Wednesday, June 3, 2015

Legal Issues for Psychics and Fortune Tellers

I got a call from a woman in New York who somehow managed to find my phone number.  She was inquiring about getting a psychic reading from me, but when I asked more questions, I realized she wasn't really looking for advice in the psychic realm.  She needed practical information.  Basically, from what I could tell from her confusing history, she was terrified of putting up her "shingle" as a psychic in a public forum.  She did not doubt her abilities in the least.  She doubted whether or not she would be pursued by law enforcement for announcing her psychic services.

Naturally, I thought this was an over-reaction.  Psychics advertise their services all the time.  You see them on TV, radio, storefronts and billboards.  But I was intrigued by her concern.  As I also have a vested interest in making sure there are no legal problems with offering psychic services, I decided to investigate the issue for myself. What I found was much more complex than I had imagined, even as an attorney!

A number of states have civil and criminal statutes restricting the ability of psychics to practice their trade.  For example, a number of states require that psychics be licensed.  In Salem, Massachusetts, known for its historical burning of witches and tourist business attracted by occult witches and psychics, different types of licenses are required for psychics depending upon whether they have a store, attend psychic fairs, sell metaphysical products, and so on. 

I was surprised to find that in New York State, "fortune telling" is a Class B Misdemeanor under the New York Penal Law.  The statute, N.Y. Penal Law section 165.35: NY Code, passed in 1967, reads:

"A person is guilty of fortune telling when, for a fee or compensation which he directly or indirectly solicits or receives, he claims or pretends to tell fortunes, or holds himself out as being able, by claimed or pretended use of occult powers, to answer questions or give advice on  personal matters or to exorcise, influence or affect evil spirits or curses; except that this section does not apply to a person who engages in the aforedescribed conduct as part of a show or exhibition solely for the purpose of entertainment or amusement.  Fortune telling is a class B misdemeanor."

In New York (as in Oklahoma), it is thus illegal to engage in the practice of fortune telling unless it is identified as being for "entertainment purposes" only! 

I wasn't totally surprised when I read this.  I remember from law school reading about some of the most ridiculous archaic laws that remain (mostly due to neglect and laziness) on the books.  Just to give you an idea: In North Dakota, it is illegal to serve beer and pretzels together; In Minnesota it is a misdemeanor and a $3,000 fine to have sex with a bird if someone is watching you; In Carmel, California, it is illegal to wear high heels that are taller than 2 inches; In Maine, under Title 17, Section 3203 of the state code, you will get six months of jail time, a $1,000 fine, and your auto dealership license will be revoked, if you sell a car on a Sunday; In Orlando, Florida, if you park your elephant on the street, you must deposit the same amount of money in the parking meter as you would a car; In Hartford, Connecticut, it is illegal to educate your dog or give it obedience training.  Well, you get the idea.  Most of these silly laws are ignored by law enforcement.  So I was sure the same would be true of the fortune teller law.

But I was wrong.  These psychic laws are still being enforced today.  In the year 2010, reports indicated that more than ten persons were prosecuted in New York under this criminal law.  Canada has a particularly strict prohibition against psychics dating back to the inception of the criminal code in 1892.  During the decade between 1999 and 2009, 38 people were charged under Section 365 of the Canadian Criminal Code for fraudulently pretending to exercise witchcraft, sorcery, fortune telling or conjuration.  If convicted, it carries with it jail time of up to six months and a $2,000 penalty. The most recent case involved a 36-year-old psychic woman who allegedly scammed a seasoned criminal lawyer (yeah got that one right!) out of more than $100,000 by telling him she was the embodiment of his deceased sister and would help him achieve financial success.  The witchcraft charges were dropped only when she agreed to plead guilty to fraud.

In fact, that is really the heart of the matter here - fraud.  In the absence of legitimate definitions of occult powers in the legal world, legislators and law enforcement are obviously much more concerned about stopping con games involving false promises and large sums of money.  Think of an overzealous or unscrupulous stockbroker who tells you he knows about a stock that is a surefire winner and you will make a lot of money if you invest in his "prediction" and, of course, pay him his fee.  At what point does any prediction - by anyone - amount to a fraud or grand larceny?  The courts in Alexandria, Louisiana and Montgomery County, Maryland, recently rejected arguments that these laws prohibiting fortune telling constitute a ban on the Constitutional right to Free Speech. 

Given the fact that lawmakers clearly don't seem to have any understanding of the true value of psychic abilities, it then becomes incumbent upon the psychics to work hard to distinguish their services from the dreaded fraudulent practices outlined in the statutes.  So what do you do?

There are no clear guidelines on how to avoid a criminal prosecution as a psychic.  There are only rough rules of thumb about how to avoid the appearance of impropriety or fraud.  Several commentators have offered suggestions.  Here are a few:

   1. Avoid encouraging clients to come back for frequent or regular visits

   2. Avoid giving clients the impression that you are absolutely right or sure about your predictions.  Never promise results.

   3. Avoid charging substantial sums of money for any types of psychic services including but not limited to lighting candles, removing spells, delivering information from deceased relatives or spirits, and so on.  Lawsuits against psychics tend to involve cases where the clients alleged they were bilked out of many tens of thousands of dollars over time by the psychic.

   4. In places like New York, include a disclaimer that your services are offered for "entertainment purposes only."  This will clearly feel somewhere in the range between "distasteful" and an outright lie for most serious psychics, but lawmakers leave psychics no choice in this matter.

   5. If it appears a client is overly dependent upon your advice, try to steer them toward getting more conventional help in the health care field.

   6. Avoid telling clients you have a perfect track record of accuracy.

   7. Think carefully about doing readings at psychic fairs and visits to other states and jurisdictions.  Read up on the local laws.

Naturally, these suggestions are not surefire ways to prevent prosecution under the psychic criminal laws but they tend to protect psychics against claims that they engaged in fraudulent acts.  Also, just to add my own disclaimer here, I offer this blog for entertainment purposes only  and not as either psychic or legal advice!  Sheesh!