Former U.S. Attorney Breon Peace Initiates Unprecedented Forced Labor Conspiracy Case
A bold new prosecution is underway in Brooklyn.
The case is United States v. Rachel Cherwitz and Nicole Daedone.
The US Attorney for the Eastern District of New York, Breon Peace, filed an indictment on April 3, 2023, charging Daedone and Cherwitz with one count of conspiracy to commit forced labor.
US District Court Judge Diane Gujarati has set the date for jury selection for January 13, 2025, with the trial scheduled to follow immediately after the jury is selected.
US Attorney Peace, who recently announced his resignation, timed to exit ten days before President Trump takes office, opted to initiate a prosecution, during his tenure, of a new kind of alleged criminal in this case. It’s a first of its kind and he will leave the actual prosecution for others to reap the harvest.
It has been said of people long on talk and short on action that they got the hard part done – the talking. And the corollary in the world of prosecutors is the indictment and conviction. One is certain, requires no adversarial conditions and is indifferent to the defendant were she a woman or a ham sandwich. The indictment is Peace’s. He got the hard part done.
Now others will take up the residue of this most unusual prosecution and try to fulfill his mandate post exodus of convicting and imprisoning on a charge of conspiracy to commit a crime that Peace does not allege was ever committed and where he directly alleges, there was none, there was no imminent danger.
Breon Peace has moved us into a brave new world that feels like thought crime punished belatedly or perhaps the vanguard of pre-crime prosecution: we can’t prove you committed a crime but we think we can prove you thought about it. But we will talk about it as if you comitted the crime, but we won’t charge you of the crime – we will charge you for being long on talk and devoid of action.
It is a most unusual prosecution.
US Attorney for the EDNY Breon Peace says he will leave office on January 10, ten days before the man who nominated him, Biden, leaves office, and the man who replaces him, Trump, who absent his resignation, would certainly fire him.
Charges Against OneTaste Executives to Test Boundaries of Conspiracy Law
If this bizarre case succeeds, Peace can leave a precedent that could make it easier for the Justice Department to convict people who plan crimes but don’t come anywhere close to doing them. The crime he is using to foment this is already on the books – conspiracy to commit forced labor.
The Justice Department – in all its 93 districts – has never brought an indictment like this – not once – an indictment solely on this one charge – conspiracy to commit forced labor. Not forced labor, but conspiracy to commit forced labor. To be clearer than clear, Peace did not bring the charge of forced labor in his indictment.
And though due process is hardly known at the Department of Justice, nor do they know anything of historic freedom principles, except enough to oppose them, the public at least knows that the government must officially charge a crime to consider it in court.
For charged crimes, there’s a presumption of innocence. For uncharged crimes, there’s an even stronger presumption that no crime happened. The jury shouldn’t even think about uncharged crimes.
And Peace did not charge the two women of OneTaste of the crime of forced labor. He did not. He charged the women with conspiracy to commit forced labor.
So the man is a due process-truncating pioneer. In the past, no US Attorney ever charged conspiracy to commit forced labor (18 U.S.C. § 1594) by itself. Every indictment that ever indicted anyone that contained the charge of violating 18 U.S.C. § 1594 forced labor conspiracy also included the charge of forced labor (18 U.S.C. § 1589) or, in one instance, sex trafficking (18 U.S.C. § 1591).
No one ever got indicted just for conspiring to commit forced labor without being charged for committing a crime, a real crime – one that harms someone.
Peace assigned a five-member team of Assistant US Attorneys—an unusually high number for a single-count indictment—but there is a lot at stake.
OneTaste Executives Face Forced Labor Conspiracy Charges Over Controversial ‘Orgasmic Meditation’ Practice
Orgasmic Meditation. It is not illegal for consenting adults but prosecutors don’t like the practice.
The defendants, Daedone and Cherwitz, ran OneTaste Inc., a sexual wellness company that offers classes and seminars. It teaches a controversial practice known as Orgasmic Meditation, a 15-minute practice where one person wearing a rubber glove strokes another person’s clitoris. This practice, which would be illegal in Saudi Arabia, Iran, United Arab Emirates, Indonesia, Turkey, and Pakistan, purportedly aims to enhance the understanding of female sexuality and its connection to spirituality.
There have been 16,000 students, everyone over the age of 18. There has never been an allegation that anyone underage ever attended a class.
This is an adults-only practice, and every student who ever entered a class knew it involved a practice that concerned female sexuality.
The indictment against Daedone, the co-founder of OneTaste, and her head of sales, Rachel Cherwitz, alleges they conspired from 2006 to May 2018 –twelve years –to commit forced labor.
Defendants Rachel Cherwitz and Nicole Daedone
The judge will ask the jury to decide only one question: guilty or not guilty of conspiracy to commit forced labor. The jury will not be tasked with determining if there are any victims, as no victims are necessary for a conspiracy.
They will not be asked to determine if forced labor occurred. Forced labor was not charged.
Although the two women did not achieve their alleged conspiratorial aim, (though they allegedly conspired for 12 years) they were not required to succeed.
Conspiracy to commit forced labor carries the same penalty as forced labor itself, which is up to 20 years in prison.
Intent Versus Action in Forced Labor Charges
The prosecution’s case hinges on proving a conspiracy to commit forced labor without evidence of the act itself. This raises questions about the legal thresholds for intent and action in criminal cases.
The case has no victims, technically by law.
If two people conspired to rob a bank but never did, the bank is not a victim. If two women conspired to force others into labor but no one was forced, there is no victim. In these cases, the bank or potential laborer might be considered “intended victims.”
John Dillinger did a lot of conspiring to rob banks. But then again he really did it.
And would you believe it didn’t take 12 years to plan it.
Victimless Crime
However, the prosecution will likely seek the court’s permission to refer to alleged intended victims as “victims” to gain a psychological advantage.
Using the term “victim” before proving a crime makes it easier for the prosecution to bestow the presumption of guilt on the defendant before the jury decides the question.
The biggest challenge prosecutors must address is the timing issue: they claim the conspiracy ended in May 2018, five years before the 2023 indictment.
It is not like a conspiracy to rob a bank, where the FBI might arrest armed hold-up men wearing masks on their way into the bank—an act that demonstrates imminent harm.
No harm was imminent in the OneTaste case.
The indictment claims the women terminated their conspiracy five years before the indictment. It was half a decade old when their last alleged efforts occurred.
The jury might interpret the gap between the alleged end of a conspiracy in May 2018 and the indictment in April 2023 as evidence that no crime was intended. If forced labor did not materialize during a dozen years of conspiring, when was it going to succeed?
There is a reason why the US Attorney did not charge forced labor; he did not have the evidence.
And consider if you will that the indictment specifically states the two women conspired from 2006-2018 – a dozen years and the US Attorney did not charge forced labor.
Prosecutors allege two birds conspired for 12 years to force the other birds to labor to bring them worms, but none of the birds brought them any worms but ate the worms whenever they found them. With what crime should the two birds be charged? Conspiracy to commit forced worming.
Conspiracy: Four birds were sitting on posts of a fence and two of them conspired to force the others to fly away. But none of the birds flew away.
The prosecution team must focus on communications, relationships, and circumstantial evidence to win. The prosecutors must demonstrate that the law mandates punishing defendants for unexecuted plans.
Nicole Daedone co-founded OneTaste and developed the curriculum offered to students.
Confuse the Jury
Testimony regarding sexual practices and Orgasmic Meditation presented as evidence of a conspiracy may provoke the jury’s moral outrage, serving as a substitute for a lack of demonstrated harm. Jurors may misinterpret sexual practices as coercive because they personally find it repulsive and would require force to participate themselves.
They might fail to consider that a few participants consented to a sexual practice at the time, but now regret their involvement. This is similar to someone getting a tattoo—enthusiastically embraced when consent was given—but later regretted.
This conflating of sex with forced labor that does not need to be proven, a conspiracy that lived and died in intention, but not in reality, can make a standalone conspiracy a tool to stop potential crimes that never occurred but might have occurred.
The case could help the Justice Department pivot to punishing intent – mens rea. It is pre-crime prosecution—prosecuting intentions rather than waiting for actual victim-based crimes to occur. The power to prosecute dangerous thoughts, beliefs, or associations without waiting for them to manifest into dangerous crimes is incipient in the OneTaste prosecution.
Legal Debate: Intent Versus Action in Forced Labor Charges
The prosecution’s case hinges on proving a conspiracy to commit forced labor without evidence of the act itself. This raises questions about the legal thresholds for intent and action in criminal cases.
The OneTaste case might be the road to extricating the formerly inextricably intertwined necessity of proving a concrete criminal act (actus reus) accompanied by a guilty mind (mens rea) and pivot to prosecuting the guilty mind, the mens rea without the act of a crime (actus rea).
This has been successful in Myanmar, Eritrea, Turkmenistan and Belarus. It has worked admirably in Saudi Arabia. Better still in North Korea, and fabulously in Russia. But nowhere has it been more successfully advanced than in China, where criminal liability is not based on actions that cause harm but on thoughts, discussions, and agreements of future behavior that could cause harm. The Chinese government alone decides harm.
The Liberty Bell cracked on its first strike signifying that liberty is fragile.
Implications for Future Prosecutions
If successful, this case could set a precedent for prosecuting conspiracies without the occurrence of the intended crime, potentially immensely broadening the scope of federal criminal charges.
In America, while Daedone and Cherwitz failed to force anyone to labor, had they succeeded, the prosecution could argue that hundreds, maybe thousands, might have been forced to stroke someone’s clitoris or be stroked, and that might include your sister, wife, mother, or daughter! It could even happen to you.
A justice system that punishes intent alone can open the door to ending dissent and targeting individuals based on known concerns about certain organizations and individuals, which the government views as holding decidedly dangerous beliefs or associations.
Prosecuting conspiracy without a substantive crime would send a message that planning a crime—without carrying it out—can have consequences. A crime is in the eye of the beholding prosecutor.
In the past, diffident prosecutors feared bringing a conspiracy charge alone, thinking that juries might reject the conviction, since there was no harm to any victim.
But in Brooklyn, it is widely known that judges are highly accommodating to prosecutors and help craft jury instructions. This can lead to confusion among jurors between the charge of conspiracy to commit forced labor and forced labor, the latter which was not charged.
The absence of a forced labor charge leaves lingering questions about whether Daedone or Cherwitz intended to coerce employees or students of OneTaste or merely promoted activities considered repugnant to people in Brooklyn.
In the eyes of the prosecution, Orgasmic Meditation, even if it is not a crime – ought to be a crime. It could lead to crime. Just as marijuana leads to heroin.
If the jury questionnaires are prepared to weed out libertine jurors, and jury instructions are narrowly tailored to allow the jury to believe repugnance is a license to convict, then the government succeeds.
A Gallant Future
If the case succeeds, the precedent can pave the way for more conspiracy-only prosecutions and usher in a new future of conspiracy law in America.
It can also end Orgasmic Meditation, imprison two women who taught practices that the US Attorney for the Eastern District, Breon Peace, would likely say (and his assistant prosecutors will try to show) are immoral, filthy, repugnant, even border on voodoo or witchcraft, (didn’t Daedone teach “Magic” classes?) and the government can send a message to women everywhere that, under the guise of spirituality, they can’t be what we consider to be sluts or teach young women to act like whores.
Sluts get stoned, and witches are burned.
If you’re gonna conspire to be a witch, be prepared to pay the historical price.
Prosecutor (Magistrate) William Stoughton set precedent with his bold prosecutions.
And the voodoo pin is placed in someone’s doll heart, but whose?
