Experts cite possible defenses in Neumann case (updated)

Among those of us who closely track these kinds of cases, there seems to be a consensus that there might be a viable legal defense for Dale and Leilani Neumann, the Wisconsin couple recently charged with second-degree reckless homicide for their alleged roles in the death of their daughter, Kara, on Easter Sunday.

On Thursday, May 1, the Milwuakee Journal Sentinel published a story on this. Bill Glauber wrote:

Under Wisconsin statutes involving physical abuse of a child, parents are shielded from abuse or neglect claims if the sole reason for bringing charges is "because he or she provides a child with treatment by spiritual means through prayer alone for healing . . . "

No such shield exists under charges of homicide.

Yet, because parents can be shielded in child abuse cases, the Neumanns could claim they are being denied their constitutional right to due process.

That defense is not unusual, according to Shawn F. Peters, a University of Wisconsin-Madison teacher and author of "When Prayer Fails: Faith Healing, Children and the Law."

"They can say, 'Which law were we supposed to follow?' " Peters said. "On one hand, one part of the code says spiritual healing is permissible, but on the other hand, under second-degree reckless homicide, it's not permissible."

Peters said there have been several cases over the years in other states with very similar circumstances and conflicts.

"Courts have come down on both sides," he said. "Some cases, that claim worked. And in other cases, it has not worked."

In one case, Minnesota courts dismissed manslaughter charges against a couple and a Christian Science practitioner on grounds of due process. The state had a child neglect statute that allowed parents to rely on spiritual treatment for their children. The couple's 11-year-old son died of untreated diabetes as he received spiritual treatment.

Peters said it was unlikely the Neumanns would stake the case on a First Amendment right to freedom of religion.

"I think the due process argument is much better legally," he said. "Most people (among the general public) would say they're not being charged under a child abuse statute, so that statute shouldn't matter. But it does. It's still looming out there."

The Wausau Daily Herald reported on Tuesday, April 29, in a story written by Bob Mentzer, that scholars Marci Hamilton and James Dwyer also see potential hurdles for prosecutors. According to the Wausau paper:

An apparent contradiction in Wisconsin criminal law could provide the basis of Dale and Leilani Neumann's legal defense against homicide charges in the death of their 11-year-old daughter, Kara.

Kara died as a result of untreated diabetes when her parents chose to pray for her recovery rather than seek medical treatment. Wisconsin's criminal code includes a legal exemption for "treatment through prayer" that appears to conflict with the statute under which District Attorney Jill Falstad will bring charges today. According to legal experts and people who have studied faith healing cases, the Neumanns' legal defense is likely to hinge on this conflict.

"They're going to be arguing that there wasn't enough clarity in the law, so that the parents could not conform their conduct to the law," said Marci Hamilton, a constitutional law scholar in New York and the author of "God vs. the Gavel," a book about religious freedom and the law.

Though most states have some form of a legal exemption, Wisconsin's law is unusual in that it is a part of the criminal code rather than being confined to civil law.

"The (parents') claim is stronger in Wisconsin, where the exemption is in the criminal code," said James Dwyer, a law professor at The College of William and Mary in Virginia, who has written about faith healing and the law. "Among those types of claims ... I'd say this one is relatively strong."

Overall, Dwyer said courts in other states have been "about 50-50" in accepting this type of legal argument.

Some courts "have just denied the claim, saying parents should be on notice that they can't let their child die," Dwyer said.

Shawn Peters, a University of Wisconsin-Madison instructor who studied faith healing cases for his book "When Prayer Fails," called the legal hurdles faced by Falstad "significant."

"There hasn't been a case like this in Wisconsin, so in some ways they're operating without a clear legal road map," Peters said.

Parents charged in Neumann faith-healing case

The district attorney of Marathon County, Wisconsin, announced today that the parents of Kara Neumann will be charged with second-degree reckless homicide, a felony punishable by up to 25 years in prison.

In her press conference, the DA, Jill Falstad, acknowledged that she was essentially blocked from charging the couple under the state's abuse and neglect laws because they contain provisions that explicitly protect parents who treat their children with prayer rather than medical or surgical treatment. The reckless homicide statute contains no such caveats.

The Neumanns' attorneys almost certainly will seek to have the charges dismissed on the grounds that their right to due process of law has been violated. They probably will argue (in effect) that Wisconsin law is contradictory, and thereby unfair, in that conduct protected under one part of the law (the child abuse statute) apparently is not protected under another part of the law (the reckless homicide statute).

There isn't much precedent in Wisconsin for this defense, but it has proven very effective in some other jurisdictions, including Minnesota. In 1990, prosecutors there tried a similar end-run around a religious-healing exemption, and three different courts (the trial court, the state court of appeals, and the state supreme court) ruled against them. The courts all ruled that (as one opinion put it) that the laws "provided 'inexplicably contradictory' definitions of prohibited behavior so as to violate due process requirements." The precedent in that case (State v. McKown) isn't directly controlling in Wisconsin, but it almost certainly will be invoked by the defendants. To find the appeals court's ruling in that case, see 461 N.W. 2d 720.

(Please note that this Minnesota case is not the civil suit made famous in Lundman v. McKown, although they involved the same defendants. The "inexplicably contradictory" ruling was in the criminal matter.)

Neumann case on "Upfront with Mike Gousha"

I had the chance to appear on WISN-TV's "Upfront with Mike Gousha" in a program that aired on various stations statewide on Sunday, April 27. Mike and I discussed the Neumann case, and the district attorney's then-pending decision on bringing charges. A clip of the broadcast is available here.

Worthingtons create Web site

Carl and Raylene Worthington, the Oregon parents recently charged in the faith-healing death of their daughter, Ava, have created a Web site aimed at rallying support for their defense. (It is available here.) The site (launched at a press conference on April 17) provides some interesting information, including a copy of the indictments issued against the couple.

Article for Newsweek/Washington Post "On Faith"

A decent summary of my book When Prayer Fails: Faith Healing, Children, and the Law was published on the "On Faith" site in January (before the Oregon and Wisconsin faith healing cases broke into the news). The piece is posted here.

Appearance on "Freethought Radio"

I discussed recent faith healing cases on "Freethought Radio," hosted by the Freedom From Religion Foundation's Annie Laurie Gaylor. A podcast of that discussion is available here.

Discussion of Neumann faith healing case on Wisconsin Public Radio

On Wednesday, April 16, I was asked to discuss the legal and cultural issues surrounding the Kara Neumann case (from Weston, Wisconsin) on the "Ideas Network" of Wisconsin Public Radio. That broadcast has been archived here.