Shawn Francis Peters, who teaches writing and U.S. history at the UW-Madison, writes about the dangerous intersection of Religion and Law. His three books have dealt with thorny challenges to religious freedom -- the refusal of Jehovah's Witnesses to salute the flag or serve in the military (Judging Jehovah's Witnesses, 2000); the refusal of the Amish to educate their kids past grade school (The Yoder Case, 2003); and, most recently, the faith-based refusal of some parents to provide their kids with medical assistance (When Prayer Fails: Faith Healing, Children and the Law, 2008).
When Prayer Fails (Oxford University Press) is a compelling and often shocking book. There is the anecdote of the little girl who died from a tumor in her eye that enlarged to the size of her head; investigators found blood smears in her home from where she had apparently dragged her tiny body along walls. There are cases of children who died from choking on food or ailments that could have been easily treated with a shot of insulin or dose of antibiotics. Some true believers have even refused treatment from communicable diseases, putting others at risk.
The book makes unflattering mention of Wisconsin, which has -- wouldn't you know it? -- an especially backward law that protects the proponents of faith-based medical neglect.
State statute 948.03(6) provides an exemption from the law against failing to act to protect children from bodily harm for what is referred to as "Treatment through prayer." The statute says: "A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing ... in lieu of medical or surgical treatment."
As Peters' notes, the statute drew some attention in 2003, when a two-year-old autistic child in Milwaukee was crushed to death during an attempted exorcism. The practitioner was convicted, albeit of a lesser offense than what some felt was appropriate. Afterwards, Milwaukee County District Attorney E. Michael McCann urged state lawmakers to remove this exemption, lest it lead to what he called "mischief." Wisconsin's do-little Legislature has not done so.
Peters, in an interview, says the Milwaukee case "illuminated the fact that the law was there." He suspects it found its way into the statute books through the efforts of Christian Scientists, as in other states with similar exemptions.
In an email, Dane County District Attorney Brian Blanchard says he thinks there have been cases where doctors and hospitals, "concerned that asserted religious beliefs of parents might result in physical harm to an ailing child," have asked the courts to step in. But "no one can recall" a case where a faith-based refusal to seek treatment was presented as "potential criminal child neglect."
Blanchard then explains the high threshold such a case would have to meet: "In the criminal child neglect area, we look for evidence of criminal thinking, not just inattention or momentary lapses in judgment. So, for example, if we had a baby death due to failure to thrive or treatable illness, and there was a claim that religious belief prevented the caretaker from seeking treatment, we would certainly ask police to be alert to any facts suggesting that religion was being used only as an after the fact excuse or ruse. That would of course be criminal thinking. If on the other hand the religious belief appeared genuine and there were no other signs of abuse or neglect, it might be difficult for us to say a case had merit as a criminal child neglect prosecution."
In other words, if you kill or maim your kids because you truly believe they need prayer more than medical attention, there's not much authorities around here will do about it.
"The way the statute is worded, I think he's right," says Peters. "The statute says if you treat a child by religious means, you're not going to be prosecuted." He adds, somewhat superfluously, that he thinks the statute should be written differently: "I think my book sort of illustrates the perils of that."