Should Religion Ever Be a Defense in the Death of a Child?

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Photo by breakfastcakes11 via Flickr

On Aug. 2, 10-month-old Mary Anne Welch was found dead in her crib in her Michigan home. An autopsy determined that she died from malnutrition and dehydration “due to neglect by adult care givers.” So, the police arrested her parents, Seth Welch and Tatiana Fusari, on charges of felony murder and first-degree child abuse.

A tragic story, but sadly not as uncommon as we would like.

What makes this case somewhat unusual, however, is the parents’ defense: They claim that they didn’t seek medical attention for their daughter partly for religious reasons.

seth welch

Seth Welch and Tatiana Fusari. Credit: Kent County Jail

Fusari told detectives that although she and her husband had noticed a change in Mary Anne’s physical appearance at least one month before her death, they didn’t reach out for medical help for fear of having the children removed by Child Protective Services. She linked their motives to “lack of faith and trust in the medical services and religious reasons.”

On his Facebook page, Welch quoted the Bible in explaining why he didn’t vaccinate his children, saying “The righteous shall live by faith. It’s God who is sovereign over disease and those sorts of things and ultimately death.”

Although this is a claim most closely associated with Christian Scientists, who rely on prayer rather than medicine, believers in other religions have also tried to use their beliefs as a defense in criminal court. Usually these religions have faith-healing as one of their core tenets.

For example, the Followers of Christ, a reclusive Pentecostal sect based primarily in Idaho and Oregon, also practices faith healing. In 2015, a state task force found that the child mortality rate for the Followers of Christ between 2002-2011 was 10 times that of Idaho as a whole.

The Church of the First Born is another Pentecostal sect that is against medical treatment. In defense of its faith-healing practices, the church cites James 5:14: “If any be sick, call for the elders of the church, let them pray over him, anointing him with oil in the name of the Lord.”

If an adult follower of any of these religions chooses faith healing over medical treatment, there’s no issue. After all, if a grownup chooses to rely on prayer instead of antibiotics, surgery and the like, they’re only endangering themselves.

But issues do arise when adult believers prevent their minor children from getting medical attention due to their own religious beliefs. In such cases, the children have no choice or say in the matter─and it’s their lives that are at stake.

Whether a parent’s religious beliefs can be used as a defense to neglect, endangerment or even death of a child was addressed by the U.S. Supreme Court in 1944.

In Prince v. Massachusetts, the Court held that the right to practice religion freely does not include liberty to expose a child to communicable disease, ill health or death. “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children,” explained the Court.

That should be the end of the issue, right? Unfortunately, no.

In 1974, President Nixon signed the Child Abuse Prevention and Treatment Act into law. Possibly due to the influence of John Ehrlichman and J.R. Haldeman─both of whom were Christian Scientists─the law has a provision that protects parents who believe that prayer is the only way to cure illness.

Even though the Act has been amended several times since then, it still provides that nothing in this Act shall be construed:

  • as establishing a federal requirement that a parent or legal guardian provide a child with any medical service or treatment against the religious beliefs of the parent or legal guardian; and
  • to require that a state find, or to prohibit a state from finding, child abuse or neglect in cases in which a parent or legal guardian relies solely or partially upon spiritual means rather than medical treatment, in accordance with the religious beliefs of the parent or legal guardian.

In fact, a surprisingly high number of states have provisions in their civil and/or criminal laws that specifically allow defendants to rely on religion as an excuse in various contexts for failing to provide medical care for their children.

The infographic below from ChildUSA, a non-profit that promotes justice for victims of child abuse and neglect, shows the types of religious exemptions in each state.

tableAs you can see, the scope of the religious exemptions in state law pertaining to sick and injured children varies widely.

Some states protect parents from being declared negligent under civil law solely because they opted to provide spiritual treatment instead of medical treatment to their children, while others provide a religious exemption to criminal liability. In some states, the criminal exemption applies only to misdemeanors; but in others, it can be used as a defense to felonies, including homicide.

The criminal law provisions often have three key components:

  1. The defendant must have been pursuing spiritual treatment in lieu of medical treatment;
  2. That spiritual treatment must have been provided in accordance with the principles of a recognized religion; and
  3. Such treatment must have been performed by an accredited practitioner.

Like any laws, these provisions are subject to change. In some cases, a spate of deaths of children that could have been prevented by proper medical care─and often the intense media scrutiny of these tragedies─have led to the amendment or removal of these provisions.

For instance, because of the long history of child deaths associated with Followers of Christ in Oregon, the state legislature removed faith healing as a defense for all homicide charges in 2011.

As to the death of Mary Anne Welch, Michigan’s criminal law does not contain a religious exemption or defense. If it did, such a defense would be unlikely to help her accused parents, who didn’t try to treat her through prayer or faith healing; they apparently did nothing.

In states without religious exemptions in their criminal laws, officials may still be reluctant to charge grieving parents with the death of a child because of the optics. Even when prosecutors do file charges against the parents, the results are mixed.

Sympathy for the parents’ loss may sway jurors into acquitting.

For example, in 2008, 15-month-old Ava Worthington died at home in Oregon of bronchial pneumonia and a blood infection. Her parents and other members of their church, the Followers of Christ, prayed for her recovery and conducted faith-healing rituals, but they never sought medical treatment or called 911 when she stopped breathing.

Prosecutors charged her father and mother with second-degree manslaughter and criminal mistreatment. A jury acquitted the mother of both charges and convicted the father of only criminal mistreatment, a misdemeanor.

After the verdict, the jurors explained that they tried to look at the circumstances from the parents’ perspective and personal values. The foreman said, “They’re good parents who tried everything they knew in their heart. … They thought what they did was working.”

Similar feelings may even influence a judge as to sentencing should the parents be convicted.

For example, in 2009, Herbert and Catherine Schaible lost two-year-old Kent to pneumonia. The parents, who are Pentecostal, said that medicine violates their religious beliefs. For Kent’s death, the judge merely sentenced them to 10 years’ probation and ordered them to seek medical care if another one of their children became sick.

It was only after a second son, eight-month-old Brandon, also died from pneumonia under similar circumstances that the Schaibles were sentenced in 2014 to 3.5-7 years in jail after they pled no contest to third-degree murder.

When sentencing the Schaibles to prison for Brandon’s preventable death, the judge said, “You’ve killed two of your children…not God, not your church, not religious devotion — you.”

According to a 1998 study, 172 children died between 1975-1995 who were denied medical treatment because of their parents’ religious beliefs. In 140 of those cases, the children died from conditions for which survival rates with medical care would have exceeded 90 percent.

Advocates of the First Amendment argue that provisions in civil and criminal law that protect faith healing are necessary to ensure freedom of religion. But such provisions essentially give parents with religious objections to modern medical care the right to let their children unnecessarily suffer and even die without such care.

In this day and age, it’s simply crazy that children in the U.S. have been allowed to die from treatable conditions such as diarrhea, diabetes, appendicitis, sepsis and various infections─and even crazier that their parents could get a free pass.

We wouldn’t allow a group to sacrifice a virgin to their god in the name of religious freedom. How is it any different to allow the very individuals responsible for the safekeeping and welfare of their offspring to intentionally prevent those children from getting lifesaving treatment?

No one can reasonably object to parents complementing appropriate medical treatment for their children with faith healing. But we should object─and object loudly─when parents substitute prayer for drugs, anointing with oil for surgery or any religious rite for a scientifically-based medical procedure.

But in the current political climate, there seems to be a growing deference to religious beliefs. Could we see a rise in the use of this defense─and in its success? Perhaps.

In some cases, doctors and hospitals have gone to court, asking judges to intervene and allow them to provide medical care to sick children despite their parents’ religious objections. If courts get more conservative, we might see more such orders being denied and thus more children dying unnecessarily.

In May 1995, Nelson Mandela said, “There can be no keener revelation of a society’s soul than the way in which it treats its children.”

Robin Barton

Robin L. Barton

Our society’s soul will be black indeed if we continue to allow parents to put their religious beliefs before the health and wellbeing of their children.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular columnist for The Crime Report. She welcomes readers’ comments.

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