THE INFLUENCE OF HYPNOSIS ON CRIMINAL LIABILITY

“Sleep. Your eyelids are getting heavy. Sleep. Watch the swinging object. Concentrate. When you awake you will be completely under my power.” These words are familiar language to almost all of us, from images of the popular media, of a hypnotist attempting to place a subject in a hypnotic state. This subject has proved to be a source of fascination for many, and a source of intense debate in both psychological theory and jurisprudence for over two centuries, largely because of one controversial issue: can a person be induced to commit acts which are against his or her normal prudence and moral standards by means of hypnosis (or its historical antecedent, mesmerism)? The mysterious power of hypnotic coercion has moreover been absorbed into the popular consciousness, as reflected by the issue frequently featuring in fiction. For a single telling example, note the words of the villainous Baron Gruner to Sherlock Holmes: “You have heard of post-hypnotic suggestion, Mr Holmes? Well you will see how it works, for a man of personality can use hypnotism without any vulgar passes or tomfoolery.” The notoriety of hypnotic techniques is no doubt in no small measure due to accounts of sexual coercion of hypnotized subjects, as evidenced in the 1976 New South Wales Supreme Court case of R v Palmer, where a lay hypnotist was convicted on charges of rape, attempted rape and indecent assault. Evidence that this threat has been regarded as real by the courts even though no such case has arisen in South African law emerges from the declaring undesirable under the Publications and Entertainment Act 26 of 1963 of the magazine “True Men” for the publication of an article entitled “Amateur Hypnotism … Ruins 50 Girls a Week”. Gibson notes that “the idea that one person can dominate the will of another by occult or arcane means” goes back to the dawn of history, and is founded in pre-scientific ideas about magic and witchcraft. It has furtherbeen suggested by Gibson that in the present day, “hypnosis” has become a construct which has replaced “witchcraft” in the context of an accused performing criminal acts through an agent by means of coercion (perhaps this statement applies to both Anglo-American and European systems, less so to SA where witchcraft is as yet still a significant issue). This process has been aided by the proliferation of myths which have come to be established surrounding the notion of hypnosis in the public mind. The myths include: that hypnosis is done to the subject (as opposed to being self-induced); that it involves a battle of wills, with the stronger party (the Svengali-like hypnotist) winning over the weaker one; that the hypnotist must be a charismatic person; that hypnotic subjects are foolish or weak; that the hypnotist has unlimited power over the subject; that hypnosis is equivalent to sleep or loss of consciousness; that hypnosis is dangerous and destructive of the will; that hypnosis is a cure-all; that hypnosis confers special powers on subjects; that the hypnotic trance is irreversible; that hypnosis is fakery or sham behaviour; that hypnosis is a “truth serum” and that there are people who cannot be hypnotized. The law is not immune to these myths, and hypnotism has yet to be formally categorized in the general principles of criminal law. The search for a clear and rational explanation of the nature of hypnosis has further not beenassisted by the differing theories which have been offered in this regard. As will be indicated later, the courts (rather unsurprisingly) have also found difficulty with the concept.