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 eighth annual John F. Scarpa Conference on Law, Politics, and Culture will celebrate and explore the scholarly and judicial achievements of Judge John T. Noonan, Jr. Judge Noonan's vast and diverse scholarly corpus includes now-classic contributions on canon law, bribery, usury, contraception, religious freedom, development of doctrine, legal ethics, jurisprudence, and many other topics. The conference will be held at Villanova Law on Friday, November 15, 2013, and Judge Noonan will deliver the keynote address. Please mark your calendar and plan to attend. Other confirmed speakers include:
--His Eminence, William Cardinal Levada, Prefect Emeritus of the Congregation for the Doctrine of the Faith
-- Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
-- Kenneth Pennington, Kelly-Quinn Professor of Ecclesiastical and Legal History, The Catholic University of America
--Robert Rodes, Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, Notre Dame Law School
--Joseph Vining, Harry Burns Hutchins Collegiate Professor of Law Emeritus, University of Michigan Law School
Recalling Alexis de Tocqueville's praise of American preference for building voluntary associations to work together rather than relying on government, Niall Ferguson writes in the Wall Street Journal that modern American has become "Planet Government." The suffocating effect is not only felt in the economic sphere but in the decline of intermediary associations on matters of religion and morality, charity and community. It is no accident that nations (and states within the United States) with the largest governmental sectors also become nations (and states) with the lowest levels of charitable giving and of religious faith.
The column ends with a prescient quote from de Tocqueville -- and one can readily substitute "spirit of faith" or "spirit of community" for "spirit of free enterprise here:
Tocqueville also foresaw exactly how this regulatory state would
suffocate the spirit of free enterprise: "It rarely forces one to act,
but it constantly opposes itself to one's acting; it does not destroy,
it prevents things from being born; it does not tyrannize, it hinders,
compromises, enervates, extinguishes, dazes, and finally reduces [the]
nation to being nothing more than a herd of timid and industrious
animals of which the government is the shepherd."
Rhode Island is celebrating the 350th anniversary of its royal colonial charter this year. The occasion
reminds me of one of my all-time favorite cases in constitutional law, Luther v. Borden, in which the struggle over the representative failings of the charter (nearly 200 years after it came into being) and all of the attendant political intrigue so typical of the Ocean State was deemed nonjusticiable by the Supreme Court. There aren't too many Guarantee Clause controversies any longer, but you can still spot one every so often. As my former boss, Judge William E. Smith, put it to me: "Not much has changed around here since then."
Have a look at this interesting short piece by Professor Scott Gerber (another law clerk veteran of the US District Court for DRI) discussing religious freedom in Rhode Island. Particularly interesting are Prof. Gerber's points about Rhode Island's complicated history and the distinction between "liberty and license."
Ashgate Publications has just published Feminism, Law and Religion as part of its series on Gender in Law, Culture and Society, edited by Marie Failinger (Hamline), Lisa Schiltz and me. (Each of the three of us also has a chapter in the book.)
With contributions from some of the most prominent voices writing on gender, law and religion today, this book illuminates some of the conflicts at the intersection of feminism, theology and law. It examines a range of themes from the viewpoint of identifiable traditions such as Judaism, Christianity, Islam and Buddhism, from a theoretical and practical perspective. Among the themes discussed are the cross-over between religious and secular values and assumptions in the search for a just jurisprudence for women, the application of theological insights from religious traditions to legal issues at the core of feminist work, feminist legal readings of scriptural texts on women’s rights and the place that religious law has assigned to women in ecclesiastic life.
Feminists of faith face challenges from many sides: patriarchal remnants in their own tradition, dismissal of their faith commitments by secular feminists and balancing the conflicting loyalties of their lives. The book will be essential reading for legal and religious academics and students working in the area of gender and law or law and religion.
Thanks to Greg for this post asking whether we should be concerned about the "surveillance state." His piece raises important questions about privacy and its importance in our civic lives. I would like to add to his list of concerns. I have written here and elsewhere that the threat to privacy is not only limited to the government. I would suggest that private companies' constant tracking of our data, and our compliance with it, is a potentially greater threat to our privacy than the government.
While privacy itself is surely not a uniquely Catholic issue, this dialog underscores a moral dimension to our societal decisions about the privacy regime we are creating. Thus far, it seems we have allowed our privacy to take a back seat to commercial forces, as we have accepted trading our privacy for convenience. Concomitant with this, we have a generation of children "living their lives online," according to the Pew Internet and American Life Project's report on Teens and Social Networking. These children share their names, schools, places they live, and interests in a very unregulated space and with limited guidance (either in public policy or model behavior from adults). While they are concerned about privacy in some contexts, they are relatively unconcerned with third party access to their data. The implications of this for their adult lives, the future ability of the state to monitor its citizens, and the ability of commercial entities to control their choices have yet to be realized.
While this may not seem to have moral implications, I offer an analogy. In the context of environmental concerns, many, including the Holy See, have reframed environmental questions as moral questions concerning the kind of planet we are leaving future generations by failing to consider the costs of our actions. Similarly, in the fiscal context many have questioned the morality of saddling our children with significant debt (whether personal or public). I would suggest that we should also begin asking: what kind of "digital climate" we are leaving our children. If it is a climate in which our children have no place free from institutional monitoring (governmental or commercial), that has implications for their freedom (including freedom of religion), personal and spiritual development, and personal growth which should be considered before the damage is irreversible.
Early last year, amidst our many exchanges over the HHS mandate, I noted with pleasure some progress underway in connection with a truly 'win-win' mortgage bridge loan statute I'd drafted with a friend and colleague at FRBNY. Today I am pleased to be able to report that the same is now S 5035, under consideration in the New York Senate. Here is hoping it passes in what remains of the current legislative session, for reasons elaborated in brief at the previous link and more fully here.
Hope you all are enjoying a truly beautiful weekend like that underway at least here in New Haven today,
It’s good to hear the news (reported by Rick here) that MOJ
continues to grow in popularity. In
doing so it’s also good to recall (as participants have done from time to time)
what Mirror of Justice is all about. In
his inaugural post (which Rick reposted here) Mark Sargent explained that the purpose of MOJ was to
ask whether engagement with
Catholic moral theology, Catholic social thought and the Catholic
natural law tradition [can] offer insights that are both critical and constructive, and which can contribute to the
dialogue within both the legal academy and the broader polity? In particular,
we ask whether the profoundly counter-cultural elements in Catholicism offer a
basis for rethinking the nature of law in our society.
He noted that MOJ would include
“a broad spectrum of Catholic opinion, ranging from the ‘conservative’ to the
‘liberal’, to the extent that those terms make sense in the Catholic context.” Even across this spectrum, however, the term
“Catholic” must refer to something affirmative, essential, and undeniable,
otherwise the term would not be a meaningful descriptive. It would be equivalent to the appearance of a
variable “X” in an equation where the person employing the equation is free to
give “X” any value, any meaning he or she wishes. “Fill in the blank.”
In seeking to clarify the identity
of the MOJ project (or any project) it is often helpful to consider what it is
not.
What MOJ is not about is superficial references to Catholic
identity. What it is not about is a kind
of tribal affiliation with the Church. What
MOJ is not about is avoiding answering difficult questions about law in which
one’s political commitments are challenged in light of what the faith teaches
and science makes clear. What it is not
about is a reference to one’s experience of being a Catholic mother to legitimate
one’s support for the right to kill an unborn child as “sacred ground.”
What MOJ is not about is the kind of trivial, self-serving
and shameful reference to Catholic identity offered by Nancy Pelosi
yesterday.
In light of some reasonable questions in the comments of my faith healing post 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 here, here, 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 delay in reporting the child's injuries to anybody else because it contrasts with what is reported in the faith-healing parents' case. The factual similarity (failure/delay 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.
Dr. Edmund Pellegrino died yesterday at the age of 92. He was a giant and his passing is a great loss. I had the privilege of introducing him several years ago when he received an award from University Faculty for Life and that was a daunting task. Dr. Pellegrino seemed to have enough accomplishments to fill several careers. Among other things, he served as the Chairman of the President's Council on Bioethics and was a former President of Catholic University. He authored dozens of books and over 600 articles. His work always emphasized the interpersonal relationship between physician and patient and the importance of the virtues. He emphasized fidelity, trust, benevolence, truth-telling, intellectual honesty, humility, courage, and the suppression of self-interest. In a speech of his, he mentioned that the most effective teachers are the ones who lead by example. By all accounts, Dr. Pellegrino's inspiring example has influenced countless young doctors to understand their obligations to their patients and to understand the importance of doctors who work for the true good of their patients. He was also noted for his humility and for his warm human qualities.
