Amish men who told woman to rescind protective order against husband lose appeal of intimidation convictions

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The convictions of three men in an Amish community on misdemeanor intimidation charges were not barred by the church autonomy doctrine and were supported by sufficient evidence, the Court of Appeals of Indiana affirmed Thursday.

According to court records, the Old Order Amish Church is a religious organization that has members living in several counties in Indiana.

The OOAC in Indiana is divided into districts. In 2016, J.W. and E.W. were members of OOAC District 50 living with at least five of their seven children in LaGrange County.

The Indiana Department of Child Services first became involved with the family in December 2016, after it received a report that the father, J.W., was using inappropriate physical discipline in the home.

DCS opened an informal adjustment with the family. E.W. and J.W. worked with Amish support groups, as well as DCS, during the informal adjustment period.

A safety plan prohibiting J.W. from disciplining the children was imposed, but J.W. violated the plan by directing E.W. to discipline the children in the manner he preferred.

The DCS informal adjustment ended in the spring of 2017 with the filing of a child-in-need-of-services petition after J.W. was arrested for battery against one of his children.

In May 2017, E.W. and J.W. separated.

DCS instituted a new safety plan for the family.

On May 31, 2017, a civil protective order was issued against J.W. in favor of E.W. and five of their minor children who were still living at home. E.W. believed that to comply with DCS’s safety plan, she needed to keep J.W. away from their children and keep the protective order active.

DCS employees told E.W. that if she had the protective order rescinded and there were further instances of abuse in the home, she was at risk of having her children removed from her care.

In January 2018, E.W. moved with the children to OOAC’s District 70-1, which is in Elkhart County.

It is the practice of the members of the OOAC not to involve secular authority or law enforcement in their lives. Although it was unclear from the record whether the members of District 50 were upset about J.W.’s abuse of his family, E.W.’s procurement of a protective order against J.W. or both, some members of District 50 supported E.W., while others did not.

It is also a practice of the OOAC that when there is strife or discord in a district, a panel of three bishops from outside the district is formed to work with the community to resolve whatever issue it is facing.

Joe Hochstetler, Freeman Hochstetler and Daniel Hershberger, who are all bishops in the OOAC, were empaneled in 2017 to work with District 50, a process that began with the bishops discussing the matter with every family in the district.

In August 2018, the two Hochstetlers and Hershberger met with E.W. to pressure her to reconcile with J.W. After the meeting, Hershberger left the panel and Willard Yoder took his place.

In February 2020, the Hochstetlers and Yoder and their wives met with E.W. at her home in Elkhart County. E.W. told them she would not remove herself from the protective order because doing so would violate DCS’s safety plan and would increase the risk of her children being removed.

Returning to E.W.’s home in June 2020, the three men advised E.W. that District 50 had voted the previous day to place her in the “Bann,” which, according to court records, is how the Amish describe being excommunicated from the church.

They explained to E.W. that, to have the “Bann” lifted, E.W. would have to remove her name from the protective order, go to District 50, make a public confession of fault and start working with an entirely different support group. E.W. was open to reconciliation with J.W., but not to removing herself from the protective order.

On May 28, 2021, the state charged the three men with Class A misdemeanor intimidation for communicating a threat to E.W. to expose her to “hatred, contempt, disgrace, or ridicule, with the intent that [E.W.] engage in conduct against her will, to wit: petition to remove herself from a protective order[.]”

The men filed an unsuccessful motion to dismiss the charges, arguing that their actions were protected by the First Amendment and the church autonomy doctrine.

During the ensuing bench trial in Elkhart Superior Court, the Hochstetlers and Yoder argued that their threatened speech — the “Bann” — invoked a matter of public or general concern within the OOAC community.

They read Brewington v. State, 7 N.E.3d 946 (Ind. 2014), as requiring the state to prove actual malice.

Finding that actual malice did not apply, the trial court convicted the three men of intimidation.

The men appealed and the Court of Appeals affirmed, finding the evidence was sufficient to sustain the intimidation convictions. The appellate court held that those convictions were not barred by the church autonomy doctrine and that the defendants had waived their remaining constitutional claims.

Judge Patricia Riley wrote the opinion for the appellate court.

Riley noted that, on appeal, without explanation, the state reversed course and joined the defendants in urging that their convictions be reversed because the evidence of actual malice is lacking.

According to Riley, the state did not present the appellate court with any authority that it must accept its concession.

“Therefore, despite the State’s change of stance, we will examine the law and the facts before us to determine whether the evidence supports Defendant’s convictions,” Riley wrote.

Given the three men’s pattern of behavior concerning the protective order — combined with the content of their threat, uttering the threat in E.W.’s home and the men’s power position in the church — the COA determined the state presented sufficient evidence of intimidation.

The three men cited no cases where an Indiana appellate court had reversed a criminal conviction based on the church autonomy doctrine, Riley noted.

Further, the appellate court found the men were not shielded from criminal liability by the First Amendment or the church autonomy doctrine.

Riley rejected the defendant’s citation of Cantwell v. Connecticut, 310 U.S. 296, 60, S.Ct. 900, 84 L.Ed. 1213 (1940), where the U.S. Supreme Court overturned the convictions of Jehovah’s Witnesses who had been distributing literature and soliciting donations.

“… Cantwell was not decided on the grounds that the defendants’ convictions interfered with the autonomy of their church, it does not directly support Defendants’ argument, and it has not been cited by any Indiana court to overturn a criminal conviction on the basis urged by Defendants,” she wrote.

Judges Cale Bradford and Leanna Weissmann concurred.

The case is Freeman Hochstetler, Willard Yoder, and Joe Hochstetler v. State of Indiana, 22A-CR-2154.