I'll give you the statute and the facts of this case and you tell me what you think.
The statute first. The relevant provisions of the federal Trafficking Victims Protection Act permits an individual to sue a defendant that "obtains the labor or services of a person . . . by means of a scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person [] would suffer serious harm." The statute further defines "serious harm" as "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."
Now the facts. Claire Headley performed certain "services" for Defendant since she was 17. She was kept in a facility in California. Her mail was censored, her phone calls were monitored, and she had to get permission to use the internet. She worked over 100 hours every week for Defendant, and all of her income (except for $50/week) was given directly to Defendant.
When Defendant thought Claire misbehaved, it disciplined her severely. For example, as punishment for one alleged transgression, for over six months in 2002, Defendant prohibited Claire from eating, and required her to subsist only on protein bars and water. She lost 30 pounds.
Defendant did not permit Claire to become pregnant, as a pregnancy would (among other things) interfere with the services Claire provided. She nonetheless twice became pregnant. Defendant both times threatened Claire with punishment if she didn't have an abortion, so she had abortions.
Claire was forced to live in the same facility in which she worked. Defendant posted guards and security cameras at that location. Sometimes, when Claire was permitted to leave her workplace, Defendant assigned an escort to accompany her.
Those are the basic facts. But before you think that Claire was a gymnast for the Soviet Union in 1970, I have to add one more fact. Nothing physically stopped Claire from leaving. There were no bars. There was, however, one critical consequence. Because this was the only life that Claire knew since she was 17 -- and she was now 31 -- she would be leaving behind everything. No money. No occupational skills. No references. No friends. Indeed, Defendant made sure that if anyone left, the remaining workers would (1) refuse to interact with the departed worker, and (2) occasionally show up to remonstrate the worker from leaving and encourage her to return to providing services.
Claire kept working at the facility for 14 years because she could not believe that she could handle the emotional and financial consequences of leaving the only life she'd ever known as an adult.
Do the facts that I've described constitute something actionable under the statute?
There's no doubt that the Defendant "obtained labor" by means of a "scheme" under the statute. But was it through the threat of "serious harm," which -- again -- the statute defines as "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm," that would cause a reasonable person in these circumstances not to leave?
Whatcha think?
The Ninth Circuit holds that, no, that's not "serious harm" under the statute. The statutory text, according to Judge O'Scannlain, is dispositive.
I wanted to give you the unvarnished facts to let you decide. But let me add one additional fact as well. One that's entirely irrelevant to the Ninth Circuit's holding, but one that might nonetheless potentially have colored your textual analysis if you knew it from the outset. You might have figured it out already even from my carefully-crafted statement of the facts and the fact that I slightly edited the caption (and title of this post).
Defendant is the Church of Scientology.
I've got a pretty keen sense of how this case would come out if Claire was kept in a massage parlor in Guam under the same set of facts. With respect to a church, the textual analysis is the same, though there's a potential "ministerial" exception that the Ninth Circuit doesn't reach because it thinks the text of the statute is dispositive.
How statutes like this are applied to organizations we care about (e.g., churches) -- or are at least worried about interfering with -- is a toughie. This is an easy case if it's a massage parlor. We are not worried about stopping those, even if the plaintiff initially "voluntarily" joined it and was in theory free to leave. But when similar conduct is performed by religious organizations, we're very worried that we're in a very different situation. Text notwithstanding.
This is, in my mind, a tough case. Raising tons of issues that are difficult not only legally, but also socially. Some religions -- "cults" -- are problems. Either because of what they do to outsiders or to their own members (e.g., Jonestown). Figuring out how to address these problems within the confines of statutes that address larger issues, but are potentially applicable to religious institutions as well, is a problem that's not going away anytime soon.
P.S. - I'm not sure, by the way, that Scientologists would at all agree with Judge O'Scannlain's opinion when it states that members of SeaOrg -- the hard-core wing of Scientology -- must "make[] a symbolic one-billion-year commitment to serve the Church" (emphasis added). My admittedly uncertain understanding of Church beliefs is that this is a "symbolic" commitment by the member only in the same sense that, for example, many marriage ceremonies contain "symbolic" vows of fidelity. Yeah, it's symbolic. But it's literally true as well. You're making a promise. A promise that, in SeaOrg's case, lasts a billion years, and (given reincarnation) binds you throughout that entire time. For real, not merely as a symbol.
