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Outlook: When a child dies, faith is no defense.

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Jonathan Turley
Professor of Public Interest Law, George Washington University
Monday, November 16, 2009; 1:30 PM

Jonathan Turley, professor of Public Interest Law at George Washington University and practicing criminal defense attorney, was online Monday, Nov. 16 at 1:30 p.m. ET to discuss his Outlook article titled "When a child dies, faith is no defense. Why do courts give believers a pass?"

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Arlington, Va.: Mr Turley, Thank you for your piece. I was appalled at how these parents let their children suffer so horribly and die. I'm curious about the general use of medicine in these families. Do they shun all forms of modern medicine, to include preventative medicine and over the counter drugs? I was curious as to how many of these children might have been born in a hospital. Are the parents refusing medical care for their children but accepting it for themselves?

Jonathan Turley: Most of these cases involve parents who also refuse such medical care for themselves as well. Obviously, children are often at greater risk. The terrible tragedy of these cases is that most of these treatments would require relatively minor interventions. Christian Scientists, Jehovah's Witnesses, Amish, Scientologists, and various Pentecostal faiths have reject different aspects of medical science. While Scientologists foreswear psychiatric medicine and Jehovah's Witnesses forego blood transfusions, these divergent faiths share common element in strictly prohibiting forms of modern medicine.

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Westborough, Maine: Why ARE the courts accepting religion as a mitigating factor? A question of too much PC, or just longstanding tradition?

Jonathan Turley: Some states have laws like Wisconsin that expressly exempt faith-based actions that result in harm. In other states, parents are seen by courts as lacking the evil state of mind of other parents -- the mens rea element of the crime.

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Columbia, Md.: I notice, if I read it correctly, that your article avoided direct mention of both the Christian Science movement and the Jehovah's Witnesses, both of which have practices which, critics allege, have led to similar results. Christian Science, however, has won some legislative exemptions; the Witnesses have won some court challenges. What is your opinion about this situation?

Jonathan Turley: Indeed, as noted in the prior answer Christian Scientists, Jehovah's Witnesses, Amish, Scientologists, abd various Pentecostal faiths have this same element -- though they differ on the specific medical or psychiatric elements found objectionable. The opposition to blood transfusions by Jehovah's Witnesses has produced a number of such cases, resulting in court orders that force the medical intervention. The victories have largely been in non-life threatening care issues.

What is not widely known is that the legislative victories were in many cases the result of a political push by Nixon aides Bob Haldeman and John Ehrlichman. Another big supporter of the exemption was Charles Percy of Illinois, who was a Christian Scientist.

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Washington, D.C.: Thank you for raising this issue.

Do you really mean that there is an "exemption" under Wisconsin law? Or does the statute merely specify that the defendant's religious beliefs may be taken into consideration as a mitigating factor when determining sentencing? Are you arguing that this consideration should be limited to determining mens rea for the underlying crime, rather than sentencing?

Either way, what is the citation for the statutory provision? How many states have such a provision?

Jonathan Turley: I am not sure how many states currently have the laws. I know that five states have gotten rid of the protections or exceptions: Hawaii, Maryland, Massachusetts, Nebraska and North Carolina. Wisconsin is considering such a change.

The Wisconsin exception (948.03(6)) reads as follows:

A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under s. 48.981 (3) (c) 4. or 448.03 (6) in lieu of medical or surgical treatment.

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Herndon, Va.: If we are a nation in which no religion gets preferential treatment; and if it is permissible for a judge to show leniency to people whose faith causes the death of others; wouldn't this also allow for the 9/11 plotters to be shown leniency because in their minds they were defending Islam? Where does one draw the line? A concerned atheist.

Jonathan Turley: It is an interesting question. After all, we do not accept a religious excuse for the killing of children when a mother or father says that God or Satan told them to commit murder. Andrea Yates did not have a faith-based excuse. Likewise, we do not grant any leniency to other crimes like terrorism. One obvious distinction is that these parents honestly believe that they are seeking divine assistance for their children and protecting their souls. They are not motivated by hate or a desire to terrorize others. However, it still leave a disturbing disparate treatment for non-believers or in the vegan case discussed in the article. Frankly, it is much better in many states to claim a faith-healing faith in such cases.

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Chatham, N.J.: What goal of punishment does Turley believe that more severe sentencing of such parents would serve? Would it a) deter them from withholding medical care from their other children, b) deter others with similar religious beliefs from withholding medical care, and/or c) express society's judgment that withholding life-saving medical care from a child because of religious belief is as morally culpable as any other form of fatal brutality. If Turley believes the later, as I suspect, then why is he not forthright enough to say so?

Jonathan Turley: I simply do not agree that faith is a substantial mitigating factor in the death of a child once the seriousness of the condition becomes evident. I believe these laws facilitate such deaths by not only imposing low sentences but prevent the other children from being removed from the household. These children have distinct rights from their parents. I have no problem with an adult starving themselves to death, refusing necessary medical care, or engaging in other self-destructive forms of denial. These children have the right to make such life-altering decisions once they become adults -- including the possibility of rejecting these extreme views of their parents. I believe, if these laws were applied evenly, it would deter many of these families as it did The Peculiar People, discussed in the article. After the belated prosecution in England, the community split. Most of the community agreed to seek medical attention for serious ailments and sicknesses. They became known as "The New Peculiar People." The other group soon died out on their own accord.

I simply do not see why the parents' faith is a mitigating factor in these extreme cases. Indeed, these cases often show premeditated action as in the case of the Minnesota woman who hide her son from chemotherapy needed to save his life. Society has a duty to protect these children and the parents should not be able to claim the right to commit criminal neglect and not face the same punishment of non-believers.

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Wausau, Wisc.: Prof. Turley,

Thank you for your insight. I live in the same community as the Neumann's and I was surprised and saddened by their light sentences. Has the Supreme Court taken up any cases like this and/or are any of the most recent cases likely to end up on the docket?

Jonathan Turley: The Supreme Court has left these cases to state law. The people of Wisconsin, Oregon and other cases can define neglect (and its exceptions) as they see fit under our federalism system. The best challenge would be by parents who receive a long sentence due to the absence of a faith-based claim for exemption. That does raise questions under the first and fourteenth amendments.

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Orlando, Fla.: Thank you for writing on this topic. I was raised in a CS household and did not receive any medical care until I went away to college. I am permanently disabled as a result from congenital hip dysplasia (a condition that is easily treatable in infants without drugs or surgery, but that has no treatment for adults). I've noticed that people often think about this issue in terms of punishment -- what should we DO to parents like mine. I wish people would remember that the law also educates. My parents made a point to follow the law, even when it required medical test/treatment. They eschewed medical treatment for me because the law allowed it. Had the law been different, my life would have been very different. Better laws would protect more children.

Jonathan Turley: Thank you for sharing your personal account of the costs of these practices. I am very sorry for your disability. I believe that most parents are like your parents. They would comply if the law drew a bright line and rejected faith as a mitigating factor in sentencing or as a defense to neglect. As noted earlier, this was the case with the Peculiar People of Britain. The law should be neutral in protecting children of all families by requiring prompt medical attention for serious medical problems. Parents can also seek to faith heal but they should be required to consult doctors. Part of the problem is that, because some states protect such parents, children (like yourself) are "off the radar screen" for purposes of public health. Once children are seen, doctors can alert authorities as in the Minnesota case. There is an example of a mother who ultimately was forced to yield and the court effectively saved the life of her boy.

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Washington, D.C.: When my son was diagnosed two years ago with Type 1 diabetes, I too wished it would go away. With a lot of effort by the parents and doctors it is possible to have a very happy, energetic and loving child. As an atheist, I am appalled that they could do this to their child based on a delusion. Also as someone who also once worked in the criminal justice system I do not see this as deserving any more leniency than would be given to other parents who kill their children.

Jonathan Turley: I am happy to hear that your son is doing well. Of course, most religious parents would not dream of denying their children of medical assistance. This is narrow group of religious people, but their numbers still present a serious health problem for us. Society needs to show that the basic medical care of children is a uniform standard for all children. These parents have the right to teach their children that such medical care is wrong and, when the children become adults, they can refuse such treatment. However, until the age of majority, society has a duty to protect them from harm -- whether it is motivated by parental addictions, abandonment or religious beliefs. The denial of antibiotics to the child is just as lethal if the parent is a drug-addict or a fundamentalist. No one is equating the lifestyle of a pusher to a Pentecostal. The latter are leading what they believe is a moral and righteous life. Indeed, most of us would fight for the right of the fundamentalist to hold those beliefs and to teach those beliefs to her children. However, the child must be given a chance to make such choices for themselves when they reach adulthood.

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Wichita, Kan.: Dear Professor Turley,

Thank you for advocating for the rights of children. How well a society protects its most helpless citizens says much about its morality.

I wonder if the tendency to sentence religious parents to lighter terms isn't simply for fear of backlash from the powerful religious forces in this country. As an atheist myself, I wish all adults charged with the care of children would realize something I have known since my Catholic school years: prayer doesn't work.

P.S. Love your appearances on Rachel Maddow's show.

Jonathan Turley: As I mentioned above, the actual laws passed in some states had from interesting advocates. What we need is for religious groups and advocates to come forward and support a uniform standard. It is one of the most basic requirements of any nation: the protection of those who cannot protect themselves. As the father of four, I may have reservations about some public health measures, but I understand that I must comply with the laws applied to all parents. I can fight to change those laws, but I agree to comply with them.

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Martinsburg, W.Va.: Please address the similarities between light sentences for this kind of faith-based crime and light or different sentencing for other faith-based crimes like actively killing someone because "god" or "the devil" or other entities "told" or "forced" the accused to do it. Or the claim that the accused was really "defending" the victim from threats from a god or evil spirit.

Is not taking a child to a doctor because a god will heal him just another version of an "insanity" defense?

Jonathan Turley: As I noted above, the disparity of these cases is striking. We do not accept faith as a mitigating factor for other crimes from tax evasion to murder. I would be interested to see a challenge by a secular parent to receiving a higher sentence in a state like Wisconsin.

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re: best challenge: Is that happening anywhere, such as with the vegan case that you cited? A life sentence certainly seems excessive in that case. Was there evidence they were actively avoiding seeking care like many of these faith-based parents are? Why the extreme sentence?

Jonathan Turley: In Australia, Thomas Sam and Manju Sam - were given little sympathy or mercy when their baby Gloria Sam died from easily treated eczema. Their rigid faith in homeopathic treatment did not protect them from manslaughter convictions and ten years of incarceration.

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Washington, D.C.: I strongly disagree with your article on Sunday. It seems clear that there is a difference between a parent who does what they believe is in the best interests of their child -- despite your disagreement with those beliefs -- and a parent who simply neglects their child. I think it is perfectly appropriate to take that into account in sentencing.

I also disagree with the idea that these parents should be criminally prosecuted. Science and medicine are positive, on balance, but they also entail significant risks. I think I read somewhere that over 180,000 people die each year unnecessarily from medical errors, and who know how many more suffer significant injuries. Why should parents who reject those risks be treated as criminals, particularly when they've already suffered a wrenching loss.

It's easy to find individual situations that seem clear-cut and then make broad generalizations. But you ignore situations on the other side. There recently was a story about a child who died from a medication error after an unnecessary dental procedure. If that child's parents had rejected medicine, he would still be alive. Should those parents be criminally prosecuted?

Rather than focus on individual cases, I would be interested in seeing whether there is a higher percentage of deaths and serious injuries among children whose parents reject medical interventions versus those who accept it.

And for full disclosure purposes, I was raised as a Christian Scientist but no longer practice and see the doctor on a regular basis.

Jonathan Turley: You raise a good point. There are indeed many cases that are less clear cut, involving cases where the seriousness of the illness was not obvious or the denied care is not life threatening. The most obvious are parents -- religious and non-religious -- who do not want to get flu shots. We have left that decision to the parents. However, if this were a true pandemic, that could well change to protect both the children and the community. I am sorry that we disagree but I appreciate your view. Unfortunately, space did not allow for a fuller discussion of such marginal questions. The first priority, in my view, is to deal with these extreme cases.

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Jonathan Turley: It looks like we are out of time. I certainly appreciate all of the interest and comments from everyone. I apologize for my slow typing and likely typos. This debate is continuing on my website at www.jonathanturley.org if you want to chat with each other. Also, I believe the post comment section is still open. Thanks for the chance to interact on this important subject.

Jonathan Turley

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washingtonpost.com: Jonathan Turley Web Site

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