Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 13, 2013

Ignorance, Faith Healing, and Murder

There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.

In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, "malice," to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: "Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm." In New York, the equivalent of Pennsylvania's third category of malice goes by the name, "depraved indifference" murder (that is, implied malice murder), which I've talked a little bit about before.  The parents face up to 40 years in prison if convicted of third degree murder.

In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge--the parents' mens rea.

The first defense is that they "did not know their baby was sick enough to die." This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious state of mind. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, 'don't-give-a-damn' recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents' two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.

But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child's condition to state authorities was not that they were unaware that the child's condition was mortal, but that the power of God's "cure" would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I'd like to see the statistics supporting those claims: as a matter of intuition--I have not studied the matter--it's not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).

One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course--parents who truly do desire the death of their children. But as a general matter, from the parents' perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.

In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children's death.


DeGirolami, Marc | Permalink


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Marc, I struggle with this, but I cannot find anyway to make what these parents did acceptable even once; much less twice.

Religious beliefs come with costs; no individual can justly impose those costs on others, not even their children. If one’s beliefs demand putting others at risk, the burden of the State’s vigorous intervention is the cost the believer must bear.

What these parents did was selfish and foolish; they need to be locked up until they are too old to reproduce again.

I appreciate the difficult aspects you are trying to get your head around, but when it comes to children, a bright line needs to be drawn. The cost of this couple’s beliefs is that they must go to prison if only to serve as a warning to other parents.

sean s.

Posted by: sean samis | Jun 13, 2013 2:21:26 PM

Thanks, Sean. Your comment highlights a couple of things I did not say but should have said in the original post. I am not arguing that what the parents did was acceptable. And I am also not arguing that the parents should not serve any time in prison.

What I'm trying to figure out is their precise level of culpability within the framework of laws and doctrine existing in Pennsylvania. And, by extension, I am trying to figure out what the appropriate charge ought to be in a case like this.

Last, with respect to your statement about general deterrence in the final paragraph of your comment, one would (as I indicated in the post) need to know about how the incentives worked out in cases in which parents asserted defenses about faith healing in order to predict whether harsh sentences would in fact serve as warnings to other parents.

Posted by: Marc DeGirolami | Jun 13, 2013 2:30:04 PM

I think the "state of mind" questions are best understood by comparing fact patterns that involve reliance on the "wrong" medicine, as opposed to the hot-button of faith or prayer alone.

Suppose a family of a certain immigrant or ethnic background takes a sick child to a non-M.D. traditional healer of some type, and pays that person thousands of dollars, and the healer uses some herbs and other remedies unsuccessfully. I find that hard to amount to subjective "indifference," because they might have spent their life savings and then some, hired a "professional" in their view, and so on.

Vary that along a spectrum. Someone who goes to an unconventional M.D. who uses treatments not accepted by the rest of the profession. Someone who uses a New Age non-doctor. Someone who seeks acupuncture for cancer. Someone who uses a native healer than blends herbs and ritual prayers, so that it's somewhat faith/religion and somewhat non-Western medicine. Someone who uses a voodoo "doctor." Etc.

I can't see how those meet the standard for indifference, and if a few herbs mixed with prayer don't meet it, then prayer alone can't, either. That's not to say there's a "religious defense," nor that the parents don't deserve conviction under some other law, nor even that the PA law on third-degree shouldn't perhaps be amended to remove that subjective element. It's just to say the existing framework, by choosing to rely on the state-of-mind element, can't apply to those who truly believed, whether in prayer, acupuncture, laetrile, or whatever.

If sincere but mistaken views don't undercut "indifference" as to prayer, then I find it hard to distinguish any of my above examples.

Posted by: Joe Reader | Jun 13, 2013 2:57:53 PM

The parents in this situation may well believe that God will cure their child. Based on their earlier experience, however, they are not entitled to believe that the law will allow them to act on their religious view.

It does not seem to me that they can claim ignorance of the law no matter what their view on the medical or religious aspects of the situation are. They knew what the stakes were, based on their earlier actions. They made their tragic decision in full knowledge of the risks they were running, and must now face the consequences.

Posted by: Ellen Wertheimer | Jun 13, 2013 5:18:48 PM

I certainly agree that the parents "must now face the consequences." The post is about what those consequences should be, in light of my best, admittedly non-expert, effort to understand and apply Pennsylvania's third degree murder law.

Posted by: Marc DeGirolami | Jun 13, 2013 5:54:36 PM

Thanks, Joe Reader. Those are interesting points. All of those cases can be contrasted not only with the typical case of depraved indifference but also with more standard cases of gross neglect of the kind that would warrant a charge like involuntary manslaughter. The parents who try unconventional treatments may be truly convinced that they are acting in the child's best interests. The parents whose gross negligence kills a child are not trying to act in the child's best interests.

Another quick thought on the deterrence point. One might be able to distinguish parents thoroughly convinced that faith healing will succeed from parents who are ambivalent about the efficacy of faith healing. But I continue to think that, as with all arguments about deterrence, these intuitions need to be backed up.

Posted by: Marc DeGirolami | Jun 13, 2013 6:12:25 PM

I agree. I guess my point was that (1) they knew the risk of death, based on their prior experience and (2) they knew that failing to seek conventional medical help was illegal. So they are knowingly breaking the law and knowingly risking the death of their child in a way that they also know is illegal. I am sure that they did not intend their child's death, but they failed to seek medical help, knowing what they were risking. Does recklessness meet the malice standard?

Posted by: Ellen Wertheimer | Jun 13, 2013 6:32:36 PM

Hi, Ellen. Ordinary recklessness does not rise to the level of the kind of mens rea necessary for third degree murder. It has to be a very severe form of recklessness which manifests extreme indifference to the value of human life. The classic example is driving full speed down a crowded sidewalk, but without intending to kill anyone, or firing a gun wantonly into a house one knows is occupied, but without intending to kill anyone inside. Ordinary recklessness, in the form of consciousness of substantial and unjustifiable risktaking, would suffice for an involuntary manslaughter charge. But in the post I suggest why that might be complicated in this situation too, though I agree that, given what appears in the report, it may be the more appropriate description of the parents' state of mind.

Posted by: Marc DeGirolami | Jun 13, 2013 6:56:29 PM

Reference was made in the first comment about being detained until they are unable to reproduce. She is 43, he is 45. He is able to reproduce for decades; she perhaps up to a decade, probably a bit less. A ten year sentence would deal with this issue in one case; in effect, only a lifetime would in the other.

The issue as discussed is tough. The third Overby test bears underlining:

"a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm."

Their religious beliefs here does not bring to mind "wickedness" etc., but the "regardless of social duty" does concern me. If if they honestly thought God will provide, especially given the previous child dying, the "social duty" in our society is not to merely trust God in such a situation in this fashion.

The article notes they lack clean hands here:

"The two were convicted of involuntary manslaughter in the case of their 2-year-old son and put on 10 years probation, on the condition their surviving children get annual physical checkups and be taken to a medical professional if they were ill."

They were on notice of what their "social duty" was and showed "recklessness of consequence" all the same. I don't claim to know the nuances of the law here and a lesser punishment and "10 years for involuntary manslaughter" arguably might work. And, in such cases, children need more than "annual physical check-ups" to be assured correct treatment.

Posted by: Joe | Jun 13, 2013 9:03:46 PM

"But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work."

Why? It seems that you are arguing that perception of risk should be evaluated purely subjectively. That seems to me to be too lenient a standard, and possibly unworkable as well since every 3rd degree murder defendant is going to cliam that he/she really really didn't expect [______] to result in death. And they will likely be telling the truth. But some things, like faith healing or driving a car 140 mph or playing Russian Roulette are so objectively risky that I don't thik we should defer to subjective risk perceptions.

Would you also think a third degree murder charge was inapt in a non-religious context like the 140 mph car crash (http://www.philly.com/philly/blogs/183375385.html)? I am sure that the driver truly believed that he was a skilled enough driver that he could handle weaving in and out of traffic at 140 mph - but so what? I am not prepared to even entertain the notion that his belief was acceptable.

There are reasonable beliefs, unreasonable beliefs that I am willing to accept as an explanation (but not an excuse), and unreasonable beliefs that are so far out of bounds that they should be unrecognizable as a matter of law. Refusing to take your very sick child to the doctor to vindicate your insane belief that some god is certain to grant you a personal miracle is category 3.

Posted by: WmBrennan | Jun 14, 2013 10:12:51 AM