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.