Liberty Counsel Motion in Support of Summary Judgment With Affidavits

Case 3:13-cv-05038-FLW-LHG Document 33 Filed 09/20/13 Page 1 of 66 PageID: 980
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants. Case No. 13-cv-5308
PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND JOINT RESPONSE/OPPOSITION TO DEFENDANTS CROSSMOTIONS FOR SUMMARY JUDGMENT
TABLE OF CONTENTS INTRODUCTION.........................................................................................................................1 ARGUMENT.................................................................................................................................1 I. II. A. THERE ARE NO MATERIAL FACTS IN DISPUTE..................................................1 PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW..........1 The Pickup Panels Decision Subjecting SOCE Prohibitions to Rational Basis Review Was Erroneous and Should be Rejected..................................................1 1. 2. B. C. Professional Regulations Are Subject to Strict Scrutiny when Content or Viewpoint Based.................................................................................2 The Pickup Panel Erred by not Applying OBrien.............................................7
A3371 is a Viewpoint-Based Restriction on Private Speech, which is Always Unconstitutional...............................................................................................................10 A3371 is a Content-Based Restriction on Private Speech and Therefore Subject to Strict Scrutiny................................................................................................16 1. 2. 3. A3371 is not justified by a compelling interest.................................................18 A3371 is not the least restrictive means.............................................................23 Defendants and GSEs cited cases reveal that strict scrutiny applies even in the professional context.............................................................25
D.
Even under Defendant and GSEs Categorization of SOCE as Primarily Conduct, A3371 is Subject to Intermediate Scrutiny under OBrien.........................27 1. 2. 3. 4. Even if A3371 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies........................................................28 A3371 does not advance an important government interest............................30 A3371 is targeted at the suppression of the message of SOCE........................31 The States and GSEs authorities do not support rational basis scrutiny..................................................................................................................34
E.
Plaintiffs have Standing to Raise Claims on behalf of their Clients...........................36
F. G. H.
A3371 Infringes the Plaintiffs Patients Right to Receive Information................37 A3371 Infringes Plaintiffs Clients Right to Direct the Upbringing of their Children........................................................................................................................38 A3371 is Vague.............................................................................................................40 1. 2. The term sexual orientation is vague........................................................40 The term SOCE is vague............................................................................44
I. J.
A3371 is Substantially Overbroad..............................................................................47 A3371 is Subject to Strict Scrutiny under the Free Exercise Clause......................49 1. 2. 3. 4. A3371s provides for several individualized exemptions undermining the alleged purpose of the law.........................................................................51 A3371 violates the hybrid rights of Plaintiffs, their patients, and their patients parents...............................................................................................53 A3371 substantially burdens Plaintiffs sincerely held religious beliefs....54 A3371 cannot survive strict scrutiny..............................................................57 a. b. c. A3371 is not justified by a compelling interest..................................57 A3371 is not narrowly tailored............................................................57 A3371 is not the least restrictive means
CONCLUSION.........................................................................................................................57
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TABLE OF AUTHORITIES Accountants Socy of Va. v. Bowman, 860 F.2d 602, 605 (4th Cir. 1988)...................................35 Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251 (3d Cir. 2003) aff'd and remanded, 542 U.S. 656 (2004)................................................................................56-57 Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012)..................................................................57 Bartnicki v. Vopper, 200 F.3d 109, 119-20 (3d Cir. 1999)....................................................passim Broadrick v. Oklahoma, 413 U.S. 601 (1973)...............................................................................32 Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011)...........................................18, 31 Butler v. Michigan, 352 U.S. 380, 382 (1957)...............................................................................23 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 563 (1980)........27 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).................56 Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984)..........................................8 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010)............35 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)...................................................................passim Conchata Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006) .............................................................8, 29 Doe v. Bolton, 410 U.S. 179 (1973) .......................................................... ..................................36 Edenfield v. Fane, 507 U.S. 761, 768-69 (1993) ..........................................................................27 Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223 (3d Cir. 2013) ........................................36 Empt Div., Dept of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) .................................53-54 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) .......................................................5, 11, 27 Frisby v. Schultz, 487 U.S. 474 (1988) ............................................................. ..........................24 Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) .......................................................................5 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ...................................................9-10
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Gitlow v. People of State of New York, 268 U.S. 652 (1925). ......................................................34 Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) ....................................................4, 15 Griswold v. Connecticut, 381 U.S. 479 (1965) .............................................................................36 Hassay v. Mayor, CIV.A. ELH-13-1076, 2013 WL 3364692 (D. Md. July 3, 2013)..................24 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ...............................................44-45 Intl Socy for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) ....................................14 Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967). ................................45 Lambert v. Yellowly, 272 U.S. 581 (1926) ............................................................. .....................35 Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ..............................4 Legal Servs. Corp. v. Valesquez, 531 U.S. 533 (2001) .....................................................4, 5, 7, 27 McTernaon v. City of New York, 564 F.3d 636 (3d Cir. 2009) ....................................................53 NAACP v. Button, 371 U.S. 415 (1963) ............................................................. ....................44, 47 Natl Assn for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) ............................................................................................6, 17, 28 Parham v. J.R., 442 U.S. 584 (1979) ........................................................... ...............................38 Penn. Psychiatric Socy v. Green Springs Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002). ............................................................. ...........................................36 Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ....................................................................38 Pickup v. Brown, No. 12-17681, 2013 WL 4564249 (9th Cir. Aug. 29, 2013)......................passim Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012)..............................1 Pickup v. Brown, No. 2:12-CV-02497-KJM-EFB (E.D. Cal. Dec. 4, 2012)...................................1 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).......................................................................11, 23 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995).............................4, 12 Sable Commcns of Cal., Inc. v. FCC, 492 U.S. 115, 127 (1989) ..........................................23, 56
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Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957) ...............................................................36 Singleton v. Wulff, 428 U.S. 106 (1976) .......................................................................................36 Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) ...........................................................4, 25, 26 Spence v. Washington, 418 U.S. 405 (1974) ............................................................. ...................28 Texas v. Johnson, 491 U.S. 397, 414 (1989). ...............................................................................28 The Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000) ..................................................................36 Thomas v. Collins, 323 U.S. 516, 545 (1945) ...............................................................................27 Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002) ...........................................................7, 27 Troxel v. Granville, 530 U.S. 57 (2000) ............................................................. .........................38 Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180 (1997) ......................................................passim United States v. Alvarez, 132 S. Ct. 2537 (2012) ..........................................................................7 United States v. Mark, 425 F.3d 505 (8th Cir. 2005) ...................................................................24 United States v. OBrien, 391 U.S. 367 (1968) .....................................................................passim United States v. Playboy Entmt Grp., Inc., 529 U.S. 803 (2000).........................................passim United States v. Stevens, 130 S. Ct. 1577 (2010) .........................................................................48 United States v. Williams, 553 U.S. 285 (2008) ...........................................................................48 Va. State Bd. of Pharm. v. Virginia Citizens Consumer Counsel, Inc., 425 U.S. 748 (1976)......26 Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).......................39 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...................................................................17 Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) .......................................................................55 Watson v. Maryland, 218 U.S. 173 (1910) ...................................................................................34 Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012) ...............................................................1 West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .........................................20, 39, 56
Witt v. U.S. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) .....................................................31 Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012)...........................................6, 25 Statutes Cal. Bus. & Prof. Code 865............................................................. ...................................passim New Jersey Assembly Bill A3371........................................................................................passim N.J. Ct. R. 4:74-7A(c) ............................................................. .....................................................33 Other Drescher, J., Queer Diagnoses: Parallels and Contrasts in the History of Homosexuality, Gender Variance, and the Diagnostic and Statistical Manual, Arch. Sex. Behav. (2010).......................50 Haldeman, D. (2004), When sexual and religious orientation collide: Considerations for psychotherapy with conflicted gay men, The Counseling Psychologist........................................50 Joseph Story, Commentaries on the Constitution of the United States (2d ed. 1858)..................16 Nicholas Cummings, Sexual Reorientation Therapy Not Unethical, Op-Ed, USAToday (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientationtherapy-not-unethical-column/2601159/................................................................................20, 41 Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009)...............................................................................passim Websters, New College Dictionary 6 (3d ed. 2005).....................................................................47
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INTRODUCTION A3371 is an unprecedented intervention between the counselor-client, doctor-patient relationship. The corner stone of counseling is the clients right to self -determination. The client has autonomy to establish and pursue counseling goals and the right to seek a counselor to achieve those goals. It is this sacrosanct right and relationship that A3371 destroys. The law violates the First Amendment right to freedom of speech, collides with the free exercise of religions, and tramples upon parental rights. This Court should enjoin the law.1 ARGUMENT I. THERE ARE NO MATERIAL FACTS IN DISPUTE. There are no material facts in dispute. This case involves a question of law. As the parties have agreed, this case is ripe for summary judgment. Plaintiffs hereby incorporate by reference their Statement of Material Facts filed simultaneously herewith. II. PLAINTIFFS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW. A. The Pickup Panels Decision Subjecting SOCE Prohibitions to Rational Basis Review Was Erroneous and Should be Rejected.
Defendants entire position is rooted in their reliance upon the Ninth Circuits recent decision in Pickup v. Brown, No. 12-17681, 2013 WL 4564249 (9th Cir. Aug. 29, 2013). However, that panel opinion is not yet final, and both the Pickup plaintiffs and the Welch plaintiffs have filed petitions for rehearing and rehearing en banc. Moreover, the reasoning of the panel was seriously flawed, as will be shown below. The panel decision in Pickup is neither binding nor persuasive.
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The court decisions thus far are evening split. See Pickup v. Brown, No. 12-17681, 2013 WL 4564249 (9th Cir. Aug. 29, 2013), petition for rehg and rehg en banc pending; Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012); Pickup v. Brown, No. 2:12-CV02497-KJM-EFB (E.D. Cal. Dec. 4, 2012); and Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012).
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As the State and Garden State Equality (GSE) do here, the Ninth Circuit ignored longestablished Supreme Court and Ninth Circuit precedent in finding that SOCE prohibitions such as SB1172 and A3371 need only satisfy rational basis scrutiny. But, there is substantial precedent subjecting professional speech regulations to heightened scrutiny. The panels decision to treat SB1172 as a regulation of conduct ignored Supreme Court precedent such as United States v. OBrien, 391 U.S. 367 (1968), which requires, at a minimum, that regulations such as A3371 be subject to intermediate scrutiny. Even the panel acknowledged that the law has at least an incidental restriction on speech, but then the panel never once cited OBrien. The Pickup decision is seriously flawed and this Court should reject it and enjoin the law. 1. Professional Regulations Are Subject to Strict Scrutiny when Content or Viewpoint Based.
Based upon its mistaken premise that SB1172 regulates only treatment, the Ninth Circuit panel determined strict scrutiny does not apply. Pickup v. Brown, No. 13-15023, 2013 WL 4564249, *4 (9th Cir. Aug. 29, 2013). This conclusion contravenes controlling Supreme Court authority. It also ignores the explicit language of the statute and the Legislatures findings. Much like A3371 here, SB1172 defined SOCE in a manner evidencing viewpoint discrimination: Sexual orientation change efforts means any practices by mental health providers that seek to change an individuals sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. Cal. Bus. & Prof. Code 865(b)(1) (emphasis added). Its exclusions further reveal that it is targeted at only one viewpoint: Sexual orientation change efforts does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.
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Id. 865(b)(2) (emphasis added). The legislative findings in California, identical to those in New Jersey, also discuss only effects on gay, lesbian and bisexual minors and attack the false premise that all SOCE is based on the notion that homosexuality is a disease or mental disorder. Instead of merely listing the various studies upon which the Legislature based the statute, the legislatures in both California and New Jersey have made their own declaration that [b]eing lesbian, gay or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. (See SB1172, 1(a); A3371 1(a)). The findings demonstrate that the laws are intended to protect only one viewpointthe viewpoint that same-sex attractions, behavior, or identity should be affirmed, even if they are unwanted. The findings and the language of SB1172 (and of A3371 here) overwhelmingly show that the Legislature sought to ban only one viewpointcounseling aimed at reducing or eliminating same-sex attractions, behaviors, or identity, even when unwanted. Cal. Bus. & Prof. Code 865(b)(1). Counseling aimed at affirming, accepting, and supporting same-sex attractions, behaviors, or identity is considered an acceptable viewpoint under the statute. Id. 865(b)(2); A3371 2(b). Counselors who express the state-approved viewpoint that same-sex attractions, behaviors, or identity are acceptable and should not be changed will not be subject to liability under SB1172. Id. However, if a counselor strays from the state-approved viewpoint and counsels that same-sex attractions, behaviors, or identity can be reduced or eliminated, even if the minor patient and parents request and consent to the counseling, then that counselor will be subject to discipline. Id. 865.1, 865.2. While the Ninth Circuit characterized the prohibition as against treatment, the evidence established and the panel acknowledged that the treatment in
this context consists of solely speech. This is exactly why the California counseling associations called the law unprecedented. (Compl. Ex. B, Counseling Associations Amicus Brief, Ex. A). The Ninth Circuit was required to analyze SB1172 as a content and viewpoint-based regulation of speech. Supreme Court precedent, as well as that of other circuits, has long established that such speech regulations must be analyzed utilizing strict scrutiny, not rational basis. Legal Servs. Corp. v. Valesquez, 531 U.S. 533 (2001); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). In fact, there is not a single case in the country where a viewpoint restriction of private speech has been upheld. A finding of viewpoint discrimination is fatal to the law. It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995). Citing Rosenberger, the Ninth Circuit stated in the context of counseling that [w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Conant, 309 F.3d at 637. The Ninth Circuit in Conant struck down a regulation governing what a physician could say to the patient regarding medical marijuana, finding the could not withstand strict scrutiny. Government may not limit expressive activity if the limitation is based on the speakers viewpoint. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others). The Pickup panels conclusion that regulations of speech in the professional context are subjected to a mere rational basis review also conflicts with Supreme Court and circuit court precedents applying strict scrutiny to laws that were less intrusive into the professional
relationship than SB1172 or A3371. See, e.g., Legal Servs. Corp., 531 U.S. 533 (striking down a regulation that denied federal funds to attorneys if they advised clients to challenge welfare laws); Thomas v. Collins, 323 U.S. 516, 545 (1945) (members of professions do not surrender First Amendment rights); Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995) (professional speech may be entitled to the strongest protection our Constitution has to offer) 2; Conant, 309 F.3d at 637 (same). Even when conduct is regulated, intermediate scrutiny applies if the regulation has an incidental restriction on speech. When a state regulation implicates First Amendment rights, the Court must balance those interests against the States legitimate interest in regulating the activity in question. Gentile v. State Bar of Nev., 501 U.S. 1030, 1075 (1991) (applying intermediate scrutiny to criminal lawyers comments to the press). The Pickup panel and the Defendants ignore all this precedent. The Ninth Circuit decision in Conant, in particular, should have prompted the panel to analyze SB1172 using strict scrutiny. As is true with SB1172, the regulation at issue in Conant imposed a content-based restriction on speech related to health care. Conant, 309 F.3d at 637. The Ninth Circuit struck down the regulation because it punished physicians who recommended to their patients the use of medical marijuana, finding that it strike[s] at core First Amendment interests of doctors and patients. Id. at 636. Not only did the panel fail to apply Conant to SB1172, it claimed that it was not aware of any cases in which strict scrutiny was applied to
The issue in Florida Bar involved lawyer advertising. Commercial advertising, of course, has always been afforded a lesser degree of protection under the First Amendment, especially since the standards and conduct of state-licensed lawyers have traditionally been subject to extensive regulation by the States. Florida Bar, 515 U.S. at 635. Nevertheless, the Court in Florida Bar subjected the regulation to a form of intermediate scrutiny, requiring the government to show that it was intended to further a substantial interest, that it directly and materially advanced that interest, and that it was narrowly drawn. Id. at 623-24. If even commercial advertising warrants intermediate scrutiny, how much more does the pure counselorclient speech here warrant heightened scrutiny?
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regulations of medical or mental health treatment. Pickup, 2013 WL 4564249 at *9 n.6. In fact, in Conant, the Ninth Circuit did just thatapplied strict scrutiny to a regulation of medical treatment, i.e., the use of (or recommendation of the use of) medical marijuana. Id. The panels distinguishing of Conant turned on a purported fine line between a doctor recommending marijuana use to a patient and a doctor prescribing marijuana use to the patient. Id. at *5. However, Conant made no such distinction. Being a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights. Conant, 309 F.2d 629, 637. [C]ommunication that occurs during psychoanalysis is entitled to First Amendment protection. Id. (citing Natl Assn for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology (NAAP), 228 F.3d 1043, 1054 (9th Cir. 2000) (emphasis added). Indeed, as the Pickup panel acknowledged, in Conant the Ninth Circuit found the professional regulation governing the physician-patient speech both content-based and viewpoint-based, and struck it down as unconstitutional. Pickup, 2013 WL 4564249 *5.3 In addition, the Southern District of Florida, citing Conant, applied strict scrutiny to strike down a regulation that prohibited physicians from inquiring about firearm ownership during a course of treatment. Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1265-66 (S.D. Fla. 2012). The Wollschlaeger court did not hesitate to apply a First Amendment analysis, despite the fact that it involved a professional regulation of the practice of medicine. The court held that the regulation imposed content-based restrictions on practitioners speech just as A3371 does
3
It should be noted that the Ninth Circuit in NAAP undertook the same content- and viewpointbased analysis, and upheld the regulations there at issue only because it was content- and viewpoint-neutral and because they did not dictate what can be said between psychologists and patients during treatment. Pickup, 2013 WL 4564249 at *5 (quoting NAAP) (emphasis added). The court applied traditional First Amendment analysis. But the facts of NAAP involved qualifications to enter into the profession, not speech of licensed counselors. The distinction is significant.
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here. Id. at 1261. Wollschlaeger noted that the Supreme Court has warned against a free floating test for First Amendment coverage based on an ad hoc balancing of relative social costs and benefits, such as A3371 presents. Id. (quoting United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012)). Wollschlaeger carefully considered and squarely rejected the argument that the regulation there constitute[d] a permissible regulation of professional speech or occupational conduct that imposed a mere incidental burden on speech. 88 F. Supp. 2d at 1262. Such regulations govern the access or practice of a profession; they do not burden or prohibit truthful, nonmisleading speech within the scope of the profession. Id. (citing Thompson v. W. States Med. Ctr., 535 U.S. 357, 374-75 (2002); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48 (2001); and Conant v. Walters, 309 F.3d 629, 637-38 (9th Cir.2002)) (emphasis added)). A3371 by no means constitutes a permissible regulation of professional speech; it targets and prohibits Plaintiffs speechindeed, their viewpoint. Given this substantial precedent concerning the application of strict or heightened scrutiny to professional regulations of speech, which is more fully set forth below, it is evident that the Ninth Circuit panels decision was in error. The argument of the Defendants that there are no such cases is false. 2. The Pickup Panel Erred by not Applying OBrien.
A3371 and SB1172 are both content- and viewpoint-based regulations of speech. However, even if the Pickup Panels conclusion that SB1172 is a content- and viewpoint-neutral regulation of conduct that only incidentally affects speech, the panels conclusion that SB1172 is subject only to rational basis review contradicts scores of Ninth Circuit cases and Supreme Court precedent establishing that such regulations must satisfy intermediate or heightened scrutiny. United States v. OBrien, 391 U.S. 367 (1968).
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A content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. Id. at 377. The Supreme Court and numerous circuit courts have repeatedly recognized that OBrien represents the prevailing standard the floor for content-neutral regulations that have an incidental effect on speech. See, e.g., Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 189 (1997) (basing its analysis on the standards for intermediate scrutiny enunciated in OBrien); Conchata Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006); Bartnicki v. Vopper, 200 F.3d 109, 119-20 (3d Cir. 1999) (noting that a regulation of conduct involving incidental restrictions on speech must be analyzed under OBrien). The Third Circuit explained in Bartnicki that [i]n OBrien and its progeny, the Supreme Court distinguished between expressive conduct protected to some extent by the First Amendment and oral or written expression, which is fully protected by that amendment. Id. at 120 (quoting Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984)) (emphasis added). Thus, when the government argued that intermediate scrutiny should apply, the Court observed skeptically that the United States apparently suggests that defendants actions in disclosing the contents of the BartnickiKane conversation are properly considered expressive conduct rather than speech. Id.4 Just as the defendants actions in Bartnicki contain[ed] no significant nonspeech elements (id. at 121) and so constituted pure speech, so here Plaintiffs counseling involves no nonspeech elements, and should be considered pure speech.
The court did not accept the governments argument that defendants disclosure of a secretly taped cell phone conversation was conduct rather than speech, but found intermediate scrutiny appropriate nevertheless under the reasonable content-neutral time, place and manner exception. Id. at 121.
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The Ninth Circuit explicitly stated in Pickup that SB1172 has at least an incidental effect on free speech (Pickup, 2013 WL 4564249 at *9), yet it did not even cite to, let alone analyze SB1172 under OBrien. In so doing, the panel ignored 45 years of Supreme Court and circuit court precedent mandating heightened scrutiny under these circumstances. Rather than engaging in the analysis called for by Supreme Court and Ninth Circuit precedent, the panel constructed what it called a free speech continuum from which it could conclude that SB1172 regulates essentially only conduct and need only satisfy rational basis. Id. at *6-9. However, even if the continuum were constitutionally valid (which it is not), SB1172 should have fallen at least at the mid-point of the continuum calling for intermediate scrutiny under OBrien. The Pickup panel stated the mid-point of its continuum is the point where speech takes place within the confines of a professional relationship and protection is somewhat diminished. Id. at *7. SB1172 regulates speech within the confines of a professional relationship, so even under the courts construct it should fall at the mid-point of the continuum and be subject to intermediate scrutiny. Id. Nevertheless, it somehow concluded that this regulation of speech in a professional relationship falls at the lowest point in the continuum and is entitled to only rational basis review. Id. at *8. The court attempted to bolster its departure from its own (arbitrary) construct by returning to the false dichotomy between treatment and speech. Id. at *8-9. It also found support for its conclusion on the false premise that SB1172 allegedly allows discussions about treatment and therefore is distinguishable from Conant. Id. at *8 (emphasis in original). The Pickup panel further attempted to shore up its faulty conclusion by claiming that California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful and, under Giboney [v. Empire Storage & Ice
Co., 336 U.S. 490 (1949)] at 502, the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. Id. However, Giboney addressed parties inciting people to engage in illegal activities, not professionals engaging in consensual conversations aimed at treating psychological concerns, so it provides little support for the panels conclusion. Giboney, 336 U.S. at 502. The courts attempt to equate incitement of illegal activity with providing consensual professional counseling further emphasizes the conflict between its conclusion and established precedent. This Court should decline to apply Pickup and at a minimum subject A3371 to intermediate scrutiny. B. A3371 is a Viewpoint-Based Restriction on Private Speech, which is Always Unconstitutional.
Despite the State and GSEs contention to the contrary, no court has squarely decided the central issue in this case, and that issue is dispositive. The Pickup panel, the State, and GSE all labor in vain to place mental health counseling (i.e., talk therapy carried out purely through speech between a counselor and client) in the same category as certain medical treatment that is inherently conduct-based. Indeed, as the Third Circuit has cautioned, although it may be possible to find some kernel of conduct in almost every act of expression, such kernel of conduct does not take [Plaintiffs] speech activities outside the protection of the First Amendment. Bartnicki v. Vopper, 200 F.3d 109, 120 (3d Cir. 1999). SOCE counseling, along with every other modern form of psychotherapy, is the treatment of the mind carried out solely through talking with a client. (King Decl. 26). Indeed, that is the only tool that most mental health counselors have at their disposal. (Id.). Mental health counseling is thus not at all similar to some forms of medical treatment, where controlled substances or physically intrusive conduct are central. Regulations such as A3371 imposing a restriction on what can be said between a counselor and a patient is subject to First Amendment
10
protection. Being a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights . . . To the contrary, professional speech may be entitled to the strongest protection our constitution has to offer. Conant, 309 F.3d at 637 (citing Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)) (emphasis added). [W]hen a statute that regulates both speech and conduct is applied to an act of pure speech, that statute must meet the same degree of First Amendment scrutiny as a statute that regulates speech alone. Bartnicki, 200 F.3d at 121. That is precisely what A3371 does here. The Ninth Circuit in Pickup acknowledged it was undisputed that the plaintiff counselors practice only talk therapy, and that same fact is undisputed here. See Pickup, 2013 WL 4564249 at *8 n.5; (King Decl. 12; Nicolosi Decl. 36 (it is impossible to distinguish the practice of SOCE from speech. Psychotherapy is speech. The therapeutic relationship is talking and communication.). A3371 must therefore meet the same degree of First Amendment scrutiny as a statute that regulates speech alone. Bartnicki, 200 F.3d at 121. A3371 regulates what can be said in a counseling session concerning the subject of sexual orientation. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. Texas v. Johnson, 491 U.S. 397, 414 (1989). The First Amendment does not permit [the government] to impose special prohibitions on speakers who express views on disfavored subjects. R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). Indeed, [w]hen the government targets not the subject matter, but the particular views taken by speaker on a subject, the violation of the First Amendment is all the more blatant and [t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or
11
perspective of the speaker is the rationale for the restriction. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (emphasis added). The sole premise behind A3371s prohibition on SOCE counseling is disagreement with the viewpoint underlying such counseling, which is that change is possible for those who seek it. Contrary to what the State and GSE allege (State Br. at 6; GSE Br. at 3), Plaintiffs do not engage in SOCE because of a belief that homosexuality is a mental illness. Indeed, that point is irrelevant as many people seek counseling for things that are not mental illnesses, such as grief, infidelity, or anxiety. (Nicolosi Decl. 38). The reason Plaintiffs offer SOCE counseling is because their client presents with distress over unwanted feelings of same-sex attractions, behaviors, or identity. (Id.). The only difference between SOCE counseling and many other forms of mental health counseling is that the source of the underlying distress is same-sex attractions, behavior, or identity. Moreover, the offer of SOCE is no more based upon the premise that homosexuality is a mental health disorder than counseling a person facing the stress of grief, anxiety, or infidelity is premised on assumption that the person is suffering from a mental disorder. A vast array of counseling has nothing to do with mental disorders. (Decl. Newman Rebuttal 4). A3371 and Defendants cite repeatedly to the declassification of homosexuality as a mental disorder. (See, e.g., Compl. Ex. A 1(a); State Br. at 5, GSE Br. at 3, 17). They then proceed from that premise to argue that SOCE is not only unnecessary but that it may actually be harmful. (See, e.g,, Compl. Ex. A 1(a), (b), (c), (d), (e), etc.; Decl. Drescher at 6-11; Decl. Haldeman at 8, 17). They also urge that SOCE must not be scientific because homosexuality is no longer considered a mental illness. (See, e.g., GSEs Objections to Plaintiffs Evidence at 1 (arguing that there is insufficient scientific basis for SOCEs efficacy or safety)); see also APA
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Report at 11-12. The declassification decision, in short, is a linchpin in both A3371s findings and in Defendants entire case. As the States expert witness has written: It is noteworthy that the APA decision [declassifying homosexuality] deprived religious, political, governmental, military, media, and educational institutions of any medical or scientific rationalization for discrimination. Psychotherapy and the Culture Wars, Por El Mundo interview of Dr. Drescher (Sept. 12, 2009) (available at
http://www.clam.org.br/EN/interviews/conteudo.asp?cod=6220) (emphasis added). The declassification of homosexuality as a mental disorder, however, did not result from any dramatic new data, or some great new scientific discovery. Rather, it was a political coup. As Dr. Drescher himself wrote, the most significant catalyst for diagnostic change was gay activism. In the wake of the 1969 Stonewall riots in New York City (Duberman, 1994), gay and lesbian activists, believing psychiatric theories to be a major contributor to antihomosexual social stigma, disrupted the 1970 and 1971 annual meetings of the APA. Drescher, J., Queer Diagnoses: Parallels and Contrasts in the History of Homosexuality, Gender Variance, and the Diagnostic and Statistical Manual, Arch. Sex. Behav. (2010) 39(2):427-60; see also Phillip Hickey, Ph.D., Homosexuality: The Mental Illness That Went Away, (Oct. 8, 2011) (available at http://www.behaviorismandmentalhealth.com/2011/10/08/homosexuality-the-mental-illness-
that-went-away/, last accessed Sept. 19, 2013) (Whats noteworthy about this [removal of homosexuality from the DSM] is that the removal of homosexuality from the list of mental illnesses was not triggered by some scientific breakthrough. There was no new fact or set of facts that stimulated this major change. Rather, it was the simple reality that gay people started to kick up a fuss. (emphasis added)).
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The cause of homosexuality is still unknown. See American Psychological Association (2008a), Answers to your questions for a better understanding of sexual orientation and homosexuality (available at www.apa.org/topics/sorientation.pdf) (There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles.). The prohomosexual activists urge that sexual orientation is immutable, but neither science nor experience support that proposition. The State and GSE allege that the rationale for SOCE counseling no longer exists, but this only serves to show the viewpoint discrimination of A3371. (See GSE Br. at 3) (Once homosexuality was no longer classified as an illness, the rationale for trying to cure it by changing an individuals sexual orientation ceased to exist.); (id.) (alleging that SOCE is based on the false premise that homosexuality is an abnormal or undesirable condition that can and should be changed; (State Br. at 6) (noting that the APA opposes any treatment based upon the assumption that homosexuality per se is a mental health disorder). As these statements reveal, the entire justification for the prohibitions in A3371 is aimed at suppressing what the State incorrectly believed was the false premise of SOCE counseling. Speech restrictions are only permissible as long as the regulation is not an effort to suppress the speakers activity due to disagreement with the speakers view. Intl Socy for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (emphasis added). The States power to restrict speech . . . is not without limits. The restriction must not discriminate against speech on the basis of viewpoint. Good
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News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 106 (2001) (emphasis added). GSE concedes, as it must, that A3371 permits discussion of the topic of sexual orientation (GSE Br. at 8), but omits the most important qualifier to that statement that A3371 only permits one view of that subject in the context of counseling, i.e., that same-sex attractions, behaviors, and identity are good and should be encouraged and developed. (Compl. Ex. A). Any other view, regardless of the clients objective, is expressly forbidden. Any counsel directed at change in sexual orientation, behavior or identity is banned. A3371 is a classic viewpoint restriction. That this statute censors a particular viewpoint cannot seriously be questioned. Indeed, A3371 defines SOCE only to include efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender. (Compl. Ex. A, 2(b)) (emphasis added). Nevertheless, it excludes counseling that provides acceptance, support, and understanding of same-sex attractions, behaviors, or identity. (Id.). Even the APA Report concedes that the term SOCE is used to refer to efforts to change same-sex sexual orientation. See APA Report at 35 n.34 (we use the term sexual orientation change efforts (SOCE) to describe a method that aims to change a same-sex sexual orientation (e.g., behavioral techniques, psychoanalytic techniques, medical approaches, religious and spiritual approaches) to heterosexual.) (emphasis added). If the primary evidence used by the Legislature to support A3371 defines SOCE as only efforts the change same-sex attractions, then certainly it is beyond dispute that the law is aimed at only one viewpoint. Moreover, elementary rules of statutory construction reveal that A3371 is intended to prohibit only counsel that seeks to reduce or eliminate same-sex attractions, behaviors, or identity. Expressio unius est exclusio alterius. The statute prohibits any efforts to reduce or eliminate sexual or romantic attractions or feelings towards a person of the same gender.
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(Compl. Ex. A 2(b)). Yet, it expressly exempts counseling for a person seeking to transition from one gender to another or counseling that provides acceptance, support, and understanding: of same-sex attractions, behaviors, or identity. (Id.) Every recital is expressly aimed only at the ideological position that homosexuality is normal and good, and that any efforts to change it are based on a flawed premise. Indeed, A3371s opening first provision specifically mentions the entire premise of the act: Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. (Id. 1(a)). It notes that the American Psychiatric Association opposes any psychiatric treatment such as reparative or conversion therapy which is based on the notion that homosexuality per se is a mental disorder. (Id. 1(d)(3)). [T]he preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. Joseph Story, Commentaries on the Constitution of the United States, 459, at 326 (2d ed. 1858). The context of A3371, when read as a whole, certainly reveals that it was aimed at suppressing any viewpoint that sexual orientation can be changed by those who seek to do so. C. A3371 is a Content-Based Restriction on Private Speech and Therefore Subject to Strict Scrutiny.
[T]he mere fact that a regulation defines the category of content that is prohibited by reference to its source rather than its subject matter is unlikely to be sufficient to justify treating the regulation as content-neutral. Bartnicki, 200 F.3d at 122. At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. . . . Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.
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Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (emphasis added). Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Id. at 642 (emphasis added). If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling government interest. United States v. Playboy Entmt Grp., Inc., 529 U.S. 803, 813 (2000). The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). [L]aws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. Turner Broad. Sys., 512 U.S. at 643. As shown by Turner Broadcasting and the authorities set forth above, this rule applies equally to pure speech or commercial speech, whether subject to professional regulation or not. Indeed, far from being a First Amendment orphan, professional speech may be entitled to the strongest protection our Constitution has to offer. Conant, 309 F.3d at 637 (quoting Florida Bar, 515 U.S. at 634). As even the Ninth Circuits NAAP decision recognized, communication that occurs during psychoanalysis is entitled to constitutional protection, but is not immune from regulation. NAAP, 228 F.3d at 1054. That regulation, however, is heightened when the regulation of professional speech is content-based. Id. at 1055 (applying rational basis only because Californias mental health licensing laws are content-neutral; they do not dictate what can be said between psychologists and patients during treatment). Here, contrary to the content-neutral scheme is NAAP, it is clear that A3371 is intended to restrict the content of the message that can be provided in the therapeutic alliance between
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counselor and patient. A3371 permits counseling directed at providing acceptance, support, and understanding of a minor with same-sex attractions, behaviors, or identity. (Compl. Ex. A). It also permits counseling with that assists a minor seeking to transition from one gender to another. (Id.). Finally, it permits counseling that facilitates exploration and development of same-sex attractions, behaviors, or identity. (Id.). Content that affirms same-sex attractions, behaviors, or identity is the only thing countenanced by A3371 in the context of counseling concerning sexual orientation. Content that does not affirm same-sex attractions, behaviors, or identity even when the client does not want them is singled out for punishment. A counselor can offer and a client can receive counsel seeking to transition from a male to female or female to male identity. But the same counselor may not offer nor may the client receive counsel that seeks to change such attractions or identity. In other words, if a male experienced unwanted desires to transition to a female identity but rejected such desires and chose not to identify as female, counsel to change such attractions would not be permitted. The content of speech is clearly central to A3371. The statute is only invoked when the subject of same-sex sexual attractions, behavior or identity arise. Counsel on this subject triggers the statute. This Court should therefore apply the most exacting scrutiny to [A3371 as it] suppress[es], disadvantage[s], or impose[s] differential burdens upon speech because of its content. Turner Broad. Sys., 512 U.S. at 642. A3371 can pass constitutional muster only if it is justified by a compelling government interest and is narrowly drawn to serve that interest. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011). A3371 cannot survive that test and should be permanently enjoined. 1. A3371 is not justified by a compelling interest.
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The State and GSE both base their entire defense of the law upon an alleged consensus among the mental health community that SOCE is harmful, and they rely principally on the 2009 Task Force Report of the American Psychological Association and on ideological statements of select mental health organizations, which are not supported by empirical studies but are mere political stances, none of which prohibit SOCE. Notably, virtually all of those statements arise from the APA Report itself, which as shown below, is insufficient to justify the States imposition of this content-based restriction on Plaintiffs professional counseling. Moreover, not one counseling association ethical code in the country prohibits SOCE. Not one! Furthermore, the Defendants experts attempt to establish widespread harms due to SOCE while acknowledging there is no current data to scientifically establish prevalence rates of harm, [and] they continually fail to put their concerns with SOCE in the broader context of the psychotherapy outcome research. (Decl. Rosik Rebuttal 21) (emphasis original). Additionally, and most importantly, Defendants experts practice in secular setting without clients experiencing conflict between their sexual attractions and their religious beliefs, and are therefore far less likely to encounter positive accounts of SOCE and client reports of meaningful change, as satisfied SOCE clients have no reason to seek out gay-affirmative therapists. (Id. 27). The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this. United State v. Playboy Entmt Grp., 529 U.S. 803, 819 (2000). When the government seeks to restrict speech, [i]t must demonstrate that the recited harms are real, not merely conjectural. Turner Broad. Sys., 512 U.S. at 664 (emphasis added). This is especially true when the States own sources admit there is no concrete evidence of harm caused by SOCE. APA Report at 42. [F]reedom of speech . . . may
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not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (emphasis added). Grave and immediate danger simply cannot be posited by inconclusive and anecdotal reports motivated by animus against not the practice of SOCE but the viewpoint of its practitioners. As Dr. Nicholas Cummings, a past-president of the APA has noted, [o]f the patients I oversaw who sought to change their orientation, hundreds were successful. Nicholas Cummings, Sexual Reorientation Therapy Not Unethical, Op-Ed, USAToday (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapynot-unethical-column/2601159/. Dr. Cummings specifically went on: [C]ontending that all same-sex attraction is immutable is a distortion of reality. Attempting to characterize all sexual reorientation therapy as unethical violates patient choice and gives an outside party a veto over patients' goals for their own treatment. Id. Indeed, accusing professionals from across the country who provide treatment for fully informed persons seeking to change their sexual orientation of perpetrating a fraud serves only to stigmatize the professional and shame the patient. Id. Dr. Cummings concluded by noting that [a] political agenda shouldnt prevent gays and lesbians who desire to change from making their own decisions. Id. Dr. Cummings statements are significant. He favored declassifying homosexuality as a mental disorder in the 1970s. And, he wrote this Op Ed in the USA Today newspaper criticizing A3371 about a week before Gov. Christie signed it into law. The APA Report, whose members were hand-picked pro-homosexual activists,5 despite their best efforts to discredit SOCE found some evidence of benefits produced by SOCE. APA
5
See Declaration of Dr. Rosik at 3.

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Report at 2-3, 42, 49-50, 120. Notably, with respect to the effects of SOCE on minors, the APA Report found that sexual minority adolescents are underrepresented in research on evidencebased approaches, and sexual orientation issues in children are virtually unexamined. Id. at 91 (emphasis added). The APA Report concluded that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes . . . because no study to date of scientific rigor has been explicitly designed to do so. Id. at 42 (emphasis added). The only evidence of harm was anecdotal some individuals reported being harmed by SOCE. Id. at 120. Of course, the APA Report criticized studies finding some benefit from SOCE for relying on anecdotal evidence, but when the shoe was on the other foot and the anecdotal evidence supported a finding of harm resulting from SOCE, the APA Report was more than willing to accept it. Compare APA Report at 29 (criticizing pro-SOCE reliance upon retrospective pretest designs (i.e. self-reporting after the fact) with APA Report at 41-42 (crediting self-reports of perceived harm from SOCE). This will not suffice to justify A3371s complete ban on speech, as the government must present more than anecdote and supposition to support its burden of proof. Playboy Entmt, 529 U.S. at 822. Moreover, Plaintiffs patients are currently benefiting from this particular counseling, which undermines the entire premise of A3371 and Defendants and GSEs adamant assertions that this type of counseling is per se harmful. It is not. Such categorical statements are extreme and have no basis in fact or any reputable study. Plaintiffs currently have clients that are benefitting from the SOCE counseling they are receiving. (See, e.g., Decl. of John Doe 10 (I have been seeing this therapist since May of 2011, and I can really say I am improving. I now have a normal guy voice, I dont shave my
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body hair anymore, and I definitely have a better relationship with my father. I do not have thoughts of suicide anymore and my confidence as a guy is starting to build . (emphasis added)). Indeed, as is true with many minors who have received SOCE counseling from Plaintiffs, John Doe is specifically beginning to experience positive change. (Id. 12 (I would also say that my Same-Sex Attraction is lessening to the point where its only three out of 10 when it used to be eight out of 10. Every day gets a little better with therapy. I just do not experience my unwanted same-sex sexual attractions as frequently as I did before I started my counseling sessions with my therapist. The counseling sessions have really helped me.). Additionally, the testimony before this Court actually shows the opposite conclusion of the APA Report from first hand accounts. Plaintiff Dr. Tara King herself benefited from SOCE counseling. (Dkt. 3-1, Declaration of Tara King, Kind Decl.). Through Harvest USA and her SOCE counseling, Dr. King realized that she could change, eliminate her unwanted same-sex attractions and behaviors and prioritize her sincerely held religious beliefs over all those unwanted feelings. (King. Decl. 8). Because of her SOCE counseling and the various organizations she attended with other former homosexuals who successfully changed, Dr King for over 23 years has fully experienced the changes that God can bring to an indivi duals life. (Id. 9-10). That fact that even the APA Report acknowledges some benefits, and that fact that Dr. King is living proof of change, undercuts the premise of A3371 that SOCE is per se harmful and so should be completely prohibited. And, the fact there is an admitted lack of research on minors undercuts the alleged justification for the law. The evidence of harm is simply lacking, and because A3371 infringes on pure speech, the Constitution demands more than ideological aspirations. A3371 is not justified by a compelling government interest. Ideological opinions
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without objective evidence, as is present here, cannot possibly rise to a compelling interest. It cannot possibly be an interest of the highest order. Plaintiffs hereby incorporate by reference the remaining portion of their compelling interest argument set forth in their original memo (Dkt. 4) at pp. 11-15. 2. A3371 is not the least restrictive means.
Not only does A3371 fail the first prong of the strict scrutiny test because the government does not have a compelling interest, it also fails the second prong, because it is not the least restrictive means. Indeed, A3371 completely prohibits any counsel, under any circumstances, with any minor that deals with reducing or eliminating unwanted same-sex attractions, behaviors, or identity. (Compl. Ex. A). [I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it. Playboy Entmt, 529 U.S. at 815. Content-based restrictions on speech must be the least restrictive alternative possible because [t]o do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit. Id. at 813 (emphasis added). This case involves speech alone; and . . . the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative. Id. at 814. Indeed, [t]he existence of adequate content-neutral alternatives thus undercut[s] significantly any defense of such a statute, casting considerable doubt on the governments protestations that the asserted justification is in fact an accurate description of the purpose and effect of the law. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (citations omitted). In the area of constitutionally protected expression, the State cannot burn the house to roast the pig. Sable Commcns of Cal., Inc. v. FCC, 492 U.S. 115, 127 (1989) (quoting Butler v. Michigan, 352 U.S. 380, 382 (1957)).
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Here, without any concrete and specific evidence of substantial harm caused by SOCE (and with some evidence of actual benefit from SOCE), the State cannot totally ban SOCE. A complete prohibition on SOCE by licensed professionals under any circumstances for any minor is not the least restrictive means to achieve the alleged governmental interest. A complete ban can almost never satisfy the least restrictive means test. See, e.g., Frisby v. Schultz, 487 U.S. 474, 485 (1988) (A complete ban can be narrowly tailored but only if each activity within the proscriptions scope is an appropriately targeted evil); United States v. Mark, 425 F.3d 505, 510 (8th Cir. 2005) (even in the context of a prison, a complete ban . . . is difficult to justify as a least restrictive means); Hassay v. Mayor, CIV.A. ELH-13-1076, 2013 WL 3364692 (D. Md. July 3, 2013) (a complete ban is the very antithesis of a narrowly tailored law). This is especially so when the main source relied upon by the State (the APA Report) acknowledges there is evidence that SOCE is beneficial to some who seek such counsel and the only evidence of alleged harm is at best anecdotal. Informed consent provisions would certainly be a less restrictive means of addressing the Legislatures alleged interest than a total prohibition on SOCE counseling. Indeed, when the California law was being debated, the California Counseling Associations proposed that California Legislature enact an informed consent provision rather than completely prohibit this type of counseling. (See Compl. Ex. B). These associations noted that a requirement that the counselor provide, inter alia, his experience in this area, the potential risks of SOCE, and mention that the mental health associations stance on SOCE counseling would alleviate some of their concerns. (Id.). Notably, these associations described the California law as an unprecedented restriction on psychotherapy. (Id.). As such, they proposed an informed consent law as an alternative to a total prohibition on SOCE counseling.
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Moreover, it should be noted that the ethical codes of nearly every mental health organization already prohibit counselors from harming their clients. The APAs own ethical code specifically states that [p]sychologists take reasonable steps to avoid harmin g their clients/patients. (Compl. 31). The American Counseling Association Code also states that [c]ounselors act to avoid harming their clients. (Id. 47). The American Association of Marriage and Family Therapists Code of Ethics provides that therapists shall advance the welfare of families and individuals. (Id. 50). These provisions already prohibit the harm that A3371 purports to prevent without the unprecedented intrusion into the therapeutic alliance between a counselor and client. A3371 is therefore not the least restrictive means to achieve the governments purported interest. 3. Defendants and GSEs cited cases reveal that strict scrutiny applies even in the professional context.
The State and GSE both allege that Plaintiffs have not put forward any example of a court mandating strict scrutiny on a medical or mental health regulation. (State Br. at 22; GSE Br. at 10, 14). This is curious given that both the State and GSE cite a Ninth Circuit case analyzing a regulation of the medical profession under strict scrutiny and even striking the regulation down as unconstitutional. See Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Also, the Southern District of Florida cited Conant and other Supreme Court cases in applying strict scrutiny to strike down a regulation that prohibited physicians from engaging in certain discussion during the course of treatment. Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1265-66 (S.D. Fla. 2012). Authority therefore clearly exists to warrant the application of strict scrutiny here. Moreover, the Supreme Court has repeatedly applied strict scrutiny to professional regulations in other contexts. In Sorrell v. IMS Health, Inc, the law was directed at the professional speech of pharmaceutical salespersons. Sorrell, 131 S. Ct. 2653 (2011). The law on
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its face burden[ed] disfavored speech by disfavored speakers. Id. at 2663. That is precisely what A3371 does here: it burdens disfavored speech by disfavored speakers. The Sorrell Court found the law was designed to impose a specific, content-based burden on protected expression. Id. at 2664. As such, heightened judicial scrutiny [was] warranted. Id.; see also Va. State Bd. of Pharm. v. Virginia Citizens Consumer Counsel, Inc., 425 U.S. 748, 770 (1976) (noting that the First Amendment command the assumption that information is not itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them). The State in Sorrell contended, as the State and GSE do here, that heightened scrutiny was not proper because the regulations targeted conduct, not speech. Id. at 2666. It also contended that the speech of these professionals had adverse consequences on the public, as do Defendants here. Sorrell rejected these arguments, and this Court should also reject them. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech. Id. at 2670-71. Here, no one is being deceived by Plaintiffs counseling. The minors and parents receive detailed information and consent to the counsel they seek to reach their objective. (Newman Decl. 11). The States undifferentiated fear that SOCE is ineffective for some is insufficient to ban the entire practice. (GSE Br. at 3-6, 15). Indeed, [t]he choice between the dangers of suppressing information, and the dangers of its misuse if it is freely available is one that the First Amendment makes for us. Id. at 2671 (citations omitted). Additionally, the Supreme Court has not hesitated to apply exacting scrutiny against regulations of professional speech that restrict the content or message of what the professional
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can say. See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001); Thomas v. Collins, 323 U.S. 516, 545 (1945); Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995). As such, the States and GSEs contention that no cases have applied strict scrutiny in a similar context is wholly without merit. D. Even under Defendant and GSEs Categorization of SOCE as Primarily Conduct, A3371 is Subject to Intermediate Scrutiny under OBrien.
The Ninth Circuit held that SB1172 was merely a regulation of professional conduct. Pickup, 2013 WL 4564249 at *8. Defendants and GSE also repeat this assertion numerous times in their cross-motions for summary judgment. (State Br. at 15, 17; GSE Br. at 1, 9, 10, 13). Even if this Court were to categorize SOCE as conduct (which it should not), it is nonetheless at a minimum expressive conduct subject to intermediate scrutiny under United States v. OBrien. Under that standard, A3371 cannot withstand scrutiny because it is not supported by a substantial government interest, it is directly related to the suppression of Plaintiffs speech, and it imposes a far greater restriction than necessary. Additionally, the cases relied upon by the State and GSE do not support the notion that A3371 is subject only to rational basis as a regulation of conduct. In fact, they are hard pressed to find any regulations of speech (as opposed to pure conduct) outside of the advertising context that are reviewed under the highly deferential rational basis standard. See, e.g., Edenfield v. Fane, 507 U.S. 761, 768-69 (1993) (even commercial speech is customarily subjected to intermediate scrutiny); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 563 (1980) (setting forth general rule that rational basis review applies only to misleading or deceitful commercial speech; otherwise it receives intermediate scrutiny). Specifically, the States and GSEs cited authorities on this issue deal with entrance requirements or regulations of speech far less intrusive restrictions on speech that that at issue
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here. Indeed, both the State and GSE improperly conflate regulations governing entrance into a profession with those unconstitutionally infringing on the speech of professionals already licensed. They cite National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 228 F.3d 1043 (9th Cir. 2000) (NAAP), where this Court upheld a content-neutral regulation concerning the minimum competency and education level for entrance into the mental health profession. NAAP, 228 F.3d at 1055. In NAAP, three individuals failed to meet the minimum qualifications of a doctoral degree, entrance exam passage, and two-years residency. Id. at 1048. Two plaintiffs failed for having only master degrees and the other for lack of the requisite residency. Id. The plaintiffs challenged the law as a violation of their right to free speech. This Court recognized the States authority to regulate entrance into the profession, and subjected it to rational basis review because it was content-neutral and not adopted because of any disagreement with psychoanalytical theories. Id. at 1056. A3371 does not regulate minimum entrance requirements. It prohibits the constitutionally protected speech of those mental health professionals who already satisfy the minimum entrance requirements and dictates what can be said. 1. Even if A3371 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies.
The Supreme Court has recognized that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. Texas v. Johnson, 491 U.S. 397, 404 (1989). In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether an intent to convey a particular message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it. Id. at 406-07 (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).
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It is beyond question that Plaintiffs intend to convey the message that minors struggling with unwanted same-sex attractions, behaviors, or identity can eliminate or reduce them. Mental health counselors would not engage in this type of counsel if they did not intend to communicate the message that change is possible. In fact, their clients seek them out precisely because of that message. (King Decl. 13-14; Newman Decl. 8). It is certain that Plaintiffs clients understand the message, as the message is their sole reason for seeking SOCE counseling. If this Court were to find that A3371 regulates primarily conduct, then it is at least expressive conduct, which must satisfy the heightened standard of intermediate scrutiny. [W]hen speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. United States v. OBrien, 391 U.S. 367, 376 (1968).6 [C]onduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative is symbolic expression, otherwise known as expressive conduct. Bartnicki v. Vopper, 220 F.3d 109, 120 (3d Cir. 1999). Where. . . a regulation burdens expression but is content-neutral, we apply the intermediate scrutiny standard enunciated by the Supreme Court in United States v. OBrien. Conchata Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006). Because the communication involved in SOCE is obviously expressive, A3371 can survive only if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. OBrien, 391 U.S. at 377. The State and GSE have not and cannot satisfy this burden.
6
A3371 imposes more than an incidental restriction on constitutionally protected speech. It imposes a complete prohibition on protected speech.
29
Both the State and GSE rely heavily on Pickup, but fail to acknowledge that the panel there specifically noted that the plaintiffs in that case, as do all Plaintiffs here, engage in SOCE solely through talk therapy. Pickup, 2013 WL 4564249 at *8 n.5. Additionally, the panel recognized that the prohibition on SOCE counseling is indeed an incidental restriction on speech Id. at *9 (we conclude that any effect it may have on speech is merely incidental) (emphasis added). This acknowledgement alone should have triggered the OBrien intermediate scrutiny test, but the Pickup panel never even cited OBrien. Moreover, the plain language of A3371 reveals that it is a restriction on speech. SOCE is defined as any efforts to change samesex attractions, behaviors, or identity. (Compl. Ex. A, 2(b)). Such counsel is talk therapy, i.e., speech. The statute specifically mentions counseling (i.e., speech) twice in the same provision. (Id.). Moreover, A3371 is a restriction on speech as it concerns Plaintiffs, since they only engage in talk therapy. (See, e.g., King Decl. 12 (SOCE counseling is talk therapy.); Nicolosi Decl. 26 (SOCE counseling consists solely of verbal discussions between the counselors and the clients); id. 36 (it is impossible to distinguish the practice of SOCE from speech. Psychotherapy is speech. The therapeutic relationship is talking and communication.). 2. A3371 does not advance an important government interest.
A3371 does not advance an important government interest. A3371 is grounded solely on political ideology. (Compl. Ex. A; GSE Br. at 3; State Br. at 6). A3371 was also based on the APA Report, which found that insufficient evidence existed to conclude SOCE was harmful to adults, and no evidence regarding minors. APA Report at 42, 91. Indeed, the APA Report concluded that there was evidence to support benefits produced by SOCE. Id. at 2-3, 42, 49-50, 120. The APA Report also acknowledged that sexual orientation issues in children are virtually
30
unexamined. Id. at 91. This record is utterly insufficient to support a ban on SOCE, let alone a ban on SOCE to minors. The basis for supporting an important government interest cannot be speculative or anecdotal. See Witt v. U.S. Dept of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (hypothetical, post-hoc rationalizations are insufficient to establish an important government interest); Playboy Entmt, 529 U.S. at 822 (the government must present more than anecdote and suspicion). No doubt a State possesses legitimate power to protect children from harm . . . but that does not include a free floating power to restrict ideas to which children may be exposed. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2736 (2011) (citations omitted) (emphasis added). The States interest in protecting children is unsupported by evidence of harm. Disagreement with the notion that unwanted same-sex attractions, behaviors, or identity can be changed is insufficient as a matter of law to justify a complete ban on the expressive communications of Plaintiffs and their clients. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images the legislative body thinks unsuitable for them. Id. A political objection to a certain message the legislature and the homosexual lobby finds disagreeable cannot suffice as an important government interest, especially when such legislative animus is unsupported by the evidence. 3. A3371 is targeted at the suppression of the message of SOCE.
GSE admits that A3371 regulates content. (GSE Br. at 15) (Licensing and regulation of medical providers necessarily requires the ability to inquire into the content of treatment, including speech that is part of treatment.) (emphasis added). Speech regulation is not an
31
incidental part of the law. It is the very heart of A3371. GSE equates laws imposing discipline due to malpractice violations with claims regarding talk therapy. (GSE Br. at 11-12). But SOCE has never been a violation of any ethical standards and the same organizations purporting to represent the consensus that it is per se harmful do not ban it anywhere in their ethical codes. Indeed, Defendants can point to no instances of ethical violations by Plaintiffs or other practitioners of SOCE, and not one of the leading mental health organizations has ever expressed anything more than an ideological opposition to this type of counseling. (Compl. Ex. A). No counseling association bans SOCE. SOCE is not a therapy that violates established professional or ethical standards as GSE alleges. Even the most comprehensive review of SOCE found only that it may cause some harm, but those reports of harm were counterbalanced by reports of benefits. APA Report at 2-3, 42, 49-50. This sparse record will not suffice for such a harsh and overbroad ban, and provides no comparison to malpractice claims in which a medical professional violates clearly established principles and ethical or professional norms. Moreover, A3371 is directly related to the opinions of a counselor concerning whether SOCE can assist a person struggling with unwanted same-sex attractions, behaviors, or identity. Mental health professionals are permitted to counsel minor clients concerning same-sex attractions, behaviors, or identity and affirm them, but they cannot counsel a minor client concerning change for his or her unwanted same-sex attractions, behaviors, or identity. The counselor is required to present only one message, namely, that same-sex attractions, behaviors, or identity should not be resisted, and cannot be stopped, reduced, or otherwise managed regardless of the clients religious beliefs that they can. By explicitly singling out same-sex attractions, behaviors, or identity, transitioning from one gender to another, and LGBT youth, A3371 clearly aims to ban only the message that seeks
32
to change non-heterosexual sexual orientations. (Compl. Ex. A). That this is the actual meaning of A3371 cannot be seriously doubted. A3371 is targeted at any counsel to a minor under any circumstance that seeks to change same-sex attractions, behaviors, or identity regardless of the clients goals and objective in the therapeutic alliance with his or her counselor. As the language of the bill and GSEs comments make clear, A3371s sole aim is the suppression of the message communicated in SOCE counseling with minors seeking to reduce or eliminate unwanted samesex attractions, behaviors, or identity. (GSEs Br. at 3-4). That A3371 is intended to suppress that message is made even more evident by the timing of its passage. Plaintiffs have practiced SOCE for decades without any attempt to prohibit them from doing so. Many of the ideological position statements referenced in A3371 and the APA Report upon which it is based have also been around for years (See A3371 at 1(d)(g) (1994 statement of AMA), 1(d)(h) (1997 statement of NASW), 1(d)(i) (1999 statement of American Counseling Association), yet only in the last few months have there been any attempts to ban SOCE. If the alleged harm occasioned by this counseling has been clear for years, as Defendants and GSE suggest, then it is curious why there have never been any findings of ethical violations, or lawsuits against the practitioners of SOCE by injured clients, or any efforts to ban the practice until now, especially since it is allegedly per se harmful. And the New Jersey Legislature has determined that minors 14 years and older can consent to any counsel without the parents consent, and that included SOCE. N.J. Ct. R. 4:74-&A(c). So, now we have the odd situation that minors can consent to any counsel despite their parents objection, except that minors cannot consent to SOCE even with their consent and the consent of their parents. This is absurd.
33
The restriction on speech occasioned by A3371 is more than incidental, and thus the OBrien intermediate test should not apply. A3371 is viewpoint-based and ipso facto unconstitutional. At a minimum, strict scrutiny should be applied under a content-based standard. But even if the regulation were merely incidental to the alleged conduct and OBrien did apply, A3371 does not and cannot survive intermediate scrutiny. 4. The States and GSEs authorities do not support rational basis scrutiny.
The State and GSE both rely on Watson v. Maryland, 218 U.S. 173 (1910) to support the notion that minimal scrutiny applies. (State Br. at 16, 32; GSE Br. at 7, 11). This 100 year old case provides no support for such an assertion, and in fact, supports the opposite conclusion. Also, given that this case predates the incorporation of the First Amendment to the states and long predates the development of strict and intermediate scrutiny applied to regulations of speech such as A3371, it is of little value in supporting Defendants conclusions. See Gitlow v. People of State of New York, 268 U.S. 652 (1925). That states have an interest in generally regulating the medical profession, an unremarkable notion, the lowered scrutiny is only the product of entrance requirements and qualifications. [S]tatutes which require the practitioner of medicine to submit to an examination by a competent board of physicians and surgeons, and to receive duly authenticated certificates showing that they are deemed to possess the necessary qualifications of learning, skill, and character essential to their calling will be upheld unless they are so unreasonable and extravagant as to interfere with property and personal rights of citizens unnecessarily and arbitrarily. Watson, 218 U.S. at 176. This principle is of no import to the speech at issue here, which occurs in the therapeutic alliance between an already licensed professional and his or her client.
34
The States reliance on Lambert v. Yellowly, 272 U.S. 581 (1926), which also predates the introduction of heightened scrutiny to restrictions such as A3371, also supports the opposite conclusion from the one the State reaches. Indeed, in Lambert, Congress had over a half of a century of evidence of problems prior to enacting the challenged law. Lambert, 272 U.S. at 589. The evidence Congress relied upon was concrete and proven, not speculative and theoretical, as it is here. Id. at 593-94. Despite that concrete evidence against the practice by a minority of the profession, it still chose not to enact a complete prohibition on the practice. Id. at 594-95 (Congress, in deference to the belief of a fraction of the medical profession that vinous and spirituous liquors have some medicinal value, has said that they may be prescribed in limited quantities according to stated regulations. (emphasis added)). Here, obviously the State has not enacted such a limited regulation, but has imposed a total prohibition of SOCE without anything remotely resembling the half-century of concrete evidence Congress had in Lambert and indeed without any concrete evidence whatsoever. To say that this case supports the use of rational basis scrutiny of A3371 is misguided at best and disingenuous at worst. Similarly, GSEs reliance on Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010) is similarly misplaced. There, the First Circuit stated the unremarkable proposition that [s]imply because speech occurs does not exempt those who practice a profession from state regulation. Coggeshall, 604 F.3d at 667. This assertion does not support GSEs argument that all professional regulations are subject only to rational basis review. (GSE Br. at 10). Coggeshall did not even discuss the standard of review for professional regulations, so that case is of no import here. All the other cases cited by the State and GSE (States Br. at 22-23; ECs Br. at 14) similarly dealt solely with minimum qualifications for entrance into the profession. Accountants Socy of Va. v. Bowman, 860 F.2d 602, 605 (4th Cir.
35
1988); Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239 (1957). They are therefore inapposite here. E. Plaintiffs have Standing to Raise Claims on behalf of their Clients.
The States and GSEs opposition to Plaintiffs standing to sue on behalf of their minor clients is without merit. First, the State attempts to put the cart before the horse and require that Plaintiffs show that they will prevail on their claims prior to being able to assert any claims on behalf of their clients. (State Br. at 12). This ignores the fundamental nature of pleading requirements and also ignores the Third Circuits admonition that the determination of the likelihood of success on the merits of the case is a separate inquiry from the threshold issue of Article III standing. The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir. 2000). GSEs contention, which is relegated to a footnote, that Plaintiffs clients have no obstacle to presenting their own claims is equally unavailing.7 (GSE Br. at 17 n.13). GSE contends that bringing claims under a pseudonym is sufficient to protect their interests, and therefore Plaintiffs cannot assert the rights of their clients. (Id.). While this is a potential option, it has been available in all Supreme Court cases permitting third-party standing, but has never been required in the cases where the Supreme Court permitted doctors to bring claims on behalf of their patients. See Singleton v. Wulff, 428 U.S. 106 (1976); Doe v. Bolton, 410 U.S. 179 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). It should not be required here. As the Third Circuit has recognized, [p]sychiatrists clearly have the kind of relationship with their patients which lends itself to advancing claims on their behalf. This intimate relationship and the resulting mental health treatment ensures psychiatrists can effectively assert
7
In addition, GSEs argument was arguably waived by relegating it to a footnote. See, e.g., Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223 (3d Cir. 2013) (passing reference to argument in footnote waived on appeal).
36
their patients rights. Penn. Psychiatric Socy v. Green Springs Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002). This relationship clearly constitutes a sufficient closeness to warrant thirdparty standing in this case, and it should be permitted. Plaintiffs hereby incorporate their third-party standing arguments more fully set forth in their Supplemental Memorandum at pp. 1-3. F. A3371 Infringes the Plaintiffs Patients Right to Receive Information.
The right to receive information is as fundamental to the First Amendment as the right to speak. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982). Indeed, More importantly, the right to receive ideas is a necessary predicate to the recipients meaningful exercise of his own rights of speech, press, and political freedom. Id. The States and GSEs notion that the minors right to receive information is not protected here is based on the false premise that A3371 regulates only a form of treatment rather than speech. (GSE Br. at 18; State Br. at 23). Indeed, even if this Court determines that SOCE counseling is merely treatment and not speech (which it certainly should not), this type of treatment is carried out solely through speech, so the right to receive information is certainly implicated. (King Decl. 12). Indeed, in the actual practice of psychotherapy, it is impossible to distinguish the practice of SOCE from speech. Psychotherapy is speech. The therapeutic relationship is talking and communication. (Nicolosi Decl. 36). As such, prohibiting licensed mental health counselor from providing speech in the therapeutic relationship is an infringement on those minors right to receive information and to be well informed about their decisions concerning something as fundamental as their self-identity. The State and GSE also falsely assume that licensed mental health counselors can simply refer their minor clients to an unlicensed counselor, which will protect the minors right to
37
receive information. (GSE Br. at 18; State Br. at 23-24). Simply put, this is false. Licensed mental health providers are still ethically bound to monitor the progress and relationship that their clients have with other counselors to which they refer them, and as such, any referral to a person who would provide SOCE counseling could certainly be considered an effort to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. (King Decl. 17, noting that the American Counseling Association code mandates that a referring professional ensure that appropriate clinical and administrative processes are completed and open communication is maintained with both clients and practitioners). As such, the State and GSEs notion that the ability to make a referral diminishes the infringement on the minors right to receive information is incorrect. (Id. (A3371 forces me to violate [my ethics code] because I will no longer have the option of referring a client to an appropriate licensed mental health professional); (see also Newman Decl. 12 (A3371 would also prohibit me from making referrals to other licensed counselors who can provide SOCE.)). A3371 violates the minors right to receive information and is therefore unconstitutional. G. A3371 Infringes Plaintiffs Clients Right to Direct the Upbringing of their Children.
A3371 violates decades of Supreme Court authority in favor of the statist noti on that governmental power should supersede parental authority that the Supreme Court has found to be repugnant to American tradition. Parham v. J.R., 442 U.S. 584, 603 (1979). The Supreme Court has long recognized parents fundamental rights to make important medical decisions for their children, and childrens rights to have those decisions made by their parents rather than the state. Id. at 602. Additionally, the Supreme Court has long held that there exists a private realm of family life which the state cannot enter. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Troxel v. Granville, 530 U.S. 57, 68 (2000) (so long as a parent adequately cares for his
38
or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family). Through A3371, the state has entered into that private realm to supersede parental authority when it is exercised to consent to counseling to reduce or eliminate a childs unwanted same-sex attractions, behaviors, or identity. Prevailing authority requires a finding that A3371 impermissibly infringes upon parents fundamental rights absent evidence8 that SOCE poses real harm to the childrens well-being. Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950, 962-63 (9th Cir. 2009). The record contains no evidence that SOCE harms children . APA Report at 91, 120. In fact, the Legislatures primary evidence, the APA Report concluded: We conclude that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes among people who have undergone efforts to change their sexual orientation or the frequency of occurrence of harm because no study to date of adequate scientific rigor has been explicitly designed to do so. Thus, we cannot conclude how likely it is that harm will occur from SOCE. Id. at 42 (emphasis added). What the record does contain is evidence that discontinuing SOCE counseling will cause real harm to the children. (King Decl. 15-17; Newman Decl. 8; Pruden Decl. 8-9; Nicolosi Decl. 25-28). Therefore, under Troxel, Parham, Wallis, and Video Software Dealers, the state impermissibly superseded parental authority when it banned SOCE. Given that the findings upon which the Legislature relied were methodologically flawed, inconclusive as to harm, and actually contained evidence of benefit, the State and GSE have not and cannot satisfy the high burden on them to justify the restriction on Plaintiffs and their clients with compelling evidence, concretely established. United States v. Playboy Entmt Grp., 529 U.S. 803, 822 (2000). The Supreme Court has made clear that there must be substantial evidence, not mere anecdote and suspicion or opinion evidence United States v. Playboy Entmt Grp., 529 U.S. 803, 822 (2000); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)
39
The State and GSE seek to turn prevailing authority on its head by asserting that A3371 does not infringe parental rights because parents do not have the right to select the counseling or counselor of their choice if the State has determined that it is harmful. (GSE Br. at 24; State Br. at 34). Yet, the record evidence is not in disputethe minors want this counseling and the parents support their children. Additionally, the States position that parents do not have the right to harm their child by subjecting them to practices deemed harmful by the State requires a much higher showing of harm that what the State and GSE have put forward here. Political and ideological opposition to SOCE counseling is simply insufficient to remove a parents fundamental right to direct the upbringing of their child. Indeed, [t]he very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and principles. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Indeed, fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Id. (emphasis added). Without concrete evidence of harm, the State simply cannot justify the infringement on the fundamental rights of parents in New Jersey. H. A3371 is Vague. 1. The term sexual orientation is vague.
Neither Defendants nor GSE even attempt to address the changing and fluid nature of sexual orientation, particularly among youth, and the troubling repercussions such fluidity entails under the harsh demands of A3371. The APA Report specifically recognized that sexual orientation is fluid and can have an indefinite outcome. APA Report at vii. In fact, the APA Report criticized SOCE researchers for failing to recognize and deal with the complexity of the nuanced definition of sexual orientation: Considered in the context of the conceptual complexities of and debates over the assessment of sexual orientation, much of the SOCE
40
research does not adequately define the construct of sexual orientation, does not differentiate it from sexual orientation identity, or has misleading definitions that do not accurately assess or acknowledge bisexual individuals. See APA Report at 31. Not only that, as the former President of the APA acknowledges, contending that all same-sex attraction is immutable is a distortion of reality. Attempting to characterize all sexual reorientation therapy as unethical violates patient choice and gives an outside party a veto over patients' goals for their own treatment. Nicholas Cummings, Sexual Reorientation Therapy Not Unethical, Op-Ed, USAToday (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientationtherapy-not-unethical-column/2601159/. Moreover, Dr. Cummings specifically noted that [o]f the patients I oversaw who sought to change their orientation, hundreds were successful. Id. The APAs own Task Force acknowledged that [s]exual orientation is a complex human characteristic involving attractions, behaviors, emotions, and identity. Id. at 29 (emphasis added). It noted that Alfred Kinsey (whose horrificly unscientific and criminally abusive methodology is addressed in Reisman Declaration), who is generally credited with creating the field of the study of sexual orientation, used a unidimensional, 7-category taxonomic continuum, from 0 (exclusively heterosexual) to 6 (exclusively homosexual), to classify his participants. Id. Thus, in Kinseys world (and we are all living in Kinseys world today), sexual orientation is no longer binomial; it is a continuum.9 So, under Kinseys taxonomy, the SOCE counselor is tasked with ascertaining just which of the seven different categories of sexual orientation a new client fits, from exclusively homosexual to predominantly homosexual, only incidentally heterosexual, to predominantly homosexual, but more than
9
Males do not represent two discrete populations, heterosexual and homosexual . The world is not to be divided into sheep and goats. It is a fundamental of taxonomy that nature rarely deals with discrete categories . . . . The living world is a continuum in each and every one of its aspects. Kinsey, A. C., Pomeroy, W. B., & Martin, C. E. (1948), Sexual behavior in the human male. Philadelphia: W.B. Saunders, at 639, 656 (emphasis added).
41
incidentally heterosexual, and so on. If the counselor guesses wrong and the odds are the counselor will, at least some of the time the counselors license is at risk every time he or she counsels a minor presenting with some confusion or concern over his or her sexual orientation. But if that werent confusing enough, alas, mental health professionals have not settled on Kinseys taxonomy, either. Instead, they have now introduced at least three variables for determining ones sexual orientation: identity, behavior, and attraction. See APA Report at 2930. A key finding in the last 2 decades of research on sexual orientation is that sexual behavior, sexual attraction, and sexual orientation identity are labeled and expressed in many different ways. Id. at 30. In other words, the target of definitively identifying an individuals sexual orientation is continually moving. One day the client may self-identify as a man, behave in a masculine fashion, and express sexual desires for women; the next, he may feel like a woman, cross-dress, behave in an effeminate manner, and express sexual desires for men. Is he male or female? Heterosexual or homosexual (or bisexual, or one of Kinseys many variants in between)? Only the client knows for sure and maybe not even him (or her). According to the APA Report, a subset of individuals who engage in same-sex sexual behaviors or have same-sex sexual attractions do not self-identify as LGB [or T or Q] or may remain unlabeled and some self-identified lesbian and gay individuals may engage in othersex sexual behaviors without self-identifying as bisexual or heterosexual. Id. (emphasis added) (citations omitted). So, now the helpless counselor, in undertaking the hopelessly confusing calculus involving the three variables that the APAs theory-du-jour dictates must not blindly accept even the clients self-identification, her sexual behaviors or attractions, but must somehow divine the clients true sexual orientation despite all outward signs and even the
42
clients express affirmation of her sexual identity. Yet, the State and GSE blandly assert that the term sexual orientation is not vague. Additionally, sexual attractions and behaviors (both of which are expressly mentioned in A3371) are widely recognized in the mental health community as being labeled and expressed in many different ways, some of which are fluid. Id. at 14. Studies have shown that same-sex attractions, behaviors, and identity among minors often diminish or disappear spontaneously. (Dkt. 3-5, Nicolosi Decl. 34) (emphasis added). This moving target causes even more imprecision in the definition of sexual orientation and can potentially make it vary even from session to session with a client. Given this fluidity and the very nature of SOCE counseling, A3371 by no means provides the type of clarity the First Amendment demands of regulations that infringe on speech. A3371 utterly fails to give adequate warning of what activities it proscribes or set out explicit standards for those who apply it. Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1982)). The chance of running afoul of A3371s prohibitions is increased even further given the assumptions on which its prohibitions are based. Indeed, there are multiple meanings of sexual orientation among mental health professionals. (Nicolosi Decl. 34). The imprecision becomes evident under GSEs own experts definition of sexual orientation, which he says is a term also used to refer to a persons sense of identity based on desires and attractions. (Dkt. 30 -5, Herek Decl. 8); see also APA Report at 30 (noting that for some, sexual orientation identities may vary due to personal concerns, culture, contexts, ethnicity, nationality, and relationships). How is a licensed mental health professional supposed to know how to comply with A3371 when the law questions the credibility of a minor and according to the new law, [he] cannot be believed i f he says his homosexual feelings do not represent his deepest sense of self, and he wants to
43
change. (Nicolosi Decl. 34). Indeed, how can a mental health counselor hope to pinpoint a clients sexual orientation if A3371 says he is not even permitted to trust the personal identity of the actual client? Such incurable imprecision simply cannot withstand constitutional scrutiny. 2. The term SOCE is vague.
Both the State and GSE rest primarily on the Ninth Circuits decision in Pickup to address whether A3371 is unconstitutionally vague. (State Br. at 24-26; GSE Br. at 25-30). The Pickup panels justification for this conclusion, however, was in error. On the same page in which the court insists that SB1172 does not ban speech, but merely a form of medical treatment for minors, it acknowledges that [t]he record shows that Plaintiffs who are licensed mental health providers practice SOCE only through talk therapy. Pickup, 2013 WL 4564249, *8 (emphasis added). According to the panel, therefore, SB1172 does not prevent therapists from discussing the pros and cons of SOCE with their patients, but does prevent them from engaging in talk therapy. Id. According to the panel, SB1172 is not void for vagueness because the text of SB1172 is clear to a reasonable person. Id. As the panels own logic establishes, however, SB1172 does not have the precision of regulation that is necessary when the government seeks to regulate expressive activity. NAACP v. Button, 371 U.S. 415, 435 (1963). Additionally, the States and GSEs continued assertion that because Plaintiffs used SOCE in their declarations that they are somehow forever barred from raising a vagueness challenge strains reason.10 (State Br. at 25-26; GSE Br. at 27-28). In support, GSE cites Holder v.
10
Had Plaintiffs not used the term SOCE, which is specifically prescribed in the statute, then the State and GSE would undoubtedly have challenged Plaintiffs standing to even challenge A3371 (as they have in fact done here even though Plaintiffs made clear that their practices appear to fall within the broad ambit of A3371s ban on SOCE). It is also worth noting that Dr. Newman merely refers to his practice as what is often called sexual orientation change efforts. (Newman Decl. 8).
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Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) for the notion that the standard for a vagueness challenge is somehow lower here. However, the language from Holder upon which GSE bases their argument refers to an as-applied challenge to a criminal statute under the due process clause of the Fifth Amendment, not to a facial challenge under the First Amendment, which is at issue here.11 Consequently, the Courts statement in Holder that a facial challenge on vagueness grounds fails where an individual challenging a statute engages in conduct that is clearly proscribed by that statute does not apply to a facial challenge based upon the First Amendment. Id. at 2719. What the Supreme Court did say with regard to the First Amendment in Holder actually demonstrates how A3371 violates free speech. Indeed, the Court there found that the federal statute which prohibited providing material support to terrorist groups did not violate the First Amendment because Congress did not seek to suppress ideas or opinions, but narrowly construed the statute to prohibit only conduct that would lend support to the terrorist groups. Id. at 2723. Consequently, Holder is consistent with a myriad of other Supreme Court precedents requiring that laws which threaten to inhibit the exercise of constitutionally protected expression must satisfy a more stringent vagueness test. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 599 (1967). As the Court said in Keyishian, the crucial consideration in determining whether a law is impermissibly vague is that no individual subject to the law can know just where the line is drawn. Keyishian, 385 U.S. at 599 (emphasis added). Plaintiffs include practitioners subject to the law and have testified that they do not know where the line will be
11
Even if the statements in Holder were applicable to this case, GSEs claim that Plaintiffs lack standing to challenge A3371 because they engage in prohibited behavior is incorrect. Most of the Plaintiffs patients and the majority of the members the AACC do not engage in SOCE therapy.
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drawn. (King Decl. 15-18; Newman Decl. 12-14). A3371 is therefore an unconstitutionally vague statute, and Plaintiffs have every right to challenge it. Moreover, GSEs argument concerning the vagueness of A3371s definition of SOCE is also fundamentally flawed in other respects. (GSE Br. at 27). GSE begins its discussion of the alleged clarity of the definition of SOCE by simply repeating the language of the statute. (Id.). They detail what the statute says SOCE includes and then provide an explanation what it does not include. Then, quite curiously, to explain why the provisions concerning the definition of SOCE are clear in what they prohibit, GSE proceeds to explain who is prohibited from engaging in the counseling, as if describing who is prohibited from engaging in the practice somehow clarifies what is prohibited by A3371. The argument that this somehow diminishes Plaintiffs vagueness challenges has no merit. GSEs attempts to discredit the legitimate questions raised by the draconian prohibitions of A3371 are equally unavailing. (GSE Br. at 29-20). First, while GSE claims that recommending a book about SOCE is not prohibited by the language of A3371, there is nothing explicit in A3371 that makes that clear, and GSEs assurance carries no legal weight. Presumably, this allegedly permitted practice would require some discussion of SOCE and its potential benefits or problems, which could certainly be viewed by a client as a practice concerning SOCE, whether the client is ultimately correct or not. Many clients view all of their discussions with the counselor as part of the overall treatment, so educating about SOCE could likely be perceived as counseling to reduce or eliminate same-sex attractions, behaviors, or identity, which would subject a mental health counselor to ethical violations. (Nicolosi Decl. 35). If a minors counselor were to recommend a book to him or her, then it could be perceived as an effort to reduce or eliminate same-sex attractions, behaviors, or identity, especially since a counselors
46
recommendation is likely to carry the implicit message that the counselor believes the book will help that client in his or her course of counseling. GSEs brush off of this imprecision is unavailing. Furthermore, GSEs discussion of affirming counseling defies the very language of the statute. (GSEs Br. at 29). Indeed, GSE states that [i]t is not the role of a professional counselor to either approve or disapprove of the behavior of patients based on the counselors professional beliefsand, indeed, counselors are ethically bound to avoid imposing their own views on clients. (Id.). This is precisely what A3371 mandates counselors do when a minor seeks counseling about unwanted same-sex attractions, behaviors, or identity. A3371s defines SOCE as not including therapy that provides acceptance, support, or understanding of same -sex attractions. (Compl. Ex. A). All three of those are methods of counseling explicitly stamp samesex attractions, behaviors, or identity with the counselors imprimatur, and it is indeed mandating that the counselor affirm and so approve the client in those attractions, behaviors, or identity. GSE ignores that reality and states explicitly that providing acceptance of a particular behavior does not mean that the therapist is affirming any particular behavior. (GSE Br. at 29). This defies logic. To accept is to regard as proper, usual, right, and true. Websters, New College Dictionary 6 (3d ed. 2005). To affirm is to declare positively, confirm, or maintain to be true. Id. at 19. GSEs notion that to affirm is not to accept is simply irrational. Moreover, it proves that even GSE is unsure of exactly what A3371s provisions mandate or prohibit. A3371 is therefore unconstitutionally vague. I. A3371 is Substantially Overbroad.
[A] State may not, under the guise of prohibiting professional misco nduct, ignore constitutional rights. NAACP v. Button, 371 U.S. 415, 438-39 (1963). The State and GSE base
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their entire overbreath arguments on the notion that A3371s prohibitions are clearly part of the a plainly legitimate sweep of the law. (State Br. at 27; GSE Br. at 30). Nevertheless, as shown above, A3371 sweeps within its prohibitions a substantial amount of speech that is constitutionally protected, and therefore far exceeds any plainly legitimate sweep. A plainly legitimate sweep requires that the State have a substantial basis upon which to conclude that SOCE is harmful and therefore can be prohibited. The State has not proved that SOCE is harmful with the requisite level of legitimate evidence. There is therefore no legitimate sweep for A3371 at all. To regulate Plaintiffs speech in this area, the government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a real and direct way. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). The States failure to demonstrate the existence of these alleged harms beyond mere anecdote and suspicion will not suffice to bring A3371 into any legitimate sweep, and as such, the regulation is overbroad. The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers. United States v. Williams, 553 U.S. 285, 293 (2008). As shown above, A3371 contains hopelessly vague terms, and so determining just what the statute covers is difficult if not impossible. Its vagueness thus creates an overbreadth problem as well. Moreover, A3371s language prohibiting SOCE counseling any practices under any circumstances creates a sweeping prohibition that the Supreme Court has found impermissible in statutes affecting expressive activity. United States v. Stevens, 130 S. Ct. 1577, 1588 (2010) (finding unconstitutionally overbroad a prohibition against depictions of animal cruelty despite its legitimate application in many circumstances).
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As was true with the statute against depictions of animal cruelty in Stevens, A3371 creates a prohibition of alarming breadth. Id. In fact, A3371 violates the overbreadth doctrine even more egregiously than did the regulation in Stevens, in that the Stevens regulation included numerous exceptions, while A3371 explicitly states that any efforts to reduce or eliminate same-sex attractions, behaviors, or identity for minor clients are prohibited under any circumstances. Id. A licensed mental health professional risks disciplinary action if he provides counseling to a minor who wants to reduce or eliminate same-sex attractions, behaviors, mannerisms, speech, or identity, even if the minor pleads for the counseling. A3371 prohibits a minor and his parents from seeking help from a licensed professional even if the minor is molested by the likes of a Jerry Sandusky child sex abuser, 12 develops anger and identity confusion, begins to have urges to act out sexually in the way he was abused and wants to reduce or eliminate that behavior. Under A3371, a counselor can only affirm or accept those feelings, even if the client abhors them, but under no circumstances may the counselor assist the client in reaching the goal to reduce or eliminate them. A3371 is unconstitutional in more than a substantial number of applications, and therefore, overbroad. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, n.6 (2008) (explaining a second type of facial challenge in the First Amendment context under which a law may be overturned as impermissibly overbroad because a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep) (internal quotation marks and citations omitted). J. A3371 is Subject to Strict Scrutiny under the Free Exercise Clause.
12
See Decl. Rosik Rebuttal 33-44 (noting that, contrary to Defendants and GSEs position, there is evidence that child sexual abuse can cause unwanted same-sex attractions, behaviors, or identity).
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[T]he codification of antigay attitudes on the part of powerful religious institutions invariably instills in some individuals profound discomfort with their sexual orientation . Haldeman, D. (2004), When sexual and religious orientation collide: Considerations for psychotherapy with conflicted gay men, The Counseling Psychologist, 32(5), 691, 706 (emphasis added). The sentiments of Dr. Haldeman, one of GSEs expert witnesses, are echoed by others on Defendants list. See, e.g., Drescher, J., Queer Diagnoses: Parallels and Contrasts in the History of Homosexuality, Gender Variance, and the Diagnostic and Statistical Manual, Arch. Sex. Behav. (2010), 39(2):427-60 (Some significant contrasts between reparative therapists and DSM-V Workgroup members who treat gender variant children are that none of the latter practice from a religious orientation, their published works do not explicitly cite religious dogma, they do not think homosexuality is a sin or an illness, they do not think it is wrong to be gay, they do not see a gay outcome as a treatment failure, they do not call what they do reparative therapy, and they do not reference reparative therapy literature in support of their clinical approaches.) (emphasis added); (Decl. Davies at 17 (Any efforts that suggest the patient has the wrong sexual orientation are inimical to this goal [of repairing self-esteem].) As these quotations reveal, this case is more about a clash of viewpoints of worldviews, if you will than about any ephemeral harm from SOCE. Dr. Newman put it well: While it purports to be protecting minors, the central issue of this law is not to protect minors from unethical and harmful professionals. The real central issue is a direct attack on the
worldview and belief systems of most major conservative religious organizations and what they consider to be their Holy books (The Torah, the Bible, the Koran, the Book of Mormon, etc.). (Decl. of Dr. Newman at 4) (emphasis added).
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This clash of worldviews is precisely what the religion clauses were intended to protect against. While Dr. Haldemans observation about discomfort caused by the unaffirming attitudes of certain powerful institutions applies equally to the discomfort of religious clients and professionals caused by the overtly hostile attitudes of the State here: [Te codification of antigay antireligious attitudes on the part of powerful religious State and professional institutions invariably instills in some individuals profound discomfort with their sexual religious orientation. At its root, A3371 is an attack on the traditional religious teaching shared by all the major world religions that homosexual behavior is immoral (or sinful). But those traditional and deeply held religious convictions are protected by the First Amendment. Accordingly, 3371 is also subject to strict scrutiny under the Free Exercise Clause because it is not neutral or generally applicable, because it provides several individualized exemptions and targets predominantly religious exercise. The Act is also subject to strict scrutiny as a violation of Plaintiffs hybrid rights. As shown previously, A3371 fails that exacting scrutiny because it is neither justified by a compelling government interest nor is it the least restrictive means of achieving that interest. It should therefore be permanently enjoined. 1. A3371s provides for several individualized exemptions undermining the alleged purpose of the law.
The State fails to address and therefore tacitly concedes that A3371 exempts (1) counseling for someone seeking to transition from one gender to another, and (2) counseling for minors that are struggling or confused about opposite-sex attractions, behaviors, or identity. GSEs cursory response to these two exemptions fairs no better. (GSE Br. at 21). In fact, GSEs response to the first individualized exemption is difficult to countenance. It states that the first exemption under A3371 is not geared toward changing gender identity at all, and therefore does not undermine the purpose of the statute. (Id.). A3371 prohibits all efforts to change behaviors,
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gender identity, or gender expressions, but it does not include counseling for a person seeking to transition from one gender to the other. (Compl. Ex. A) (emphasis added). To counsel a minor to transition from one gender to another is to change that individuals gender identity and expressions, and therefore must undermine the intent of the statute. GSEs answer to this is that it is merely assisting someone seeking to live consistently with his or her gender identity. (GSE Br. at 21). This semantic ploy cannot be reconciled with A3371s express intent. If there is no harm in assisting a minor to live consistently with her true gender identity, then it simply cannot be harmful to counsel someone to live consistently with her true sexual orientation identity. There is no difference, but A3371 explicitly prohibits such counsel if the minor views his or her sexual orientation identity as heterosexual and seeks to eliminate or reduce unwanted same-sex attractions, behaviors, or identity. She may, however, consistently with A3371 engage the counselor to assist in eliminating unwanted opposite-sex attractions, behaviors, or identity. A3371 exempts counseling for a person seeking to transition from one gender to another, which undermines the alleged purpose of A3371, and therefore subjects A3371 to strict scrutiny under the Free Exercise Clause. GSEs contention concerning the second exemption is also unavailing. GSE reframes the exemption to state that it is merely an exemption that does not seek to change sexual orientation. (GSE Br. at 29). This linguistic legerdemain ignores the plain language of the statute. Under A3371, it is perfectly permissible to counsel a minor struggling with heterosexual orientation towards same-sex attractions, behaviors, and identity. Indeed, it is required under the law. All efforts to reduce or eliminate same-sex attractions, behaviors, or identity, however, are expressly prohibited, but efforts to reduce or eliminate heterosexual attractions, behaviors, or identity are merely deemed to be providing acceptance, support, and understanding of a
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minors same-sex attractions. These two provisions also cannot be reconciled under the alleged purpose of the law, and therefore subject A3371 to strict scrutiny. 2. A3371 violates the hybrid rights of Plaintiffs, their patients, and their patients parents.
The State fails to address and therefore tacitly concedes that A3371 is a violation of the hybrid rights of Plaintiffs, their patients, and their patients parents as well. GSEs argument that such a claim does not exist in the Third Circuit cannot be reconciled with Supreme Court precedent clearly establishing that such a right exists, nor can it be reconciled with the fact that such a claim has never been foreclosed by the Third Circuit. The Supreme Court has specifically stated that strict scrutiny is required when a law burdens more than one constitutional right. Empt Div., Dept of Human Res. of Or. v. Smith, 494 U.S. 872, 881 (1990). While the Third Circuit has not expressly adopted such a hybrid rights theory, see McTernan v. City of York, 564 F.3d 636, 647 n.5 (3d Cir. 2009), it has never rejected the theory as completely unavailable, either. Moreover, given that the Supreme Court has expressly stated that such a claim exists, it is not within the authority of the Third Circuit to specifically reject the claim and foreclose Plaintiffs from ever raising it. Here, there are multiple bases upon which to find hybrid-rights violations. Plaintiffs free speech rights are being infringed by A3371s viewpoint-based and content-based restriction on their counseling. (Dkt. 4, Pls. Memo at 4-18). A3371 also violates the First Amendment rights of Plaintiffs patients by restricting the availability of counseling options that are consistent with their sincerely held religious beliefs. (Id. at 23-26). Additionally, A3371 infringes the fundamental rights of the parents of Plaintiffs patients to direct the upbringing and education of their child. (Dkt. 1, Compl. 259-67). When combined with the free exercise claims of Plaintiffs, Plaintiffs patients, and their parents, all of these constitutional violations are sufficient
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to implicate strict scrutiny under the hybrid rights claim. See Empt Div., 494 U.S. at 881. A3371 is therefore subject to strict scrutiny, which it cannot survive, as it is neither justified by a compelling interest nor is it the least restrictive means of accomplishing any compelling state interest. 3. A3371 substantially burdens Plaintiffs sincerely held religious beliefs.
A3371 also substantially burdens the exercise of the religious rights of Plaintiffs, their clients, and their clients parents. Indeed, most individuals who seek SOCE counseling do so because of their sincerely held religious beliefs that same-sex attractions, behaviors, or identity can and should be changed. (King Decl. 14 (Many of my clients, both adult and minor, are Christians and request Christian counseling as part of the SOCE that I provide. A3371 will prohibit me from practicing my profession and my counseling with these clients according to the sincerely held religious beliefs that both my clients and I have.); id. 16 (A3371 forces me to ignore the clients values when those values and sincerely held religious beliefs inform them that change is possible.); Newman Decl. 8 (As is true with much of practice, the individuals who seek SOCE counseling from me do so because of a desire to conform their attractions, behaviors, and identity to their sincerely held religious beliefs.); (Decl. Rosik Rebuttal 26 (I practice in an explicitly faith-based counseling center where a high percentage of clients present with deeply traditional beliefs and values and have sought out clinicians who they believe are highly familiar with their faith community and can understand and affirm their religiously-based moral and value framework.)). Both the State and GSE fail to address and therefore concede that A3371 imposes a substantial burden on the religious exercise of Plaintiffs, their clients, and their clients parents. A3371 forces Plaintiffs and their clients into the irresolvable conflict between choosing to follow
54
their sincerely held religious beliefs or elevating their unwanted same-sex attractions, behaviors, or identity above their religious beliefs. This is a textbook example of a substantial burden. Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007) (the Supreme Court has stated in its Free Exercise Clause jurisprudence that a substantial burden exists when a follower is forced to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand) (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1968)). Moreover, Defendants and GSEs own experts argue that the proper course is to force a person to their religious beliefs rather than even think about addressing sexual orientation. (Dkt. 30-6, Herek Decl. 45 (stating that people who seek SOCE because of their sincerely held religious beliefs can benefit from other interventions that do not have the goal of ma king them heterosexual, i.e., change their religious beliefs); Haldeman Decl. 24 (A competent therapist treating a client with strong religious beliefs assists the client in understanding the source and emotional consequences of any conflicts between experiences and belief, and in negotiating a healthy life course in light of accurate knowledge about what can be changed and what cannot.); id. 26 (noting that mental health professionals should not respect religious beliefs that inform a client that he can seek change away from his unwanted same-sex attractions, but rather should correct the patients false assumptions in those religious beliefs).13 A3371 does not respect client autonomy or sincerely held religious, but imposes an unbelievably substantial burden on the clients to force them to choose between two irreconcilable positions, and this is precisely what Defendants experts say the law should do in this type of counseling. These are
13
It should be noted that this is actually imposing a substantial harm on the clients far worse than the alleged and anecdotal reports of harm that SOCE purportedly causes. (Decl. Rosik Rebuttal 29 ([S]uch religious reeducations is outside the scope of the psychological disciplines and is the far more dangerous precedent as regards a clinicians preferred outcome for the therapeutic encounter.)
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statement[s] that in the context of A3371 can only be taken to mean the religious beliefs and values of minor clients and their parents, if disapproving of homosexual behavior, are to be summarily overridden by the State. (Decl. Rosik Rebuttal 29). A3371 runs roughshod over religious beliefs of Plaintiffs, their clients, and their parents. As such, it is subject to strict scrutiny, which is cannot survive. A3371 should be enjoined. 4. A3371 cannot survive strict scrutiny.
Strict scrutiny requires that a statute (1) serve a compelling governmental interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest. Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 251 (3d Cir. 2003) aff'd and remanded, 542 U.S. 656 (2004) (citing Sable Commc'ns of California, Inc. v. F.C.C., 492 U.S. 115 (1989)). A3371 wholly fails to satisfy strict scrutiny. a. A3371 is not justified by a compelling interest.
As Plaintiffs have repeatedly demonstrated, A3371 is not justified by a compelling government interest. [F]reedom of speech . . . may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (emphasis added). Indeed, such laws will survive strict scrutiny only in rare cases. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). [S]peculative fears alone have never been held sufficient to justify trenching on first amendment liberties. Century Commcns Corp. v. FCC, 835 F.2d 292, 300 (D.C. Cir. 1987). Here, A3371 is based merely on anecdote and suspicion, rank speculation and undifferentiated apprehension, and the purported harms alleged by the State are not sufficiently established to justify such a regulation. As such, the Act fails the first prong of the strict scrutiny analysis.
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Plaintiffs hereby incorporate by reference the compelling interest argument set forth in its opening memorandum at pp. 11-15. b. A3371 is not narrowly tailored.
Total prohibitions on constitutionally protected speech are hardly an exercise of narrow tailoring. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). A complete prohibition on SOCE by licensed professionals under any circumstances for any minor is obviously not the least restrictive means to achieve the governmental interest. Plaintiffs hereby incorporate by reference the narrowly tailored argument more fully set forth in their opening memorandum at pp. 16-18. c. A3371 is not the least restrictive means.
Neither can A3371 begin to meet the least restrictive means prong, especially when the main source relied upon by the State (the APA Report) acknowledges there is evidence that SOCE is beneficial to some who seek such counsel, and the only evidence of alleged harm is at best anecdotal. As the Supreme Court and the Third Circuit have explained, [i]f a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative. United States v. Playboy Entertainment Group, 529 U.S. 803, 813 (2000); Am. Civil Liberties Union v. Ashcroft, 322 F.3d 240, 261 (same) (emphasis added). As noted above, informed consent is a lesser restrictive means to achieve the governments alleged interest. Defendants therefore fail to sustain A3371 under strict scrutiny, and the Act should be declared unconstitutional and the permanent injunction should issue. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant their converted motion for summary judgment and permanently enjoin A3371.
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Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org *Admitted Pro Hac Vice Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on September 20, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record.
/s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991
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Case 3:13-cv-05038-FLW-LHG Document 33-1 Filed 09/20/13 Page 1 of 26 PageID: 1046
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION
TARA KING, ED.D, individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, Case No. 13-cv-5038 v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants.
REBUTTAL DECLARATION OF DR. RONALD NEWMAN I, Dr. Ron Newman, hereby declare as follows:
Declaration of Ron Newman, Ph.D. - 1
1.
I am over the age of 18 and am one of the Plaintiffs in this action. The statements in this
Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs Converted Motion for Summary
Judgment and in Response to the State of New Jerseys and Garden State Equalitys Cross Motion for Summary Judgment. 3. I received a Doctor of Philosophy degree in Psychoeducational Processes from Temple
University in 1990. I received a Master of Arts degree in Counseling Psychology from Trinity International University in 1980, a Bachelors Degree in Psychology from West Virginia University in 1976, and an Associates of Arts degree in Practical Theology from Christ for the Nations Institute in 1978. I have 33 years of experience as a mental health professional and have been a Licensed Clinical Psychologist (LCP) in the State of New Jersey, since 1995. I am a Board Certified Professional Christian Counselor through the American Association of Christian Counselors. I am the Founder of the Christian Counseling Consortium of South Jersey (CCC), which is a group of approximately 50 licensed and unlicensed mental health professionals, counselors, and pastors committed to engaging in counseling from a Christian perspective founded on the truths inherent in Scripture and with approximately 200 people who have expressed interest and are on our mailing list. 4. Despite the States contention to the contrary, the fact that homosexuality is not a
disease is irrelevant, since there are countless issues that are not a disease and become a matter of therapeutic concern (e.g., family conflicts, a wide range of stressors both externally and internally in peoples lives, etc.). In my practice of Sexual Orientation Change Efforts (SOCE) (which is only with those who have unwanted same sex attractions, not those who self-
identify as gay), there have always been other diagnoses that are a matter of clinical concern (e.g., PTSD, OCD, depression, anxiety, etc.) which bring the client in for therapy, and the SOCE is secondary. 5. A3371 infringes on the ethical obligation to allow the client the right of self-
determination, and hinders ethical psychologists (which most are) from giving treatment options that are not strictly gay affirming. 6. Our country and our mental health professions have been founded on acceptance of
diversity of beliefs and philosophical positions. We claim to look to evidence to make our clinical decisions, but inaccuracies abound based on a variety of cognitive distortions, including emotional reasoning. Scientific and anecdotal evidence of the fluidity of the sexuality of many people is ignored in A3371 and by its advocates in favor of a presupposition that people can be born gay and that the science is settled on that matter. It is not. 7. While it purports to be protecting minors, the central issue of this law is not to protect
minors from unethical and harmful professionals. The real central issue is a direct attack on the worldview and belief systems of most major conservative religious organizations and what they consider to be their Holy books (The Torah, the Bible, the Koran, the Book of Mormon, etc.). This is evidenced by Defendants experts who say counselors should focus on changing those religious beliefs that oppose homosexuality. Section 1(j) of A3371 states, As with any societal prejudice, bias against individuals based on actual or perceived sexual orientation, gender identity or gender expression negatively affects mental health, contributing to an enduring sense of stigma and pervasive self-criticism through the internalization of such prejudice. The societal prejudice referenced has to do with conservative interpretations of various historical Sacred writings which present a worldview that is contrary to the belief that a
person is born gay and has no choice regarding their sexual behavior patterns . (The conservative religious position has scientific support, in spite of the political positions of various professional associations on this issue.) 8. The religious organizations teach that people have the right of self-determination and the
responsibility to control their behavior within the boundaries established by their teachings. Most religions have a holy book, such as the Torah or Bible, which conservative believers look to for their belief system and how to live their lives. The freedom to believe a diversity of things about God, morality, etc., is part of what defines us as a nation. This freedom is now being severely challenged by this law. A3371 attacks the right of parents to practice their religious faith and teach their children the boundaries they understand to be healthy for them. 9. A3371 also denies the rights of individuals to choose therapy with someone who
understands the tenants of their faith and can counsel in a manner that is culturally sensitive to their faith subculture. It also hinders my ability to practice my faith and work with clients who desire assistance in applying the most effective therapeutic tools to help them align their behavior with their deeply held religious belief systems. 10. The purported harmful effects of SOCE are based on inadequate science with no serious
objective scientific support, far less than the evidence supporting the effectiveness and benefit of SOCE, proving the bias of the sub-groups of the APA who put out the report against SOCE. The issue of protecting minors is false, particularly since the ethics of the profession already protect minors against the type of harmful counseling characterized in the law and licensed professionals are sensitive to the clients right to self-determination of therapeutic goals. 11. Informed consent is part of my practice, and I respect my clients right to self-
determination. I believe that respectful dialogue is possible and that those pushing for this law
demonstrate their intolerance toward those who disagree with them, primarily those with a conservative religious belief system. Some within the gay community who are pushing for this law want this belief system to be silenced or eliminated in order to prevent depression, anxiety, self-destructive behavior and suicide, while my experience is that the polarization needs to be eliminated to the benefit of everyone. My educational and work experiences in a diversity of settings throughout the past 40 years have taught me this important lesson. 12. The law will actually do more harm to the public, as it will cause those with unwanted
same-sex attraction to lose hope that change is possible, since they cannot access those licensed professionals who are best equipped to help people change their unwanted behaviors. Research indicates there are an equal number of people with unwanted same sex attraction as those who embrace a gay identity. The inner conflicts of those with unwanted same sex attractions potentially will lead to even more depression, anxiety, self-destructive behavior and suicide due to the lack of access to appropriate mental health services to help them process and resolve their struggles. 13. In my 33 years of clinical practice, I have helped many minors and adults work
through anxieties and depressions related to their unwanted same-sex attractions. While under this law, I will not even be able to refer potential clients to a non-licensed (religious) counselor, as it can be perceived as a sexual orientation change effort. Parents will still seek and send clients to non-licensed counselors who are often not as adequately equipped, nor ethically trained, to address their children in the most appropriate therapeutic manner (which could include helping the parent to not force SOCE on their children, if the child has embraced a deeply held gay identity).
14.
In other words, this law will increase the practices and harm that they are seeking to
eliminate! It should also be noted that no one is denying that some people who receive counseling for a variety of reasons, can get worse as a result due to stirring up and exploring past issues of rejection, hurt and emotional pain in their lives. This is a part of the informed consent that many psychologists give to their clients prior to beginning any treatment. SOCE treatment is no different in that regard. 15. Free speech is hindered, as the law is too broad and thus public speeches and seminars by
licensed professionals, psychoeducational materials for clients and their parents, including books, journal articles, websites, etc., can all be viewed as an effort to change a persons sexual orientation or behavior, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender. I have been involved in all of the above, and my inability to speak or teach on this issue will actually be a set-back to the gay community, as I teach concepts of love and tolerance and a gracious attitude toward anyone with whom we disagree in any matter of theology or behavior. 16. Social prejudice and intolerance will only increase under a climate of increased
polarization, which this law encourages. The First Amendments protections are ignored by this law. It hinders me from speaking, teaching, or writing on this issue, since these can be construed as seeking to influence others sexual behavior. As a licensed psychologist, I am at risk for sharing my religious convictions and psychological opinion. For the supporters of this law, diversity seems to translate to anything but conservative religious beliefs. 17. Research on SOCE has been hampered by the political power of some in the gay
community who censor this option. Supporting documents for the law, including primarily the APA Task Force Report claim that more research needs to be done on SOCE, yet the law
prohibits it. Research on SOCE can never be expected to occur under the current political climate, as is self-evident even through the proposal of this law. The Spitzer study (Spitzer, R. L. (2003). Can some gay men and lesbians change their sexual orientation? (200 participants reporting a change from homosexual to heterosexual orientation.) Archives of Sexual Behavior, 32(5), 403-417) demonstrating the efficacy of SOCE, in spite of his retraction, was a step in the right direction and demonstrated change in sexual behavior and even orientation is possible. A client of mine was a part of that historic study. 18. This law will impact nearly all of the work I do with minors, as the definitions of
SOCE are so broad that I fear discussing sexuality at all will put me at risk for violation of the law. Anyone who does therapy with adolescents knows that it is a time of identity formation, which for many includes exploring and consideration of their sexual identity. Experimentation is common, and with our current cultural climate, including the internet and easy access to gay pornography (it cannot be blocked from smart phones, and many parents do not monitor their childrens internet activity), consideration of homosexual behavior is increasingly frequent in those I counsel. 19. A female client who may kiss a girlfriend out of curiosity does not mean she regards
herself as gay, but may want to process that experience therapeutically. Neutrality of counseling, as pretended in this law, is a myth. Only gay affirmative counseling is really permitted. Thus, even exploring and affirming clients heterosexual interests can, in the future, be construed as influencing their behavior in a way that puts me at risk of violation of this law. 20. Helping a male client process his experience of molestation by another male, including
his temptations toward a repetition of that same-sex behavior, can be construed as violation of this law if his heterosexual interests are affirmed and homosexual behavior is discouraged. Or,
helping a male client who questions in his diary, Am I gay? cannot be objectively counseled without future risk, unless the (non)-therapeutic response is to answer in the affirmative. The risks of homosexual behavior, documented by scientific studies (Centers for Disease Control (2011). HIV and AIDS among Gay and Bisexual Men. Retrived from
http://www.cdc.gov/nchhstp/newsroom/docs/2012/CDC-MSM-0612-508.pdf), cannot even be discussed due to this laws prohibition on influencing sexual behavior in any way other than what is gay affirmative. 21. Since the majority of my clients come to me because they are seeking counseling that
integrates a Christian worldview, my psychology practice would suffer irreparable harm if I were no longer able to counsel in a manner consistent with a conservative Christian faith. No parent would refer a minor child if they believed I could only address issues of sexuality in a gay affirming manner without regard to their belief system. 22. My refusal to bring my minor clients into this case is due to my desire to protect them.
They are conscious of this law and the restrictions on my current therapeutic options under this law. Neither has chosen to embrace a gay identity, even though this question was addressed during the course of therapy in the past. Neither of these clients wants others to even know they are in therapy, and it is my clinical judgment that they would suffer significant anxiety and harm if they were influenced to testify in this case. 23. My private psychology practice for over fifteen years, as well as the practices of other
faith-based licensed professionals, have been built on referrals from the clergy and a wide range of Christian sources, and would be irreparably harmed if referrals from those sources were to cease. The fact that clergy are excluded from this law is irrelevant, since they refer to
professionals in more difficult cases or where expertise is needed, such as with unwanted samesex attraction.
I declare under penalty of perjury of the laws of the United States and New Jersey that the foregoing statements are true and accurate.
Executed this 20th day of September, 2013.
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN DIVISION TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Proponents of A3371s. Civil Action No. 13-5038 (FLW)(LHG)
DECLARATION OF DR. JUDITH REISMAN I, Judith Gelernter Reisman, PhD hereby declare as follows: 1. I am over the age of 18 and am submitting this Declaration as expert testimony in
response to the declarations of Bayer, Davies, Drescher, Haldeman, and Herek, which I have
Declaration of Dr. Judith Reisman - 1
reviewed. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs Motion for Summary Judgment
and in opposition to Defendants' Cross-Motions for Summary Judgment. BACKGROUND 3. My background and experience in the fields of Science Fraud, Human Sexuality, Child
Sexual Abuse, and Mass Media Effects and a list of my published articles, books, and book chapters are described in my curriculum vitae, which is attached to this Declaration as Exhibit A. 4. I hold a Masters and a Doctorate in Communications, both from Case Western Reserve
University. I am currently a Visiting Professor of Law at Liberty University School of Law. Formerly, I was Associate Professor "Martze" at the University of Haifa, Israel; Research Full Professor, The American University; and was part of the adjunct faculty of George Mason University. 5. I am a former consultant to four U.S. Department of Justice administrations, the U.S.
Department of Education, as well as the U.S. Department of Health and Human Services. I have an expertise in Media Forensics. 6. I am a former consultant to the California Judicial Investigative Task Force and the
American Legislative Exchange Council (ALEC) on Sex Science Fraud, which published my findings on Alfred Kinsey's criminal and fraudulent scientific data and methods, and the invalidity of subsequent academic works and policy decisions derived from him and from those who followed and used his work as legitimate science. See The ALEC Report, attached as Exhibit B.
7.
I am a former consultant to the US Senate Committee on Commerce, Science and
Transportation, providing expert testimony on The Science Behind Pornography Addiction, providing expert testimony examining brain science related to the media called pornography and its addiction and the effects of such addiction on families and communities. 8. The United States Department of Justice has published my reports on the Role of
Pornography and Media Violence in Family Violence, Sexual Abuse and Exploitation, and Juvenile Delinquency. Part 1, NCJ 107147, PDF (24.7 MB) NCJRS Abstract; Part 2, NCJ 107148, PDF (27.1 MB) NCJRS Abstract; Part 3, NCJ 107149, PDF (16.8 MB) NCJRS Abstract; and Part 4, NCJ 109944, PDF (7.5 MB) NCJRS Abstract. 9. I have lectured at American universities such as Princeton, Notre Dame, Georgetown,
Pepperdine; and internationally at the University of Jerusalem, University of Haifa, and Tel Aviv University. Additionally, I have lectured at Johns Hopkins University School of Medicine, the Rutherford Institute, the Council for National Policy, the Federal Bureau of Investigation, and the United States Air Force Academy, among many other institutions. 10. I have been cited by or appeared on a lengthy list of media sources: The London Times,
Time, The Los Angeles Times, Newsweek, The Washington Post, Entertainment Tonight, Larry King Live, Donahue, The Today Show, Crossfire, The New York Times, Ted Baehrs Movieguide, and many more. 11. I have earned honors including listings in Whos Who in Science and Engineering,
Whos Who of American Women, International Whos Who in Education, The Worlds Whos Who of Women, "Who's Who in Sexology," and others. 12. I have authored many books and articles and have been cited in numerous scholarly
works. See attached curriculum vitae Exhibit A. Among my published works is Kinsey, Sex and
Fraud, 1990, Sexual Sabotage, 2010; Kinsey: Crime and Consequences, 1998 and 2000; and Soft Porn Plays Hardball, 1991. I have been an expert witness in many court, military, and civic hearings concerning child pornography, pornography, homosexuality, sexual harassment, and media issues. My works have been referenced in a number of lower court decisions, and in the following United States Supreme Court cases: Oakes v. Massachusetts, 491 U.S. 576 (1989) and Osborne v. Ohio 495 U.S. 103 (1990). My scholarly works have also been the impetus behind the proposed child protection legislation HR 2749 (Washington, D.C., 1995), The Child Protection and Ethics in Education Act. 13. In addition to the numerous books and scholarly articles that I have written and the
extensive education I have received in the United States, I have also participated in numerous international training seminars occurring all over the world in places including the Philippines, the Vatican, Austria, Ireland, Israel, Switzerland, and Croatia. 14. In Croatia, as a direct result of my documentation of the fraudulent research of Alfred
Kinsey, on May 22, 2013, Croatia's Supreme Court - the "Croatian Constitutional Court" abolished the Health Education Curriculum, which took effect in February 2013, and ordered that until the adoption of a new curriculum, mandated that Health Education be taught according to the curriculum that had been in force before the start of the 2013 school year. The court assessed the constitutionality of the Kinsey-based curriculum and Education Minister Zeljko Jovanovic's decision to introduce it. Even though only the curriculum's Module 4, which dealt with sexual and gender equality and sexually responsible behavior was disputed, the Constitutional Court approved the abolition of the entire curriculum because the disputed points related to the entire document. In speaking for the Court, Judge Mato Arlovic said that "In this case, the government has not fulfilled its procedural constitutional obligation to align the Health
Education Curriculum in state schools with constitutional law and parental freedom to choose education for their children," The curriculum was in violation of the Croatian Constitution, the Education Act, the Family Act and international conventions such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.1 15. In 2012 Switzerland, exposure of Kinseys atrocities led to the Swiss defunding their
Sex Competency education center.2 16. Recently, the Nordic Council of Ministers (a Norway, Sweden, Finland, Denmark, and
Iceland co-operative) closed the Nordic Gender Institute ("NIKK") for its bogus Gender Theory science, after a creative Norwegian journalist documented the unscientific character of the NIKK and its research, the was institute closed, and has now moved. 17. I am the unnamed "independent researcher" (quoted in the article cited in Drescher's CV),
who "has charged that Kinsey did more than passively take notes on the habits of a sex criminal, but that he was involved in such crimes." As stated in the article, "Kinsey has also been faulted for his chronicling of pedophilia and the sexual habits of young children...he relied heavily on data from one man a pedophile who reported sexual encounters with hundreds of children, all of which he chronicled in a journal. Reliance so much on one person was not a reliable way to gather facts. More than that, however, was a moral issue: Why didnt Kinsey report the m an to the police?" See Declaration of Jack Drescher, MD - The Kinsey Effect Commentary on the impact of Alfred Kinseys work following the film release of Kinsey. Los Angeles Times, November 15, 2004, pp. F1, F4-F5.
1 2
http://inavukic.com/2013/05/22/croatian-constitutional-court-abolishes-health-sex-education-curriculum/ http://www.bag.admin.ch/hiv_aids/05464/05470/05482/index.html?lang=en 3 http://www.turtlebayandbeyond.org/2012/homosexuality/nordic-countries-defund-gender-ideology. Declaration of Dr. Judith Reisman - 5
18.
With this background established, I have reviewed the Declarations of Bayer, Davies, Drescher,
Haldeman, and Herek, and will list my general and specific objections to their testimony.
Scientific Misconduct Invalidates Policy Decisions Based Thereon 19.

In general, the Declarations of these individuals are unreliable insofar as they are based on the
scientific misconduct (lies, fabrications, and crimes) contained in the work of Alfred C. Kinsey, and his ideological progeny. As set forth below, Alfred Kinsey fabricated data upon which rests the entire edifice of pseudo-scientific human sexuality knowledge supporting the passage of A3371.
20.
The American and international science field has been grappling with fraud and misconduct for
years. As of May 2012, at least 2,047 biomedical and life science studies had been retracted by the journals that published them, meaning that the studies contained errors or fabrications that rendered their results meaningless. A detailed review of all 2,047 biomedical and life-science research articles indexed by PubMed as retracted on May 3, 2012 revealed that only 21.3% of retractions were attributable to error. In contrast, 67.4% of retractions were attributable to misconduct, including fraud or suspected fraud (43.4%), duplicate publication (14.2%), and plagiarism (9.8%). Incomplete, uninformative or misleading retraction announcements have led to a previous underestimation of the role of fraud in the ongoing retraction epidemic. The percentage of scientific articles retracted because of fraud has increased 10fold since 1975.4
21.
Institutions receiving certain federal research funds are obligated to refrain from
scientific misconduct. United States v. Bruening, No. K88-0135 (D. Md., Nov. 10, 1988). Scientific misconduct may include the use of fraudulent or deceptive data. Id; See also Reisman, Kinsey, Sex, and Fraud. 22. Stephen Breuning, formerly a research psychologist with the University of Pittsburgh,
was indicted in federal district court in Baltimore for falsifying his research results in 1988. See
4 Proceedings of the National Academy of the Sciences in the United States of America, vol. 109 no. 42, Fang, F.C. 1702817033 available at http://www.pnas.org/content/109/42/17028
Kuzma, 25 U. Mich. J.L. Reform 357, 1992; See also Reisman, Kinsey, Sex, and Fraud. The National Institute of Mental Health (NIMH) had provided Breuning with grants of more than $150,000 to investigate the effects of treating hyperactive retarded children with Ritalin and Dexedrine. Id. Breunings data impacted public health policy nationally. Id. Breunings wellestablished reputation was considered instrumental in forming public health and policy nationallyseveral states amended treatment practices as a result. Reisman, Sexual Sabotage, 325. A 1987 New York Times article noted that Breuning was one of the nations most influential researchers in his field and many states amended policies governing treatment practices in an effort to be consistent with Dr. Breunings findings. Boffey (Science 235: 141,
1987)..
23.
While Breunings data impacted public health policy nationally, Kinseys data have had a
far greater impact on both public health policy and public morality, both nationally and internationally. Like Breuning, Kinsey and his research colleagues knowingly misrepresented their data. See Reisman, Kinsey, Sex, and Fraud. Unlike Breuning, Kinsey and his research colleagues actually engaged in sex crimes, harming children for their experiments. Overview of Origin and History of the Founding of the Homosexual Movement in 1948 In light of the serious nature of a charge of fraudulent data, it is advisable to revisit the founding of the movement which has wrought such social change worldwide. The homosexual movement was formally organized on the fraudulent5 sex science of Dr. Alfred Kinsey's Sexual Behavior in the Human Male, (1948). Harry Hay, homosexual and communist dialectician, read the Kinsey Report in 1948 and found Kinsey's recommended recreational-sex lifestyle fully
Judith Reisman & Edward W. Eichel, Kinsey. Sex & Fraud (Lafayette, LA: Huntington House, 1990). See especially pp. ISO-ISS "The Fraud Taboo" for a definition of "scientific fraud." "According to the Committee on the Conduct of Science of the National Academy of Sciences, fraud in science can encompass a wide spectrum of behaviors but the acid test of scientific fraud is the intention to deceive." That Kinsey's work is incriminated by this test is beyond question. p. 55. Declaration of Dr. Judith Reisman - 7
5
approving of Hay's homosexual conduct and character. Spurred to action by the "scientific" 10 percent homosexuality figure Kinsey claimed, Hay immediately declared his long-time sexual "orientation," deserted his wife and two children, and founded the Mattachine Society, the origin of the political homosexual movement. Gay historians have lionized Hay for his "profound contribution" to the homosexual estate and for positioning homosexuals not as sodomites but as a "minority" only seeking "civil rights." Hay took what was criminal conduct in the UCMJ and all fifty states and crafted the words to transform, and create, a distinct "cultural minority" claiming minority membership and rights for the first time. This has continued modernly. See, e.g., Herek Decl., Para. 10. The homosexual movement still follows Hay's original strategy to claim protection from "discrimination" because of its "victim" status as a cultural minority. Harry Hay, architect of the modern political homosexual movement, marched with NAMBLA, the North American Man-Boy Love Association, urging an end to age of consent laws, to allow sex with children.6 And the NAMBLA website still offers kudos and thanks to Kinsey for his contribution to their increasing acceptance. Fraudulent Science has been Relied upon to Advance the Homosexual Agenda 24. While Davies, Drescher, Haldeman, and Herek may try to employ valid and efficient
scientific techniques in their professional writings and analysis, they cannot escape the underlying false premises upon which technically accurate techniques are based, which inescapably lead to fatally flawed results. 25. If the foundation is compromised, the entire structure is as well. If the fount is poisoned,
the societal stream of consciousness is too. Thus, the conclusions of these declarants are
Stuart Timmons, The Trouble with Harry Hay, Founder of the Modern Gay Movement, (Boston: Alyson Publications, Inc., 1991). Declaration of Dr. Judith Reisman - 8
inextricably linked to the "sex scientists" who have provided pioneering scientific cover by creating fraudulent homosexual data, and are themselves invalid. 26. Thus, there can be no correct discussion or judicial decision involving this issue of
homosexuality - (or a moral/values judgment about the same as set forth in A3371) - without reference to the man who legitimized homosexuality for America and the world; Dr. Alfred Kinsey and the "sexology" profession which grew from his 1948 data. Post World War II, the "European" sexology profession became legitimized in America, through Kinsey's alleged "value neutral" "objective" "science." While Kinsey's shadow is long on the post-1948 legal-sociopolitical landscape, it is by no means unopposed. Where the light of truth shines, shadows flee. Judge Oliver Gasch's decision in U. S. District Court in D.C.7 (upholding the ban on homosexual military service on the basis of the author's research - also upheld by the en banc decision in
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).) is but one example of a court shining the light of truth
on Kinsey's homosexual data, which cited Kinsey, Sex and Fraud, of which the Lancet wrote: ... The Kinsey reports (one in 1948 on males and the companion five years later) claimed that sexual activity began much earlier in life, was more varied and more frequent, and displayed less horror of age differences and same-sex relationships than anyone at the time imagined ... " In Kinsey, Sex and Fraud Dr. Judith Reisman and her colleagues demolish the foundations of the two reports . .. The important allegations from the scientific viewpoint are imperfections in the sample and unethical, possibly criminal, observations on children. Any questionnaire survey in a normally private area is subject to bias from differences in those who respond and those who refuse, and there is no ready means of checking the information. The book goes beyond that, however, for Kinsey et al. questioned an unrepresentative proportion of prison inmates and sex offenders in a survey of "normal" sexual behavior. Presumably some at least of those offenders were also the sources of information on stimulation to orgasm in young children that can only have come from pedophiles -or so it must be hoped. Kinsey, an otherwise harmless student of the gall wasp, has left his former co-workers some explaining to do. (Emphasis added).
Steffan v. Cheney, 780 F.Supp. 1 (D.D.C. 1991), affd by Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994). Declaration of Dr. Judith Reisman - 9
27.
A3371's claim that homosexuality is as equally valid a character trait as compared to
heterosexual character ("Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years;") (as well as the position statements of organizations supportive of A3371, such as the American Psychological Association and others) stands or falls on the viability of "science," particularly "sex science" to prove homosexual normative health. The Lancet cited crimes against children and society in Kinsey's work, and called for an investigation of these fraudulent data.8 Its call and the calls of others have largely gone unheeded. But just as society had to eventually admit that the world was indeed round, or that the "science" of phrenology, (intelligence measured by head bumps and cranial size) was a total fraud,9 sex "science" based on Alfred Kinsey is also fraud. In a fashion, it is much like alchemy - a pretend science that had been cultivated in the past, but that is now held in contempt. 28. Similarly, Kinsey "alchemists" feigned surprise that their "scientific sex survey" of
roughly 18,000 to 21,000 allegedly normal women and men of the 1940s were promiscuous, adulterous, bi/homosexual, engaged in prostitution, child-adult sex and engaged in the sodomies and the like- with no ill consequences.10 29. Kinsey and his team concluded that archaic Judeo-Christian hypocrisy made Americans
"hide" our sexual conduct. If we were but truthful, they claimed, Americans would have paradise on earth and all measure of sexual disorder, from illicit birth to venereal disease, rape and
8 9
Dr. Reisman has called for a full Congressional investigation of Kinsey's team, their data and the field. The Oxford English Dictionary, supra. 10 Reisman and Eichel, supra. Declaration of Dr. Judith Reisman - 10
divorce, would decrease.11 While the Kinsey team claimed the data proved Americans were liars, the data really prove the Kinsey team were liars. Roughly 86% of the team's allegedly "normal" sample were exhibitionists, prostitutes, pimps, rapists, incest offenders, pedophiles and such, as well as imprisoned general and sex offenders. 30. Proof of fraud is found in a) the Kinsey team's tainted sample; b) the false predictions
based on a phantom research population of normal men and women; and c) their additional tendency to alter and trash data that did not support their goals. Nearly seventy years later, every prediction based on Kinsey's data has been repudiated and disproven, the ultimate test of failed or false science. Every measure of sexual disorder has increased and AIDS and other once unknown sexual and heterophobic dysfunctions are now plagues of our time. The sexual panacea promised by Kinseyan sex "experts" backfired. 31. Nonetheless, the sexuality professions, teaching and counseling, grants, research and
therapies carved out of the Kinsey Institute "alchemy" charge onward. Post-1948, all scholarly disciplines teach the Kinseyan sexuality model since no other human development theorists (e.g., Freud, Maslow, Rodgers, Piaget, Ericson) produced theories of bi- or homosexual normality. During this time, Kinseyan disciples have poured out similarly groundless sex "study" fantasies. Kinsey's fraudulent "10 percent" homosexual and "gay youth" population now massively mislead educators, doctors, parents, pastors, legislators and judges. Homosexual activist organizations continue to peddle the lie that 10 percent of the population are "born" homosexual, while even Kinseyan scholars have retreated from that number in the face of legitimate studies in Britain, France and the United States that have confirmed a 1-2 percent homosexual population which
11
See ''Historical Introduction," etc., Alfred Kinsey, et al., Sexual Behavior in the Human Male (Philadelphia, PA: W. B. Saunders, 1948) and Sexual Behavior in the Human Female (Philadelphia, PA: W. B. Saunders, 1953). Declaration of Dr. Judith Reisman - 11
should have been known to all sexuality "experts."12 See also Herek, GM. (1989, August 1). The tyranny of ten percent: Does it really matter how many Americans are gay? The Advocate, pp. 46-48. 32. Moreover, a poor family environment, abuse and/or neglect, key precipitating factors in
stamping a homosexual character, are now denied by all Kinseyans, including Davies, Drescher,
Haldeman, and Herek. See Reisman, Kinsey, Sex & Fraud, supra, for a discussion of the
fraudulent 10% data and the 1993 and 1995 Advocate studies for an expansive discussion of the early sex abuse etiology in inherent in homosexuality. Especially note Paidika The Journal of Paedophilia (Amsterdam, The Netherlands); One Teenager In Ten (Ann Heron, Editor); Robin Lloyd, For Money or Love: Boy Prostitution in America (New York: Vanguard Press, 1979). 33. In his 2009 article "Queer Diagnoses: Parallels and Contrasts in the History of
Homosexuality, Gender Variance, and the Diagnostic and Statistical Manual," Jack Drescher cites with approval Kinsey's biased Kinsey Institute co-authors, (Pomeroy, Martin and Gebhard) that are Drescher's ideological forbears, as well as those of the rest of the "experts" for Garden State Equality and the State of New Jersey. Moreover, Drescher cites with approval other pioneering "experts" who were emotionally compromised, scientifically tainted and on record as pedophile advocates. 34. Drescher's psychobiology authority and expert, Dr. John Money of Johns Hopkins
University, argued for man-boy "love" in the Journal of Paedophilia. Dr. Money appeared in the Spring 1991 issue, assuring pedophile consumers that man-boy sex is an overflow of parental pairbonding ...into erotic pairbonding ... male paedophilia at least, is a fatherly relationship.... If a boy aged ten or eleven [has sex with] a man I would not call it pathological in any way.14
12
Alan Guttmacher, in The New York Times, found 1.1 percent "exclusively gay." ''The Shrinking Ten Percent," TIME, 26 April 1993, p. 27. 13 The Journal of Paedophilia. John Money's interview, Spring 1991, pp. 2-13. Declaration of Dr. Judith Reisman - 12
35.
Dr. Money served on the Board of Advisors for Penthouse Forum, a Penthouse
pornographic publication, on record as defining incest as "beneficial." Money argued for the end of "age-of-consent laws" to legalize pederasty (man-boy sex) and sexual or erotic homicide if "a couple who are sadomasochistic [allegedly consent to} a death pact." "Consent" not the sexual murder of a child, was the issue for Dr. Money.15 36. Drescher's sex history expert, Dr. Verne Bullough was also a self-identified pedophile
editor of Paidika: The Journal of Paedophilia,16 which states "the starting point of Paidika is necessarily our consciousness of ourselves as paedophiles ... The Editors" 17 The journal regularly advertised for NAMBLA members (the North American Man Boy Love Association) and can be operationally classified as advocating pederasty. 37. Bullough told sex researchers; "Politics and science go hand in hand. In the end it is Gay
activism which 18 determines what researchers say about gay people. 19 Implicitly, he links homosexual and pedophile research, saying the pedophile researcher "determines" what is told to the courts and the public about homosexuality. Dr. John Gagnon, another key Drescher authority, agreed. Gagnon tasked sex researchers to practice "alchemy" - not science - and to create fraudulent homosexual data to manipulate the courts and society. [Do not collect data which would] locate the origins of [homosexual] desires ... Attempts to placate the oppressors will only invite further persecution. The source of
Id, p. 3, 5, 13, 7, 8. Sarbin, supra, pp. 20 - 22. 16 The Journal o/Paedophilia, Statement of Purpose, signed "The Editors," Vol. 1, Summer 1987: " ... The ground on which we stand is the emergence and evolution of paedophile consciousness and identity in history ... [from] the early German sexual emancipation movement. ... But to speak today or paedophilia, which we understand to be consensual intergenerational sexual relationships, is to speak or the politics or oppression ... It is our contention that the oppression or paedophilia is part or the larger repression or sexuality, and that this repression in general represents an irrational expression of authority in government. "The Editors" (Emphasis added). 17 Id. p. 3. 18 Catholic Medical Quarterly. May 1992, pp. 15-16. 19 Reisman, 1990, p. 212.
15
14
freedom in everyday life for gay men and lesbians is continued vigilance and practical political action. 20 (Emphasis added). 38. What accurate homosexuality data can science predict from such "scholarship," seeking
to legitimize pyschopathologically disordered, criminal conduct? By their writings it is clear these men consider themselves the sexual and intellectual elite and pederasty to be at the heart of homosexuality. (An editorial in the Sentinel, San Francisco's premier homosexual publication asserted that "the love [sex] between men and boys is at the foundation of homosexuality. 21 Despite gay alchemists efforts 22 to lower the age of consent and legitimize pedophilia, scientifically, homosexual youth do not exist. Just as there are normally no gay cats, dogs, horses, etc., no scientific data across time, culture and species finds for normal homosexuality. Rather, the data do find for early abuse, neglect and seduction as precipitating homosexual and other heterophohic conduct.23 39. With this overview of the history of the homosexual movement as founded upon the
fraudulent "science" of Alfred Kinsey and his Indiana University compatiots complete, I turn to the individual declarations, the ultimate conclusions of which are based upon a fraudulent foundation, and therefore, provide no support for A3371. Declaration of Drescher 40. Dr. Drescher is immediate past president of the Group for the Advancement of Psychiatry
("GAP"). In contrast to its current stance on the relative capacities of minors to receive information about sexual orientation that does not support a homosexist worldview, GAP has traditionally supported full childhood responsibility for sexual choices (in areas other than
Gagnon, John, The Journal of Sex Research. February 1987, p. 124. "No Place for Homo-homophobia," San Francisco Sentinel, 26 March 1992. 22 Dean Harner et al.., "'A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation," Science, Vol. 261, 16 July 1993, p. 322. 23 See the massive body of child sex abuse and homosexual recovery literature.
21 20
unwanted same-sex attractions and SOCE): In 1950, GAP set forth the position that in regard to persons (not children) under 7, "stamped as minors," many are by endowment and training fully capable of part or exceptionally even full responsibility for sexual behavior.in the later age levels [somewhere between 7 and 18] the legal concepts of rape and of contributing to delinquency become increasingly untenable. Manfried Guttmacher, Psychiatrically Deviated Sex Offenders - Age Disparity (Relations Involving One Adult), Report No. 9, Committee on Forensic Psychiatry of the Group for the Advancement of Psychiatry, February, 1950. 41. Report No. 9 engaged in full repetition of Kinseys findings that sexual behavior in
minors is common, Manfried Guttmacher in Psychiatrically Deviated Sex Offenders, Report No. 9, Committee on Forensic Psychiatry of the Group for the Advancement of Psychiatry, February, 1950. In his report on the ALI Model Penal Code, David Allyn wrote that Kinseys data were the points by which we steered. Private Acts/Public Policy: Alfred Kinsey, the American Law Institute and the Privatization of American Sexual Morality. Journal of American Studies 30, 1996, at 3, 405-428. 42. Unsurprisingly, Dr. Drescher is also a proponent of the belief that homosexuality is
normal and acceptable and under a normal/identity model, regards homosexuality as a normal variation of human expression and "acceptance of ones homosexual orientation as a distinguishing feature of a gay or lesbian identity." Drescher Decl., Para 7. 43. Drescher states that "Since at least the middle of the 19th century, scientists had debated
the issue of whether homosexuality was an illness or a normal variant of human sexuality." Drescher Decl., Para 6. Who, pray tell, was the father of homosexuality as "a normal variant of human sexuality" upon which all modern sexology is based? Dr. Drescher has placed at issue the ultimate foundation of A3371: the veracity of Alfred Kinsey.
44.
While placing Kinsey's veracity at issue, Drescher ignores Table 34 (see Reisman Exhibit
C), in which Kinsey colluded in the rape of children, some as young as two months old. Also in Table 34, a 4 year old boy is reported with allegedly 26 Orgasms in 24 hours- one of up to 2,035 infants and children whom Kinsey and his pederast team sodomized and digitally violated - ostensibly for science- as the children screamed, fainted, had convulsions and fought to get free of their rapists. Gagnon calls Kinsey a neutral observer of these sex crime atrocities. As we proceed, the witnesses for the State of New Jersey and Garden State Equality, and their reliance on the authority of Kinseyand/or his data--become critical to legal decisions accrediting the witness expertise. Beyond Kinseys child sexual atrocities, Dr. Reismans books address the massive sexual frauds in the Kinsey booksfrauds largely responsible for the sexual revolution and this instant case. As for Drescher's claim that opponents of the "normal/identity" model dismissed the "moral or scientific authority" of supporters of homosexuality in the sociopolitical debate, he is correct: those seeking to define homosexuality as normal have neither moral nor scientific authority, because their source Kinsey, is a clinically definable sexual deviant who belonged in prison under the then sexual psychopath laws. Drescher Decl., Para. 9. 45. Drescher asserts that in the "social turmoil" of the 1960s and 1970s, "protests"
prompted organized psychiatry to "scientifically" "reassess the pathologizing of homosexuality" and that "as a result, in 1973, the American Psychiatric Association (APA) removed homosexuality from the list of mental disorders in the Diagnostic and Statistical Manual of Mental Disorders (DSM)." Drescher Decl., Para. 6. Drescher affirms this in his 2009 article "Queer Diagnoses": However, the most significant catalyst for diagnostic change was gay activism. In the wake of the 1969 Stonewall riots in New York City (Duberman, 1994), gay and lesbian activists, believing psychiatric theories to be a major contributor to
antihomosexual social stigma, disrupted the 1970 and 1971 annual meetings of the APA. (Emphasis added). 46. Drescher therefore admits that it was disruptive, activist political pressure that caused the
APA to remove homosexuality from the DSM. There was no "scientific reassess[ment]" at that time, rather, as Drescher admits, it was because the APA "recognized and accepted some of the social implications of the normal/identity model" (Drescher Decl., Para. 9), in addition to acquiescing to political pressure. 47. Drescher posits that only individuals seeking to escape "stigma" or "whose religious
beliefs condemn homosexuality" seek to reduce or eliminate their same-sex attractions, while ignoring other valid reasons for doing so, such as avoiding being one of the 94.9% of new HIV diagnoses, which are situated in the 13-19 year old age bracket. As shown by the CDC (Centers for Disease Control and Prevention) online slide presentation HIV Surveillance in Adolescents and Young Adults
[1]
breaking down the incidence of HIV among young men ages 13-24. In
2011, at a nearly 95 percent (conservatively) of HIV diagnoses among teenage boys (13-19years-old) were linked to homosexual (male-to-male) sex. And 94.1 percent of the cases among young men ages 20-24 (more analysis follows graphic) were from gay sex. 48. Drescher admits that moral value judgments on homosexuality as normal and normative
in the form of "non-discrimination policies adopted by the various professional organizations" (and with no scientific basis) preceded "mainstream professional organizations issu[ing] recommendations and position papers that SOCE therapy not be practiced" (again, with no scientific basis). As a result, he posits that SOCE therapists nevertheless continuing to practice as such are "outside the mental health mainstream" and therefore illegitimate. Drescher Decl., Para. 14.
49.
In Drescher Decl., Para. 19, Drescher makes the breathtaking claim that "SOCE has as its
underpinning verbal misrepresentations about human sexual development," again placing at issue the question of "what is truth?" and "how do we know what we know?" Contrary to Drescher's claim, we know that the entire "mainstream" understanding of human sexuality - the edifice upon which Drescher's life's work (and very identity as an out male homosexual) is founded - is based upon the fraudulent studies created by Kinsey, a certifiable criminal sexual psychopath, and is therefore invalid. Reisman, Sexual Sabotage. Legislation such as A3371 seeking to silence the non-Kinseyan understanding of science is likewise invalid. 50. Drescher states that "minors are particularly at risk of harm from SOCE due to their
emotional and cognitive vulnerability. The scientific data confirm the undeveloped teenage brain until roughly age 21 to 25 hence children should not be exposed to sexual scenarios, whether masqued as AIDS education, diversity, homophobic re-education or entertainment.: They have limited capacity to participate in decision-making regarding their own treatment, and dont have the legal capacity for informed consent." Drescher Decl., Para. 23. Yet, Drescher is immediate past president of GAP, which as set forth above, took the position that in regard to persons (not children) under age 7, "stamped as minors," many are by endowment and training fully capable of part or exceptionally even full responsibility for sexual behavior.in the later age levels the legal concepts of rape and of contributing to delinquency become increasingly untenable. Psychiatrist, Manfried Guttmacher, Psychiatrically Deviated Sex Offenders - Age Disparity (Relations Involving One Adult), Report No. 9, Committee on Forensic Psychiatry of the Group for the Advancement of Psychiatry, February, 1950. No repudiation of that paper has issued from GAP.
51.
"Relations Involving One Adult" figure heavily into the creation of homosexual
attractions. In The Advocate report by Reisman and Johnson, "21% of adult homosexual Advocate readers/survey respondents admitted that that they were sexually abused by adults while under age 15. 24 Moreover, the CDC Data on "[F]irst sexual intercourse before age 13 years," found in the 2001-2009 Survey on Sexual Identity, with its alarming findings of 15% admitted higher rates of gay or lesbian early sexual traumabefore 13-years-oldas well as its child rape and dating violence data, show that among all categories of "youth," heterosexual youth had the lowest percentage of those who had their "first sexual intercourse before age 13" i.e., had been subjected to child rape: 5% for Heterosexual, 20% for Gay or Lesbian, 15% for Bisexual, and 13% for Not Sure. As can be said for "Gay," "Lesbian" or "Bisexual" youth "Not sure" in particular implies one is "questioning," and in any event, a child is "queer or questioning" because one is sexually confused. 52. In regard to the CDC data on the prevalence of early childhood sexual abuse as a
contributing factor to a homosexual identification, and in regard to The Advocate's self-reporting data of early childhood sexual abuse, momentarily consider that pre-90s bi/homosexual child imagery
was more candid than today. The Advocate, as the mainline homosexist publication, contained numerous articles, illustrations, and advertisements catering to open pederasty (See, e.g., the long-running advertisement for a "Penetrable Boy Doll"), and even including as its "mascot" the "playful character" by the artist "Toby" (Fred Bluth). The character's face, eyes, nose, lips, and cheeks are those of an innocent, sweet young boy, roughly 10-years-old, blended into and onto a muscular adult body, complete, in at least one iteration, with subliminal phallus and ejaculate.25 The "Toby" character "adorned the offices of The
24
Judith Reisman and Charles Johnson, Partner Solicitation as a Reflection of Male Sexual Orientation (1991). 25 See "Toby" at http://www.drjudithreisman.com/archives/regent.pdf on pg. 296 of Judith Reisman, Crafting Bi/Homosexual Youth," 14 Regent U. L. Rev. 283 (2001-2002), Vol. 14-283. Declaration of Dr. Judith Reisman - 19
Advocate during its first years of publication. It was affectionately seen as the magazine's mascot." 26 This character by "Toby" is also identified in Long Road to Freedom: The Advocate History of the Gay and Lesbian Movement as The Advocates "unofficial mascot during its early years." 27 The sexually exploitative pose arguably demonstrates "the national gay & lesbian news magazine's" view of early sex with boys.28 Images are the language of intent.29
53.
Likewise, the cartoon Boy Scout is the official mascot for "Straight Arrow Publications" edition
of The Queens Vernacular,30 written by homophile language anthropologist Bruce Rodgers. The first mainstream dictionary for the homosexual movement in 1972, it was republished in 1979 as [G]ay [T]alk. 31 Its 12,000 words include 254 words illustrating sex with boysgenerically referred to as "chicken." Some examples; "ready to crack," "pluck some feathers," "chicken dinner," "butchered chicken," etc. A boy-scout queen," "pretends to snooze as he is [expletive] or [expletive]."32 Language is culture and intent.
54.
So, while the American Psychiatric Association determined no specific psychosocial or
family dynamic cause for homosexuality has been identified, including histories of childhood sexual abuse the open seduction and desire for young boys in the movement media belies that claim. 55. Nevertheless, in spite of these serious shortcomings and credibility issues in his
declaration, Drescher concludes that minors should be helped to "tolerate the feelings that emerge during the process of exploring possible sexual identities" (Drescher Decl., Para. 28.),
Fred "Toby" Bluth, Illustrator, available at http://www.affirmation.org/history/toby_bluth.shtml (last visited September 18, 2013). 27 LONG ROAD TO FREEDOM: ADVOCATE HISTORY OF THE GAY AND LESBIAN, MOVEMENT 17-21, 84, 263 (Mark Thompson ed., 1994). at xix 28 See Judith Reisman, Crafting Bi/Homosexual Youth for more detail, but as is discussed in this report one major marker is early sexual abuse, commonly same sex but heterosexual abuse is also i mplicated, 14 Regent U. L. Rev. 283 (2001-2002), Vol.14-283. 29 John Berger, Ways of Seeing, the British Broadcasting Corporation, London, England, 1977. 30 BRUCE RODGERS, THE QUEENS VERNACULAR (1972). 31 BRUCE RODGERS: [G]AY [T]ALK, A PARAGON BOOK (1979). 32 RODGERS, supra note 76, at 90 Declaration of Dr. Judith Reisman - 20
26
rather than encouraging impressionable children to seek the outcome consistent with their religious, rational, and moral beliefs, and one which does not expose them to the documented harms inherent in exposure to sexuality, and especially that of a homosexual lifestyle. Declaration of Davies 56.
Dr. Davies cites to the American Psychological Association (APA) 2009 Task Force for why
attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts. Yet, Dr. Davies, trained as a child specialist, admits that early sexual abuse is causal in depression, substance abuse, bulimia, posttraumatic stress, disassociation and other problems like hypersexuality. Unfortunately, common sense and hard data find homo/hetero/bi/trans, etc., sex confusion as common in early sex abuse. The research of the US Department of Justice, as well as that of the Centers for Disease Control do so as well.
57.
The US Department of Justice statistics document 64% of our forcible sodomy victims as boys
under age 18 and indeed under age 12. The United States Department of Justice, Criminal Victimization 2000 finds 14,700 male victims of "Rape or sexual assault."33 This leads to massive sexual confusion.
58.
Davies cites to Recommendations for Promoting the Health and Well -Being of Lesbian, Gay,
Bisexual, and Transgender Adolescents: A Position Paper of the Society for Adolescent Health and Medicine," 52 JOURNAL OF ADOLESCENT HEALTH 506, 509 (2013), for the proposition that "reparative therapy is an unsubstantiated and harmful option, it should not be considered or recommended for teenagers who are dealing with issues surrounding their sexual orientation or gender identity." Davies Decl., Para. 18.
59.
This citation and assertion in turn requires some discussion of what protocols Davies would
recommend for confused children - that a therapist "provide supportive counseling to promote selfacceptance" of a homosexual or transgender identity. This is course is consistent with the long accepted Harry Benjamin Standards of Care for sexually confused children. The Harry Benjamin Standards of
33
Department Of Justice, National Crime Victimization Survey: Changes 1999-2000, Trends 1993-2000, At 8 (2001).
Care are a reference tool cited by health care professionals considering medical transition for their clients/patients, but they are recommendations, not requirements. However Dr. Benjamins expertise and credibilityas that of his followers (such as those listed as authorities in Davies' Declaration) is less than viable due to Benjamin's glowing preface to French pedophile Rene Guyons fraudulent book, The Ethics of Sexual Acts. Here, Guyon advocated raw sex abuse of children, often quoted as, Sex Before Eight or its Too Late. Guyons book was published collaboratively with his colleague, Alfred Kinsey whose tome Sexual Behavior in the Human Male was released a few months prior, which in turn was extensively quoted by Guyon.34
60.
Recently Benjamin was morphed into The World Professional Association for Transgender
Health (WPATH). It self-identifies as formerly known as the (Harry Benjamin International Gender Dysphoria Association, HBIGDA). Yet, since Benjamin remains on record supporting the pedophile movement, and Sex Before Eight or Its Too Late, the organization formerly bearing his name remains allied with Benjamin in closet pedophilic deviance
61.
With ideological and professional forbears such as this, Dr. Davies has no credibility in her
remonstrance against SOCE therapy.
Declaration of Bayer 62. Mr. Bayer includes nothing of substance in his Declaration, but states that he is "fully
familiar with the facts set forth herein." Bayer Decl., Para. 1. He makes mention of witness slips from the "NJ Assembly Women & Children Committee Hearing on A3371" attached to his declaration, along with letters from members of the public. Bayer Decl., Paras. 2-6. 63. The New Jersey Assembly Women & Children Committee Hearing on A3371, as well as
the New Jersey legislature's ultimate passage of A3371 are not the first time the State of New Jersey has acted in opposition to the interests of minors and women, in the form of weakening
34
Also see Leah Cahan Schaefer & Connie Christine Wheeler, Harry Benjamins First Ten Cases (1938 -1953): A Clinical Historical Note, 24 Archives of Sexual Behavior 83 (1995). Declaration of Dr. Judith Reisman - 22
child protection laws. Post-1950, New Jersey has favored child sex offenders over her child sex victims. Based upon Kinsey's fraudulent data then (as the basis for the legislative bias toward predators beginning in 1949 via The New Jersey Commission on the Habitual Sex Offender, as well as being the basis for the Model Penal Code). See Exhibit B, The ALEC Report, Pg. 9. The passage of A3371 is one step further, in that not only will the State of New Jersey decline to protect with stiff penalties the safety of women and children, it will now prohibit the restoration of children who have been violated by sexual predators, when those children experience unwanted same-sex attractions as a result of that abuse. Declaration of Herek 64. With his statement that "sexual orientation ranges along a continuum from exclusively
heterosexual to exclusively homosexual" (Herek Decl., Para. 8.), the hoary "Kinsey scale" makes an appearance. We are to take at face value the claim that "everyone has a bit of homosexuality," a claim brought to us by the same man that brought us "infant orgasms" - reporting child sexual torturesas infant and child orgasms in his Tables, and on pages 160 and 161 of Male in which he testified that 196 boy infants and children, under age 12, had 6 types of orgasms, including terror, screaming, and fainting. See Exhibit C. 65. Further, in Paragraph 11, Herek falsely states that the mid-1950s view of homosexuality
as mental illness reflected "untested assumptions based on then-prevalent social norms as well as clinical impressions drawn from unrepresentative samples of patients seeking therapy and individuals whose conduct brought them into the criminal justice system." "Once researchers began using the scientific method with samples of non-patient, nonincarcerated individuals to empirically test the belief that homosexuality is an illness, evidence accumulated that many homosexuals were psychologically healthy and that homosexuals as a group did not differ
substantially from comparable heterosexuals in their levels of psychological functioning." Herek Decl., Para. 11. In actuality, Kinsey was the researcher who used "unrepresentative samples of ... individuals whose conduct brought them into the criminal justice system" precisely to challenge prevailing assumptions with false and fabricated data. See Exhibit B. 66. Herek repeats the mistruth of "empirical evidence" that homosexuality is normal, and
cites to "changing views of sexuality and gender in the larger culture" as rationales for the 1973 APA political decision to remove homosexuality from the DSM. Herek Decl., Para. 12. In actuality, disruptive, harassing, violent protests by homosexual activists interrupting the civil discourse of the APA at its annual meetings were prime motivating factors for its removal, not "empirical evidence." The APA capitulated.35 67. Herek states the APA's agnostic view of the nature and causes of homosexuality: that the
"factors that cause an individual to become heterosexual, homosexual, or bisexual are not currently well understood." Herek Decl., Para. 14. There is a reason for this: Dr. John Gagnon, as described above (and cited with approval by Drescher), tasked sex researchers with specifically avoiding scientific inquiry into the pathology of homosexuality, stating: [Do not collect data which would] locate the origins of [homosexual] desires ... Attempts to placate the oppressors will only invite further persecution. The source of freedom in everyday life for gay men and lesbians is continued vigilance and practical political action. 36 68. More modernly, one of Gagnon's ideological descendants on the APAs Lesbian, Gay
and Bisexual Concerns Office, Clinton Anderson, stated: We cannot take into account what are fundamentally negative religious perceptions of homosexualitythey dont fit into our world view (Carey, 2007).
Declaration of Jack Drescher CV, "Queer Diagnoses: Parallels and Contrasts in the History of Homosexuality, Gender Variance, and the Diagnostic and Statistical Manual," 2009. 36 Gagnon, John, The Journal of Sex Research. February 1987, p. 124. Declaration of Dr. Judith Reisman - 24
35
69.
Herek discusses "stigma" in the sense that it is "socially constructed, [and] it can change
over time as social norms and mores change." Herek Decl., Para. 16. Herek further states that sexual stigma is "shared knowledge about the negative regard, inferior status, and relative powerlessness that society collectively accords to nonheterosexual behaviors, attractions, identity, relationships, and communities." Herek Decl., Para. 17. In his analysis of "stigma," Herek fails to mention the documented rates of abuse, disease, suicide, and other deleterious effects not stemming from "societal disapproval," but from the behaviors inherent in certain homosexual practices and behaviors. Laws and societal mores discouraging risky, unhealthy, and harmful behaviors are a good thing, and are woven throughout our culture. See Exhibit B. 70. Assuming, arguendo, that "sexual stigma is a source of stress" and manifests itself
through "heightened psychological distress among...adolescents" (Herek Decl., Para. 19), Herek (and A3371) ignore perfectly legitimate methods of resolving that distress in a manner consistent with a minor's religious beliefs. If anything, Herek's statements on "stigma-as-stress" shows that the distress these individuals may feel is not related entirely (or at all) toward SOCE, and moreover, A3371 mandates only one form of counseling, and one that may in fact create more stress by being in opposition to a minor's sincerely (and strongly-held) rational, moral, and religious beliefs. 71. In attacking SOCE, Herek discusses the inherent unreliability of self-reports on sexual
attraction, as well as the infeasibility of "[o]btaining reliable reports from an objective, thirdparty observer" (Herek Decl., Para. 32, FN 33), all of which apply to Kinsey's methods and subsequent work product. Kinsey was anything but an "objective...observer," but was a closet sexual psychopath, hence all laws and public policies now reflect his sexual pathologies. As a pornographically addicted, sadomasochist, bi/homosexual pedophile Kinsey could not (and did
not) produce legitimate data on "normal" human sexual behavior. Kinsey had a personal need to change sex laws in the 1950s into the laws he needed. As the law was, it criminalized his sexual behaviors. Thus, Kinsey assembled a like-minded cohort to produce his desired results, fabricating and discarding undesired data. He "forced" answers from subjects. He took sex histories from persons wildly aberrant: homosexuals, sadomasochists, petty and major criminals, prostitutes, pimps, pedophiles, draft dodgers, drunkards, and prisoners. He used this collection of sexual deviants to fabricate conclusions about the mores of normal society. Most important, Kinseys research protocol involved the criminal sexual torture of infants and children to establish children as sexual from birth. (See Exhibit C, Table 34 in Appendix A). 72. Herek discusses negative reports about SOCE derived from "questionnaire studies,
clinical case studies, and anecdotal reports rather than controlled experiments" which "are important because they raise serious questions about whether SOCE may be harmful to many who undergo it." Herek Decl., Para. 40. Judged by this standard, documented proof of scientific fraud and crimes against children by Alfred Kinsey "raise serious questions" about the entire construct of the field of sexology, and therefore, A3371 insofar as it is based upon the testimony of Herek and the other so-called experts. 73. Herek concludes by returning to the Kinsey-scale-based assertion that "homosexuality is
a normal expression of human sexuality" and attributes distress in individuals' lives to "stigma" (Herek Decl., Para. 45). Declaration of Haldeman 74. In Paragraph 8, Haldeman makes a moral judgment cloaked in the language of "science"
that the "belief that homosexual orientation is undesirable" is "unscientific." Haldeman Decl., Para. 8. Science cannot answer moral questions. It can tell us what "is," but not what "ought to
be." It can inform our moral decisions, but it cannot make them for us, and where it is faulty "science," it does society a great disservice. See Reisman, Stolen Innocence. Regardless of Haldeman's faulty moral judgment here, there is ample evidence to the undesirability of a homosexual orientation. Note the 2011 CDC study HIV Surveillance in Adolescents and Young Adults showing that greater than 94% of newly-reported HIV infections in youths ages 13-19 occur from male-to-male sexual activity. 75. Haldeman refers to "LGB youth," under a Kinsey-based diagnostic standard, rather than
"sexually confused" youth, under a rational standard. Haldeman Decl., Para. 11. Kinseyan scholars have struggled to find a genetic or innate cause of homosexuality, only to find none. 76. Haldeman states that the "harms inflicted on minors ["children"] who are exposed to
SOCE therapies may be exacerbated by the fact that an individuals brain tissue in the pre-frontal cortex is still developing and changing rapidly during early adolescence and teenage years. These cellular changes in brain tissue leave the mid-brain (repository of emotional responses) much more vulnerable to the potentially traumatic effects of SOCE." Haldeman Decl., Para. 13. Haldeman is correct that the undeveloped, emerging, youthful brain has special needs, but arrives at the wrong conclusion. Pioneering neurologist A.R. Luria defined the three components of a healthy brain as 1) to be alert, awake, aware of reality; 2) to collect and store environmental data and, 3) to monitor and correct our conduct for health and well-being. The realization that the Teenage brain [is] a work in progress underscores how the three tasks of the human brain are compromised by addiction lures for drugs, alcohol, pornography and other sexually explicit content in visual and print media, not to mention actual, physical life experiences. Since youthful brain restructuring is automatic, male sexual behavior (heterosexual or homosexual) is a function of the restructured brain architecture engendered by key stimuli. See Reisman, Restructuring the
Immature Brain, Report for the The Institute for Media Education & California Protective Parents, Assoc., 2008. 77. In opposition to the claims of Haldeman that minors are "particularly susceptible" to
familial and faith "coercion," minors are just as susceptible to the propagandist nature of LGBT materials and imagery with which they are bombarded in schools, media, and other contacts. Turning his statement 180 degrees, "minors may also have difficulty separating what they [think] they want from what [the homosexual community]" tells them they should want, and an "[LGBT lifestyle] may appear to some of these minors to provide a means to gain approval and to conform their identities and behaviors to [homosexual community] expectations and hopes. But minors often do not understand the risks, and may not understand that [resolving root causes through SOCE therapy] could help them feel better and resolve conflicts between their sexual orientation, their family expectations, and, where applicable, their own religious values without risking severe harm [inherent in an LGBT lifestyle]. Haldeman Decl., Para. 14. Haldeman's claim that family and faith is to blame for conflict in teens is disingenuous in the face of a concerted onslaught of New Jersey schools offering grooming material in sex-ed classes; "safe spaces" affirming homosexuality; LGBT propaganda books, posters and media; and prohomosexual counseling. 37 In combination with these, LGBT centers in New Jersey offering approval, a substitute home life, sense of community and adult role models, all seeking to distance confused teens from parents, faith, and other traditional sources of support - it is thus unsurprising to find youth confused about their sexual identities, and thereby, experiencing stress.. See HIV Surveillance in Adolescents and Young Adults CDC study regarding greater
See p. 17, N.J. Family Policy Council, Index of Leading Cultural Indicators (Vol. 3 2002), available at http://www.njfpc.org/wp-content/uploads/2011/11/NJindex01-02_Final.pdf.
37
than 94% of newly-reported HIV infections in youths ages 13-19 occur from male-to-male sexual activity. See also FBI Crimes Against Children Unit testimony of Michael Heimback before United States Senate Subcommittee on Crime, Terrorism, and Homeland Security discussion of child sex "grooming" activity.38 78. Haldeman states that "A competent therapist treating a client with strong religious beliefs
assists the client in understanding the source and emotional consequences of any conflicts between experience and belief, and in negotiating a healthy life course in light of accurate knowledge...". Haldeman Decl., Para. 24. Indeed, accurate knowledge is necessary in order to help minors and adults negotiate a "healthy life course." The accuracy of Haldeman's assertions about the nature of homosexuality is at issue. For the record, there is a massive conflict of interest between Haldeman's investment in the validation of his own "out" homosexual lifestyle (which also goes for Drescher), and his ability to be objective and honest with children who are struggling with their sexual confusion.. In contrast with Haldeman's assertion that "minors are often forced into SOCE by their parents who refuse to accept the fact that their child may be lesbian, gay, bisexual, or transgender" (Haldeman Decl., Para. 26.) LGBT advocates and their allies are inducting minors into homosexuality on a massive scale by exposure to sexually explicit imagery and faulty data through a variety of mediums, all of which turns upon the work of Alfred Kinsey. Indeed, the individual (and this court) must be "allowed to make truly informed decisions about...life" based on the totality of the facts. Haldeman Decl., Para. 26. Conclusion 79.
Alfred C. Kinsey (the father of the sexual revolution, and of the human sexuality and sex
education fields globally) was directly responsible for the mass sexual torture of between 317 and 2,035
38
http://www.fbi.gov/news/testimony/supreme-courts-child-pornography-decision, Declaration of Dr. Judith Reisman - 29
children for his books, Sexual Behavior in the Human Male (1948) and Sexual Behavior in the Human Female (1953). Please note that my book Sexual Sabotage includes reproductions of Kinseys original five child torture Tables 30, 31, 32, 33, 34, beginning on page 25.
80.
I republished the Kinsey child Tables from his own books, where he reported these tortures as
infant and child orgasms and pages 160 and 161 on which he testified that 196 boy infants and children, under age 12 had 6 types of orgasms, including terror, screaming, and fainting.
81.
Kinsey is documented now as a pornography addict who forced his wife and his team
to participate in his pornographic films made on campus and in his attic. He is also documented as engaging in masturbatory self-torture so punishing that it did perhaps fatal damage to his sexual organs. It is documented that he abandoned his wife for sex with multiples of males of unknown ages; that his team was expected to practice adultery and homosexuality, that he hired only those researchers who shared similar perversions, and most important, that he deliberately employed pedophiles, actually pederasts, including members of the nascent NAMBLA organization, to help gather child sex orgasms, that is, to, under his orders, rape and catalogue children, as young as 2 months of age, using stop watches to record their screams, cries and convulsions. Kinsey defined these responses as child orgasms. It is also proven, that he himself collected ejaculate from hundreds of young boys, putting him directly at the scene of these violent crimes. The attached Table 34 bears silent witness of the sexual torture of children by the Kinsey team. 82. A compromised foundation compromises the edifice constructed thereon. A poisoned
fount poisons the societal (and scientific) stream of consciousness, leading to toxic studies and toxic policy decisions. Kinsey created fraudulent homosexual data from his torture of children and his interviews of non-representative, aberrant samples of American society. Kinsey's data are the ideological and psychological ancestor of A3371. Like its source, A3371 seeks to facilitate
the crimes of a new generation of sexual psychopaths who increasingly abuse children. Without Alfred Kinsey and his legions of depraved child-sex advocates, Bayer, Davies, Drescher, Haldeman, and Herek are no experts. I declare under penalty of perjury of the laws of the United States and New Jersey that the foregoing statements are true and correct. Executed this __20th__ day of September, 2013
___/s/ Judith Reisman__ Judith Gerlernter Reisman, PhD
EXHIBIT A
Curriculum Vitae
Brief Vitae of Judith A. Reisman, PhD AUTHOR: BOOK PUBLICATIONS Sexual Sabotage, WND Books, Washington DC, 2010 Kinsey, Crimes & Consequences, The Institute for Media Education, Crestwood, KY, 1998, 2000, 2003, 2011 Partner Solicitation Language as a Reflection of Male Sexual Orientation, with Charles B. Johnson, Ph.D., The Institute For Media Education, Arlington Virginia, 1995 Soft Porn Plays Hardball, Huntington House, Lafayette, LA, 1991 Kinsey, Sex and Fraud, Judith Reisman et al., Huntington House, Lafayette, LA, 1990 Images of Children, Crime and Violence in Playboy, Penthouse, and Hustler US Dep. Justice Grant No. 84-JN-AX-K007, 1986, 1987, 1989, 1990 DOJ website citation (link opens new window) EDUCATION Ph.D. 1980 in Communications, Case Western Reserve University M.A. 1976 in Communications, Case Western Reserve University ACADEMIC POSITIONS Visiting Professor of Law, Liberty University School of Law, 2011 Adjunct faculty, George Mason University, 1990 Research Full Professor, The American University, 1983-85 Asst./Assoc. Prof., (Martze) University of Haifa, Israel, 1981-83 PARTIAL LIST OF INCLUSIONS/CITATIONS TO RESEARCH AND FINDINGS IN BOOKS AND OTHER PUBLICATIONS: Savage, M., (2005) Liberalism is a Mental Disorder, Nashville, Tennessee, Nelson Current. Savage's criticism of Kinsey's use of fraudulent data and sex crimes against children to launch the sexual revolution Kupelian, D., (2005) The Marketing of EVIL, Nashville, Tennessee, WND Books, The citation of Reisman's findings of Kinsey's fraudulent data and sex crimes against children launched a bizarre and aborted faculty attack on Ohio State University Reference librarian, Scott Savage, April-May 2006--as of this writting Mr.. Savage is contemplating defamation litigation Brinkman, S., (2004) The Kinsey Corruption: An Expose, Catholic Standard and Times, Ascension Press, West Chester PA (book based on Reisman's findings) Wagner, T., (2003) Back to the Drawing Board, "The Kinsey Culture: Sex on Demand, Abortion on Demand," South Bend, St. Augustine's Press (chapter) Kastleman, M. (2001) Internet Pornography: The Drug of the New Millennium, Orem, Jones, E. Michael (2000) Libido Dominandi: Sexual Liberation and Political Control, South Bend IN: St. Augustine's Press (citation) Ericksen, J. and Steffen, S., Kiss and Tell: Surveying Sex in the Twentieth Century, Jones, Cambridge, Harvard University Press, 1999 (citation)
E. Michael (1993) Degenerate Moderns: Modernity as Rationalized Sexual Misbehavior, San Francisco, CA, Ignatius (citation) Chalfant, J. (1999) Abandonment Theology: The Clergy and the Decline of American Christianity, Winter Park, FL (citation) Mack, D. (1997) The Assault on Parenthood Simon and Schuster, (citation) Brennen, W. (1995) Dehumanizing the Vulnerable, Loyola University Press (citation) Zillmann, D. (1994) Media, Children and The Family, NJ: Erlbaum (JAR article) Ruggiero, V.R. (1994) Warning, Nonsense is Destroying America, Nashville: Nelson (citation) Wolinsky, M. (1993) Gays and the Military, Princeton University Press: Princeton, NJ: Judge Gasch's ruling and the Lancet cite to Dr. Reisman on Kinsey's fraud. Hattermer, B. (1993) Don't Touch That Dial, Lafayette, LA: Huntington House (JAR article) Trento, S. (1992) The Power House, NYC: The New Press (citation) Kincaid, C. (1992) The Playboy Foundation, Washington DC: Capital Research Center (citation) Bolton, R. (1992) Cultural Wars, NYC: The New Press (JAR article) Osaka, F. (1989) Source Book of Pornography, MA: Lexington (citation) Zimbardo, P. (1988) Psychology and Life, MA: Scott, Foreman (citation) Mawyer, M. (1987) Silent Shame. Westchester, IL: Crossways (citation) Burgess, A. (1986) Sexual Exploitation of Patients, NYC: Garland (JAR article) McCuen, E. (1985) Pornography and Sexual Violence, WI: Gem (JAR article) Lederer, Laura (1981) Take Back the Night, NYC: Bantam (JAR article/interview) Skirball Museum (1974) A Walk Through the Past, CA: Hebrew Union College (JAR epic poem) GUEST LECTURER Liberty University Princeton University Georgetown University American University University of Jerusalem University of Haifa Rutherford Institute Texas Woman's University Clarkson College Notre Dame University University of Kentucky Pepperdine University Council for National Policy Human Life International Johns Hopkins University Medical School Tel Aviv University Accuracy in Academic
Accuracy in Media Concerned Women for America Rutherford Institute The Abstinence Clearinghouse American Society of Criminology North Carolina Psychiatric Association Israeli Army Air Force Academy, Israel International Assoc. of Police Women Criminal Division/Executive US Attorney NOVA, NCASA, CCAVE, NCTV, NET... Federal Bureau of Investigation Vice and Police Organizations Child Protection Organizations United States Air Force Academy, Colorado etc. EXPERT WITNESS: COURT, MILITARY, CIVIC HEARINGS Expert Witness: Senate Hearing on "The Science Behind Pornography Addiction" Science, Technology and Space Committee, November 18, 2004 Invited Paper: HR 3300: The Military Honor & Decency Act (Pornography Law) May 1996 Invited Paper: South Africa Film and Publications Bill of 1995 (Pornography Law) 1995 Briefed: Selected Lansing Michigan Legislators (Pornography Law) May 1994 Briefed: Kirkland & Ellis (Re: Oral Argument, United States v. Knox) April 1994 Briefed: Australian Parliament Standing Committee on Social Issues (Media Effects) 1992, 1994 Invited Paper: Ontario Human rights Commission (Pornography Effects) 1993 Invited Paper: Senate Committee on Armed Services (Homosexuality) July 1993 Briefed: Army Chief of Staff Gordon Sullivan, Senator Malcolm Wallop (Homosexuality in the Military) December 1993 Invited Paper, Testimony: Presidential Commission on the Assignment of Women in the Armed Forces 1992 Briefed: Inspector General Roland Griffith (Homosexuality) December 1993 Expert Research Younger et al., v. Stroh (Federal Court Sex Harassment) 1992 Testified: Australian Parliament, Senate Select Committee (X & R Rated Effects) April 1992 Invited Paper: Office of US Surgeon General (Mass Media Harms) March 1992 Testified: State of Georgia Senate Ed Committee (Kinsey-Sex Ed Curriculum) February 1992 Testified: Hamilton County Prosecutor's Office: OH (Mapplethorpe Trial) August & October 1990 Testified: City Council; Newport News, VA (Nude Dancing & Public Order) June 1986 Invited Paper: US Attorney General Commission on Pornography: NYC (Effects) January 1986 Testified: US Attorney General Commission on Pornography; Miami (Effects) November 1985
Invited Paper: US Attorney general Task Force, Domestic Violence: DC (Effects) August 1985 Testified: Michigan State Senate Juvenile Justice, Corrections: MI (Effects) October 1980 SELECTED GRANTS/POSITIONS Bureau of Justice Assistance, US Department of Justice: Grant Reviewer, "Reducing Community Gun Violence" 2002 Bureau of Justice Assistance, US Department of Justice: Grant Reviewer, Evaluation of Child Protection Proposals, 1991 HHS: Administrator for Children, Youth, and Families: Grant Reviewer 1991 Eastern Division Vice Investigators Association: Inservice Trainer 1987-89 HHS Dept. of Substance Abuse Prevention: Research Paper 1989 Skaggs Foundation: Visual Literacy Training Grant 1987-89 Department of Education: "Drug Free Schools" Grant Reviewer 1987 Department of Education: "Drug Free Videos" Grant Reviewer 1985 Georgetown Pediatrics Department: Inservice Training Seminars Grand Rounds 1984 FBI Academy: Erotica/Pornography Effects: Inservice Training Seminar/Video 1983 OJJDP Missing Children - Serial Murder Task Force: Inservice Trainer 1983-85 DOJ Office of Juvenile Justice: Principal Investigator, Pornography, Media Research 1983-94 Israel Science Ministry Department of Sex Education: Kinsey and Inservice trainer, Media 1980-83 Scholastics Magazine, NYC: Art & Education Writer, Producer 1970-80 Milwaukee Public Museum: Art/Anthropology Television Writer, Producer 1970s Cleveland Museum of Art: Art/Head Start, Education Videos/Captain Kangaroo 1970s Los Angeles Skirball Museum: History/Archeology Educational Videos 1966-81 Captain Kangaroo CBSTV: Segment Producer, Performance Artist 1976-1982 PAST/PRESENT ADVISORY BOARD MEMBER Science Adviser, California Protective Parents Association Science Adviser, Education Task Force, SubCommittee on Science Fraud in the Classroom, for The American Legislative Exchange Council (ALEC) Founder, Institute of Media Education and the Family, Israel Bereaved Parents Association (Juvenile autoerotic deaths), AZ Paul & Lisa, Inc. (Child prostitute rescue organization), CT Accuracy in Academia, Washington, D.C. SELECTED JOURNAL ARTICLES Regent University Law Review 2002 International Journal of Politics, Culture, and Society, (Netherlands) 1992 (cite) The Journal of Human Sexuality (Lewis & Stanley) 1996 Law & Justice: The Christian Law Review (UK) 1995 Collected Papers from the National Association for Research & Therapy of Homosexuality Conference (NARTH) July 1995 Ethnology and Sociobiology (USA) 1984
New Universities Quarterly: Culture, Education, and Society (UK) 1981 Journal of Educational Thought and Practice in Collective Settlements (Israel) 1983 New York University Review of Law and Social Change (USA) 1978-79 Women Speaking (UK) July-September 1978 "A Walk Through the Past," Los Angeles Skirball Museum, (Hebrew Union College) 1974 PAST/PRESENT SELECTED MEMBERSHIPS Distinguished Senior Fellow, The Inter-American Institute Women in Neuroscience The American Statistical Association The Society for the Advancement of Sexual Health Western Society of Criminology National Association of Scholars National Council on Family Relations American Public Health Association The New York Academy of Sciences The International Communication Associations The National Black Child Development Institute Research Council on Ethnopsychology The Society for the Scientific Study of Sex American Society of Composers, Authors and Publishers The World Association of Infant Psychiatry & Allied Disciplines American Association for the Advancement of Science National Association for Research & Therapy of Homosexuality (Fellow) MEDIA/PRESS CITATIONS AND APPEARANCES Ted Baehr Movieguide The American Spectator The Weekly Standard Fidelity - The Australian The London Times TIME New Dimensions The Los Angeles Times Reader's Digest, April 1997 The Lancet (British Medical Journal) International German Medical tribune - Science The Scientist Archives of Sexual Behavior The (British Physicians) Quarterly Newsweek 700 Club, CBN NBC, ABC, CBS, PBS, The Washington Post The National Review, May 19, 1997 "Cover Story" German Arts Television
Dutch Television - Faith Daniels (NBC) Entertainment Tonight O'Reilly - Jenny Jones BBC, Great Britain The Washington Times Larry King Live Donahue The Today Show People are Talking Sally Jesse Raphael Crier & Crier Crossfire, CNN The Princeton Peninsula The New York Times D. James Kennedy SELECTED MEDIA CO-AWARDS Learning Magazine, Best Filmstrip of Year, w/ Scholastics 1981-82 US Industrial Film Festival Gold Camera w/ Scholastics 1982 Dukane Award Outstanding Creative Sound Films w/ Scholastics 1982 US Industrial Film Festival Silver Camera w/ Scholastics 1982 ACT Award Children Music w/CBSTV Captain Kangaroo 1976-79 1st Place Local PSA/TV series w/ Jewish Family Service Assoc. 1974 SELECTED PAST/PRESENT HONORS "Guardian of the Light Award" The Lighted Candle Society, 2006 "Research Award" The Abstinece Clearinghouse, 2005 "Protector of Children" Citizens for Families, 2005 Nomination by the US Dpt of Defense Inspector General, 2003 (link opens new window) Interview at Awards ceremony with BrotherWatch, 2003 (link opens new window) "Save Our Children Scientist Of The Year For 1993," The Save Our Children National Alliance Who's Who in Science and Engineering The World Who's Who of Women Who's Who of American Women International Who's Who in Education International Who's Who in Sexology Two Thousand Notable Americans International Book of Honor WORLDWIDE COURTS AND LEGISLATURES PRESENCE Past Consultant: California Judicial Investigative Task Force, American Legislative Exchange Council (ALEC) on Sex Science Fraud (see also: THE ALEC REPORT) US Senate, Washington DC: US Senate Committee on Commerce, Science and Transportation, The Science Behind Pornography Addiction - November 18, 2004
Description: Dr. Reisman provided expert testimony examining brain science related to pornography addiction and the effects of such addiction on families and communities. INTERNATIONALLY THE NETHERLANDS, October 1994: Amsterdam District Court Judge, Mr. U.W. Bentinck, ruled against Playboy's demands for retractions and reparations following Dr. Reisman's appearance in a Dutch public tv broadcast, in which results from Reisman's DOJ study Images of Children, Crime and Violence in Playboy, Penthouse and Hustler were discussed. SOUTH AFRICA, October 2003: The South African Constitutional Court relied upon Dr. Reisman's research on the impact of pornography on brain, mind, memory in its decision to halt legal leeway for the distribution of child pornography in South Africa. SOUTH AFRICA, 1995: The Office of the Attorney General thanks Dr. Reisman for "your knowledge and your expertise.... your assistance in saving this nation from a potential disaster.... we have achieved a major victory on the pornography front.... which would not have been possible without the aid of your expert knowledge, books, videos and articles."Dr. Reisman's testimony on the ways graphic, antisocial imagery reconfigures brain, mind and memory helped pass The Film and Publications Bill of 1995, by an overwhelming majority of 300 votes, prohibiting child pornography in any form (written, visual, cartoon, "artistic" or pseudo), and prohibiting current types of "adult" pornography. AUSTRALIA, Parliament 1994 and 1992: Following her April 6, 1992 invited testimony and report on pornography and the harm factor to the Senate Select Committee on Community Standards, Parliament banned "X" Rated materials from pay cable TV, while her March 1994 research paper aided Parliament's decision, based on harm, to similarly ban "R" Rated materials from pay cable TV. CANADA, Supreme Court 1992: Dr. Reisman provided briefing materials on pornography and harm, aiding the Canadian Supreme Court's unanimous decision February 27, 1992 to ban all pornography as "obscene" as it undermines equality by degrading, subjugating and dehumanizing women. Subsequently, in 1993, Dr. Reisman was tasked by the Ontario Human Rights Commission to produce a research paper, "Pornography in Neighborhood Convenience Stores: Neurochemical Effects on Women," for a pornography case challenging the new law-results pending NEW ZEALAND, Tribunal 1991 and 1989: Dr. Reisman's research was delivered by-proxy via Dr. John Court to the New Zealand Pornography Commission investigations in 1989. She was again asked for, and delivered, written testimony to the New Zealand Indecency Tribunal in 1991.
ISRAEL, Knesset 1982: Dr. Reisman founded a media monitoring, non-profit foundation in Israel, funded by private and public sources that have presented findings on Israeli media to the Knesset and throughout Israel. At minimum, major corrections and improvements were made in controlling advertisements, largely due to Dr. Reisman's data collection, cadre training, and public dissemination of information. THE UNITED STATES SUPREME COURT MASSACHUSETTS, 1989: Oakes v. Massachusetts, 491 U.S. 576 (1989). Massachusetts Attorney General, James Shannon cited Dr. Reisman's DOJ, Juvenile Justice and Delinquency Prevention study in this successful brief and in oral appeal to the U.S. Supreme Court. Shannon wrote (1/8/90): I contacted Dr. Reisman in connection with an important child pornography case, Massachusetts v. Oakes...that I argued in the United States Supreme Court in January 1989...I had to convince the court that both nude and sexually explicit photographs of children were exploitive and harmful. To make the point, I quoted Dr. Reisman's study, "Images of Children, Crime and Violence in Playboy, Penthouse, and Hustler Magazines," in which she showed that sexually exploitive photographs of children condone and promote a distorted view of sexuality, often by pairing...sexuality and violence, or depicting children as desiring sexual activity with adults. OHIO, 1989: Osborne v. Ohio, 495 U.S. 103 (1990). Amici cited "Neurochemical Evidence Shows That People React Differently To Pictures Than They Do To Words Raising New First Amendment Considerations" and thanks "Dr. Judith Reisman for her valuable development of this concept" (:23) and, "J. Reisman's New York Review of Law and Social Change," (1979) where she addressed media, science and civil rights. On behalf of the Amici in Osborne v. Ohio.... thanks for your invaluable assistance rendered to us in researching and writing this brief.Your ideas on how the visual images effect people substantially more than the written word is indeed a new concept and could have many significant ramifications in the area of the First Amendment.If in fact the court and legislatures do believe that visual images, specifically of sexual, sexually violent and violent material, will have a greater impact on people in general and children in particular, there may be justification for more strict legislation in these areas than would apply to the written material.Moreover, under a First Amendment analysis, since the harm is greater, there would be more of a compelling state interest to have stricter laws. (H. Robert Showers, 10/12/89). USA LOWER COURTS Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996). The U.S. Court of Appeals for the Ninth Circuit upheld the right of California's news rack laws to protect minors in support of Amici
arguments by the National Law Center for Children and Families. Amici cited to Reisman's Canadian paper,"Pornography in Neighborhood Convenience Stores: Neurochemical Effects on Women," that "Images reach the brain more quickly than print" (:15). Steffan v. Cheney, 780 F.Supp. 1 (D.D.C. 1991), affd by Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994). The U.S. States Court of Appeals for the District of Columbia Circuit. The lower court in 1991, under Judge Oliver Gash, cited Reisman's book in rejecting Steffan's military reinstatement. To answer Steffan's appeal, in 1994, Colonel Ronald Ray Esq., Ret., and Reisman filed an Amicus brief on behalf of the Naval Aviation Foundation in support of the Department of Defense ruling, that homosexuality and sexual conduct are inseparable. General P.X. Kelley, former member of the Joint Chiefs of Staff, and Commandant of The Marine Corps, wrote Reisman's "groundbreaking work in Kinsey, Sex & Fraud," (October 5, 1994) was needed in the Steffan case. We won. United States v. Knox, 32 F.3d 733 (3d Cir. 1994). The U.S. Court of Appeals for the Third District, ruled in support of arguments presented in the Institute for Media Education Amicus and Arnold & Porter written with Colonel Ron Ray and Randall Shaheen, citing Reisman's research on images and for OJJDP, to protect children from use in child pornography. TEXAS, 1993: Despite obstructions, the Court's successful use of Dr. Reisman's findings continues. A Texas prosecutor wrote the following: As a prosecuting attorney, I have tried approximately 35 obscenity jury trials in which the defense has called a sociologist as an expert witness on community standards. Your book, Kinsey, Sex and Fraud, has proven invaluable on cross-examination. This sociologist studied at the Kinsey Institute and bases a lot of expert opinions on his studies at that institute. To be able to point out to the jury the fraud that Alfred Kinsey and his institute have perpetrated is a very effective tool... I encourage you to continue your work in this area to point out to the public the frauds sociology and psychology have given us (March 8, 1993). Ohio v. Contemporary Arts Center, 735 F. Supp. 743 (S.D. Ohio 1990) Mapplethorpe art trial; obscenity. Judge of the Hamilton County Municipal Court entered upon the premises of CAC and videotaped each photograph on display. The presiding judge rules in agreement with Dr. Reisman's expert testimony re: what was Mapplethorpe's artistic "whole" to be viewed by the jury. Judge David J. Albanese cites directly from Reisman's definition of what "an image" is and how the image works on viewers. "The Court finds that each photograph has a separate identity; each photograph has a visual and unique image permanently recorded." -- The Washington Post, September 7, 1990, p. B5
Frank Prouty, the State prosecutor writes: As you know, the State filed a Motion in Limine regarding what constituted the "whole" as that issue related to the Mapplethorpe exhibit. Your testimony was critical to the Motion, and your testimony ensured a favorable ruling for the State... The issues and interpretation you presented concerning the child photographs and the remaining photographs substantiated the prosecution's view... The perspective you established was both concise and persuasive, and should be considered in any interpretation of pornography and its affect in both children and adults (March 4, 1991). CALIFORNIA, 1989: Ventura County Superior Court cites Reisman's research to convict child pornography Hustler cartoonist, Dwaine Tinsley. Mr. Hardy indicated that your report [Dr. Reisman's "Images of Children, Crime and Violence"] was extremely helpful throughout the prosecution of the Tinsley case. Mr. Hardy used the report as a reference source for putting together his closing arguments, and for his cross examination... Mr. Hardy considers your report to be a great piece of work, and has recommended the report ... to the National Association of District Attorneys ... your report ... was a great help in the prosecution of this case (March 28, 1989). Dr. Reisman has been successfully consulted on sexual harassment in the Minnesota workplace; on a mother's rights to child custody from an AIDS father in Kentucky; in testimony before the Attorney General's Commission on pornography; on homosexual versus parents rights in a Connecticut classroom on fraudulent sex education in Falmouth schools. She is currently consultant for a first amendment versus parental rights case involving one government school, in a second school versus parents' case involving subversion of parents to provide contraception to minors and a third case involving sexual harassment in the workplace. LEGISLATION WASHINGTON, D.C., December 1995: HR 2749, The Child Protection and Ethics in Education Act, is introduced.A Bill to determine if Alfred Kinsey's Sexual Behavior in the Human Male and/or Sexual Behavior in the Human Female are the result of any fraud or criminal wrongdoing: 41 co-sponsors; carried over to 1997-1998 legislature to investigate the Kinsey data.This Bill is the culmination of Dr. Reisman's 20-years of research and advocacy for children.A Senate hearing waits in the wings. MINNESOTA, 1993: After a last-minute briefing and presentation of pedophile exhibits by Dr. Reisman to Minnesota legislators, "affectional orientation" language, which allows children to be in legal sexual relationships with adults, is removed from two pending Minnesota laws. GEORGIA, 1992: Heeding Dr. Reisman's exhibits and expert testimony on February 13, 1992, the State of Georgia House Education Subcommittee terminates Georgia's then mandated sex education curriculum due to its false, Kinseyan database.The educator who organized the legislative event credits Reisman's data, additionally, with the overwhelming legislative defeat of
the homosexual/sex education lobby, by a house vote of 150-1 and a Senate vote of 48-6.The legislature prohibits teaching youths illegal behavior such as sodomy, adultery, and fornication.(C. Weatherly, Education Analysis & Research Systems, June 11, 1992). WASHINGTON, D.C., 1991: Congressman William E. Danneymeyer cites Dr. Reisman's Kinsey fraud findings in a floor debate, which helped sway cancellation of a proposed $18 million dollar teen-sex survey (TIME, August 5, 1991: 27), viewed by the national sex-education monopoly as a major defeat in their efforts to modify American youth. VIRGINIA, 1986: Dr. Peter Anderson wrote:"The City Council voted 7-0 in favor of banning topless dancing ... due to Dr. Reisman's knowledge of the material and her ability to present it in such a clear and concise manner.I encourage anyone to have Dr. Reisman address either their citizens or community leaders if they need help in fighting pornography in the local community". (June 1986). MICHIGAN, circa 1980: Testimony to the Michigan State Senate Juvenile Justice Corrections, to aid decision-making on pornography harms. MISCELLANEOUS USA ILLINOIS, 1994: As an expert on "Cultural Diversity," Dr. Reisman's presentation of evidence, citing to the use of Kinsey's findings in the planned curriculum, successfully aided parents in eliminating a $600,000 mandated Diversity program in Springfield, Illinois schools. MISSOURI, 1988: Missouri Department of Corrections. A Corrections psychologist writes that a group formed to study eliminating Playboy, Penthouse, and Hustler, and all other pornography from the prison system. A call to Missouri corrections finds all pornography but Playboy banned. "Two males within the administrative structure, who reportedly saw no problem with pornography within our system, were greatly swayed in favor of its removal once they read your report...[One] often attempted to sway policy toward allowing pornography to pacify inmates. He now is a member of our committee to halt and ban incoming pornography. Yours was the only report he read." (10/26/88) COVER STORY in The National Review, MAY 19, 1997 "Mortal Sins": "The sexual revolution was based on a lie. Judith Reisman has spent thirty years uncovering the truth," by Tom Bethell [and] featured in the Reader's Digest, (4/97), "Sex, Lies and the Kinsey Report."
Comments on Dr. Reisman and her work

Dr. Reisman's scholarly findings have had international legislative and scientific import in the United States, Israel, South Africa, Canada and Australia, while The German Medical Tribune and the British medical journal, The Lancet demanded that the Kinsey Institute be investigated, saying: The Kinsey reports (one in 1948 on males and the companion five years later) claimed that sexual activity began much earlier in life.... and displayed less horror of age differences and same-sex relationships than anyone at the time imagined. It was as if, to follow Mr. Porter again, "Anything goes". In Kinsey, Sex and Fraud, Dr. Judith A. Reisman and her colleagues demolish the foundations of the two reports ... Kinsey et al ... questioned an unrepresentative proportion of prison inmates and sex offenders in a survey of "normal" sexual behavior. Presumably some at least of those offenders were also the sources of information on stimulation to orgasm in young children that can only have come from pedophiles--or so it must be hoped. Kinsey.... has left his former co-workers some explaining to do. The Lancet, (Vol. 337: March 2, 1991, p. 547). Dr. Laura J. Lederer, as Sr Advisor on Trafficking, Office for Global Affairs, U.S. Department of State: "Dr. Judith Reisman [is] one of the world's most brilliant theorists on child sexual exploitation." In the 1980s, Dr. Reisman conducted the first and largest content analysis of Playboy, Penthouse, and Hustler and exposed the child pornography images in them. She has also done groundbreaking work on Albert Kinsey, proving that [his team] performed sexual experiments on children and infants, and calling into question his entire body of work, a body of work that some claim began the so-called sexual revolution. In some ways she is the fore-mother of today's anti-trafficking work." Cmdr. Vernon J. Geberth, M.S., M.P.S. author of Sex-Related Homicide and Death Investigation: Practical and Clinical Perspectives and Practical Homicide Investigation: Tactics, Procedures, and Forensic Techniques: "Dr. Judith Reisman's book Sexual Sabotage is a bright beacon of light and truth shining through a world permeated with the smog of Kinsey generated pathological sexual behavior. Sexual Sabotage is a very well-researched book establishing how the morals and religious legacy of Judeo-Christianity were hijacked by the pseudo science of Alfred Kinsey, who spawned a sex science cult to normalize his own sexual perversions." Dr. Reisman co-authored Chapter One, "Human Sexuality and Sexual Deviance: Research and Reality" for the Second Edition of Geberth's foundational work, Sex-Related Homicide and Death Investigation. J. Robert Flores, Esq., Former Administrator, Office of Juvenile Justice and Delinquency Prevention, United States Department of Justice: "Judith Reisman has had the courage as a researcher to do the most important thing, keep an open mind and allow the data and the research
to influence and guide her work. Her work shines an important light on topics that seem to receive attention from only one direction in the academic community. Policy makers, foundations, and research institutions should carefully consider the issues she raises so that social re-engineering and personal agendas are not funded in the future and given the shine that comes from being associated with major donors, institutions, and foundations." Lt. Col. Dave Grossman, author of On Killing and On Combat: "Dr. Judith Reisman is a national treasure. Her latest book, Sexual Sabotage, strikes a blow and sounds the clarion call for a return to decency and goodness in our civilization. With important new information, and incisive writing and logic, she expands and expounds on her past work to identify the full spectrum of "a treasonous moneyed cult of sexual deviants" who led us down the path to decay and destruction. And she charts a course for us to cast off the sexual tyranny and perversion of a "closeted clan of impotent, sexual psychopaths" to return from the dark and tragic place to which we have traveled, and to regain a culture of virtue, decency and honor." Shelley Lubben, B.Th., Executive Director, Pink Cross Foundation: "Dr. Reisman's extraordinary work taught me how and why I was trafficked in prostitution and pornography, and Jesus Christ showed me the way out and how to help others find that same freedom." Connie Valentine, M.S., Policy Director, California Protective Parents Association: "As Scientific Advisor for California Protective Parents Association, the presentation of Dr. Judith Reisman's Kinsey and Playboy research has enabled CPPA to win hearts, minds and votes in legislative and family court battles. The historical data in Sexual Sabotage tracking down our current pedophile, child pornography, and child sex trafficking pandemic should be known by all; in academe, law enforcement, legislators and the general public. We at the CPPA expect that Sexual Sabotage will be the impetus for a federal investigation of the Kinsey crimes." Donna M. Hughes, PhD, Professor, University of Rhode Island: "Judith Reisman is the most fearless scholar I know. For decades, she has relentlessly researched the history of research and ideas on sexuality. She has documented the unsavory political motivations behind the most respected academics of their time. Her scholarship shows us the root of much of the sexual violence and sex trafficking we see today." MOVIEGUIDE Founder, Ted Baehr, Esq., PhD.: "Whatever you do, please read everything Judith Reisman, PhD writes. She offers the diagnosis and the cure to the rampant sexual illness that is consuming our culture. She has exposed the vile source of the cultural disease and in doing so has set forth the remedy. There is no one more important to read. Her new book Sexual Sabotage is highly recommended." Matthew Barber, Associate Dean for the Center for Career and Professional Development at Liberty University School of Law: "Dr. Reisman has been a lifelong champion for women
and children. She has done more to expose the crimes and frauds perpetuated by Alfred Kinsey than anyone else. She is to be commended for her life's work." Bruce A. Taylor, President & Chief Counsel, National Law Center for Children and Families: "We should probably call her Detective Reisman for finding the hidden clue to Kinsey's crimes against children and families. She alone noticed that babies were molested in the name of Kinsey's macabre science and her book is the victims' grand jury indictment of perhaps the most destructive sexual revolutionary since Caligula. Kinsey, Crimes & Consequences is a blueprint for justice for victims of sexual exploitation and abuse. In the face of Kinsey's handbook for perpetrators, Dr. Reisman is the victims' amicus curiae." (April, 2000) John L. Harmer, ESQ, Former California GOP Whip and Lieutenant Governor under Ronald Reagan: "There is no one in the entire world, let alone the United States, better qualified to present this essential message than Dr. Judith Reisman. If this book does not awaken the people of America to the reality that this is an issue of national survival, then our fate will be terrible. I appeal to all who are concerned for the safety of their family, their community, and their nation to not just read this book, but to study this book." Tim Tate, Amnesty International Award-winning Producer-Director of "Kinsey's Paedophiles," Yorkshire TV, Great Britain: "When I first came across Judith Reisman's work my view of Alfred Kinsey was unquestioningly benign... In the course of producing my documentary - 'Kinsey's Paedophiles' - it became clear that every substantive allegation Reisman made was not only true but thoroughly sourced with documentary evidence - despite the Kinsey Institute's reluctance to open its files. My film built on the foundations laid by Dr. Reisman. Those foundations - and the additional evidence we uncovered about Kinsey's involvement with paedophiles who were actively abusing children - make it imperative that his successors at the Kinsey Institute today allow a rigorous and independent investigation of this dark corner of human study." (April, 2000) Robert Sweet, former U.S. Depart. of Juvenile Justice and Delinquency Prevention Administrator: "Dr. Reisman is a scientist of outstanding exactitude and courage...the massive, affluent sex industry [has been unable] to show her findings to be incorrect or methodologically flawed--in even the smallest detail" (August 25, 1994) Bill Moyers, CBS News: "Dear Professor Reisman: Having read your article in the Washington Post, I wanted to say that I, for one, believe your research project to be quite important. Our society faces no more important dilemma, in fact, and I say this as a father, journalist and citizen. In my role as a journalist, however, I would like to.... explore how your conclusions can be reported on the air in a responsible way" (June 19, 1985) Hon. Dr. Marlene Goldsmith, M.L.C. Legislative Council, Australia: "Thank you for your powerful presentation on Tuesday. There were at least seven Members of Parliament present,
and I have had very favorable responses from most of them.... For those of us fighting this battle in the trenches, your visit has been an inspiration. Thank you for all you are doing to make the world a safer place for its children" (November 16, 1992) The Hon. Dennis Stevenson MLA, Australia: "[Thanks].... in Canberra during your recent Australian tour.... for the in-depth briefing that you gave Parliamentarians.... [and] your presentation to the National Press Club Luncheon.... Parliamentarians.... were surprised to learn that Kinsey's findings have misled many legislators.... [as so much about] human sexuality in the western world derives from Kinsey" (December 11, 1992) John Rabun, Deputy Director, Nat. Center for Missing & Exploited Children: Reisman's "study must be read by all those concerned with the ways pornography and violence in the media affect the incidence of child sexual exploitation and abuse" (3/24/88). Dr. Laura Schlessinger: "Dr. Reisman has produced a scholarly and devastating study revealing the ugly and frighteningly dangerous pseudo-scientific assault on our children's innocence." (2003) Susan Trento, Investigative Reporter, Author of The Power House: exposed Playboy's buying of legislative influence in Washington D.C. to discredit Reisman, whose cataloging of "children, crime and violence in pictures and cartoons found in Playboy, Penthouse, and Hustler...made the publishers of these and other magazines very nervous" (1992:194) The LA Times: Reisman, "delivers a potentially damaging blow...comparing] two [Mapplethorpe] photographs...to child pornography and [saying] none are fit to hang in an art museum." (10/5/90) In 1991, Playboy, (whispering counsel to the Mapplethorpe defense) reported: "I would have taken a .357 Magnum, walked up to her and said, 'Judith, you're history'" (2/91). Hugh Hefner pens a "letter to the editor" in Canada, 1996, to condemn Reisman's work. Playboy: "Reisman...is lying with statistics...Playboy never has, never will" sexualize children. (12/85). She "puts men's magazines on the endangered species list," (10/88)...is "propagating a new witch-hunt mentality." (2/89) Tim Philpot, Lawyer/Kentucky Congressman: "We retained the services of Judith Reisman as an expert witness on the issue of the health, welfare and safety of the four minor children.... Dr. Reisman's testimony was extremely helpful.... on the behavioral issues relating to the potential abuse of the children by either the father or his friends" (September 5, 1996) Pamela Hobbs: "My father, Dr. A. H. Hobbs.... believed your research was excellent." -University of Pennsylvania sociologist and philosopher, Dr. Albert Hobbs, provided the scholarship that led the Rockefeller Foundation to abandon Kinsey's grant funds, instead funding the American Law Institute to implement Kinsey's fraudulent sex data into The Model Penal Code in order to eliminate or reduce most sex crime penalties. (September 25, 1994)
Law Enforcement Training Conference on Child Sexual Exploitation and Obscenity, Memphis, Tennessee, on Dr. Reisman as Guest speaker particularly enjoyed the views of Dr. Judith Reisman and wished she had been able to spend more time with us. Her comments were right on target ... This seminar changed my total outlook/viewpoint on these type cases. Dr. Reisman could start a revolution. She's great ... I would have liked to have heard her speak more. She turned some lights on in my mind. (10/4-5, 1993) Jerre Thompson, President of Southland 7-11 Corp., Letter to the Attorney General's Commission on Pornography: [It] became apparent to us--especially from the generally unrebutted testimony before your Commission-- that respected experts who have studied this issue very carefully are of the opinion that apparently a very small segment of our society employs various tools, including adult magazines, to assist in abuses of children and others. This was strongly pointed out in Judith Reisman's report before the Commission at its [Miami, Florida] hearing on child pornography. (April 10, 1986) Sam Houston State University Criminal Justice Center, Texas, announced: "Local Professional Named to Missing Children-Serial Murderer Task Force: Judith A. Reisman, Professor at American University in Washington, D.C., has been named to a National task force (funded by two agencies of the U.S. Department of Justice), given the job of developing the master plan for a nationwide system to trace missing or abducted children and adults, serial murderers and conduct research.... the other (session is) at the FBI Academy, Quantico." (August 15, 1983)
Dr. Reismans White Papers

Backgrounder on Marketing of American Sex Reeducation By Judith Gelernter Reisman, Ph.D. and Margaret Bocek October 1989 The US Catholic Church's Ruinous Reliance on Discredited "Sex Science" Reliance of the U.S. Catholic Church on the Discredited Field of "Human Sexuality" and on Sexology Advisors Whose "Scientific" and Moral Foundation Deviates Radically From That of the Church By Judith A. Reisman, PhD Institute for Media Education, 2002 Child pornographer, Larry Flynt, et al: a clear and present danger to children By Judith Reisman October 31, 2010 History & Science: Erototoxic Images Drive Sex Trafficking Demand By Judith Reisman October 3, 2010 Sex Abused: Kinsey's Lies Shaped American Law, So Now What? By Judith Reisman Salvo Magazine, Issue 12, Spring 2010 The Briefing Book Partner solicitation language as a reflection of male sexual orientation By Judith A. Reisman, Ph.D. & Charles B. Johnson, Ph.D. The Institute for Media Education Sexual Exploitation by Health Professionals in Cartoons of a [Playboy] Popular Magazine By Judith A. Reisman, Deborah F. Reisman, and Barry S. Elman Sexual Exploitation of Patients by Health Professionals Edited by Ann W. Burgess, R.N., D.N.Sc., and Carol R. Hartman, R.N., D.N.Sc. Beverly LaHaye Responds to Answers from Dr. John Bancroft, Director of the Kinsey Institute January 26, 1998 Research Summary on Effects of Violent Videos on Children and Effects of Consensual Intercourse on Children By Judith Reisman January 1990 Secondary Negative Effects on Employees of the Pornographic Industry Lubben and Reisman March 6, 2010 THE SCIENTIST AS CONTRIBUTING AGENT TO CHILD SEXUAL ABUSE A PRELIMINARY CONSIDERATION OF POSSIBLE ETHICS VIOLATIONS
Paper presented to the 5th World Congress of Sexology Jerusalem, Israel By Judith Reisman June 1981 Hello Bunny!: Playboy Utilizes Spencer's Gifts & Kiddie Designs at Your Local Shopping Mall By Judith Reisman Salvo Magazine, Issue 11, Winter 2009 Restoring Legal Protections for Women And Children: A Historical Analysis of The States Criminal Codes Reisman and Jeffrey The State Factor April 2004 Playboy Enterprises Executives Groom1 Youth for Playboy/Pornography Lifestyle Addiction, Men for Child Sexual Abuse, Fathers for Incest By Judith Reisman October 22, 2009 AMERICA'S CHILDREN: KEY NATIONAL INDICATORS OF WELL-BEING, 2003, FLAWED METHODOLOGYAND BAD DATA MISEDUCATING POLITY AND PUBLIC POLICY ON THE STATE OF WELL-BEING OF AMERICAN CHILDREN By Judith Reisman October 22, 2009 Kinsey Consequences: Its Rotten Research-ers By Judith Reisman October 20, 2009 GATT and the Flesh Trade By Judith A. Reisman, PhD Circa 1994 Picture Poison Viewing Pornography for a Living Can Be Deadly Salvo, Autumn 2009 Issue 10 By Judith Reisman Pornography: A Sociobiological Attempt at Understanding By Joseph Shepher, Neuropsychiatric Institute, University of California, Los Angeles and Judith Reisman, The American University, Washington, D.C. Ethology and Sociobiology Vol. 6, Issue 2, Pages 103-114, 1985 Freedom of Speech as Mythology
"Quill Pen and Parchment Thinking" in an Electronic Environment By Judith Reisman New York University, Review of Law and Social Change, Volume VIII, Number 2, Pages 271279, 1978-1979 Kinseys Sex in the Pulpit By Judith Reisman Worldview Times April 1, 2009 WHY WAS THE 1983 MISSING CHILDREN, SERIAL MURDER TASK FORCE FBI/DOJ/PORNOGRAPHY LINKAGE PROGRAM SPIKED? By Judith Reisman January 26, 2009 The Hidden Source of the Sexual Abuse Scandal or When Wolves Train the Shepherds . . . By Judith Reisman Social Justice Review February 17, 2009 The Al Franken Interview In Playboy, January 2004 A preliminary draft analysis By Judith Reisman The Institute for Media Education California Protective Parents Association February 4, 2009 Images of Children, Crime and Violence in Playboy, Penthouse, and Hustler - Summary By Judith Reisman drjudithreisman.com February 4, 2009 California Cripples Womens Childrens and Family Rights Science Based Law Reform 1923 - 2000 The Kinsey Reports: 1948 to Today A Work in Progress J.A. REISMAN, PH.D. THE INSTITUTE FOR MEDIA EDUCATION & L.L. Jeffrey, Ed.d 2002 OJJDP Flawed Decline in Child Sexual Abuse By Judith Reisman July 29, 2006 STD Vaccinations Aid Global Child Sex Traffic?
Does Mandating Pediatric Hep B [and HPV] Vaccinations Aid The Global Child Sex Traffic? By Judith Reisman July 10, 2006 Utah Prosecutors Sex Crimes Investigators Speech Where Have We Been? Where Are We Going? The Kinsey Reports, Sex Experts, Pornography & Law Speech Presented by Judith A. Reisman, Ph.D., To Utah Council for Crime Prevention Prosecutors Sex Crimes Investigators & Detectives November 2, 2005 PARTNER SOLICITATION LANGUAGE as a Reflection of Male Sexual Orientation Judith A. Reisman, Ph.D. & Charles B. Johnson, Ph.D. The Institute for Media Education July 27, 1995 "KINSEY'S PAEDOPHILES" EXCERPTS FROM YORKSHIRE TELEVISION TRANSCRIPT OF INTERVIEW WITH DR CLARENCE TRIPP (May 5, 6, 1998) By Judith Reisman THE REISMAN & JOHNSON REPORT Excerpts Applied To I: HOMOSEXUAL MARRIAGE & II: HOMOSEXUAL HATE CRIMES By Judith Reisman The Institute for Media Education August 1999 CALIFORNIA COMMITTEE HEARING RE: AB 1785 (Villaraigosa) TATE BOARD OF EDUCATION "HATE CRIME" LEGISLATION By Judith Reisman August 2000 HOW JUNK SCIENCE ABOLISHED LEGAL PROTECTIONS FOR WOMEN, CHILDREN & THE FAMILY The Kinsey Reports: Crimes & Consequences 1948-Today Speech By Judith Reisman October 13, 2001 How the FBI and DOJ Minimize Child Sexual Abuse Reporting
by Judith A. Reisman, Ph.D. The Institute for Media Education July 2002 CRAFTING BI/HOMOSEXUAL YOUTH By Judith Reisman Regent University Law Review Volume 14: 283 A PANSEXUAL WORLDVIEW DOMINATES THE RECENT CHILD " WELL -BEING 2003" REPORT By Judith Reisman
Articles by Judith Reisman

Military sodomite abuse: The untold story: Judith Reisman estimates true number of males sexually assaulted yearly By Judith A. Reisman, Ph.D., and Thomas R. Hampson WorldNetDaily and WatchdogWire, May 15, 2013 How the 'gay' child-sex-abuse cover-up kills young men: Judith Reisman reviews science that contravenes 'born that way' canard By Judith Reisman WorldNetDaily, May 5, 2013 Groomed for Sodomy: What's Taught to Young Students Today Used to Be Illegal By Judith Reisman Salvo Magazine, Issue 24, Spring 2013 Sexually Transmitted Insanity: How Our Public Schools Came to Promote a Social Disease By Judith Reisman Salvo Magazine, Issue 23, Winter 2012 Minor Attractions: Pedophiles Johns Hopkins By Judith Reisman Salvo Magazine, Issue 22, Autumn 2012 It's Academic: Kinsey's Love Affair with Pedophilia Three Generations Later By Judith Reisman Salvo Magazine, Issue 20, Spring 2012 Coming Attractions: Is Pedophilia the Next Sexual Perversion to Become Normalized? By Judith Reisman Salvo Magazine, Issue 19, Winter 2011 'Gay' gypsy moths and porn addiction: Exclusive: Judith Reisman covers latest science on pheromones, mating confusion By Judith Reisman WorldNetDaily, April 15, 2013
Penn State's ironic 'child sex abuse' conference: Exclusive: Judith Reisman counters 'sexperts' who claim number of assaults are waning By Judith Reisman WorldNetDaily, November 16, 2012 Obama's injustice department: Judith Reisman drubs Arlen Specter for OK'ing porn attorney David Ogden By Judith Reisman WorldNetDaily, February 28, 2009 Sexual Anarchy: The Kinsey Legacy By Judith A. Reisman, Ph.D. and Mary E. McAlister, Esq. AFA of Pennsylvania, August 24, 2011 They're mainstreaming pedophilia: Judith Reisman attends confab pushing orientation 'Minor-Attracted Persons' By Judith Reisman WorldNetDaily, August 22, 2011 One Nation Under Drugs: How California & the Rest of Us Can Become More Like Yemen By Judith Reisman Salvo Magazine, Issue 17, Summer 2011 MARIA AINT MARIA, DITTO AUNT LUCIA: "Maria's" a Big Pharma and predator shill. By Judith A. Reisman, PhD NewsWithViews.com, May 16, 2011 Tales from the Closet: A New Book Celebrates Another Sexual Outlaw & Kinsey Collaborator By Judith Reisman Salvo Magazine, Issue 16, Spring 2011 Restructuring the Immature Brain By Judith Reisman The Institute for Media Education & California Protective Parents Association (DRAFT 2008) Classroom prostitution for fun and profit? By Judith Reisman WorldNetDaily, March 12, 2011 Prosecute 'Planned Promiscuity'!: Exclusive: Judith Reisman wants legal action taken for crimes against children By Judith Reisman WorldNetDaily, March 05, 2011 Institutions and underworld academics By Judith A. Reisman, Ph.D. WorldNetDaily, March 5, 1999 Anthropological Tourists: Mead & the Young Sex Mavens By Judith Reisman Salvo Magazine, Issue 15, Winter 2010
'Homosexists': Exclusive: Judith Reisman explains definition of newly coined term By Judith Reisman WorldNetDaily, November 5, 2010 Take 'pride' in a death sentence? Exclusive: Judith Reisman challenges Obama for urging teens to embrace homosexism By Judith Reisman WorldNetDaily, October 27, 2010 Big Porno and California's pot prop Exclusive: Judith Reisman shows link between Playboy, children, glorification of drugs By Judith Reisman WorldNetDaily, October 21, 2010 Kinsey minions continue child sex abuse Exclusive: Judith Reisman exposes horrific 'scientific' studies of kids' sexuality By Judith Reisman WorldNetDaily, October 10, 2010 Sex Abused: Kinsey's Lies Shaped American Law, So Now What? By Judith Reisman Salvo Magazine, Issue 12, Spring 2010 Picture Poison: Viewing Pornography for a Living Can Be Deadly By Judith Reisman Salvo Magazine, Issue 10, Autumn 2009 Rape Rates: Kinsey's Junk Science & Other Unreported Sex Crimes By Judith Reisman Salvo Magazine, Issue 8, Spring 2009 The Meddle of Dishonor: Why Isn't Congress Hysterical About Adult Porn & Kids? By Judith Reisman Salvo Magazine, Issue 9, Summer 2009 Sextracurricular Activity: How Sexology Became an "Academic" Field and the Evil It Has Wrought By Judith Reisman Salvo Magazine, Issue 6, Autumn 2008 Two Teens v. Society: A Suit on Behalf of All Teens Accused of "Sexting" (A Modern Fable) By Judith Reisman Salvo Magazine, Issue 14, Autumn 2010 Muslim female slavery and porn in Baghdad Exclusive: Judith Reisman spotlights how rise of smut further degrades Arab women Sodomy Decision Based On Fraudulent 'Science' By Judith Reisman Human Events Online
August 13, 2010 Massachusetts Schools are Giving First Grade Children Condoms, Why Exactly? By Judith Reisman, PhD (source: News Blaze) July 27, 2010 The Pedophile Call for "A Child's Sexual Bill of Rights" By Judith Reisman July 25, 2010 Sexual Exploitation by Health Professionals in Cartoons of a [Playboy] Popular Magazine Judith A. Reisman, Deborah F. Reisman, and Barry S. Elman Sexual Exploitation of Patients by Health Professionals Edited by Ann W. Burgess, R.N., D.N.Sc., and Carol R. Hartman, R.N., D.N.Sc. Great Escapes: Resistance Is Not Futile..., The Story of Shelley Lubben, Former Porn Star By Judith Reisman Salvo Magazine, Issue 12, Spring 2010 MEMO ON IASHS CERTIFICATION FOREROTIC MASSEUSE SERVICES IN SANFRANCISCO Judith A Reisman, PhD, Former Principal Investigator, Images of Children, Crime & Violence in Playboy, Penthouse and Hustler, 1989, US Dpt of Justice, Juvenile Justice and Delinquency Pornography, Rape & Murder Sample How the FBI and DOJ Minimize Child Sex Abuse Reporting Addendum Judith Reisman, Ph.D. The Institute for Media Education British sex and the modern-day 'slave trade' Exclusive: Judith Reisman notes irony of new U.K. rule restricting 'escort' ads World Net Daily February 23, 2010 Hello Bunny!: Playboy Utilizes Spencer's Gifts & Kiddie Designs at Your Local Shopping Mall By Judith Reisman Salvo Magazine, Issue 11, Winter 2009 Openly Gay Australian High Court Judge Thanks Kinsey Judith Reisman Picture Poison: Viewing Pornography for a Living Can Be Deadly By Judith Reisman Salvo Magazine, Issue 10 Autumn 2009 Kinsey Consequences: Its Rotten Research-ers By Judith Reisman
GATT and the Flesh Trade By Judith A. Reisman, PhD Circa 1994 FRENCH PEDOPHILELEADERSHIP By Dr. Judith Reisman October 12, 2009 NewsWithViews.com Playboy targets kids by stripping Marge Simpson By Judith Reisman World Net Daily Posted: October 14, 2009 She Could Have Died, Roman by Judith Reisman Human Events 10/05/2009 DEMAND THE ARREST OF KEVIN JENNINGS By Dr. Judith Reisman October 3, 2009 NewsWithViews.com Kinsey's Sex in the Pulpit By Judith Reisman World Net Daily April 1, 2009 MATTERS OF LIFE AND DEATH: Bad science vs.beautiful babies By Judith Reisman World Net Daily September 22, 2008 Are Campus Pornography Courses Sexual Abuse? By Judith Reisman Human Events June 1, 2003 The Importance of the Child Online Protection Act By Judith Reisman Human Events February 5, 2004 Exposing Pornography's Addictive, Destructive Effects Let's Permanently Enforce President Bush's Proclamation By Judith Reisman Human Events December 16, 2003
From Greatest Generation to Porn Generation By Judith Reisman Human Events June 27, 2005 Needed: Strong Fathers Who Will Be Their Daughter's Guides By Judith Reisman Human Events October 10, 2006 Playboys Historical Hate Rape By Judith Reisman Human Events June 24, 2009 Federal fraud: Porn addicts at NSF By Judith Reisman World Net Daily October 02, 2009 'Free love' '60s? Not quite By Judith Reisman World Net Daily September 04, 2009 T.V. Broadcast on School Violence California Capitolweek #527 3/17/01 School Violence September 22, 2009 Any real men left in Britain? By Judith Reisman World Net Daily July 18, 2009 What sexual 'freedom' has wrought By Judith Reisman World Net Daily May 15, 2009 "The first High Court [Australian] judge to declare his homosexuality, has paid emotional tribute to Alfred Kinsey" By Judith Reisman Renew America May 15, 2009 GLSEN and the Hitler Youth
By Judith Reisman World Net Daily April 1, 2009 Obama's porn lawyer a national security risk By Judith Reisman World Net Daily February 20, 2009 The Kinsey/Planned Parenthood/big pornography morality heist By Judith Reisman Renew America February 20, 2009 Kinsey's Hollywood: Women who bathe naked with boys By Judith Reisman World Net Daily February 7, 2009 A FEW DOCUMENTS OF OUR 1983 ABORTED FBI/DOJ/PORNOGRAPHY LINKAGE PROGRAM: THE MISSING CHILDREN, SERIAL MURDER TASK FORCE By Judith Reisman January 26, 2009 California Cripples Womens Childrens and Family Rights Science Based Law Reform 1923 - 2000 The Kinsey Reports: 1948 to Today A Work in Progress Judith REISMAN THE INSTITUTE FOR MEDIA EDUCATION & L.L. Jeffrey, Ed.d RSVP America The impotence pandemic By Judith Reisman WorldNetDaily September 27, 2007 The tragedy of freeing sex offenders By Judith Reisman WorldNetDaily September 15, 2007
Reducing rape with an eraser By Judith Reisman Reisman Articles September 12, 2006
STD Vaccinations Aid Global Child Sex Traffic?: Does Mandating Pediatric Hep B [and HPV] Vaccinations Aid The Global Child Sex Traffic? By Judith Reisman Social Justice Review July 10, 2006 FBI complies with law - 15 years late By Judith Reisman World Net Daily March 27, 2006 Your local SOB sex traffic By Judith Reisman World Net Daily January 13, 2006 "Pornography" TV's New Taboo Word By Judith Reisman World Net Daily December 15, 2005 Pornographers bring funds to Republicans By Judith Reisman World Net Daily May 27, 2005 Kinsey film lies, defames World War II Americans By Judith Reisman World Net Daily February 11, 2005 Federal Panel Ignores Sex Abuse: 20-agency annual report on the well-being of children has been manipulated by the "researchers" who created it so that traditional families and values are undermined. By Judith Reisman The New American December 27, 2004 Frank Rich's plot against America By Judith Reisman World Net Daily December 16, 2004 Liberally ignorant By Judith Reisman World Net Daily December 1, 2004 Promoting Kinsey, Censoring Grandma By Judith Reisman
The Right Perspective November 1, 2004 Mothers & Sons: Christian Sex Educators Praising Kinseys Pedophiles? By Judith Reisman Reisman Articles June 15, 2004 The Importance of the Child Online Protection Act By Judith Reisman Human Events February 5, 2004 Sex Science--Who Profits? By Judith Reisman Reisman Articles December 31, 2003 "Safe Child" School Programs Pose Dangers: A RICO Suit In The Making... By Judith Reisman The Wanderer December 18, 2003 Congress Should Probe and Defund the Kinseyites By Judith Reisman Human Events October 21, 2003 The Dubious Origins of Gay Studies By Judith Reisman Human Events September 3, 2003 Sodomy Decision Based On Fraudulent Science By Judith Reisman Human Events August 19, 2003 Lawmakers Should Defund Crank University Programs By Judith Reisman Reisman Articles July 23, 2003 Kinsey's kooky shrinks By Judith Reisman World Net Daily July 14, 2003 Beatifying the Kinsey Institute By Judith Reisman World Net Daily
April 11, 2003 The Kinsey-Polanski story By Judith Reisman World Net Daily January 31, 2003 Child atrocities in the Church By Judith Reisman World Net Daily January 10, 2003 'Kapo' Polanski's Holocaust profits By Judith Reisman World Net Daily January 10, 2003 Kinsey: Porn star By Judith Reisman World Net Daily October 26, 2002 Liberal hate speech By Judith Reisman World Net Daily October 25, 2002 Strange bedfellows By Judith Reisman The Washington Times August 21, 2002 Stimulating images, damaged minds By Judith Reisman World Net Daily June 8, 2002 Israel and the Telethon By Judith Reisman World Net Daily September 28, 2001 The hazardous condom By Judith Reisman World Net Daily September 4, 2001 Raped in class By Judith Reisman World Net Daily August 17, 2001
Land of the rising porn By Judith Reisman World Net Daily July 18, 2001 Satcher's 'Call Girl to Action' By Judith Reisman World Net Daily July 4, 2001 NEA goose steps into Johnny's bedroom By Judith Reisman World Net Daily June 5, 2001 Ignoring child victims, part II By Judith Reisman World Net Daily March 27, 2001 FBI reduces violence by ignoring child victims By Judith Reisman World Net Daily March 26, 2001 Taking the ABA off-screen By Judith Reisman World Net Daily March 22, 2001 Dr. Laura vs. the bullies By Judith Reisman World Net Daily December 20, 2000 Cracking the 'chicken' code By Judith Reisman World Net Daily November 17, 2000 254 'boy words' By Judith Reisman World Net Daily November 14, 2000 Playing 'The Pedophile Professor' By Judith Reisman World Net Daily October 25, 2000
Kaiser Foundation's sexual propaganda By Judith Reisman World Net Daily October 14, 2000 Big Porn: A Dem's best friend By Judith Reisman World Net Daily August 15, 2000 Relying on morality By Judith Reisman World Net Daily June 26, 2000 The darker data By Judith Reisman World Net Daily June 3, 2000
California legislature goes sane! By Judith Reisman World Net Daily April 8, 2000 The NYT hustles for Roman Polanski By Judith Reisman World Net Daily February 11, 2000 Murdoch muck and kinky Kinsey By Judith Reisman World Net Daily January 17, 2000 Boys who have never fired a gun By Judith Reisman World Net Daily December 15, 1999 Porno, part of a well-rounded education By Judith Reisman World Net Daily September 10, 1999 Bush on the 'rubber chicken circuit' By Judith Reisman World Net Daily
June 17, 1999 APA pedophilia on the march By Judith Reisman World Net Daily June 1, 1999 Toxic media breeds toxic kids By Judith Reisman World Net Daily April 26, 1999 Child custody for sex offenders By Judith Reisman World Net Daily April 20, 1999 The APAs: 'Academic Pedophile Advocates' By Judith Reisman World Net Daily March 26, 1999 Who does 'child-protective services' protect? By Judith Reisman World Net Daily March 23, 1999 Media-initiated killers? By Judith Reisman World Net Daily March 17, 1999 Child abuse and child custody By Judith Reisman World Net Daily March 9, 1999 Institutions and underworld academics By Judith Reisman World Net Daily March 5, 1999 Hepatitis B Vaccination of Infants And Children: A GOVERNMENT MANDATED "PEDOPHILE" HEALTH PROGRAM? By Judith Reisman The Institute for Media Education March 1, 1999 Sex revolution triggers national impotence By Judith Reisman World Net Daily
February 12, 1999 Have you ever really seen Hustler? By Judith Reisman World Net Daily January 13, 1999 Community standards and the Clinton scandal By Judith Reisman World Net Daily January 13, 1999
EXHIBIT B
AMERICAN LEGISLATIVE EXCHANGE COUNCIL
Jeffersonian Principles in Action
Restoring Legal Protections for Women And Children: A Historical Analysis of The States Criminal Codes
By Dr. Linda Jeffrey Introduction It is my pleasure as former National Chair of ALEC, to introduce this State Factor, Restoring Legal Protections for Women and Children: A Historical Analysis of the States Criminal Codes, proposed during my chairmanship and then approved December 11, 2003 for publication by the ALEC Education Task Force. The Education Subcommittee on Junk Science in the Classroom, ably chaired by Kansas Senator Kay OConnor, commissioned this research because of widespread use of junk science misdirecting legislatures, courts and education. The evidence presented in this State Factor reveals compelling evidence of illegal and criminal acts masquerading as science taken from Kinseys confessions in his own Reports (1948-1953). Dr. Alfred Kinsey was a sexual revolutionary and his Kinsey Reports are junk science. Professor of Constitutional law Dr. Charles Rice of Notre Dame concluded that Alfred Kinseys research was: contrived, ideologically driven and misleading. Any judge, legislator or other public official who gives credence to that research is guilty of malpractice and dereliction of duty. Since World War II Kinseys fraudulent data informed and directed the American Law Institutes Model Penal Code in eliminating and weakening 52 sex laws that once protected marriage. If indeed, as Justice Brandeis once said, law points the way, the changes to public policies and law naturally followed
The State FactorRestoring Legal Protections for Women and Children
April 2004 the Kinsey junk science sexuality model. The ALIs penal law reforms recommended to legislators and lawyers were largely adopted between 1960 1980 and permitted Kinseys abnormal sexual conduct to be taught to American children via sex education. Since then public health costs from sexual disease and dysfunction have skyrocketed indeed all measures of socio sexual disorder have soared from the 1960s, when protective laws began to be weakened and/or eliminated. As Kinsey intended, contemplated in the current debate are calls for discrimination laws to protect the full range of sexual activities including transvestitism, transgenderism, polygamy, bestiality and the like and, in education, whether to teach our children all alternate sexual acts as normal - or to teach Chastity and Abstinence until marriage. This State Factor is a valuable reference and resource for your work in government, because it provides you with history and current information of the utmost importance for any informed understanding of many public issues crucial to the protection of Americas families and young people. Understanding how junk sex science has deformed our thinking and laws is vital as legislators point the way. Restoration of reliable and honest standards in our state laws will ensure more healthful and economically sound outcomes for generations to come. Only if enough legislators call attention to Kinseys questionable findings, can we start to reverse the misguided assault on American law and way of life through investigation, inquiries
April 2004
and repeal of laws and public policies based on junk science. - California State Senator Ray Haynes SUMMARY AND PURPOSE OF PAPER This paper presents the first-hand account of history from participants and scholars since 1948 of how junk science was introduced into public policies and state law, and suggests the need for serious and official review, recall, and elimination of all scientific fraud from public policies including education and state law. The junk science adopted by most state legislatures was based on Indiana Universitys Kinsey Reports (1948,1953). The study presents a history and review of changes in public education, philosophy and program goals since 1950, and the concurrent comprehensive science-based criminal law reform known as the American Law Institute's (ALI's) Model Penal Code (MPC). This will inform public officials and state lawmakers about how many radical changes were made without informed consent, and as a result, specific protections were lost for American women and children based on widespread legislative and judicial reliance upon the Kinsey Reports and the Model Penal Code. Evidence to make this case comes from the most compelling comments and admissions made by Kinsey himself and from those directly associated with the research and its use. THE JUNK SEX SCIENCE
Alfred Kinsey was a moral revolutionary in scientists clothing. The science was bad, even bogus; the man himself may now be forgotten; but the revolution came to stay, with a vengeance. Kinseys message fornicate early, fornicate often, fornicate in every possible waybecame the mantra of a sex-ridden age, our age, now desperate for a reformation of its own.1 Most professionals, public officials, and Americans are unaware that the Sexual Revolution of the 1960s was ignited by publication of Sexual Behavior in the Human Male that appeared in January 1948 and Sexual Behavior in the Human Female that followed in August 1953.
Each volume received extraordinary media coverage. The media coverage was coordinated with Dr. Kinsey and Kinsey-approved articles began appearing across the country prior to the January 5, 1948 public release of the first Male Report. The Kinsey Reports were meant to cause change according to Kinsey Institute author John Gagnon.2 In 1997, sympathetic Kinsey biographer James Jones revealed that Kinseys mission was to end the sexual repression of our English-American common law traditions.3 In fact, Kinseys methodology for changing societys sexual life was modeled after his studies of gall wasps. Kinsey said: The techniques of this research [were] born out of the senior authors longtime experience with a problem in insect taxonomy. The transfer from insect [gall wasps] to human material is not illogical, and could be applied to any population (Male volume, p. 9). Americas trusted public institutions and professions adopted The Kinsey Reports radical findings, which included the stunning conclusion that 95% of normal American men, many World War II veterans of the greatest generation, would be classified as sex offenders under the 1948 common law state criminal codes.4 Alfred Kinsey and his Indiana University colleagues considered state laws protecting Persons and Morality unenforceable and campaigned for science-based legal reform to keep up with Mans evolution. Dr. Judith Reismans research into the scientific basis of Indiana Universitys Kinsey Reports, has dispositively revealed, from the Kinsey authors themselves, the Kinsey data are fraudulent.5 The internationally respected British Medical Journal, The Lancet, reviewed Dr. Reismans first book, Kinsey, Sex and Fraud (1990) recognizing: Dr. Judith A. Reisman and her colleagues demolish the foundations of the two reportsThe important allegations from the scientific viewpoint are imperfections in the sample and unethical, possibly criminal, observations on childrenThe book goes beyond that, however, for Kinsey, et. al, questioned an unrepresentative proportion of prison inmates and sex offenders in a survey of normal sexual behaviourKinsey, an
2 The State FactorRestoring Legal Protections for Women and Children
April 2004 1129 20th Street, NW, Suite 500 * Washington, DC 20036 *phone: 202-466-3800 * fax: 202-466-3801 * www.ALEC.org
otherwise harmless student of the gall wasp, has left his former co-workers some explaining to do.6 For 50 years the exalted and widely accepted validity of The Kinsey Reports derived primarily from the large sample claimed, possibly 18,000 subjects. However, Kinsey very unscientifically gleaned only a quarter of the cases in his two reports, without notice.7 Female volume co-author and former Kinsey Institute Director Paul Gebhard reported: In the early stages of the research, when much interviewing was being done at Indiana correctional institutions, Dr. Kinsey did not view the inmates as a discrete group that should be differentiated from people outside; instead, he looked upon the institutions as reservoirs of potential interviewees, literally captive subjects. This viewpoint resulted in there being no differentiation in our 1948 volume between persons with and without prison experience Kinsey never [kept] a record of refusal rates--the proportion of those who were asked for in interview but who refused.8 Kinsey hagiographer Jonathan Gathorne-Hardy revealed that Kinsey never hired a statistician. Frank Edmondson, a young astronomer who had had some rather superficial statistical training was Kinsey's statistician. Said Edmondson, Kinsey 'wasn't a mathematician,' in fact Kinsey often got muddled between mean (average) and median, elementary statistical concepts.9 Male volume coauthor Clyde Martin was no scholar, but served as a statistician without such knowledge.10 Dr. Alan Gregg, director of the Medical Science Division, the Rockefeller Foundation funded Kinseys research. Rockefellers Science Director, Warren Weave, recorded Greggs concerns regarding serious flaws in Kinseys published data on May 7, 1951: [T]here has never been, in this group, any trained mathematical statistician who comes within gunshot of having the competence, training, and experience which are required. In Dr. Kinseys own listing of his staff (Progress Report, April 1, 1950) he says that Mr. Clyde E. Martin continues in charge of the statistical handling our data (sic). His scientific stature has not as yet caused him even to be listed in American Men of
Science, the latest 11.5 contains about 50,000 names. Dr. Kinsey must approve highly of him, for in 1951, he raised his salary by 36 per cent. In his own diary record of a visit to Kinsey in July 1950, Dr. Gregg said, under the heading of personnel: Past and present needs remain unsatisfied in point of... statistics. This fault - this admittedly absolutely basic fault - existed in the project in 1942, it has existed ever since, there is no promise whatsoever that it will cease to exist - and we do nothing about it.11 Within months after the Male Volume was published, Dr. Kinsey was invited to testify before a judicial committee of the California legislature, regarding problems with existing sex offense law. First, he claimed that his decade of research reflected normal sexuality to be found in the entire American male population: [Our research] has the advantage of having a background of the picture typical in the population as a whole12 After Kinseys death and in 1979, Kinsey coauthor and Kinsey Institute Director Paul Gebhard undertook to clean up the data, but by that time most state penal code revisions were concluding. Gebhard revealed that of the 18,000 interviews once widely considered so scientifically impressive, 5,300 white males accounted for the research base in the Male Volume; of that 5,300, 2,446 were designated as convicts, 1,003 homosexuals, 50 transvestites, 117 mentally ill, 342 Other, 650 sexually abused boys. This yielded 4,628 n=Aberrant and 873 n=Normal Male subjects.13 Kinsey also failed to allow for volunteer error, according to Dr. Abraham Maslow: [V]olunteers will always have a preponderance of [aggressive] high dominance people and therefore will show a falsely high percentage of nonvirginity, masturbation, promiscuity, homosexuality, etc. in the population.14 Finally, zoologist Alfred C. Kinsey was not the conventional, middle-American family man and academic as marketed by Indiana
University and the mass media. In 1997, Kinsey biographer James H. Jones revealed, The man I came to know bore no resemblance to the canonical Kinsey. Anything but disinterested, he approached his work with missionary fervorHe wanted to undermine traditional morality, to soften the rules of restraintKinsey was a crypto-reformer who spent his every waking hour attempting to change the sexual mores and sex offender laws of the United StatesIn Kinseys case, the personal was always political.15 Later Jones commented on how Kinseys own carefully manufactured persona hid his missionary fervorto undermine traditional morality and his own sexual predilections. The truth would have damaged his credibility and stopped his mission to change the sex offender laws of the United States: There is no way that the American public in the 1940s and the 1950s would have sanctioned any form of behavior that violated middle class morality on the part of the scientist who was telling the public that he was disinterested and giving them the simple truth. Any disclosure of any feature of this private life that violated middle class morality would have been catastrophic for his career. For Kinsey, life in the closet came complete with a wife, children, a public imagethat again he preserved at all costs. Kinseys reputation still in large measure rests upon an image of him that he cultivated during his lifetime the official mystique.16 Effectively keeping the sex lives of Kinsey and his men hidden, Jones is right that, to date, this effort "came to nothing." However, now Jones admits that Kinsey, was not quite what he appeared to be--the genial academic in baggy tweeds and bow tie, the simple empiricist disinterestedly reporting his data...Kinsey....was, in reality, a covert crusader who was determined to use science to free American society from what he saw as the crippling legacy of Victorian repression. And he was a strong-willed patriarch who created around himself a kind of utopian community in which sexual experimentation was encouraged. In his obsessive energies and powers of persuasion, Kinsey resembled a late twentieth-century cult leader...a self-created visionary with a burning belief in his mission (and
ability) to change the world.17 Finally Jones reports that, Kinsey concentrated on negative eugenics, calling for a program of sterilization that was at once sweeping and terrifying. The reduction of the birth rate of the lowest classes must depend upon the sterilization of perhaps a tenth of our population.18 While Gore Vidal pronounced Kinsey the most famous man in the world for a decade one broadcast documentary, the Channel 4, British Yorkshire Television documentary, Kinseys Paedophiles, confirmed Dr. Judith Reismans findings including Kinseys collaboration with active pedophiles, a collaboration that resulted in the criminally derived pedophile data that contained the infamous Table 34, on page 180 in Sexual Behavior in the Human Male. Kinsey-favoring biographer James Jones admitted in the Yorkshire interview what Kinseys own seminal research reveals, that is, children, some as young as 2 months of age, were used by nine adult male subjects for Kinseys human experiments:19 Kinsey relied upon [King, a pedophile] for the chapter on childhood sexuality in the male volume ... Many of his victims were infants and Kinsey in that chapter himself gives pretty graphic descriptions of their response to what he calls sexual stimulation. If you read those words, what hes talking about is kids who are screaming. Kids who are protesting in every way they can the fact that their bodies or their persons are being violated.20 Until 1998, when the Yorkshire investigators located the criminal trial records and news reports in Berlin, only a few in Kinseys inner circle knew about the Kinsey Institutes collaboration with Dr. Fritz Von Balluseck. Von Balluseck was a Nazi pedophile who contributed his child abuse data (from roughly 1936-1956) to Kinseys research database.21 German news accounts during the trial reported: The Nazis knew and gave him the opportunity to practice his abnormal tendencies in occupied Poland on Polish children, who had to choose between Balluseck and the gas ovens. After the war,
the children were dead, but Balluseck lived. [National-Zeitung, May 15, 1957]. Balluseck... corresponded with the American Kinsey Institute for some time, and had also got books from them which dealt with child sexuality. [Tagespiegel, October 1, 1957]. The connection with Kinsey, towards whom hed showed off his crimes, had a disastrous effect on [von Balluseck]... [I]n his diaries hed stuck in the letters from the sex researcher, Kinsey in which hed been encouraged to continue his research.... He had also started relationships to expand his researches. One shivers to think of the lengths he went to. [TSP, May 17, 1957] Kinsey included these criminally-derived child sexuality data in his Male volume, cloaked in scientific respectability: Better data on preadolescent climax come from the histories of adult males who have had sexual contacts with younger boys and who, with their adult backgrounds, are able to recognize and interpret the boys experiences . . . 9 of our adult male subjects have observed such orgasm . . .we have secured information on 317 preadolescents who were either observed in self masturbation, or who were observed in contacts with other boys or other adults.22
KINSEYS JUNK SCIENCE ENTERS EDUCATION

Few people realize that the great library collection of...the Kinsey Institute...was formed very specifically with one major field omitted: sex education. [I]t seemed appropriate, not only to the Institute but to its major funding source, the National Institute of Mental Health, to leave this area for SIECUS to fill. Thus we applied and were approved for a highly important grant from the National Institute for Mental Health that was designed to implement a planned role for SIECUS to become the primary data base for the area of education for sexuality. SIECUS Report, May-July 1982, p. 6.
The ALEC Education Task Force passed a unanimous resolution declaring what has been ALECs policy for years; that all teaching must honestly promote accuracy
of information including verifiable scientific findings. Washington, Arizona and New Jersey were among the states introducing legislation in 2001 demanding medically accurate information in sex education. The new K-12 sex education is grounded in the fraudulent scientific foundation of the Kinsey Reports. Since 1964, the Sex Education and Information Council of the United States (SIECUS) has provided sex education materials to public schools. SIECUS, a private entity, received initial seed money from the Playboy Foundation.23 It was founded via the Kinsey Institute at Indiana University as its outreach. SIECUS is dependent upon Indiana Universitys Kinsey Reports, including the scientific tables documenting the Kinsey protocol of ongoing molestation of infants and children by pedophiles, including at least one former Gestapo officer.24 These criminal acts provided the proof, Kinsey said, of sexual desire and erotic capacity in infants and children. Therefore, according to Kinsey, science requires teaching kindergarten children about their sexuality. In the April 14, 1980 issue of Time Magazine, SIECUS was described as part of the pro-incest lobby, and in 1996, SIECUS issued a position statement advocating the use of sexually explicit materials to teach school children: When sensitively used in a manner appropriate to the viewers age and developmental level, sexually explicit visual, printed, or on-line materials can be valuable educational personal aids helping to reduce ignorance and confusion and contributing to a wholesome concept of sexuality.25 Just as SIECUS was founded to promote Kinseyan sex education to school children in 1964, the American Association of Sex Educators, Counselors and Therapists (AASECT) was created in 1967 to train and accredit educators, health personnel and other helping professionals in the area of human sexuality based on the Kinsey findings. Patricia Schiller was AASECTs first executive director. Mrs. Schiller writes, AASECT at its national and regional sex workshops and institutes, includes sensitivity sessions.Attitudes toward nudity, adolescent pregnancy, masturbation,
abortion, homosexuality, contraception, divorce, group sex and extramarital sex relations are of major significance in the effectiveness of the sex education and counseling process. These are the realities of human sexuality.26 A new study refuting the claims of the Kaiser Family Foundation and SIECUS reports that when parents are presented with the actual statements of comprehensive sex education curriculum, 61% are opposed to having their children exposed to such information. The curricula promoted by the Centers for Disease Control tallied a whopping 75.3% opposition from parents. The study was conducted by Zogby International on a random sample of 1,245 adult parents of children aged 5 to 18. The Zogby poll reports that former surveys by Alan Guttmacher Institute, Planned Parenthood, SIECUS and Advocates for Youth have been seriously flawed by vague, deceptive, and leading questions, with a clearly biased agenda to convince parents that such "expert" sex education is needed for their childrens health and well being. Examples of outrageously biased questioning by SIECUS and Planned Parenthood are given in the February 13, 2003 Zogby Study analysis entitled, Deception Uncovered.27 Since Kinseyan findings within sex education materials entered schools, rates of sexual disease and dysfunction have increased. Condoms are now ubiquitous and are widely promoted in schools by public school and health authorities to prevent pregnancy and sexual disease. Yet, according to the National Institutes of Health (NIH) study on condom effectiveness (June 2000), condoms do not prevent a stunning 98% of STD transmissions.28 Condoms never protect against Human Papilloma Virus (HPV) which is spread by skin contact, not by fluids29 and is the cause of cervical cancer, which kills 5,000 women per year in the United States. The prestigious British medical journal, Lancet, suggests that increased condom use will increase the number of AIDS transmissions that result from condom failures.30 There is a 24% pregnancy rate for teens who use condoms. As for condoms and AIDS, according to the December 1999 Center for Disease Control reports, heterosexual contact has accounted for a miniscule 4% of AIDS in males, and a total of 10% of all AIDS cases in men, since reporting began in 1981. AIDS in
the U.S. remains overwhelmingly a homosexual sodomy/drug user disease.31 Dr. Meg Meeker32 in her 2002 book, Epidemic: How Teen Sex Is Killing Our Kids has estimated the sexual revolution harvest: Nearly 1 in 5 adolescents is living with an STD, p. 13. In the 1960s a shot of penicillin could cure the two known STDs, syphilis and gonorrhea. Today there are no simple cures and, in most cases, no cures at all, p. 15, 31. The CDC considers the STD epidemic a multiple epidemic of at least 25 separate diseases (nearly 50 if you count the various strains of virus groups.), p. 14. Over 80% of STD-infected teens are unaware they have a STD; therefore they dont get medical attention and may continue to infect others. p. 35. False claims are asserted by sex educators who under inform or mislead kids about STDs and condoms that offer little or no protection from disease. pp. 104-5. Pharmaceutical companies promote drugs that control STD symptoms, encouraging kids in the delusion they can be promiscuous without any of the associated problems. The anatomic and immunological differences make the adolescent body particularly the females - more susceptible to STDs than the adult body. pp. 175-6. The idea of maintaining sexual freedom rather than preventing disease remains the driving force and primary focus of national sex education and the STD epidemic continues to worsen as long as it does. pp. 26-29 Sex education in public education was promoted to teachers and parents in the early 1950s as sex crime prevention. Guided directly by Kinsey, who served on the Illinois commissions workgroup to devise the Framework for Sex Offender Laws, Illinois blamed poor parenting and lack of education for high levels of sex crimes in the early 1950s. These rates seem miniscule in comparison with
those today. The Report of the Illinois Commission on Sex Offenders stated: Children oftimes are inadequately trained to live in a free society. The inability of some parents to rear children in a democratic atmosphere and, at the same time, to observe the conventions of society is a fact that needs consideration. Too often indulgence on the one hand or oppression on the other result in emotional maladjustment that may lead to sexual offense. Methods of educating adults, who deal with children must be considered also. Prevention through mental hygiene and sex education for both adults and children may prove to be effective.33 Kinseyan legal reformers testified before legislatures and in professional literature that sex education would reduce violent sex crimes and high rates of sex offender (rapists and child molesters) recidivism.34 And AASECT dealt with educating adults, who deal with children. Carol Cassell (currently the director of the Center for Disease Controls Teen Pregnancy Prevention Program) describes ASSECTs use of the Kinsey Reports as the root of their professional authority: Look how we've used the Kinsey data. We've used it for everything from assessing the stability of marriage to raising children to trying to understand human growth and development -- not just sexual but also psychological growth and changes over time.35 Taught by AASECT trained teachers, the SIECUS sex education programs were guided by The Kinsey Reports assertion that human beings are sexual actors from birth.36 At law, this meant that four or five year old children could be considered provocateurs.37 Redefining children as sexual beings resulted in lowered penalties for rape and child molestation reflecting the new sciences claim that there is no harm unless serious force is used. In public education, after state laws were changed, SIECUS expanded the talk about sexuality from a total of thirteen minutes to sex education covering thirteen school years with the theme that any and all imaginable sexual behaviors, at any age, are simply responding to a wide human need.38 Between 1994 and 2000, SIECUS received over one million tax dollars from the publicly funded Center for Disease Control. The CDC materials promote sodomy as
normal and as equally fulfilling and desirable as marital coitus. In the SIECUS 1991 Guidelines for Comprehensive Sexuality Education: Kindergarten12th Grade, a family is redefined as any grouping of people who care for each other (Key Concept 2). Kindergarten children are told that marriage is a mere option some people choose (Some couples who love each other live together in the same home without getting married Topic 5, level 1). The sex experts and the Kinseyan sex education monopoly are well entrenched in higher education. For example, Tennessee legislators passed Abstinence legislation to promote Marriage. However, the Lifetime Wellness Curriculum Framework produced by the Tennessee Department of Education treats Marriage as merely a parenting and economic option chosen by some. School children are guided in graphic games about oral and anal sodomy and about death. Tax supported teaching programs are required to be accurate in order to be funded. There is no doubt, after reviewing pre-Kinsey levels of sexual disease and dysfunction, the SIECUS sex education programs post 1964 have seen STD rates skyrocket. Abstinence programs calling for modesty and saving sex until marriage guarantee taxpayers a major reduction in costly post-Kinsey disease and dysfunction. KINSEYS JUNK SCIENCE ENTERS THE LAW
The Professional Call for Science-based Legal Reform
In a 1952 article in the Harvard Law Review Columbia Law Professor Herbert Weschler advocated for revision of ineffective, inhumane and thoroughly unscientific state criminal laws that its author claimed, were not based on the truth now available through objective scientific pursuit.39 Attorney Morris Ernst, a few months after the appearance of the 1948 Kinsey Report, published one of five books that would be published advocating penal reform based on the science of the Kinsey Reports, stating: [V]irtually every page of the Kinsey Report touches on some section of the legal code . . . a reminder that the law, like our social pattern, falls lamentably short of being based on a knowledge of facts.40
Based upon what has been previously shown in this study to be Kinseys biased and seriously flawed data, the Sexual Offenses Article 207 of the 1955 Model Penal Code was constructed. For example, Section 207.5, titled Sodomy and Related Offenses, proposed that consensual sodomy with an actor 10 years or older be classified a misdemeanor. Appendix A to section 207.5 is titled Frequency of Sexual Deviation, and of 21 quotations, 19 are taken from Kinseys book, Sexual Behavior in the Human Male (1948). ALI Reporter Morris Ploscowe parroted Kinseys scientific findings: These pre-marital, extra-marital, homosexual and animal contacts, we are told, are eventually indulged in by 95 per cent of the population in violation of statutory prohibitions. If these conclusions are correct, then it is obvious that our sex crime legislation is completely out of touch with the realities of individual living and is just as inherently unenforceable as legislation that prohibits . . . an activity that responds to a wide human need.41 In addition to this book by Albert Deutsch (Ed.), to which Ploscowe contributed, three of the four other 1948 releases called for sciencebased law reform based on the new science of the Kinsey Reports. These three books presented collections of essays by luminaries in education, law, psychiatry, psychology, and medicine.42 KINSEYS DATA PERMEATE ALL PRESENT 43 THINKING ON THIS SUBJECT. The ALI began a campaign44 to secure enactment of its provisions as state law, beginning in Illinois which adopted the Code in 1961. Frank Horack, Jr., acting Dean of Indiana University, writing in support of the Kinsey Reports impact on law, predicted: The principal impact of the Kinsey Report will be at the level of the administration of the law. It will provide the statistical support which police officers, prosecutors, judges, probation officers and superintendents of penal institutions need for judging individual cases . . . Officials will read it. Defense counsel will cite it. Even when it is not offered into evidence, it will condition official action.
Psychiatrists, psychologists, penologists, juvenile and probation officers all participate in modern penal procedures they will use the data and their professional advice will be heeded by the judge. Here the Report will control many decisions and dictate the disposition and treatment of many offenders.45 Concurrent with the publication of Indiana Universitys and the Kinsey Institutes Male and Female volumes, a number of states conducted fact-finding commissions to study sex crime problems. Kinsey Report co-author Wardell Pomeroy states that Kinsey personally worked on the revision of sex laws with the Illinois, New Jersey, New York, Delaware, Wyoming, and Oregon commissions.46 In December 1949, Kinsey testified for an entire day before the California Subcommittee on Sex Crimes. Kinsey told the committee: For the last 11 years we have had a research project, as you know, underway at the university on human sexual behavior . . . we find that 95 percent of the [male] population has in actuality engaged in sexual activities, which are contrary to the law.47 Kinsey presented the California legislature with the wildly false claim, [Our research] has the advantage of having a background of the picture typical in the population as a whole48 In 1951, the Illinois legislature funded a commission to study the sex offender. Francis Allen chaired the committee that drafted the report submitted to the Illinois legislature. Under Section II, Scientific Findings, Allen writes: No specific reference to the Kinsey findings is made here since these permeate all present thinking on this subject. Allen also chaired the workgroup Framework for Sex Offender Laws to which Alfred C. Kinsey and Co-author Wardell Pomeroy served as consultants.49 A similar commission was conducted in New Jersey. The report was facilitated by Paul W. Tappan, who later would be a Reporter for the ALI Committee that drafted the Model Penal Code. Section II of the New Jersey report is titled: Sex Deviation: Its Extent and Treatment. It begins with quotations from Kinseys Male volume. The New
Jersey Commission expressed its gratitude to Dr. Kinsey and Morris Ploscowe for their frequent and extended consultations. 50 The New Jersey Commissions report stated:
[T]here can be no real doubt that a very large number of the male population of New Jersey has engaged in practices coming within the enumerations of our present abnormal sex offender law, on the basis of which they might be committed to one of our state mental hospitals.51 Louis B. Schwartz, author of the Sex Offense section of the Model Penal Code, reviewed Kinseys Male Volume in the University of Pennsylvania Law Review in 1948. His article provided the new language for the American bench and bar that was used to normalize formerly proscribed sexual conduct. Schwartz wrote: To reveal that certain behavior patterns are widespread, that they are a product of environment, opportunity, age and other factors over which the individual has little control, that they are not objectively harmful except as a result of societys efforts at repression (Kinsey, pp. 385-86) to point out that similar behavior is encountered among other animals than man, to suggest that the law ought not to punish and that psychiatrists might better devote themselves to reassuring the sexual deviate rather than attention to redirect behavior (Kinsey p. 660) all these add up to a denial that sexual perversion is an evil.52 Schwartz then pictures the distant day when Americans cease to regard minority morals as a legitimate object of social coercion, and suggests a covert and undemocratic method for elites to change state criminal codes: Eventually, such distinctions ease themselves into the written law, especially if it can be done in the course of a general revision of the penal code. This avoids the appearance of outright repudiation of conservative moral standards, by presenting the changes in a context of merely technical improvements.53
bench and bar via states Law Journals. These cited to the Kinsey Reports as the scientific authority to define normal and therefore noncriminal behavior. The North Carolina Law Review testifies to its readers:
More than two decades have passed since the publication of Alfred Kinseys study on human sexual behavior that made clear the wide disparity between conservative sexual behavior permitted by law and the liberal sexual practices that Kinsey found actually to occur in society. Dr. Kinsey stated that [s]ex laws are so far at variance with general sex practices that they could not conceivably be rigorously enforced (Citing to 23 New York University Law Quarterly Rev. 540, 541 (1948), quoting Kinseys Male volume).54 Other states Law Journals cite the Kinsey Report data to advocate legalizing prostitution (Maine, 1976); harmlessness of boy prostitution (Duke University, 1960); lightening sex crime penalties (Ohio, 1959); legalizing homosexuality (South Dakota, 1968); the need for beneficent concern for pedophiles (Georgia, 1969); and for general sex law revisions (Oklahoma, 1970). The journals commonly cited the fact that 95% of males are sex offenders (Oregon, 1972); that young children are seducers (Missouri, 1973, Tennessee, 1965); and that judicial bias is the cause of severe condemnation of sex offenders (Pennsylvania, 1952).55 Finally, the Colorado Law Review ridicules American standards of virtue, honor and chastity by publishing The Legal Enforcement of Morality authored by none other than Playboys, Hugh Hefner. Claiming to be Kinseys pamphleteer, Hefner writes to his legal audience: Kinsey reports that in some groups among lower social levels, it is virtually impossible to find a single male who has not had sexual intercourse by the time he reaches his mid-teens.56 Revision Commissions reported to state legislatures. The Model Penal Code was their blueprint for complete sex crime revisions. Such liberalized sex laws were enacted nationwide--
STATE LAW JOURNALS ADVOCATE FOR PENAL REFORM USING KINSEY AS AUTHORITY The ALI penal reform campaign appealed to the
generally occurring for the first time since statehood.57 In the rush to science-based legal reform, not all state commissions accepted the sweeping revisions as an assumed improvement in the clarification of law. In 1970 the Michigan Journal of Law Reform published the report of the director of the Criminal Law Revision Commission in California describing the advisory boards reaction to its revision suggestions: [I]ts product at first inspection struck most of the members of the Board, unfamiliar with the Model Penal Code or another contemporary criminal law revision, as a strange and baffling departure from all of the familiar landmarks of conventional law. The style of the Model Penal Code, its rigorously logical order and its general abandonment of common law terminology does pose difficulties for anyone whose entire educational and professional experience has been circumscribed by the eighteenth century common law concepts still preserved in the criminal law of California. The staff, of course, was greatly influenced by the Model Penal Code.58
PURPOSE AND PRINCIPLES OF ALIS MODEL PENAL CODE
The stated purpose of the ALI MPC was to reduce crime, recidivism and to modernize the law in accord with scientific advances. In his 1952 Harvard Law Review article, chief author Columbia University Law Professor Herbert Wechsler argued for a Model Penal Code on the grounds that the current crime rate was too high. He said this high rate proved the common law then in effect, was ineffective and "unscientific."59 By the late 1970s, most local and state bar associations had heeded Wechsler's call and promoted the passage of a revised penal code based on the ALI MPC. In the wake of modernity, naturalistic science emerged preeminent over the nations guidance by the fixed moral standards of the Declaration of Independence. The MPC portrayed fixed law with moral supports as inadequate and antiquated. Unhinged from the divine, evolving law with scientific support became the standard.60 Model Penal Code authors called for laws using the "aid that modern science can afford." This created a crisis in American law. Modern evolving law, apparently based
on science, appeared to conflict with America's long settled (and protective) common law, and the common law was being portrayed as inconsistent, ambiguous, outmoded, and redundant.61 Law, by definition, to be "law" must be fixed. However, state revision commissions revised state penal codes according to the new ALI MPC understanding that law is always evolving and requires constant change. The American Law Institute transformed corrections by revising the definition of criminal responsibility. This dramatic change occurred under the guidance of three psychiatrists: Lawrence Z. Freedman, Winfred Overholser, and Manfred Guttmacher. Though there was not complete agreement, Wechsler reports the ALI authors were totally responsive to the psychiatric points, while advancing a fresh solution.62 By applying the modifications of the Model Penal Code, criminal responsibility was redefined to include; 1) knowledge of right and wrong, and 2) the capacity to conform to the law. There was an important new element to which only a qualified expert could testify. The M'Naughten Rule that originated in 1843, required the cognitive ability of the offender to know right from wrong in order to be guilty of crime. The drafters of the Model Penal Code thought that in addition to knowledge, it was important to determine the offenders capacity for self-control. Benjamin Karpman--who is quoted as the primary psychiatric authority in the Model Penal Code--claimed that criminal behavior could be compared to tonsillitis: Criminal behavior is an unconsciously conditional psychic reaction over which [the criminals] have no conscious control. We have to treat them as psychically sick people, which in every respect they are. It is no more reasonable to punish these individualsthan it is to punish an individual for breathing through his mouth because of enlarged adenoids, when a simple operation will do the trick.63 Karpman held little regard for a common law that had provided safety and security for the law-abiding citizen, while punishing criminal behavior. As a
psychiatrist, he claimed the medical profession is the vanguard of human progress. Experiment is viewed as superior to precedent; old methods are readily abandoned, to give way to newer methods. It is therefore a matter of great wonderment, and disappointment as well, that with so many physicians on the staff of prisonsmedicine has thus far contributed so little of positive value toward a more scientific and more humane understanding of crime.64 The influence of Guttmachers Group for the Advancement of Psychiatry (GAP) on law reform is evidenced by states adoption of a therapeutic approach to criminology despite therapys experimental and unproven track record. The South Carolina Law Review reported in 1968 that: There are no data indicating the amount of success of correctional efforts to date. There is a large body of literature reporting numerous research findings and number of plausible theories concerning treatment of the offender. However, the knowledge that is available has not been translated into feasible action programs or the programs have not been successfully implemented or if they have been implemented they have lacked evaluation. If they have been evaluated, the results have usually been negative, and in the few cases where there were positive results reported there have been no replications to support these findings.65 A further consequence of therapeutic influence has been to strip the authority of the jury, replacing it with expert testimony. The ALI MPC authors held that a judge did not have the expertise to judge offenders. Moreover, a jury of ones peers was too likely to mete out tough punishments to criminals. Wechsler wrote, It is widely urged that the responsibility for the determination of the treatment of offenders should not, in any case, be vested in the courts; that judges have no special expertise or insight in this area that warrants giving them decisive voice; and that they should be superseded by a dispositions board that might include the judge but would draw personnel of equal weight from social work, psychiatry, penology and education.66
In view of the new offender sympathies and the desire to therapeutically manage criminals in the ALIs MPC, the power of the uniquely American jury of ones peers system was significantly curbed. This was accomplished in state after state through the experts classification and subViolent Crime 1951-1997, Number of Offenses
2.0 1.9 1.8 1.7 1.6 1.5
Total Offenses (Millions)
1.4 1.3 1.2 1.1 1.0 0.9 0.8 0.7 0.6 0.5 0.4 0.3 0.2 0.1 0.0
51-5 3
54-56
57-59
60-6 2
63-6 5
66-68
69-7 1
72-7 4
75-77
78-80
81-8 3
84-8 6
87-89
90-92
3-Year Range
Basic data from Statistical Abstracts of the United States , and the Department of Commerce, Census Bureau ** - 1997 is latest published data
classification of crimes and the assignment of multi levels of penalties for once simply understood crimes and punishments. If psychiatric experts were now needed to determine criminal responsibility under the new law system, they would also determine the remedy. Wechsler said that the common law employs unsound psychological premises such as freedom of will or the belief that punishment deters.67 Criminals under the MPC were often cast in neutral terms such as actors and victims as complainants. Terms such as rapist or sodomist are too harsh according to the new penal revisions.68 And based on the Model Penal Code, an individual may have been so impaired mentally that he was unable to follow the law. Therefore, argued the MPC, the convicted sex crime offender is more likely to be rehabilitated through treatment and counseling by mental health experts than by incarceration. After fifty
93-9 5
96-**
years of experience and research producing no evidence that therapy reduces recidivism,69 former Attorney General Janet Reno acknowledged in her acceptance speech for the Brandeis Medal for commitment to individual liberty, concern for the disadvantaged, and public service, that punishment is indeed necessary to control crime.70 The principal sex offenses of rape, sodomy, sexual abuse, and indecent exposure were redefined. In the ALI MPC the simplicity of common law punishments were made complex by grading them71 according to the use of forcible compulsion, the capacity or incapacity of the victim to consent, the age of the victim, and the age of the sexual predator.
ALI MODEL PENAL CODE FAILED
trivializing of penalties for statutory rape, rape, prostitution and other sex crimes. The radical ALI MPC reforms that reduced state sex crime penalties are a window into how America came to this sociosexual malaise. Studies confirm a correlation between greater punishment and less crime.77 The rise in crime that is making America a less-safe environment for women and children has followed the changes in law that occurred as states abandoned the common law and adopted the guidance of the ALI Model Penal Code.
CONCLUSION
As we have seen, the purpose of the Model Penal Code, according to Professor Wechsler, was to reduce crime. In this regard, the data are clear: the ALI MPC has been a total failure. Women and children are far less safe today than they were before the changes brought in by the MPC. Wechsler declared the MPC authors intentions in 1955: We mean to act as if we were a legislative commission, charged with construction of an ideal penal code.72 Wechsler wrote in the Columbia Law Review when the project was over, Viewing these words in retrospect, I am content with their description of the effort.73 By the late 1970s, most state legislatures had heeded Wechsler's call and had passed revised penal codes.74 These revisions were supposed to have been guided by a new scientific understanding of sex, sex crime and sex criminals. However, the results suggest a lessening of understanding rather than an enhancement of it. As the chart shows, violent crime increased 993% from 1951 to 1997. There was a 2.1% increase in the child population (the number of people under age 20) from 1970 to 2000.75 This clearly does not account for the skyrocketing levels of sex crimes. According to the MPC vision, comprehensive sex education graphically presented in elementary and secondary grades should have reduced crime. Instead, during the same period, we see pandemic rates of venereal diseases,76 rape, illegitimacy and abortions in teenage populations with the elimination of fornication as a crime, and the
Alfred Kinsey was a moral revolutionary in scientists clothing. The science was bad, even bogus; the man himself may now be forgotten; but the revolution came to stay, with a vengeance. Kinseys messagefornicate early, fornicate often, fornicate in every possible waybecame the mantra of a sex-ridden age, our age, now desperate for a reformation of its own.78 The Kinsey Reports, well known to sexual and legal revolutionaries, are all but unknown to the current bench and bar. Kinseys once taunt official mystique sags with many troubling revelations, especially since 1997. However, Kinseys reputation still must be maintained because his Reports are the foundation of evolutionary sexuality worldwide. Sexual anarchists everywhere need Dr. Kinsey. This need resulted in an image reconstruction effort mounted by PBSTVs The American Experience, and by Hollywood, PBS and FoxSearchlight films, Myriad Pictures and Coppola's American Zoetrope studios. Reinventing Kinsey as a sexual pioneer may continue to cover up the ugly reality of the Indiana University zoologist, eugenicist, evolutionist, pedophile collaborator Kinsey and his assault on law and justice, and maybe not. The manufactured statistics of The Kinsey Reports transformed Americas institutions of medicine, education and law. Normal human sexuality was metamorphosed into another image, which became indelible, when the American Law Institute delivered The
Kinsey Reports junk science (in 1955 Draft #4, Sexual Offenses, Section 207 of the Model Penal Code) to the bench and bar in every state. Soon, based on the ALI MPC and the Kinsey Reports, the states long-settled and fixed common law sexual and reproductive standards were abolished via misinformed legislation and judicial decisions. After the laws were changed, the SIECUS brand of sex education entered schoolrooms to permanently alter Marriage, and the American family. Prior to 1950 American Law largely prohibited any sexual acts outside of marriage. Marriage was a public contract, both civil and religious. Society had an interest in the security and solvency of every marriage. Marriage was to provide for the progeny of the union, secure the orderly passage of property to the next generation and prevent any burden to the State wrought by divorce, promiscuity, perversion and unnatural acts.79 Marriage served the public interest. However, the experts of the ALI MPC dismantled the institution, based on the Kinsey Reports. By recommending the legalization of fornication, cohabitation, adultery, sodomy, etc., the MPC transformed what were known as Public Morals or vice laws into private sexual behaviors between consenting individuals. The new freedom, Privacy, would allow one to be left alone to pursue ones one sexual tastes, according to Judge Learned Hand.80 The junk science based on the debunked and discredited Kinsey Reports today serves as the foundation of publicly funded sex education. In addition, the ALI Model Penal Code has been adopted, all or in part, in every state. The harmful results can be seen over the past 50 years, especially as these changes negatively affect the lives of American women and children. The case is strong for real fact-based reform to remove the fraudulent findings of the Kinsey Reports from publicly funded programs, policies, and laws beginning with sex education and criminal law. HOW SHOULD LEGISLATORS RESPOND? State judiciary and education committees, legislators or activists may want to make presentations to clarify and inform leadership of the history and scope of Kinseys fraudulent
science-based reforms. Undoing harmful changes to sex education curricula and sex offense laws since each states penal code revision would be prudent. Bar Associations and state legislatures can initiate a restoration effort for legal protections once enjoyed by women and children. The legal reforms that have been enacted since 1960 must be examined. First of all, legislators must be aware of the scientific authorities that were used to justify sex law changes. Next, legislators should determine what benefit or detriment these sex law changes have brought to Americas law-abiding citizens, especially our vulnerable children. Finally, legislators must directly address a working system for protecting women and children. The current system provides overwhelming proofs that it is moving society in the wrong direction. Law must refocus on illegal acts and their consequences. Criminal behavior must once again be met with criminal sanctions that depend on the act of the aggressornot the age of the victim, or the personality of the offender. State legislatures must require accountability for programs involving rehabilitation. Programs should reduce recidivism or meet other measurable criteria established by the legislature in order to receive taxpayer support. State legislators should continue the call for accurate science in childrens education. A review board could monitor textbooks purchased by the state Department of Education, and investigate parents concerns. Political ideologies should never be represented as science to vulnerable school children. POSSIBLE OBJECTIONS TO LEGAL REFORMATION Legislators, activists and concerned citizens who seek to restore legal protections to women and children may be met with the objection that "you can't legislate morality" or that "culture drives law, anyway." A report in the Wall Street Journal confirms that law can shape behavior. According to the Journal, in response to rampant AIDS in Tanzania, laws and
severe penalties against illicit sexual conduct were established, and this in a culture that historically has been free of limits on sexual behavior. The Journal reports, "within two years teachers report a decrease in schoolgirl pregnancy." The national AIDS committee chairman states, "We're penalizing people less often because almost everyone is behaving better."81 Just as Tanzania's experience demonstrates that law shapes behavior, we can expect positive change here in the United States as well. U.S. Supreme Court Justice Louis D. Brandeis said; the conduct of life is to so large an extent determined by the existing legal institutions, that an understanding of the legal system must give you a clearer view of human affairs in their manifold relations, and must aid you in comprehending the conditions, and institutions by which you are surrounded.82 People often point to the influence of music and media upon our youth to explain massive changes in society. But these are outgrowths of what Brandeis explained drives our conduct of life. If understanding the legal system gives you a clearer view of human affairs and aids in comprehending conditionsby which you are surrounded, as Justice Brandeis declared, then the question to be answered is evident: What, within American legal institutions, changed to account for the significant changes in the conduct of life in America regarding illegitimacy, rape, and sexual violence? On the evidence, those changes occurred primarily as a result of twentieth century law reform based on the American Law Institutes Model Penal Code, whose authority for defining normal human intimate behavior was the Kinsey Reports. EXECUTIVE SUMMARY Prior to the adoption of the American Law Institutes Model Penal Code by the states, men who raped and preyed on children were deemed criminals, not simply actors as they often are today. Abused and violated women and children were victims, not complainants. Justice was meted out by a jury of ones peers, not by social science experts, and predators received penalties, not legal protections.
With regard to sex offense crimes in the ALI MPC: A rash of state sex offense commissions convened just prior to the ALI MPC publication, providing findings to MPC authors. These commissions also relied heavily upon Alfred Kinsey and the fraudulent Kinsey Reports view of normal human sexuality. Sexual activities are presented by the ALI MPC authors as wide human need and necessary from womb to tomb for health and happiness. Language and terms are changed to neutralize crimes against women and children. Rape and child abuse are redefined and de-stigmatized; the definition of adult tends to include children for purposes of sex. Creation of multiple degrees of a sex crime negates the felony penalty. And sex education in public schools is recommended as the primary crime prevention measure. As in law, terms were changed in sex education to dissociate it from the eugenics movement. The Birth Control Federation of America became Planned Parenthood, which was necessary to neutralize the highly negative image offered to the public by the term birth control (Alan Guttmacher writing in the preface of Margaret Sangers autobiography, 1970). The new term family planning did not convey prejudice against large families, and linked contraceptives with marriage and babies instead of with prostitutes and illicit sexual alliances. Sex education became family life education which SIECUS founder Lester Kirkendall said would be less threatening to parents and teachers and, in the end, would lead to more not less sex education.83 The plans legal revolutionaries made and acted upon overturned or trivialized 52 designated laws protective of women and children,84 aided and enabled by the indispensable sex science of the Kinsey Reports. Over the past fifty years, our sex and reproduction laws have been deconstructed on the basis of a fraudulent set of data. Law, by definition, is fixed or settled. But in the second half of the twentieth century Law entered an ever- evolving stream, based on socalled scientific innovation. Billed as science based law reform, the Model Penal Code was
promoted as a simple revision of the law based on new scientific discoveries in the social sciences. This effort was undertaken because of the high rates of violent crime. However, over the ensuing 50 years, the ALI MPC has failed to reduce crime and specifically failed to provide protections for women and children. It is time for state lawmakers to jettison bad policy based on bad science, and to restore legal protections for American women and children. Fifty years have passed since the advent of the ALI MPC into the American stream of law. Now is the time for state legislatures to review the performance of the science-based criminal law reform that according to its chief author in 1952, was expected to lower crime. Wechsler declared common law penal codes were ineffective. It is time to review many of the radical changes brought about by the enactment of the Model Penal Code and to restore the safety and security lost for our most vulnerable citizens.
FOOTNOTES
55 1
Joseph Epstein, COMMENTARY, January 1998. At www.Britannica.com, downloaded March 31, 2001 2 HUMAN NATURE, October 1978, pp. 92-95. 3 James Jones, ALFRED C. KINSEY: A PUBLIC/PRIVATE LIFE at 619 (NY: W.W. Norton, 1997). 4 This is one of the startling observations of the Kinsey group When a total clean-up of sex offenders is demanded, it is in effect a proposal to put 95% of the male population in jail. Albert Deutsch, SEX HABITS OF AMERICAN MEN, at 121. 5 J. A. Reisman, KINSEY: CRIMES AND CONSEQUENCES (2nd ed.), (Crestwood: Institute for Media Education, 2000). 6 Really Dr. Kinsey? 337 THE LANCET at 547 (March 2, 1991). 7 J. A. Reisman, supra., at 50-53. See also Arno Karlen, SEXUALITY AND HOMOSEXUALITY at 456 (1971).
8 9
Gebhard, Gagnon, Pomeroy, and Christenson, SEX OFFENDERS at 31-33 (1965). Jonathan Gathorne-Hardy, ALFRED C. KINSEY: SEX THE MEASURE OF ALL THINGS at 130-131, 144, (1998). Id. At 144, see also Reisman, supra. at 40. 11 Warren Weaver, Desk Diary, May 7, 1951, pp. 4-5, Rockefeller Archive Center. 12 Testimony of Alfred C. Kinsey before the Assembly Interim Committee on Judicial System and Judicial Process of the California Legislature, 1949, p. 133. Recorded in the Assembly Journal, March 8, 1950. 13 NIMH Grant The Kinsey Data; Marginal Tabulations, 1979, p. 3. -6 Gebhard and Johnson claim theirs is a 5,460 White Male Sample. 14 Abraham Maslow, Test for Dominance-Feeling (Self-Esteem) in college Women, THE JOURNAL OF SOCIAL PSYCHOLOGY at 255, 270 (1940); See also Abraham Maslow, Self-esteem, Dominance, Feeling and Sexuality in Women, 16 THE JOURNAL OF SOCIAL PSYCHOLOGY at 259, 294 (1942) 15 James H. Jones, Dr. Yes, THE NEW YORKER at 100-101 (September 1, 1997). 16 James H. Jones, interview in Tim Tate, Secret Histories: Kinseys Paedophiles. (Yorkshire Television (Channel 4), United Kingdom, aired August 10, 1998. 17 James H. Jones, Annals of Sexology, Dr. Yes. THE NEW YORKER at 101 (August 25 and September 1, 1997). 18 James H. Jones, ALFRED C. KINSEY: A PRIVATE/PUBLIC LIFE at 809, footnote 78 (1997). 19 Alfred C. Kinsey, Wardell Pomeroy, Clyde Martin, SEXUAL BEHAVIOR IN THE HUMAN MALE, at 144 (W. B. Saunders, 1948). 20 Secret Histories, Kinsey Paedophiles, supra. See also Kinsey, SEXUAL BEHAVIOR IN THE HUMAN MALE, at 161 (noting violent convulsions, groaning, sobbing, violent cries, with an abundance of tears (especially among younger children.)). 21 J. A. Reisman, supra. note 5, at 165-170. 22 Kinsey, et al, supra. Note 19, at 144. 23 Reisman, J. A. Supra. note 5, at 177. 24 Kinsey, Pomeroy and Martin, SEXUAL BEHAVIOR IN THE HUMAN MALE, page 180, Table 34. 25 SIECUS Report, February/March 1996, Position Statement on Sexually Explicit Materials. 26 Herbert Otto, (Ed.), THE NEW SEX EDUCATION, at 171. (Chicago: Association press/Follett Publishers, 1978). 27 Survey results and analysis are available at www.whatparentsthink.com 28 The panel of researchers found effectiveness in the heterosexual transmission of HIV and the female to male transmission of gonorrhea. These two areas represent 2% of all STDs occurring annually in the U.S. See the Response of the National Abstinence Clearinghouse to the NIH Condom Report; American Social Health Association, Sexually Transmitted Diseases in America: How Many Cases and at What Cost? Kaiser Family Foundation, December 1998; and CDC HIV/AIDS Surveillance Report, 1999. 29 Dr. John Diggs, WebMD, http://my.webmd.com/content/article/1700.50173 30 Justin Torres, Condom crazy: The UN Pushes Contraception to fight AIDS. WORLD MAGAZINE, VOL. 15, September 9, 2000 31 Center for Disease Control, HIV/AIDS Surveillance Report. Dec. 1999. Vol. 11, No. 2, Table 5. 32 Meg Meeker, EPIDEMIC: HOW TEEN SEX IS KILLING OUR KIDS, (Washington, D.C.: Regnery Publishing, 2002). 33 Illinois Commission on Sex Offenders, March 15, 1953, p. 36. 34 Herbert Wechsler, Challenge of a Model Penal Code. 65 HARVARD LAW REVIEW at 1103 (1952). 35 Carol Cassell, Contemporary Sexuality, The American Association of Sex Educators, Counselors and Therapists (AASECT), (October, 1991). 36 The Illinois Commission cites this as a scientific finding on p. 9. See also, Kinsey, A.C., Pomeroy, W. B., & Martin, C.E. SEXUAL BEHAVIOR IN THE HUMAN MALE. at 181 (W. B. Saunders, 1948). 37 A term used by Psychiatrist and Law Professor Ralph Slovenko to describe a four or five year old girl. See R. Slovenko & C. Phillips, Psychosexuality and the Criminal Law. 15 VANDERBILT LAW REVIEW, at 809 (1962). The sometimes extreme seductiveness of a young female is a factor which has no place in the law, but it certainly affects motivation. Even at the age of four or five, this seductiveness may be so powerful as to overwhelm the adult into committing the offense. The affair is therefore not always the result of the adults aggression; often the young female is the initiator and seducer. (Emphasis added). 38 Albert Deutsch (Ed.), SEX HABITS OF AMERICAN MEN, A SYMPOSIUM ON THE KINSEY REPORTS at 126-128, (New York: Prentice Hall, 1948). 39 Herbert Wechsler, Challenge of a Model Penal Code, 65 HARVARD LAW REVIEW 1103 (1952) . 40 Morris Ernst and David Loth, AMERICAN SEXUAL BEHAVIOR AND THE KINSEY REPORT, n. 28, at 132 (Graystone Press, 1948). 41 Morris Ploscowe, Sexual Patterns and the Law, in Albert Deutsch, SEX HABITS OF AMERICAN MEN: A SYMPOSIUM ON THE KINSEY REPORT at 126 (1948). 42 Rene Guyon, THE ETHICS OF SEXUAL ACTS (1948); Morris Ernst, AMERICAN SEXUAL BEHAVIOR AND THE KINSEY REPORT, (1948); Donald Porter Geddes and Enid Curie, Eds. ABOUT THE KINSEY REPORT, (1948); Jerome Himelhoch and Sylvia Fava, Eds. SEXUAL BEHAVIOR IN AMERICAN SOCIETY, (1948). 43 Report of the Illinois Commission on Sex Offenders, March 15, 1953, at 9. 44 Linda Jeffrey and Ronald D. Ray. 2003. A HISTORY OF THE AMERICAN LAW INSTITUTES MODEL PENAL CODE: THE KINSEY REPORTS INFLUENCE ON SCIENCE-BASED LEGAL REFORM 1923-2003. (Crestwood, KY: First Principles Press). 45 Frank E. Horack, Jr. Sex Offenses and Scientific Investigation. 44 ILLINOIS LAW REVIEW, at 156, 158 (1950). 46 Wardell Pomeroy, DR. KINSEY AND THE INSTITUTE FOR SEX RESEARCH, at 210-11 (1972). 47 Preliminary Report of the Subcommittee on Sex Crimes of the Assembly Interim Committee on Judicial System and Judicial Process, California Assembly, March 8, 1950, reported in foreword, unnumbered. 48 Testimony of Alfred C. Kinsey, Id., p. 133. 49 Report of the Illinois Commission on Sex Offenders, March 15, 1953, at 9. 50 Report and Recommendations of the Commission on the Habitual Sex Offender as Formulated by Paul W. Tappan, Technical Consultant, February 1, 1950 at 12. 51 Id., at 18. 52 Louis B. Schwartz, Book Reviews: Sexual Behavior in the Human Male, 96 UNIVERSITY OF PENNSYLVANIA LAW REVIEW at 917 (1948). 53 Id. 54 John Parker Huggard, Criminal LawNorth Carolinas Sodomy Statute: A Need for Revision, 53 NORTH CAROLINA LAW REVIEW at 1037 (1975).
10
Judy Potter, Sex Offenses. 28 MAINE LAW REVIEW 78 (1976); Albert J. Reiss, Sex Offenses: The marginal status of the adolescent. 25 LAW AND CONTEMPORARY PROBLEMS 311-312 (1960); Phillip E. Stebbins, Sexual Deviation and the Laws of Ohio 20 OHIO STATE LAW JOURNAL 347 (1959); Ronald P. Johnsen, Sodomy StatutesA Need for Change, SOUTH DAKOTA LAW REVIEW 395-396 (Spring, 1968); B. E. C., Jr. Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society 4 GEORGIA LAW REVIEW 152 (1969); Larry E. Joplin, Criminal Law: An Examination of the Oklahoma Laws Concerning Sexual Behavior , 23OKLAHOMA LAW REVIEW 459 (1970); Edward N. Fadeley. Sex Crime in the New Code, 51 OREGON LAW REVIEW 517 (1972); Orville Richardson, Sexual Offenses Under the Proposed Missouri Criminal Code, 38 MISSOURI LAW REVIEW 383 (1973); Ralph Slovenko and Cyril Phillips, Psychosexuality and the Criminal Law, 15 VANDERBILT LAW REVIEW 809 (1962); Jerome Hall, Science and Reform in Criminal Law, 100 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 733 (1952). 56 Hugh Hefner. The Legal Enforcement of Morality. 40 UNIVERSITY OF COLORADO LAW REVIEW 200 (1967). 57 See for example, The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, October, 1971, at x; Morgan S. Bragg, Victimless Sex Crimes: To the Devil, Not the Dungeon, 25 UNIVERSITY OF FLORIDA LAW REVIEW 140 (1973); John S. Eldred, Classification and Degrees of OffensesAn Approach to Modernity, 57 KENTUCKY LAW JOURNAL, 81 (1968-69); John C. Danforth, The Modern Criminal Code for Missouri (Tentative Draft)A Challenge Fulfilled and the Challenge Presented, 38 MISSOURI LAW REVIEW, 362 (1973); Paul E. Wilson, New Bottles for Old Wine: Criminal Law Revision in Kansas, 16 KANSAS LAW REVIEW, 588 (1968). 58 Arthur H. Sherry, Criminal Law Revision in California, 4 JOURNAL OF LAW REFORM 433 (1971). 59 Herbert Wechsler, Challenge of a Model Penal Code. 65 HARVARD LAW REVIEW at 1103 (1952). 60 Herbert W. Titus, GOD, MAN, AND LAW: THE BIBLICAL PRINCIPLES at 3-14. (Oak Brook, IL: Institute in Basic Life Principles, 1994). 61 Final Report of the New Jersey Criminal Law Revision Commission, October 1971, p. v. 62 Herbert Wechsler, Codification of the Criminal Law in the United States: The Model Penal Code. 68 COLUMBIA LAW REVIEW at 1442 (1968). 63 Benjamin Karpman, CRIMINALITY, INSANITY AND THE LAW, 1949. Quoted in 52 COLUMBIA LAW REVIEW at 749 (1952). 64 Benjamin Karpman, Sex Life in Prison, 38 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY at 476 (1948). 65 C. W. Dean, Treatment Concepts and Penology: A Sociologistss View. 21 SOUTH CAROLINA LAW REVIEW at 51 (1968). 66 Herbert Wechsler, Challenge of a Model Penal Code, 65 HARVARD LAW REVIEW at 1128. 67 Id., at 1103. 68 Orville Richardson, Sex Offenses under the Proposed Missouri Criminal Code, 38 MISSOURI LAW REVIEW, at 372 (1973). 69 Sex Offender Treatment: Research Results Inconclusive About What Works to Reduce Recidivism. Government Accounting Office, GGD-96-137, June 21, 1996. 70 Reno Receives Highest Law School Award. The Louisville Cardinal, Independent Student Newspaper of the University of Louisville, February 12, 2002, p. 1-2. 71 Richardson, supra. Note 69, at 377, 392. 72 Herbert Wechsler, A Thoughtful Code of Substantive Law, 45 JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE, at 524-535 (1955). 73 Herbert Wechsler, Codification of the Criminal Law in the United States: The Model Penal Code, 68 COLUMBIA LAW REVIEW at 1427(1968). 74 Wechsler cites to drafting committees in Minnesota, 1964; New Mexico, 1964; New York, 1967; Pennsylvania, 1967; and Michigan, 1967. Other early revisions include Illinois, 1962; Georgia, 1969; Kansas, 1970; Maryland, 1970; New Jersey, 1971; Massachusetts, 1972; Colorado, 1972; and Kentucky, 1974. 75 U.S. Child Population, Bureau of Census, International Data Base reports 76.97 million under 20 in 1970, and 78.60 million under 20 in 2000. 76 $17 billion spent on major STDs and their preventable complications, including HIV infections in 1994. Data from the National Institutes of Health NIAID, Fact Sheet, December 1998. 77 A study last year by the Manhattan Institute demonstrated that enforcing penalties against minor crimes prevented over 60,000 violent crimes in New York City from 1989 to 1998. The tough-oncrime stance some call broken-windows policing, was significantly and consistently linked to declines in violent crime. See George Kelling & William Sousa, Jr. Do Police Matter? An Analysis of the Impact of New York Citys Police Reforms. CIVIC REPORT NO. 22, December 2001. The Manhattan Institute for Policy Research. 78 Joseph Epstein, COMMENTARY, January 1998. At www.Britannica.com, downloaded March 31, 2001 79 WEBSTERS AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE, (1828), The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children. 80 David Allyn, Private Acts/Public Policy: Alfred Kinsey, the American Law Institute and the Privatization of American Sexual Morality. 30 JOURNAL OF AMERICAN STUDIES at 426 (1996). 81 Michael Phillips, To Help Fight AIDS, Tanzanian Villages Ban Risky Traditions, THE WALL STREET JOURNAL, January 12, 2001, at 1. 82 Leonard Baker, BRANDEIS AND FRANKFURTER: A DUAL BIOGRAPHY at 29 (Washington Square, NY: New York University Press, 1986). 83 Lester Kirkendall, Education for Family Living, in Ellis and Abarbanel (Eds.), THE ENCYCLOPEDIA OF SEXUAL BEHAVIOR at 700 (1967). 84 Morris Ernst and David Loth, AMERICAN SEXUAL BEHAVIOR AND THE KINSEY REPORT, (NY: Graystone Press, 1948).
The State FactorRestoring Legal Protections for Women and Children
April 2004
From the first presentation to the ALEC Education Task Force of the Kinsey fraud in 1999 to the final vote at the 2003 ALEC Summit meeting. it has been a pleasure working to make this State Factor a reality. I was honored to serve as the Junk Science sub-committee Chair on this very important project. The evidence herein speaks for itself, documenting the reckless, imprudent decades-long use of fraudulent "sex science" data to cripple the sex laws and public policies that had served our nation so well until they were deftly subverted by a cadre of legal revolutionaries. It is hoped that this State Factor will serve legislators all over the nation by providing a factual history of how the Kinsey frauds came to dictate school sex education and our sex laws nationwide. SenatorKay OConnor Chair of the Subcommittee on Junk Science
The ALEC Education Task Force members who served on the Subcommittee on Junk Science are: Senator Kay O'Connor (KS) Chair Rep. Keith King (CO) Senator Laurie Bleaker (KS) Del. Janet Greenip (MD) Rep. Carolyn Coleman (OK) Rep. Andre Martel (NH) Del. John Reid (VA) Senator Jack Westwood (KY) Dr. Judith A. Reisman, Scientific Advisor to the Subcommittee on Junk Science. Dr. Linda Jeffrey was the State Factors Chief Author for Restoring Legal Protections for Women and Children: A Historical Analysis Of The States Criminal Codes.
For further information on changes to state law codes, please see the detailed monograph, A History of the American Law Institutes Model Penal Code: The Kinsey Reports Influence on Sciencebased Legal Reform1923-2003, available at www.firstprinciplespress.org. Drs. Reisman (jareisman@surewest.net) and Jeffrey (drjeff@aye.net) are available for questions or to brief legislators and other state leaders or for consultation and expert testimony if required.
EXHIBIT C
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN DIVISION
TARA KING, ED.D, individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, Civil Action No. 13-5038 (FLW)(LHG) v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants.
DECLARATION OF JOHN DOE, MINOR CHILD I, John Doe, hereby declare as follows:
Declaration of John Doe, Minor Child. - 1
1.
I am under the age of 18 and am a resident of New Jersey affected by A3371, the
legislation that is the subject of this action. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. I am submitting this Declaration in support of Plaintiffs Motion for Summary Judgment
and in opposition to Defendants' Cross-Motions for Summary Judgment. 3. I am 15 years old, and I began to see a therapist for my Gender Identity Disorder (G.I.D.)
and Same-Sex Attraction when I was 13. 4. The first time I remember having G.I.D. was when I was nine years old. I remember
having a bias against the male sex, thinking that boys were stupid because my mother said bad things to my father. I also did not feel like my father accepted me because I was very artistic and not like the boys he had grown up with. 5. When I was 10, I started feeling like I wanted to commit suicide because I didnt like
myself. I thought I would like myself much better if I were a girl. I began to secretly shave my armpits and pubic hair, so I could look more feminine. When my voice began to change, I tried to make it higher because I couldnt stand how low it was becoming. I hated everything masculine about myself. I thought I would be happy if I could be feminine. 6. I began having feelings of Same-Sex Attraction when I was 12 or 13. I remember having
crushes on celebrity guys I saw in magazines. This is when my thoughts of s uicide were at their worst. I hated myself because I wasnt as good as these guys. These guys were muscular and athletic, and I knew I wasnt. I thought that if I were a girl, I wouldnt have to compete with them anymore. I knew I would never be good enough if I remained a boy. The hatred I felt for myself made me feel panicky, and my obsessive-compulsive traits became worse than theyd ever been. I was having panic attacks during the day and I had trouble sleeping at night. My life
was spinning out of control and I was so depressed, I was thinking about killing myself around the clock. My parents knew that I was suicidal, so after my most extreme outburst to that point and when they found pictures of guys under my mattress, they took me to a new therapist. 7. At that time, my suicidal thoughts were at their highest frequency. My parents wanted to
get me help, and I wanted help, too, although at the time I didn't know it. I just couldn't stand having to live with these conflicting feelings. My parents agreed to seek help from a
professional counselor recommended by NARTH, who specializes in helping men reduce or eliminate their unwanted same-sex sexual attractions. 8. After my parents contacted my therapist, we talked to him about his therapy. He
explained to us the theory of why I was experiencing same-sex attractions, which he said were really the manifestation of underlying emotional issues and childhood wounds that were caused by unmet needs I had as a child. Specifically, he explained that my lack of positive attention from my father and an improper identification with my mother were the root causes of my unwanted same-sex attractions. 9. My therapist explained the types of counseling that he uses in reparative therapy sessions,
explained that some therapists do not think an individual can or should change his sexual orientation, that not everyone is able to successfully reduce or eliminate their unwanted same-sex attractions, and told us that often patients continue to struggle with same-sex attractions throughout life and that fully recognizing my heterosexual potential is a life-long process. 10. My religious belief and conviction is that homosexuality is wrong. I wanted to address
that value conflict because my same-sex attractions are contrary to the religious values that I hold. I want to live out my religious values and do not want to act out on same-sex attractions
My understanding is that this kind of treatment would be banned under A3371 because it qualifies as sexual orientation change efforts.
1
that violate my religious beliefs. I want to resolve my sexual attractions so that I act in conformity with my religious beliefs. Because of this, and because I did not want to experience these same-sex attractions, I talked with my parents about having my therapist help me. My parents agreed to permit me to participate in reparative therapy with him. 11. I have been seeing this therapist since May of 2011, and I can really say I am improving.
I now have a normal guy voice, I dont shave my body hair anymore, and I definitely have a better relationship with my father. I do not have thoughts of suicide anymore and my confidence as a guy is starting to build. 12. I really look forward to the counseling sessions so that I can move further towards
overcoming my same sex attractions. I would also say that my Same-Sex Attraction is lessening to the point where its only three out of 10 when it used to be eight out of 10. Every day gets a little better with therapy. I just do not experience my unwanted same-sex sexual attractions as frequently as I did before I started my counseling sessions with my therapist. The counseling sessions have really helped me. 13. I feel like I now have hope that someday I might be able to get to the point where Im
living a happy single life. I might even be able to get to the point when I can live a happy married life, when I am old enough. 14. I want to be able to continue to go to my counseling sessions with my therapist. I have
made progress, but I still need more therapy to help me toward my goal of eliminating my unwanted same-sex attractions. 15. I am very concerned that if my therapist is not allowed to continue to provide my
counseling, then I might lose much of the progress that I have made so far in treatment. I believe that if he is not allowed to continue to provide my counseling, then I will begin to experience the
same feelings of confusion and awkwardness that we have worked so hard to reduce and eliminate, and may even begin to have thoughts of suicide again. I also believe that if my therapist is not allowed to continue to provide my counseling, then I will begin to experience my unwanted same-sex attractions more often than I do and that I will have a harder time dealing with them and with the conflict between those attractions and my religious beliefs. 16. I really want to emphasize that the counseling has significantly improved the relationship
between my parents and me. I think additional counseling will only strengthen that relationship. I do not think that the rights of my parents to get therapy for me should be taken away. I think I should have the right to get this therapy. I think everyone should have the freedom to pursue whats right for them. 17. No one has forced or coerced me to attend counseling with my therapist; at the end of the
day, I am the one who wants to continue the treatment for my unwanted same-sex attractions. The counseling sessions have not harmed me in fact, they have helped, and I am a much happier person than I was before. 18. I declare under penalty of perjury under the laws of the United States and the State of
New Jersey that the foregoing statements are true and accurate.
_/s/_____John Doe_______________ John Doe, Minor Child
Executed this 20th_ day of September, 2013.
DECLARATION OF JANE DOE, MOTHER OF MINOR CHILD I, Jane Doe, hereby declare as follows:
Declaration of Jane Doe, Mother of Minor Child. - 1
1.
I am over the age of 18, a resident of the State of New Jersey, and am affected by A3371,
the legislation that is the subject of this action. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. My husband and I, and our son, John Doe, currently counsel with a Licensed Clinical
Social Worker in New York, who is a member of NARTH and has been certified by Dr. Joseph Nicolosi in SOCE. Although we are happy with our current therapist, as residents of New Jersey, and as parents, we wish to retain the option of seeking similar therapy within New Jersey, should the need arise in the future. A3371 is an invasion of our right to do so; while the gun is aimed at the license of therapists, its intended target is the right of parents to raise their children in accordance with their religious, rational, and moral beliefs. 3. I am therefore submitting this Declaration in support of Plaintiffs Motion for Summary
Judgment and in opposition to Defendants' Cross-Motions for Summary Judgment. 4. I am the mother of my 15 year old son, John Doe, who is the eldest of my four children.
When my husband and I were first married, we had many arguments in front of our infant son. I would constantly say things to my husband like: You are not loving enough. You are not a good husband. Women are better than men because they know how to express their feelings. While it was true that my husband was somewhat cold and had a difficult time expressing his emotions, these words should never have been communicated in front of our young son. Our son has also always been very sensitive and artistic, which is why my critical view of my husband and my husbands lack of emotion likely had a negative impact on our sons upbringing. 5. At the age of five, our son began to play with female dolls such as Barbies or dolls based
on Disney characters. In particular, he was obsessed with Ariel from The Little Mermaid. He was also a gifted artist who drew free-hand sketches of Ariel on any scrap piece of paper he
could find. Our son spent many long hours drawing, which my husband did not appreciate because he himself was not an artist. I remember one specific incident that my son would later recall as extremely hurtful for him. While he was drawing my husband asked, Why cant you be like all the normal boys and go outside to play sports? I was livid because I was a musician and knew what it was like to be a sensitive artist. 6. By the time our son turned 10, we had an incident at another couples house where our
son was caught taking off his clothes in order to dress up in princess costumes. We felt very embarrassed because we knew this behavior appeared to be quite disordered. 7. Later on, our son also began to exhibit suicidal behavior where he would take sharp
knives into the bathroom and threaten suicide. At these moments, he would yell that he would have preferred it if God had made him a girl. We became concerned that our son could have Gender Identity Disorder, or G.I.D. 8. At this point, we knew we needed to seek therapy for our son. We searched for a Catholic
therapist believing that as long as the therapist shared our faith, he would be able to help our son. I have a fairly extensive understanding of the theories relating to G.I.D and Same-Sex Attraction, which I obtained in part from self-study and in part through my Masters in Systematic Theology from Seton Hall Universitys Immaculate Conception Seminary School of Theology. Thus, I was surprised and concerned when this Catholic therapist did not seem to share the same scholarly view of G.I.D. and Same-Sex Attraction as the many experts in the field with whom I studied. It was therefore no surprise to me that our son did not improve. In fact, he just seemed to get worse. 9. With no real help for my son's underlying issues, he continued to experience distress.
This distress came to a peak when he turned 12, when his voice began to change with adolescence. It seemed the deeper it became, the more our son tried to make his voice artificially
higher and by the time he turned 13, he began to speak in a high, artificial falsetto. At this point, the downward spiral was very quick. We took a trip to Myrtle Beach and our son shaved his body hair, including his armpits, flushed his underwear down the toilet, and tried to fling himself over the balcony of our hotel room. Upon our return home, we found various pornographic pictures and illustrations of men in graphic sexual positions under his mattress. 10. This time, we reached out to a good priest friend of ours who introduced us to the
National Association for the Research and Therapy of Homosexuality, or "NARTH." Through NARTH, we found a fantastic therapist, an LCSW, who happens to be an Orthodox Jew who studied under Dr. Joseph Nicolosi, and who is also a specialist in reparative therapy. 11. We contacted our current therapist to discuss whether our son would be able to benefit
from reparative therapy. He explained to us his theory of why my son was experiencing samesex attractions, which he said were really the manifestation of underlying emotional issues. Our therapist explained that some of my sons emotional and personal identity issues were the result of some childhood wounds that were caused by needs that my son had as a child that my husband and I did not meet. Our therapist also explained that my husbands failure to provide positive male attention caused my sons desire to fit in with me as a woman, and that this was the root cause of my sons unwanted same-sex attractions. 12. Since our son had told his father and me that he did not want to experience his same-sex
attractions and wanted to have a therapist help him, and after consultation with our son as to this course of action, my husband and I agreed to engage our therapist for reparative therapy with our son.
Reparative therapy is the name Dr. Nicolosi uses, which practice appears to fall within the ambit of "sexual orientation change efforts" under A3371.
13.
Our therapist explained the types of counseling that he uses in counseling sessions, that
some therapists do not think an individual can or should change his sexual orientation, that not everyone is able to successfully reduce or eliminate their unwanted same-sex attractions, and told us that often patients continue to struggle with same-sex attractions throughout life and that my sons ability to fully recognize his heterosexual potential is a life-long process. 14. My son, who is still a minor, has now been receiving counseling from our therapist since
May 2011. Because of the counseling sessions, we have noticed significant changes in our son, such as the fact that he exhibits more traditional male characteristics. Our son has told my husband and me that he no longer experiences his unwanted same-sex sexual attractions as frequently as he did prior to counseling. 15. Our son has now grown closer to his father, has begun to embrace his masculinity, and
never speaks of suicide or wanting to be a girl. There is still much to be resolved, though, in terms of his confidence as a young man who can compete with other young men and see himself as appealing to the opposite sex. Our son may need therapy for the rest of his life, and with it, he has the chance to lead a happy and healthy lifestyle. It is our sons desire and therefore our desire that our son be permitted to continue his counseling during the remainder of his adolescence, and beyond, if need be. 16. I believe that if my son can continue these counseling sessions, then he will be able to
continue to make progress toward his goal of eliminating his unwanted same-sex attractions. On the other hand, I believe that if my son is no longer allowed to receive this counseling, then my son will regress from the progress he has made thus far, and will again suffer from the personal identity issues and unwanted same-sex attractions that he asked us to help him reduce.
17.
Our son has told my husband and me that he believes that if his therapist is no longer
allowed to provide reparative therapy to him that he will have a harder time dealing with his unwanted same-sex attractions. As a mother, I believe that my son should be permitted to continue with his desired course of therapy without interference from the state. If the State prohibits his therapy, I particularly fear that he will begin to again experience suicidal thoughts and may even attempt suicide. 18. The relationship between our son and the two of us has significantly improved since he
started the counseling with his therapist. I believe the relationship between my husband and my son will continue to improve if he is allowed to continue to have this counseling. If he is not allowed to continue, then our relationship with our son might regress as he becomes unhappy with any increased and unwanted gender and sexual identity issues. 19. Our son has been the one who has said that he wants to engage in and continue with the
treatment. My husband and I have affirmed our sons choice and never pressured him to either start or continue the treatment. We have seen the counseling benefit our son, and we have not seen any harm resulting from the counseling. He is much happier and less withdrawn and depressed since he began counseling. 20. In addition to the fact that my husband and I firmly believe that our son should be able to
seek counseling for his unwanted same-sex attractions, my husband and I also have sincerelyheld religious beliefs that homosexuality is a harmful lifestyle. As parents, we believe we have the right to obtain counseling from a licensed professional to help our son with his unwanted same-sex attractions without interference from the State. We firmly believe that the counseling is helping our son make positive life changes. A3371 significantly burdens our rights as parents to help our son and help him in the best way we know how.
21.
I am completely appalled at Governor Christies decision to deny parents the right to seek
therapy for children with Gender Identity Disorder or unwanted Same-Sex Attractions. I feel Governor Christie has made a very ignorant decision not on the basis of true reparative therapy norms, but on the basis of ridiculous and ludicrous examples of therapy that sound not only insane, but downright criminal. I hope that this unlawful decision can be overturned, so that childrens lives can be saved through true, healing reparative therapy. 22. I declare under penalty of perjury under the laws of the United States and the State of
_/s/_____Jane Doe_________________ Jane Doe, Mother of Minor Child John Doe
Executed this _20th_ day of September, 2013.
DECLARATION OF JACK DOE, FATHER OF MINOR CHILD I, Jack Doe, hereby declare as follows:
Declaration of Jack Doe, Father of Minor Child. - 1
1.
I am over the age of 18, a resident of the State of New Jersey, and am affected by A3371,
the legislation that is the subject of this action. The statements in this Declaration are true and correct and if called upon to testify to them I would and could do so competently. 2. My wife and I, and our son, John Doe, currently counsel with a Licensed Clinical Social
Worker in New York, who is a member of NARTH and has been certified by Dr. Joseph Nicolosi in SOCE. Although we are happy with our current therapist, as residents of New Jersey, and as parents, we wish to retain the option of seeking similar therapy within New Jersey, should the need arise in the future. A3371 is an invasion of our right to do so; while the gun is aimed at the license of therapists, its intended target is the right of parents to raise their children in accordance with their religious, rational, and moral beliefs. 3. I am therefore submitting this Declaration in support of Plaintiffs Motion for Summary
Judgment and in opposition to Defendants' Cross-Motions for Summary Judgment. 4. I am the father of my 15 year old son, John Doe, who is the eldest of my four children.
When my wife and I were first married, we had many arguments in front of our infant son. I caused a lot of problems because I was not an outwardly loving man. Instead, I saw love as being constantly on the go, being a doer and a provider. That compounded with stubbornness caused my wife and I to have raging arguments for hours and well into the night. I hurt her enormously, and she would in turn berate me in front of our son. This undoubtedly had a negative impact on our sons upbringing. 5. In his elementary school years (grades K through 4), our son started playing with dolls.
We thought it was atypical, but did nothing about it. He also tried playing baseball and soccer during these years. He quit soccer after a few weeks, but stuck with baseball for two years, after much prodding from my wife and me. It was readily apparent he did not feel comfortable around
other boys, or in playing these sports. He was particularly bad at baseball. When they put him into right field, he would tend to "skip" out to his position and his at-bats were very weak. He also tried Cub Scouts, which did not work out very well, either. He did not have any interest in boy activities and could not relate to the other Scouts. Instead of sports and Scouts, which were my interests as a young boy, my son spent hours honing his artistic gifts. While he was drawing I asked, Why cant you be like all the normal boys and go outside to play sports? It was very insensitive on my part. I was hung up on real men playing typical sports and did not appreciate his wonderful gifts. As a result, there was distance and discord between us, and he moved emotionally closer and closer to his mother. 6. Once our son entered junior high school (grades 5 7), we hoped things would get better.
He entered a new school, got involved in the drama club, started swimming on the local swim team and entered karate tournaments. Even though we thought he was doing better, inside he was doing worse. He started cutting himself and entertaining thoughts of suicide. Whatever activity he got involved in, he could not relate to other boys, and could not perform to his potential. At his core, our son was in a battle with himself. He felt inadequate as a young man, emotionally distanced from his father, and attracted to boys and men who embodied what he thought a boy/man should be. At a particularly low point he expressed that he wished God had made him a girl. 7. At age 12, our sons voice began to change with adolescence. It seemed that the deeper
his voice became, the more our son tried to make his voice artificially higher and by the time he turned 13, he began to speak in an obviously artificially high, falsetto voice. At this point, our son began to spiral downward very quickly. We took a trip to Myrtle Beach, and our son shaved his armpits, flushed his underwear down the toilet, and tried to fling himself over the balcony of
our hotel room. Then, we returned home to find various pornographic pictures and illustrations of men in various positions under his mattress. 8. This time, we reached out to a good priest friend of ours who introduced us to NARTH.
Through NARTH, we found a fantastic therapist, who happens to be an Orthodox Jew, who studied under Dr. Joseph Nicolosi. With our therapist, we began therapy that involves repairing the broken relationship between my son and me as well as helping my son to realize that he is a wonderful young man and much more well-rounded than he gives himself credit for being. We have learned together that there is no such thing as the "perfect man." My son, through this journey with his counselor, a NARTH member, is moving towards establishing healthy friendships with other teen boys.1 9. Our son has been seeing this therapist since May of 2011, which was the spring of his 7th
grade year. Since beginning counseling, our son has grown closer to me, has begun to embrace his masculinity, and never speaks of suicide, cutting himself, or wanting to be a girl. Our son is actively involved in martial arts and swimming while still pursuing his artistic interests. Our son was voted Best Team Spirit two years in a row by his swim team coaches, won matches in karate tournaments, had a lead role in his 8th grade play, and earned a scholarship to his Catholic High School. Before therapy, our son could only draw women, because he had no concept of men, but now, after relatively few years of therapy, our son draws both genders well. 10. My son has greatly benefited from therapy, but his journey is far from over. My son is
not yet where he wants to be and our relationship still has a lot of room to grow. 11. The current New Jersey legislation makes it illegal for us to seek and continue within
New Jersey the type of therapy that has been so helpful for my son's journey towards becoming a
Reparative therapy is the name Dr. Nicolosi uses, which practice appears to fall within the ambit of "sexual orientation change efforts" under A3371.
1
young man who is happy, healthy, and has high self-esteem. For the health of my son, this legislation has to be overturned. 12. I declare under penalty of perjury under the laws of the United States and the State of
_/s/_____Jack Doe_________________ Jack Doe, Father of Minor Child John Doe
Executed this __20th_ day of September, 2013.

Liberty Counsel Motion in Support of Summary Judgment With Affidavits

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