Court Decisions Exit Counseling

ICSA e-Newsletter, Vol. 8, No. 1, 2009

Court Decisions Concerning the Legality of “Exit Counseling” (Alleged Coercive and Illegal Deprogramming or Conversions) in Japan

Takashi Yamaguchi

Attorney at Law, Link Law Office, Tokyo, Japan

Abstract

Since 1998, the Unification Church and the Jehovah’s Witnesses in Japan have filed five lawsuits against their immediate families, other relatives, and pastors for attempting “coercive and illegal deprogrammings” or conversions. In three of those cases, the courts decided in favor of the plaintiffs to some extent and required defendants to pay small compensations for damages. In the other two cases, plaintiffs’ motions were dismissed; one of these cases, settled in March 2006, included a Supreme Court intervention and a settlement between parent and child during the trial. The Unification Church is using the 2006 settlement to support its propaganda about coercive and illegal deprogramming.

In this presentation, I focus on the facts of each case, including the general criteria the Japanese courts used to distinguish legitimate vs. illegal persuasion or exit counseling in its decisions.

Since 1998, believers of the Unification Church (UC) and the Jehovah’s Witnesses (JW) have been filing lawsuits against their immediate families, other relatives, and pastors for attempting coercive and illegal deprogrammings or conversions.

In these cases, the plaintiffs have argued that the “coercive and illegal deprogramming” by, for example, the parent or the husband who would not allow the faith were aimed to “forcibly convert” the victims by means of “kidnapping and illegal confinement,” and thus were illegal and violated the plaintiffs’ freedom of religion, according to article 20 of the Japanese Constitution. The defendants have argued that the alleged “kidnapping and illegal confinement” were actually “protecting and securing,” and also that the alleged “coercive and illegal deprogramming” or conversions were just requests by the concerned loved ones for reconsideration and communication.

There have been five such cases; and in three of the cases, the courts admitted to some degree the plaintiff’s cases and ordered the defendants to pay a small sum as compensation for damages. In two of the cases, the courts dismissed the plaintiff’s motions; in one case, however, the Supreme Court intervened and a settlement was made within the trial process between the parent and the child (the Supreme Court upheld the High Court’s decision to dismiss the case against the pastors) on March 23, 2006.

The March 2006 settlement inspired me to introduce this theme to the conference because the UC and its supporters are, at least in Japan, using the settlement in their propaganda that the “Japanese Supreme Court had finally recognized the problems of the coercive and illegal deprogramming or conversions,” and I fear that they are doing so in the other parts of the world, as well.

In my presentation I would like to make clear the facts of the case mentioned above and at the same time introduce the other four cases and the position of the Japanese courts relative to this problem. In addition, I will introduce the general criteria these cases have included that differentiate between “legitimate persuasion or exit counseling” and “illegal persuasion or exit counseling.”

Three Cases in Which “Exit Counseling” Was Found to Be Unlawful

Case No. 1

This case is about the JW rather than the UC, but it is significant because this was the case that struck a note of warning to all those who were involved in exit counseling.

The participants and sequence of events relative to the case are as follows:

• (Plaintiff) A: JW and wife (later ex-wife) of B

• (Defendant) B: Husband of A, not a JW

• C: Child of A and B

• (Defendant) D: Pastor whom B was consulting

(Plaintiff) A and (Defendant) B were constantly having quarrels because A was teaching C about the tenets of the JW and taking C to JW’s events and gatherings. A then consulted (Defendant) D for “rescue counseling.” D had a house that he used for “rescue counseling,” in which the windows and entrances had been converted to prevent escape. B pretended to take A on a family trip but instead took A to the mentioned house, where D was waiting. Beginning the next day, D tried to persuade A to leave the JW, but A refused to talk to D and even mentioned that “I want to get out. I would rather die than talk to D.” Sixteen days later, B gave up, and B left the house. A and B later entered the mediation process at the family court for divorce, and B was awarded the custody of the child. After the divorce, A sued D for damages.

On March 30, 2001, the Kobe District Court ordered the defendant to pay the total of 400,000 yen in damages. Both the plaintiff and the defendants appealed, but the Osaka High Court on August 7, 2002, upheld the Kobe District Court’s decision.

Osaka High Court first ruled that the confinement of A by B and D, although it could not be said that B and D had tried to convert A by means of direct bodily restraint or mental oppression, nevertheless had violated the freedom of the mind and body and therefore their action legally could be deemed illegal.

Second, the court rejected the argument made by the defendants of “self-defense” to protect the family ties, although the court showed sympathy to the agony and suffering that B had felt, and it hesitated to denounce the motive as “unjust”; nevertheless it ruled that the measures taken were not “socially adequate” and thus could not be justified.

The court mentioned nothing about the nature of the “rescue counseling” conducted by D in accordance with freedom of religion in general, and that is the basic stance on which the follow-on courts based their decisions. It is also reasonable to point out that the court had mentioned in its ruling that “it cannot be considered totally at liberty for one parent to impose his or her faith on the other or the children, for it will have significant and unavoidable effect on the family life.”

Some critical factors that affected the court judgment were that

1. B had paid D, as a donation, the sum of 925,000 yen.

2. The house in which A was detained had been converted and was used solely for the purpose of “exit counseling.”

3. A explicitly refused to talk to D.

4. B had deceived A to bring her to the house, and D knew about the deception.

5. D had the keys to the house and helped B by bringing necessities to the house.

Case No.2

The participants and sequence of events relative to the case are as follows:

• (Plaintiff) A: UC believer, 30 years old

• (Defendant) B: A’s father

• (Defendant) C: A’s Mother

• (Defendant) D: Pastor whom B and C had been consulting

B and C, along with 20 supporters, went to the UC Tottori Church to “rescue or retake” their daughter from the UC. There was some skirmish with the resisting UC members, and it is said that some of the UC members were lightly injured. A was confined by B and C for 14 months and during that period was persuaded by the parents and the pastor. A once promised to leave the UC, but later returned and participated in the “Joint Marriage” ceremony and now lives in Korea.

The UC and its members reported to the police and filed charges on the counts of illegal entry, assault, and property destruction; but the six perpetrators, including defendant B, were never indicted either by reason of insufficient evidence or kiso yuyo (“suspension of prosecution”). The UC and its members filed for a review to the “Tottori Prosecution Review Board,” but were rejected.

On August 31, 2000, the Tottori District court ordered the defendants to pay the sum of 550,000 yen as compensation for damages. The defendants appealed, and on Feb 22, 2002, the Matsue branch office of the Hiroshima High Court ordered the defendants to pay 150,000 yen as compensation for damages. And although the court had reduced the compensation sum drastically, showing some consideration to the motives of the defendants, nevertheless it ruled that “living together in an apartment to secure an undisturbed environment for the purpose of liberating their daughter from the illegal proselytization of the UC does not justify the confinement of a grown daughter against her will.”

The UC was triumphant over its victory in this case.

Case No. 3

The participants and sequence of events relative to the case are as follows:

• (Plaintiff) A: UC believer, 29 years old

• (Plaintiff) B: A’s Korean husband, also UC believer

• (Plaintiff) C: UC itself

• (Defendant) D: A’s father

• (Defendant) E: A’s mother

• (Defendant) F: Pastor

• (Defendant) G: Collaborator

A returned to Japan alone, hearing that her mother E was having an eye operation. D persuaded their daughter A to live together in an apartment with D and E. The doors were locked from inside, and D had the keys. A firmly refused to talk to F or G, who visited them every day, about issues concerning the UC. This situation lasted for about 2 months; it ended when the police intervened upon seeing A’s call for help.

On Jan 28, 2004, the Osaka District Court ordered D, E, and F to pay the sum of 200,000 yen to A. Cases filed by B and the UC were dismissed. On July 23 of the same year, the Osaka High Court upheld the Osaka District Court’s decision.

Two Cases in Which the Plaintiffs’ Cases Were Dismissed

Case No. 4

The participants and sequence of events relative to the case are as follows:

• (Plaintiff) A: UC believer 25 years old

• (Plaintiff) B: A’s husband. American UC believer and a researcher working for the International Coalition for Religious Freedom

• (Defendant) C: A’s father

• (Defendant) D: A’s Mother

• (Defendant) E: Pastor

In this case, the plaintiff A had gone through “exit counseling” twice, in 1997 and 1998. A returned to the UC after the “exit counseling” in 1997, went to the United States as a missionary, and married B in the joint-marriage ceremony and returned to Japan in December of that year. A received the second “exit counseling” from May to July of that year. In the case, there was a very intense debate over the sequence of events, especially about how the exit counseling actually took place.

Also in this case, while the plaintiffs sought monetary compensation from E and a court order to stop the future “coercive and illegal deprogramming or conversions,” they did not seek monetary compensation from C or D, only the mentioned court order.

On March 8, 2002, the Tokyo District Court dismissed all of the plaintiffs’ claims.

The court rejected the claims that the actions of the defendants violated the plaintiffs’ freedom of religion. Also, the court did not make a clear decision about their “religious personal rights’ or their “freedom of religion,” as the plaintiffs had wanted, but instead seems to have decided on the basis that the background and the circumstances in which the “exit counseling” took place were not an issue of “religious personal rights” or “freedom of religion” but were instead related to the conflict-torn family.

The court found that the alleged “coercive and illegal deprogramming or conversions” were in fact only dialogue or communication within the family, and that the parents acted not out of malice but genuine concern that their daughter was involved in the activities of the UC, which was an organization that attracted negative social concern and ill repute.

The court also denied the plaintiffs’ claims that the defendant E had “asserted” C and D to have them engage in the “coercive and illegal deprogramming or conversions”; additionally, the court denied the claims that E had solicited violence or verbal abuse, instead ruling that although some force and harsh language were used, they could not be considered illegal within the context of the circumstances in which they were employed. Finally, the court rejected the necessity of the mentioned court order, as well.

The plaintiffs appealed, but on Dec 26, 2002, the Tokyo High Court upheld the District Court’s decision and turned down the appeal. The Supreme Court also rejected the appeal on June 27, 2003.

Case No. 5

The participants and sequence of events relative to the case are as follows:

• (Plaintiff) A: UC believer, 26 years old

• (Plaintiff) B: A’s husband

• (Defendant) C: A’s father

• (Defendant) D: A’s mother

• (Defendant) E: A’s sister

• (Defendant) F: A’s uncle

• (Defendant) G: A’s aunt

• (Defendant) H: C’s friend and colleague

• (Defendant) I: Pastor

• (Defendant) J: Pastor

In this case, the plaintiffs argued that the defendants had conspired and illegally kidnapped and confined A twice against her will and had attempted “coercive and illegal deprogramming or conversions” on her, and that the two pastors I and J had a leading and advisory role in that act; that J had directly tried to coercively convert A from the UC; and that C, D, F, and H had physically assaulted and injured B.

On April 23, 2004, the Yokohama District court dismissed all the arguments by the plaintiffs. The plaintiffs appealed, but on August 31 of the same year, the Tokyo High Court upheld the district court’s decision and turned down the appeal.

The high court pointed out that

1. The defendants, especially C and D, had “taken the resisting A in their arms into the car and then to the apartment.”

2. The “apartment was furnished with padlocks and other measures to prevent escape.”

3. The defendants had “placed A under constant supervision,” and “placed A in an environment that restricted the freedom of the mind and body for a not short length of time and asked A to enter discussion about the tenets and the problems of the UC,” and therefore that

4. “There were grounds to allow the decision that the defendants’ acts had gone beyond the ‘socially adequate’ line.”

However, the court also pointed out that the force C and D used to transfer A into the apartment was only as mentioned before; they never actually used force to keep A in the room, and A had gradually accepted and shown no strong resistance. In addition, A had voluntarily responded to the issues concerning the UC and recognized that the actual communication was taking place in a peaceful and calm manner. Based on such findings, the court ruled as follows:

The court finds that the true motive in which C and D had engaged in such acts were their concern that their beloved daughter was taken from them by the UC, which they recognized as a religious organization causing many social problems, their daughter marrying with out parental consent at the joint wedding in addition to the sadness brought by the loss of communication with their daughter, and of the parental concern for her life, health and lifestyle, wishing for their daughter’s true happiness, had made them make up their up mind that they desperately needed to talk and discuss about the tenets and the problems of the UC and have a chance to reconsider her faith to the UC.

The court could not find that C and D had any will to harm A. If it was necessary to convert A, “considering the facts found above, the court cannot conclude that the acts of C and D had gone beyond the ‘socially adequate’ line, at least not to the degree that the monetary compensation must be allowed.”

The plaintiffs appealed to the Supreme Court. As mentioned before, the Supreme Court intervened and a settlement was made within the trial process between the parent and the child (the Supreme Court upheld the High Court’s decision to dismiss the case against the pastors) on March 23, 2006.