A few stories involving blasphemy have caught my eye over the past month.
* Religion Clause Blog has a story about a British citizen of Pakistani origin named Muhammad Asghar who has been convicted and sentenced to death in Pakistan for blasphemy. The man wrote letters to several people, including police, claiming to be a prophet. The man has a history of mental illness. According to the report, Pakistan has a de facto moratorium on the death penalty and so an actual execution is unlikely (his conviction is also the subject of an appeal).
* Volokh Conspiracy discusses a story from The Guardian about a Greek man who has been convicted of blasphemy and sentenced to 10 months in prison for comparing a revered priest to a pasta dish on a Facebook page. The conviction is also under appeal.
* A very interesting article in The New York Times about Penguin Books India pulping its entire run of a scholarly book about Hinduism in response to a lawsuit claiming the book was "malicious", "dirty", and "perverse." The decision is seen as a sign of concession to growing right-wing radicalism in the country.
Tuesday, February 25, 2014
Thursday, February 13, 2014
Criminal Code of Canada Section 365: Witchcraft & Fortune-Telling
Here is the text of Section 365 of the Criminal Code of Canada. The law is still valid, and is the subject of the research paper I'm currently working on.
Criminal Code of Canada (valid as of Feb. 11, 2014)
Pretending to practise witchcraft, etc.
365. Every one who fraudulently
(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,
is guilty of an offence punishable on summary conviction.
Criminal Code of Canada (valid as of Feb. 11, 2014)
Pretending to practise witchcraft, etc.
365. Every one who fraudulently
(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,
is guilty of an offence punishable on summary conviction.
As an aside, I especially like the phrase "crafty science", as I've never seen that before.
Tuesday, February 11, 2014
"Brazil, Blasphemy, and Free Speech: Why the United States Must Maintain Strong Freedom of Expression Protections in Spite of International Pressure to Punish Anti-Religious Hate Speech"
Stuart Vincent Campbell, Brazil, Blasphemy, and Free Speech: Why the United States Must Maintain Strong Freedom of Expression Protections in Spite of International Pressure to Punish Anti-Religious Hate Speech (unpublished working paper available on SSRN).
This interesting paper is written in the context of the controversy and protests created by the dissemination of the Innocence of Muslims video and the resulting calls from some quarters for the United States to take aggressive action to forbid anti-religious speech. Campbell accurately notes that those opposed to blasphemy laws often point to countries like Pakistan as examples of the harm such laws cause. However, "[i]nstead of looking to small homogenous nations in the Middle East that bear almost no cultural or legal resemblance to the United States, this note turns to the empirical example of Brazil--a large heterogeneous democracy that in some ways bears a surprising cultural and historical resemblance to the United States." (p. 3)
The paper provides good background on the Innocence of Muslims video (pp. 5-6) and an overview of the history of blasphemy laws in the U.S. (pp. 11-15) before moving on to what I consider the most useful aspect of the paper: a discussion of how blasphemy laws are used in Brazil. Campbell argues that although Brazil has a constitutional guarantee of freedom of speech, judges allow blasphemy laws to operate by always framing the issue as the need to balance the right to freedom of speech against the right to freedom of religion. "Brazil suppresses blasphemous speech not based on the desire to establish a state religion, but rather based on legal principles that allow judges to prioritize religious respect and de-prioritize 'offensive' speech." (p. 4) Constitutional interpretation is very different in Brazil than in the U.S., Campbell explains, and the result is that much speech is suppressed in a problematic way. Campbell takes a strong position against the adoption of blasphemy or blasphemy-like laws in the United States.
This is the first paper I've seen on how blasphemy laws operate in Brazil, and it serves as a good addition to the literature.
This interesting paper is written in the context of the controversy and protests created by the dissemination of the Innocence of Muslims video and the resulting calls from some quarters for the United States to take aggressive action to forbid anti-religious speech. Campbell accurately notes that those opposed to blasphemy laws often point to countries like Pakistan as examples of the harm such laws cause. However, "[i]nstead of looking to small homogenous nations in the Middle East that bear almost no cultural or legal resemblance to the United States, this note turns to the empirical example of Brazil--a large heterogeneous democracy that in some ways bears a surprising cultural and historical resemblance to the United States." (p. 3)The paper provides good background on the Innocence of Muslims video (pp. 5-6) and an overview of the history of blasphemy laws in the U.S. (pp. 11-15) before moving on to what I consider the most useful aspect of the paper: a discussion of how blasphemy laws are used in Brazil. Campbell argues that although Brazil has a constitutional guarantee of freedom of speech, judges allow blasphemy laws to operate by always framing the issue as the need to balance the right to freedom of speech against the right to freedom of religion. "Brazil suppresses blasphemous speech not based on the desire to establish a state religion, but rather based on legal principles that allow judges to prioritize religious respect and de-prioritize 'offensive' speech." (p. 4) Constitutional interpretation is very different in Brazil than in the U.S., Campbell explains, and the result is that much speech is suppressed in a problematic way. Campbell takes a strong position against the adoption of blasphemy or blasphemy-like laws in the United States.
This is the first paper I've seen on how blasphemy laws operate in Brazil, and it serves as a good addition to the literature.
Thursday, January 30, 2014
"R v. Labrosse" (1987)
R v. Labrosse, [1987] 1 S.C.R. 310.
Labrosse is the only case I'm aware of where a charge under a witchcraft or fortune-telling statute reached a country's highest court. Unfortunately, it's rather brief and not extremely helpful in understanding the scope of the law.
The case involves a woman who told the fortune of a police officer for her normal fee of $ 15. She was charged with violating Section 323(b) of the Criminal Code, which states in part that "Everyone who fraudulently . . . undertakes, for a consideration, to tell fortunes . . . is guilty of an offence punishable on summary conviction." At trial, the fortune-teller claimed that she actually had special powers to tell the future. The trial judge convicted her nonetheless, stating that he didn't believe that she believed that, and that even if she did believe it, it was irrelevant to the charge.
The Supreme Court was thus asked to decide whether Section 323(b) allowed for a defence of "honest belief." That is, does a fortune-teller "fraudulently" tell fortunes if he or she sincerely believes they have a supernatural power to do so? The Court, however, disposed of the case without ruling conclusively on the issue, stating that because the trial judge made a factual finding that "[t]he accused knows full well that she has no basis for her claim to be able to predict what will happen in people's future" then "the defence of honest belief is not open on the facts of this case."
From this, however, (and not having read the trial court's ruling) it's not clear to me that the trial judge actually found that the defendant did not sincerely believe she could predict the future. His statement that she knows "she has no basis for her claim" sounds more like a finding that she had no logical or evidentiary foundation to support such a belief as opposed to a factual finding that she was lying about her belief. Thus, the trial judge's ruling was not on point to the question of whether the statute allows for an honest belief defence. This ambiguity, however, is not noticed or discussed by the Supreme Court.
Labrosse is the only case I'm aware of where a charge under a witchcraft or fortune-telling statute reached a country's highest court. Unfortunately, it's rather brief and not extremely helpful in understanding the scope of the law.
The case involves a woman who told the fortune of a police officer for her normal fee of $ 15. She was charged with violating Section 323(b) of the Criminal Code, which states in part that "Everyone who fraudulently . . . undertakes, for a consideration, to tell fortunes . . . is guilty of an offence punishable on summary conviction." At trial, the fortune-teller claimed that she actually had special powers to tell the future. The trial judge convicted her nonetheless, stating that he didn't believe that she believed that, and that even if she did believe it, it was irrelevant to the charge.
The Supreme Court was thus asked to decide whether Section 323(b) allowed for a defence of "honest belief." That is, does a fortune-teller "fraudulently" tell fortunes if he or she sincerely believes they have a supernatural power to do so? The Court, however, disposed of the case without ruling conclusively on the issue, stating that because the trial judge made a factual finding that "[t]he accused knows full well that she has no basis for her claim to be able to predict what will happen in people's future" then "the defence of honest belief is not open on the facts of this case."
From this, however, (and not having read the trial court's ruling) it's not clear to me that the trial judge actually found that the defendant did not sincerely believe she could predict the future. His statement that she knows "she has no basis for her claim" sounds more like a finding that she had no logical or evidentiary foundation to support such a belief as opposed to a factual finding that she was lying about her belief. Thus, the trial judge's ruling was not on point to the question of whether the statute allows for an honest belief defence. This ambiguity, however, is not noticed or discussed by the Supreme Court.
Tuesday, January 28, 2014
"Fortune-Telling and Mens Rea"
D. Aikenhead Stroud, Fortune-Telling and Mens Rea, 37 L. Q. Rev. 488 (1921)
Stroud's article addresses what I think is a crucial issue when it comes to regulating fortune-telling and other paranormal or religious practices (such as faith healing, dowsing, cleansing a house of evil spirits, etc.) that involve the exchange of payment for a service in which there is the potential for fraud. That issue is whether the good faith of the practitioner is relevant; that is, if the psychic medium, fortune teller, exorcist, faith healer, etc., sincerely believes they have a supernatural power and are exercising it to the best of their ability, should this be a defence to a charge under the variety of statutes that have been used to prosecute such individuals in the past?
Stroud's article discusses a then-recent case that squarely addressed the question in the context of the English Vagrancy Act of 1824, which was the law often applied in this context. The case, Stonehouse v. Masson, [1921] 37 T.L.R. 621, stands for the proposition that the good faith belief of the defendant is irrelevant to a charge of "pretending or professing to tell fortunes" under the Act. Stroud states that "[t]he real ground of decision was expressed by Darling J., who said he had 'come to the conclusion that the Legislature has decided that fortune-telling and professing to tell fortunes was a fraud, and that it was a deception in itself, and that quite independently of the question whether the person who told the fortune believed that that she could tell fortunes or not.'" (p. 488-89)
Thus, Stroud (and the Court in Stonehouse) argue that the mens rea requirement of a statutory crime is only to intentionally do that which is forbidden by the statute. They thus distinguish general mens rea from the concept of specific intent, and Stroud concludes "[w]hat the law prohibits is any profession of occult powers of divination, whether sincere or insincere, and the requirement of mens rea is satisfied by an intentional infringement of that prohibition, without any fraudulent or deceitful intention." (p. 488-89)
This is an old article discussing an old case in the context of a very particular old statute. Nonetheless, it ties in nicely to the article I'm currently writing on whether criminal bans on witchcraft and fortune-telling comport with modern freedom of religion guarantees.
Stroud's article addresses what I think is a crucial issue when it comes to regulating fortune-telling and other paranormal or religious practices (such as faith healing, dowsing, cleansing a house of evil spirits, etc.) that involve the exchange of payment for a service in which there is the potential for fraud. That issue is whether the good faith of the practitioner is relevant; that is, if the psychic medium, fortune teller, exorcist, faith healer, etc., sincerely believes they have a supernatural power and are exercising it to the best of their ability, should this be a defence to a charge under the variety of statutes that have been used to prosecute such individuals in the past?Stroud's article discusses a then-recent case that squarely addressed the question in the context of the English Vagrancy Act of 1824, which was the law often applied in this context. The case, Stonehouse v. Masson, [1921] 37 T.L.R. 621, stands for the proposition that the good faith belief of the defendant is irrelevant to a charge of "pretending or professing to tell fortunes" under the Act. Stroud states that "[t]he real ground of decision was expressed by Darling J., who said he had 'come to the conclusion that the Legislature has decided that fortune-telling and professing to tell fortunes was a fraud, and that it was a deception in itself, and that quite independently of the question whether the person who told the fortune believed that that she could tell fortunes or not.'" (p. 488-89)
Thus, Stroud (and the Court in Stonehouse) argue that the mens rea requirement of a statutory crime is only to intentionally do that which is forbidden by the statute. They thus distinguish general mens rea from the concept of specific intent, and Stroud concludes "[w]hat the law prohibits is any profession of occult powers of divination, whether sincere or insincere, and the requirement of mens rea is satisfied by an intentional infringement of that prohibition, without any fraudulent or deceitful intention." (p. 488-89)
This is an old article discussing an old case in the context of a very particular old statute. Nonetheless, it ties in nicely to the article I'm currently writing on whether criminal bans on witchcraft and fortune-telling comport with modern freedom of religion guarantees.
Thursday, January 23, 2014
"Time for Australia to abandon blasphemy laws?"
Several months ago, media network SBS ran a long story on World News Australia Radio titled "Time for Australia to abandon blasphemy laws?" The story noted that some countries have recently decriminalized blasphemy, while in others, particular where Islam holds sway, blasphemy prosecutions continue. Brief interviews with experts in the field, including Dr. Helen Pringle (UNSW), Professor Gary Bouma (Monash), and myself are included in the story.
Wednesday, January 22, 2014
New Egyptian Constitution Approved by Voters
Religion Clause Blog notes that the new Egyptian Constitution was overwhelmingly supported by voters in last week's referendum. This post on the same site includes a rough translation of some of the religion provisions of the new Constitution. It establishes Islam as the official religion of the country, but does contain a freedom of religion guarantee.
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