The Government Wants To Punish Orgasmic Meditation Defendants for Crimes They Weren't Charged With
The prosecutors argue that sentencing based on unconvicted—or even uncharged—conduct doesn't violate due process.
Federal officials are recommending 15- to 20-year prison sentences for orgasmic meditation leaders Nicole Daedone and Rachel Cherwitz, based on the idea that they should be punished for crimes they were never charged with nor found guilty of at trial. It's yet more egregious overreach in a case that was built on flimsy evidence and even flimsier premises.
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OneTaste, launched in 2004, advocated unconventional—and apparently controversial—thinking and practices surrounding sexuality, including a 15-minute, partnered clitoral stroking practice called orgasmic meditation that people were encouraged to engage in daily. In June, Daedone, who cofounded the company, and Cherwitz, who worked for OneTaste for many years and eventually served as head of sales, were found guilty of one count each of conspiracy to commit forced labor. They have been imprisoned ever since, having been denied release pending sentencing.
The Mean Girls Theory of Human Trafficking
I've reported at length on the problems with the prosecution's case and with the trial. These include the puzzling fact that Daedone and Cherwitz were charged with a decade-plus conspiracy to commit forced labor but no underlying forced labor charge (or any other underlying charges), plus a novel theory of forced labor, in which wielding "harmful" ideas and social exclusion form the basis of the criminal offense.
Neither prosecutors nor government witnesses allege that the defendants used physical force, threats of blackmail or violence, fraud, abduction, confinement, passport confiscation, or any other element typically associated with forced labor. There were serious issues with witness credibility (including one witness who admitted to faking journals the government was using as evidence) and with the FBI's investigation (including multiple women who say they felt pressured by an FBI agent to identify as victims).
The essence of the government's case is that Daedone and Cherwitz's teachings around empowerment and sexuality—which included urging people to be open to new and broad sexual experiences—were a form of brainwashing that rendered adult women powerless to reject OneTaste's suggestions about their lives, loves, work, and sexual liaisons. Daedone, Cherwitz, and other OneTaste higher-ups supposedly secured this power by making people feel like they couldn't be part of their inner circle if they didn't support OneTaste's mission and Daedone's vision.
It's the Mean Girls theory of human trafficking—grown women with freedom of movement, college degrees, and plenty of other options legally rendered victims of a serious federal crime by fear that their idols and friends wouldn't want to hang out with them anymore.
"The government's primary theory of coercion was that these women remained at OneTaste because they feared they would be asked to leave OneTaste," jokes Daedone's lawyer, Jennifer Bonjean, in her November 19 sentencing memorandum.
Enhancing Sentences With Non-Charged Crimes
Sentencing in the case was originally scheduled for September but was postponed, with no final sentencing date set as of yet. Prosecutors were ordered to submit their final sentencing memorandum by December 10, meaning their final proposal is unclear.
But in a Presentence Investigation Report, issued on August 21, the U.S. Probation Office recommended a prison sentence of 188 months—more than 15 and a half years—for Cherwitz. And it suggested that the proper sentencing range for Daedone was 235–240 months, which would be about 19 and a half to 20 years.
Federal prosecutors objected only out of concern this the probation office hadn't added all of the possible sentencing enhancements they thought were warranted.
The enhancements that were recommended are rooted in offenses that were not charged.
One of the craziest quirks of our judicial system is that courts are permitted to consider uncharged conduct (or even acts for which a defendant has been acquitted) when determining someone's sentence. In this case, the probation office suggests sentencing enhancements based on the idea that the defendants actually committed forced labor, despite the fact that their only conviction was for forced labor conspiracy.
Making this especially galling is the fact that the government emphasized to the jury that a finding of actual forced labor was not necessary to convict for conspiracy. Prosecutors stressed that it didn't matter if any forced labor had actually happened, it didn't matter if alleged victims actually consented or not, and it didn't matter if they actually suffered serious harm. All that mattered was the defendants' intent—if they tried to employ strategies to coerce or force any sort of labor at all.
If a jury had been asked to decide whether forced labor—or sexual abuse—actually occurred, they may have come to some very different conclusions.
The Probation Office also recommended enhancement of Daedone's and Cherwitz's sentences based on the idea that they engaged in criminal sexual abuse.
Bait and Switch
The presentencing report suggests Daedone engaged in sexual abuse against two government witnesses, Christina Berkely and Michelle Wright, who testified at trial about being asked to engage in sex acts with Reece Jones, who was at various points at OneTaste investor and Daedone's boyfriend.
Sentencing based on crimes the defendants were not tried for, not convicted of, and had no opportunity or cause to defend against before a jury would violate their rights to trial by jury and to due process, the defendants' lawyers argued in a September 4 objection to the presentencing report:
Generalized allegations that Daedone asked Berkely and Wright to be Reece Jones' "handlers" and that the women engaged in sexual activity with Jones, is not a specific accusation that allowed Defendant a fair opportunity to defend against. There was no allegation that Defendant Daedone threatened harm to Berkely or Wright to engage in this conduct. There was not even an accusation that the women did not consent to the activity. If the government intended to ask this Court to punish Defendants for the crime of criminal sexual abuse rather than forced labor conspiracy, it had an obligation to put Defendants on notice of this intent so they could defend it.
Probation is not only asking this Court to find by a lower standard of proof that Defendants committed the substantive offense of forced labor, they are asking this Court to also find by a lower standard of proof that Defendants committed the offense criminal sexual abuse. This goes far beyond an enhancement appropriate for judicial determination. Indeed, the government has carried out a bait and switch in which the government has simply charged an offense (forced labor conspiracy) that the government has turned into a catch-all sex crimes offense co-extensive with state law but without pesky statutes of limitation and without actually having to prove the elements of a sex crime, like intent, knowledge, and lack of consent.
The probation office also sought sentencing enhancements for Cherwitz, based on the idea that criminal sexual abuse occurred when Cherwitz participated in an orgasmic meditation demonstrations with a woman who later said she felt uncomfortable with it.
These enhancements "would place this case in the range of other cases involving extreme abuse of minors, sexual violence, and rape," Cherwitz's lawyers point out in a November 19 memorandum. "While the government initially investigated this case for potential sex trafficking charges, it did not charge a sex offense, and it should not be permitted to circumvent the beyond a reasonable doubt standard."
The Government Responds
In an objection to the defendants' objections, federal prosecutors say that they're allowed to use "unconvicted or uncharged relevant conduct…to adjust a defendant's sentence level" and argue that they are permissibly doing so here. Uncharged conduct can be used in sentencing if a judge finds that a preponderance of the evidence supports it, and the prosecutors state that "courts have repeatedly held that judicial fact-finding at sentencing does not violate the Sixth Amendment, the Due Process Clause, or the Double Jeopardy Clause, provided that the sentence imposed does not exceed the statutory range authorized by the jury's verdict."
But I think most ordinary people would balk at the idea that criminal defendants can be sentenced for crimes of which no jury has convicted them and no prosecutors have charged them. I think most people would object to the idea of punishing someone not based on a jury of 12 peers finding, beyond a reasonable doubt, that crimes occurred but because a single judge, reading government reports and using the lower "preponderance of evidence" standard, determines that they did. Something can be technically allowed and still be unjust.
When "a prosecutor strategically avoids proving a charge beyond a reasonable doubt at trial and then seeks to punish the defendant for that same charge at sentencing based on a lower standard of proof," it makes a mockery of the constitutional requirement of trial by jury, Bonjean suggests in her November 19 memorandum.
Treated the Same as Ghislaine Maxwell?
Cherwitz's lawyer also objected to the sought-after sentence. "Rather than acknowledging the substantial mitigating factors present here—including that Rachel did not run a criminal enterprise, did not commit acts of violence, and was engaged in teaching a legitimate practice recognized as such by the government—Probation and the government have instead stretched every possible inference, and imposed every possible guidelines enhancement to maximize Rachel's potential punishment," states Cherwitz's sentencing memorandum. The result is a "recommendation suited for violent offenders who must be deterred and incapacitated."
Daedone's memorandum note multiple cases where defendants were convicted of forced labor and received much lower sentences than the ones requested here. These include cases where victims were physically abused, had their passports confiscated, and more.
"Ghislaine Maxwell—who was convicted of conspiracy to entice minors to travel to engage in illegal sex acts, conspiracy to transport minors to participate in illegal sex acts, transporting a minor to participate in illegal sex acts, sex trafficking conspiracy, and sex trafficking of a minor—was sentenced to 240 months' imprisonment, the same sentence Probation recommends for Ms. Daedone," Bonjean points out.
More than 200 people submitted letters in support of Daedone. These include the prominent criminal justice reform advocate Van Jones, who calls her "one of the most thoughtful, ethical and service-oriented individuals" he has ever met, and myriad people who participated in OneTaste programs and others, including clergy members, therapists, and people who know Daedone through her philanthropic efforts, such as Free Food Harlem and the Unconditional Freedom Project's Prison Monastery program.
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