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Child abuse convictions survive due process, free exercise challenges

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.

Wisconsin Stat. § 948.03(2)(b) prohibits intentionally causing bodily harm to a child, “bodily harm” being defined as “physical pain or injury, illness, or any impairment of physical condition,” Wis. Stat. § 939.22(4). For an adult, such as a parent, responsible for a child’s welfare, however, the statutes provide a defense of privilege: such an adult may intentionally cause bodily harm to such a child in the course of “reasonable discipline,” which means discipline involving “only such force as a reasonable person believes is necessary.” Wis. Stat. § 939.45(5).

The Caminitis argue that their convictions violate both their substantive due process rights and their rights to free exercise of religion. Though the Caminitis made “passing” reference to an “as applied” analysis in their opening brief and expressly argued in their reply that the statutes are unconstitutional as applied to them, the court of appeals interprets both claims as facial challenges to the statutory scheme. (¶27).

Which may be the beginning of the end, as it requires the Caminitis to show that there is no set of circumstances under which the child abuse law, as modified by the parental discipline privilege, could be enforced. (¶26). Tough row to hoe.

Regarding substantive due process, all are in agreement that reasonable discipline methods fall within the sphere of “fundamental rights and liberty interests” that receive the protection of the Fourteenth Amendment. (¶28). The parties differ, however, on whether the statutory scheme is therefore subject to strict scrutiny, as the Caminitis would have it, or whether there is, as the state claims, a different balancing test specific to this particular type of claim. (¶¶29-31). The court declines to elect between the competing standards, deciding instead that the statutory scheme survives even strict scrutiny. (¶32).

Strict scrutiny asks whether the statute in question is necessary to advance a compelling state interest, and whether it does so by the least restrictive means available. (¶32). As to compelling state interest, the Caminitis argue that while the state has such an interest in preventing discipline that causes injury, that interest does not extend to discipline that merely causes pain. (¶33).

The court responds in two ways: first, it submits that there is no basis to conclude that discipline causing injury is categorically more objectionable than that causing only pain, offering as counterexamples “administering shocks by passing electric current through a child’s body; hanging a child upside down by his or her feet; or confining a child in a cold or hot place, or in a small space.” (¶34). Second, it notes that because of the parental privilege, the statutes do not prohibit all discipline causing pain, but only unreasonable discipline causing pain, which, the court implies, the state has a compelling interest in preventing. (¶35).

As to whether the statute is the least restrictive alternative, the Caminitis assert that it is unconstitutional to permit the jury to determine whether parental discipline is “reasonable”; the parent is constitutionally entitled to make that decision without any second-guessing by the government, particularly since religious beliefs are by their very nature likely to be viewed as unreasonable by some or all jurors. (¶¶40-41). The court replies by citing State v. Neumann, 2013 WI 58, ¶126, 348 Wis. 2d 455, 832 N.W.2d 560, which stated that “a parent’s fundamental right to make decisions concerning a child’s care has limitations. The state’s authority is not nullified merely because a parent grounds his or her claim to control the child in religious belief.” (¶41).

Turning to the religious freedom claim, the court quickly disposes of any First Amendment claim by noting the holding, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 879-80 (1990), that criminal laws of general applicability are not subject to federal constitutional challenge simply because they impinge on particular religious practices. (¶45).

The state Constitution, however, provides greater protection for religious freedom than the federal one, incorporating much the same test as the federal statute recently at issue in, among other cases, Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014). Under this test

[T]he challenger carries the burden to prove: (1) that he or she has a sincerely held religious belief, (2) that is burdened by application of the state law at issue. Upon such proof, the burden shifts to the State to prove: (3) that the law is based on a compelling state interest, (4) which cannot be served by a less restrictive alternative.

(¶46).

The court finds the Caminitis’ burden met as to the first two issues and so moves on to the last two, for which the state bears the burden. The keen-eyed reader will note that those last two issues are identical to the ones the court has just decided in favor the state in the due-process context. The court accordingly makes short work of them, pausing only to quote, with approval, from the state’s brief:

A less restrictive alternative that would create a different standard for religiously minded child discipliners would immunize such people from child abuse prosecutions in even the most egregious cases. Cf. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 495-96 (1949) (“it is difficult to perceive how … these constitutional guaranties afford [the Caminitis] a peculiar immunity from laws against [child abuse] unless … [they are] given special constitutional protection denied all other people”).

(¶49).

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