Child's death won't bring federal case

The Justice Department declines to prosecute parents who chose prayer rather than medical care for their son

The Oregonian/July 5, 1998
By Mark Larabee

The U.S.Justice Department said Wednesday it has no jurisdiction over the case of an Oregon City couple whose son died after they treated him with prayer instead of taking him to a doctor.

Bo Phillips, 11, died Feb. 23 of diabetes after suffering painful symptoms for a week. Dr. Larry Lewman, Oregon medical examiner, said the boy's death could have been prevented with conventional medical care.

But Oregon statutes allow parents to withhold medical care on religious grounds. Clackamas County District Attorney Terry Gustafson argued last month that state laws prohibited her from filing homicide, neglect or child abuse charges against the boy's parents because of religious immunity clauses.

The boy's parents belong to the Followers of Christ Church, an Oregon City congregation that believes only prayer can heal. Three children of church members have died since July of treatable maladies, Lewman said. Several young mothers and their babies have died during childbirth in the past decade, in part because they received no prenatal care and then attempted to give birth at home with the help of untrained midwives who sometimes made fatal mistakes, he said.

After an extensive police investigation into Phillips' death, Gustafson forwarded the case to federal prosecutors last month to see whether it could be prosecuted under federal civil rights laws. But the move was also an attack on Oregon's religious immunity laws. Gustafson said she thinks Oregon law is wrong because it pits freedom of religion against the state's duty to protect children.

But after reviewing the case under federal criminal and civil law, Justice Department officials referred it back to Gustafson's office, said Stephen H. Peifer, an assistant U.S. attorney in Portland. He said lawyers in Portland and Washington reviewed the case.

"It's a more appropriate matter for state prosecution," Peifer said. "If there's any question of the appropriateness of the state statute, then that's something they can take up with the Legislature."

There is some disagreement about whether Gustafson can file charges in state court. Attorney General Hardy Myers has said that Oregon's criminally negligent homicide statute has no religious exemption. But Gustafson argues that the law is flawed in that its language is nearly identical to the state's manslaughter charges and therefore violates a defendant's right to due process. She could not be reached Wednesday.

In any case, Phillips' death and the recent deaths of two other Followers of Christ children have started a debate about religious immunity laws in Oregon and whether such protections should be continued. There is agreement in the law enforcement community that religious immunities should be removed from state statutes.

"That's a big issue," said Tom Kusturin, an investigator in Gustafson's office. "This is not a one-case issue."