2 Dec 2008

Judge allows charges in prayer death case

The Northwestern - Wisconsin
December 2, 2008

by Robert Imrie | Associated Press Writer

WAUSAU, Wis. (AP) - A judge Monday refused to dismiss reckless homicide charges against parents accused of praying instead of seeking a doctor’s care as their 11-year-old daughter died of untreated diabetes.

Marathon County Circuit Judge Vincent Howard rejected arguments that prosecuting Dale and Leilani Neumann violated their constitutional rights to freedom of religion and due process.

"The free exercise clause of the First Amendment protects religious belief, but not necessarily conduct," Howard wrote in a 20-page decision.

Parents have a legal obligation in Wisconsin to project their children, care for them in sickness and do whatever may be necessary for their "care, maintenance and preservation, including medical attendance if necessary," the judge said.

The sole issue for a jury to decide is whether the parents reasonably knew that refusing to rush the girl to a doctor threatened her with death, Howard wrote.

The Neumanns have pleaded not guilty to second-degree reckless homicide, which carries a maximum punishment of 25 years in prison.

Their daughter, Madeline, died at their Weston home on Easter after becoming too weak to speak, eat, drink or walk, prosecutors said. They claim the girl - nicknamed Kara - likely had symptoms for weeks and perhaps months that should have prompted her parents to seek treatment.

Leilani Neumann, 40, has said the family believes in the Bible, which says healing comes from God, and she never expected her daughter to die as they prayed for her. The parents told investigators the girl had not been to a doctor since she was 3.

Dale Neumann, 46, considered his daughter’s illness "a test of faith," the criminal complaint said.

Gene Linehan and Jay Kronenwetter, attorneys for the couple, and prosecutors Jill Falstad and Lamont Jacobson did not immediately return telephone messages Monday left at their Wausau offices.

Howard has said he expected his decision to be appealed no matter how he ruled, delaying any trial, given it’s the first case of its kind in Wisconsin.

The judge ruled the parents have a constitutionally protected right to freely exercise their religious belief in prayer to cure illness.

"However, their right to transfer religious belief into conduct must yield to neutral, generally applied criminal statutes designed to protect public safety," Howard wrote. "Justice cannot give a free pass to anyone who claims that their religious beliefs blinded them to that which a reasonable person would be able to observe as a matter of fact."

Prosecutors must be able to challenge the source and strength of the parents’ religious beliefs and such an inquiry would not enter "the forbidden realm of the First Amendment," Howard said.

The power of prayer to heal, while common in nearly all religions, cannot be proven, he said.

"Thus, if (the parents) genuinely believed that prayer alone would save their daughter and that she was in no danger of dying without medical care, then they could not be found criminally negligent," the judge wrote.

Prosecutors have argued the couple rejected advice from relatives to get the girl to a doctor and did other things beside pray - including putting droplets of water in her mouth - to try and heal her.

Howard ruled that two Wisconsin laws - one that says it is not child abuse to treat illness through prayer alone and a homicide law that makes no exception for prayer - are not inconsistent to the point of violating the parents’ due process rights in having "fair notice" of prohibited behavior.

"There admittedly is no line in the applicable statutes that would have given the Neumanns precise notice that their reliance upon its statute accommodating prayer for treating disease or illness was passing into the realm of criminal conduct," Howard wrote. "But it is not necessary to define such a line between lawful and unlawful conduct with mathematical precision. The spiritual and prayer accommodation statute gives notice to those who wish to take advantage of it that the exemption is not without limit."

Unlike in some other states with similar laws, there is a limit in Wisconsin’s "willingness to accommodate religious means of treatment" for illness in children, Howard wrote.

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