Around the Web

Around the Web

Here are some important law-and-religion news stories from around the web:

Bessler, “The Celebrated Marquis”

9781611637861Did you know that Cesare Beccaria’s monumental work, Of Crimes and Punishments, landed on the Catholic Church’s list of forbidden books? I didn’t. And that he once was a member of a group called the “Academy of Fists?” (Maybe resident Italophone Marc can explain). I did know that Beccaria’s early-utilitarian views on the purposes of criminal law greatly influenced the American Framers. All these subjects are covered in this new book by University of Baltimore law professor John Bessler, The Celebrated Marquis: An Italian Noble and the Making of the Modern World. The publisher is Carolina Academic Press. Here’s the description from the publisher’s website:

During the Enlightenment, a now little-known Italian marquis, while in his mid-twenties as a member of a small Milanese salon, the Academy of Fists, wrote a book that was destined to change the world. Published anonymously in 1764 as Dei delitti e delle pene, and quickly translated into French and then into English as On Crimes and Punishments, the runaway bestseller argued against torture, capital punishment, and religious intolerance. Written by Cesare Beccaria (1738-1794), an economist and recent law graduate of the University of Pavia, On Crimes and Punishments sought clear and egalitarian laws, better public education, and milder punishments. Translated into all of the major European languages, Beccaria’s book led to the end of the Ancien Régime.

Praised by Voltaire and the French philosophes, Beccaria was toasted in Paris in 1766 for his literary achievement, and his book—though banned by the Inquisition and placed on the Catholic Church’s Index of Forbidden Books—was lauded by monarchs and revolutionaries alike. Among its admirers were the French Encyclopédistes; Prussia’s Frederick the Great; Russia’s enlightened czarina, Catherine II; members of the Habsburg dynasty; the English jurist Sir William Blackstone; the utilitarian penal reformer Jeremy Bentham; and American revolutionaries John Adams, Thomas Jefferson, and James Madison. On Crimes and Punishments, decrying tyranny and arbitrariness and advocating for equality of treatment under the law, helped to catalyze the American and French Revolutions. In 1774, on the cusp of the Revolutionary War, the Continental Congress explicitly hailed Beccaria as “the celebrated marquis.”

Called the “Italian Adam Smith” for his pioneering work as an economist in Milan, Cesare Beccaria—like his Italian mentor, Pietro Verri—wrote about pleasure and pain, economic theory, and maximizing people’s happiness. Once a household name throughout Europe and the Americas, Beccaria taught economics before the appearance of Smith’s The Wealth of Nations but died in obscurity after working for decades as a civil servant in Austria’s Habsburg Empire. As a public councilor, Beccaria pushed for social and economic justice, monetary and legal reform, conservation of natural resources, and even inspired France’s adoption of the metric system. In The Celebrated Marquis, award-winning author John Bessler tells the story of the history of economics and of how Beccaria’s ideas shaped the American Declaration of Independence, constitutions and laws around the globe, and the modern world in which we live.

Greenawalt, “From the Bottom Up: Selected Essays”

I’m delighted to post this notice for a new book of essays by my old master, Kent From the Bottom UpGreenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).

As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:

A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.

“Foundational Texts in Modern Criminal Law” (available for pre-order)

Foundational Texts in Modern Criminal LawI am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I’ve listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.

Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.

Schull, “Prisons in the Late Ottoman Empire”

In May, Oxford University Press published a very interesting looking book at the Prisons in the Late Ottoman Empireintersection of religion and criminal law, Prisons in the Late Ottoman Empire: Microcosms of Modernity, by Kent F. Schull (Binghamton University). The publisher’s description follows.

Contrary to the stereotypical images of torture, narcotics and brutal sexual behaviour traditionally associated with Ottoman (or ‘Turkish’) prisons, Kent F. Schull argues that these places were sites of immense reform and contestation during the 19th century. He shows that they were key components for Ottoman nation-state construction and acted as ‘microcosms of modernity’ for broader imperial transformation. It was within the walls of these prisons that many of the pressing questions of Ottoman modernity were worked out, such as administrative centralisation, the rationalisation of Islamic criminal law and punishment, issues of gender and childhood, prisoner rehabilitation, bureaucratic professionalisation, identity and social engineering.

Juxtaposing state-mandated reform with the reality of prison life, the author investigates how these reforms affected the lives of local prison officials and inmates, and shows how these individuals actively conformed, contested and manipulated new penal policies and practices for their own benefit.

More on That Jewish Divorce Case in New Jersey

A couple of weeks ago, I posted about the FBI’s arrest of two rabbis who allegedly orchestrated the kidnapping and torture of dozens of men in New Jersey. The rabbis allegedly did this in order to force the men to consent to their wives’ requests for divorce under Jewish law. Under Jewish law, a woman cannot unilaterally divorce her husband; the husband must give permission, or a get. If he refusesthe wife becomes a chained woman, or agunah, who cannot remarry.

The women in these cases were apparently desperate for Jewish divorces and took extreme measures to obtain them. They allegedly paid the rabbis tens of thousands of dollars to convene Jewish law tribunals and issue decrees allowing violence against the recalcitrant husbands. The rabbis then allegedly arranged for thugs to torture the husbands until the husbands granted the gets. This conduct would obviously be criminal under US law and the rabbis will not be able to escape punishment by arguing that their religion authorized what they did.

I expressed doubt in my post that ordering violence against a recalcitrant husband would be consistent with Jewish law. It turns out that I may have spoken too soon. My friend Michael Helfand  at Pepperdine University, an expert in Jewish law and occasional guest here at CLR Forum, explains in the The Forward that “the use of violent sanction in these circumstances has been a feature of Jewish family law for millennia.” Under traditional Jewish law, he writes, if a husband refused to comply with a tribunal’s judgment and give his wife a get,

the rabbinical court could authorize the use of violent force against the husband. While divorces [could not] be executed under duress, it was simply unimaginable that a husband would so cruelly leave his wife trapped in a nonfunctional marriage. Thus, force simply served as a vehicle to free the husband’s inner desire to do the right thing and grant his wife a divorce.

Michael doesn’t advocate this practice, I hasten to add, and he notes that the strong implication of bribery would likely invalidate the religious decrees in the New Jersey cases. In fact, Michael advocates a very American fix for the problem of agunot–a prenuptial agreement. (Michael wrote about the topic here at CLR Forum back in March). The Beth Din of America, a major Jewish law tribunal in the US, has adopted a model prenup “that requires a husband to provide his wife with a daily support payment, typically $150, for each day the two no longer live together and the husband still refuses to grant his wife a religious divorce.”

The prenup is not a panacea. A wealthy husband could make the payments and refuse to give a get, and a wife without such a prenup wouldn’t benefit at all. But the prenup might help some agunot, and wouldn’t require kidnapping one’s husband and torturing him. It’s like they used to tell us in law school: In America, when the going gets tough, the tough contract out. 

Federal Authorities Accuse Rabbis of Kidnapping Scheme in Connection with Religious Divorces

Often, in my class on law and religion at St. John’s, we address difficult questions about where to draw the line on religious autonomy. How far should the state go in accommodating religious practices that conflict with state rules? Or, put in reverse, how much freedom from state control can religious organizations legitimately expect? The recent contraceptives mandate is an example of this sort of conflict.

But one of my students yesterday emailed me an article from the New York Times that discusses an an easy case–at least as the facts have been reported. Federal authorities in New Jersey this week accused two rabbis of orchestrating the kidnapping and torture of dozens of men. The rabbis did this in order to force the men to consent to their wives’ requests for divorce under Jewish law.

According to traditional Jewish law, as I understand it, women have no right unilaterally to divorce their husbands. For a divorce to be final, the husband must give his permission, or get. If the husband declines to give a get, the marriage is not dissolved, and the woman becomes an agunah, or chained woman. This means the woman cannot marry again under Jewish law. Of course, the woman could divorce and remarry civilly, but many observant Jewish women decline to take this route, as it would render them, and their future children, outcasts in their own communities.

In theory, a husband must give a get of his own free will. There are ways for Jewish law tribunals to encourage obstinate husbands to give gets, however. A tribunal might ban a husband from his synagogue until he does so, for example. And some civil jurisdictions, like New York, have passed “get laws,” which try, in various ways, to create incentives for husbands to give their wives gets.

But the two New Jersey rabbis allegedly took things much further. They allegedly kidnapped men and tortured them with tasers and electric shocks until the men agreed to give their wives gets. Apparently the rabbis charged $10,000 for a tribunal ruling allowing the use of violence against the men, and $50,000 for hiring people to do the work. The rabbis were caught in a federal sting operation:

The undercover female F.B.I. agent told Rabbi Epstein that she wanted to divorce her husband, described as a businessman in South America, who refused to grant her request. Rabbi Epstein urged her to lure the man to New Jersey, which she pledged to do.

Next Rabbi Epstein and Rabbi Wolmark convened their own rabbinical court, complete with legalisms and formalities, to issue a religious edict “authorizing the use of violence to obtain a forced get,” according to court records. The undercover agent offered testimony before the two rabbis, who were joined by other religious figures.

Told that the husband was arriving in New Jersey, eight of Rabbi Epstein’s associates met at a New Jersey warehouse to finalize the kidnapping plan, according to court documents. At that point F.B.I. agents moved in to arrest the group. The agents seized masks, ropes, scalpels and feather quills and ink bottles used for recording the get they anticipated.

I’m no expert, but I can’t imagine this sort of thing is legal under Jewish law; the whole thing seems a parody of legal process. From the point of view of civil law, however, I’m sure this is an easy case. However much discretion the state allows religious tribunals–and, in my opinion, we should allow them a great deal of discretion, as a matter of religious freedom–it doesn’t go this far. Banning someone from your synagogue is one thing. Tying someone up in a van and torturing him is quite another, even if you have a tribunal decree that allows you to do it.

You can read the Times article here.

Faith Healing and Criminally Negligent Homicide

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.

The Look of Depraved Heart Murder: Further Thoughts on the Faith-Healing Case

In light of some reasonable questions in the comments of my faith healing post at Mirror of Justice about the distinction between ordinary recklessness and extreme recklessness showing a wanton disregard for the value of human life of the kind that can support a mens rea of malice (and therefore, in Pennsylvania, a charge of third degree murder), I thought to mention a very recent decision of the New York Court of Appeals upholding the conviction of a defendant convicted of depraved indifference murder. An important caveat: New York has a special, but I think doctrinally useful, history of attempting to pinpoint precisely what the depraved indifference mens rea looks like that does not necessarily map on to Pennsylvania law. But because I believe that the distinction between ordinary recklessness and depraved heart recklessness can only really be understood by comparing the factual particulars in actual cases–and not by recourse to any abstract principle (for those with an interest, I’ve discussed this issue previously herehere, and here)–and because the facts of the case involve a victim of similar age, the New York case is useful.

In People v. J. Borboni (decided by the Court of Appeals two days ago), the facts showed that the defendant beat a 15 month old child repeatedly around the face and body in a period of about an hour, causing massive damage. The defendant was convicted of what in New York is murder in the second degree (depraved indifference murder of a child) as well as manslaughter in the first degree (intent to cause physical injury to a child; recklessly causing the death of a child). The defendant challenged the sufficiency of the evidence as to both crimes. The standard for conviction of depraved indifference murder is that the defendant evince “an utter disregard for the value of human life,” that the defendant “did not care whether his victim lived or died.” In addition to that distinct mens rea, the state also needed to prove recklessness as to a grave risk of physical injury or death.

In upholding the conviction for depraved indifference murder, the Court distinguished another case, People v. Lewie (2011), in which the defendant “persistently left her eight month-old son with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous wounds on the child, finally causing a brain injury that led to his death,” because the evidence was not sufficient to show that the defendant “did not care at all” about her son’s safety: “On the contrary, the evidence shows that defendant feared the worst and…hoped for the best.” Similarly, the Court distinguished People v. Matos (2012), where the defendant’s “intimate partner severely beat her 23 month-old child, resulting in his death” because there was evidence that the defendant did care about her son’s life: she “splinted her son’s leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.”

In Borboni, by contrast,

[T]he jury heard testimony — including medical and forensic proof — that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant’s assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child’s symptoms were merely signs of a trivial injury or illness….

[T]he charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant’s inaction for the two hours that elapsed between the injuries and death. In light of the child’s vulnerability and utter dependence on a caregiver, defendant’s post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant’s knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind.

The key factual difference between a case like this one and the faith healing case that I discussed yesterday involves the issue of “indifference to human life.” I only know what is contained in the report I referenced yesterday, but from those facts, it seems to me that it is very difficult to conclude that parents who believe that God will intervene to save their afflicted child have the same mens rea as someone like the defendant in Borboni. To the contrary, the most plausible conclusion is that they have just the opposite state of mind: they care deeply about their child’s well-being and believe that what they are doing is in his or her best interest.

Furthermore, I included the paragraph in Borboni relating to Borboni’s failure to report the child’s injuries to anybody else because it contrasts with what is reported in the faith-healing parents’ case. The factual similarity (failure to report in both cases) may mask the issue of motivation. The actor with a depraved heart fails to report on the victim’s condition because he doesn’t give a damn about the victim. But the faith-healing parents allegedly failed to report because they do care about the child’s condition, and they thought that by reporting they would interfere with the child’s best chance at recovery.

I emphasize again that I am emphatically not saying that the faith-healing parents do not deserve punishment. And I haven’t done the research into Pennsylvania law about depraved heart murder to really know in depth what it requires. But particularly when one is dealing with as fact-specific–and as grave–a crime as depraved heart murder, I also think it’s important to try to be precise about the nature of the defendants’ state of mind. There are lots of facts still to come out in the Philadelphia case. But in light of what has already come out, there are obvious questions about the appropriateness of a depraved heart murder charge in that case.

Ignorance, Faith Healing, and Murder

There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.

In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, “malice,” to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: “Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm.” In New York, the equivalent of Pennsylvania’s third category of malice goes by the name, “depraved indifference” murder (that is, implied malice murder), which I’ve talked a little bit about before.  The parents face up to 40 years in prison if convicted of third degree murder.

In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge–the parents’ mens rea.

The first defense is that they “did not know their baby was sick enough to die.” This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious intent. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, ‘don’t-give-a-damn’ recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents’ two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.

But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child’s condition to state authorities was not that they were unaware that the child’s condition was mortal, but that the power of God’s “cure” would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I’d like to see the statistics supporting those claims: as a matter of intuition–I have not studied the matter–it’s not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).

One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course–parents who truly do desire the death of their children. But as a general matter, from the parents’ perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.

In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children’s death.

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