators strike
at night almost as often as they do during the daytime.
Not the
Usual Suspects: The Role Apparent Mental Illness May Play
Though the Smart case fits fairly well
into the typology of kidnapping, Mitchell and Barzee are not
the usual perpetrators. Both are homeless and have histories
of mental instability.
Brian Mitchell grew up in Salt Lake City,
the third child in a family of six. His childhood was troubled,
to say the least. In a March 16 interview with CNN, Brian's father,
Shirl, revealed, among other things, that he had shared his obsession
with pornographic pictures with his son; described how he had
left Brian in a city park for a period of time at age 12, so
that Brian could learn to appreciate having a home; and disclosed
that Brian may have been sexually abused in day care.
As an adult, Brian Mitchell served as
a low-level official of the Mormon Church, but he was excommunicated
for criticizing the church's abandonment of polygamy. After that,
Mitchell walked the streets of Salt Lake City in a long white
robe allegedly preaching "the gospel of Jesus" and
referring to himself as "Emmanuel" - a Hebrew word
meaning "God is with us".
Mitchell is also said to have written
a "manifesto," which he calls his own Book of Mormon
(the Book of Mormon is the Latter Day Saints' equivalent of the
Christian Bible or the Islamic Koran). His mother filed for a
protective order to keep him and Barzee away from her, because
she said they were threatening to destroy her home and to harm
her for questioning the "manifesto."
Mitchell's attorney, Larry Long, said
that Mitchell believed that he had been called by God to take
Elizabeth as his wife. In disclosing this, Long may be laying
the groundwork for an insanity defense. Could it work?
A Fine Line Between
Fringe Religious Beliefs and Insanity
Psychiatric expert testimony will, of
course, ultimately determine if Mitchell and Barzee can successfully
assert an insanity defense, on the ground that they were suffering
from a delusional or other psychotic disorder. Indeed, it has
been suggested that the prosecutor added the aggravated sexual
battery charge, in expectation of an insanity plea and to brand
Mitchell as a sex offender. Speculations are that jurors will
be less likely to accept an insanity defense if sexual assault
is proven.
Utah has a very strict insanity defense
law, similar to that of Texas (which I wrote about in a prior
column on the Andrea Yates case). Notwithstanding the existence
of a mental disease or defect, if a defendant had the intent
to commit the crime - known as the mens rea element - he can
be found guilty. The jury issue would be fairly straightforward:
Did Mitchell and Barzee have the intent to take and hold Elizabeth
against her will?
It may be difficult to determine where
religious beliefs end and where mental instability, even mental
illness, begins. What the law calls kidnapping, Mitchell thinks
is divine revelation. Does this mean he believes religious authorizes
him to break the law (which would not be a defense)? Or does
it mean he is delusional?
The line-drawing problem is only aggravated
by the fact that belief that one is visited by spirits or has
had a revelation - one symptom of psychosis - is also a not-uncommon
belief in some religions, including the Latter-Day Saints.
Joseph Smith, father of the Mormon religion,
was guided by a divine revelation. All Mormons believe that they
existed as pre-mortal spirits before their human birth. They
believe that certain Mormon men are "called" to the
priesthood. Elizabeth's aunt and uncle are said to have had a
dream the night before her return that she was alive and involved
in a religious cult. Even her father said he had dreams about
Elizabeth "coming walking into our room."
Meanwhile, Mitchell's wife, Barzee, may
also have been delusional - though for her, the line may be easier
to draw. A friend has reported that Barzee thought Elizabeth
was her daughter. In the end, Barzee and Mitchell may be found
to have been partners in psychosis, sharing delusions or fantasies
- in a rare psychological phenomenon known as folie a deux.
What Are We To Make
Of This Case?
We may never know the truth about Elizabeth's
abduction and the time she spent in "captivity." The
mental state and religious beliefs of her and her captors before,
during and after the experience, relentless publicity, and intense
pre-trial questioning that impedes accurate recall will all affect
the trial version of events.
Just as investigators looking for tangible
evidence are hampered by the passage of time and the spoliation
of physical clues, so too are those who search for intangible
and psychological clues thwarted by the way a case like this
takes on a life of its own--a life that may, or may not, reflect
what really happened to Elizabeth Smart in the nine months between
June 5, 2002 and March 12, 2003.
Elaine Cassel
practices law in Virginia and the District of Columbia and is
a contributor to Counterpunch and Findlaw.com,
where another version of this essay originally appeared. She
is the chair of the American Bar Association's Behavioral Science
Committee of the Science and Technology Law Section and is the
author, with Douglas Bernstein, of Criminal
Behavior (Allyn & Bacon, 2001). She also teaches
law and psychology. She can be reached at: cassel@counterpunch.org.
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