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Temple Case States Answering Brief
06-18-2018, 04:49 PM (This post was last modified: 06-18-2018 05:00 PM by davephx.)
Post: #1
Temple Case States Answering Brief
States Answering Brief just filed
64 pages with the expected response

There are only issues that court should consider based on Tracy's appeal

1. Has Elise forfeited her first claim by failing to allege or assert fundamental and prejudicial error in her opening brief? If not, did the trial court commit fundamental error by relying on a ruling against Elise’s former co-defendants in a prior proceeding at which Elise was not present (although she was present and had the opportunity to be heard on the same issue in the present case)?

2. Were Elise’s religious rights under Arizona’s Free Exercise of Religion Act violated by her prosecution for prostitution and related offenses where she ran a house of prostitution under the guise of a religious temple that performed sexual “healings” for a fee?

Elise ran a house of prostitution she called the “Phoenix Goddess Temple” in various locations in the greater Phoenix metropolitan area from March 2008 to September 6, 2011. (lots more detail about the operations of the house of prostitution).

Describes the sex workers - Elise persuaded several vulnerable young women from a variety of difficult life circumstances to work at the Temple, telling them that the lucrative "healing" work was meaningful, legal and safe.

Gives details of "Brigid" and her sex abuse and how she was taken advantage of by the Temple, how shocked she was in her "duo sister" training session and her "pretty raw" reaction given her prior sexual abuse. She was promised she would make $3000 to $4000 her first month and would be healed from being the "wounded little girl" while doing "healing" work. She earned far less while being pressured to perform sexually in ways that made her deeply uncomfortable under threat of being fired or losing her room at the Temple.

She became disillusioned and felt "souless in that moment" and "manipulated" by Elise. When she heard her being described "blond" and "busty" and that the Temple would not provide condoms. Crying and really upset she left the Temple and checked herself into a hospital because she was vomiting repeatedly and had a migraine.

She summarized her experience with the statement that “a
woman can’t be building up another woman” while simultaneously “offering her into prostitution.” (Id. at 49–50, 65.) Dave notes each statement is referenced to testimony from the trial transcript etc.

Long discussion of clients coming from sexually explicit ads etc and hourly rates for services usually $204 for 60 minutes or $303 for 90 minutes....

To work at the Temple, the sex workers were originally required to maintain “at least one personal sponsor ad weekly on” Later, sex workers were allowed to opt out of this practice by paying the Temple additional tithes to run the ads for them.

Filled out seeker forms indicating type of sex act they desired using the language of the Temple. This was matched to a "Mutuality List" of acts each sex worker was willing to perform.

Then, lots of details of the "transformation chamber" and that almost always involved, at a minimum, a topless sexworker and a manual release. The longer 90 minute session typically concluded with sexual intercourse (a "sacred union".

While discussion of money with sex worker was forbidden lots of examples of discussion with receptionist/gatekeepers.

If a client failed to pay, Elise’s second-in-command, Janet Craven, would call the client/seeker to inquire whether services had been satisfactory. Some client/seekers apparently had simply forgotten to pay, and returned to make payment after being contacted.

The sex workers were required to pay (“tithe”) a percentage of the cash payment to the Temple (usually 30%); they were permitted to keep the rest. New sex workers (called “interns”) were required to “tithe” a higher percentage of the hourly rate to the temple until they had worked there for at least 33 hours. The money given to the Temple was used to pay bills, the receptionists’ 10 salaries, and Elise’s personal expenses (including her home in Sedona, which cost $2,400 per month).

Client/seekers who failed to leave a “donation” (or an amount less than the “suggested” amount) were typically unable to book second sessions because the sex workers were unwilling to see them; they were referred instead to group classes about the religious beliefs of the Temple.

Client/seekers who were unhappy with the services because of some stake by the sex worker provided were offered a $50 discount on their next session.

Long discussion of "The Investigation" starting with the New Times reporter session with Wayne. The article reported that the Temple appeared “to be nothing more than a New Age brothel practicing jack psychology techniques.”

Then many pages of detail of the investigation and trial.

On May 19, 2016, Elise sentenced to a relatively short prison time (longest 4 years) and four years of supervised probation upon her release from prison.

Then complex legal argument that Elise forfeited her untimely right to raise constitutional issues by failing to allege fundamental and prejudicial error in her opening brief - Moreover, she had ample opportunity which she used to argue this issue at trial.

Elise argues (for the first time on appeal) that the trial court violated her right to due process by relying on a previous court’s ruling where she was not present and her rights were not waived. (O.B. at 14.) She belatedly suggests that the prior ruling violated her constitutional due process right to be present and heard. (Id.) However, Elise had ample opportunity to be heard on the matter in the present case before the trial court made its final ruling on this issue at the end of the four-month trial. Accordingly, there was no viol Elise’s due process rights.

Although Elise did argue to the trial court (Judge Stephens) that “Judge Welty never heard from me, Your Honor[,]” a general objection is insufficient to preserve an issue for appeal.

She made a similar general argument on November 18, 2015. at 17–18 (“I was not my own attorney when that happened. I was in Rule 11.”).)

After citing Henderson case: Technically, because Henderson places the burden on Elise to establish both that the error is fundamental and that she was prejudiced by it, her failure to argue either in her opening brief means that this Court need not even address this argument on the merits. See Henderson, 210 Ariz. at 567-68, ¶ 20 (Where a defendant fails to timely object to error even of constitutional magnitude, he must establish “both that fundamental error exists and that the error in his case caused him prejudice[.]”); State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17 (App. 2008) (“Moreno-Medrano does not argue the alleged error was fundamental. That argument is therefore waived.”)

Long discussion of the Judge Welty's ruling about no religious defense and had explained her religious based beliefs to the jury:

Judge Stephens gave Elise wide latitude to explain her religious beliefs and practices to the jury, allowing Elise to testify for eleven trial days about her religious beliefs and her personal history prior to opening the Temple, as well as how she came to engage in the particular practices that were in use at the Temple when it was raided. Elise was also permitted to call her son and her sister to testify about the history of her religious beliefs and how they impacted her parents, siblings, and children. She also presented testimony from various practitioners of sacred sexuality, a sexologist ,the owner of several legal brothels in Nevada (“Nobody knows how to run a brothel better than me”), and the “Naked Life Coach.” She was even permitted to call a Methodist clergyman, who testified about the “landscape of sex” in America. On several occasions throughout trial, Elise invoked Judge Welty’s ruling to support her arguments that various types of evidence should be admitted as part of her explanation of the factual circumstances surrounding her practices at the Temple.

At the end of trial, Judge Stephens read the final jury instructions, explaining that “[t]he crime of prostitution requires proof that the defendant knowingly engaged or agreed or offered to engage in sexual conduct with another person under a fee arrangement with that person or any person.” No religious defense was included in the instructions, although Elise was permitted to argue during closing argument that her beliefs were sincere and that there was no actual fee charged for the sexual healings. (“I’m thinking the Constitution is for all religions and it is there to protect minority religions.”), 56–59 (“[I]t is up to you to decide if I’m a priestess or a prostitute.”), 115–19; R.T. 3/1/16, at 37– 89.)


Long discussion of this issue and cites where related to other cases that ended with this conclusion:

Elise was also permitted to fully explain her religious beliefs and practices while presenting the defense case to the jury during almost two months of trial, through the testimony of at least 26 defense witnesses. Nor does Elise explain what she would have said at the hearing before Judge Welty that she could not have said in the multiple motions and proceedings mentioned above. Because Judge Welty’s ruling related to an issue of law, no possible harm could have accrued to Elise due her purported failure to be heard unless this Court reverses on substantive, violation-of- religious-rights grounds (discussed in Argument II). In light of the foregoing, Elise’s absence at a single hearing involving her co-defendants in a prior case cannot be said to have prevented her from having the opportunity to be fully heard regarding whether the jury should be instructed regarding the constitutional provisions and statutes associated with religion.

Then long argument that prosecution did not violate her religious rights since she could have done so without violating the Arizona Criminal Code.

Discussed the Hardesty and the AZ Free Exercise of Religion Act. Concludes:

However, Elise cannot even meet her initial burden of proving that her prosecution substantially burdened the free exercise of her religious beliefs. Nothing prevented (or prevents) her from practicing her sexual healings for free. Nor does Arizona’s criminal code prohibit Elise from soliciting or accepting donations to support her religious practices, as long as they are independent of sexual activity. It was merely the exchange of sex for a fee that was prohibited. But because Elise remained free to engage in consensual sexual activity (and to solicit donations independent of such activity), there was no burden whatsoever, let alone a “substantial” burden on her free exercise rights.

Stated differently, even assuming that Elise’s sexual healings were motivated by sincere religious beliefs, the act of charging money for them was not; Elise maintained throughout her trial that individuals could leave money or not, and that the act of leaving money was not crucial to the sexual healing ceremony.

Finally, even had Elise surmounted these initial burdens, Arizona has a compelling interest in preventing the spread of sexually transmitted disease; reducing criminal activities closely associated with prostitution such as drug use, robbery, rape, and human trafficking; and discouraging violence against women, as well as the commodification of sex. A general prohibition of prostitution is the least restrictive means for Arizona to protect these compelling state interests.

Then many pages of details in testimony to support the prostitution not religion issue.

Example of many State arguments:
Elise has never asserted that her religious beliefs require her to exchange sex acts for money. She asserts only that it will be more difficult economically for her to practice her religion full-time if Arizona’s prostitution statutes apply to her. But this type of economic burden is easily distinguishable from the “substantial burdens” traditionally recognized in this area. Those whose religious beliefs required them to practice polygamy, engage in animal sacrifice, or use peyote were directly and immediately burdened by laws that prohibited such behavior, and there was no lawful way for adherents to engage in the behavior in any context.

While a church could theoretically become far more profitable if it engaged in money laundering, it is not entitled to engage in money laundering (or any other type of criminal behavior) in order to facilitate the practice of its religious beliefs. The constitution guarantees the free exercise of religion; it does not provide churches with a license to flout laws in order to increase their economic prosperity, even if their desire for profit is motivated solely by religious zeal. Elise complains that she and her followers will be required to get other jobs in order to support themselves instead of practicing their religion full-time, but the same is true of all religious devotees who are not independently wealthy.

In long discussion of States compelling interest includes:

Arizona has a compelling interest in preventing prostitution. As a matter of law, Arizona has a “legitimate” and “substantial” interest in prohibiting prostitution. See State v. Freitag, 212 Ariz. 269, 271, ¶ 9 (App. 2006) (explaining that “the prevention of communicable disease, prevention of sexual exploitation, and reduction of ‘the assorted misconduct that tends to cluster with prostitution’” were all “legitimate state interests in anti-prostitution laws”) (quoting State v. Taylor, 169 Ariz. 429, 432 (App. 1990)). Freitag also recognized that additional “legitimate interests” included “preventing venereal disease, cutting down prostitution-related crimes of violence and theft, and protecting the integrity and stability of family life.” 25 212 Ariz. at 271, ¶ 9 (quoting People v. Williams, 811 N.E.2d 1197, 1198 (Ill. App. 2004) (internal punctuation omitted)).

When the case agent (Detective Amanda Herman) was asked at trial to identify the “really big harms of prostitution in society,” she explained that prostitution victimizes the sex workers, their clients, and their clients’ families (because of the possibility that the client is “bringing home an STD to his wife”). 26 (R.T. 1/28/16, a.m., at 41.) She also reported having seen “prostitution turn into robbery” because the sex worker elected to rob the buyer instead of having sex with him. 27 (Id.) She noted that she had personally spoken to “a lot of women” involved in “the life of prostitution” who were carrying STDs. (Id.) She also testified that she had “seen sex traffickers become involved in homicides and aggravated assault because they’re fighting with each other over territory and that type of thing.” (Id. at 42.)

Arizona’s compelling interest in prohibiting prostitution implicitly encompasses several interests explicitly identified by other jurisdictions. For example, the Ninth Circuit Court of Appeals explained that because of the established link between prostitution and trafficking in women and children, prohibiting prostitution discourages human trafficking. See Erotic Serv. Provider, 880 F.3d at 457 (noting that “82% of suspected incidents of human trafficking were characterized as sex trafficking, and approximately 40% of suspected sex trafficking incidents involved sexual exploitation or prostitution of a child” according to statistics kept by the United States Department of Justice). It also discourages violence against women. Id. at 457–58 (noting that a “study of 130 prostitutes in San Francisco found that 82% had been physically assaulted, 83% had been threatened with a weapon, [and] 68% had been raped while working as prostitutes”) (internal citation omitted).

Moreover, it prevents the “destructive spiral in which women engage in prostitution to support their drug habit and increase their drug use to cope with the psychological stress associated with prostitution,” as well as “the transmission of AIDS and other sexually transmitted diseases,” in part because sex workers “are more likely to engage in risky sexual behaviors (e.g., sex without a condom, sex with multiple partners) and substance use.” Id. at 458 (internal citation omitted).

The Ninth Circuit concluded that “the interest in preventing the commodification of sex is substantial,” and explained that “the criminalization of prostitution is a valid exercise of California’s police power[.]” Id. at 460. Thus, it held that “the State may criminalize prostitution in the interest of the health, safety, and welfare of its citizens under the Tenth Amendment.” Id. (rejecting the argument that the State had no compelling interest in prohibiting prostitution in the context of a free speech argument). Another Ninth Circuit case recognized that “prohibitions on prostitution reflect not a desire to discourage the underlying sexual activity itself but its sale.” Coyote Pub., Inc. v. Miller, 598 F.3d 592, 604 (9th Cir. 2010) (emphasis in original) (upholding restrictions on advertisements of prostitution in Nevada). “In the minds of early opponents, prostitution was closely bound up with slavery—the paradigmatic case of a dehumanizing market transaction” that violated the principle enshrined by the Thirteenth Amendment that “people may not be bought and sold as commodities.” Id. at 603–05. The court further explained that prostitution runs counter to “the bedrock idea that ‘[t]here are, in a civilized society, some things that money cannot buy,’” which is a principle “deeply rooted in our nation’s law and public policy.” Id. at 603 (quoting In re Baby M, 537 A.2d 1227, 1249 (N.J. 1988)).

The court noted that this principle is evident in laws prohibiting payment for the adoption of a child or for a surrogacy, as well as laws forbidding the sale of human organs. Coyote, 598 F.3d at 603. Such public policies are “driven by an objection to their inherent commodifying tendencies—to the buying and selling of things and activities integral to a robust conception of personhood.” Id. Thus, early criminal laws prohibiting prostitution “were not directed at women themselves but at those profiting from commercialized forms of vice.” Id. (internal citation and punctuation omitted).

In sum, Arizona has a compelling interest in preventing the spread of sexually transmitted disease; reducing criminal activities closely associated with prostitution such as drug use, robbery, rape, and human trafficking; and discouraging violence against women and the commodification of sex.

Skipping many pages regarding the least restrictive means test to meet compelling interest issues. The Okeveuhuh cards discussed and dismissed and how even this didn't prevent at least two rapes and one assault at the Temple (details of Soleil assault by Wayne, Leila's report about Tara's rape while at the Temple etc. Also a third assault of Guinevere involving bruising.)

Elise later admitted while testifying that she did not call the police after learning of at least one assault/rape (likely the one involving “Tara”), and that instead, she “talked it out” with everyone at the Temple (likely during the general meeting referenced by Leila). (R.T. 2/22/16, at 59–60.) She also admitted that she permitted the client/seeker involved in Tara’s assault to continue to attend the Temple. (R.T. 2/24/16, at 22–24.) During sentencing, Elise called the three incidents “misunderstandings.” (R.T. 5/19/16, at 30–34.)

Nor did the card system prevent illicit drugs from being used at the temple. When the Temple was raided, police found peyote and two other items that appeared to be illegal drugs; however, no charges were filed because of the difficulty in proving to whom they belonged. (Id. at 45–49.) They also found drug paraphernalia in the form of a glass pipe. (Id. at 46.)

Nor did the card system protect against the spread of communicable disease. One sex worker reported that the Temple website stated that “if you are afraid of [an] STD, you just have a fear, you need to get over it.” (R.T. 12/07/15, a.m., at 20.) The Temple did not require its sex workers to be tested for STDs; according to Elise’s second-in-command, that was “not a concern at all[.]” (R.T. 1/7/16, at 49–50.) The Temple relied on raw coconut oil to prevent STDs, and the sex workers had to supply their own condoms if they desired to use them. (R.T. 12/07/15, a.m., at 20; R.T. 12/10/15, p.m., at 42; R.T. 1/7/16, at 50.)

Nor did the card system protect against the commodification of sex. Sex workers reported that they were rendered fungible in the sense that if they did not want to perform certain sex acts, the receptionist/gatekeepers would simply match the client/seeker with another worker who was willing—often “Guinevere.” (R.T. 12/14/15, at 37–38; R.T. 1/20/16, at 149–50.)

Skipping many more pages of detail to reach page 63:

Based on the foregoing authorities and arguments, Appellee respectfully requests that this Court affirm Elise’s convictions and sentences.
Page 64 is the signature page of Mark Brnovich Attorney General, the Chief Counsel and Assistant Attorney General.

Dave Notes: Regarding compelling interest these are some of the same arguments which maybe applies to 10% of sexwork - mostly on the streets- that was rejected when presented to the Ontario Superior Court which ruled that the Canadian law against incalls, agencies etc violated the safety of the persons under their Charter of Rights and Freedoms (outcall was always legal). The Ontario Court decision was upheld by the Supreme Court of Canada, declaring most prostitution laws unconstitutional since increased risk - decriminalization was about harm reduction and safety of all concerned. This is the opposite of rulings in the U.S. funded by bogus studies by anti-groups attracting huge amounts of funding to promote their agenda that sexworker need to be "saved" from their own poor choices of work.

The full Arizona Response 64 pages is attached

Attached File(s)
.pdf  AZ State Appeal Anwering Brief.pdf (Size: 179.98 KB / Downloads: 41)

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