Monday, February 9, 2009

Religious rights or torts liability?

Last month I posted a comment on whether there should be a cause of action for injuries to a child when parents refuse medical services for religious reasons (available here). Last week, published two interesting related articles. In the first one, Cornell University Prof. Sherry Colb discusses a recent case in Wisconsin where prosecutors charged the parents of an 11 year old child with second-degree reckless homicide for failing to prevent her death. She died of untreated diabetes while her parents prayed for her recovery and chose not to consult a medical professional.

The facts of the case are very similar to those in Lundman v. McKwon, 530 NW2d 807 (MinnApp 1995) in which the court discussed whether to impose tort liability for the same conduct. Although Prof. Colb's article is not about torts liability, the issues discussed are essentially the same. She concludes that whether there should be liability is not as easy as it looks at first glance:
"Perhaps the most striking fact about the Neumanns, viewed in this way, is that they apparently did not mean for any harm to befall their daughter. They were not trying to discipline her, teach her a lesson, or deprive her of what she needed. They loved her and had, until this tragic episode, apparently taken good care of her. They thought that God would protect Kara, if only they prayed hard enough. By comparison to other, more aggressive zealots, their tragically misguided conduct might seem, in relative terms, far less malevolent." 
Prof. Colb's full article is available here.

In the second article, Benjamin N. Cardozo School of Law Prof. Marci A. Hamilton discusses the grand jury investigation by a Los Angeles US Attorney into allegations of a child sex abuse coverup by the Catholic Church's Los Angeles Archdiocese. In it, she discusses the claim that the investigation is unnecessary given that the Church has settled torts claims with the victims. In response to this argument, Prof. Hamilton states:
"The apparent reasons behind the settlement are very pertinent: First, early on, the church hierarchy succeeded in getting many claims consolidated . . ., so as to avoid individual litigation. Many survivors wanted their day in court and opposed consolidation, but this procedural move by the hierarchy meant that large collections of cases were treated as though they were single cases with judges overseeing many at one time. That way, the hierarchy could argue to reduce per-person claims, because the size of the total award would be large no matter what and the hierarchy could more effectively and efficiently control what information about the coverup would be released. Second, the Archdiocese settled essentially on the eve of trial, when it appeared that the Cardinal would have to testify regarding his obvious knowledge of a great deal of abuse. In other words, the settlement was a tactic to keep a further lid on damaging information. Thus, despite the settlement, relatively little information, especially given the amount that is still under the sole control of the Archdiocese, has reached the public." 

As you can probably guess from this excerpt, Prof. Hamilton supports the grand jury investigation. Her article is available here.

 Also recall the recent decision by the Sixth Circuit Court of Appeals recognizing a possible claim against The Vatican for similar conduct. See here.

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