NJ Jury: Gay ‘Conversion Therapy’ claims were consumer fraud
By David Gialanella, From New Jersey Law Journal
A New Jersey jury has decided that a religious organization violated the state’s consumer fraud statute when it touted the efficacy of a form of therapy aimed at converting homosexuals to heterosexuals.
A seven-member jury in Hudson County Superior Court on June 25 found Jersey City-based JONAH (Jews Offering New Alternatives for Healing), its founder and an affiliated counselor liable for advertising misrepresentations and unconscionable commercial practices.
The panel awarded a total of $24,150 to five plaintiffs, in amounts ranging from $500 to $17,950, according to court documents.
JONAH—which has maintained that the case implicates religious liberties—already has vowed to appeal.
The verdict came about four months after Hudson County Assignment Judge Peter Barisio Jr. held that JONAH advertisements offered up success statistics that had no basis in fact, which amounted to a violation of the New Jersey Consumer Fraud Act. It is believed to be the first ruling of its kind nationwide.
The novel claim, advanced in a complaint filed in November 2012 by those who have gone through the therapy and family members who helped pay for it, asserted that JONAH’s treatment services were based “on the misguided and erroneous belief that being gay is a mental disorder—a position rejected by the American Psychiatric Association four decades ago.”
According to the suit, JONAH’s program employed the methods of Joseph Nicolosi of the National Association for Research & Therapy of Homosexuality, and Richard Cohen, a psychotherapist who founded the International Healing Foundation in 1990, an organization similar to JONAH. Those methods are aimed at fostering participants’ male identity in order to cure homosexuality, a condition purportedly brought on by a deficient father-son relationship, a too-close relationship with the opposite-sex parent, family dysfunction, or child sexual abuse. Participants are allegedly required to strip nude during sessions, intimately hold other males, spend time with other nude males in health clubs and bath houses, beat effigies of their mothers with a tennis racket, and absorb gay slurs.
The suit charged that JONAH controverts the CFA’s prohibition of fraudulent sale or advertisement of any “merchandise”—which, by statutory definition, includes services.
With individual sessions priced at $100 and group sessions at $60, JONAH’s services can cost upward of $10,000 per year for each participant, the plaintiffs claimed.
Also named as defendants, aside from JONAH, were co-founder Arthur Goldberg, an ex-attorney who was disbarred in New Jersey in 1995 after pleading guilty to mail fraud and conspiracy to defraud in connection with fraudulent issuance of bonds to finance housing projects; and Alan Downing, an affiliated counselor who provided individual and group therapy sessions, though he allegedly lacked a professional license.
In early February, Barisio barred testimony from six defense experts—including a psychologist, a psychiatrist and a clinical social worker—because, the judge said, the testimony was premised on the scientifically rejected view that homosexuality is an illness.
Six days later, Barisio granted partial summary judgment for the plaintiffs, noting “the general consensus in the mental health field that homosexuality is not a mental disorder but is instead a normal variation of human sexuality.” Thus, “any representations made to the contrary would qualify as … misrepresentations under the CFA,” the judge added.
Regarding JONAH’s touted success rate, Bariso acknowledged there were factual disputes about it but held as a matter of law that it is a misrepresentation in violation of the CFA “to use specific success statistics in advertising and selling of services when client outcomes are not tracked and records are not maintained.”
Barisio left intact JONAH’s First Amendment religious liberty defense, and the organization maintained throughout the case that access to the treatment was protected by that right. JONAH also denied that the plaintiffs were harmed, as well as other aspects of the suit.
Following the three-week trial, the jury found at least one defendant liable in connection with each plaintiff’s count.
The CFA provides for trebling of damages and includes a fee-shifting provision.
JONAH was represented at trial by Chuck LiMandri of the Freedom of Conscience Defense Fund of Rancho Santa Fe, California, a nonprofit organization that provides legal services in cases involving religious freedom.
LiMandri, in a statement, vowed to appeal.
“This is a sad day, not just for my clients, but for America: Our freedom to choose to live according to biblical values is being restricted by powerful forces, which in this case included the refusal to allow highly qualified expert witnesses to testify that change is possible for many people,” LiMandri said.
“All of us can control our sexual behavior and each of us has not only the right but the obligation to decide what is right and wrong about our behavior,” he added. “Seeking counseling is a very private and personal decision people make.”
Lead trial counsel for the plaintiffs were James Bromley of Cleary Gottlieb Steen & Hamilton in New York, which took the case pro bono, and David Dinelli, deputy legal director of the Southern Poverty Law Center, a nonprofit civil rights advocacy group based in Montgomery, Alabama.
“There’s no consumer fraud exemption for people who claim to be religious,” and the defendants’ status as devoutly Jewish was “completely irrelevant,” Bromley said.
“They didn’t say, ‘It’s a sin, let’s pray about it.’ They said, ‘It’s a disease, let’s fix it.’ That’s consumer fraud,” Bromley added.
Lina Bensman, a Cleary Gottlieb associate who also was trial counsel, said the appeal was expected.
“I honestly think that they knew on some level that they were going to lose,” Bensman said.
Dinelli, in a statement, called the verdict “a monumental moment in the movement to ensure the rights and acceptance of LGBT people in America.”
He added, “Conversion therapists, including the defendants in this case, sell fake cures that don’t work but can seriously harm the unsuspecting people who fall into this trap.”
The plaintiffs now will seek injunctive relief, according to Bromley and Bensman, though they declined to say what specific relief will be requested.
Bruce Greenberg of Lite DePalma Greenberg in Newark also represented the plaintiffs.
Photo: Diego M. Radzinschi/NLJ.
