From the Guardian: UK Conservative MP David Tredinnick says astrology could help National Health Service physicians out by assisting in diagnosis but says he knows that there would be enormous pushback from using it. He accuses those who refuse to see the value in astrology of being "racially prejudiced." I'm not sure exactly how being skeptical of astrological claims makes one "racially prejudiced." Is there a correlation between acceptance of astrological claims and membership in certain ethnic groups that I have somehow overlooked? I would be really interested in that data.
I've been looking at some of the recent cases brought under the Canadian federal law that bans the practice of witchcraft (Canadian Criminal Code. RS 1985. c. C-46 §365). They are extremely interesting. The most recent one that I can find is that of Yacouba Fofana, aka Professor Alfoseny, arrested back in April, 2014, on charges of fraud and yes, witchcraft, under the current statute. Now, the fraud count convictions can bring serious time, but prosecutors are apparently beginning to bring the witchcraft charges in order to hold suspects until they can gather evidence (at least that's what I can determine from media coverage). Conviction on a witchcraft charge is a misdemeanor--what Canadian law calls a summary conviction. I love Commonwealth legal language. It's so elegant. But I digress.
As I say, Mr. Fofana's arrest and conviction are only among the latest in a series. In December, 2014, Toronto police charged a Spanish language newspaper publisher with violating the law. According to the article I link to here that describes this defendant's arrest and detention, the code provision is related to those English laws that used to send "accused witches" to "burn at the stake." Skipping over the notion that "accused" persons went directly to their doom (even in medieval times, the courts paid due deference to trials and convictions before dispatching defendants to the Great Beyond), those sentenced to die for witchcraft didn't die at the stake. They were hanged. On the continent, however, yes--they were burned.
I have some disagreements with other statements in the article. Rather than go through them specifically, I'll just run through the history of the adoption of the 1735 Witchcraft Act, explain its interpretation, its export to Canada as I understand it, and discuss how the drafters of the Canadian Criminal Code of 1892 pulled the law in effect into that unified document. Sir John A. MacDonald, the great Canadian Prime Minister, led the fight for codification, and the 1892 Code was his monument (although it was completed under Sir John Thompson, a later PM).
Recent research indicates that while Enlightenment thought heavily influenced the MPs who voted for the new Witchcraft Act (9 Geo. II, ch. 5, s. 4), the folks who voted for them (and the unenfranchised) were unpersuaded by the new thinking. Check out writing by Ian Bostridge (Witchcraft and Its Transformations, c. 1650-c.1750, Oxford, 1997, yes the wonderful Schubertian, and how can one person excel in two such different realms?) and Owen Davies (Popular Magic: Cunning Folks in English History, Bloomsbury Academic, 2007) on the persistence of popular belief in witches and witchcraft. What was the meaning of the change in the 1735 Witchcraft Act? They made the claim that one was a witch illegal, because Parliament held through the Act that witchcraft itself--the possibility that one could complete the act--was impossible. The Act also criminalized the accusation that someone was a witch. Thus, no one could claim to be a witch and no one could accuse another of being a witch.
Pretending to practise witchcraft — Every one is guilty of an indictable offence and liable to one year's imprisonment who pretends to exercise or use any kind of witchcraft, sorcery, enchantment or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science, to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found.
This law is essentially the equivalent of that 1735 Witchcraft Act. Here I must make two important points. First, the statute does not allow any defense if the accused admits to the act. Second, the word "pretends" means "claims" or "alleges." It derives from the French word "pretendre," to claim. It does not have the ordinary meaning of "pretends," as in "She's wearing a Hallowe'en costume and pretending to be Glinda the Good Witch from the Wizard of Oz."
The text of the statute remained the same until the recodification of 1953/4, ch. 51, sec. 308. Why, I don't know, but I think it may have been because the UK repealed its Witchcraft Act in 1951, replacing it with the Fraudulent Mediums Act, 1951. Yes, I know the title is vaguely amusing. The Fraudulent Mediums Act provided that one could only be convicted if the government showed that the defendant intended to deceive by "purport[ing} to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers" or used some fraudulent device, and accepted some consideration (money or other thing of value). The new UK law was aimed at frauds, not at those genuinely believed in their paranormal abilities, even though they might be self-deluded.
Here's the text of the new Canadian law passed in 1953/1954.
Pretending to practice witchcraft, etc. — Every one who fraudulently
(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found,
is guilty of an offence punishable on summary conviction.
This law is still in effect today. The Criminal Code has been recodified several times, the provision still reads as above, and you can find the witchcraft provision in the 1985 revision at section 365 as I note above.
The inclusion of the word "fraudulently" seems to provide a defense for those who genuinely believe in their mediumistic or paranormal abilities. It also places the burden on the prosecution to demonstrate the elements of the crime. Beginning in 1975, Canadian courts began to rule on the provision because defendants began to assert that the word "fraudulently" could offer them a defense. That is, the government had to prove that a defendant intended to deceive (exactly what that eighteenth century Parliament tried to legislate out of existence). In 1975, in R. v Dazenbrook (23 C.C.C. (2d) 252 (1975)), a Canadian judge ruled that a defendantr was not guilty under the statute, holding that fortune telling was not illegal under the law.
Since then, a number of other cases have followed, all holding that the prosecution must demonstrate fraud on the part of the defendant. Nevertheless, Wiccans and others who practice divination or other activities traditionally known as "crafty sciences" as part of their religion are concerned that the Canadian government could use this law to prosecute them. The idea that the government must demonstrate intent in order to secure a conviction does not comfort them, and I understand why. I would point out, however, that in 1982 Canada adopted the Constitution Act. The Canadian Charter of Rights and Freedoms guarantees freedom of speech and freedom of religion under section 2, balanced with section 1:
Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
Now, I am not an expert in Canadian constitutional law. But I think sincere believers should have protection against any accusations brought under this law, even though as I said, section 2 must be balanced with section 1. See for example Syndicat Northcrest v. Amselem  2 S.C.R. 551.
Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived‑as‑mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma.
It seems to me that a sincere believer in Wicca, or a sincere believer in any non-mainstream religious practice that would otherwise be classified as banned under section 365 should be able to mount a defense of genuine belief, should she or he need one.
As an aside, the UK repealed the Fraudulent Mediums Act, 1951 in 2008 in order to harmonize its domestic legislation with the EU Unfair Commercial Practices Directive, EU 2005/29/EC. The UK legislation, the Consumer Protection from Unfair Trading Regulations 2008 are now the subject of some debate in the psychic community. But that's a subject for another time.
A federal judge has invalidated yet another fortune telling ban, this time in Alexandria, Louisiana. Federal district court judge Dee Drell agreed with U.S. magistrate James Kirk (great name!) that the city's ban on fortune telling is unconstitutional.
Fortune teller Rachel Adams challenged the ordinance after a police officer issued her a summons, which would have cost her up to $500 a day. The ordinance banned all manner of crafty sciences, including fortune telling, astrology, and palm reading.
The section at issue is 15-127, Fortune-telling, phrenology, palmistry, etc.
It shall be unlawful for any person to engage in the business or practice of palmistry, card reading, astrology, fortune-telling, phrenology, mediums or activities of a similar nature within the city, regardless of whether a fee is charged directly or indirectly, or whether the services are rendered without a charge.
This type of ordinance is a garden variety "crafty sciences" prohibition, banning these practices whether or not they are offered for a fee. I would think that the judge looked to the reasoning in prior cases (Argellio, Rushman, and particularly Trimble). See an earlier post here. Such ordinances target speech. In order to defend them, the government must identify a compelling state interest; here it told the court that fortune telling was fraud and the state interest was to prevent fraud. However, in other such cases, judges have already rejected such arguments, saying that while some fortune tellers may be frauds, the government cannot say that all fortune tellers are frauds. One cannot paint an entire group with that brush. The judge in Trimble told the government that if it wanted to prosecute fortune tellers it could do so under a statute that specifically targeted fraud rather than under a statute aimed at speech.
Further, as another judge wrote, speech that a fortune teller delivers might come true in the future, or it might not. Until it positively has no possibility of coming true, the speaker cannot be branded a liar.
Magistrate Judge Kirk also notes that the ordinance cites as authority LSA: RS 4-7 allows the taxation and licensing of fortune telling, and suggests that if the state recognizes a difference between regulation and restriction, then an ordinance that bans fortune telling is in violation of the statute.
Case citation: Adams v. City of Alexandria, 2012 U.S. Dist. LEXIS 97042.
Roger Pearse discusses Roman attitudes toward magic in this post from August 8, 2009. He begins,
There were three sets of Roman legislation relating to magic. There was an edict in the Twelve Tables (ca. 451 BC); the laws of Sulla (81 BC); and the legislation of Constantine and other Christian emperors (after 312 AD).
(Apologies to Mr. Pearse for having initially misspelled his name).
The flap over the new zodiac continues. In a Sunday (Feb. 13) New York Times article, Vincent Mallozzi notes that at least one couple waited to confirm it should be together until one of them transformed (magicially) from being a Capricorn (not fated) to a Sagittarius (fated) according to the new chart. According to one of the couple, "For 15 years...every tarot reader had produced the Knight of Wands, meaning that the person I was supposed to hook up with was a Sagittarius.'” Because of that, apparently he had held off committing to this person, even though he was attracted. "“`It didn’t make too much sense," said his partner. But now, with confirmation from the new chart, "Our relationship feels a lot more fated." Hmmm.
"Astronomers have known about this since about 130 B.C., Kunkle told The Associated Press Friday in his office at the Minneapolis Community and Technical College, his phone ringing constantly, as it had since the article came out. (One person had even demanded: "Give me my sign back.") This is not new news. Almost every astronomy class talks about it. New news or old, most people had never heard it before. And one of the more fascinating elements of the story was talk of a new sign altogether. By the reckoning of Kunkle and other astronomers, astrologers are not only a month off in their zodiac signs, but they are neglecting a 13th constellation, Ophiuchus (Ooh-FEE-yew-kus) the Serpent Bearer, for those born from Nov. 30 to Dec. 17."
Mr. Mallozzi quotes a lawyer-astrologerfrom New Jersey who says the change shouldn't worry those attached to their signs, since Western Astrologers don't use the constellations. So no one should be concerned. "Kathy Biehl, a lawyer and astrologer in Jefferson Township, N.J., said Earth’s wobbly orbit was a problem for astrologers as far back as 1,800 years ago. Some of them at the time devised a new zodiac based on the seasons and the relationship between the sun and Earth. "`The Western zodiac does not use the constellations,' she insisted. “And as a result, no one’s astrological sign has changed.'"
Still, some people are miffed about the change in their birth signs. Maybe they could sue for IIED. I can foresee the old Zodiac class action brought against, oh dear, whom? Those astronomers who didn't notify us (since 130 B.C., no less)? Just kidding. It's Monday.
Only one commissioner, Dave Carey, supported the bill to make fortune-telling legit. His motion to pass the ordinance died when none of the other commissioners would second the action.
Despite the board’s unwillingness to allow fortune-telling, only one commissioner, Terry Hanley, said he would actually fight any legal action taken against the town. Hanley said Harford County is “dramatically different” from Montgomery County and he also worries about how fortune-tellers would affect neighboring businesses.
“It’s hard to put a dollar [amount] on principle,” he said. “Let them challenge us. If they feel it that strongly, bring it on.”
The other commissioners disagreed.
“Of course I am not in favor of fortune-telling, but I had some major concerns spending taxpayer money to defend it,” Rob Preston said. “I will be very limited in what I am willing to spend to defend this untenable decision, in light of the Maryland court decision.”
Interesting post from an Indian judge concerning tantrik practices. Apparently tantriks are regulated under Indian law. Says Justice Kannan, in part:
The Indian Medical Council Act, 1956 establishes the Medical Council of India (MCI). The Council has notified Indian Medical Council (Professional Conduct, and Ethics) Regulations in 2002 which mandates observance of the code of conduct on the pain of suspension or removal of the licence to practice for the breach of its regulations. They include the practice against promising magic remedies and advertisements. To the extent to which the Regulations are directed against practitioners of only the allopaths, it is obvious that we have to look elsewhere for the practitioners of other systems of medicine. The Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) established by the Ministry of Health & Family Welfare in March, 1995 gives no similar guidelines.
It is not merely unethical to prescribe a magic remedy; it is illegal under the Drugs and Magic Remedies (Objectionable Advertisements) Act passed as early as in 1954. The Act proclaims its avowed object to be to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Magic remedy includes ‘a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals’. Even machines of science or of electric treatment whose magically curative properties are advertised by a person as capable of increasing the sexual virility of a patient is prohibited under the Act. They will be treated as articles intended to influence the organic function of the human body which is prohibited under the Act.