Scientology 'arbitration' ripped apart by trafficking experts in law journal
Three years ago, we were really let down by some academic types.
You may remember it. Some scholars at Emory University who were hosting a forum on “religious arbitration” invited us to give a short presentation about our experience reporting on how the Church of Scientology uses arbitration clauses in service contracts in order to disrupt lawsuits brought by former church members.
For our presentation we were concise and factual, referring to several different cases we were reporting on. But Scientology’s attorneys bellyached about our participation, and Emory eventually caved and had our talk removed, as if it never happened. We were stunned to see the university show such academic cowardice.
So, three years later it’s really refreshing to see an academic journal take a serious swipe at Scientology and its arbitration scheme, and also cite us and our reporting numerous times while doing it.
"Dismissing Human Trafficking: Forced Arbitration of Survivors' Civil Suits" by University of Arkansas professor of law Annie Smith and litigation attorney and human trafficking expert Daniel Werner appears in the latest edition of the Villanova Law Review, and runs to 59 heavily-footnoted pages.
And wow, it’s so refreshing to see these experts really get it.
Although they refer to a wide variety of trafficking lawsuits that have been derailed by arbitration, they repeatedly highlight Scientology cases in particular to make the point of how justice is being trashed.
They open their article, for example, by citing what Gawain and Laura Baxter and Valeska Paris have been up against in their Tampa federal lawsuit. The three Australian residents sued Scientology and church leader David Miscavige in 2022 over the way they were treated as children and adults working aboard Scientology’s cruise ship the Freewinds and while members of the “Sea Organization.”
The church’s attorneys cited contracts the Sea Org workers had signed which contained arbitration clauses, and district Judge Thomas Barber said his hands were tied by Supreme Court rulings and that he had no choice but to force the lawsuit into Scientology’s own brand of arbitration. (The Eleventh Circuit then refused their petition for an interlocutory appeal, and so Valeska and the Baxters now face the prospect of submitting to Scientology’s kangaroo court.)
Write Prof. Smith and Werner…
Rather than provide plaintiffs an opportunity to seek accountability, the court in Baxter v. Miscavige instead granted defendants’ motion to compel arbitration and directed plaintiffs right back to their purported traffickers; the court ordered the parties to participate in arbitration “solely and exclusively through Scientology’s Internal Ethics, Justice and binding religious arbitration procedures.” This outcome is not an anomaly. Federal courts have compelled arbitration of federal human trafficking claims in at least ten cases. Meanwhile, the problem is undoubtedly larger; there is no way of knowing how many survivors tried to pursue their claims solely through arbitration, were unable to find lawyers willing to represent them in arbitration, or were dissuaded from initiating legal action at all.
They go on to say that workers subjected to trafficking often allege being coerced to sign such contracts, and that, paradoxically, the question of whether a contract has been properly signed is adjudicated by the arbitrator, who obviously has a financial bias to handling the case. And they also point out that allowing accused traffickers to handle the cases on their own gives up the state’s powers to potential criminals.
Trafficking survivors deserve the full protection of the law and the choice to be heard in court. Human trafficking is a form of exploitation that causes profound physical, emotional, economic, and relational harms…. Survivors who are able to eventually sue their traffickers may increasingly find their cases are barred by forced arbitration clauses that, like the Baxter plaintiffs, they unwittingly or unwillingly signed.
Most trafficked individuals who sign arbitration agreements do not anticipate that they will be subjected to human trafficking and do not realize they have waived their right to bring future claims in court. The provisions often are buried in long employment agreements or other documents and are not in the native language of the victim.
We’ve heard this from each of the former Scientologists who have run into this problem in court: They say they had no idea they were signing away their right to sue the church at some future date when they signed service contracts for a church process or employment contract.
And even though a very significant change was signed by President Biden in the wake of the #MeToo movement that cancels forced arbitration in cases of sexual assault and sexual harassment, that narrow change doesn’t affect lawsuits over human trafficking, Smith and Werner point out.
That progress is laudable but insufficient. At a minimum, the Federal Arbitration Act should be further amended to explicitly exclude all human trafficking disputes as well.
Like we said, the article looks at numerous sorts of trafficking lawsuits and the way arbitration has derailed them, but later in the article they focus again on Scientology and two additional cases we have watched very closely: The lawsuit brought in 2013 by the Garcias, and Valerie Haney’s 2019 lawsuit, both of which were forced into Scientology’s internal brand of arbitration.
They describe how when these plaintiffs actually went through Scientology’s arbitration, what they were subjected to was nothing like a proper court proceeding.
Like the Garcias, Haney was ordered to participate in “religious arbitration” to resolve her claims. She too alleges she was barred from even being accompanied by her lawyers for the arbitration though the church had two attorneys present—two of whom Haney alleges were involved in her abuse. The church provided no notice of who the panel of arbitrators were prior to the start of arbitration. Of the panel of three arbitrators designated by the church, one was allegedly involved in the abuse that was at the center of the case. Haney was not informed of who would be a witness until they testified, so she could not prepare. She was not permitted to submit documents as evidence. The church also refused to let her have the arbitration transcribed. The district court that ordered the arbitration also required Haney to provide her home address to the defendants.
Haney and the Garcia’s reported experiences and the court’s acceptance of them bode poorly for the Baxter plaintiffs. Haney described the feeling of being forced by the courts into a process that her exploiters controlled: “Scientology literally abused me my entire life, I finally escaped, and I’m trying to use the U.S. judicial system, and now they’re going, oh no, you need to go back and do everything that your abuser says.”
We’re very glad to see Val’s experiences cited like this, and based on the interview she did with us for Rolling Stone.
And Smith and Werner, in polite academic language, are clearly gobsmacked to see the law perverted like this.
As a stunning example of what the Baxter and Paris plaintiffs can likely expect if they proceed with a Scientology-controlled arbitration, they cannot bring counsel, will have no notice of the identity of their arbitrators or witnesses, will be barred from presenting physical evidence, and will not be permitted to create a transcript of the proceedings. They may also have to turn over their current addresses to the trafficker; the arbitrators and counsel for the traffickers may have themselves directly participated in the alleged trafficking. These serious limitations, if true, are a troubling repudiation of longstanding procedural protections under U.S. law and thoroughly undermine the private right of action created by Congress.
Exactly right!
This is a heavily researched, very detailed article that goes into various areas about how trafficking victims are being short-changed. The authors propose simple changes to the Federal Arbitration Act and immigration law that would help improve the situation.
We can only hope that more academics (particularly the theetie weeties at Emory), pay some attention, and that lawmakers get with the program and heed the conclusion by Professor Smith and Werner…
Many of the challenges surrounding human trafficking are complex and costly to address; the problem identified in this Article is not. Congress should act promptly to preserve the rights of human trafficking survivors and the beneficial effects of civil litigation by amending the FAA to explicitly exclude human trafficking disputes and to bar pre-dispute arbitration provisions in contracts governing all employment-based visa programs.
Scientology ads back in London Underground
Alex Barnes-Ross had told us that after the Aftermath Foundation turned the tables on Scientology and posted ads of its own at the Tottenham Court Road tube station, he had heard that Scientology had come right back with their own again.
He confirmed that yesterday and sent us a couple of photos.
Surely, London will be cleared in no time.
In Germany, the government is on to Scientology
It was noted in our comments section yesterday that German officials last month put out a short film warning the public about Scientology’s various scams.
Mark Bunker has helpfully put English subtitles on this very insightful guide to avoiding getting sucked into Scientology.
He says it ought to be a valuable tool for the Clearwater City Council, which is discussing Scientology again in a meeting tonight.
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The word 'Justice' means different things to different people. Giving your abuser power over you after you escaped it beyond stupid and totally not something the word 'justice' is supposed to convey in an American Court.
Annie Smith and Daniel Werner understand how the intention and actual practice of law are not working for those suing the Clampire. Now, can someone write up changes to the law that accomplish fairness and 'justice' for everyone who was abused by some trafficking person/corporation/religion?
Getting those changes through Congress while some very prominent Clams have inroads in the current administration may be daunting. But if you don't try, you can't succeed.
Such good news! Thank you, Tony.
There is only one "h" in theetie-weetie. Like namby-pamby and panty-waist it describes characteristics despised by psychopaths but cherished by normal humans. Dare to care.