I’ve been thinking about a little girl I heard of — I’ll call her Susan, because that wasn’t her name. Susan’s mother was HIV positive two years ago, when Susan was born. There is a treatment for children being born of HIV-positive mothers and it works well, but for religious reasons Susan’s mother wouldn’t allow the doctors to treat Susan. So Susan died of AIDS at the age of two.
The game is that you and I pretend that we’re the U.S Senate and we’re writing a law about Susan and her mother. Do we conclude that Susan’s mother has committed a crime? And, if so, what is the crime, and what is the punishment?
Leave your comments here.
UntoldNarratives says:
Its Manslaughter caused by gross neglect (a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both). But, we know “for religious reasons” is the greatest get out of jail card in our legal system.
Our constitutionally guaranteed “freedom of religion” is at best arbitrarily applied. It seems to me that the writers overestimated their descendants commonsense.
February 3, 2010, 1:55 amnanojath says:
There is no federal level exemption to child neglect and abuse laws for child neglect and abuse, and the intentional withholding of necessary medical care is neglect, so on the level of being the “U.S. Senate” creating specific legislation to address this would be redundant. The real arena of legal activity in this area is state-level laws that do provide specific exemptions for religious motivations to child neglect and abuse laws: there are many of these with varying scope. The argument for these exemptions of course proceeds from the establishment clause of the First Amendment. On the other hand, the freedom of religious expression has never been legally construed as providing a general right to inflict harm on another nor does it provide any legal defense in the case that harm is caused (murderer Scott Roeder attempted a fairly incoherent necessity defense of for killing Dr. George Tiller but did not even attempt a defense based on legal convictions which would have had even less chance of being accepted by a judge).
February 3, 2010, 2:07 amRoss Presser says:
Neglect. There is much case law about parents refusing treatment for children, and it usually is a charge of neglect. See this news story: from last year: http://www.digitaljournal.com/article/266960
and the article it links from here: http://www.churchlawtoday.com/private/library/pcl/p18f.htm
The take-away line is, “The courts have uniformly held that life-saving medical treatment can be administered to a minor child despite his or her parents’ refusal to consent to such treatment on religious grounds, unless the treatment itself poses a significant danger to the child.”
I think that AIDS prevention by treatment at birth would count as life-saving medical treatment.
February 3, 2010, 2:26 amRoss Presser says:
This is not likely to ever be covered at the Federal level, though, and so punishment is likely to vary from state to state. There\\\’s just too much church/state stuff in there.
February 3, 2010, 2:27 amuser@example.com says:
IIRC, “depraved-heart murder” seems like a good example - just expand the current law to explicitly include this sort of evil.
If she was talked into it and coerced by a religious leader, punish them as well.
February 3, 2010, 3:01 amJim says:
Crime, definitely. Punishment? Something, I’m just not sure what.
February 3, 2010, 5:11 amThe Barefoot Bum says:
http://definitions.uslegal.com/d/depraved-indifference
“To constitute depraved indifference, the defendant’s conduct must be so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.”
February 3, 2010, 5:30 amJames Hardy says:
If there was someone who insisted that their religion meant that they had to cut the still beating heart out of their first-born’s chest as an offering for their god, we would have no hesitation in brandishing that person a sick murderer.
In this case, the motivation of the act (religious conviction that an act was required) and the effect of the act (the death of the child) was the same. Therefore the punishment should be equal, if not greater as the suffering of the child would be prolonged over the course of months rather than seconds in the hypothetical case above, so the punishment should be no less severe - life imprisonment.
There are a few admirable things about some religions, but in no case should religion be used as an excuse for one person to cause suffering in others.
February 3, 2010, 6:47 amRock Howard says:
As a Libertarian I am fiercely supportive of freedom of religion, however that freedom does not extend license to harm others and, especially, to harm innocent children. Therefore I would have to label this act as the crime of willful child endangerment. The punishment need not be severe given the fact that the death of the child is bad enough to bear for the parents.
However this is only the beginning of the analysis. If you want to be serious about this crime, you have to investigate if the religious mentors pertinent to this case specifically instructed the mother to refuse treatment. If they did, then they have committed the crime of conspiracy to commit willful child endangerment and should also be prosecuted. If there are multiple cases of this nature successfully prosecuted against a given church, then the government has to get serious about withdrawing any considerations provided by the state that this church enjoys due to it’s status as a religious organization.
The problem with taking this approach to this case is that a child endangerment law can be used as a wedge to force parents to accept many less clear medical procedures upon their children that might be against their better judgment. Therefore it should be made clear that the crime only occurs when and if the child has suffered clear medical damage due to the purported neglect and that a parent who has clearly considered the risks on the behalf of their child should be given the benefit of the doubt by a jury of their peers. A written statement at the time that the medical procedure was refused that explains the parents reasoning for the refusal should suffice as evidence if it demonstrates that their was no willful neglect.
Finally I should mention that a crime of this nature should come under state law and should not actually be a matter for the federal government. However given that the federal government extends special status to religious organizations, the sad current reality is that some federal involvement would likely be required for the conspiracy case.
February 3, 2010, 7:09 amCerebris says:
Well, confusing morality and religion is the root of the problem. Is it morally acceptable to refuse someone life-saving treatment? I hope the answer is no.
February 3, 2010, 7:21 amTaavet says:
Doesn’t US already have laws covering human sacrifice?
February 3, 2010, 7:22 amJim says:
Yes, she committed a crime. Imagine a different scenario;
Susan is born hungry. There is food available for Susan. For religious reasons, Susan’s mother wouldn’t feed Susan. Susan dies.
The punishment should be whatever punishment Susan’s mother would get for the above scenario.
February 3, 2010, 7:46 amLarry Stewart says:
Seems like negligent homicide to me, and why would a new law be needed for that? In the various christian scientist child death cases, we’ve also seen involuntary manslaughter, felony child endangerment, etc. We have
February 3, 2010, 8:17 amplenty of laws, I don’t think we need new ones for this.
Liam Hegarty says:
I don’t think the Senate needs to write a new law. There is already one that covers this. It’s called murder. That poor child was sacrificed to the mother’s religious beliefs just as surely as if she had been held down on an altar and had her heart cut out to appease Ba’al.
There are also child-protection laws which allow the State to remove the child from a negligent parent’s custody. If those laws are applied correctly (and that is a big if), then the matter should not even reach the determination of the parent’s culpability.
Susan’s situation is pretty open and shut as you’ve laid it out. What if the child had, say, a heart condition that might or might not improve with surgery? What if the child could live a full life without surgery but would always have the risk of suddenly dropping dead? Should we give the mother’s religious views deference then?
I don’t think statutes can ever be adequately written to cover all gray areas. That is why we have courts (and lawyers).
February 3, 2010, 8:53 amCharles says:
Wow, your games aren’t all Candyland and Chutes and Ladders.
Let’s say I’m a somewhat enlightened senator, who actually believes that the purpose of medical science is to help people rather than condemning their non-quantifiable souls to eternal flame. Let’s say I believe that disease is caused by invasive organisms and out of control processes in the human body rather than invisible beings, good or bad, giving someone the stink eye. Let’s also say that I believe that refusing to help someone who is dependent solely on your for their care is punishable, not in the next world, but in this one.
Why, I would say Susan’s mother is guilty of murder, through negligence. I would also propose a law against stupidity, but since I’m the smartest guy in the room, I don’t want to alienate the other 99 senators.
As to punishment, Susan’s mother should be punished just as if she weren’t related to the little girl. The argument that “she’s been punished enough” doesn’t hold water.
February 3, 2010, 9:16 amsm says:
Might not it already be “failure to provide the necessities of life?”
February 3, 2010, 9:22 amOr some form of negligence?
And BTW it is no longer the Senate’s job to solve problems; it is now exclusively devoted to BEING a problem.
Rose says:
I believe that
a) Yes, this is a crime, specifically negligence.
b) While the Constitution defends freedom of religion, it does not protect harming others for your religious beliefs.
February 3, 2010, 9:48 amJeff says:
Such a difficult question. There isn’t an easy answer. Several years ago, I had an ER doctor tell me that if we didn’t follow his medical advice, our child could die. Luckily, before we were forced to make that decision, there was a shift change in the ER, a new doctor came in, with a different opinion of his chances of survival, with a recommendation of medical treatment, and we went home two hours later with a child well on his way to recovery. The first doctor grew incensed that I would dare to question him and decided to shut me up by telling me my child could die. I wouldn’t want that doctor to have the power to remove my child from my custody.
I think the great distraction here is the religious part of it. Religion can’t be used as a shield against the law, no matter how profound or deeply held the belief may be. But at the same time, you have to consider the law in question. If my religion forbids me from taking a life, but there is a military draft, my religion should forbid the government from forcing me to serve in any area where I could be called upon to take the life of another. However, if there were extreme military circumstances, say an invasion of Nazis during WWII, or an invasion or Tripidians during Galaxy War 11, in which the future of the nation or the survival of the earth were at stake, then religion can’t shield you from combat.
Yet the law shouldn’t be able to overrule religion if there is no harm done - for example, the use of marijuana or peyote as part of the religion. No harm is done, therefore religion is a shield against the law. Of course, if no harm is done, there shouldn’t be a law in the first place, eh?
A parent shouldn’t be forced to give their child over to a medical treatment for which they hold religious (or any other) objection. By any other, I mean, if someone believes, rightly or wrongly, that a vaccine is dangerous, they should have the right to refuse the vaccine. However, if there is extreme danger to society, say from an epidemic that is killing millions, or to the child, say from HIV, then the rights of the parents only extend to the point where they become a danger to the life of the child or the society.
But who is to say where that line is drawn? Certainly not the government. It would have to be decided on a case by case basis. The best person to decide is the doctor, however, as my example above shows, I can’t say that a lone doctor would be the best person to decide.
So I think the best way to handle this would be to generate, for each case, a panel of medical and social professionals, chosen at random, and kept anonymous to one another (to prevent their developing relationships that might influence their decision-making processes). If they determine, by a supermajority, that the life of the child is at risk, then the parent’s right to refuse treatment would end, and the child would be given the treatment, even if it meant temporarily removing the child from the custody of the parent.
Of course, all this would take time, time the child might not have. So there is no easy answer. You might say, yes, but this is HIV, to which I would say, yes, in this case, you are right, but you can’t write law to cover every possible scenario.
February 3, 2010, 10:13 amG says:
The crime is medical neglect and causing the death of a dependent minor. I don’t know what punishment because the treatment should actually have been enforced by court order at birth.
February 3, 2010, 11:07 amI guess, if she has further children, that they be removed and treated.Parents are seldom punished for the negligent deaths of their children, although poor (and minority) women are disproportionately punished in such cases.
BrianSmith says:
She is guilty of the crimes of ignorance and negligence. So I think she should be given another aids to make it twice as bad for her.
How many security codes are fake here? 5 in a row invalid even though they are the same?
February 3, 2010, 12:24 pmSevesteen says:
I would oppose writing a law about Susan and her mother. It is not possible for laws to cover every immoral situation without losing far too much freedom, and a situation like this is not common enough to write a specific law against.
February 3, 2010, 12:28 pmKirk Snavely says:
Sure, it is a case of aggravated homicide, when the victim is defenseless. According to Wikipedia (where I got this definition) it is punishable by a prison term of no less than 12 years.
February 3, 2010, 1:26 pmMikeHypercube says:
The deeper question here is, how far can you actually go with defining a rule at some time in the present, for applicability at any time in the future. The same applies to “moral” rules as to legal ones. Sooner or later there must still be a role for judgement, based on more broadly stated principles.
One broadly stateable principle would be that society should legislate for the maximum good for its members (volonte generale?); Susan’s mother would seem to have fallen short of that ideal and if one were to try to draft a rule that’s what it should catch. Another, quite incompatible broadly stateable principle would be whatever was the one Susan’s mother was following; however in anything other than a theocracy this could not be used in the crafting of rules.
That leaves the weasel option of crafting a society in which general principles apply but are trumped by religious ones. But then a similar problem applies as in a theocracy. Instead of defining one theocratic “truth”, someone somewhere in authority still needs to decide whose truths so trump. This is the problem the Pope has so kindly brought to our attention.
February 3, 2010, 1:34 pmRick York says:
Here in Oregon, we just convicted a couple for letting their 16 year old son die of an easily corrected urinary infection. They are members of a church which promotes \\"faith healing\\". Ironically, this same couple\\\’s own son-in-law was convicted of a lesser manslaughter charge when his 15 month old die of pneumonia and blood infection. The principal defense in both cases was not \\"faith\\" but rather that the parents didn\\\’t realize how sick the children were. Irony as a defense.
In 1999 Oregon passed a law restricting parents\\\’ right to a \\"faith\\" defense.
The tragedy is that many juries, out of sympathy for grieving parents, do not convict those same parents. In spite of the parents\\\’ obviously murderous negligence.
Why isn\\\’t it federal law to refuse to recognize the \\"faith\\" defense against such crimes?
February 3, 2010, 3:59 pmJohn H says:
It’s up to the individual states to handle such matters. In fact, a couple in Oregon was just convicted of criminally negligent homicide for praying for their son’s urinary tract infection to clear up instead of seeking medical attention:
http://www.msnbc.msn.com/id/35207710/ns/us_news-crime_and_courts/
February 3, 2010, 4:08 pmG says:
You know, this question is asked in courts all the time. Every year parents kill there children through negligence, leaving them in hot cars where they die in great pain. Generally, the father receives a slap on the wrist, expected to live with the grief and receive counseling or perhaps 90 nights with counseling. Women serve more time and are judged more harshly. Going more deeply into older cases, refusing blood transfusions (several sects) and other required medical treatment (such as treatment of cancer or diabetes) has happened and been taken care of, sometimes well and sometimes not, since the 1950’s. At least in the NE area of the US, there are relatively standard mechanisms for appealing to a judge to give a court order to require the treatment and one could then appeal.
February 3, 2010, 4:20 pmMusereader says:
My immediate reaction is that it is murder or neglect. And there are already laws for that. But Devil’s advocate for a moment, it’s possible that the mother truly belived that HIV/AIDs is a conspiracy and doesn’t actually exist or is not trasmitted the way she was told. We need to know the motivations and actions of the mother in this regard. We need to know if the mother was taking meds herself and who else was telling her about AIDs/HIV and what they were telling her if it was contrary to established opinin on the disease. If we can see whether she truly belived that her daughter did not need the medication then it would be hard to punish her, if she denied the treatment to her daughter on religious priciple then that is definately neglect, and if she was taking treatment herself then that is murder, It’s hard to answer the question with lack of knowledge of the mother.
For a fictional presentation of this case try reading about the Law and order episode retro http://allthingslawandorder.blogspot.com/2008/10/law-order-retro-lifeless.html this episode features some AIDs deniers
February 4, 2010, 9:47 amRimmerstern says:
No. We won’t punish the mother, seeing as it is, that the loss of her daughter and the supposed reactions of the mothers surroundings is proberbly punishment enough.
We will, however, pass a law that overrules the decisions of parents in future like-incidents, and we will stress that HIV-patients is educated as to what consequenses they could be subjecting their [innicent] children to by having them in spite of their medical condition.
In addition, we will pass another law, declaring the day of Susan’s death as “international Don’t Be Stupid Day”, prohibiting on that one day ANY and ALL actions that that would generate a negative answer if met with the question “Would you have anyone you cared about do this?”
Thanks for so many inspirering books, mr. Pohl. You helped me build my own gateway-of-sorts, you and a whole bunch of other authors.
February 4, 2010, 5:50 pmIronmistress says:
Here in Finland the case would be clear-cut.
The child’s right to health and life is a stronger judicial good than the mother’s right to religion. The baby would have been taken to custody and treated.
And that is the way it ought to be. Freedom of religion is a strong judicial good, but human life is even stronger. If those two contradict, the human life should always overtake the religion. Especially when the question is of another human being.
I am not familiar with US concepts of law in such cases, but in my perspective this would be a voluntary manslaughter under aggravating circumstances (gross and intentional negligence).
February 5, 2010, 3:45 amTina Black says:
I suspect that the US Senate should keep its nose out unless it wishes to pass basic health care as a service paid for by taxpayers, and thus quite available when Susan is removed from her negligent parents.
February 5, 2010, 9:44 pmqiihoskeh says:
If loss of a child isn’t punishment already, there can be no punishment; only possible prevention.
February 7, 2010, 8:14 pmBill Goodwin says:
There’s no appropriate attitude but horror toward the needless death of a little girl. But I don’t think it’s necessarily helpful to criminalize her grieving mother. The money might be better spent on education that would presumably modernize people’s beliefs, than on creating a (again, presumable) “deterent effect.”
Since the humane perspective has already been so well expressed above, I’ll play devil’s advocate and advance a little ruthless logic. Not because that’s my position of choice, but because I believe these sorts of questions touch upon issues that are deeply related to the future of the planet, and it’s important to look at them in every sort of light.
First I’ll say that any talk of “rights” is itself religious. Some might prefer the word spiritual. I’ve gotten into some heated arguments on this point, but I remain with David Hume on the matter of morality: that it is neither rational, nor even consistent, necessarily, with reason. NOBODY’S view of the situation described above is going to be free of arbitrary metaphysical assumptions.
I am forced to wonder how many people have died from black lung disease so that I may enjoy the convenience of electricity, or lost their childhood to sweat shops so that I may wear affordable clothing. My culture grants me absolution from these injustices. This woman’s own indoctrination is probably that both she and her daughter are assured an eternal life in heaven, provided they adhere to a certain code.
Her ideas may be quaint and her faith misplaced, but I’m sympathetic to the idea that individuality is brief and illusory. During conscious life, either individual material systems (nervous systems) somehow access a transcendent (and more general) reality, or (as seems much less superstitious to me) that reality somehow gets itself into an epistomological knot that requires it to model its experience in the form of matter, energy, brains, people, myself, yourself, etc. Pretty dry stuff–except that a little girl is dead.
In the modern west, we enjoy the fruits of a materialistic worldview, but the price we pay is a particular horror at the idea of mortality. This horror lies behind all the most fevered debates: healthcare, abortion, war, execution–you name it. Yet what seems a clear moral absolute on the individual level is disastrous on the planetary one…there are too many people.
I do not say I support this woman’s behavior, or a law that condones it. But I’m mindful enough of the complexity of the metaphysical tarpit in which she’s stuck (a pit in which an innocent was tragically pulled out of sight) to at least be uncomfortable equating the use of medical care–an artificial expedient–with the eating of food–a natural activity. Logic even suggests that when someone has the capacity for such lethal ignorance, the death of her offspring at least makes it less likely that future generations will be as misguided, therefore lives are saved in the long run when these misfortunes are permitted to occur. It’s because of this Darwinian principle, in fact, that we’re even discussing the matter, rather than shrugging off the recycling of an infected lump of flesh.
The latter attitude might result in a heartier, less plague-ridden species. Not a species I’d want to be a member of…but I can imagine an alien civilization–a noble one–regarding our objections as barbaric.
February 8, 2010, 2:45 amPaul Camp says:
Crime or not-crime is not the only way to think about this.
Criminalizing stupidity is problematic. There are quite a few people, some of whom even pass for intelligent, who believe anthropogenic climate change is a fraud committed by a gang of scientists for obscure but clearly anti-American reasons. They hold the balance of power in the Senate. They threaten the habitability of the entire planet. If anything should be criminal, that should be. But if you make doubt of scientific consensus a criminal offense, you criminalize a vital part of the scientific process itself and create a sort of scientific papacy. And you simply can’t thread that needle. You can’t create a definition of criminal doubt that puts crazy doubters clearly on one side of the fence and sane doubters clearly on the other side. Freeman Dyson is a case in point. He believes the data on climate change, but does not believe we actually need to do anything in particular about it. Where would he land?
Similarly here. You can’t criminalize sincerely held religious belief. But you *can* prevent it from affecting the innocent. The state has a clear interest in the safety, health and well being of all its citizens. This is acknowledged in the preamble to the Constitution. That implies that parental rights, while strong, are not absolute. Children are not a species of slave. And when personal parental beliefs threaten the welfare of a child, those rights can be terminated.
But you don’t need a new law to do that. The law already exists, and such decisions are made daily by family court judges, substituting their judgment for that of parents when parents put their children at risk.
In the US, a mother can avoid that situation by simply avoiding medical care. In a sane society, however, with an actual, functioning national health care system (rather than a national health care market) that would be less likely to happen.
It is quite dangerous to criminalize beliefs, even when they lead to a negative impact on others. But it is precisely at the point where a negative impact on others occurs that the state should be able to step in and say “You can believe whatever you want, but not at the expense of your child or anyone else’s.” And for the same reason, I think vaccination doubters should be made to have their children vaccinated. If you want to be stupid, you have that right, but you lose the right to act on your stupid at the point where it harms other people.
February 8, 2010, 8:13 amMike says:
The most recent comparable case I’m aware of in Australia, is two parents who were jailed for manslaughter due to criminal negligence in the case of their daughter. In this case the parents chose to “treat” her with homeopathy rather than with the specialist medical treatment they’d been urged to follow.
http://www.smh.com.au/national/jail-for-parents-who-allowed-daughter-to-die-20090928-g8×2.html
February 9, 2010, 10:29 pmBill Goodwin says:
Mr. Camp states the problem very elegantly in his second paragraph.
His words after that concern me, if only because of what I see at the bottom of the slippery slope. We do have tort laws that say what “should” be treated and how, and they do create something of a medical priesthood. Science is of course self-correcting, and proper treatment determined by consensus. But even concensual reality is vulnerable to deception…witness the election/s of George Bush!
The interest of a state in the health and well-being of all its citizens is FAR from clear, even in theory. In practice its interest is only in the welfare of voters, and not even this is assured. Add an active disinterest in the welfare of foreign workers, and our system, while possibly as moral as one can get, is far from unassailably so.
Nor is it intended to be. It is meant to enforce the ethical code most comfortable to a certain group of people, at a certain point in time and within a certain geographical boundary. Our concern is for “domestic” tranquility and liberty “for ourselves and our posterity.” It is dangerous (and expensive) to treat local judgements as global ones.
It’s wrong for a child to die “before her time” only because you and I are uncomfortable with it, and together with like-minded people have the power to intervene. If we elevate our viewpoint to a metaphysical principle, the burden of proof is on us. And we CAN’T prove it. There’s a Godelian quality to morality; it can’t ever be entirely consistent. There are inevitable seams, which must be either stitched up with clever words or placed out of sight (in Saipan for instance).
We say a fetus is not a person before a certain point, and may be aborted. In this decision, a woman is not even required to have the religious rationalization enjoyed by the woman above. I support choice. But suppose one were to draw the line, not at the third trimester, but at the aquisition of language? Or of imaginitive insight into the internal state of other minds? A two-year-old might be rightfully considered an animal, and an over-extended family seeking to preserve the fabric of their lives (or a mother seeking to preserve the fabric of her religion) might reasonably choose to invite the neighbors over for a barbecue!
February 12, 2010, 2:35 pmtehag says:
Not a crime.
February 17, 2010, 7:36 am