Appellate Action Continues In Spiritual-Healing Cases

Rulings differ on whether `due process' was ignored

STATE courts continue to issue conflicting decisions on whether parents relying on spiritual healing instead of medicine for a child can be criminally prosecuted in cases when the child dies. At issue are so-called ``spiritual-healing provisions'' in state laws dealing with children's welfare. Such laws usually provide that parents relying in good faith solely on spiritual healing for children shall not be held neglectful or abusive. Most of these laws were sought by members of the Christian Science Church, who for more than 100 years have practiced a form of healing by prayer that they say has given results at least as good as those of medicine.

Despite such laws, however, local prosecutors in the late 1980s have indicted several Christian Scientist parents for child neglect or manslaughter when children have died. In most of the cases, the parents have argued that the spiritual-healing provisions in state laws provide a legal sanction for their choice of treatment.

Courts in some states have held that spiritual-healing provisions in the law preclude prosecution or at least provide a basis for defense. But judges in other states have refused to recognize them. Defense lawyers in these latter cases say this raises constitutional questions of due process; that is, the right of a defendant to know beforehand that the state considers a certain course of action to be criminal.

The best-known case is that of Ginger and David Twitchell, who were convicted in July of manslaughter here in Boston. Their 2-1/2-year-old son, Robyn, died in 1986 of what was later diagnosed as a bowel obstruction caused by a birth defect. In that case, the trial court judge refused to inform the jury that a spiritual-healing provision exists in state law. Lawyers for the Twitchells have filed a motion for a new trial and have also filed a notice of appeal. The other six cases have resulted in a mixture of acquittals, convictions, and dismissals of charges.

The list of contradictory decisions lengthened recently with rulings by appeals courts in Minnesota and Florida. On Sept. 28, the Florida Second District Court of Appeals upheld the 1989 conviction of William and Christine Hermanson for felony child abuse and third-degree murder in the death of their daughter, Amy, in 1986. But the Minnesota Court of Appeals on Oct. 16 upheld on due-process grounds a trial court's dismissal of manslaughter charges against Kathleen and William McKown in the 1989 death of Mrs. McKown's son, Ian Lundman.

In the Florida appeal, attorneys for the Hermansons argued that the spiritual-healing provision in the child-abuse law sanctioned their choice of treatment. But the appellate court held that the trial judge erred in allowing the Hermansons to construct a defense on the basis of the spiritual-healing provision. It ruled that the law applied only to reporting and investigating child abuse and not to criminal penalties.

The court also rejected the Hermanson's due-process assertion that Florida law does not tell parents relying on spiritual healing exactly how serious a child's condition must be before they must seek medical treatment instead. The judges cited United States Supreme Court Justice Oliver Wendell Holmes Jr. in a 1913 due-process ruling: ``The law is full of instances where a man's fate depends on his estimating rightly, ... some matter of degree.... `An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it' by common experience in the circumstances known to the actor.''

Thomas Dart, the lawyer handling the Hermansons' appeal, filed a motion Oct. 12 before the appellate court asking it to rehear the case, or to refer to the state Supreme Court the question of whether the spiritual-healing provision provides a statutory defense. Mr. Dart says that the court's ruling creates ambiguity which itself raises due-process questions.

``The court has tried to short-circuit that by saying the trial was more than fair,'' he says. ``We believe there are some significant due-process problems with a defendant being put on trial and led to believe he has a defense available, then told it is not.'' In addition, Dart argues, if the appeals court holds that the spiritual-healing provision does not provide a defense, due process requires that the ruling be applied only to future cases. Since the Hermansons proved the facts required for a finding of innocence under the trial-court ruling, the appeals court should direct their acquittal, he says.

The Minnesota Court of Appeals used similar reasoning in refusing to reinstate charges against the McKowns. ``In this instance, there can be little question that the due-process fair-notice requirement has been violated,'' the court wrote. While the child-neglect statute authorizes parents to choose ``spiritual means or prayer,'' when a child is ill, the manslaughter statute ``gives no notice of when its broad proscription might override the seemingly contradictory permission given by the child-neglect statute,'' the justices wrote.

The court also noted that the child-neglect statute placed spiritual healing on the same legal footing as orthodox medical care. Thus, it held that to prosecute Christian Scientist parents when a child dies, while not prosecuting parents whose child dies under medical care, ``is unacceptably arbitrary, and a violation of due process.''

Finally, the Minnesota appeals court noted the legal principle that ambiguity in the law, as it found in the McKown case, should be resolved in favor of leniency. Quoting the same remarks from Justice Holmes as the Florida court, it said ``Ian Lundman's parents had no reason to believe that they must engage in the kind of `estimating' Holmes describes. They had not been unequivocably put on notice that their conduct put them at risk, and indeed, may have specifically relied upon official pronouncements of the state that their treatment of Ian was legally authorized.'' The state has until Nov. 15 to appeal.