Criminal Law
Abortion; Criminally Causing Death of Unborn Child
Anti-Littering Statutes
Anti-Loitering Statutes
Anti-Noise Statues
Arraignment and Nonjury Criminal Proceedings Held In Prison Chapel Violated the Establishment Clause, But Was Harmless Error; the Right to a Public Trial Was Not Violated by Having the Criminal Proceedings Held In a Prison Facility
Arrest; False Arrest; Resisting and Obstructing an Officer
Arson; Malicious Damage or Destruction of Church
Assisted Suicide
Astrology, Clairvoyance, Fortune Telling, Mindreading, Palmistry, and Phrenology
Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA)
Bigamy
Blacklisting
Blasphemy
Burglary
Capital Punishment
Charge to Jury
Child Abuse and Neglect Reporting Acts
Child Marriage
Competency to Stand Trial; Effect of Unusual Religious Beliefs
Confession
Continuance
Controlled Substances Act
Curfew Ordinances
Defacement Statute
Defendant’s Right to be Present
Disorderly Conduct and Disturbing the Peace
DNA Typing and Testing
Domestic Violence
Double Jeopardy
DUI (Driving Under the Influence of Alcohol)
Embezzlement
Evidence and Testimony
Failure of Parent to Seek Medical Care For Minor
Federal Election Campaign Act
Fruit of the Poisonous Tree
Furlough
Grand Jury; Presentation on Day Observed by Defendant as a Religious Holiday
Hate Crime
Head Covering in Courtroom by Defendant and Spectators
Insurance Fraud
Intimidation
Judge, Recusal by
Judges, Religious Bias of
Judicial Misconduct
Jurors and Jury Deliberations
Lewdness; Dancing Nude at “Anti-Christmas” Protest
Malicious Prosecution
Marijuana, Mushrooms, Hoasca and Other Psychotrpic Substances
Mental Defect Based on Religious Belief
Military Lands; Entry Upon
Motor Vehicles; Stop, Search and Seizure Based on Display of Religious Symbols and Decals
Name
Noise Ordinance
Order of Protection; Violation of; Parent, Ordered to Stay Away From Family, Present in Same Church
Parent-Child Testimonial Privilege
Parole and Probation
Polygamy
Possession of Body Parts of Bald and Golden Eagles and Other Birds
Prayer by Court or During Jury Proceedings
Presentence Report; Discovery of by Third Parties
Priest-Penitent Privilege
Prior Bad Acts
Prisons and Prison Inmates
Profane Language
Prosecutor’s and Defense Counsel's Remarks During Closing Argument and Examination of Witnesses
Proximity to House of Worship
Restitution
Satanism; Evidence of … in Criminal Case
Search and Seizure
Seditious Conspiracy; Soliciting, Commanding, Inducing Another to Commit Crime of Violence
Sentencing; Enhancement of Sentencing or Crime
Service of Process on the Sabbath
Sex Crimes
Sikhs
Sodomy
Spiritual Healing As Defense in Prosecution For Negligent Homicide
Theft of Church Property by Priest
Traffic Violations By Religious Protesters
Tresspass
Victim Impact Statement
Violence Against Women Act/Gender Motivated Violence Act
Zoning Ordinance; Violation of

Abortion; Criminally Causing Death of Unborn Child

Court holds constitutional provisions of Ohio criminal law that (1) provided that “no person, while operating or participating in the operation of a motor vehicle . . . shall recklessly cause the unlawful termination of another’s pregnancy”, (2) defined the “unlawful termination of another’s pregnancy” as “causing the death of an unborn . . . who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues . . . until live birth occurs”, (3) provided that the definition of unlawful termination of another’s pregnancy is not to be applied to consensual abortions, and (4) exempted pregnant women from prosecution; provisions did not violate equal protection, due process, or the establishment clause of the First Amendment; defendant’s sentence of one year did not constitute cruel and inhuman punishment    Case # 815 (Ohio Ct. App.).

In Texas, a person who intentionally or knowingly causes the death of a woman and her unborn child, at any stage of gestation, beginning from fertilization, commits capital murder. Defendant argued that this had the effect of endorsing religion in violation of the establishment clauses of the U.S. and Texas constitutions as it was based solely upon a religious belief that life begins at conception. The Texas Court of Appeals disagreed. The statutory scheme had the secular purpose of protecting mothers and their unborn children throughout the mother’s pregnancy, its principal or primary effect neither advanced nor inhibited religion, and it did not foster excessive government entanglement with religion. A statute is not automatically rendered unconstitutional simply because it advances ideals that harmonize with religious ideals. The Court also rejected defendant’s argument that the statutory scheme under challenge violated the Eighth Amendment. See court’s opinion for details   Case # 3368 (Tex. Ct. App.)

See also Coleman v. DeWitt, 282 F.3d 908 (6th Cir. 2002), cert. denied, 536 U.S. 914, 122 S. Ct. 2379, 153 L. Ed.2d 197 (2002), upholding the conviction, and 9 year sentence of petitioner under Ohio Rev. Code § 2903.04 for involuntary manslaughter after having kicked a pregnant woman in the abdomen and causing her to suffer a miscarriage. Court rejects, inter alia, that §  2903.04 was unconstitutional because it did not require proof of the terminated fetus's viability.

Anti-Littering Statutes

See Anti-Littering Statutes

Anti-Loitering Statutes

See Anti-Loitering Statutes

Anti-Noise Statues

See Anti-Noise Statutes

Arraignment and Nonjury Criminal Proceedings Held In Prison Chapel Violated the Establishment Clause, But Was Harmless Error; the Right to a Public Trial Was Not Violated by Having the Criminal Proceedings Held In a Prison Facility

While in state prison, defendant assaulted a prison official and was indicted on two counts of assault on a public servant. For security reasons, prisoners were not transported to the county courthouse 36 miles away for arraignments and nonjury trials. Therefore, defendant’s arraignment took place in the prison chapel, which had been designated as a “branch courthouse.” Learning that the next hearing in his case would also be held in the prison chapel – which had Bibles, a stained glass window with a cross and a representation of the Ten Commandments – defendant moved to transfer the proceedings to a public courthouse arguing that having hearings at the prison deprived him of his right to a public trial and that having them in a chapel violated, inter alia, the First Amendment. Upon denial of the motion, defendant voluntarily pleaded guilty and was sentenced to six years in prison. In affirming defendant’s conviction, the Texas Court of Appeals held: (1) Defendant’s right to a public trial guaranteed by the Sixth Amendment to the U.S. Constitution, by Tex. Const. Art. I, § 10 and by the Tex. Code of Criminal Procedure was not violated. Nor was the Equal Protection Clause violated by conducting nonjury proceedings involving inmates at the prison, instead of in a public courtroom. See Part I of the Court’s opinion as to the differences between public access to a criminal trial held in a prison as opposed to one held in an ordinary courthouse. See Part III for the court’s legal analysis. The court observed that defendant did not claim that any member of the public was affirmatively excluded from attending his court proceeding and there was no evidence that anyone was dissuaded from attempting to attend defendant’s trial because of its location. Rather, defendant contended that court proceedings conducted at a prison are, by definition, not open to the public. (2) Applying a reasonable observer test, the Court held that use of the prison chapel violated the First Amendment’s Establishment Clause. This was not to say that the state cannot use a prison facility for multiple purposes, including religious services and judicial functions. The problem in this instance was that the chapel was unambiguously a Christian worship facility and a reasonable observer would perceive that a message supporting Christianity was being sent to those in attendance. (3) Although holding the proceedings in the prison chapel was error, it was not a “structural error” such as the total deprivation of the right to counsel or the denial of the right to a public trial. Therefore the “procedural” error of holding the proceedings in the prison chapel was subject to harm analysis. Under such an analysis, when a defendant pleads guilty to the offense charged, the court must determine whether the procedural error contributed to defendant’s decision to plead guilty. Here, there was no indication that holding court in the chapel contributed to the decision to plead guilty and there was nothing to show that defendant would have pleaded not guilty if the court proceeding had been held someplace other than the chapel   Case # 4239 (Tex. Ct. App.)

Arrest; False Arrest; Resisting and Obstructing an Officer

Members of an advocacy association, Religious Witness with Homeless People (RWHP), conducted protest at the San Francisco Presidio National Park, a traditional public forum, to oppose a plan by the National Park Service to tear down former housing units to restore the area to its natural environment. RWHP advocated converting the units instead into housing for the poor and homeless. Demonstrators were refused permission to conduct a march through the Presidio unless they promised not to engage in civil disobedience. The leaders of the march refused to grant such assurance, and demonstrators unfurled banners, set up a portable public address system, and began a prayer service. The police promptly informed the demonstrators that if they did not move to a designated “First Amendment area” located 150 to 175 yards away and marked out with a circle of orange traffic cones they would be arrested. Some of the protestors complied and moved off the lawn, either to the designated area or toward a parking lot. The remaining protestors were arrested. They refused to move to the designated “First Amendment area” because the focus of their protest was not an audience of third persons but the Visitor Center building, which served for them as a visible symbol of the U.S. Park Service against which they were struggling on behalf of the poor and homeless. They therefore did not wish to be removed to a location which was not in close proximity to the Center and which did not have an unobstructed view of the focus of their protest. Most of the persons arrested were convicted of demonstrating without a permit in violation of 36 C.F.R. § 2.51, but the convictions were reversed on the ground that the arrests violated the demonstrators’ First Amendment rights. See United States v. Baugh, 187 F.3d 1037 (9th Cir. 1999), holding that it was constitutionally impermissible to require RWHP to promise not to engage in civil disobedience in return for a permit to march through the Park. In the instant case, four of the arrested protestors commenced a Bivens action against members of the Park Police and their employer, the United States, for violation of their constitutional rights. Plaintiffs also sued for false arrest under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. (1) The first constitutional violation alleged by the plaintiffs was the denial of a march permit without a concomitant promise on plaintiffs’ part not to engage in civil disobedience. Although United States v. Baugh, supra, held it was constitutionally impermissible to require RWHP, which had engaged in unlawful activity during prior demonstrations, to promise not to engage in civil disobedience in return for a permit, before Baugh the contours of the constitutional right violated by defendants’ denial of the permit were not sufficiently clear that a reasonable official would understand that what he was doing violated plaintiffs’ rights. Defendants were therefore entitled to qualified immunity. (2) The second constitutional violation alleged by the plaintiffs was dispersal of the prayer service after most of the demonstrators refused to remove 150 to 175 yards away to the designated “First Amendment area.” Under the facts, the relegation of the prayer service to the “First Amendment area” burdened plaintiffs’ speech to a substantially greater degree than necessary to achieve the Park Service’s substantial interest in ensuring that plaintiffs’ service was conducted so as not to impede access to the Visitor Center or use of the Presidio’s roadways. Where, as here, location was an essential part of the message sought to be conveyed by plaintiffs, the court had to consider the degree of distortion of the message conveyed that was effected by the insistence that plaintiffs remove themselves to the designated “First Amendment area.” The Court concluded that plaintiffs’ speech was burdened to a substantially greater degree than was needed to achieve the government’s purposes. One could see the Visitor Center from the “First Amendment area” but the view was at an oblique angle rather than head-on, the sight line was partially obstructed by trees, and the view was from a distance equivalent to two city blocks. In addition, the Park Police testified that the protestors, had they asked, would have been allowed to use a much closer parking lot just across the street, directly in front of the Visitor Center. That obvious alternative would have distorted RWHP’s act of witnessing considerably less, as the connection between the Visitor Center and the protest activity would have been maintained. However, defendants were once again entitled to qualified immunity because their actions did not, at the time they acted, violate a clearly established constitutional right of which a reasonable person would have known. To qualify as a permissible restriction on speech in a public forum, a regulation must be, content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the message. Cases prior to United States v. Griefen, 200 F.3d 1256 (9th Cir. 2000), applying said standard emphasized the communication of a message to an audience, rather than the content-related impact of a chosen location, and took a quantitative rather than qualitative approach to the narrow-tailoring inquiry. Although defendants were wrong in their assumption that terminating the prayer service was a narrowly tailored response to the threatened governmental interests, their error was not unreasonable given that law regarding free speech rights where location rather than audience was the essential part of the message was not clearly established in March 1997. As to plaintiffs’ suit under FTCA, defendants unsuccessfully argued that the court lacked subject matter jurisdiction because the United States had not waived its sovereign immunity in lawsuits involving “discretionary function.” Federal officials do not possess discretion to violate constitutional rights. However, the claim under the FTCA was also dismissed. Given the conclusion that defendants’ permit denial was not a violation of clearly established law at the time plaintiffs were arrested for criminal trespass, the officers had reasonable cause to believe the arrest was lawful   Case # 1699N (9th Cir.)

City planned to remove a 2700 pound monument of the Ten Commandments from a public park. Defendants, believed that the city’s plan to place the monument on private church property without the city receiving compensation violated, Article XII, Section 4 of the Idaho Constitution, the Establishment Clause of the First Amendment to the U.S. Constitution., and provisions of the city’s Municipal Code relating to disposal of city property. On the day of the monument’s removal, defendants were protesting the monuments removal within the section of the park surrounding the monument. When equipment arrived to remove the monument, a police officer informed defendants that the park director had closed the section of the park surrounding the monument and the section would be reopened after the monument’s removal. When defendants refused to move they were arrested and charged with resisting and obstructing an officer. Held: Regardless of whether city officials violated the Idaho Constitution, the U.S. Constitution, and the Municipal Code by deciding to move the monument to private property without receiving compensation, defendants were not entitled to resist and obstruct the police officer, who was carrying out a lawful duty. Thus, defendants’ conviction for resisting and obstructing an officer was affirmed. Court discusses, inter alia, when one has a lawful right to resist arrest and under what circumstances it can be said that a police officer is not carrying out a lawful duty   Case # 2519 (Idaho Ct. App.)

Arson; Malicious Damage or Destruction of Church

See Arson

 Assisted Suicide

Colorado statute criminalizing assisted suicide did not violate plaintiff’s rights under the Free Exercise Clause of the First Amendment    Case # 814 (Colo. Ct. App.)

Astrology, Clairvoyance, Fortune Telling, Mindreading, Palmistry, and Phrenology

Ordinance making it unlawful to advertise or engage in business or profession of clairvoyancy, palmistry, phrenology, mind reading, or fortune telling held invalid    Case # 218 (8th Cir.)

Regulation banning fortune telling, phrenology, horoscope concessions at state fair is unconstitutional    Case # 174 (N.D. Ohio)

City ban on fortune telling, palmistry, and reading futures “and the like” held unconstitutional on free speech and due process grounds; chilling effect of the ordinance gave plaintiffs standing although plaintiffs had never been prosecuted or threatened with prosecution under the ordinance    Case # 690 (W.D. La.). See also Case # 3371 (M.D. La.) (Ordinance prohibiting soothsaying, fortune telling, palm reading, clairvoyance, crystal ball gazing, mind reading, card reading and the like for a fee violated the First Amendment right to free speech and was also unconstitutionally vague. Court rejects arguments that plaintiff lacked standing because its business never actually operated within the parish. Court also rejects argument that the constitutional challenge was not ripe for adjudication because the ordinance had not actually been enforced against plaintiff. The Sheriff threatened to enforce the Ordinance if plaintiff opened its business) 

Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA)

See Native Americans, “Possession of Body Parts of Bald and Golden Eagles and Other Birds

Bigamy

See Polygamy

Blacklisting

Plaintiff, the Director of Religious Education and Liturgy, at a parish church located on the campus of the University of Notre Dame, was discharged. Plaintiffs claims against the parish, diocese, and church officials for, inter alia, breach of contract, defamation, fraud, constructive fraud, and equitable estoppel, were eventually dismissed. While the suit was pending, plaintiff applied for the job of Acting Director for Notre Dame’s Program for Church Leaders. Despite being unanimously recommended for the position by the search committee, the University president rejected plaintiff’s candidacy. Prior to rejecting plaintiff’s candidacy, the University president had received communications concerning plaintiff from the pastor who had discharged plaintiff from her prior position and from the bishop of the local diocese truthfully informing the University President that plaintiff was suing them over her termination. Plaintiff amended her prior complaint against the pastor who fired her and the diocese, to allege claims for (1) tortious interference with a business relationship by interfering with Notre Dame’s hiring process and (2) illegal blacklisting. These claims were initially dismissed for lack of subject matter jurisdiction. The Court of Appeals held that although the University was not a part of the Diocese’s organizational hierarchy, under ecclesiastical law and doctrine it was required, as a Catholic University, to be in “close communion” with the Bishop and other Diocese officials and the First Amendment barred the courts from becoming involved in what was an ecclesiastical matter. The Indiana Supreme Court affirmed the dismissal of the tortious interference and illegal blacklisting claims. Case # 1125 (Ind. Ct. App.). However, the Supreme Court concluded that the trial court had subject matter jurisdiction, but that the defendants were entitled to judgment on the merits. A court with general authority to hear matters like employment disputes is not ousted of subject matter or personal jurisdiction simply because the defendants plead a religious defense. After a discussion of the blacklisting statute, both in its 1995 amended form and in its pre-1995 form, which applied in the instant case, the court awarded summary judgment dismissing the blacklisting claim. Summary judgment was also awarded dismissing the claim for tortious interference. A church has a First Amendment right to autonomy in making decisions regarding its own internal affairs, including matters of faith, doctrine, and internal governance. The Indiana Supreme Court explores the extent to which the church autonomy doctrine was affected by the U.S. Supreme Court decision in Employment Div. v. Smith and to what extent church directives such as Papal directives foreclose civil court inquiry into church decisions  Case # 1493 (Ind. 2003)

Blasphemy

See Profane Languge

Burglary

In a case of first impression in Indiana, the state Court of Appeals, joining other courts that have considered comparable challenges, holds that the Indiana Code section enhancing burglary from a Class C felony to a Class B felony if the building or structure burgled is a structure used for religious worship does not violate either the Establishment Clause of the First Amendment or Ind. Const. Art. 1, § 4   Case # 4240 (Ind. Ct. App.)

The fact that the criminal statutes governing burglary and petit larceny provided penalties twice as harsh for crimes committed in places of worship did not violate the First Amendment establishment clause   Case # 2598 (Miss. Ct. App.)

Capital Punishment

Defendant was sentenced to death. California Supreme Court holds: (1) Given the extensive inquiry into the prospective jurors’ views on the death penalty, including religious views, the trial court was not required to place a question on religious denominational preference or affiliation on the jury questionnaire to be used as a preliminary indication of pro- or anti-death-penalty bias. (2) Under the circumstances the prosecution’s questioning of a witness concerning defendant’s interest in Satanism was not prejudicial. (3) Under the facts, a juror bringing a Bible into the jury room and reading from First Corinthians, ch. 5, vv. 1-5 and ch. 6, vv. 1-3, and Romans, ch. 13, vv. 1-6 was not prejudicial. (4) The California Supreme Court applies a “reasonably probable” prejudice standard for jury misconduct, including misconduct at the penalty phase of a capital trial, whereby the extraneous material to which jurors are exposed must be inherently likely to prejudice a juror, or there must be facts from which it can be concluded that there was substantial likelihood of actual bias    Case # 2698 (Cal.)

Oregon Supreme Court upholds death penalty and the admittance of evidence of defendant’s belief in Satanism and preference for death metal music at the penalty phase of defendant’s trial. In 2004 – while serving a life sentence for the aggravated murder of one person and the attempted aggravated murder of another during a 1994 robbery of a convenience store – defendant participated in the killing of a fellow inmate. For this second murder, defendant was sentenced to death. At the penalty-phase hearing, the prosecution introduced evidence that among the factors leading up to the 1994 crimes was defendant’s identification with Satanism and his preference for “death metal” music. This evidence was introduced (i) for the purpose of establishing that there was a probability that defendant would commit criminal acts of violence in the future that would constitute a continuing threat to society and (ii) as “aggravating evidence” that the jury should take into consideration in deciding whether or not to impose the death penalty for the 2004 prison murder. Arguing that his identification with Satanism and preference for death metal music would be relevant only if the state introduced evidence from which the jury could find that Satanists or death metal fans either advocate or commit violent acts, defendant argued that his religious affiliation and musical preference, without more, did not prove that he was likely to be dangerous in the future and did not constitute “aggravating evidence” that the jury should consider in deciding whether to impose the death penalty in his prison murder case. Rejecting defendant’s arguments, the Oregon Supreme Court affirmed the death sentence, holding, inter alia: (1) Defendant’s motive for committing acts of violence in 1994 at the convenience store – his interest in Satanism and preference for death metal music – bore on whether he was likely to commit similar acts in the future. The jury could find that the reason why defendant committed the 1994 crimes said something fundamental about his character, because a person who participates in one murder and personally attempts to commit another as a way of paying homage to members of a death metal band either places an exceedingly small value on human life or lacks empathy for others in a way that makes that person dangerous in the future. In addition, the reasons why defendant participated in the 1994 crimes bore on his culpability for those acts, which in turn was relevant to the weight that the jury was to give those acts as it considered the aggravating and mitigating evidence in deciding whether to impose the death penalty for the 2004 prison murder. (2) It was not necessary for the prosecution to show that defendant had a current interest in Satanism and death metal music. Whether or not the specific triggers for violence that resulted in the convenience store crimes persisted, their past existence (or nonexistence) bore on his future dangerousness. Although the absence of a present interest reduced the likelihood that defendant would commit violent acts in the future, evidence that an interest in Satanism was one of the reasons for the violent acts committed in 1994 was relevant to the penalty phase of defendant’s trial for the 2004 prison murder because it bore on his culpability for the 1994 acts and the jury could find that it was aggravating evidence that should be taken into consideration in deciding whether or not to impose the death penalty for the 2004 prison murder as it said something fundamental about defendant’s character, irregardless of whether defendant still identified with Satanism. (3) The evidence regarding Satanism was not unfairly prejudicial. See court’s opinion for details. (4) Admitting evidence regarding Satanism and death metal music did not violate defendant’s state constitutional right to freedom of religion by targeting his religion or his federal First Amendment right to the free exercise of religion. Defendant assumed that the evidence was admitted only to prove that he was an adherent of a disfavored religion, so as to prejudice the jury against him. However, the trial court admitted the challenged evidence only for the neutral reason that it bore on defendant’s motive for the 1994 crimes, without regard to the specific nature of the motive, be it pecuniary, religious, or otherwise. The court could consider defendant’s reasons for committing the 1994 criminal acts in imposing a sentence for the 2004 murder, even though the expression of those reasons, unalloyed to any criminal act, would be constitutionally protected. This was not a case in which the evidence proved only defendant’s abstract beliefs. Rather, it was a case in which the challenged evidence proved the motive for participating in the 1994 murder of one person and attempted murder another person. And the reason why defendant participated in the 1994 crimes was relevant both to his future dangerousness and to his culpability for those acts and, thus, to the weight the jury was entitled to give such aggravating evidence in deciding whether to impose the death penalty in the prison murder case   Case # 4271 (Ore.) (en banc).

Death penalty, as a form of punishment, was not cruel and inhuman and did not violate the establishment clause; in assessing the legislative purpose, a court cannot assume that the selected statements of a few legislators arguing for a religious basis for the death penalty, even if they are the sponsors of the legislation, reflect the motivation of the entire Legislature; the death penalty did not advance the beliefs of fundamentalist Protestants over the beliefs of religious groups opposed to capital punishment and there were legitimate secular reasons why the death penalty may have been enacted    Case # 980 (Tex. Crim. App.) 

Federal Magistrate Judge, in recommending that the application for federal habeas corpus relief should be denied, rejects argument that Texas death penalty statutes violate the establishment clause of the First Amendment because certain had proponents of the death penalty cited the Bible as support. The Magistrate heavily relied on the opinion of the Texas Court of Criminal Appeals in Case # 980. See Case # 2016 (N.D. Tex.)

Petitioner – who was convicted of capital murder and sentenced to death –had a tattoo depicting a demon eating Christ’s brain. During the penalty phase, the prosecutor argued that the tattoo reflected a violent character and was evidence of future dangerousness. The placing of the tattoo into evidence was not an appeal to the jurors’ private religious beliefs and did not violate petitioner’s First Amendment right to free exercise of religion. Moreover, to the extent that the prosecutor’s comments could be understood as implying that petitioner held anti-Christian beliefs, such comment was permissible as they were relevant to a material issue, i.e., petitioner’s violent nature and the likelihood that he would commit future acts of criminal violence   Case # 3437 (S.D. Texas)

Appellant was convicted of murder in the course of committing or attempting to commit aggravated sexual assault and sentenced to death. At the punishment hearing, one of the issues presented to the jury is whether there is a probability that the defendant will commit future criminal acts of violence that would constitute a continuing threat to society. Texas Code of Crim. Proc. Art. 37.071, § 2(b)(1). Membership in an organization or group is relevant to the issue of future-dangerousness if the state can show: (i) proof of the group’s violent and illegal activities, and (ii) the defendant’s membership in the organization. At the second punishment hearing the prosecutor offered appellant’s belief in Satanism – appellant having become a Satanist while imprisoned on death row after the initial sentencing hearing – as evidence of appellant’s future-dangerousness. The prosecutor introduced appellant’s prison records, writings, drawings, and a pentagram etched onto his chest to show that appellant had been a Satanist since 2005. The prosecutor’s expert witness testified about Satanists and illegal activities and violent activities that had been committed by Satanists other than appellant and appellant’s belief in Satanism was offered as evidence of his character and future dangerousness. In affirming the death sentence, the Texas Court of Criminal Appeals held that it was not unreasonable for the trial court to decide that the evidence of Satanism was relevant to the issue of future dangerousness and outside the protection of the First Amendment.   Case # 4109 (Tex. Ct. Crim.)

See also:

Autopsy for cases on autopsy after execution

 “Judicial Misconduct” infra.

Jurors and Jury Deliberations, “Criminal Cases

Opening and Closing Arguments

Prison Inmates, “Execution of; Presence of Spiritual Advisor

Charge to Jury

Defendant, claiming that his religion required him to violate a zoning ordinance, was not entitled to have the jury charged with the language of the free exercise of religion clause from the state constitution; whether state action has unconstitutionally abridged defendant’s religious freedom is a question of law for the court, not the jury    Case # 426 (N.Y.)

Parents’ criminal conviction for endangering the welfare of a child affirmed; parents were not protected from criminal liability just because those who rely on spiritual healing are not treated by the Child Protection Services Law as child abusers; the trial court did not commit error, and did not in effect direct a verdict of guilty; when, in charging the jury, it discussed issues concerning religious freedom and the balance between constitutional rights and child protection    Case # 989 (Pa. Super. Ct.)

Child Abuse and Neglect Reporting Acts

See Child Abuse and Neglect Reporting Acts

Child Marriage

Indeterminate sentence of 4 to 6 years' imprisonment for defendant convicted of first degree sexual assault on a 13 year child was not excessive or an abuse of discretion even though defendant may have been ignorant of the illegality of his act, the child had been given in marriage by her father, and such marriages may have been legal and customary in defendant’s native Iraq    Case # 221 (Neb. Ct. App.)

Competency to Stand Trial; Effect of Unusual Religious Beliefs

Moorish Science Temple. Description of beliefs. Unusual nature of criminal defendant’s religious beliefs, and his disruptive behavior in court stemming from those beliefs, did not mean that the defendant was incompetent to stand trial and to represent himself. (The defendant offered no other defense than that he was not subject to the laws of the U.S. and the court’s jurisdiction. Defendant consistently disrupted the court proceedings by objecting to the use of his name, which he claimed no one could use without his agreement and without payment. Indeed, for multiple unconsented to mentions of his name, defendant mailed the judge a bill for $151,000,000). Trial court could also impose sentence enhancements for intimidation of court personnel by defendant in the exercise of his beliefs    Case # 1399 (7th Cir.)

Confession

See Confession

 

See also:

Priest-Penitent Privilege

Continuance

See Continuance

Controlled Substances Act

See Marijuana, Mushrooms, Hoasca and Other Psychotrpic Substances

Curfew Ordinances

See Curfew Ordinances

Defacement Statute

Plaintiff was granted permission by the District of Columbia to conduct an anti-abortion protest with up to 5,000 persons on the promenade in front of the White House from 7 a.m. to 7 p.m. with signs and banners, with no restriction upon plaintiff’s ability to speak aloud. However, in conformity with a District of Columbia criminal statute barring the defacement of both public and private property, plaintiff was denied permission to use chalk to mark the surfaces of the pedestrian plaza/promenade in front of the White House. When plaintiff nevertheless proceeded to chalk the street in front of the White House, the police confiscated his chalk and directed him to stop. Plaintiff alleged, inter alia, that the District’s defacement statute facially and as applied violated the First Amendment’s free speech clause, as well as plaintiff’s rights under the Religious Freedom Restoration Act (RFRA). The D.C. Circuit Court of Appeals affirmed the district court’s grant of summary judgment dismissing these three claims. The panel held: (1) Plaintiff’s chalking the street in front of the White House was an expressive act to which the protections of the free speech clause of the First Amendment applied. (2) The street in front of the White House was a public forum and the District’s ability to restrict plaintiff’s expressive conduct was limited to the enforcement of content-neutral time, place, and manner regulations that were narrowly tailored to serve a significant government interest, and which left open ample alternative channels of communication. (3) There was no merit to the District’s argument that the street in front of the Whitehouse was not a public forum when used as a “writing tablet.” (4) The defacement statute, as applied, was constitutional because it furthered the District’s substantial interest in controlling the esthetic appearance of the street in front of the White House, was content neutral – having prohibited certain conduct (i.e. disfiguring, cutting, chipping, defacing or defiling), including certain expressive conduct (i.e. writing, marking, drawing, or painting), all without reference to the message the speaker wished to convey – was narrowly drawn and left open ample alternative channels of communication, allowing plaintiff to announce any “verbal” message he chose and to depict visual messages on signs, banners, and leaflets. (5) Plaintiff’s facial challenge to the defacement statute failed because he could not show that the challenged law could never be applied in a valid manner or that it was overbroad. See court’s opinion for details. (6) The statute did not impose a substantial burden on plaintiffs’ religious exercise in violation of RFRA. The district court held that although plaintiffs’ desire to “prayfully” challenge President Obama on the issue of abortion may have been motivated by sincerely held religious beliefs, plaintiff did not allege that it was his sincerely held religious belief that he must express his  views to the President through the specific medium of chalk or in the specific location of 1600 Pennsylvania Avenue. Consequently, plaintiff’s allegations were insufficient to support a claim that the restriction on his use of chalk substantially burdened his religious practice by pressuring him to modify his behavior and to violate his beliefs. The chalking restriction was, at most, a restriction on one of a multitude of means that plaintiff could use in order to engage in his religiously motivated practice of prayerful challenge to the President’s position on abortion. On appeal, plaintiff argued that the district court erred by narrowly focusing on the medium of his message to the exclusion of his motivation. According to plaintiff, in considering whether his religious exercise had been substantially burdened, the court should have focused on whether his religious belief in chalking was sincere and whether the District’s action substantially burdened his religiously motivated act of chalking. Rejecting plaintiff’s argument, the panel reiterated the D.C. Circuit’s position that “to make religious motivation the critical focus is . . . to read out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement.” RFRA’s “substantial burden” inquiry must focus on whether the regulation at issue forces a plaintiff to engage in conduct that his religion forbids or prevents him from engaging in conduct his religion requires. Here, the defacement statute prohibited only one of a multitude of means of conveying plaintiff’s religious message. Nor did the statute realistically prevent plaintiff from chalking elsewhere. The concurring opinion, although agreeing with all the Court had to say, noted that in reality, this was a simple case, as no one has a First Amendment right to deface government property, even if only temporarily through the act of chalking. See also the district court’s opinion holding that: (1) The defacement statute, being a neutral law of general applicability, did not violate plaintiff’s First Amendment right to the free exercise of religion. (2) Plaintiff’s equal protection rights under the Fifth Amendment’s Due Process Clause were not violated even though defendants had permitted demonstrators to chalk in other locations without prosecuting, or threatening to prosecute said persons under the defacement statute. (3) Plaintiff’s rights under the District of Columbia’s “First Amendment Rights and Police Standards Act of 2004” were not violated. The Circuit Court of Appeals did not address these issues on appeal   Case # 4312 (D.C. Cir.), affirming Case # 3821 (D.D.C.)

18 U.S.C. § 247(a)(1) provided that whoever “intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so” is guilty of a federal crime. The offense referred to in subsection (a) had to be one that “is in or affects interstate or foreign commerce.” 18 U.S.C. § 247(b). Enhanced penalties for violation of the statute were provided if death resulted from the defendant’s acts, 18 U.S.C. § 247(d)(1) or if bodily injury resulted to any person and the violation was by means of fire. 18 U.S.C. § 247(d)(2). Defendant pled guilty to four counts of church arson in violation of 18 U.S.C. § 247(a)(1) and, because one of defendant’s arsons resulted in a death, he was sentenced to life imprisonment on that count. He received concurrent 20 sentences on the remaining counts. A panel of the Eleventh Circuit Court of Appeals unanimously upheld the constitutionality of § 247 on its face, holding that its enactment did not exceed Congress’ authority under the Commerce Clause. However, section 247 was held to require proof of a substantial affect on interstate commerce by each charged church arson. That proof being insufficient in this case, defendant’s convictions were reversed. The government could not rely on the aggregate effect on interstate commerce of local church arsons in order to justify federal jurisdiction. The dissent asserted that § 247 prohibited not only the arson of a church, but also “travel for the purpose of committing [church] arson,” thereby falling within Congress’ authority to regulate the channels of interstate commerce. The panel majority disagreed. In fact, when Congress amended § 247 in 1996, it specifically removed all reference to travel to commit the arson as a jurisdictional predicate for § 247. Prior to that time, the statute had prohibited the destruction of a church when “in committing the offense, the defendant travels in interstate or foreign commerce, or uses a facility or instrumentality of interstate or foreign commerce . . . .” After the 1966 amendment, the statute prohibited church arson when the “offense is in or affects interstate or foreign commerce”. The plain language of § 247 did not now provide for travel in interstate commerce as a basis for federal jurisdiction. While the panel majority agreed with the dissent that some proponents of the 1996 amendment thought they were broadening the jurisdictional scope of § 247 by insertion of the “in or affects” interstate commerce requirement, thereby applying it to purely intrastate activity which affects interstate commerce, the majority did not agree with the dissent that they achieved this result. Congress did not know in 1966 that the U.S. Supreme Court would subsequently hold that in order to regulate a non-economic activity, such as the crime of arson, the activity, standing alone, must have a substantial effect on interstate commerce. Ironically, Congress effectively narrowed § 247’s jurisdictional reach. The dissent agreed with the majority that 18 U.S.C. § 247 was facially constitutional, but did not agree with its conclusion that the statute was unconstitutional as applied to defendant. According to the dissent, the facts to which defendant stipulated provided not one but two bases for finding that he committed acts which Congress could prohibit: (1) the effects of his crimes on interstate commerce, and (2) his travel across state lines in order to commit them. See the majority and dissenting opinions for details of the stipulated facts and the differing legal and factual evaluations   Case # 1337N (11th Cir.)

Defendant’s Right to be Present

A state jury received a criminal case on Thursday. Owing to his claimed need to attend religious services on Friday, the Muslim defendant did not appear in court the following day when the jury reached and announced its verdict finding defendant guilty. In a federal habeas corpus proceeding, defendant/petitioner alleged (1) that his constitutional rights were violated when the state trial court accepted the jury’s verdict without stating the actual reason for defendant's absence on the record and (2) that even if the state court “inferred” that defendant was waiving his right to attend all the material stages of the trial in order to honor his religion, his waiver was coerced, because of the state court’s “utter failure to offer . . . [defendant] any accommodation, during jury deliberations of his First Amendment rights.” The court denied the petition finding that the state trial court’s conclusion that defendant/petitioner had waived his constitutional right to be present when the jury delivered its verdict by failing to appear in court was, on the record, objectively reasonable and that the trial judge could properly conclude that the need to continue the jury deliberations and to receive the verdict in defendant’s absence outweighed defendant’s right to exercise his religion   Case # 4225 (S.D.N.Y.)

Defendant's right to be present during a critical stage of a criminal trial is not violated when, in his absence, but in the presence of his attorney and the prosecuting attorney, the court asks the jury foreperson when she needs to leave so as to observe the Sabbath    Case # 429 (N.Y. App. Div.)

Disorderly Conduct and Disturbing the Peace

See Disorderly Conduct and Disturbing the Peace

DNA Typing and Testing

See DNA Typing and Testing

Domestic Violence

See Domestic Violence

Double Jeopardy

See Double Jeopardy

DUI (Driving Under the Influence of Alcohol)

Defendant was convicted of driving under the influence of alcohol and improper lane usage. The conviction was reversed because the trial court improperly refused to allow the defense to question potential jurors whether they had any religious or moral opinions regarding drinking alcohol. Potential jurors can be asked about religious beliefs that may directly affect their ability to serve on a jury in a particular case. Questioning prospective jurors about their personal or religious views toward alcohol consumption is permissible because such questions are reasonably calculated to discover any latent bias that may exist among the venire. Questioning prospective jurors generally about whether they have any biases or prejudices that could affect their ability to be impartial does not reasonably assure that prejudice toward alcohol consumption will be disclosed   Case # 2548 (Ill. App. Ct.)

Embezzlement

See Embezzlement

Evidence and Testimony

See Evidence

Failure of Parent to Seek Medical Care For Minor

See Medical Care and Procedures "Parents’ Obligation to Seek and Pay for Medical for Minor; Parents’ Failure to Seek Medical Care; Spiritual Healing"

Federal Election Campaign Act

See Election Law

Fruit of the Poisonous Tree

See Fruit of the Poisonous Tree

Furlough

See Prison Inmates, “Furlough

Grand Jury; Presentation on Day Observed by Defendant as a Religious Holiday

See Cases under Continuance

Hate Crime

See Hate Crime

Head Covering in Courtroom by Defendant and Spectators

Trial court had ordered that all spectators at defendant’s trial remove any head covering, or leave the courtroom, even though at least one spectator objected on religious grounds. Defendant had no standing to object to said direction, as defendant did not seek to wear any form of head covering. Nor had any of the spectators been held in contempt, and none had sued seeking a declaratory judgment. However, the Seventh Circuit panel stated in dicta that while one did not have a constitutional right to wear a head covering in court, even on religious grounds, as a matter of policy the court should be tolerant and allow the practice. Tolerance usually is the best course in a pluralistic nation and defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done    Case # 1399 (7th Cir.)

Insurance Fraud

Religious marriage performed in New Jersey invalid under both Connecticut law, which did not require a valid marriage license, and New Jersey law, which did insist on marriage license; defendant’s conviction for insurance fraud and larceny affirmed; defendant did not have good faith belief that she was married at the time she claimed named person as her husband for insurance purposes    Case # 301 (Conn.)

Intimidation

State has a legitimate interest in protecting persons from criminal intimidation even though religious expression is involved    Case # 993N (Ill. App. Ct.)

Defendant husband’s actions in sending his wife a Bible, along with a threatening note and a copy of the adultery statute, was properly introduced to prove that defendant threatened his wife; such actions did not constitute protected religious activity and the husband’s conviction for stalking his wife was upheld    Case # 992N (Kan.)

Judge, Recusal by

See Recusal By Judge

Judges, Religious Bias of

See “Sentencing

Judicial Misconduct

Death sentence affirmed. Prior to final selection of the jury, trial judge entered jury room and asked those jurors who wished to join hands and bow their heads to do so. The trial judge then said, "God be with us." The judge also apparently hugged some of the jurors. Although the judge’s conduct was inappropriate, defendant suffered no harm and lacked standing to raise claims under the free exercise and establishment clauses of the federal or state constitutions. The trial judge’s ex parte contact was made prior to opening statements, the presentation of any evidence, and the commencement of deliberations. More than 25 days after the ex parte communication occurred, the trial judge instructed the jury fully on the appropriate burden of proof to be met and that they could not consider anything outside the evidence presented in reaching their verdicts. The jurors testified that they did not view the ex parte communication as a comment on the evidence or on defendant’s guilt or innocence. The trial judge’s conduct was not a preliminary instruction that the jury could use God’s help in reaching a decision, and the ex parte communication did not violate defendant’s right to a fundamentally fair trial by an impartial jury and to due process of law. Any error was subject to harmless error analysis    Case # 991N (Neb.)

Jurors and Jury Deliberations

See Jurors and Jury Deliberations

Lewdness; Dancing Nude at “Anti-Christmas” Protest

See Lewdness

Malicious Prosecution

Discharged pastor’s action for malicious prosecution after he was arrested for criminal trespass dismissed    Case # 104 (Ga. Ct. App.)

Marijuana, Mushrooms, Hoasca and Other Psychotrpic Substances

See Marijuana, Mushrooms, Hoasca and Other Psychotrpic Substances

Marriage; Performance of Same-Sex Marriage by Clergy When Couples Do Not Have a Marriage License

Ordained ministers who performed marriage ceremonies for same-sex couples who did not have marriage licenses, were charged with a crime for solemnizing marriages without licenses being presented to them, in violation of New York law. Although the court rejected defendants’ argument that the state violated their free exercise of religion by restricting their ability to perform a same-sex marriage ceremony recognized by the state, the court did dismiss the criminal charges on the ground that prohibiting same-sex couples from marrying was not rationally related to furthering a legitimate state interest   Case # 1704N (N.Y. Sup. Ct. App. T.)

Mental Defect Based on Religious Belief

Following a purported revelation from God in March 1999, defendant and his wife restricted their ten month old son’s diet to breast milk and water, and deprived him of solid food. The child died in April 1999, within days of his first birthday, from malnutrition caused by starvation. Defendant was found guilty of murder in the first degree by reason of extreme atrocity or cruelty. On appeal defendant contended, inter alia, that he lacked criminal responsibility for murder in the first degree, and that he was compelled by his religious beliefs to deprive his son of nutrition. The Supreme Judicial Court of Massachusetts affirmed the conviction, holding, in part, that: (1) Evidence that defendant, in June 1998, had led his religious group on a religiously inspired trip to Maine in which the group’s children were deprived of food for three days was not irrelevant prior bad act evidence that should have been excluded. (2) A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality, or wrongfulness, of his conduct or to conform his conduct to the requirements of the law. However, although defendant held unique religious beliefs, that alone was not sufficient to demonstrate a mental defect. There was no evidence that defendant had a prior mental illness, or was acting on the basis of anything other than a sincerely held religious belief. The bizarre or inexplicable nature of a crime alone does not provide a foundation for an insanity defense. Furthermore, the record was replete with evidence that defendant both understood the wrongfulness of his conduct and had the ability to conform his conduct to the requirements of the law   Case # 3060 (Mass.)

See also Marriage

Military Lands; Entry Upon

Defendant’s conviction for illegal entry on military reservation on island of Vieques upheld. Defense that defendant entered military grounds obeying religious doctrine to protect life and provide pastoral assistance to persons engaged in a peaceful, symbolic act designed to protest the Navy's use of the lands dismissed    Case # 1188 (D. P.R.)

Motor Vehicles

See

Motor Vehicles

Search and Seizure

"Good Samaritan Laws" under Medical Care

Name

Nothing in the Constitution allows a person to avoid criminal liability incurred under one name merely by changing that name, regardless of the religious or cultural motivation for the name change. In this case, plaintiff was wanted under the name Billie Greene on an apparently valid arrest warrant issued by a court in the State of New Jersey and plaintiff, by what ever name known, had the same Social Security number and fingerprints as Billie Greene. Although plaintiff may have legally changed his name to Raakhim El Bey for religious reasons, defendants committed no constitutional violation when they arrested plaintiff and had a formal fugitive warrant sworn to, approved, issued, and executed on plaintiff, all under the name Billie Green. Defendants, who were acting on the basis of a well-founded belief that plaintiff was the same person wanted on the arrest warrant issued for Billie Greene in New Jersey, were entitled to qualified immunity   Case # 2694 (S.D. Ohio)

See also Prison Inmates "Name; Religious Use of, etc."

Noise Ordinance

See Anti-Noise Statutes

Order of Protection; Violation of; Parent, Ordered to Stay Away From Family, Present in Same Church

Court discusses to what extent a stay away order of protection bars a person subject to the order from being present in a church where his family is also present    Case # 1260 (Ill. App. Ct.)

Parent-Child Testimonial Privilege

See Evidence

Parole and Probation

See Parole and Probation

Polygamy

See Polygamy

Possession of Body Parts of Bald and Golden Eagles and Other Birds

See Native Americans

Prior Bad Acts

See Evidence

Prayer by Court or During Jury Proceedings

See:

Jurors

Prayer

Presentence Report; Discovery of by Third Parties

See Discovery, “Sexual Abuse by Priest; Case Involving

Priest-Penitent Privilege

See Priest-Penitent Privilege

Prisons and Prison Inmates

See Prison Inmates

Profane Language

See Profane Language

Prosecutor’s and Defense Counsel's Remarks During Closing Argument and Examination of Witnesses

See Opening and Closing Arguments and Examination of Witnesses

Proximity to House of Worship

Statute enhancing penalties for drug crimes committed in proximity to places of worship is constitutional; it is not vague, nor does it violate due process, equal protection, or the establishment clauses of the federal or state constitutions    Case # 841 (Fla. Dist. Ct. App.)

Florida Statute made it a first-degree felony to sell cocaine within 1,000 feet of a church or religious organization which “regularly conducts religious services.” A police officer with sufficient familiarity with a particular church can provide evidence that it is regularly conducting services, even when the officer does not attend those services; it is not essential to provide evidence from a church member or leader. But here the testimony of the police officer was insufficient, because the last time he had seen people coming and going from the church was a year before the offense. This was not evidence that at the time of the offense the church was regularly conducting religious services   Case # 3845 (Fla. Dist. Ct. App.)

Illinois made it unlawful to, inter alia, possess with intent deliver a controlled substance and also provided that a person who committed such offense within 1,000 feet of, inter alia, any church was to be subject to an enhanced penalty; the statutes were not vague or unconstitutional; defendants’ residence was under police surveillance; defendants left their residence and were followed; when defendants’ vehicle exceeded the speed limit they were stopped by the police within 1,000 feet of a church; the vehicle was searched and cocaine discovered; held, the statute did not require that defendants to actually deliver a controlled substance within 1,000 feet of a church or that they intend to deliver a controlled substance within the restricted zone; all that was required was that defendants possess a controlled substance with an intent to deliver while within 1,000 feet of the church; ultimate delivery, or the intended place of delivery, need not be within 1,000 feet of a church; therefore, even if the stop occurred beyond the 1,000 foot boundary, defendants would have been subject to the enhancement penalty, because while within 1,000 feet of a church they had an intent to deliver drugs in their possession; the statute enhancing the penalties for drug crimes committed in proximity to a house of worship did not violate the establishment clause of either the federal or state constitutions    Case # 895 (Ill.)

Oklahoma statute making it a felony to, inter alia, maintain a house of prostitution within 1,000 feet of a church did not violate the establishment clause. Nor did the statute constitute an impermissible delegation of legislative power to religious groups, in violation of Article 4, § I of the Oklahoma Constitution. The word “church” in the statute included traditional places of worship for other religious communities, such as synagogues and mosques. The word “church,” was intended to designate a particular kind of building or structure, rather than simply a group of people or a particular religious community. Although religious communities, for various reasons, sometimes meet in settings that are unlike the traditional church structure – which is built to serve as a place of communal worship and functions primarily, if not exclusively, as a place of communal worship – the court declined to decide, in the current case, whether the term “church” included non-traditional structures, such as temporary buildings, residential homes, converted facilities, office buildings, store fronts, etc., that may be used by particular groups, either temporarily or permanently, as a place to gather and conduct religious services. While difficult line-drawing questions regarding the extent of the term “church” could be hypothesized, they were not at issue in the current case   Case # 2539 (Okla. Crim. App.)

Defendant who set fire to a church, pled guilty to one count of damaging religious property for racial reasons in violation of 18 U.S.C. § 247(c); court’s decision to sentence defendant pursuant to U.S.S.G. § 2K1.4(a)(1) justified because of proximity of a parsonage, which stood only fifty feet from the church and was occupied, as this created a risk of death or serious bodily injury to another    Case # 325 (6th Cir.)

Restitution

Defendants, who set fire to an historic church, were properly sentenced, in addition to prison, to paying the replacement cost of the church, as opposed to its fair market value; 18 U.S.C. § 3663A(b)(1)    Case # 558 (11th Cir.)

Court did not abuse its discretion in ordering restitution for a nonreligious Hmong healing ceremony performed for a crime victim    Case # 294 (Minn Ct. App.)

See also Case # 451 (8th Cir.) involving church annex destroyed by maliciously set fire. But see Case # 840 (8th Cir.), which on remand from the U.S. Supreme court, reversed the conviction and remanded to the district court for further consideration. On reconsideration, see Case # 1351 (8th Cir.)


Satanism; Evidence of … in Criminal Case

Petitioner was convicted of first-degree murder and sentenced to life imprisonment. Petitioner unsuccessfully argued, inter alia, that the trial court improperly admitted evidence of Satanism. Under the facts of the case, the trial court's determination that testimony about the defendants' Satanic beliefs was more probative than prejudicial appeared reasonable. The testimony was probative as to the motive that the defendant might have had for the murder. Furthermore, the likelihood of unfair prejudice was alleviated by the fact that the defense removed potential jurors who stated during their voir dire examinations that petitioner’s possible involvement in Satanism would affect their ability to fairly and impartially try the case    Case # 1170N (6th Cir.)

Search and Seizure

See Search and Seizure

Seditious Conspiracy; Soliciting, Commanding, Inducing Another to Commit Crime of Violence

Defendant Muslim cleric, who with others, was engaged in a wide-ranging plot to conduct a campaign of urban terrorism, was convicted of seditious conspiracy under 18 U.S.C. § 2384 making it a crime to conspire, inter alia, to wage against the U.S. government and also convicted under 18 U.S.C. § 373(a) of soliciting, commanding, inducing, or otherwise endeavoring to persuade another person to commit a crime of violence; defendant was not immunized from prosecution for speech-based offenses merely because he committed them through the medium of political speech or religious preaching; the trial court’s voir dire was sufficient to eliminate any prejudice against Muslims and Arabs; trial court did not abuse its discretion in excluding proposed expert testimony on Islamic religious traditions which defendant claimed was necessary to prove the essentially religious and noncriminal nature of his speech     Case # 635 (2d Cir.)

Sentencing; Enhancement of Sentencing or Crime

Court considers the role a victim’s religion may play in a sentencing judge’s application of United States Sentencing Guideline § 3A1.1(b), authorizing increased sentences for those committing crimes against a “vulnerable victim” and holds that while a fraud grounded in religious themes may pose an especially effective threat, membership in religious groups cannot, standing alone, make victims “vulnerable” for purposes of the enhancement, even where a fraud involves reliance on religious themes or imagery   Case # 2550 (2d Cir.)

Downward departure in sentencing based on a determination that a long period of incarceration would unduly harm the marriage prospects of defendant’s children within the Hasidic, Orthodox Jewish community was improper    Case # 242 (2d Cir.)

In sentencing petitioners for the felony robbery of congregants during a church service to sentences ranging from 53 to 71 years, the state court sentencing judge told petitioners that “[Y]ou didn’t just steal money from people. You took God’s money[] . . . and those of us that believe that there is an Almighty and that there is a being that created this world[,] to go in and then steal money that is being tendered by people for the furtherance of an earthly kingdom is just outrageous. . . . There is scripture that says ‘Vengeance is mine sayeth the Lord’ but every now and then I think the judicial system has to contribute what it can.” The Fourth Circuit held that such remarks did not entitle petitioners to federal habeas relief from the state court’s sentences. During a church service, petitioners robbed members of the congregation at gunpoint, binding the wrists of one worshiper and threatening other congregants. Petitioners, who had pled guilty, were sentenced by the state court to 64-86 months for each of ten counts of felony robbery, the sentences to run consecutively. As a result, petitioners received sentences ranging from 53 to 71 years. The sentencing judge took note of the victims’ outrage at being robbed during a religious service in the “house of God” and of their resulting emotional scars. After recounting the victims’ statements, the judge condemned petitioners’ behavior as exceeding all acceptable social boundaries and pronounced that he was intent on vindicating the community’s interest in justice. The judge then proceeded to make the comment quoted supra. The Fourth Circuit Court of Appeals affirmed the district court’s denial of federal habeas relief from the state court’s sentences, holding that because the nature of the site robbed and the vulnerability of those who worshipped there played a critical part in petitioners’ planning of the crime, it was not a violation of due process for these same considerations to play a critical part in petitioners’ punishment. There was no evidence that the sentencing judge impermissibly rested the terms of imprisonment on religious considerations. A federal court reviewing an application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment may not grant such relief unless the decision of the state court “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). Here, the sentencing judge’s comments did not constitute an unreasonable application of clearly established Federal law, as determined by the U.S. Supreme Court. True, in U.S. v. Bakker (1991), the Fourth Circuit held that due process is violated when “a judge impermissibly takes his own religious characteristics into account at sentencing” because courts “cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.” But Bakker did not govern these proceedings, because it did not represent “clearly established Federal law, as determined by the Supreme Court of the United States.” Further, Bakker, was before the Fourth Circuit Court of Appeals on direct appeal from a federal conviction, a posture that allowed the Court greater latitude than afforded a federal court in collateral review of a state conviction. While the U.S. Supreme Court has held that the sentencing process must satisfy the requirements of due process, the Supreme Court has not set forth the sort of specific limitations on a judge’s conduct of sentencing proceedings that would permit the court to grant habeas relief in this case. The most guidance the Supreme Court has offered is that sentencing cannot be based on “factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant.” Zant v. Stephens (1983). Although the sentencing judge in this case did refer to religion in his comments, he in no way relied upon petitioners’ religion in deciding on the sentence, nor did his statements violate the more general prohibition in Zant by basing his sentence on “factors that are constitutionally impermissible.” Before granting habeas relief on such basis, a court has to conclude not only that the sentencing judge’s comments violated due process, but also that fairminded jurists could not disagree with the sentence. Reversal is not warranted so long as the evidence justifies the sentence imposed. Assignments of constitutional error under the Due Process Clause is limited to cases in which the challenged action is “so unduly prejudicial that it renders the [proceeding] fundamentally unfair.” And because the petitioners’ challenge stemmed from comments made by the trial judge at a state sentencing proceeding, the federal court had to show deference to the sentencing court’s judgment. The sentencing judge’s comments in this case did not so impermissibly reference religious beliefs that they deprived petioners of due process. Petitioners were not sentenced on account of their religion or on account of the judge’s religion. Many of the judge’s comments gave voice to the sentiments of the community reflected in the victim impact statements and in the testimony at the sentencing hearing and it was not unconstitutional for the judge to have considered these statements in determining the appropriate sentence. It is appropriate for a sentencing judge to take into account the fact that the disruption of worship services has an especial effect on the community. Indeed the law must protect places that demand special tranquility so that citizens may exercise their constitutional rights free from fear. Taken as a whole and in their proper context, the judge’s comments described the unique way that robbing a church harmed the members of the community. The intentional selection of a church as a target and of worship services as the time of attack merited special condemnation because it was equally an assault on the religious liberty of the parishioners as it was on their physical safety and it would be odd indeed if the armed robbery of worshipers and violent threats to parishioners did not elicit strong condemnation at sentencing. To the extent that the judge quoted from the Bible, there was no credible argument that he impermissibly rested the terms of imprisonment on scripture and not on the state statutes. Although petitioners alleged that they were sentenced as harshly as they were because they chose to rob a church, rather than some other secular entity, no Supreme Court case has even come close to holding that criminal harms visited upon religious congregations may not be the subject of stern and special disapproval from the bench. Nothing motivated the sentencing Judge, except for the atrocious conduct of petitioners and the sentences were only “vindicating the community’s interest in justice” for “behavior . . . exceeding all acceptable social boundaries.”   Case # 4507 (4th Cir.), affirming, Case # 4391 (W.D.N.C.)

Defendant was convicted of mail fraud, interstate transportation of property obtained by fraud, and money laundering. These convictions related to defendant’s leadership in a fraudulent investment scheme that targeted the African-American church community. Invitations to presentations were typically distributed during church services, and the pastor of the hosting church would usually introduce defendant and his partner to the attendees. Defendant littered his presentations with biblical references, often underscoring the purported goal of community financial empowerment by referencing biblical passages. In applying U.S. Sentencing Guideline § 3B1.3 in enhancing defendant’s sentence for abusing a “position of trust” the district court largely focused on defendant’s marketing in the church community. The Fourth Circuit held that the district court did not err in enhancing defendant’s sentence pursuant to § 3B1.3 for abusing a “position of trust.” If the district court had applied the “abuse of trust” enhancement based solely on the religious context of defendant’s fraud, that would have been error. The district court did not, however, focus only on the religious context of the fraud but also noted that investors had placed trust in defendant partly because of “his representations about his skills, including defendant’s claimed Wall Street experience and his alleged experience taking a well known company public. In fact, the court specifically referenced Application Note 2(A) to § 3B1.3, which stated that the enhancement applies to a defendant who “perpetrates a financial fraud by leading an investor to believe the defendant is a legitimate investment broker.”   Case # 2926 (4th Cir.)

Defendant’s criminal sentence affirmed. Fact that defendant’s religious beliefs may have precluded him from providing information implicating others did not entitle defendant to downward departure based upon substantial assistance to the Government. It was undisputed that defendant did not provide any assistance to the Government, and accordingly, he was not entitled to a motion for a downward departure. Moreover, a defendant’s religious beliefs “are not relevant in the determination of a sentence." U.S. Sentencing Guidelines Manual § 5H1.10 (2001)    Case # 1448N (4th Cir.)

Defendant who set fire to a church, pled guilty to one count of damaging religious property for racial reasons in violation of 18 U.S.C. § 247(c); court’s decision to sentence defendant pursuant to U.S.S.G. § 2K1.4(a)(1) justified because of proximity of a parsonage, which stood only fifty feet from the church and was occupied, as this created a risk of death or serious bodily injury to another    Case # 325 (6th Cir.)

Moorish Science Temple. Description of beliefs. Unusual nature of criminal defendant’s religious beliefs, and his disruptive behavior in court stemming from those beliefs, did not mean that the defendant was incompetent to stand trial and to represent himself. (The defendant offered no other defense than that he was not subject to the laws of the U.S. and the court’s jurisdiction. Defendant consistently disrupted the court proceedings by objecting to the use of his name, which he claimed no one could use without his agreement and without payment. Indeed, for multiple unconsented to mentions of his name, defendant mailed the judge a bill for $151,000,000). Trial court could also impose sentence enhancements for intimidation of court personnel by defendant in the exercise of his beliefs    Case # 1399 (7th Cir. 2003)

 Sentencing in criminal case. It was error for the district court to rely on defendant’s Mennonite upbringing, which supposedly rendered him ignorant and uneducated in the "ways of the world," in justifying a downward departure from the U.S. Sentencing Guidelines    Case # 1437 (8th Cir.)

District court committed error when it enhanced the sentence of a defendant guilty of, inter alia, securities and mail fraud based on the unusual vulnerability of the victims; the district court found that the victims' church membership made them "otherwise particularly susceptible to the criminal conduct" of defendant who was a member and leader in the same church; the district court did not point to any facts that made the victims less able to defend themselves than a typical victim and did not address the question whether the  victims were "particularly susceptible" to the fraud    Case # 605 (9th Cir.)

Defendants, who set fire to an historic church, were properly sentenced, in addition to prison, to paying the replacement cost of the church, as opposed to its fair market value; 18 U.S.C. § 3663A(b)(1)    Case # 558 (11th Cir.). See also Case # 840 (8th Cir.) involving church annex destroyed by maliciously set fire. But see Case # 1351 (8th Cir.) vacating defendant’s plea of guilty. 

Defendant, director and pastor of Greater Ministries International Church, was convicted of mail fraud conspiracy, money laundering conspiracy, and three counts of mail fraud as a result of a “gifting” program under which investors would “gift” money to the church in increments of $250 and were led to believe that within 17 months they were to get back double their money in the form of “giftbacks.” On appeal, defendant, argued, inter alia, that the district court erroneously applied a two-level increase to his sentence pursuant to U.S.S.G. § 3B1.3 for abuse of position of trust due to his status as a pastor. The Court of Appeals concluded that, under the facts, defendant did not occupy a position of trust under the Sentencing Guidelines simply by virtue of his status as a pastor, and therefore reversed the sentence enhancement. With respect to the victims that the government presented, there was no personal trust relationship with defendant    Case # 1520 (11th Cir.)

Petitioner, who had pled guilty to a theft charge, received an aggravated sentence of ten years. Petitioner alleged that the state court had improperly used as an aggravating factor petitioner’s use of religion in gaining the trust of his victims. The court held that no constitutional error occurred, but, even if it had, the error was harmless   Case # 3740 (D. Ariz.)

Statute enhancing penalties for drug crimes committed in proximity to places of worship is constitutional; it is not vague, nor does it violate due process, equal protection, or the establishment clauses of the federal or state constitutions    Case # 841 (Fla. Dist. Ct. App.)

Florida Statute made it a first-degree felony to sell cocaine within 1,000 feet of a church or religious organization which “regularly conducts religious services.” A police officer with sufficient familiarity with a particular church can provide evidence that it is regularly conducting services, even when the officer does not attend those services; it is not essential to provide evidence from a church member or leader. But here the testimony of the police officer was insufficient, because the last time he had seen people coming and going from the church was a year before the offense. This was not evidence that at the time of the offense the church was regularly conducting religious services   Case # 3845 (Fla. Dist. Ct. App.)

Illinois made it unlawful to, inter alia, possess with intent deliver a controlled substance and also provided that a person who committed such offense within 1,000 feet of, inter alia, any church was to be subject to an enhanced penalty; the statutes were not vague or unconstitutional; defendants’ residence was under police surveillance; defendants left their residence and were followed; when defendants’ vehicle exceeded the speed limit they were stopped by the police within 1,000 feet of a church; the vehicle was searched and cocaine discovered; held, the statute did not require that defendants to actually deliver a controlled substance within 1,000 feet of a church or that they intend to deliver a controlled substance within the restricted zone; all that was required was that defendants possess a controlled substance with an intent to deliver while within 1,000 feet of the church; ultimate delivery, or the intended place of delivery, need not be within 1,000 feet of a church; therefore, even if the stop occurred beyond the 1,000 foot boundary, defendants would have been subject to the enhancement penalty, because while within 1,000 feet of a church they had an intent to deliver drugs in their possession; the statute enhancing the penalties for drug crimes committed in proximity to a house of worship did not violate the establishment clause of either the federal or state constitutions    Case # 895 (Ill.)

Statute enhancing the penalty for delivery of a controlled substance near a place of worship did not violate the establishment clause of the First Amendment or the comparable provision of the Illinois Constitution; court discusses proof required under the enhancement statute    Case # 703 (Ill. App. Ct.)

In a case of first impression in Indiana, the state Court of Appeals, joining other courts that have considered comparable challenges, holds that the Indiana Code section enhancing burglary from a Class C felony to a Class B felony if the building or structure burgled is a structure used for religious worship does not violate either the Establishment Clause of the First Amendment or Ind. Const. Art. 1, § 4   Case # 4240 (Ind. Ct. App.)

The fact that the criminal statutes governing burglary and petit larceny provided penalties twice as harsh for crimes committed in places of worship did not violate the First Amendment establishment clause   Case # 2598 (Miss. Ct. App.)

Sentence imposed on defendant guilty of sexual assault on a minor reversed because reasonable person could conclude that judge’s religious views concerning homosexuality were a factor in the sentencing    Case # 222 (Neb.)

Criminal defense counsel was constitutionally ineffective for failing to challenge the unduly prejudicial video tribute to the victim scored to popular and religious music. Court discusses the general contours of what falls within the realm of an appropriate video of a victim’s life for sentencing purposes and the permissibility of evocative or emotive background music likely to appeal solely to emotion and engender undue prejudice. Here, the music and photographs of the victim’s childhood and of his tombstone, and a television segment about his funeral, did not project anything meaningful about the victim’s life as it related to his family and others at the time of his death and they should have been redacted from the video because they contained little to no probative value, but instead had the great capacity to unduly arouse or inflame emotions. An overly lengthy video, baby photographs of an adult victim, and a video scored to religious and pop music do not advance any legitimate objective. The dissent believed that the victim-impact video offered and received by the trial court in the instant case was acceptable   Case # 4359 (N.J.)

The N.Y. Hate Crimes Act of 2000 requiring enhanced sentences for criminal acts against “victims [who] are intentionally selected, in whole or in part, because of their race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation” applies not only to crimes against persons, but also applies to crimes against property motivated by, inter alia, religious animus, such as an attempted arson at a Jewish synagogue. The evidence in this case proved that defendant committed an attempted arson of the synagogue because of his anger toward a particular religious group. N.Y.’s highest court also addressed the question of the effective date of the Act. The Act was scheduled to take effect 90 days after it was enacted, which was October 8, 2000. The crime occurred at approximately 3 A.M. on that day and defendants were held subject to the provisions of the Act. The Court rejected defendants’ argument that although the Legislature specified that the law would take effect 90 days after it was enacted (i.e., October 8, 2000), because that date fell on a Sunday and the following Monday was a public holiday, the effective date of the Act was postponed pursuant to the provisions of N.Y. General Construction Law §§ 20 and 25-a until Tuesday, October 10, 2000 – two days after the incident at the synagogue   Case # 3964 (N.Y.)

Petitioner had been indicted on ten counts of rape of a minor and for pandering obscenity involving a minor. After pleading guilty to all the charges, petitioner was sentenced to 51 years imprisonment. In Case # 818 (Ohio), the Ohio Supreme Court held that even though the sentencing judge had consulted a religious text during her deliberations and quoted a portion of that text on the record in the sentencing proceeding, such conduct was not per se impermissible and did not violate the offender’s right to due process, because the judge adhered to the sentencing procedures outlined in the applicable statutes. While a sentencing judge’s religious comments may violate an offender’s due process rights when they reveal an explicit intrusion of personal religious principles as the basis of a sentencing decision, in the opinion of the Ohio Supreme Court no such constitutional violation occurred in this case. However, on the petitioner’s application to the federal district court for a writ of habeas corpus, the district court, in Case # 1536  (S.D. Ohio), held that petitioner was entitled to conditional habeas relief and was to be resentenced in proceedings presided over by a different judge. In the view of the district court, the impropriety in this case did not stem from the fact that the sentencing judge may have held personal religious beliefs that implicitly may have guided her in her judgments, or even that she may have referred to or quoted Biblical passages during sentencing proceedings. The impropriety lay in the trial judge consulting and relying on a particular Biblical passage as the final source of authority to resolve her “struggle” in determining whether to impose a harsh or more lenient sentence. The Bible verse that served as a factor in the trial judge’s sentencing decision was Matthew 18:5-6, reading, “And whoso shall receive one such little child in my name, receiveth me. But, whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and he were drowned in the depth of the sea.” Said verse could, in the view of the district court, be understood to recommend that those who victimize children should be punished more severely and it appeared to the district court that the Biblical text convinced the trial judge to accord significant weight to the statutory factor of the victim’s age in determining the appropriate sentence. However, a divided Sixth Circuit panel reversed and remanded with instructions to dismiss the habeas petition, concluding that there was nothing in the totality of the circumstances to indicate that the trial judge used the Bible as her “final source of authority.” The Biblical principle of not harming children was fully consistent with Ohio’s sentencing consideration to the same effect and if the trial judge had actually imposed sentence upon a belief that God commanded that defendant be “drowned in the depth of the sea,” one would expect the sentence imposed to be the maximum length possible. In reality, the sentence was in the lower half of the sentencing range allowable under Ohio law. In addition to the Biblical reference, the sentencing judge referred to numerous factors – favorable and unfavorable – that she took into account. And the judge specifically designated the Biblical passage as “one additional source,” not her “final source.” But compare the dissent   Case # 1813 (6th Cir.)

Court holds constitutional provisions of Ohio criminal law that (1) provided that “no person, while operating or participating in the operation of a motor vehicle . . . shall recklessly cause the unlawful termination of another’s pregnancy”, (2) defined the “unlawful termination of another’s pregnancy” as “causing the death of an unborn . . . who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues . . . until live birth occurs”, (3) provided that the definition of unlawful termination of another’s pregnancy is not to be applied to consensual abortions, and (4) exempted pregnant women from prosecution; provisions did not violate equal protection, due process, or the establishment clause of the First Amendment; defendant’s sentence of one year did not constitute cruel and inhuman punishment    Case # 815 (Ohio Ct. App.)

Defendant pastor pled guilty to operating an unsafe vehicle. The plea agreement called for a fine of $150. The trial court, although accepting the guilty plea, did not impose the fine, but ordered defendant to perform community service. In addition, the trial court, determined that defendant’s regular duties as a pastor fully satisfied the community service requirements. Held, the trial court’s determination did not constitute error and did not violate the Establishment Clause   Case # 3038 (Ohio Ct. App.)

Defendant was convicted of operating a motor vehicle under the influence of alcohol. The trial court imposed, for the most part, a suspended sentenced on condition defendant attend Alcoholics Anonymous (A.A.) meetings. Despite decisions by other courts noting that the A.A. program has a “substantial religious component,” the Ohio Court of Appeals held that the trial court did not err by sentencing defendant to mandatory attendance at A.A. meetings because the record before the trial court in the present case was completely void of any evidentiary material demonstrating the religious nature of the particular Alcoholics Anonymous program defendant was required to attend   Case # 3274 (Ohio Ct. App.)

Oklahoma statute making it a felony to, inter alia, maintain a house of prostitution within 1,000 feet of a church did not violate the establishment clause. Nor did the statute constitute an impermissible delegation of legislative power to religious groups, in violation of Article 4, § I of the Oklahoma Constitution. The word “church” in the statute included traditional places of worship for other religious communities, such as synagogues and mosques. The word “church,” was intended to designate a particular kind of building or structure, rather than simply a group of people or a particular religious community. Although religious communities, for various reasons, sometimes meet in settings that are unlike the traditional church structure – which is built to serve as a place of communal worship and functions primarily, if not exclusively, as a place of communal worship – the court declined to decide, in the current case, whether the term “church” included non-traditional structures, such as temporary buildings, residential homes, converted facilities, office buildings, store fronts, etc., that may be used by particular groups, either temporarily or permanently, as a place to gather and conduct religious services. While difficult line-drawing questions regarding the extent of the term “church” could be hypothesized, they were not at issue in the current case   Case # 2539 (Okla. Crim. App.)

In sentencing father, who refused medical treatment for his deceased son, for criminally negligent homicide, his post-death cooperation with the police was a mitigating factor although he may not have shown remorse for his actions or cooperated with the police prior to his son’s death; probation dependent on reporting illness of other children to the probation officer    Case # 266 (Or. Ct. App.)

During the sentencing of defendant for the repeated sexual assault of a child and for possession of child pornography, the trial court, in imposing a much longer sentence than recommended by the presentence investigation report and the state, remarked that “every child is a gift from God,” and that defendant’s conduct was “an abomination in the sight of God and in the sight of man, and . . . totally unacceptable.” Although the court’s invocations of a religious deity were ill-advised, the Wisconsin Court of Appeals affirmed the sentence finding that the judge’s comments did not suggest defendant required a longer sentence to “pay religious penance.” Taken as a whole, the court considered proper factors and linked them to appropriate sentencing objectives and defendant failed to show on appeal that it was highly probable or reasonably certain his sentence was based in part on the circuit court’s notions of religious impropriety   Case # 4696 (Wisc. Ct. App.)

In sentencing defendant for first-degree sexual assault of a minor, the trial court did not erroneously exercise its sentencing discretion by imposing its personal religious beliefs and by failing to adequately explain its reasons for the sentence. The court’s statement to defendant that his conduct “in the sight of God and in the sight of man” was “an abomination” and that “every life in this court’s opinion is a life created and a gift from God, and when man interferes with that life, either to kill that person or in this case to alter that person’s life in a dramatic and substantial way, then that must be addressed” had to be evaluated in context. Reviewed in the context of the entire sentencing transcript, the trial court’s religious beliefs were not the basis for defendant’s sentence. Significantly, each of the court’s religious statements was made in the context of one or more proper sentencing factors. The court’s superfluous religious references merely reflected the accepted societal beliefs that human life, particularly a child’s life, is extraordinarily valuable, and that life altering harm should be treated accordingly. Good review of the cases   Case # 4449 (Wis. Ct. App.)

See also 

Restitution” supra.

Sex Crimes” infra.

Victim Impact Statement” infra.

Medical Care And Procedures, “Failure of Parent to Seek Medical Care For Minor

Parole and Probation

Rehabilitation Programs With Religious Content

Service of Process on the Sabbath

See Service of Process

Sex Crimes

Motion, on religious grounds, to quash subpoenas directing children to testify before a federal grand jury investigating children’s parent denied; parent-child testimonial privilege based on Jewish religious law not available; the Religious Freedom Restoration Act .was not violated because the subpoenas were the least restrictive means of serving the government’s compelling interest; court could rely on government’s ex parte “Schofield affidavit” and, despite the witnesses free exercise defense, did not have to divulge its contents to the witnesses or grant the witnesses an evidentiary hearing on their motion to quash    Case # 503 (3d Cir.), affirming,Case # 347 (D. N.J.)

Tex. Penal Code § 22.011(a)(1) provides that (a) A person commits an offense if the person: (1) intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; (B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.” A sexual assault under subsection (a)(1) is without the consent of the other person if: “the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser.” See § Section 22.011(b)(1)(10). Petitioner, an non-ordained minister of a church that met only in its members’ homes, was convicted under § 22.011(a)(1)(A) and (b)(10). Ultimately he filed a federal habeas petition. The U.S. District Court denied relief and granted a certificate of appealability limited to, inter alia, the constitutionality of § 22.011(b)(10). The Fifth Circuit held that it could not conclude – as required by the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1) – that the decision of the state court upholding the constitutionality of the statute was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the U.S. Supreme Court. Although the Texas Court of Criminal Appeals decision was unaccompanied by an explanation, if there was any objectively reasonable basis on which the state court could have denied relief, the AEDPA demanded that the federal habeas court respect the state court’s decision. (1) Relying on the U.S. Supreme Court’s decision in Lawrence v. Texas, petitioner argued that § 22.011(b)(10) was overbroad because it, inter alia, criminalized constitutionally protected sexual activity. Lawrence held that Texas’s sodomy law violated a substantive due process right to privacy under the Fourteenth Amendment to engage in consensual intimate conduct in the home free from government intrusion. Lawrence’s focus on consensuality doomed petitioner’s overbreadth challenge. Court’s had interpreted Lawrence as recognizing only a narrowly defined liberty interest in adult consensual sexual intimacy in the confines of one’s home and one’s own private life and as not disturbing criminal provisions designed to ensure that sexual relationships are consensual. Given this, it could not be said that it would have been unreasonable for the state court to have concluded that § 22.011(b)(10) reached only sexual activity rendered nonconsensual based on a clergymember’s abuse of his position and that the statute did not, as petitioner argued, implicate protected consensual sexual conduct. (2) Petitioner claimed that the terms “emotional dependency” and “clergyman” in § 22.011(b)(10) were unconstitutionally vague. For the reason stated in its opinion, the panel did not entertain petitioner’s facial vagueness challenge and proceeded to hold that it would not have been unreasonable for the state court to have determined that § 22.011(b)(10) as applied to petitioner was not unconstitutionally vague or indeterminate. The relevant inquiry under the statute involved clear questions of fact: (i) Did petitioner act as a clergymember? (ii) Did he knowingly exploit the victim’s emotional dependency on him in his professional character as spiritual adviser. The answer to these questions did not involve subjective judgments. To be sure, it may be difficult in some cases to determine whether these clear requirements have been met. But courts and juries every day pass upon knowledge, belief and intent – the state of men’s minds – having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. Here, the state court could have reasonably concluded that determining whether petitioner acted as a clergyman who knowingly exploited the victim’s emotional dependency on him in his professional character as spiritual adviser did not implicate either the vagueness doctrine’s fair notice concerns or its selective enforcement concerns. (3) It could not be said that the state court’s rejection of petitioner’s Establishment Clause challenge to §22.011(b)(10) was unreasonable. It was conceded that the statute had a secular purpose and neither advanced nor inhibited religion. The only question was whether it fostered excessive government entanglement with religion. Petitioner argued, inter alia, that § 22.011(b)(10) established a legislative presumption that there can be no consent between a member of the clergy and another and warned that “an unmarried clergyman who dated a parishioner and had sexual contact by mutual consent would be guilty of the crime if the parishioner was emotionally dependent on the clergyman as a religious/spiritual advisor.” This ignored that there can be no “mutual consent” so long as the clergymember knowingly exploits the emotional dependency. In this regard, the section did not target members of the clergy so much as forbid them, given their position of power over the people to whom they minister, from exploiting any emotional dependency that develops. Accordingly, the only legislative presumption that § 22.011(b)(10) seemed to establish was that a clergymember may not exploit another’s emotional dependency after having acted as that person’s spiritual advisor. Given this, it could not be said that the state court’s rejection of petitioner’s Establishment Clause challenge involved an unreasonable application of the Lemon test   Case # 4686 (5th Cir.)

Regulation governing parole of sex offender restricted his contact with children; regulation was not unconstitutionally overbroad and did not result in selective enforcement in violation of equal protection; the regulation did not improperly regulate or burden virtually every aspect of the probationer's conduct, including attendance at church retreat, in violation of his freedom of religion and association; although court addresses substance of probationer’s argument, court also held that the probationer lacked standing to assert a claim of statutory overbreadth on either his own behalf or on behalf of third persons    Case # 953 (Ariz. Ct. App.)

Arkansas Supreme Court upholds constitutionality of state criminal statute prohibiting a member of the clergy from using his position of trust and authority to engage in sexual activity with a victim.   Case # 2578 (Ark.)

Defendant, an unpaid lay pastor who had never been licensed or certified as a minister by any organization, preached the separation of boys and girls and required a chaperone for coed groups. Dating was frowned upon, and defendant stressed the prevention of teenage pregnancy. Defendant digitally penetrated the vagina of a teenage congregant who had consulted defendant because she was upset that she had “done something with a guy.” Defendant performed the act under the pretense that he was checking to see if the victim was a virgin. Defendant was convicted of, inter alia, sexual penetration of a person “unconscious of the nature of the act” in violation of Cal. Pen. Code § 289(d)(4). The term “unconscious of the nature of the act” was defined in part as meaning “incapable of resisting because the victim . . . was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.” The court rejected defendant’s contention that because he was an unlicensed and unpaid pastor he could not have had a purported “professional purpose” and therefore the victim could not have believed that defendant had a “professional purpose” and could not have been misled regarding his true intentions. The term “professional purpose” was not limited to the representations of those perpetrators subject to state certification requirements, but included clergy, including unlicensed/ uncertified and unpaid pastors. The precise nature of the perpetrator’s employment is less important than the appearance of authority and of a legitimate purpose that allows the perpetrator to penetrate the victim without the victim’s understanding of the true nature of the act. The statute does not require that the perpetrator have a specified level of training, licensing, or employment. As the recognized pastor of an organized church, defendant was a member of the ministry regardless of his precise qualifications. Regardless of defendant’s employment status and lack of “official” credentials, the evidence supported a finding that the victim spoke to defendant in his capacity as the pastor of the church. In this context, the jury could conclude that defendant’s actions to verify her virginity had the sheen of a “professional purpose.” The trial court did not commit error in allowing questioning regarding the religious beliefs or practices of defendant. Some discussion of religious beliefs was appropriate given defendant’s position in the church, the presence of strict doctrine regarding the behavior of young churchgoers, the nature of the charges against defendant, and the behavior of the victims. The admission of testimony regarding defendant’s religious beliefs did not deprive him of his First Amendment rights to the free exercise of religion or violate Cal. Evidence Code § 789 making evidence of religious belief or lack thereof inadmissible for the purpose of attacking or supporting the credibility of a witness   Case # 3215 (Cal. Ct. App.)

A grand jury subpoenaed documents from the Roman Catholic Archbishop of Los Angeles and two priests for an investigation into allegations that the priests sexually assaulted children. The trial court overruled most of the objections by the Archdiocese and the priests. The Court of Appeal sustained the objection to one psychotherapist memorandum and in all other respects denied the petitions for writ of mandate, prohibition, or other appropriate relief. The Court disagreed with the argument that disclosure was barred by U.S. Const., 1st Amend., and Cal. Const., art. 1, § 4. The federal free exercise clause did not relieve the Archdiocese and priests of the obligation to comply with the statutory and common law basis of California’s grand jury process, a valid and neutral law of general applicability. California’s free exercise clause also did not bar disclosure, even under a strict scrutiny test, because the grand jury’s investigation into suspected child molestation served a compelling state interest and was narrowly tailored to achieve that interest. Disclosure was not barred by the establishment clause because the primary effect of enforcing the subpoenas would not require the government either to interfere with the internal workings of the Archdiocese or to choose between competing religious doctrines. Further, documents made in the course of “troubled-priest interventions” were not privileged as penitential communications under Cal. Evid. Code § 1032, because both parties to the original communication knew it would likely be transmitted to a third person. It did not matter if the third person was another priest, even if said third party was considered the Cardinal’s surrogate for dealing with troubled priests. One memorandum to a priest’s psychotherapists was subject to the psychotherapist-patient privilege under Evid. Code § 1012, because the communication was “reasonably necessary” to accomplish the purpose for which the psychotherapist was consulted. This document was a memorandum from a member of the Vicar for Clergy’s staff to a priest’s psychotherapists supplying the therapeutic team with information about a troubled priest’s personal history as an aid to diagnosis and treatment. This document was appropriately shielded by the psychotherapist-patient privilege because it was a disclosure reasonably necessary to accomplish the purpose for which the psychotherapist was consulted, namely, diagnosis and treatment of the patient. This was not true of the other documents for which the psychotherapist-patient privilege was asserted. The court also addressed and rejected, assertions by the Archdiocese and priests that the documents were, inter alia, protected by the attorney-client and attorney work product privileges; that the subpoenas improperly sought information as to criminal acts of child molestation for which the statute of limitations had run; that the subpoenas were impermissibly vague   Case # 2221 (Cal. Ct. App.)

Roman Catholic clergyman who reported incident of suspected child abuse by fellow clergyman, as required by California’s Child Abuse and Neglect Reporting Act, stated causes of action for intentional infliction of emotional distress and for defamation against the Archbishop when he alleged that defendant retaliated against him for reporting the incident by (1) discrediting his report to law enforcement officials; (2) relieving him of his duties and putting him on administrative leave; (3) falsely reporting to other clergy and members of the archdiocese that plaintiff committed inappropriate conduct during church functions; (4) demanding that plaintiff submit to a psychological evaluation; and (5) causing a letter to be published in a local paper in which the diocese’s director of communications falsely accused plaintiff of engaging in a witch hunt against the reported clergyman; First Amendment did not grant defendant immunity from suit    Case # 1109 (Cal. Ct. App.)

Defendant pastor was convicted of sexual assault in the first degree and risk of injury to a child. In her final argument to the jury, the prosecutor had stated, in part: “ . . . We have a sixteen year old girl who has had something happen to her, she says. . . She has taken an oath, an oath that you might find has real significance for her based on what is undisputedly a very religious and devout life. That’s something for you to consider when you consider her taking the oath and making these statements under oath.” Later, when discussing the victim’s parents, the prosecutor stated: “The question of a financial gain has been touched upon during the evidence. [The victim’s] father is an attorney; he is well aware of his rights and remedies. Two years have passed, and no lawsuit has been filed based on these claimed incidents. . . . I’d like you to think about the idea that these two very involved, devout, and obviously very earnest parents would put [the victim] through this for the sake of financial gain. I don’t think that’s reasonable but, ultimately, again, that’s something you need to consider.” The Court rejected defendant’s argument that the state’s reference to religion (a) improperly bolstered the victim’s testimony and (b) violated the federal constitutional prohibition against the establishment of religion and the Connecticut constitutional prohibition against religious preference. The court rejected, inter alia, the argument that by focusing attention on the fact that the victim had given evidence under oath before the jury, the prosecutor’s remark improperly directed the jury’s attention to the fact that the jury had not heard from the defendant., But compare the concurring opinion   Case # 3175 (Conn. App. Ct.)

Closing argument in trial of defendant for child molestation and incest against his minor daughter comparing defendant to David Koresh, the deceased leader of the cult of Branch Davidians, was permissible    Case # 248 (Ga. Ct. App.)

Defendant Roman Catholic priest was convicted of violating Minn. Stat. § 609.344, subd. 1(l)(ii) (2006), Minnesota’s “clergy sexual conduct statute,” which provides, in relevant part, that: “A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . (i) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: . . . (ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private.” The Minnesota Supreme Court (1) unanimously held that the statute was not unconstitutionally vague. The Court held that the terms “ongoing” and “religious or spiritual advice, aid, or comfort,” as used in the statute had acquired a reasonably definite meaning so as to provide a sufficiently fixed legal standard to determine what is prohibited. (2) The Court divided equally (3 to 3) over whether the statute facially violated the Establishment Clause. Because the Court was equally divided on the question, it affirmed the decision of the intermediate appellate court that the statute was not facially unconstitutional. (3) However, the Minnesota Supreme Court, by a vote of 5 to 1, concluded that defendant’s conviction, based on the admission of extensive testimony by officials of the Archdiocese concerning religious doctrine and church policies and practices, violated the Establishment Clause. Thus, the Court reversed defendant’s conviction and remanded for a new trial. The majority was of the opinion that virtually all of the testimony lacked foundation to connect it to any secular standard, was irrelevant to any secular standard, was inadmissible hearsay evidence, and was highly prejudicial. The testimony bolstered the state’s claims by informing the jury that the Church condemned defendant’s behavior and that the Church believed that it was important that defendant be held accountable. The testimony thus provided religious standards by which the jury was to judge defendant’s conduct and suggested to the jury that a conviction would be important in assisting the Catholic Church in solving the problem of offending priests.   Case # 3028 (Minn.).  On remand, defendant was convicted of third-degree criminal sexual conduct and the Court of Appeals, in an unpublished opinion, affirmed, holding that: (1) On remand, the religion-related testimony by an official of the Roman Catholic Church did not excessively entangle church doctrine with civil law. Unlike the first trial, on retrial there was no testimony regarding Catholic Church doctrine, the power that priests have traditionally had over parishioners, or internal church procedures regarding allegations of abuse. But because the charging statute required proof of certain elements that directly touched and concerned religious practices, it was impossible to prove the charged offense without some religion-related testimony. (2) The trial court did not err by excluding love letters written by the victim to defendant. Although the letters may have shown that the victim’s sexual relationship with defendant was consensual, consent was not a defense to the charge. (3) The trial court’s instruction to the jury on the elements of the offense based strictly on the Pattern Jury Instruction was not an abuse of discretion. (4) There was sufficient evidence to establish criminal liability. A reasonable jury could conclude that the victim and defendant had an ongoing clergy-counselee relationship. In order to violate the statute, sexual penetration did not have to occur during or immediately following a private meeting in which the primary purpose was religious or spiritual aid, advice or comfort. The statute proscribed a sexual relationship between a member of the clergy and a parishioner if “the sexual penetration occurred during a period of time” in which the parishioner and the member of the clergy were meeting on an ongoing basis and the parishioner was seeking or receiving religious or spiritual advice, aid or comfort. In addition, the “in private” element of the statute was satisfied. (5) The prosecutor, in her closing statement did not misstate the law or impermissibly shift the burden of proof   Case # 3752 (Minn. Ct. App.)

Pursuant to Minn. Stat. § 609.344, subdivision 1(l), a person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and (i) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or (ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense. In the instant case, the defendant, a Roman Catholic priest, was convicted of sexual penetration “during the course of a meeting” where religious advice or assistance was sought or received in private in violation of § 609.344, subd. 1(l)(i). On appeal, the Minn. Court of Appeals held that § 609.344, subd. 1(l)(i) does not violate the Establishment Clause of the U.S. Constitution on its face. However, despite its facial validity, application of § 609.344, subd. 1(l)(i) in the instant case violated the Establishment Clause. because defendant’s conviction was based on excessive evidence regarding religious doctrine which pervaded the entire trial. The conviction was vacated and the case remanded for retrial. During the trial, evidence was presented and received regarding the power imbalance between priests and parishioners, stemming from priests’ religious authority, the prosecutor having presented extensive evidence on Roman Catholic doctrine regarding the religious authority of priests over parishioners. The prosecutor also presented evidence regarding the church’s policies on pastoral care, on Roman Catholic doctrine regarding sexual conduct involving priests, and the church’s concerns about priest misconduct. The cumulative effect of this evidence was to establish the Roman Catholic Church’s strong moral condemnation of priests who engage in sexual conduct and the church’s internal policies on maintaining boundaries in pastoral-care relationships. This evidence concerned religious standards for pastoral care, a topic presenting a serious risk of excessive government entanglement and the evidence “bolstered the state’s claims by informing the jury” that the Roman Catholic Church condemned defendant’s behavior. There was also extensive evidence on the church’s response to the victim’s complaints about defendant’s conduct. Said evidence informed the jury that defendant’s conduct violated church standards. The church also vouched for the victim’s credibility through the testimony of church officials who reiterated the victim’s report of defendant’s sexual misconduct. The testimony suggested to the jury that a conviction would be important not only “to assist the Catholic Church in solving the problem of offending priests,” but, in light of what the state portrayed as a bungled response to the victim’s complaints about defendant to church officials, also to hold the church to its own standards. Finally, the prosecutor elicited extensive testimony about defendant’s religious and moral training, providing the jury with religious standards for judging defendant’s conduct. It invited the jury to determine defendant’s guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests. For details of (i) the testimony elicited from the victim, the defendant and church officials by the prosecutor and (ii) the prosecutor’s closing arguments, see the court’s opinion. Although some of the religious evidence could be characterized as part of the state’s effort to prove an element of the crime – that the victim sought and expected to receive religious counsel when she met with defendant – this could have been established without detailed reference to the victim’s understandings regarding the spiritual authority of priests, the degree of defendant’s religious impropriety, and the role of the Roman Catholic Church in connection with his misconduct. The elements of the offense could have been proven on a secular basis. For example, apart from any reference to religious doctrine, it was significant that the sexual conduct occurred at the church rectory and occurred immediately after the victim and defendant established a priest-parishioner relationship. Here the religious evidence was excessive., leading to an act of the state – the conviction – that was excessively entangled with religion. Throughout the trial, the parties did not strictly focus on the secular question of whether the victim had sought religious aid or counsel from defendant. Rather, they strayed into subsidiary issues regarding defendant’s violation of Catholic doctrine and his moral culpability under religious standards. Although the trial court provided standard secular jury instructions, it did not provide any instructions limiting the jury’s use of the doctrinal evidence. To the contrary, based on the state’s pretrial assurances that it would not present evidence of religious doctrine, the trial court denied defendant’s request for an instruction directing the jury not to apply Roman Catholic doctrine. Further, in closing argument, the prosecutor referenced religious standards to bolster defendant’s culpability   Case # 4593 (Minn. Ct. App.)

Plaintiff wife entered into sexual relationship with a parish priest. Under the facts, the priest did not provide psychotherapy to plaintiff wife within the meaning of Minnesota statutory law and therefore the cause of action against the priest for the sexual contact that occurred during or after the period plaintiff wife was alleging receiving psychotherapy was properly dismissed. However, the lower court erred when it granted summary judgment to the defendant priest on the plaintiff wife’s civil claim for personal injury. Said claim was based on the alleged criminal sexual contact between the priest and plaintiff wife. The district court had held unconstitutional, on the basis of the Establishment Clause, those statutes criminalizing the sexual contact made by a member of the clergy with another person during a period of time during which the other person was seeking or receiving religious or spiritual advice, aid, or comfort. The statutes were not facially unconstitutional. Consequently, the personal injury action, along with the dependent claims – the husband’s claim for loss of consortium and the actions against the diocese for negligent hiring and retention, negligent supervision, and strict liability – were all remanded to the district court for consideration    Case # 1473 (Minn. Ct. App.)

Defendant’s parole, which was dependent upon participation in a sex offender program, was revoked because his refusal to admit that his fondling of a four year old was sexual in nature and therefore culpable resulted in his rejection from any program; defendant’s claim that he had a state constitutional right to freedom of conscience not to be compelled to tell what he considered  to be a lie was rejected; Minn. Const. Art. 1, § 16, applies only when a religious belief is at issue and is not a freedom of conscience clause; in addition, a sex offender has no constitutional right to rehabilitative treatment and termination of a sex offender from treatment because he does not admit the inappropriateness of his conduct does not violate due process or Fifth Amendment rights     Case # 636 (Minn. Ct. App.)

Having been convicted in 1993 of a nonviolent sex offense against a minor, plaintiff was required to register with the Va. State Police as a sex offender. However, as a nonviolent offender, plaintiff could petition the circuit court to have her name removed from the Registry. In 2008, Va. Code § 9.1-910 was amended to reclassify the offense for which plaintiff had been convicted in 1993 as a sexually violent offense. As a result, plaintiff was now required to remain on the Sex Offender Registry for life. In addition, as a violent sex offender, plaintiff, who had minor children, was now barred from “entering and being present, during school hours and during school-related and school-sponsored activities,” on any property that was a public or private school or a child daycare center unless, pursuant to Va. Code § 18.2-370.5, she first petitioned and received permission from both the circuit court and from the appropriate school officials. Plaintiff alleged that barring her from her children’s school violated her substantive and procedural due process rights under the Fourteenth Amendment to direct the upbringing and education of her children and violated her associational rights under the First and Fourteenth Amendments. She also alleged a violation of her First Amendment free exercise of religion rights, because the registration law and its procedures frustrated her ability to attend churches with adjoining daycares. Plaintiff asked the court to: (i) declare § 18.2-370.5 and the 2008 amendment to § 9.1-910 reclassifying her 1993 offense as a sexually violent offense as unconstitutional; (ii) enjoin the County Board of Education from preventing her from entering school property and ordering it to implement a procedure by which plaintiff could anonymously petition the Board to enter and remain on school property without having to disclose her identity. (iii) enjoin the state police from classifying plaintiff as a violent sex offender, and stopping them from collecting, maintaining, and making publicly available her information in the Registry. (iv) order the state police to provide plaintiff with a procedure by which she could contest the reclassification of her crime, allowing her to prove that she was not dangerous. Held: (1) Plaintiff’s claims against the state Department of Police was barred by Eleventh Amendment, but her action against the state superintendent of police in his official capacity for declaratory and injunctive relief could proceed. (2) With one exception, the case was not ripe for adjudication, nor did plaintiff have standing. Plaintiff did have standing to assert her claim against the superintendent of the police in his official capacity that she should not be listed on the sex offender registry and said claim was ripe for adjudication. (3) Addressing the merits of all of plaintiff’s claims in order to provide a full record for any appeal, the court held that plaintiff’s complaint failed to state a single cause of action   Case # 4304 (E.D. Va.)

Sentence imposed on defendant guilty of sexual assault on a minor reversed because reasonable person could conclude that judge’s religious views concerning homosexuality were a factor in the sentencing    Case # 222 (Neb.)

Indeterminate sentence of 4 to 6 years' imprisonment for defendant convicted of first degree sexual assault on a 13 year child was not excessive or an abuse of discretion even though defendant may have been ignorant of the illegality of his act, the child had been given in marriage by her father, and such marriages may have been legal and customary in defendant’s native Iraq    Case # 221 (Neb. Ct. App.)

Defendant, who was not an ordained member of any clergy, nor licensed to engage in mental health practice, was hired by a county prison as a part-time spiritual services coordinator. In that capacity, he regularly met with inmates to conduct “one-on-one counseling” and “spiritual counseling.” Defendant was convicted of aggravated felonious sexual assault and sexual assault for having sex with a female inmate during counseling sessions. Defendant was convicted under statutes making it a felony to engage in sexual penetration (or making it a misdemeanor to engage in sexual contact) with another person when the actor provides, inter alia, therapy to the victim and in the course of the therapeutic relationship acts in a manner or for purposes which are not professionally recognized as ethical or acceptable. The New Hampshire Supreme Court reversed defendant’s conviction because, however inappropriate the sexual conduct may have been, the charged sexual acts did not occur within the context of a “therapy” relationship within the meaning of the statutes. The legislature defined “therapy” to mean “the treatment of bodily, mental, or behavioral disorders by remedial agents or methods.” The Court interpreted this to mean that the term “therapy” encompasses activity whereby an actor implements a planned action for another person’s “bodily, mental, or behavioral” disorder by affording him or her some systematic cause or measure, procedure, or technique or particular approach in order to cure, remove, counteract, relieve, or abate that disorder. Here, defendant, at most, offered the victim spiritual or practical advice or guidance in order to ameliorate her emotional struggles and to help her cope better behaviorally. On one occasion, defendant affirmed that it was a “good thing” that the victim was using meditation as a coping tool. Additionally, at the request of prison officials, defendant encouraged the victim to take her prescribed medication. Defendant’s conduct in affording the alleged victim an attentive and empathetic audience, and in encouraging her to freely talk about her personal difficulties and disclose sensitive information about herself, proved to be a valuable exercise for her. But defendant did not engage in a planned action or a systematic cause or measure, procedure, technique or any particular approach in order to cure, remove, counteract, relieve, or abate the alleged victim’s “bodily, mental, or behavioral disorders.” Defendant’s own characterization of his work as “counseling sessions” or therapeutic in nature and his awareness of the alleged victim’s bipolar diagnosis and thoughts of suicide, his characterization of her as confused, troubled and disturbed, and his encouragement that the victim take her prescribed medication did not transform their regular discussion time into treatment of a bodily, mental, or behavioral disorder through the use of remedial agents or methods   Case # 3908 (N.H.)

Oklahoma statute making it a felony to, inter alia, maintain a house of prostitution within 1,000 feet of a church did not violate the establishment clause. Nor did the statute constitute an impermissible delegation of legislative power to religious groups, in violation of Article 4, § I of the Oklahoma Constitution. The word “church” in the statute included traditional places of worship for other religious communities, such as synagogues and mosques. The word “church,” was intended to designate a particular kind of building or structure, rather than simply a group of people or a particular religious community. Although religious communities, for various reasons, sometimes meet in settings that are unlike the traditional church structure – which is built to serve as a place of communal worship and functions primarily, if not exclusively, as a place of communal worship – the court declined to decide, in the current case, whether the term “church” included non-traditional structures, such as temporary buildings, residential homes, converted facilities, office buildings, store fronts, etc., that may be used by particular groups, either temporarily or permanently, as a place to gather and conduct religious services. While difficult line-drawing questions regarding the extent of the term “church” could be hypothesized, they were not at issue in the current case   Case # 2539 (Okla. Crim. App.)

The Texas Penal Code provided that sexual intercourse is without consent if “the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual advisor.” The statute required only that the actor be a clergyman who causes the other person to submit or participate in the sexual activity while the clergyman is acting as a spiritual advisor. Defendant pastor argued that the statute in no way forbids a man who happens to be a preacher and a spiritual advisor from having an affair with a woman who happens to be a member of his church. He argued that the law requires both the exploration of the complainant’s emotional dependency on the actor while in his professional role as a spiritual advisor and also the actor’s purposeful exploitation of that emotional dependency. The court rejected defendant’s argument   Case # 3204 (Tex. Ct. App.)

Virginia sodomy statute made it a felony to voluntarily engage in anal or oral sex; the statute did not constitute an establishment of religion or impose cruel and unusual punishment; nor did the statute violate appellants’ right of privacy as their conduct took place in a public park, not in private; appellants did not have standing to complain of the potential application of the statute to other persons or to their private activities    Case # 977 (Va. Ct. App.)

Defendant’s conviction on two counts of first degree sexual assault was reversed and remanded for retrial. The trial court (1) committed “plain error” in allowing the State to offer evidence of the alleged victim’s religious beliefs in order to bolster the victim’s credibility and (2) committed prosecutorial misconduct in its opening and closing remarks in the manner it referenced the alleged victim’s religion and vouched for the record   Case # 2383 (W. Va.)

A pastor who had provided marital counseling to members of his church and who, inter alia, enered into a sexual relationship with the wife, was convicted for sexual exploitation by a therapist, contrary to Wis. Stat. § 940.22(2). The conviction was overturned and the case remanded for a new trial. The State, by charging the pastor with sexual exploitation by a therapist, was required to prove that the pastor was or held himself out to be a “therapist.” See Wis. Stat. § 940.22(2). A therapist was defined as a “physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.” Sec. 940.22(1)(i). "Psychotherapy" was defined Wis. Stat. § 455.01(6) to mean “the use of learning, conditioning methods and emotional reactions in a professional relationship to assist persons to modify feelings, attitudes and behaviors which are intellectually, socially or emotionally maladjustive or ineffectual.” The Court of Appeals held that the jury instruction improperly concluded that as a member of the clergy, the defendant was ipso facto a therapist and that by not requiring that the state prove that he actually performed or purported to perform “psychotherapy” it relieved the state of its burden to prove that he was a “therapist,” an element of the offense charged   Case # 1961 (Wis. Ct. App.)

On discovery of church records in criminal actions against a clergyman, see Discovery

Sikhs

Kirpan, or symbolic sword, as concealed weapon   Case # 88 (Ohio App. Ct.)

Sodomy

On laws criminalizing sodomy, see Sodomy

Spiritual Healing As Defense in Prosecution For Negligent Homicide

Criminally negligent homicide statute was not unconstitutionally vague just because it did not allow for a defense of spiritual healing while such a defense was permitted under the criminal mistreatment statutes   Case # 266 (Or. Ct. App.)

Stalking

See Stalking

Theft of Church Property by Priest

Defendant pastor was convicted of grand theft of property valued between $20,000 and $100,000 from a Catholic Church, having used parish funds for his own personal benefit rather than for the benefit of the parish. Affirming the conviction, the Florida District Court of Appeal found that the trial court was correct in finding that there was sufficient evidence to sustain the conviction of grand theft and in rejecting the argument that the discretion accorded to defendant as a parish priest in handling parish funds foreclosed any inference that he took the property of another. The case rose or fell on the intent of defendant when he used parish money and removed cash from the weekly offertory and whether such acts were for his personal benefit, unrelated to parish purposes, and there was sufficient competent evidence of grand theft for the jury to find defendant guilty. The Court of Appeals also held that, based on the specific facts of the case, defendant’s prosecution did not constitute an "excessive entanglement with religion" in violation of the U.S. and Florida Constitutions. Defendant pastor’s prosecution for spending parish money did not create an excessive entanglement of the government in the determination of canon law. Significantly, there were no statements by diocesan officials stating that defendant’s transgressions were an ecclesiastical matter and not a criminal infraction. In fact, diocesan officials testified that defendant’s expenditures and procedures were improper and against diocesan procedures. The trial court was not asked to resolve an internal church dispute and simply applied neutral principles of criminal law to convict defendant of grand theft   Case # 4315 (Fla. Dist. Ct. App.)

Court would not exercise jurisdiction over criminal prosecution of Catholic priest charged with misappropriating church property for his personal use where the Bishop refused to join the prosecution for violation of church authority    Case # 504 (N.D.), Case # 220 (N.D.)

Traffic Violations By Religious Protesters

Two women who were religious activists protesting what they perceived as Walt Disney’s support of homosexuality by demonstrating on a narrow, grassy island that bordered a heavily trafficked intersection were initially held not to have standing to challenge the application of two traffic laws under which three other protesters were arrested after entering onto the roadway. The district court also held that the challenged statutes were not unconstitutional on their face. Case # 478 (M.D. Fla.). The Eleventh Circuit reversed and remanded, holding that the district court was required to conduct an evidentiary hearing before resolving the disputed factual issues as to standing and could not make credibility determinations based solely on the contents of a plainly conflicting paper record. On remand, the district court held, inter alia, that the two unarrested plaintiff’s had standing to facially challenge the traffic laws under which three other protesters were arrested. Upon witnessing the arrest of three protesters the remaining activists feared the possibility of their own arrest and thus refrained from exercising their First Amendment right. The threat of arrest was not limited to those who stepped in the road. The Sheriff himself argued in his brief that protestors who did not go into the street, but merely approached vehicles to solicit, nevertheless violated Florida law and were thus subject to arrest. The challenged traffic laws were facially unconstitutional Fla. Stat. § 316.2045 was facially unconstitutional because it was content-based and vague and because it was not narrowly tailored to meet compelling state interest, but rather it was overbroad; Fla. Stat. § 316.2055 was facially unconstitutional because it was not narrowly tailored to meet a significant state interest   Case # 2373 (M.D. Fla.)

Tresspass

A church sought a restraining order to prevent an expelled member from trespassing on church property and engaging in disruptive conduct. The church, like any nonsectarian property owner, could decide whom to allow on its premises. Nor did this case require the resolution of an ecclesiastical dispute. Accordingly, the trial court was directed to grant a temporary restraining order    Case # 1279 (Cal. Ct. App.)

Discharged pastor’s action for malicious prosecution after he was arrested for criminal trespass dismissed    Case # 104 (Ga. Ct. App.)

Defendant pastor was found guilty of trespass. Court rejects contention that defendant’s prosecution and conviction under the trespassing statute violated the free exercise clause of the First Amendment. Trespassing statute was general and neutral   Case # 2641 (Mass.)

After the pastor of a local Massachusetts Church of God passed away, plaintiff Bishop was designated as interim pastor by the Church of God International in Tennessee despite the resistance of some members of the local congregation. Pursuant to the Mass. trespass statute, whoever, without right, enters or remains in or upon the buildings, or improved or enclosed land of another after having been forbidden so to do by the person who has lawful control of said premises, either directly or by notice posted thereon, or in violation of a court order, is subject fine or imprisonment. At the direction of opponents of the Bishop claiming to be “directors” of the local church, an attorney drew up a “Notice of Trespass” and had it served on the Bishop. Thereafter, one of the “directors” filed a complaint with the city police that the Bishop was trespassing on the local church property. Plaintiffs claimed the “directors” behind the Notice of Trespass were not in fact directors of the church, no election for directors or officers having been held. Although never arrested, the Bishop, at the direction of the Chief of Police, was threatened with arrest for trespass should he be found on church property. In response to the Bishop’s claim that he had every right to be on the church grounds and his offer to show documentation of his ecclesiastical authority, the Police Chief responded that the Bishop should take the matter up with the courts. The Bishop, local church and the International asserted against the City and Police Chief (i) a 42 U.S.C. § 1983 claim for violation of their First Amendment free exercise of religion rights and (ii) a claim under the Massachusetts Civil Rights Act (MCRA) for violation of their federal and Massachusetts constitutional rights. Held: (1) Because a municipality cannot be sued under the MCRA, the MCRA claims against the city and the police chief, who was sued only in his official capacity, were subject to dismissal. (2) The Trespass Notice issued and caused to be served on the Bishop by an attorney at the direction of those claiming to be the church “directors” complied with the requirements of the state’s trespass statute. (3) Plaintiffs’ § 1983 claim asserted that the Chief of Police was a decision maker vested with the authority to establish city policy with regard to enforcement of trespass orders and that said policy ran afoul of the First Amendment. In granting summary judgment in favor of defendants on this claim the court held (a) the city itself had no policy or custom with regard to enforcement of trespass orders and there was no support for plaintiffs’ assertion that the Chief of Police had final policy-making authority under state law with regard to trespass notices. But even if he did, (b) plaintiffs failed to articulate exactly what they believed to be the offending policy. See court’s opinion for this aspect of the case. (c) Asserting that the Church of God was a hierarchical church, and that the International had appointed the Bishop as interim pastor of the local church and, by so doing, had effectively declared him as the person “in lawful control” of the property, plaintiffs argued, in effect, that the First Amendment required the city and police officials to defer to said decision and not threaten the Bishop with arrest on the basis of a trespass notice issued at the direction of a dissident group. In rejecting this argument, the court said that while the Church of God may well have been a hierarchical church and, as such, endowed with the right to resolve disputes about church governance internally without interference from the courts or civil servants, plaintiffs’ claim that the Chief of Police improperly chose who should serve as pastor of the local church was a mischaracterization of the role he played in enforcing the Notice of Trespass. Given the number of trespass orders the police received on a daily basis, an in-depth inquiry into whether each one was issued by the person who had lawful control of the property was not feasible or within the scope of the police department’s responsibility to enforce trespass notices/orders. This was not a case where it was claimed that the Police Chief interfered with the International’s decision to appoint the Bishop as interim pastor and there was no evidence that the Chief intended to enforce the Notice of Trespass against plaintiffs for the purpose of discouraging their exercise of First Amendment rights. Rather, the court was presented with a claim against the Chief of Police for enforcing a duly issued trespass notice and the First Amendment does not preclude enforcement of validly issued trespass orders against members of the clergy which are issued, as in this case, pursuant to a valid and neutral law. The Bishop was as subject to a duly issued Notice of Trespass as any other citizen and the Chief of Police, in ordering enforcement of a valid trespass notice, did not encroach on the protections afforded religious institutions with regard to internal organizational disputes. To be sure, given that the Trespass Notice was engendered by the claimed “directors” of the church, plaintiffs may well have had viable claims against them, but plaintiffs claims against the “directors” had been settled   Case # 4301 (D. Mass.)

Plaintiff pastor, who was preaching and handing out religious literature on the Ohio Statehouse grounds without a permit was charged with criminal trespass after refusing to leave the grounds upon the request of the police. Plaintiff’s moved n state court to dismiss the state criminal charges on the ground that Ohio Revised Code § 2911.21(A)(2), the criminal trespass statute under which he was charged, and Ohio Administrative Code § 128-1 et seq., governing the requirement that all persons who wished to use the Ohio Statehouse grounds first obtain a permit, violated due process, freedom of speech, and the free exercise of religion. On November 17, 2000, the Franklin County Municipal Court held that the challenged statutes were constitutional and denied the motion to dismiss. The state court denied the motion to dismiss and plaintiff was eventually found guilty of criminal trespass and fined $100. Plaintiff appealed the decision to the Court of Appeals of Ohio, but later filed a motion to dismiss his appeal, which was granted. Thereafter plaintiff filed suit in federal district court challenging the constitutionality of Ohio Administrative Code § 128-4 Plaintiff alleged, inter alia, that the permit requirements were unconstitutionally overbroad, vague, and discriminatory in violation of his rights to free speech and free exercise of religion. He claimed that the continued threat of enforcement of Ohio Administrative Code § 128-4 chilled and deterred plaintiff from exercising his constitutional rights, causing irreparable harm to plaintiff. Defendant’s sought dismissal of the suit in federal court under the Rooker-Feldman doctrine barring U.S. district courts from hearing challenges to state court judgments and claims that are “inextricably intertwined” with state court judgments. However, because plaintiff did not seek to have the federal district court overturn his state conviction for criminal trespass, the Rooker-Feldman doctrine was inapplicable to the federal lawsuit. Plaintiff was simply seeking to clear away the allegedly unconstitutional permit requirement so that he could preach and hand out religious tracts on Capitol grounds in the future unimpeded by the permit requirement. However, the fact that plaintiff raised the same constitutional issue in the state court proceeding could potentially justify dismissing the federal suit on the ground of issue preclusion. But this matter was left to the district court on remand. Compare the dissent, arguing that the Rooker-Feldman doctrine barred the federal district court from exercising subject matter jurisdiction over plaintiff’s constitutional challenge to the permit scheme    Case # 1479N (6th Cir.) (Ohio law)

Temple member’s conviction for criminal trespass after temple officials asked him to leave affirmed; no unconstitutional interference with freedom of religion    Case # 146 (Ohio Ct. App.)

Court holds constitutional provisions of Ohio criminal law that (1) provided that “no person, while operating or participating in the operation of a motor vehicle . . . shall recklessly cause the unlawful termination of another’s pregnancy”, (2) defined the “unlawful termination of another’s pregnancy” as “causing the death of an unborn . . . who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues . . . until live birth occurs”, (3) provided that the definition of unlawful termination of another’s pregnancy is not to be applied to consensual abortions, and (4) exempted pregnant women from prosecution; provisions did not violate equal protection, due process, or the establishment clause of the First Amendment; defendant’s sentence of one year did not constitute cruel and inhuman punishment    Case # 815 (Ohio Ct. App.)

Portions of a College Green had been opened up as a non-traditional public forum, but a portion of the Green, on which stood a Civil War Monument, was reserved by the University as a nonpublic forum at which only private speech was allowed; defendant preacher who became involved at the Monument in heated discussion with students was asked by campus police to leave the University grounds and when he refused he was arrested; conviction for criminal trespass upheld; the Monument area was a nonpublic forum, not a traditional public forum, or an area opened up as a non-traditional public forum; college police did not discriminate against defendant in enforcement of the college’s policies, nor was the college’s policy void for vagueness    Case # 1017 (Ohio Ct. App.)

Plaintiff, disfellowshipped by the Jehovah’s Witnesses for apostasy, was arrested and convicted for trespass and disrupting a religious service in violation of City and State laws when he refused to leave church services as requested by the congregation. Held: (1) the court could not review the church’s authority to exclude plaintiff from attending services; it was purely an internal matter for the church to resolve. (2) The church, in the exercise of its own rights of free exercise and association, could call upon the City to enforce civil trespass laws. (3) Enforcement of the state and local statutes did not infringe on plaintiff’s right of free exercise under the First Amendment. (4) The expenditure of City funds to prosecute and incarcerate plaintiff did not constitute an establishment of religion. (5) The City and State statutes were not unconstitutionally vague as applied to plaintiff. (6) Plaintiff was not denied the equal protection of the law when the City prosecuted him for trespassing. (7) Plaintiff failed to state claims under 42 U.S.C. §§ 1983 and 1985(3)   Case # 2388 (N.D. Okla. )

Defendant street preacher’s conviction for criminal trespass in the second degree affirmed. The basis for the conviction was defendant’s entering onto the grounds of a public school (in this case an open walkway between the public sidewalk and the school entrance) after the school’s principal had told him not to enter. The court rejected defendant’s argument that he was engaged in constitutionally protected conduct on public property and that any attempt to exclude him was unlawful. Although, in a sense, the walkway on the public school grounds was public property, it was not a “public forum” open to defendant and the school principal had the lawful authority to impose restrictions on defendant’s use of said property. Court analyzes defendant’s free speech rights under both the First Amendment and Or. Const. Art. I, § 8   Case # 3009 (Or. Ct. App.)

The State Fair of Texas, Inc. (SFOT), a private, non-profit corporation, operated the annual State Fair of Texas on public fairgrounds leased from the City of Dallas. SFOT regulated all expressive activities on the premises during the Fair. Pursuant to regulations issued by SOFT governing the distribution of literature on the fairgrounds, plaintiff, a visitor to the fair, was prevented from distributing his religious literature and escorted from the grounds when he refused to desist. Plaintiff was not prohibited from initiating purely verbal conversations with patrons on the grounds of the Fair and he could have distributed Bible tracts from a rented booth at the State Fair. However, plaintiff believed that using a booth was not a viable or effective method of reaching his audience. Plaintiff sued SFOT and the City of Dallas under 42 U.S.C. § 1983 for violating his First Amendment right to practice his religion by distributing Bible tracts at the State Fair. The district court entered judgment for the defendants because plaintiff failed to establish the threshold requirement of state action necessary to maintain a claim against defendants under 42 U.S.C. § 1983. The Fifth Circuit Court of Appeals affirmed, agreeing that SFOT’s conduct in enacting and enforcing its restriction on the distribution of literature was not “fairly attributable” to the City, as the city had no role in planning, advertising, or managing the fair and no direct involvement in regulating expressive activities at the State Fair. Although the City assigned some 160 police officers to work the Fair, the police only enforced applicable criminal statutes and ordinances, including criminal trespass, but did not enforce SFOT’s rules and regulations. Plaintiff argued that if, without prior investigation, the police enforced the criminal trespass statute against plaintiff upon the command of SFOT, a private actor, state action existed. The Court answered that criminal trespass is complete at the moment a person is on private property and refuses to leave, and thus it does not require any further investigation, which was the case here, as the fair grounds, having been leased from the city by a private organization, was the private property of SOFT during the lease period and SFOT was not a state actor merely because it took advantage of law enforcement services provided to the public   Case # 4256 (5th Cir.), affirming, Case # 3801 (N.D. Texas)

See also Thompson v. State of Texas, 12 S.W.3d 915 (Tex. Ct. App. 2000) (Defendant, a pastor of a Unitarian Church, was convicted of the misdemeanor offense of Criminal Trespass by "intentionally and knowingly remaining on the property of another” i.e., the property of a Baptist Church. Defendant was requested to leave the Baptist Church by the pastor of said church after defendant started interrupting remarks being made by the pastor of the Baptist Church. The conviction was affirmed. The Court of Appeals rejected, inter alia, defendant’s argument that that the premises involved was a "public place" upon which he had the right of free expression. The Baptist Church was clearly private property and therefore considered a "nonpublic forum." A "nonpublic forum" is one which neither by tradition nor government action has become a forum for public communication. The Baptist Church was not an area which by tradition had been devoted to public assembly or debate by the general public. Speech, in a nonpublic forum, may be restricted so long as the regulations are reasonable and do not attempt to suppress expression because of public officials' opposition to the speaker's views. Based upon the evidence contained in the record, the criminal trespass law, as applied to defendant, was not used to regulate speech. There was no evidence in the record that defendant was requested to leave the premises because of the content of any message he was there to express. The purpose of the criminal trespass statute is to regulate conduct, not speech. Although it has been recognized that First Amendment protection goes beyond the spoken or written word, the Constitution does not guarantee that those who want to propagandize their views may do so wherever and however they please. A general trespass statute, may be constitutionally applied, even to those who trespass to communicate, so long as it is applied without discrimination and is not used to purposefully suppress speech. In the instant case, the evidence indicated that defendant was asked to leave because he continued to interrupt the presentation. There was no evidence that indicated that defendant was asked to leave because of the content of any "speech" that he would have presented in some fashion had he been permitted to remain on the premises. Because of this, Texas Penal Code § 30.05, the criminal trespass statute, was not unconstitutionally applied to defendant.)

Plaintiff, a Korean parishioner of Sacred Heart, a Catholic Church, was upset at the cessation of the offering of Mass in Korean. Plaintiff’s persistent advocacy for the restoration of the Korean Mass resulted in Church officials accusing plaintiff of “threatening and harassing actions against parish personnel.” Consequently, Church officials told plaintiff that although she was free to attend Mass at any other parish, she could longer attend Mass at Sacred Heart. When plaintiff persisted in attending Mass at Sacred Heart, Church officials had a “trespass warning” served on plaintiff and had her arrested when she again attended Mass at Sacred Heart. (1) The 42 U.S.C. § 1983 constitutional claims filed against the Church defendants for violation of plaintiff’s free speech and free exercise of religion rights were dismissed because the Church defendants were not state actors and were not participants in any joint activity (much less any unlawful activity) with the police or with any other state actor. (2) The claim that the Church defendants entered into a conspiracy with the City to issue unwarranted trespass warnings to plaintiff in order to prevent her from exercising her First Amendment rights was conclusory in nature and was dismissed. A private property owner may revoke an individual’s privilege to be on its property, even if the property is otherwise open to the public, and it is unlawful to enter or remain on private property where the private property owner has revoked the privilege to be there. Plaintiff did not allege facts showing that there was an agreement between the City and Church defendants to accomplish any purpose other than to remove a trespasser from private property. (3) The claim that the Church defendants’ conduct was outrageous and resulted in plaintiff suffering severe emotional distress was dismissed. The Church defendants’ conduct was not outrageous, as asking the police to remove an unwanted individual from one’s private property for trespassing is not “atrocious, and utterly intolerable in a civilized community.” (4) The defamation claim against the Church defendants based on a priest’s alleged announcement to the congregation that plaintiff suffered from a mental illness was dismissed, as the priest who allegedly made the defamatory statement was not a named party and the Church defendants could not be held vicariously liable for the alleged defamatory statement   Case # 4515 (W.D. Wash.)

Victim Impact Statement

Religious references in victim impact statements allowed as they related to the impact of the victim’s death on his church and on the community in which he lived    Case # 223 (Ga.)

Violence Against Women Act/Gender Motivated Violence Act

See Violence Against Women Act

Zoning Ordinance; Violation of

Zoning ordinance permitted only single family dwellings. Minister, religiously motivated to share his private residence, for a monthly rental, with family which, due to bankruptcy, was encountering difficulty finding a suitable place to rent, was convicted of violating the ordinance. Conviction upheld. Ordinance underlying conviction did not violate defendant’s constitutional right to free exercise of religion    Case # 323 (Ga.)

City Court refuses to dismiss criminal information against church for changing the permitted use of a building without a permit and occupying a building without a valid certificate of occupancy. The apparent alleged illegal use was a “youth musical program” conducted on the premises of the church. The court rejected the church’s argument that the criminal charges had been issued in violation of the First Amendment and N.Y. Const. Art. I, § 3 regarding separation of church and state. The court was apparently of the opinion that the “youth musical program” was not a form of religious exercise and that the church’s religious motivations for the use of the building did not place it beyond the reach of the Building Code and Zoning laws of the City, which were not specifically directed at religious practice, but valid, content neutral laws of general applicability, adopted to promote the public health, safety and general welfare of the public   Case # 2682 (City Ct. Albany N.Y.)

See also Zoning and Land Control

Home
Attorneys • Law Schools
Universities • Public Libraries
The Online Database
About the Newsletters
Samples
Cumulative Index
Please Have Someone Contact Me
Subscribe • Credit Card Payment

© Copyright 1998-2014
Paradigm Publications, Inc.