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Defendant’s rights to free speech and religious freedom were not violated by prosecution for conspiracy to commit child abuse based on his preaching the use of the rod for child discipline

State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity

The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion. Nor did it violate the right of parents to raise their children as they see fit. In addition, the circuit court did not err in admitting expert testimony regarding reasonable discipline of children, and there was no error in the conspiracy jury instruction.

Caminiti was the pastor of a small church that emphasized strong theological unity among its members. Based on his literal interpretation of the Bible (this text, perhaps) he believes that a graduated system of child discipline includes the use of the rod, which may be employed if milder forms of discipline fail and the parents perceive the child is intentionally misbehaving. Caminiti advised church members on how, when, and why a rod would be used, and once demonstrated rod discipline by striking himself hard enough to cause pain. He instructed that children only months old could be disciplined, that the child’s bottom must be bare, and that the rod should be a wooden dowel (or something similar). The rod discipline could leave marks or bruises, but Caminiti believed that causing some pain was consistent with discipline and correction, so bruises “were not a telltale sign of something bad.”

Caminiti did not discipline any of the eight children in this case. The discipline was administered by the child’s parents (or, in one case, the child’s mother’s boyfriend). Thus, he was charged with conspiracy to commit child abuse based on his advice, direction, and encouragement regarding rod discipline. 

Rights to advocacy, freedom of religion, and to raise one’s children 

Right to advocacy: Caminiti’s free speech right to advocacy under Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), was not violated by this prosecution:

¶23      Caminiti argues that the evidence does not show that he “instructed anyone to spank a specific child at any specific time.” As we understand it, Caminiti is arguing that this shows he was merely advocating the use of force in the abstract. We are not persuaded.

¶24      The Brandenburg test is not, to paraphrase Caminiti’s argument, a “specific [victim] at a[] specific time” test; it is an “inciting or producing imminent lawless action” test. See Brandenburg, 395 U.S. at 447-48. … We conclude that the jury could have reasonably inferred that Caminiti was inciting or producing the imminent use of abusive force against the children, particularly (but not only) when Caminiti gave parents a “look” or other indication during church services, causing the parents to promptly remove their children from the room in order to mete out the rod discipline Caminiti had taught them. Stated another way in terms of Brandenburg, the jury could reasonably infer that Caminiti was “‘preparing a group for violent action and steeling it to such action.’” Seeid. at 448 (quoted source omitted).

Note, though, that corporal punishment is not per se unlawful, so advocating its use does not automatically equate to advocating “lawless action”; instead, to advocate lawless corporal punishment, one would have to advocate conduct that goes beyond the child discipline privilege under § 939.45(5), which looks at reasonableness under all the circumstances. Thus, even if the Brandenburg test doesn’t include a “specific victim at a specific time” element, showing Caminiti incited imminent unlawful corporal punishment would seem to require a focus on the discipline of particular children in particular circumstances. That focus also seems necessary given the test’s “imminent action” requirement, under which advocating for unlawful conduct to take place at some indefinite future time is not sufficient. Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam); McCoy v. Stewart, 282 F.3d 626 (9th Cir. 2002).

In addition, the test includes two requirements the court quotes (¶21) but leaves out of its analysis (¶24)—namely, that Caminiti’s advocacy was: 1) “directed to” inciting or producing imminent lawless action (a requirement interpreted as meaning the speaker intends to incite or produce imminent lawless action, see, e.g., Thomas Healy, Brandenburg in a Time of Terror, 84 Notre Dame L. Rev. 655, 665, 697-702 (2009)); and 2) “likely” to incite or produce unlawful action. But it’s difficult to see how these requirements are satisfied here. Again, advocating corporal punishment isn’t automatically advocating lawless action; Caminiti’s preaching could be put to legal or illegal use. Thus, there must be strong, substantial evidence to prove both Caminiti’s intent to incite imminent unlawful discipline and the likelihood his advocacy incited the parents to unlawful discipline. So while the court cites evidence from which the jury could reasonably infer that Caminiti was inciting or producing the imminent use of force (¶24), that’s not the whole test under Brandenburg; and even a generous reading of the facts laid out in the parties’ briefs shows the evidence in support of that inference (much less an inference about intent or likelihood) is awfully thin.

Right to freedom of religion: The prosecution did not violate Caminiti’s right to freedom of religion under the Wisconsin Constitution, which provides broader protection than the First Amendment, State v. Miller, 202 Wis. 2d 56, 64, 549 N.W.2d 235 (1996).

Miller establishes a four-part test. The state concedes the first two parts—that Caminiti has a sincerely held religious belief, and that his belief is burdened by the child abuse statute. The state meets its burden to prove the third and fourth parts–that it has a compelling interest in preventing child abuse, and that its interest cannot be served by a less restrictive alternative. (¶¶29-34). The court rejects Caminiti’s argument that the state lacks a compelling interest in preventing the minor, transient pain and unintended marks or bruising that are the normal consequence of corporal punishment because the question under Miller is whether the child abuse statute (and parental discipline privilege) is based on a compelling interest, and not whether the state has a compelling interest in prohibiting all normal consequences of corporal punishment. (¶¶29-30).

Right of parents to raise children as they choose: The prosecution did not violate the right of the parents to raise and discipline their children by prosecuting him based on a per se theory that all corporal punishment of infants and toddlers is child abuse:

¶39      We need not resolve whether such a “per se” theory is constitutionally permissible because we disagree with Caminiti that it was the prosecutor’s theory here. We also disagree with the implicit assumption in Caminiti’s argument that the jury likely reached a verdict based on this per se theory. Rather, we agree with the State that the prosecutor advocated a “detailed, contextual child-abuse analysis, not a per se approach.” This is evident from the extensive fact-witness testimony that the prosecutor elicited, the prosecutor’s closing arguments, in which the prosecutor relied on that testimony after reviewing it at great length, and the jury instructions.

Though two experts (a physician and psychologist) who recommended against corporal punishment did advocate per se rules (¶¶43-44), Caminiti asserted the parental discipline privilege, § 939.45(5), as an affirmative defense (¶5) and the jury was properly instructed that under that privilege they had to consider all of the circumstances (¶¶36, 41). See Wis. J.I.-Criminal 950, State v. Kimberly B., 2005 WI App 115, ¶¶29-33, 283 Wis. 2d 731, 699 N.W.2d 641. Because of the evidence over and above the expert testimony, and because juries are presumed to follow instructions, the experts’ testimony does not show that Caminiti was prosecuted based on a per se theory, let alone that the jury reached its verdict based on such a theory. (¶45).

Admission of expert testimony

The trial court did not err in admitting the testimony of the two experts that explained why they believed that corporal punishment of toddlers and infants was not appropriate. Rejecting Caminiti’s argument that the testimony was irrelevant because he did not know of their opinions or theories of child development at the time the discipline was occurring, the court concludes that “the pertinent question is not whether the expert opinions are irrelevant because Caminiti or the parents did not know of those opinions. Rather, because the standard the jury was required to apply is a reasonable person standard, the pertinent question is whether the expert opinions are irrelevant to what a reasonable person of ordinary intelligence and prudence would believe under all of the circumstances.” (¶49). And any error in admitting the testimony was harmless in light of the fact-witness testimony, Caminiti’s own “incriminating” testimony (¶51), and the fact that much of the expert testimony underscored what a person of ordinary intelligence and prudence would have already believed. (¶¶50-54).

Conspiracy instruction

It was not error to instruct the jury on the elements of conspiracy, Wis. J.I.-Criminal 570, without including in the conspiracy instruction a statement that Caminiti could be convicted only if he intended and agreed that the parents discipline their children unreasonably. The court takes Caminiti to be arguing that the state had to show he intended and agreed that the discipline to be imposed would be unreasonable because the unreasonableness of the discipline is an element of the conspiracy crime. (¶¶63-64). The court disagrees: “Although the State had to prove that the discipline was unreasonable, the State’s burden on the affirmative defense does not make the unreasonableness of the discipline an element of child abuse or an element of the conspiracy crime.” (¶65). The court thus concludes the instructions as a whole “adequately informed the jury of the elements of conspiracy and the nature of the privilege.” (¶66).

But did the instructions adequately inform the jury of the interaction between conspiracy and the privilege, which effectively creates a requirement that Caminiti intend to commit unreasonable child discipline? Or did the instructions (the pertinent parts are reproduced at ¶66 n.8) allow the jury to convict if all Caminiti did was advise the use of corporal punishment—which satisfies the elements of child abuse—because the privilege language referred only (and specifically) to the acts of the parent, not Caminiti? This question ultimately comes back to Brandenburg and its requirement of proof the defendant intended to incite or produce imminent unlawful action. At least one court has held it was error not to instruct the jury about these requirements, United States v. Freeman, 761 F.2d 549 (9th Cir. 1985) (trial court erred in failing to instruct jury on possible freedom of speech defense in prosecution for aiding and abetting violation of federal tax laws), and Caminiti argued the lack of a Brandenburg instruction was an error entitling him to a new trial in the interest of justice; the court rejects the claim as undeveloped, however. (¶24 n.5).

Which brings us to a final note about Brandenburg. Though the case has been around for 45 years, it is not without significant “ambiguities,” it has been applied by the Supreme Court only twice, without any elucidation (Hess, cited above, and NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (advocating harm to persons who didn’t comply with boycott was protected under test)), and it has been given very crabbed (if not outright inaccurate) readings by lower courts. Marc Rohr, Grand Illusion? The Brandenburg Test and Speech that Encourages or Facilitates Criminal Acts, 38 Willamette L. Rev. 1, 1-49 (2002). Further, it dealt with speech that was itself the crime (the applicable statute made it a crime to “advocate … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” 395 U.S. at 444-45), while this case involved speech that is not itself criminal allegedly inciting someone to engage in a non-speech crime. Maybe, then, the issue here is more akin to, or overlaps into, “crime-facilitating speech”–speech that provides instruction that has a “dual uses,” one valuable, one that may facilitate crime by others, and which should be given First Amendment protection similar to that given by Brandenburg to incitement. Healy, Time of Terror at 662 n.34; Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1104-08, 1128, 1174-94, 1217 (2005). And maybe some of these issues will be addressed if the case gets further review.

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