Substantial Factor Versus Sine Qua Non Causation

In a prosecution against the eponymously named Mr. Mullet, and other Amish defendants, the Department of Justice grabbed an an Amish beard- and hair-cutting case from state authorities and cast it as a hate crime. United States v. Mullet, 868 F.Supp. 2d 618 (N.D. Ohio 2012). The criminal statute invoked by the federal prosecutors prohibits

“willfully caus[ing] bodily injury to any person . . . because of the actual or perceived . . . religion . . . of [that] person… .”

18 U.S.C. § 249(a)(2)(A). The prosecution managed to persuade the trial judge, Judge Polster, that “because of” means merely “significant motivating factor,” but the Sixth Circuit would have none of it, and reversed. United States v. Miller, 2014 U.S. App. LEXIS 16532, 2014 FED App. 0210P (6th Cir. ); see Debra Cassens Weiss, “6th Circuit reverses hate-crime convictions of Amish in beard- and hair-cutting attacks” (Aug 28, 2014).

The Court of Appeals held, in a two to one decision, that the statute required a “but for” jury instruction, reversed and remanded. Most plainly, the appellate court stated that:

“[B]ecause of” in brief means what it says: The prohibited act or motive must be an actual cause of the specified outcome.”

United States v. Miller, at *12.

The appellate court cited the common meaning of “because of” and the treatment this phrase has received in criminal[1] and civil[2] cases in the United States Supreme Court. The defendants had presented evidence of other non-religious, non-prohibited motives and thus the district court’s charge was not harmless.

The court then, rather inconsistently, pointed to the “beyond a reasonable doubt standard” and constitutional concerns over religious freedom, as requiring “but for,” despite the identical interpretive outcome in civil cases. Id. What happens when, as in Miller, there are clearly several motives involved:

“How should a jury measure whether a specific motive was significant in inspiring a defendant to act? Is a motive significant if it is one of three reasons he acted? One of ten?”

Id. at *12. The same difficulty could be raised against using the “significant” or “substantial factor” test in civil cases.

More persuasive was simply the invocation of common usage and the need to construe a statute leniently in favor of the defendant.

The dissenting judge would have brushed this all under the rug as “harmless error,” but failure to charge properly on the correct causation standard is rarely going to pass as harmless, and it did not do so here. Even the dissenter, however, acknowledged that:

“This but-for requirement is part of the common understanding of cause.”

Id. (Sargus, J., dissenting) at *46 (quoting from Burrage v. United States, 134 S. Ct. 881, 888 (2014)).


[1] Burrage v. United States, 134 S. Ct. 881, 887–89 (2014) (criminal).

[2] Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (civil); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176–77 (2009) (civil); Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63–64 & n.14 (2007) (civil).

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