Defending Communal Society in Court

Allen Butcher, Denver, August 2008

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From the track record of failed court cases that Federation communities have attempted, it appears that either Federation communities need to learn how to defend themselves against those who would distort and disparage their alternative lifestyle, or else think very carefully about taking future issues to court. Following is a survey of court cases involving member communities of the Federation of Egalitarian Communities, and some suggestions on how to be better prepared for legal challenges.

Not every legal case has been lost. There is one very notable court case that a Federation community won. This was in 1986 when the IRS attempted to interpret the tax status of 501(d) as requiring a vow-of-poverty. Twin Oaks successfully argued that the original legislation created by Congress did not intend to require that members donate all of their personal assets to the communal society upon joining. Since then, many new communities, most of them Christian, have incorporated as 501(d) associations. Twin Oaks paid a Washington law firm $60,000 to win this case, saving them from having to pay the quarter-million dollar bill the IRS had given them for back taxes. (See: Kat Kinkade, "Is It Utopia Yet?," page 282)

As far as I know, Federation communities have lost every other court case they've attempted. These include a product liability case at Twin Oaks, resulting from failure on the part of a customer to use a hammock chair suspension kit properly, or failure of the kit itself, I'm not sure which was the case. In response the community improved its stated instructions for appropriate use, and I believe also its warranty and its product liability insurance. And there was the agricultural machinery accident at Sandhill resulting in an East Wind member losing use of her hand. These instances of legal proceedings against Federation communities have nothing to do with community culture, yet there are at least two child custody cases that do.

About 1979 Twin Oaks lost a child custody case they entered. The man, who had been the community's Farm Manager, left the community with his son against the child's mother's wishes. He won custody partly by claiming that his child's mother was a lesbian. The mother then also left the community and was subsequently able to get some parenting rights restored.

About 1997 East Wind also lost a child custody case. A woman left the community and wanted to return for her son once she became settled in the city, but the father wanted the child to remain in the community with him. The community thought that it had a solid case by showing its economic stability and the support that the father would have for parenting and for educating the child. However, the mother was able to find a former member living in the area who had joined over fifteeen years earlier when she was 14 or 15 as an emancipated teenager, who complained about the community's failure to prevent her from having sex with men in the community over the age of 18, and failed to force her to stay in high school. Actually, the community had given her the choice of being a child member and attending high school, or of being an adult member and carrying all the responsibilities of membership, including working "full quota." She tried and failed both options, then left the community. In court she stated that her experience at East Wind as a teenager had ruined her life, and subsequently the court refused the community's argument that it was a good place for children to grow up.

Now in 2008 a "former member" who had been "evicted" from Ganas community was acquitted of attempted murder of a long-term member of the community with a semi-automatic hand gun, of weapons charges, and of trying to extort $1 million from the community. The defense claimed that, "... she had been raped there. She also accused the commune of forcing some members to marry illegal immigrants and brainwashing others. She dropped her lawsuit; the police investigated the rape allegations and did not file charges." (See: http://www.nytimes.com/2008/08/05/nyregion/05commune.html?_r=1&oref=slogin ) The mother of the defendent stated, "The one that is guilty is [the male member of the community]. He killed her mentally, physically and psychologically." (See: http://www.nydailynews.com/news/ny_crime/2008/08/04/2008-08-04_former_commune_member_rebekah_johnson_cl.html )

Evidently, Federation communities have found it easier to challenge the IRS than to defend themselves against their own former members in court.

What this suggests is that the Federation could provide a service to communities if it were to develop a process for preparing arguments against the distortions of truth that are commonly used as arguments against communities by lawyers. A lot of careful thought would have to go into countering such defamations, degradations and disparagements. Obviously, each case is different, yet we can see some lessons from those presented above.

The charge of loose sexual mores or customs is very commonly used against communities. In such cultures, it is easy for a man to charge that a woman is a "lesbian," and for a woman to make the charge of "rape" against a man. For a jury that may hold that sex is only legitimate between a man and a woman who are legally married, sex in all other situations is immoral. Lawyers serving community clients should be able to show that such a narrow, stringent morality is itself held only by a subculture in America. Secondly, the argument could be made that many people join community precisely because, or with the expectation that, sexual mores are more lax or otherwise different in community than in the larger culture.

To protect against either men or women using sex as a weapon against their former home community in court, communities may employ the "buyer beware" defense, to be stated when someone accepts membership in an alternative community, as protection against ex-members making the charge of having been subjected to sexual immorality in the community. For such a defense to be successful it would be helpful if the community would place a statement about non-traditional relationships in their membership agreements and outreach and recruitment materials. Much like with Twin Oaks' product liability case, failure to warn about potential health hazards resulting from the misuse of one's freedom to experiment with sexual relationships in community can place a community at risk of being sued.

With regard to the allegation of forced marriages to illegal immigrants, or for that matter between any two or more people (the latter in regard to polyamorous groups), it could simply be stated that marriage is solely at the discretion of the individual member.

And as a defense against the "brainwashing" allegation, communities might make a statement warning prospective members about the psychological dangers of radical culture shock! Oh, how community satirists could have fun with that!!

What may be the best defense for alternative communities in court is when they can show that there are active programs in the community for resolving problems and for conflict resolution. Communities would also do well to be able to show that they have in place methods for pro-actively addressing psychological issues, either that members bring with them to the community or that arise as a result of living in community.

Providing at least the encouragement for members to access or create any of a range of inter-personal communication processes can provide evidence of an effort being made on the part of the community to provide options for members in need of counseling or other methods of psychological or of emotional support. Access to professional mental health services outside of the community should also be provided for members.

Communities would be well advised to explicitly state their methods for supporting members in maintaining contact with family and friends outside of the community. In the case of East Wind's emancipated teen, the community clearly accepted a great risk with this member. It's unclear how much effort the community put into contacting the teen's family, while it clearly failed in providing a surrogate family for this teenager. As with the Ganas case, timely processes for denying or revoking membership may be the best defense.

To protect against the charge of having a "guru" communities and their lawyers should be prepared to explain their form of government and how they provide for individual access to the community's decision-making process. Many communities take pride in their participatory form of governance, especially egalitarian communities, so to then be unprepared to defend against the "guru" allegation is simply inept.

With respect to the "cult" allegation there is much good material that can provide a solid defense for communities. First of all, background reading on the topic is advised. The 1985 July/August issue of "Yoga Journal" printed a number of good articles on the topic of leadership in spiritual communities. Books like "Leaving the Fold" by Marlene Winell provide information on recognizing manipulations to be avoided, thinking for oneself and discovering choice. "The Cult Around the Corner" by Nancy O'Meara and Stan Koehler explain the hoax of brainwashing and mind control, and that different is not dangerous. And in its fall 1995 issue number 88 "Communities" magazine printed thirteen articles on "intentional communities and cults." Tim Miller wrote, "For us 'cult' simply means a group we don't like. ... When the word 'cult' enters the typical American conversation, the jury has already returned. From that point on we're discussing the sentence, not the verdict."

Finally, yet most importantly, communities and their lawyers need to be prepared for the general charge that intentional communities are simply "un-American." The typical conclusion upon the disclosure that a community practices communalism in not paying wages or salaries for labor is that the community is anti-America and unpatriotic, and in extreme defamation it may even be charged that communalism is a form of "cultural terrorism." It may be affirmed by the adversarial lawyer that since an intentional community removes its membership from the mainstream culture it is therefore going against the American imperative of the cultural "melting pot," and therefore breeds dissent and disrespect for American values.

Defense against this argument can take any of several different tacks. It could be affirmed that by joining community individuals are exercising their Constititutional right to free assembly. It could be stated that it is everyone's right to march to a different drummer, even if others view it more like being manipulated by a pied piper. The historical view point can be stated that America itself was founded as an experimental culture, from the Mayflower Compact to the Constitution itself. It could also be stated that intentional communities have always been part of the American cultural landscape, and therefore are as American as the Pledge of Allegiance, which itself was written indirectly from inspiration by a book by Edward Bellamy, the utopian fiction "Looking Backward," by the author's first cousin, Francis Bellamy.

If that isn't enough, the defense of intentional community can go on to cite the view that intentional community serves as research and development centers for responding to stresses in the dominant culture. For example, ecological lifestyles were pioneered in community at least as far back as the 1960s, and aspects of "green living" are now becoming mainstream. Equality between the genders and cross gender-roles, important now as many women are in the workforce and rely upon their husbands to take care of domestic responsibilities, is an essential aspect of feminist and egalitarian communities, also common since the '60s.

In order to directly address the charge that intentional community, by creating alternative cultures to that of the mainstream American melting pot, is a threat to the social order, it can be argued that contrary to that misguided view, intentional community is actually consistent with the emerging trend in American culture toward a concern for methods of building "social capital." As explained by Carmen Sirianni and Lewis Friedland for the Civic Practices Network, "Social capital refers to those stocks of social trust, norms and networks that people can draw upon to solve common problems. ... The denser those networks, the more likely that members of a community will cooperate for mutual benefit." (See: www.cpn.org/tools/dictionary/capital.html ) Intentional community is therefore a place of experimentation with methods of building social capital that can provide important cultural innovations for adaptation in the larger American society.

Since the printing of Robert D. Putnam's "Bowling Alone : The Collapse and Revival of American Community" (see: "Journal of Democracy" 6:1 [January 1995], 65-78) the question of how to structure our social opportunities and cultural processes to increase "social capital" has been an ongoing debate in many fields, particularly those of social welfare. Articles can be found via an Internet search relating social capital to community development, the housing industry and economic growth by the National Civic League, the Fannie Mae Foundation, the World Bank and many other organizations. Rather than being counter to American values, intentional community is actually on the cutting edge of social theory.

There is every reason to believe that Federation communities, at least, have the ability to win court cases if they seriously work together to adequately prepare themselves and their lawyers for the predictable gauntlet of distortions and defamations that are routinely stated against intentional community in legal proceedings. With appropriate resources and orientation any lawyer should be able to defend intentional community and communal society in court. Doing so in itself would serve to illustrate the power of community to concentrate its social capital upon the successful resolution of a clear and present legal threat.

The Federation is in a perfect position to provide for this protection for its member communities. May this article serve as an inspiration for that effort.

Disclaimer: No guarantees, legal or otherwise, may be assumed concerning the use of the information in this article. Corrections of any inaccuracies in this article are welcome.

Comments

Julia Harrison 12 months ago

Hey Allen! This is a great website, I am so glad you shared. Are you more reporting from a historical perspective about these issues or do you have a current campaign up and running? This is something that I have been wanting to do and it is clear and evident that protecting the laws that allow for freedom is a vital role of the mission for sustainable and independent communities.

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