The Menendez brothers prey on empathy Lack of discernment makes us gullible

The facts of the case are well-established: Erik confessed to his therapist, Dr Jerome Oziel, that he and Lyle had killed their father, José, because he was domineering, and their mother, Kitty, because she was hopelessly depressed. Neither brother mentioned sexual abuse to Oziel. Nor did they mention it to their first lawyer, Robert Shapiro.

The brothers’ abuse claims only emerged after they met Erik’s second lawyer, Leslie Abramson, the following year. She started building a self-defence case, arguing the brothers had acted after confronting their parents about the sexual abuse, when their father threatened them. This was a tough strategy in part because there was no good evidence that the brothers had been in imminent danger requiring self-defence — in fact, the murder was clearly premeditated, with the brothers forging the paperwork to purchase two shotguns before the shootings. Nor was there any good evidence they’d been sexually abused.

By contrast, there was ample evidence of the brothers’ greed. A year before the murders, they were caught committing a string of burglaries in their Calabasas neighbourhood, stealing around $100,000 worth of goods. After the killings, they went on an extravagant spending spree, buying Rolexes, Porsches, and even a buffalo wings restaurant.

In order to counter this image of cruelty and greed, the brothers’ lawyers had to get creative. They tried to portray the brothers as sweet and naïve kids, dressing them in boyish jumpers. Lansing kept referring to them in court as “the children”, and Abramson would often maternally place her arm round Erik, and pick lint off his sweater. Her behaviour was so conspicuous the judge reprimanded her for it.

The lawyers also drew on a wealth of abuse-related pseudoscience. They received diagnostic advice from Paul Mones, a lawyer with no clinical training. Eight of the things the brothers claimed their father had done to them, such as poking them with pencils during rape, are mentioned in case studies in Mones’s book, When a Child Kills. Two witnesses said that the brothers had studied Mones’s book in jail.

Ultimately, the jury was unable to reach a verdict, so a second trial was held. Since the lawyers had failed to show during the first trial that Lyle and Erik’s supposed sexual abuse gave them a valid self-defence argument, testimony regarding the abuse allegations was not permitted in the second trial. Under these conditions, the second jury reached a unanimous decision that Lyle and Erik were guilty of murder, and the brothers were jailed for life with no possibility of parole. In other words, justice was served. The brothers had planned their parents’ murder, killed them while they were watching TV, and then celebrated by lavishly spending their money.

And yet, hundreds of thousands of people are now treating the Menendez brothers as victims. This isn’t the first time something like this has happened. In 2015, the Netflix documentary Making a Murderer convinced vast numbers of people that the rapist and murderer Steven Avery was an innocent victim of corrupt police. A petition to release him was signed by more than half-a-million people despite the significant evidence against him.

Why are people so easily convinced that cold-blooded killers are victims? It can’t simply be blamed on stupidity — after all, many gullible campaigns have in the past been led by respected intellectuals. In 1977, the novelist Norman Mailer was struck by the writing ability of the convicted killer Jack Henry Abbott, and, convinced he was reformed, called for his release. His wish was granted, and Abbott used his newfound freedom to stab a waiter dead.

A few years later, the Nobel Prize-winning novelists Günter Grass and Elfriede Jelinek, touched by the writings of rapist and murderer Jack Unterweger, petitioned for his release. Once out of prison, he celebrated by raping and murdering nine more women. The delusions of these authors, as well as those of the viewers of Making A Murderer, were born not from stupidity, but from empathy — or the tendency to try to feel what others feel.

The Menendez brothers, who had both written works of fiction, were masters of evoking both empathy and sympathy. Erik was an aspiring actor and Lyle admitted to his biographer Norma Novelli that he practiced crying convincingly. In the first trial, the brothers made heavy use of their acting and storytelling abilities, relating vivid tales of abuse while weeping with cinematic gravitas.

Curiously, during the first trial, the brothers’ claims proved more persuasive to women than men. Erik’s trial resulted in a hung jury, with all six of the male jurors pressing for a murder conviction, and all six female jurors pressing for a lesser conviction because they believed the brothers’ claims of abuse. Today, too, women seem to disproportionally trust the brothers’ story; most of the names on the petition to free the brothers are female.

One reason for this gender disparity may be that women, like great novelists, tend to be more empathic than the average man. A substantial number of studies have found that in mock sexual abuse trials, female jurors tend to be significantly more empathetic toward the alleged victims, lending greater weight to their expressed emotions and personal testimony when deciding on the verdict. Another study found that in a Menendez-style mock court trial in which the defendant was charged with killing their allegedly abusive father, female jurors were more likely to believe the defendants’ claims of abuse and consider them innocent of murder.

The same crocodile tears that won over female jurors in Erik’s first trial have now gone viral on social media, convincing many more of the Menendez brothers’ innocence. Since 2020, footage of the brothers’ courtroom acting has been frequently sliced into snippets, set to heartfelt music, and posted on TikTok. And yet social media alone is not to blame: the world is not just technologically different from the era when Lyle and Erik were convicted, it’s also culturally different. And culture has been pivotal in spreading falsehoods about the Menendez case.

To understand how culture has changed, we need to look again at the empathy gender gap. This difference doesn’t just affect the verdicts of juries. It likely also impacts the entire field of psychology, which in the 20th century was dominated by men, but in the 21st has increasingly become dominated by women. Between 2011 and 2021, the share of registered female psychologists in the US increased from 61% to 69%, and in the UK, women now make up more than three-quarters of all registered psychologists. This has correlated with a change in the way psychology is conducted, from the old masculine approach of objectifying humans as specimens to be studied with cold and often cruel detachment, to a more feminine, empathic approach that centres the feelings and lived experience of those under examination, even if this conflicts with objective reality.

This matters because the social sciences shape mainstream culture, defining which human behaviours are normal and healthy, and which are aberrations to be cured. In a patriarchal, Islamist country like Iran, for instance, female immodesty is often considered a mental illness, and a mental health clinic will soon open to “treat” women who refuse to wear a hijab. Meanwhile, the West’s matriarchal field of psychology has normalised empathy, defining a lack of it as a problem to be fixed. This helps to explain why the last two decades have seen a surge in the use of the word “empathy” in published books.

One consequence of Western society’s idolisation of empathy is that certain myths have been allowed to flourish because they’re empathogenic: they foster empathy. The most important of these myths is “blank-slatism”, which sees people as “blank slates” who have little to no inherent nature, and are shaped largely by culture. In this view, people only become criminals due to negative experiences such as abuse or poverty, so a core part of any criminal case becomes identifying the trauma that produced the criminal. This is a seductive view for social scientists because it means anyone can be “fixed” through exposure to the right environment. It also encourages empathy because it’s easier and more rational to empathise with others if we’re all fundamentally the same person, differentiated only by experience.

The problem is, we’re not all the same. Blank-slatism has been resoundingly disproven by decades of twin studies. It can also be disproven by common sense. If people become criminals only because of experiences like abuse or poverty, then everyone who was poor or abused would become a criminal, yet the overwhelming majority don’t — and many who are neither poor nor abused do. In fact, the majority of crime is committed by a small minority of repeat offenders, suggesting personality plays a key role.

Since we all have distinct personalities, our minds are more alien to each other than we might assume. This makes empathy an inaccurate way to understand or predict the behaviour of others. A recent study found that, while women do tend to be more empathetic than men, they’re no better at inferring other people’s mental states. And while empathy is useful for some things, such as forming personal connections with others, it is a social guide, not a moral or judicial one. Nowadays, though, people are being encouraged to use empathy as a moral guide, which is dangerously delusional.

A chief reason empathy misleads us is that we never empathise with people, only with the people we think they are. Sometimes we fallaciously use ourselves as the model for others, presuming our own feelings and motivations are theirs. More dangerously still, we begin to idealise them, clouding our better judgement.

When we start identifying too strongly with another person, we will often go to great lengths to defend our idealised image of them. For instance, Lyle and Erik’s supporters sometimes argue that the brothers’ lavish spending spree with their murdered parents’ money was further evidence they were traumatised, because it showed they were trying to cope through “retail therapy”. As if the natural response to a lifetime of sexual abuse is to purchase a buffalo wings restaurant.

Ultimately, empathy is a form of imagination. Cooper Koch, who plays Erik Menendez in Monsters, became convinced the brothers were telling the truth, and even visited them in prison. And yet although it was Koch’s job to put himself in Erik’s shoes, he never actually empathised with Erik; only with the idealised version of Erik he’d decided to portray.

Despite deluding so many people, empathy rarely gets any pushback in the West today. This is because there’s an assumption that empathy is key to compassion, and opposing compassion is a good way to be ostracised from polite society. However, not only is empathy not required to be compassionate, but it can also be an obstacle to it. In his 2016 book, Against Empathy, the psychologist Paul Bloom compares empathy to a spotlight: we only shine it on a few people at a time, and whenever we do, we lose sight of, and concern for, everyone else.

But empathy doesn’t just reduce our concern for others, it can also make us spiteful toward them if we feel they pose a threat to the object of our empathy. In one study, participants were told of a contest between two students for a small cash prize. Those who empathised strongly with the poorer contestant acted cruelly towards her rival — even though her rival was not responsible for her financial distress. Empathy-driven spite can also frequently be seen in the real world, such as in the recent case of UnitedHealthcare CEO Brian Thompson, whose murder was widely celebrated on social media due to his company’s history of denying health insurance claims. In such cases those who empathise with one side’s pain often wish to inflict even greater pain on the other. One might even say empathy is a major cause of sadism in the world.

It should come as no surprise, then, that many mock trial studies that find female jurors are more empathetic toward the alleged abuse victim also find they’re more punitive toward the alleged abuser, demanding significantly harsher sentences. We see this same empathic spite in the online Menendez discourse, most notably in the fact that many people who believe Lyle and Erik are victims also claim they were right to murder their parents. Some TikTok clips even celebrate the shooting. Predictably, TikTok is now also filled with clips attacking Pamela Bozanich, the prosecutor in the first trial. One clip, which so far has more than 120,000 likes, shows photographs of Bozanich as a young woman and then as an older one, and states: “This is how you age when you’re a cunt.”

Not only does empathy make people spiteful, it also makes them unjust. In one study, participants watched an interview with a fictitious, terminally-ill girl called Sheri, and were then asked whether they would move her up the waiting list to receive end-of-life care — even though this would disadvantage other terminally-ill kids who needed the help more. Of those who were told to decide objectively, one-third opted to move Sheri up the list; of those who’d been asked explicitly to empathise with her, three-quarters did. Crucially, the participants admitted their decision to favour Sheri was unfair. Their empathy overruled their principles.

This has also been apparent in the Menendez case. Not only did some of Lyle’s friends, including his ex-girlfriend Traci Baker, agree to lie for him in court, but, recently, web users are now knowingly lying on their behalf. A Wikipedia editor called “Limitlessyou” started adding false and misleading claims on the “Lyle and Erik Menendez” page to portray the brothers as victims. One claim was that Erik’s prosecutor, Lester Kuriyama, theorised that Erik’s alleged homosexuality suggested José’s alleged molestation was consensual. The LA Times article that Limitlessyou cited for this claim included no such quote, because the quote was a fabrication; in reality, Kuriyama had theorised that Erik’s supposed homosexuality may have been the real cause of friction between Erik and José. Limitlessyou’s dishonest edit seems to have been intended to portray Kuriyama as a horrid person.

The ease with which people who empathise with Lyle and Erik can be inspired to lie for them is important because it casts doubt on two pieces of evidence recently submitted to exonerate the brothers. The first of these is a recently “discovered” letter, supposedly written by Erik to his cousin Andy Cano a year before the murders, in which Erik alludes to being sexually abused. The second is a sworn affidavit by Roy Rossello — a former member of Menudo, a boy band once managed by José Menendez — in which Rossello alleges he was raped by Jose. This evidence has not yet been authenticated, and yet it was cited by the former District Attorney for Los Angeles County, George Gascón, to support his push for a resentencing hearing to free the brothers.

As a former prosecutor, Gascón should be more discerning of a criminal case than the average TikToker or Hollywood celebrity, and yet he appears to be no less gullible. His political history suggests he’s embraced the same idealistic blank-slatism that characterises our age of empathy: criminals are not born but made, therefore criminals are victims and require understanding, not condemnation. He has spent his career trying to soften California’s approach to crime, introducing policies based on a fictional model of humanity. In 2011, he replaced Kamala Harris as district attorney of San Francisco, a position he held until 2019. During his two terms, San Francisco prosecutors filed criminal charges in less than half of cases presented by city police, and violent crime, which had been decreasing, increased by 15% while property crimes like vehicle break-ins increased by almost 50%.

In the wake of the 2020 George Floyd race riots, having pledged to tackle “systemic racism”, Gascón then became district attorney of America’s most populous county, Los Angeles. His approach to crime in LA was even laxer than in San Francisco, and within three years of his arrival, shoplifting had increased by a staggering 133%. He soon faced a public backlash, including from his own prosecutors, and last month was finally voted out of office. Ironically, the push to unseat him was led by victims of crime, who’d been left in the dark when Gascón chose to shine his empathy spotlight on criminals. It goes to show that when idealistic empathy becomes legislation, the world becomes more dangerous.

Despite Gascón being evicted from office, the Menendez brothers could still be freed, due to a habeas corpus petition they filed last year, which is backed by huge public pressure. For those of us who value objectivity, the best we can do is to learn, and share, the lesson of the Menendez fiasco: that empathy doesn’t work as a moral or judicial guide. Far from making us kinder people, empathy makes us gullible, biased, dishonest, cruel, and unjust. If we wish to know who’s right and wrong, guilty and innocent, we should spend less time trying to inhabit other people’s heads, and make more use of our own.

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