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State v. Leilani E. Neumann, 2011AP1105-CR / State v. Dale R. Neumann, 2011AP1044-CR, District 3, 5/1/12

court of appeals certification, review granted, 6/13/12; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity

Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment

Convicted of reckless homicide, § 940.06(1), in the death of their daughter for failing to obtain medical treatment, the Neumanns raise various issues relating to interplay with the right to rely on prayer as treatment, § 948.03(6). The court certifies the issues as raising “matters of first impression in Wisconsin,” with “foreign authorities split on these issues.” The threshold question relates to statutory construction: is the “faith healing” defense created by § 948.03(6) limited to prosecutions for child abuse (which would make it inapplicable to this case), or does it extend to reckless homicide?

… Under § 948.03(6), parents engaged in faith healing cannot be prosecuted for child abuse solely because they provided their child with “treatment by spiritual means through prayer alone for healing ….” …

… Because the recklessness standard in the child abuse statute is much lower than the standard in the homicide statute, the State argues that the legislature properly applied the prayer privilege only to the child abuse statute.  The State contends that when the parent becomes aware of the grave risk, the prayer treatment privilege is unavailable.  The prayer treatment privilege prohibits prosecution for child abuse “solely” because the parent provides treatment by spiritual means.  When the child’s life is endangered, the prosecution is not “solely” based on the decision to utilize prayer.  The statutory scheme reflects a willingness to accommodate the parent’s religious practice only when the child does not face serious physical harm.

Well and good. But is it possible to draw the line between criminal and privileged conduct precisely enough to satisfy due process?

The Neumanns argue as follows:  Due process requires that people who wish to follow the law must be able to discern the boundary between what is legal and illegal.  Elections Bd. of State of Wis. v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 676-77, 597 N.W.2d 721 (1999).  Conflicting legal provisions may violate due process by failing to provide fair notice of what conduct is legal.  United States v. Cardiff, 344 U.S. 174, 176-77 (1952).  The Neumanns argue that the prayer treatment exception within the child abuse statute entirely overlaps with the definition of reckless homicide.  The “substantial risk of death” that creates criminal liability under reckless homicide is the same “substantial risk of death” explicitly protected in the prayer treatment exception.  The government may not officially inform an individual that certain conduct is permitted and then prosecute the individual for engaging in that same conduct.  Activity that is protected by one statute may not be criminalized by another.  Cox v. Louisiana, 379 U.S. 559, 571 (1965).  Because Madeline’s condition never progressed beyond a “substantial risk of death” until she actually died, there was no boundary or a clear moment when the Neumanns would be placed on notice that their conduct had crossed the line between immunity under Wis. Stat. § 948.03(6) and liability under Wis. Stat. § 940.06.  The legislature cannot protect good-faith reliance on prayer treatment only to criminalize it when the treatment fails.  No language in any statute informs the parent that there will be criminal liability if the legislatively protected choice of prayer treatment is unsuccessful and the child dies.

(The court catalogs a split in foreign authority on the question.)

The Neumanns also argue that the jury instructions failed to convey the “prayer treatment privilege.” This issue appears to turn on the availability of the privilege as a defense in this context: “The State responds that the prayer exception is not applicable to the homicide statute and the general right of parents to make decisions concerning their children’s care set out in Troxel does not prohibit the State from imposing a medical obligation on a parent necessary to preserve a child’s life.”

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