The InfoCatólica web echoes the first doctoral thesis on Cults

The InfoCatólica web echoes the first doctoral thesis on Cults.

Original article (spanish)

Written by: Luis Santamaría, el 2.06.17 a las 8:55 AM


 Carlos Bardavío, author of the first doctoral thesis in criminal law on sects

The defense of the doctoral thesis of the lawyer Carlos Bardavío Antón (in the photo, on the left), entitled "Las sectas en Derecho penal" (Cults in Criminal Law), which is the first doctoral thesis on the phenomenology of cults in the field of criminal law in Spain, took place on February 10 at the Faculty of Law of the University of Seville.

Carlos Bardavío, a practicing lawyer for 10 years and managing partner of Bardavío Abogados, was awarded the degree of Doctor of Law with the maximum qualification of outstanding cum laude unanimously by the thesis tribunal, chaired by Esteban Mestre (professor at the University of Alcalá de Henares) and also formed by Myriam Herrera (University of Seville), Elena Torres (University of Almería), José Manuel Ríos (University of Cádiz) and Edgar Iván Colina (University of Seville).


Outreach and assistance

The doctoral thesis was supervised by Miguel Polaino Navarrete (in the photo, on the right), Professor Emeritus of Criminal Law at the University of Seville, a highly prestigious criminal lawyer in Spain and Latin America. According to the new doctor, his work is expected to be published soon by a legal publisher, probably in two volumes. Each volume will contain more than 400 pages of studies on the philosophy of morality, psychology, psychiatry, sociology and legal-criminal dogmatics on the extensive subject of sects.

Following this publication, Carlos Bardavío has prepared another work on sects in criminal law for the general public, where the main proposals of his doctoral thesis are contained in a simpler form, so that any layman who is not familiar with criminal legal terminology can understand the complex phenomenology of criminal sects.

Bardavío has been collaborating for some time with institutions dedicated to the sectarian phenomenon such as the Red Iberoamericana de Estudio de las Sectas (RIES) and the Red de Prevención del Sectarismo y Abuso de la Debilidad (RedUNE), as well as advising directly in his office Bardavío Abogados (Madrid) to victims related to the harm caused by certain sects. 


Crime of coercive persuasion

The main novelty of the doctoral thesis is the proposal of typification in the Spanish Penal Code of a crime of coercive persuasion, which to date does not exist clearly differentiated in Spanish legislation, and hardly anywhere else in the world. Carlos Bardavío's proposal is based on clear influences of the so-called normative functionalism of the German jurist Günther Jakobs, and of the sociology of systems theory of the also German Niklas Luhmann.
The doctoral thesis also carries out an exhaustive study of the so-called "socialization deficits" suffered in various social groups such as sects, with surprising conclusions on criminal dynamics and culpability.


The centrality of conscience

The jurist starts from the premise that the human being, from birth, "is thrown in time and space into the world of life and, progressively, into a context through which he begins his process of socialization", which can have its own or other people's deficiencies. In addition, the opposition between individual morality and that of the system can give rise to "an inevitable conflict in the conscience of the subject that can lead him to commit certain crimes under a moral justification".

In this context, "in criminal sects there are several special cases in which the subjects who commit crimes for some moral justification, or are free or have impaired certain inherent and social capacities".

Bardavío's thesis "tries to give an answer to the penal treatment in both perspectives and to which crime belongs the conduct traditionally denounced by many followers of sects or religious groups, the coercive persuasion or mental manipulation, and if a new and special combative legislation is needed".

Throughout his research, the author studies the phenomenology of sects "because they represent a paradigmatic case of contingency of perpetrators of conscience, by conviction and enemies (terrorists)". When it comes to the former -authors of conscience-, there is a tendency to diminish or exempt responsibility, contrary to what happens with the perpetrator by conviction and with the enemy.

In all cases, Carlos Bardavío has observed that "a common element sometimes underlies: a certain deficit of socialization", which is generally "attributable to the freedom of the subject, but can sometimes be attributed to a third party or even to the norm itself and the social system".


When coercion comes into play

If we talk about sects, in addition to the triple typology of the authorship of crimes, we must also take into account the perspective of "coerced or deceived conduct, that is, that which is usually reported by followers in relation to particular crimes such as crimes against life or inducement to suicide, fraud, sexual abuse and professional intrusion, among other crimes".

In his thesis, the new doctor notes the lack of interest in adequately protecting an inherent right of the individual: the right to the formation of conscience, "which would be the basis for the creation of a new type of criminal law specifically designed to combat not only the phenomenology of criminal sects, but also any group that attacks people's freedom to act in general".

As a characteristic of the sects, Carlos Bardavío refers to "the use of persuasion techniques or the creation of socialization deficits attributable to a third party that are normatively similar to a modality of the crime of coercion".
His practical proposal, then, is that of "a specifically preventive legislation with the typification of a crime of coercive persuasion", but in which he introduces concepts of Luhmann's philosophy with the aim of "criminalizing those conducts that, without supposing a clear attack against other goods (for example against the psychic integrity, life or patrimony), can in advance prevent and sanction attacks against the capacity of freedom of will".

 To learn more:

- Carlos Bardavío, "What is a criminal cult and how to cambat them?, InfoCatólica, 28/06/16 (spanish)


About Bardavío Abogados

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