Monday, 6 August 2012

Reviewing the Headley ruling

The U.S. Appeal court's rejection of the Headley lawsuits against Scientology is not carte blanche for future abuse, says the attorney who filed the original complaints: but the judgment still got it wrong, he argues.

On July 24, Barry Van Sickle got word of a California appeal court ruling in two lawsuits he had filed for former Scientologists against the movement more than three years earlier.

It was not good news.

The U.S. Court of Appeals for the Ninth Circuit rejected the lawsuits filed by Marc and Claire Headley against Scientology, ruling that they did not meet the criteria for human trafficking.

They have not established a genuine issue of fact regarding whether they were victims of forced-labor violations,” wrote Judge Diarmuid O'Scannlain for the three-judge panel.1

Van Sickle put aside his regular work and began studying the 17-page ruling – and Infinite Complacency is pleased to be able to present his analysis here.

As reported here last month, even if the case did not clear the bar for human trafficking, the court seemed to be indicating that other offences might have been a better fit for the evidence presented.

...[W]e do not decide how the Headleys might have fared under a different statute or on other legal theories,” said the ruling.

The Headleys abandoned claims under federal and state minimum wage laws.

And although the Headleys marshaled evidence of potentially tortious conduct, they did not bring claims for assault, battery, false imprisonment, intentional infliction of emotional distress, or any of a number of other theories that might have better fit the evidence.2

This passage was of particular interest to Van Sickle because, based on that list, his original lawsuit would have been a better fit to the facts of the case.

So it was exasperating to have former Scientologist Marty Rathbun blame the result on him, in his blog, Moving On Up a Little Higher.

The lawyer who originally filed the case did Marc and Claire a disservice by putting all their eggs in the Human Trafficking issue basket,” wrote Rathbun, a leading member of the independent Scientology movement.3

Van Sickle posted to Rathbun's website to put him straight.

Marty is incorrect about the initial lawsuit, and who made the decision to narrow the case to a human trafficking case.

The decision to place all the eggs in the human trafficking basket was made by the Metzger firm over my objection,” he added. The Metzger firm, which took over the case from Van Sickle, pleaded the case at the appeal court.

Van Sickle also noted that the initial lawsuit had been filed four years after Marc Headley had escaped.

That meant it was simply too late to file on some grounds, where the statute of limitations had already expired. And that, to some extent, had determined his approach to the case.

But in any case, he believes the appeal court got it wrong.

They effectively ruled that, as a church, Scientology could coerce workers to keep providing services by the use of “discipline” and other types of control.

But that goes way beyond any accepted application of the First Amendment guaranteeing religious freedom, he argues.

There is no Constitutional need to allow Scientology to coerce, intimidate, confine, underpay, overwork, and otherwise abuse Sea Org members.”

Van Sickle also argues that the appeal court judges:
  • applied the wrong statutory criteria in evaluating the threat of “serious harm” in human trafficking;
  • presented a sanitized version of life in the Sea Org that reads like a Scientology hand-out;
  • and rejected, without serious analysis, evidence from the Headleys' expert witness on the key issue of psychological coercion.
More on that below.

A three-pronged attack

A look back at that original lawsuit confirms that the grounds Van Sickle set out were broader than those that came before the appeal court.4

He took three lines of attack.

First, he alleged, multiple violations of California's B&P Business and Professions Code, specifically the part relating to unfair and illegal business practices (article 17200).

It has the benefit of a four-year statute of limitations...,” with the potential to reach back further to cover a continuous tort, Van Sickle told Infinite Complacency.5

Second, he sued for alleged violations of the labor code: specifically for unpaid wages.

Marc Headley's original lawsuit, filed on January 5, 2009, alleged that he and his co-workers had been subjected to “intimidation by assault, threat, menace and invasion of privacy.”

Headley had worked at Int. Base in California, a high-security 500-acre compound for Scientology's top executives.

The base had a substantial support staff of people who performed what would generally be considered ‘blue-collar' work or other labor that would not fit within the common meaning of the term minister,” Van Sickle told Infinite Complacency.

Marc worked in production for Golden Era studio and Claire was essentially an executive secretary at the end of her employment.”

As the lawsuit spelled out, Headley frequently worked 15- to 20-hour days and got only three or four hours' sleep a night.

He had been recruited at the age of 16 but had “signed his first purported employment contract at age eleven,” Van Sickle wrote in the lawsuit.

And although he had been promised minimum wage, he had never received it.

In fact, between 1989 and 2005, when Headley worked for Scientology, the minimum wage in California rose from $4.25 to $6.75. Headley calculates he was earning about 39 cents an hour during this period.

Nor had Scientology informed Headley of his employment rights, as the law required: on the contrary, the movement had deceived him about his rights, arguing that as a church, it was exempt from the relevant laws.

But that was just not true, Van Sickle argued in the lawsuit.

The First Amendment does not exempt religious organizations from minimum wage and child labor laws,” he wrote, citing the relevant case law. (The U.S. First Amendment guarantees religious freedom.)

Scientology had a duty to comply with the relevant state and federal laws over pay, he argued.

Intead, he continued, the movement had “...intentionally, consciously and wrongfully made a tactical decision to ignore the labor laws, take its chances with a compliant and intimidated work force, and hope that the running of statutes of limitations would in the long run save [Scientology] millions of dollars.”6

Scientology's controversially acquired tax-exempt status with the Internal Revenue Service did not exempt it from complying with other laws, Van Sickle argued. In fact, it meant quite the reverse.

The privilege of being a tax-exempt organization carries the burden of complying with other laws and not being operated for the benefit of a selected few.

The use of coerced, cheap labor is contrary to law and Defendant’s tax-exempt deal with the IRS,” he wrote in the lawsuit.7

Human trafficking

This was Van Sickle's thinking when he filed Marc Headley's claim.

While the wage and unfair business practice claims would be relatively easy to prove – the issue would essentially be the application of the minister exception – the 'problem' with both the wage claims and the unfair business practice claims was a limitation to economic damages,” he told Infinite Complacency.

So Van Sickle opened a third front, alleging human trafficking – which is where the Metzger law firm eventually decided to focus the case.

In his lawsuit, Van Sickle listed the criteria set out under the California penal code:
  • Signs of trauma, fatigue, injury, or other evidence of poor care.
  • The person is withdrawn, afraid to talk, or his or his communication is censored by another person.
  • The person does not have freedom of movement.
  • The person lives and works in one place.
  • The person owes a debt to his or his employer.
  • Security measures are used to control who has contact with the person.
  • The person does not have control over his or his own government-issued identification or over his or his worker immigration documents.
These indicators are present to various extents in the workforce at Plaintiff’s previous place of employment with Defendant and most if not all of these 'indicators' of human trafficking would apply to Plaintiff herein at various times during his employment [with Scientology],” he wrote.8

He described the musters three times a day at the base, when Int. Base officers checked to see if everyone was still present; he set out in detail the extraordinary lengths to which Scientology went to recover those who had fled the base without permission, or “blown”.

And, he wrote, Headley also alleged that not only had he been assaulted by the movement's leader, David Miscavige, but he had also seen several of his colleagues assaulted. (Miscavige's violence has been widely reported on this site and elsewhere.)9

And then there was the time Headley had been assigned a two-day punishment detail cleaning human waste – by hand.10

At night, people are assigned to watch the sleeping quarters,” wrote Van Sickle in his submission to the court.

“Long hours, poor food, lack of sleep and lack of freedom is the norm.

The 'indicators' of human trafficking provide an accurate description of daily life at Gold Base.”11

The appeal court, as we have seen, did not appear to doubt the basic facts of life at the Base: it just did not think it constituted human trafficking. (Why Van Sickle thinks they were wrong we will come to later.)

A few weeks after he had filed for Marc Headley, Van Sickle filed a separate lawsuit on behalf of his wife, Claire, also in January 2009.

Claire, too, had worked many years at the International base in Hemet, California, enduring similar pay and working conditions. So Van Sickle filed this lawsuit along similar lines.

But in addition to what Marc had suffered, Claire had twice been pressured into having abortions – and had seen other women punished with manual work for having resisted such pressure. This added a disturbing dimension to the case.12

The Sea Organization appeared to be quite willing to put minors to work, but would not allow its older workers to take time off to have “non-productive” children.13

Ministerial exception

It should be clear by now that Van Sickle did not accept that a Sea Org member was a minister simply by virtue of being a Sea Org member.

Marc Headley's duties had not included anything remotely approaching the minister's role as set down by the movement; Claire Headley's work had been mainly secular in nature.

He underlined this point in a November 2008 letter to the California Labor & Workforce Development Agency regarding the developing lawsuit.

The minister exception does not apply to these claimants or these labor law claims. This dispute is about pay and working conditions, not religion per se.”14

Van Sickle unpacked this for Infinite Complacency.

The general rule, said Van Sickle, is that religions have to comply with the law: but an exception has developed in the area of discrimination. So for example, a religion can discriminate against women when it comes to appointing its ministers.

The rationale is that 'ministers' are the voice and face of a church,” said Van Sickle. “A religion interacts with the public through its ministers.” In this area at least then, a church has to have the freedom to choose.

But compare that with the work of Sea Org members, said Van Sickle.

In contrast, Sea Org members typically perform regular jobs with no public contact.

At Int. Base where Marc and Claire worked, Sea Org members were cooks, janitors, security guards, construction workers, chauffeurs, laborers, grounds keepers, car mechanics and other positions...,” said Van Sickle.

None of these jobs could reasonably be said to have anything to do with ministerial functions, he pointed out.

When I filed the case, other circuits had defined the ministerial exception in terms of purpose and functionality.

The Supreme Court had issued a ruling that those working for a religion for compensation, even if it was just room and board, were entitled to minimum wage.15

Of course, these issues were researched before the case was filed and the research continued as the case progressed,” he added.

The spin that Sea Org members are the 'elite' of Scientology or in a 'priesthood' does not accurately reflect reality. Most are laboring grunts with no time or energy for supposedly religious activity.”

To underline that point, he referred to Tony Ortega's recent interview with another Sea Org defector, John Brousseau.16

Brousseau told Village Voice how he had led a team of Sea Org members who essentially acted as Cruise's servants: everything from maintaining his house to maintaining his vehicles and an aircraft hangar he owned. Brousseau himself even customised Cruise's Bluebird motor home.

That’s simply not religious work,” said Van Sickle. “These workers cannot all logically be considered 'ministers'.”

Or to put it another way: “The ministerial exception is just that – an exception.

You can see Van Sickle's point.

The freedom of churches to select their ministers is based on constitutional grounds: but it is difficult to see how that can extend to farming out Sea Org members as cheap labour for a Hollywood film star.

Reshaping the case

The issue of whether the Headleys could be considered ministers was central to the case as Van Sickle had formulated it.

But as he pointed out in his response to Rathbun – once the Metzger Law Group took over the lawsuits, they chose not to pursue the wage and hour claims.

While Van Sickle disagreed, he understood their tactical reasons.

Forced labor has an extremely long statute of limitations and allows for non-economic damages, punitive damages, and legal fees,” he pointed out.

By focusing on the forced labor claims and conceding the minister exception the case was simplified, but it conceded valuable ground.”

A look at the appeal court ruling shows how much ground was actually conceded.

The judgment repeatedly refers to the Headleys as ministers without actually taking a close look at what they were actually doing.

The court seemed to be more lenient towards outrageous conduct because 'ministers' were complaining about their chosen occupation...,” said Van Sickle.

Another result is that those reading the opinion without knowing the actual facts will think that the case is about ministers, as that term is commonly understood,” he added.

Even if one conceded the point and accepted that the Headleys should be considered ministers, that was not the end of the story.

There was still the question of how far the ministerial exception could be said to excuse the kind of abuse at issue.

Nevertheless, by focussing on the human trafficking/forced labor issue, the Metzger Law Group narrowed the possibilities – and raised the stakes.

A swing for the fences

In my previous piece on the appeal court ruling I quoted attorney Scott Pilutik's remark to Village Voice that the decision to bet it all on human trafficking was a high-stakes gamble.

In baseball terms, if you swing for the fences you're more likely to hit a home run... but you're also more likely to strike out,” he noted.

If the Headleys' human trafficking case was successful, it would have had a massive impact on how Scientology treats its staff members going forward.”17

Van Sickle agrees with that assessment.

When I started what I knew would be another tough Scientology case, the idea was to have some win – even if just for minimum wage,” he told Infinite Complacency.

The human trafficking claim greatly upped the stakes. The verdict potential was much higher than for the labor claims.

In that sense Scott P. was right. The human trafficking claim was a swing for the fences.”

But as we have seen, the way Van Sickle originally conceived the lawsuit, it was part of a wider package.

My thought was that the wage case would have been relatively simple to prove,” Van Sickle told Infinite Complacency.

The only real issue would have been the legal issue of whether Scientology had to comply with labor laws.”

The wrong criteria?

As things turned out, the appeal court judges only had the human trafficking claim to consider – and they were not convinced.

Last month's ruling made much of the fact that the Headleys could have escaped earlier had they wanted to:

We emphasize that the Headleys had innumerable opportunities to leave the defendants. They lived outside of the Base and had access to vehicles, phones, and the Internet.

They traveled away from the Base often. The security that they decry afforded them a multitude of opportunities to leave, as hundreds of other Sea Org members had done – whatever their commitments and whatever they may have been told regarding the permissibility of leaving ...

They have not established a genuine issue of fact regarding whether they were victims of forced-labor violations.

But Van Sickle thinks they applied the wrong criteria.

The court seemed overly impressed with the arguments that the Headleys could have escaped earlier and that they may have had an occasional good day,” he said.

But, he argued: “Ability to escape is more of a false imprisonment issue than a forced labor issue.”

The case before them alleged human trafficking – or forced labor, he pointed out.

The forced labor statute expressly includes both physical and mental 'confinement'. Psychological coercion is clearly covered by the forced labor statute, which makes it different from false imprisonment.”

The court made another mistake in its interpretation of the law on forced labor, he said.

In its ruling, the court quoted a key provision in the Trafficking Victims Protection Act:

Serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm. (My emphasis)18

But in this context, Van Sickle argues, “a reasonable person of the same background and in the same circumstances” is not a federal court judge or even the average person in the street.

It is someone who, like the Headleys, has been in a controlling cult since childhood.

Given their background and circumstances in the cult, was it 'reasonable' for them to continue working to avoid future harm?

There was at least a jury question on that issue even without the expert evidence ignored by the court.”

For Van Sickle then, the appeal court had focussed on the wrong question.

The key issue regarding 'Forced Labor' is not whether the Headleys could have escaped earlier but what stopped them.

Why did they stay and continue working for the cult?

They did not leave earlier because the cult made them believe that there would be adverse consequences. They were intimidated and coerced into providing labor for the cult.

The daily musters, blow drills – retrieval of some who had blown – and the punishment of those caught or retrieved made leaving a risky move. Loss of spouse, hard labor, RPF, and 'freeloader debt' were just some of the risks involved.”19

All these points had been covered in the Headleys' testimony, said Van Sickle, but he added, “...the case for mental coercion was well made in plaintiffs' expert witness study and report.”

The psychologist's report

The District Court had refused to admit a declaration by Dr. Robert Levine, an expert in the psychology of persuasion and mind control, ruling that it was not based on reliable principles or methods. The appeal court agreed.

This is how the appeal court disposed of Levine.

Dr. Levine based his opinion on his review of the Headleys’ deposition transcripts and related exhibits. He never spoke with the Headleys in forming his opinion.

The Headleys cite no authority that reading only deposition transcripts is considered a reliable method in the field of the psychology of persuasion and mind control.20

Again, Van Sickle takes issue.

He understood that the courts might be wary of drifting into the quicksands of social science: but Levine's decision to review only the transcripts was perfectly legitimate, he argued.

Knowing how Scientology litigates, I assume that if the expert had interviewed the Headleys, they would have contrived other arguments,” he said.

Scientology's lawyers would have criticised such interviews as unprofessional and unreliable, he said. They might even have contended that the very act of interviewing the Headleys had contaminated the psychologist's views on the case – had made his opinion too subjective.

Damned if you and damned if you don't, in other words.

The rejection of Levine's declaration was a fatal blow to the case for human trafficking.

If the court had simply accepted his conclusions as worth testing in front of a jury, said Van Sickle, there would have been more than enough evidence to take the forced labor claims to trial.

Without saying so, the court essentially required plainiffs to prove by their own testimony that they felt oppressed during their entire time and many their years in the Sea Org,” he said.

No 'good days', rationalization of plight, or happy times allowed.

No change of mind allowed – and if you liked some of the work, you could never be the victim of coerced labor.

Using the court's logic, a sex slave would not be a victim of human trafficking if the person initially or occasionally liked the coerced sex.”

For Van Sickle then, it was not so much that the case had failed to clear the human trafficking/forced labor hurdle; it was more that the court had set the bar too high.
The legal right not to be coerced, intimidated or frightened into providing labor should mean freedom to leave a job whenever one wishes, and on the worker's terms,” he argued.21

Most cases have problems and this case had problems,” he said. “The facts in a Scientology case are usually difficult.

They have members write success stories and sign bogus contracts. They have teams of expensive lawyers working to discourage departing members from suing.”

But even if the Headley cases presented unique difficulties, the appeal court got it wrong on the law, Van Sickle argued.

Dismissing human trafficking

At the very the end of its judgment, the appeal court even appears to dismiss the very idea that human trafficking could apply in this case.

The Headleys … wagered all on a statute enacted “to combat” the “transnational crime” of “trafficking in persons” – particularly defenseless, vulnerable immigrant women and children. … Whatever bad acts the defendants (or others) may have committed, the record does not allow the conclusion that the Church or the Center violated the Trafficking Victims Protection Act.22

The suggestion seems to be that the claim of forced labor was way off the mark – not even a close call,” Van Sickle noted.

But if human trafficking was so wide of the mark, he asks, why did the FBI spend more than a year investigating Scientology on this very issue, reportedly interviewing more than 30 witnesses?

There was a serious FBI investigation concerning criminal prosecution under the human trafficking laws,” he pointed out.

The agents involved did not give much away, he said – but they did make a few comments.

At one point it was explained that this particular FBI unit had been set up to investigate human trafficking of this nature within the states – and not the international sex trade.”23

A sanitized account

As might be expected, the appeal court ruling had gone down badly with many former Sea Org members.

Some have expressed outrage at what they say is the sanitised account of Sea Org life presented in the judgment.

The amount of spin fed to the 9th Circuit judges was mind boggling,” wrote Karen de la Carrière, at the Ex-Scientologist Message Board.24

The court's opinion stated:

Sea Org members learn that the ministry will require them to work long hours without material compensation, to live communally, to adhere to strict ethical standards, and to be subject to firm discipline for ethical transgressions.25

That's Lie Number One, wrote de la Carrière, a former collaborator with Scientology founder L. Ron Hubbard who is now part of the independent movement.

No Sea Org recruiter mentions the long hours, the pitiful pay, the sleep deprivation, the RPF punishment programme or any other of the abuses, she argued.26

The appeal court also wrote:

Because Sea Org life may at any moment require a member indefinitely to serve anywhere in the world, the Church prohibits Sea Org members from having children unless they leave the order.27

That's Lie Number Two, wrote de la Carrière: blaming enforced abortions on Sea Org Travel.

“They lie, lie, lie – even to officers of the Court.”

The vast majority of the women who had abortions – 90 percent in her view – never did any kind of travel for the Sea Org.

“To blame enforced abortions on possible Sea Org travel is a bold-faced lie,” wrote de la Carrière.

“Sea Org Recruitment posters promote a life of Excitement, Adventure, Challenge, Advancement, Saving the planet.

“The sordid reality of the abusive RPF is 180 degrees different to the blather they promote.”

Van Sickle sympathises.

Having spent so much time with not only the Headleys but many other former Sea Org victims, I have a strong sense that the opinion paints a very distorted picture of daily life in the Sea Org.

The opinion notes big bad events but dismisses those as ecclesiastical discipline of ministers. Daily life is portrayed as relatively normal … .

That is just plain wrong.”

Summing Up

In any case, the position of the California appeal court is now clear, said Van Sickle.

The message to plaintiffs' lawyers is to keep these state tort actions in state court. The message to the cult is that it has exposure for its torts.”

That brings us to what Van Sickle called the “laundry list” of potential remedies in the ruling, the sugar on the bitter pill: wage claims, assault, battery, false imprisonment, intentional infliction of emotional distress...

Given what we already know about the conditions at Int. Base – inside the Sea Org as a whole – there is no reason why that list could not serve as a blueprint for future claims from other escapees.

For as Van Sickle points out: “These claims have been tried in previous cases and can work if the facts can be marshaled to prove the case.”

But for that, more people need to come forward – and this ruling was hardly an incentive.

I fear that this will strongly discourage victims and lawyers from pursuing their valid claims against Scientology,” he said.

In the meantime however, more and more Scientologists are quitting the movement, many of them are speaking out, and the ugly truth about Scientology is spreading further into the mainstream media.

Even as bad as it is for plaintiffs, the Headley opinion is hardly a recruiting tool for Scientology,” said Van Sickle.

He doubts that members in good standing will get anything but a redacted version in the official Scientology write-up.

Hopefully, this will help in exposing the business of corporate Scientology, and life in the Sea Org for what it truly is,” says Van Sickle.

If the truth gets out enough, the cult will lose its power.”
Listed chronologically below is earlier coverage of the Headley lawsuits and related posts:28

Marc Headley's Lawsuit (January 2009)
Marc Headley's Story (January 2009)
The Headleys go to Appeal (February 2012)
The Headleys on Appeal I (February 2012)
The Headleys on Appeal II (February 2012)
1From page 15 of the ruling. For more details on the ruling, see my previous posting, “Appeal court rejects Headleys' lawsuits”, or the ruling itself.
2Page 16 of the ruling.
3Headley Case Dismissal Upheld” from Marty Rathbun's blog Moving Up a Little Higher.
4You can read the original lawsuit here. An amended version, filed the following month, is here. And a later version, amended in April of the same year, is here. I have quoted from the document filed in April, even if the same terms existed in the previous versions.
5A continuous tort is wrongful conduct that is repeated, creating a separate cause of action each day it persists.
6Pages 15 to 16 of the amended complaint, filed in April.
7Page 5 of the complaint.
8Page 4 of the lawsuit.
9For more on Miscavige's violence see on this site, “The Case against Miscavige” and “A History of Violence”. The story has also reached the mainstream news media. See also the Tampa Bay Times' groundbreaking investigation “The Truth Rundown”, which launched in June 2009 (the paper called itself The St Petersburg Times at that time). One of their major sources, of course, was Marty Rathbun, who also assisted the Headleys in their case by providing Van Sickle with a declaration on his experience inside the Sea Org.
10As the appeal court judgment put it, Headley was “assigned to hand-clean dried human excrement from a large aeration pond...” (page six).
11Page four of the lawsuit.
12You can find a copy of Claire Headley's lawsuit, the amended version filed in April 2011, here.
13Intriguingly, Rathbun writes in his post on the Headley decisions: “We know for a fact that the filing of the suit (and all the sweat, blood and tears Marc and Claire spilled in litigating it) resulted in cancellation of Scientology Inc’s forced abortion policy. It also resulted in dozens of former Sea Org members receiving substantial compensation (pay offs to remain silent – but compensation to create new lives nonetheless).” From Headley Case Dismissal Upheld” Marty Rathbun's July 24 post at his blog Moving Up a Little Higher.
14Worth noting in passing is the LWDA's mission statement: “Our mission is to provide leadership to protect and improve the well-being of California’s current and future workforce.” Its complete lack of leadership regarding Scientology's treatment of its Sea Org members compares poorly with the pro-active approach taken by Australia's Fair Work Ombudsman.
You can find the quote from the LWDA website here; for more on Australia and the Fair Work Ombudsman see my September 2011 posts: “Fresh Blows to Scientology in Australia”; and “Analysing the FWO Report”.
15This is what is known as the Alamo case (Tony & Susan Alamo Foundation v. Sec. of Labor, 471 US 290, 1985). The group put needy people to work raising money in return for room and board. For Infinite Complacency,Van Sickle sketched out the similarities of Alamo case to the Headley lawsuits. He wrote:[ As in] the early phases of this litigation, the Alamo group opposed the labor claims by claiming that the workers were “volunteers” not “employees”. Alamo even submitted declarations from workers saying that they were volunteers not employees. The Supreme Court ruled that, if the workers were providing services in return for room and board, then they were working for compensation and would be “employees” entitled to the protection of the labor laws including minimum wage and overtime. The court found that to be the case as a matter of law. Whether the employees considered themselves “employees” or “volunteers” did not matter. The legal test was working for compensation. A related point is that labor law rights cannot be waived. The bogus contracts and waivers could not be used to defeat the labor lae claims. In Scientology litigation that is a big benefit. The contracts are unenforceable on several grounds but proving that takes time and effort. The simple rules in labor cases that the employee's opinion does not matter (see Alamo) and that these rights cannot be waived are good reasons to use the labor laws where possible.
16“'Tom Cruise Worships David Miscavige Like a God': A Scientology Insider Gives First Full-Length Interview to the Voice”: from Tony Ortega's blog on Scientology at Village Voice, published July 28, 2012.
17From Tony Ortega's July 24 Village Voice article: “Scientology Wins Appeal In Lawsuit Alleging Forced Labor and Forced Abortions
18This is on page 11 of the appeal court ruling, citing 18 U.S.C. § 1589(a) of the act, the text of which you can find here.
19The RPF is the Rehabilitation Project Force, a punishment work camp for those in disgrace in the movement. The Freeloader Debt is the bill Sea Org members are presented with when they quit; it is what they are supposed to owe the movement for all the free training they are meant to have received but has no legal standing. For more on the RPF, see elsewhere on this site: “The RPF: Scientology's Gulag” and “Maureen Bolstad's Speech”.
20These remarks come in the footnote at the bottom of the judgment.
21Of course, the expert testimony was only required for the human trafficking/forced labor allegations. Van Sickle's original lawsuit, with its three-pronged attack based on violations both of the labor code and the Business and Professions Code, would not have required such expert testimony: another reason to load those bases.
22Page 16 of the ruling.
23Tony Ortega at Village Voice reported details of the investigation, first mentioned in a February 2010 New Yorker article, in an article in March. But he had discovered that even before news of it had leaked out, the investigation had been wound up – which takes us back to the question of official passivity regarding Scientology in the US (see note 14). “FBI Investigation of Scientology: Already Over Before We Even Heard of It” by Tony Ortega, Village Voice, March 19, 2012.
24From the Ex-Scientology Message Board thread: “Scientology did not violate forced labor law, appeals court rules”. Karen de la Carrière posts there as Karen#1.
25Page four of the judgment.
26Deceptive recruitment is a regular feature of former Sea Org members' accounts. See for example “Maureen Bolstad's Story”, Parts One and Two, elsewhere on this site.
27Page four of the judgment.
28Although I wrote some of these posts in January 2009, I was only able to actually launch the site in March (for reasons I won't bore you with).


  1. Great job Jonny, no one's interviewed Barry Van Sickle like this, thanks so much.

    Timing and getting enough evidence and people willing to be witnesses is everything.

    People keep quitting, and maybe Ron Miscavige Senior or maybe even Roanne Hubbard Horwich might be willing to sue in the near future!

    There's a LOT more people who have been made do ridiculous things at the cult compound in Riverside County, and how to organize for the next suit, I hope will be easier.

    Thanks so much for your years of taking on the worst of Scientology, Jonny.

    Chuck Beatty
    ex Sea Org (1975-2003)

  2. Excellent, as always, Jonny. Barry's analysis makes a great deal of sense. It must be so frustrating for him, having crafted the case as he did, to see it crash and burn in the appeal court as it has. Heather G.

  3. Very nice analysis Jonny. One of the ironies of the american legal system is that often the lines between winning and losing are obscured when the court's or jury's decision is perceived as unjust. The ensuing publicity usually reverberates and prompt changes in law and procedure designed to prevent further unjust results. Today's losers are tomorrow's winners and vice versa.

    Marc and Clair Headley may have lost this case, but, when all is said and done, they are the real winners. They have escaped an insane life style and been blessed with the gift of their children and their health. At the same time, they have been instrumental in exposing the abuses of this insidious cult which, in turn, has helped others leave for a better life.

  4. I think that the travesty of the 9th Circuit Court ruling needs to be addressed by legal scholars and academics, especially those interested in labor issues.

    This is not just a SCN matter now.... this ruling could be interpreted by anyone being perceived by their organization as a "minister" is no longer protected by labor laws.

    The potential underlying legal and labor issues for "religious" groups and their employees are HUGE in this 9th Circuit Court decision. Now the decision itself is worthy of a legal and academic examination.

    En banc, anyone?

  5. This decision floored me. I finally got around to reading it this weekend and I agree with everything Van Sickle says here. The judge seems willfully hostile toward the Headleys, almost blaming them.
    Example: " The Headleys … wagered all on a statute enacted “to combat” the “transnational crime” of “trafficking in persons” – "
    OK. What the Justice is saying here is that the Headleys wanted to cash in big. That's what he's implying and it is really kind of sick considering what these people have gone through. He also called it a "transnational crime" as if it is only transnational. This is a distortion.

    He also does not address the issue of free will. These people were children in the church.

    “Serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm."

    In what world is the threat of never seeing your family again not considered to be "serious harm"???

    Then when I got to the end of the ruling, and saw the footnote, I literally yelled out loud-----that the judge ruled against admitting this evidence is almost....insane.

    I think it clearly shows ...something.
    I don't know what, but I think this ruling is not only wrong, but tainted in some way. If I were a former Scientologist seeing this I would probably have a heart attack from the injustice.

    I hope the Headleys appeal, but they probably just want to have a life now. I loved his book.

  6. Regarding comments that the forced labor statute simply does not apply or fit the public perception of human trafficking, the answer lies in the statute. Under fundamental principles of statutory construction,the forced labor statute applies to these facts.

    The first rule in interpreting and applying a statute is to apply the statute as written. The words and terms are to be given their commonly understood meanings. The court is not supposed to add conditions, limitations, restrictions and terms not in the statute. The presumption is that if Congress did not put a term in a statute, it is not part of the law.

    By its terms, the "intent" of the statute is to prohibit forced labor. It is that simple. If anything can be learned from the legislative history, it is that Congress intended to liberalize the criteria by clarifying that full time physical imprisonment was not a requirement. The statute expressly mandates that psychological coercion to provide labor is the same crime as physical coercion to provide labor.

    Whether sex, chains and prison bars were involved is a topic for sentencing guidelines. The prison sentence could be longer for "standard" human trafficking such as importing and selling persons from poor countries.

    Another rule of statutory construction is to interpret statutes liberally to address the vice the statute is designed to prevent or punish. The court in this case did the opposite.

    Tuning to the argument that Sea Org workers are not coerced to work because they could, or would, eventually escape, this misses at least one important point.

    Psychological coercion that delays escape is just as much a violation under the clear meaning of the forced labor statute as permanent prevention of escape. Work performed during a coerced delay is just as much a violation of the statute as labor provided by a coerced prevention of escape. The difference would be in the amount of damages, not liability.

    The eventual escape does not change the fact that that person performed many days of coerced labor before the escape. Failing to escape earlier does not make a coerced worker into a " volunteer". Again,look at the statute. If read and applied according to its clear terms,there remains the issue of whether the cult victim, having been subjected to cult control, intimdation, and restrictions, was reasonable in believing that his or her immediate choice was to work as tols or risk "serious harm". The current Scientology cult uses severe methods to control, coerce,intimidate, threaten, and keep ignorant workers so that they believe that they are not free to leave--they must work as told or suffer unpleasant consequences.

    This opinion is not likely to generate much interest in the academic community. The court does seem to go out of its way to limit the case to the facts---as selected and described by the court.

    Coercion is transfomed into " discipline" and "encouragment to stay". Keeping it "ministers" is mentioned as a church value in neutral terms as if the use of the described "discipline" and the mentioned torts of assault, false imprisonment, infliction of emotional distress do not raise questions of fact on whether labor was coerced.

    Further, sleep deprivation,100+ hour work weeks, censored mail and such outrageous treatment of workers is cavalierly dismissed as part of a "ministers" hard "evangelical" life. The court is playing word games to justify its result. That is not a matter of academic interest.

    Barry Van Sickle