In previous posts, I offered some arguments against the propriety of a charge of reckless murder (or depraved heart/indifference murder) in cases where parents who believe in faith healing fail to get medical assistance to prevent the death of their child. There may be some circumstances where such a charge is warranted, but if one stipulates that the parents truly believed in the power of faith healing and also truly believed that interfering with that power would damage the child’s chances of recovery, then I have a difficult time seeing how reckless murder–at least of the sort that is codified in New York and Pennsylvania–is the right charge. If you haven’t seen it, you should also have a read of Peter Berger’s latest column in which he discusses the issue of faith healing, law, and the power of courts to define reality. Professor Berger’s reflections, as one might expect, are less legal and more sociological. As always, they are fascinating.
In another faith healing case decided last Monday by the Oregon Court of Appeals (Oregon’s intermediate appellate court), State v. Beagley, the court upheld a conviction of criminally negligent homicide for two parents who had failed to provide medical care to their 16 year old child. The child, who was afflicted with a congenital abnormality causing progressive deterioration of the kidney, died after a three month period in which he became increasingly weak. The parents’ defense was that they (and their child) believed that faith healing–”prayer, the laying on of hands, and anointment with oil”–would cure the child. The opinion raises very interesting and difficult issues. It’s worth a read.
One of the defendants’ arguments on appeal was that a conviction for criminally negligent homicide under these circumstances violated their federal and state constitutional and/or state statutory religious liberty. That argument was rightly rejected. But it helps to highlight and, I think, clarify a confusion that sometimes crops up in cases like this. To say that a defendant does not have the requisite mens rea for murder is not the same thing as saying that he is “exempted” from a homicide charge on account of his religious beliefs. The first statement is attempting to pin down his precise mens rea within the framework of homicide under Oregon law; the second statement is saying that irrespective of his mens rea, a constitutional (or statutory) deus ex machina swoops down to lift him out of the state’s criminal justice framework altogether.
Oregon defines criminal negligence in a fairly typical way: failure to be aware of a substantial and unjustifiable risk that (in this case) the result will occur, where the risk is of such a nature and degree that failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. And Oregon recognizes that omissions can serve as the actus reus where the defendant had a duty to act (as parents do, for example). Oregon has a statute on the books related to faith healing which the court had previously interpreted to mean the following: “[T]he statutes permit a parent to treat a child by prayer or other spiritual means so long as the illness is not life threatening. However, once a reasonable person should know that there is a substantial risk that the child will die without medical care, the parent must provide that care, or allow it to be provided, at the risk of criminal sanctions if the child does die.”
In upholding the conviction, the court distinguished a very interesting, but also very confusing, case decided by the Oregon Supreme Court in 1995, Meltebeke v. Bureau of Labor and Industries, involving a civil sanction imposed by the Oregon Bureau of Labor and Industries on an employer who was accused of religious discrimination by “creating an intimidating and offensive working environment” after proselytizing an employee. The Oregon Supreme Court held that because proselytizing was a constitutionally protected religious “practice,” the state could not enforce its labor rule against the employer without violating the state constitution unless it could prove that the employer “knew” that the conduct would result in forbidden discrimination. But–and this is the confusing part–the Oregon Supreme Court distinguished between “conduct motivated by one’s religious beliefs” and “conduct that constitutes a religious practice.” Proselytism was a religious practice, and therefore demanded that the state prove a knowing state of mind. Other kinds of conduct which are not religious practices themselves but are only “motivated by religious beliefs” do not demand that the state prove a knowing state of mind.
The defendants in Beagley argued that in light of Meltebeke, they could not be convicted of criminally negligent homicide without suffering a constitutional violation. The state, they argued, had to prove that they knew that their child would die by engaging in faith healing and failing to get medical care for him. But the Oregon Court of Appeals rejected that argument. Though it expressed some justified puzzlement at the distinction in Meltebeke between a religious “practice” and “conduct motivated by religious belief,” it nevertheless held that “allowing a child to die for lack of life-saving medical care is clearly and unambiguously–and, as a matter of law–conduct that ‘may be motivated by one’s beliefs.’”
I’m not sure that this statement, however forcefully expressed, is persuasive, but the Court of Appeals was to some extent hemmed in by the confusing language of Meltebeke (Meltebeke was also limited to civil cases).
Setting aside the specifics of Oregon case law, however, there is another fact in Beagley that makes for an interesting parallel with the Philadelphia case. In Beagley, there was evidence that three months before their sons’ death, the parents’ granddaughter also died from lack of medical care. That evidence was admitted, the court said, to show that it was more probable that the defendants should have known that their son was in danger. It also showed, the court claimed, that the defendants did know that their son was in danger.
I agree with the proposition that this is further evidence that the defendants “should have known” that their son was in danger. But without more facts, I am not certain that I agree with the statement that evidence of the granddaughter’s death shows that they “did know” of their son’s danger. More evidence about their state of mind would be necessary before concluding that they were conscious of the risks that they were taking.
But in any event, charges of criminally negligent homicide or reckless manslaughter (but not reckless murder) both seem to me to be within the plausible range. And in both cases, Professor Berger is right to say that ”by admitting the case[s] in the first place the court[s] already decided that divine healing as a substitute for modern medicine is ruled out by the legal definition of reality.” “Reality” here is brought to bear in these cases by the criminal law through the baseline mechanism of criminal negligence: one is criminally negligent if one should have been aware of certain risks and where one’s lack of awareness deviates in an extreme way from what reasonable people would do in the face of medical reality.