Texas exorcism case

[Paul Finkelman]

Since I often disagree with Eugene, I want to endorse his argument and analysis here.  It seems spot on right, and to answer his question, not missing much if anything.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 06/28/08 10:22 PM >>>
	I appreciate the majority's concerns in this case, but the
primary dissent seems to have the better view.

	The plaintiff alleges -- and the jury apparently believed her --
that she was held down against her will.  That's false imprisonment and
battery.  She also alleges that this led to emotional distress damages.
The primary dissent acknowledges that a plaintiff shouldn't be able to
recover from damages that stem from the religious character of the
experience, for instance her fear of demons or disenchantment with the
church or religion generally or whatever else.  But it reasonably
argues, I think, that the solution is to "extract[] the religious from
the secular," not just dismiss the claim outright; and it argues that
such extraction was possible in this case.  "[W]hile the Court points to
Dr. Helge's testimony as proof that Schubert's religious and secular
damages are inextricably intertwined, another expert, Dr. Millie Astin,
specifically stated that she could separate the two. And Schubert
testified that while she was being restrained she was afraid she 'was
being injured' and that
she 'might die'-trauma clearly associated with the act of restraint
itself. Although segregating the religious from the secular may
sometimes be difficult, it can and should be done."

	The dissent's suggestion that "A jury could ... be instructed to
award damages only for the mental anguish the plaintiff would have
suffered had the tort been committed by a secular actor in a secular
setting" strikes me as not exactly right, for some of the reasons
mentioned in this post.  But instructing a jury that it could award
damages only for the mental anguish that stemmed from the restraint as
such, as opposed to the religious character of the restraint, sounds
like it would work fairly well (recognizing that damages calculations
are never an exact science).  The church could stress that the secular
actors here were the plaintiff's friends, who the plaintiff must have
realized were trying to help her (even if misguidedly).  The plaintiff
could stress that despite this there was a good deal of pain, that the
plaintiff feared that her leg was breaking, and that in any event
unwanted restraint -- even by friends -- is a frightening experience
that can cause long-term psychological problems.  And a jury could, I
think, focus on that and set aside other aspects of the damages, such as
plaintiff's needing "extensive time to recover trust in ... spiritual
leaders, and her life-long religious faith."

	Of course, there would be the risk of jury error, and of jurors'
awarding damages based on supposed spiritual harms.  But there is such
risk in any situations involving religious institutions or religious
leaders as defendants, for instance simple sexual abuse cases or fraud
cases.  It seems to me that the risk of such error shouldn't justify
denying normally available secular psychological distress damages to
someone who was harmed by nonconsensual false imprisonment and battery.
Or am I missing something here?

	Eugene
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