Epstein defense of torture/kidnapping: The husbands wanted to be forced!

Guest post: According to documents filed late last week, Epstein is apparently now claiming that he is innocent because he believed that the men consented to being kidnapped and beaten, and Stimmler is apparently now claiming -- based on an affidavit from Rabbi Breitowitz -- he can't be prosecuted because he was just following Jewish Law.

From a letter that Epstein's lawyer wrote to the judge:

Mendel Epstein believes that the victims of these alleged kidnappings consented, by virtue of their signing of the marriage ketubbah promising to be bound by the laws of Moses and Israel, both to the authority of the beth din and to the halakhic process of the “forced” get as the term is described by Maimonides. The argument is not that he was motivated by his desire to help agunahs escape their impossible position, and that this excuses his criminal conduct because this was a religious belief (although certainly he is entitled to present such evidence to rebut the Government’s assertion that he was motivated by the desire to obtain money), but that he lacked the intent to commit the crimes of kidnapping and conspiracy.

“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation mark’s omitted). These defendants are thus entitled to present religious beliefs that are relevant to the issue of specific intent to commit the crimes of conspiracy and kidnapping and whether they believed that the victims consented to the compelled get, as factual determinations for a properly instructed jury. United States v. Hsia, 24 F. Supp. 2d at 43; United States v. Bertram, 477 F.2d 1329 1330 (10th Cir. 1973) (defendant’s testimony as to his religious beliefs, although not a defense to his criminal conduct, is admissible as “evidence of state of mind establishing that there was no criminal intent”). [...]

 The Government has already made the religious beliefs of the defendant’s part of this case, even if there were not a basis for their admission as to the issue of intent. Here, the Government relied on religious law to set up their sting operation to ensure that Rabbi Epstein would involve himself and others in convening the beth din for issuance of the required psak. They are presenting videos and recordings demonstrating the religious process itself. Yesterday morning their expert, ostensibly used to explain the dictionary definition of Talmudic terms, explained the get process, the religious beliefs underlyingthe obtaining of a get, and what was and was not permissible under Talmudic or rabbinical law, offering his opinion that the use of physical force is not permissible. Indeed, their expert testified about Dina D’malchusa Dina, a religious concept which is not found on any of the tapes or mentioned in any other evidence. The only possible reason the Government wanted it mentioned was so that the jury would draw the inference that defendants were not authorized to use force by Jewish law, and were in fact acting contrary to it.

From a letter from the U.S. Atttorney:

After agreeing with the Court that he “is not claiming a religious right to kidnap,” 1/28/15 Transcript (“Tr.”) at 57-58,1 defendant Stimler has abruptly changed course and now claims in his “renewed motion” to dismiss that he is raising precisely such a claim under the Religious Freedom Restoration Act (“RFRA”). According to the supplementary declaration provided by Rabbi Breitowitz, Jewish law does permit the use of force to compel a recalcitrant husband to grant his wife a religious divorce under certain circumstances. Rabbi Breitowitz acknowledges that his initial declaration did not make that assertion, blaming the omission on defense counsel, who did not ask for such an assertion. Stimler does not argue in his renewed motion that the Court was incorrect in denying his original motion based on the information supplied to the Court. Rather, he contends that the additional information supplied by Rabbi Breitowitz should cause this Court to reverse itself. [...]

Given Stimler’s sandbagging tactics, the Government is in no position to dispute Rabbi Breitowitz’s assertions that at least some reputable Jewish legal authorities permit the use of physical violence to coerce a recalcitrant husband to grant a divorce, so long as the use of force is specifically authorized by a religious tribunal (beth din). See Supp.Decl. at ¶ ¶ 7, 8, and 9.2 The Indictment alleges that, before using physical violence to extract an agreement to divorce from a recalcitrant husband, defendants convened a beth din “which issued a contempt order, known as a ‘seruv,’ against the husband,” and that “[i]f the husband failed to respond, the beth din issued a ruling, known as a ‘psak din,’ authorizing the use of coercion and force to obtain the get.” Indictment, Count 1, ¶ 6.

Notably, however, Rabbi Breitowitz does not assert that Jewish law condones the use of violence to compel a recalcitrant husband to grant a Jewish divorce is permitted if, as the Indictment alleges here,3 the violence was perpetrated or defendants offered to perpetrate the violence in exchange for money. Stimler suggests that such might not be the case. Stimler Reply Brief, D.E. 188, 6 (“The Government may have a ‘compelling interest’ in prosecuting any individual who conspires to kidnap and possibly engage in violence for motives other than religious ones (such as obtaining ‘money or other things of value from agunot’)).” Certainly, an act performed altruistically to help a “chained woman” escape an oppressive marriage is very different from acting as a “hired gun,” and nothing in Rabbi Breitowitz’s supplementary declaration supports the notion that the latter is a mitvah, much less a religious obligation of Orthodox Jews.