Whether laws shield parents stirs debate

Officials differ on whether a couple whose son died because of withheld treatment can be prosecuted

The Oregonian/April 23, 1998
By Mark Larabee

The state attorney general's office and Clackamas County District Attorney Terry Gustafson disagree about whether Oregon's homicide statutes allow proseuctors to charge parents whose children die when medical care is withheld because of religious beliefs.

Gustafson's opinion is that Oregon's laws grant immunity to the parents of an 11-year-old Oregon City boy. The boy died in February after his parents treated him with prayer in accordance with their beliefs.

But a spokesman for Attorney General Hardy Myers said Gustafson is reading the law incorrectly. And Multnomah County District Attorney Michael Schrunk agrees. They think parents can be prosecuted under the state's criminally negligent homicide statute, which has no clause allowing for religious immunity, they said.

Gustafson said the criminally negligent homicide statute doesn't apply because its language is the same as that in the state's manslaughter statutes, which include immunity for religious beliefs. Given the resemblance between the two statutes, charging the couple would be "prosecutorial trickery," Gustafson said.

"It's deceptive to write a law where you set up a defense for manslaughter, but then you call it something else and the defense doesn't apply," she said. "If there was any way I could prosecute these cases, I would be doing it."

The disagreement came a day after The Oregonian published an article detailing several Oregon City cases where children died of common, treatable medical problems. Their parents are members of the Followers of Christ Church on Molalla Avenue and believe God will heal and that seeking a doctor's help is wrong.

Dr. Larry Lewman, state medical examiner, said about 25 children of church members have died unnecessarily in the past two decades. And former church members told the newspaper that those who seek a doctor's care are ostracized from the church group and their immediate families.

Gustafson decided Friday not to prosecute the parents of 11-year-old Bo Phillips, who died Feb. 23 of diabetes after suffering painful symptoms for seven days.

In researching the case, Gustafson said she sought help from Myers' office and was told that she was precluded from prosecuting under the criminally negligent homicide statute. The office told her Wednesday she could.

"That's a reversal of the opinion that I heard from them previously," Gustafson said.

But Peter Cogswell, Myers' spokesman, said state Assistant Attorney General Janet Metcalf did not tell Gustafson that she shouldn't prosecute the case. Metcalf told Gustafson that she wanted to talk to other lawyers about the issue and that she would call her back, Cogswell said.

"Somehow in that conversation, she construed that we agreed she couldn't prosecute," Cogswell said. "We thought we left it open."

Cogswell noted that while Myers thinks there is no religious immunity for parents under the criminally negligent homicide statute, the decision whether to prosecute specific cases is Gustafson's.

"If she believes that after weighing the evidence that she can't prosecute, then we support that decision," he said.

Although criminally negligent homicide is the lesser of Oregon's five degrees of homicide, it still presumes that people who are found guilty will serve time in prison. It's a class C felony, with a maximum sentence of five years, although most are sentenced to serve 16 to 18 months.

"It's not like it's a minimal crime," said John Bradley, Multnomah County first assistant district attorney, who helped write recent changes toughening Oregon's laws for child homicides. "If this conduct came up in Multnomah County and the facts were present, we'd prosecute."

Linn County prosecutors were successful in prosecuting Loyd Hays of criminally negligent homicide in 1995 after his 7-year-old son died of treatable leukemia. Hays, a Brownsville resident, is a member of the Church of the First Born, which also believes in prayer over medical care. He was given probation for his crime and is appealing the conviction.

Even so, Bradley, Schrunk and others agree that cases with religious beliefs involved are difficult to win unless the facts are overwhelming, and that the constitutional rights to religious freedom often prevail.

Multnomah County prosecutors haven't had a case where this immunity statute applies, according to Schrunk and others.

Although Gustafson and Schrunk disagree about whether charges can be brought in the Oregon City case, they agree that religious immunity clauses in Oregon's homicide statutes have seen their better days.

The immunity clauses are wrong, Gustafson said, because they pit a parent's religious freedom against the state's duty to protect children.

"All children must be protected under the law regardless of what their parents believe," she said. "I don't need to be a legal scholar to see that this is creating an injustice."

She says the immunity clauses should be repealed. Schrunk agrees.

"That stuff doesn't pass the smell test," he said. "If you're over 18 and you make a decision (not to see a doctor) on your own, that's fine."

Courts in four states have ruled religious immunity laws unconstitutional under the Fourteenth Amendment to the U.S. Constitution, which guarantees all people equal opportunities under the law. Yet 31 states still include the exemptions in their criminal codes. Forty-one include them as exemptions to child abuse and neglect charges in the juvenile codes, according to Rita Swan, founder and president of the advocacy group Children's Healthcare is a Legal Duty, which is working to abolish the immunity laws.

Gustafson said she forwarded the Phillips case to U.S. Attorney Kristine Olson in Portland on Wednesday and hopes it can be prosecuted under federal civil rights laws.