Religion and Coercion: The State of the Law

Professor Eugene Volokh, with Matt Kezhaya, has filed an amicus brief in the Second Circuit supporting Nicole Daedone and Rachel Cherwitz's appeals. The brief argues that the two women were convicted of conspiracy to commit forced labor where the only "force" was religious belief: "Liability in this case turned precisely on the religious nature of the allegedly coercive conduct, and was imposed in the absence of any secular coercion such as violence or the threat of violence."¹

When I shared the brief, an old friend wrote:

"Some people would be uncomfortable with a world in which nuns, monks, or volunteers in faith communities are treated as victims of coercion simply because they later reconsider their beliefs. What gives me pause is the suggestion that coercion only exists where there is violence or the threat of violence. Human beings are influenced in far more complex ways. Fear of exclusion, loss of community, spiritual condemnation, shame, guilt, dependency on authority figures, or promises of salvation can exert enormous pressure on decision-making… Questions of consent in religious or spiritual settings deserve careful scrutiny rather than dismissal simply because no physical threat was involved. The question is where influence becomes control, & where devotion begins to erode freedom of choice."

Volokh's brief says that making the religious belief itself the sole mechanism of the supposed coercion crosses a foundational line: it is not for the government to determine which religious viewpoints are acceptable and which are not. It doesn't actually say that psychological coercion on its own can never ground a forced labor conspiracy claim.

But it does raise an interesting question: can criminal penalties flow from alleged coercion that is solely psychological in character?

What the Supreme Court said in 1988

Until 2000, the answer was no. The law of criminal involuntary servitude in the United States required the use or threatened use of physical or legal coercion: physical injury or restraint, or threats of legal process such as deportation or institutionalization.

In United States v. Kozminski (1988), two farmworkers with severe intellectual disabilities had worked on the defendants' dairy farm seven days a week, often 17 hours a day, eventually for no pay. The Court still concluded that psychological tactics, however morally wrong, could not support a conviction under a criminal statute carrying serious consequences. The due process concerns, and the risk of leaving it to prosecutors to decide what does and doesn't cross the line into criminal conduct, were too serious.²

What Congress changed in 2000

Congress disagreed, and in 2000 passed a trafficking statute that allowed psychological coercion to serve as a basis for forced labor charges, which carry sentences of up to 20 years. In 2008 Congress wrote it into the text: "serious harm" now means "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm," if it is serious enough to compel a reasonable person in the same circumstances to perform or continue performing labor.³ 

However, the conference report tied the new forced labor section, § 1589, to "the increasingly subtle methods of traffickers who place their victims in modern-day slavery"⁴ , i.e. tying the new provision strongly to conduct that's similar in character to slavery. After all, the statute is grounded in the Thirteenth Amendment's prohibition on slavery. For years that is largely how it was applied.

In United States v. Cherwitz, the defense argues that the statute was applied to the two meditation teachers in way that impermissibly expanded its scope. The New York Council of Defense Lawyers in another amicus brief in the case calls the prosecution "an unprecedented application of the TVPA."⁵ Volokh's brief explains why the government's conduct in this case is so dangerous for the free expression of religioius and spiritual belief and practice.

Belief as the mechanism

In Cherwitz, the defendants' beliefs were the supposed basis of the psychological coercion. OneTaste's central practice is Orgasmic Meditation, which  is "a mindfulness practice, a 'meditation on sensation without a goal.'" In closing argument, the government told the jury that "Nicole Daedone taught that orgasm was God."⁶

No one accused Daedone or Cherwitz of violence, of confining anyone, or of withholding identity documents.⁷ That made the prosecution especially dangerous for every religious and spiritual group. That is before we get to the fabricated journals the government planned to put before the jury until the defense challenged them; in March 2025 the government conceded they were not authentic and dropped them.⁸

The criminal conviction is grounded in the prohibition of slavery, not peer pressure, which exists in every dynamic, in every field, in every context. The case was built on hazy notions of brainwashing that lack scientific rigor. In 1990, a federal court in United States v. Fishman excluded expert testimony on "thought reform" because the theory was not generally accepted in the scientific community.⁹

Those notions did not come in through expert testimony. They came in through witnesses who said things like "The happiness is part of the brainwashing."¹⁰

Why it reaches every group

Each of the women the government called victims admitted that she joined OneTaste voluntarily and left voluntarily.¹¹ If you are in a religious or spiritual group, or any group, and people say they're happy, a prosecutor can later select the accounts of a single-digit number of people and call that happiness proof of coercion. That is what Volokh is warning about, and what the Supreme Court warned about in Kozminski when it rejected a reading of the law that would cover "a religious leader who obtains personal services by means of religious indoctrination."¹²

Allowing ideas, social dynamics, or power dynamics to count as coercion hands prosecutors the decision Kozminski kept from them, and in this case they exercised that power egregiously.

Genuinely neutral laws still apply inside religious and spiritual groups, and Volokh's brief says so.¹³

Imposing harsh criminal sentences because you don't like the content of someone's religious beliefs is unconstitutional and wrong.