Due process of law and the Neumann case

On Monday, Marathon County District Attorney Jill Falstad made one of the toughest decisions of her professional life. Appearing before a throng of reporters in Wausau, she announced that her office would be charging Dale and Leilani Neumann with second-degree reckless homicide for their roles in the death of their daughter, Kara, an eleven-year old who had succumbed to diabetic ketoacidosis on Easter Sunday. The Neumanns had committed that crime, Falstad asserted, by treating the girl’s grave condition with prayer rather than the medicine almost certainly would saved her life.

Thus ended weeks of speculation regarding the Neumanns’ legal fate. As many observers had pointed out, Falstad might have faced significant hurdles in court if she had chosen to charge the couple under Wisconsin’s child abuse statute, which contains a provision that seems to specifically shield from prosecution parents who address their children’s illnesses or injuries with “treatment through prayer.” In other states, similar stipulations have completely derailed criminal prosecutions of devoutly religious parents like the Neumanns. Faced with that potential barrier, Falstad turned to the state’s second-degree reckless homicide statute, which merely requires her to show that the couple “recklessly cause[d] the death” of their daughter. (If found guilty of that charge, they face up to 25 years in prison and fines up to $100,000.)

It would be premature, however, to say that the basic legal issues in the Neumann case have been resolved. If anything, in fact, they promise to get still more complicated, in part because courts in Wisconsin appear to have never ruled in a similar case involving faith healing, children, and the law.

The Neumanns might argue in court that the charges violate their right – protected by both the state and federal constitutions – to freely practice their religion. If comparable cases in other states can serve as any guide, this claim is unlikely to give them much legal traction: in cases stretching back to the late 19th century, a variety of courts have held that an individual’s right to religious liberty is not absolute, and that it can be outweighed by the state’s interest in protecting others or maintaining public order. In cases involving children and faith healing, courts generally have found that the state’s interest in protecting the welfare of children is paramount.

A much more promising line of defense for the Neumanns might spring from the concept of “due process of law,” which is guaranteed by the Fifth and 14th Amendments of the U.S. Constitution. They could argue that, in effect, Wisconsin’s laws are too confusing for the average layperson to understand because one part of the criminal code (the child abuse statute) appears to explicitly protect spiritual healing practices while another (the second-degree reckless homicide law) does not. Which measure were they supposed to follow? And in which circumstances?

Unlike the religious liberty argument, this claim has proven effective in several other states, 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 held that that the laws “provided ‘inexplicably contradictory’ definitions of prohibited behavior so as to violate due process requirements,” as one of the judicial opinions issued in the case put it. Because it’s from another state, the precedent in that case (State v. McKown) isn’t directly applicable in Wisconsin, but it almost certainly will be referenced by the Neumanns as courts here try to untangle the legal issues in their case. So too will be a similar case from Florida known as State v. Hermanson.

But this due process argument is by no means an air-tight defense for the Neumanns. Courts in other jurisdictions, most notably California, have rejected it. The rulings in these cases have found that there is no real conflict between the potentially applicable statutes, and that an average person would not be confused by them.

Although these legal matters remain cloudy, one thing seems certain: the Neumann case will not be resolved quickly. And, given the profound legal and ethical issues involved, perhaps that’s a good thing.