New Jersey gay conversion therapy case: Blocked expert testimony could be end of abusive practice.

This Court Ruling Could Mean the End of Gay Conversion Therapy

This Court Ruling Could Mean the End of Gay Conversion Therapy

The law, lawyers, and the court.
Feb. 10 2015 2:34 PM

Unconscionable Practice

This court ruling could mean the end of gay conversion therapy.

jewish gay conversion therapy.
Four gay men are suing Jews Offering New Alternatives for Healing, alleging that its gay conversion therapy practice is a fraud.

Photo illustration by Slate. Photo by Thinkstock.

Chaim Levin prayed to God to cure his homosexuality—and Alan Downing promised to answer his prayers. Levin, an 18-year-old orthodox Jew and a victim of childhood sexual abuse, believed his attraction to men was a disorder; Downing, a gay conversion “therapist,” said he could heal him. At one therapy session, for which Levin’s parents paid $100, Downing told Levin to remove a piece of clothing, say something bad about himself, then repeat the process. Levin complied until he was naked. Downing instructed Levin to touch his penis, then his buttocks, while Downing watched. This, Downing said, would help Levin become straight.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Today, Levin is one of four gay men suing Downing and his colleagues for subjecting them to humiliating and discredited treatments. Their lawsuit posits that Downing and his fellow counselors violated a New Jersey consumer protection statute by claiming, falsely, that their services would actually work. That is, Levin and his fellow victims are suing them for being quacks. Downing assured Levin he could cure his homosexuality. Now Levin is suing to prove that assurance was a lie. And if he wins, gay conversion therapists around the country could find their jobs at risk.

The legal theory behind Levin’s lawsuit is surprisingly simple. New Jersey’s Consumer Fraud Act bars any organization from advertising a good or service that doesn’t work by pretending that it does. Downing and his organization, Jews Offering New Alternatives for Healing, offer gay conversion therapy—a service that, licensed psychologists almost unanimously agree, does not work at all. Yet JONAH’s counselors routinely insisted that, through bizarre and often sexually charged activities, they could stifle same-sex desire and ignite opposite-sex attraction. Levin and his co-plaintiffs, who are represented by the Southern Poverty Law Center, gave JONAH a good chunk of money to receive these worthless services, then paid even more money for real therapists to help them process the trauma they underwent at JONAH. Under New Jersey law, they’re suing to get that money back—with damages.

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The SPLC assumed that much of the court battle would revolve around the question of whether homosexuality can, in accordance with current scientific knowledge, be deemed a disorder. JONAH’s entire practice revolves around this presumption, as well as the idea that, as a disorder, homosexuality can be “cured.” If the judge allowed JONAH to argue that part of the scientific community views same-sex attraction as a fixable flaw, the jury might hesitate to find that the promise of a gay cure constituted false advertising.

If, on the other hand, JONAH were forbidden from putting forth ostensible scientific evidence that homosexuality is a disorder, the SPLC’s case would become nearly airtight. If homosexuality is not a disorder, and gay desires can’t be “cured,” then JONAH was, objectively, lying to its clients—in clear violation of New Jersey’s Consumer Fraud Act.

This debate could have dogged the SPLC throughout the trial. But earlier this month, Superior Court Judge Peter F. Bariso threw JONAH’s pseudoscience out the window. JONAH had moved to put six defense experts on the stand who would testify that homosexuality is a disorder. The SPLC moved to block all six experts, noting that in New Jersey, expert testimony related to a scientific technique is allowed only where that technique has “general acceptance” in its particular field. Since the vast majority of scientists, doctors, psychologists, and psychiatrists believe homosexuality is not a disorder and gay conversion therapy is futile, the SPLC argued, all of JONAH’s expert testimony should be excluded.

In an emphatic order, Bariso agreed. “The theory that homosexuality is a disorder,” Bariso wrote, “is not novel but—like the notion that the earth is flat and the sun revolves around it—instead is outdated and refuted.” Bariso barred five of JONAH’s experts from testifying at all, since their opinions would be based in the “obsolete and discredited scientific theor[y]” that homosexuality is a curable affliction. (The sixth expert will be permitted to testify about an unrelated matter.) As a result of this blunt ruling, JONAH has no experts to speak to the validity of its allegedly therapeutic practices. (Update, Feb. 10: Soon after publication, Bariso ruled that, as a matter of law, JONAH’s description of homosexuality as an illness constituted “misrepresentation” in violation of New Jersey’s statute. Thus, JONAH cannot even argue in court that homosexuality is, indeed, a disorder.) The backbone of its legal defense has been effectively shattered.

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But it gets worse for JONAH. In addition to barring false and fraudulent advertising, New Jersey’s Consumer Fraud Act also forbids unconscionable commercial conduct—in other words, any for-profit practice that shocks the conscience. State courts have ruled that this standard must be interpreted liberally to protect the public from dishonest or harmful business practices.

Here, the SPLC would seem to have a slam-dunk case. JONAH conducted group therapy sessions in which young gay men were blindfolded while counselors dribbled basketballs and shouted anti-gay slurs. In other group sessions, clients were made to undress and stand in a circle together, while their counselor—who was also naked—looked on. Other times, counselors and their clients partook in “group cuddling sessions.”

Those therapies were mild compared with some of the other sessions. In one group activity, clients held hands to create a human chain while one person stood behind the chain holding two oranges, meant to represent testicles. Clients then took turns standing on the other side of the chain while the rest of the group shouted anti-gay slurs at them. The goal was to goad clients into pushing through the chain and grabbing the oranges. At one particularly atrocious session, a counselor instructed Levin to select someone from the group to role-play his past abuser. The selected participant was made to yell abusive statements that Levin’s abuser had made, such as “I won’t love you anymore if you don’t give me blowjobs.”

Individual sessions were just as disturbing. Downing appears to have asked most of his clients to undress while he watched. He also instructed at least one client to beat an effigy of his mother with a tennis racket while screaming, as if murdering her. Another JONAH counselor told a client to wear a rubber band around his wrist and snap it every time he felt attraction to a man. And JONAH counselors frequently told their clients to go to bathhouses with their fathers in order to be naked in their presence.

It goes without saying that none of these practices are scientifically proven to change one’s sexual orientation. They are, in fact, entirely made up. Further, JONAH’s humiliating, degrading therapies seem designed to force young gay men to disrobe in front of their counselors—and to touch themselves and their counselors sexually.

But Levin and his co-plaintiffs aren’t suing JONAH on any counts of sexual abuse. Instead, they’re focusing solely on JONAH’s false advertising and unconscionable business practices, for an exceedingly clever reason. Every state, as well as the federal government, has some provision that forbids fraudulent, false, and misleading advertising. Not all of these laws are as sweeping as New Jersey’s, but many may be broad enough to prohibit the sale of therapies that are scientifically proven not to work—for instance, gay conversion therapy. Should the SPLC’s New Jersey lawsuit succeed, gay conversion therapists across the country may need to lawyer up.

Of course, these kinds of lawsuits won’t, and can’t, outlaw ex-gay therapy everywhere: Consumer fraud statutes only apply to services sold to the public, so religious groups can still pressure people into such treatments for free without running afoul of the law. (These groups could probably claim a First Amendment right to “convert” gay people, anyway.) But as the legislative push to outlaw gay conversion therapy stalls in the states, the SPLC’s suit presents a glimmer of hope for those who wish to drive this debunked pseudoscience into extinction. It’s too late to save Chaim Levin from Alan Downing’s abuse. But there’s still time to protect the next generation of gay people from the exploitative mistreatment that gay conversion therapists are alarmingly eager to inflict.