Ciullo: Prosecution Without Persecution

CIULLO.
FINAL EDIT 1/7/2008 10:14:54 PM
PROSECUTION WITHOUT
PERSECUTION: THE INABILITY OF
COURTS TO RECOGNIZE
CHRISTIAN SCIENCE SPIRITUAL
HEALING AND A SHIFT TOWARDS
LEGISLATIVE ACTION
Allison Ciullo*
Abstract: A number of states have exemptions written into their neglect or

manslaughter statues to protect the decision of Christian Scientists to practice
spiritual healing. Massachusetts, one of the states with the highest
membership numbers for the Church, repealed its faith-based exemption and
criminalized the choice of parents to practice spiritual healing. This Note
discusses the various failures of Christian Science parents in Massachusetts
and other states whereby members of the Church were charged with some
form of neglect or manslaughter when children died because they did not
receive medical care. Addressing the ineffectiveness of free exercise rights,
lack of fair notice, and prosecutorial discretion defenses, this Note advances
the argument that legislative change would be the best course of action for
Christian Scientists in Massachusetts. This stems from the Churchs
established presence as a lobbyist group on the state and national level, as
well as their strength as a media conglomerate with newspapers and
television publications. The Note presents a recommended statute which uses
exemptions enacted in other states and presents spiritual healing as an
affirmative action on the part of parents to provide care and treatment for
their children.
* Candidate for Juris Doctor, New England School of Law (2008); B.A., Legal
Studies and Political Science, University of Massachusetts at Amherst (2005).
155
CIULLO. FINAL.EDIT 1/7/2008 10:14:54 PM
156 NEW ENGLAND LAW REVIEW [Vol. 42:155
The exceptions for spiritual treatment are an example of the

state legislatures general overt protection of the right of
religious parents to control their childrens health care within the
framework of societys broad respect for the private realm of
family life.1
INTRODUCTION
America is a nation marked by religious pluralism as various
denominations compete for recognition of their faith.2 Not all religions are
created equal in their treatment by the legal system, particularly in relation
to parental duties because ideals may be imposed upon groups and
individuals by the courts.3 For several reasons, courts are generally averse
to viewing the Christian Science faith as a legitimate religion.4 Despite the
judicial conception of Christian Scientists as a marginalized group, they are
recognized in a variety of ways in American culture and politics.5 Members
of the Christian Science Church have been active in the political arena 6
and their actions have been instrumental in crafting various legislative
provisions.7 Indeed, their most poignant political contributions have
involved their attempts to enact spiritual healing exemptions to child
neglect and manslaughter statutes.8
Christian Science parents practice spiritual healing because they truly
believe that it is the best course of holistic treatment for themselves and
their children.9 The choice to pursue traditional medical treatment is not a
sin according to the Church,10 yet its practice is viewed as counterintuitive
1. Anne D. Lederman, Understanding Faith: When Religious Parents Decline

Conventional Medical Treatment for Their Children, 45 CASE W. RES. L. REV. 891, 898
(1995).
2. See MICHAEL CORBETT & JULIA MITCHELL CORBETT, POLITICS AND RELIGION IN THE
UNITED STATES 345 (Garland Publg, Inc. 1999).
3. See Nathan A. Talbot, Let Parents Protect Their Childrens Health, USA TODAY,
May 4, 1988, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR
CHILDREN 79, 80 (Christian Sci. Bd. of Dirs. ed., 1989) [hereinafter Talbot, Let Parents].
[I]n a society as diverse as ours, with many differing views on whats best for children, a
careful line needs to be drawn between protecting children from irresponsible parents and
forcing state opinions too zealously on responsive parents. Id.
4. See infra Part III.
5. See infra Part I.A.3.
6. See Alex Beam, Christian Scientists Uneasy as Beliefs go on Trial, BOSTON GLOBE,
May 2, 1988.
7. See, e.g., 45 C.F.R. 1340.1-2 (b)-(b)(1) (1976).
8. See infra Part I.C.3.
9. Lederman, supra note 1, at 893.
10. See Christian Sci. Bd. of Dirs., Statement for Atlanta Centers for Disease and
2007] SPIRITUAL HEALING EXEMPTIONS 157
to recovery.11 Prosecuting parents for practicing spiritual healing reflects a

judgment by courts that avoidance of medical treatment is inherently
reckless.12 In making this characterization, courts lose sight of the
importance of spiritual healing to members of the Christian Science Church
and the relative successes they have experienced through the practice.13
Ironically, the state in which the Church emerged, Massachusetts, is
among a small minority of jurisdictions that provide no statutory protection
for spiritual healing.14 Christian Scientists have a large number of churches
in Massachusetts,15 yet the state is one of five that has no religious
exemption provision.16 Massachusetts previously had such an exemption,
but the statute was repealed after the death of a Christian Science child in
1993.17 To protect their religious choices, members of the Church in
Massachusetts should lobby for a statute that recognizes spiritual healing as
an affirmative defense to criminal charges of child abuse and
manslaughter.18 Utilizing affirmative language, rather than relying on a
statute styled as an exemption, would help convey the legitimacy of
spiritual healing as a fulfillment of parental responsibility.19
This Note will address the current status of Christian Science spiritual
Control, CHRISTIAN SCI. SENTINEL, Sept. 8, 1986, at 1664-67, reprinted in FREEDOM AND
RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, 3, 4 [hereinafter
Atlanta Centers].
11. See Daniel Vaillant, The Prosecution of Christian Scientists: A Needed Protection
for Children or Insult Added to Injury?, 48 CLEV. ST. L. REV. 479, 481 (2000).
12. See Commonwealth v. Twitchell, 617 N.E.2d 609, 612-13 (Mass. 1993).
13. See Jennifer L. Hartsell, Mother May I . . . Live? Parental Refusal of Life-Sustaining
Medical Treatment for Children Based on Religious Objections, 66 TENN. L. REV. 499, 507
(1999) (describing the holistic approach to well-being which is vital to Christian Scientists);
infra Part I.B.2.
14. Richard A. Hughes, The Death of Children by Faith-Based Medical Neglect, 20 J.L.
& RELIGION 247, 248 (2005).
15. See Directory of Christian Science Churches, Reading Rooms, Practitioners, THE
FIRST CHURCH OF CHRIST, SCIENTIST (2007), http://www.churchofchristscientist.org/
worldwidedirectory/index.jhtml [hereinafter Directory] (follow Churches, Societies and
Reading Rooms hyperlink; then enter Massachusetts in search form) (last visited Dec.
26, 2007).
16. Hughes, supra note 14 (Only Hawaii, North Carolina, Nebraska, Maryland, and
Massachusetts have no religious exemptions from medical care, either in civil or criminal
codes.).
17. See infra Part IV.D.
18. See infra Part V.C.2.
19. See Talbot, Let Parents, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 80 (asserting that Christian Science
parents feel that they are actively caring for their children when they engage in spiritual
healing).
healing in Massachusetts, and its complete lack of legislative protection.

Part I describes the creation of the Church, particularly focusing on
principles of the faith, Massachusetts connections, and the implications of
spiritual healing in the legal field. Part II explains the development of the
spiritual healing exemption law that originated with a federal statute
influenced by Christian Scientists. Part III discusses the failed judicial
defenses articulated by Christian Science parents charged with
manslaughter, primarily focusing on statutory construction and free
exercise arguments. Part IV examines Commonwealth v. Twitchell,20
utilizing the case to demonstrate the current status of spiritual healing in
Massachusetts. Finally, Part V presents legislative options Christian
Scientists should pursue in order to create statutory protection for spiritual
healing since judicial attempts at defending the practice have proved futile.
I. BACKGROUND
There are presently over 2,000 Christian Science Churches and
Societies located in over eighty countries worldwide.21 The Christian
Science faith was established by Mary Baker Eddy in 1879.22 Church
members believe that traditional medical care is counterproductive to
health, and that well-being depends upon a connection between body,
mind, and faith.23 The majority of states have enacted spiritual healing
statutory exemptions which protect parents from being charged with child
neglect.24 Under such negligence-based provisions, however, a parent may
still be charged with involuntary manslaughter.25 Courts generally focus on
the competing interests of the state and the parent in terms of protecting
children.26 In balancing these concerns, the governments interest is
20. 617 N.E.2d 609 (Mass. 1993).

21. Jay Lindsay, Christian Science Church Aims for Growth Amid Struggles, U.S.A.
TODAY, June 25, 2006, available at http://www.usatoday.com/news/religion/2006-06-25-
christianscience_x.htm.
22. Janna C. Merrick, Spiritual Healing, Sick Kids and the Law: Inequalities in the
American Healthcare System, 29 AM. J.L. & MED. 269, 271 (2003).
23. Allison W. Phinney, Jr., What Is Christian Science Treatment?, CHRISTIAN SCIENCE
SENTINEL, May 22, 1989, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE
HEALING FOR CHILDREN, supra note 3, at 21, 23. And just as you wouldnt use . . . two
different medical treatments for the same problem in one individual because they would
interfere with each other, so you wouldnt mix Christian Science treatment with medicine.
Id. at 23.
24. See infra Part I.C.3.
25. See infra Part I.C.2 (discussing the debated nature of Christian Science spiritual
healing as an affirmative attempt to provide treatment).
26. See Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education,
and Harm to Children, 76 NOTRE DAME L. REV. 109, 132 (2000).
supreme, and the care and concern that parents have for their children
becomes secondary.27
A. Creation of the Christian Science Church
1. Principles of the Faith

Mary Baker Eddy established the Christian Science Church following
a remarkable recovery from severe head trauma that she sustained in a
fall.28 After years of suffering from chronic illness29 unaffected by
conventional medical treatment, Eddy pursued a course of holistic healing
and prayer as a means of recovering from her injuries.30 She credited her
dedication to faith during her time of need as the key to her recovery, and
she felt that healing could be performed through faith-based acts.31 Eddy
had a revelation of faith and health, and as a result of this experience, she
went on to write the landmark book Science and Health.32
The premise of Eddys writing was that by drawing closer to God,
one can overcome what [she] considered manifestations of the mind,
including sin, sickness, and disease.33 This principle of holistic, faith-
based healing survived Eddys death and is the foundation of belief for
thousands of Christian Science Churches around the world.34 While
Christian Scientists are not nave to the biological and physical
underpinnings of health, they feel that the best course for well-being is to
become spiritually whole with God35 and to follow a life guided by deep
prayer and moral regeneration in the spirit of the Bible.36
Mainstream society has little familiarity with the foundations of the
Christian Science faith and often simply recognizes the Churchs avoidance
27. See id.

28. Merrick, supra note 22, at 271.
29. Id.
30. See Shelli Dawn Robinson, Commonwealth v. Twitchell: Who Owns the Child?, 7 J.
CONTEMP. HEALTH L. & POLY 413, 417-18 (1991). Eddy made a conscious decision to
concentrate on prayer rather than conventional medicine to effectuate her own healing. Id.
at 417.
31. See Merrick, supra note 22, at 271 (She believed the healing was the result of
reading the New Testament, and she came to believe that spiritual healing was a natural part
of Christian life.).
32. Robinson, supra note 30, at 417-18.
33. Id. at 418.
34. See Vaillant, supra note 11, at 481.
35. Merrick, supra note 22, at 271; see Hartsell, supra note 13, at 507 ([A] tenet of the
church is that life ultimately rests in Gods hands.).
of traditional medicine.37 A common misconception is that practitioners

view the use of conventional medicine as a sin.38 In reality medicine is
discouraged simply because it perpetuates the error in thinking and delays
the sick from discovering the truth of their faith.39 The Church looks to the
healings in the Bible that were performed solely through faith, without the
use of any medicine, and strives to live according to those teachings.40
Medical treatment is not expressly prohibited by the Christian Science
Church; rather, the choice of using spiritual healing over traditional care is
a personal decision made by those practitioners who decide to live in
accord with a holistic model presented by Jesus in the Bible.41 Mary Baker
Eddy clearly recognized biblical implications in stating that [Jesus] proved
by his deeds that Christian Science destroys sickness, sin, and death.42
2. What Is Spiritual Healing?

Spiritual healing is the primary means of treatment during extreme
illness, but much of the Christian Science approach to health occurs
through a day-to-day connection with faith.43 As with many religions,
finding ones place in the Christian Science faith requires prayer, studying,
and looking inward to personally connect with God.44 Adherents of the
Church recognize this requires devotion to faith on a daily basis, not just in
37. Nathan A. Talbot, Government Should Not Interfere with Personal Beliefs, in
RELIGION IN AMERICA: OPPOSING VIEWPOINTS 140 (Greenhaven Press, Inc., 1989), reprinted
in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note
3, at 7, 7 [hereinafter Talbot, Government Should Not Interfere].
38. See Atlanta Centers, supra note 10, reprinted in FREEDOM AND RESPONSIBILITY:
CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 4 (Christian Scientists are
free to choose whatever form of treatment they wish for themselves and their families.
While they normally rely on spiritual healing . . . they are under no church compulsion to do
so. An individual choosing medical treatment is not abandoned by his church.).
39. Vaillant, supra note 11, at 481.
40. See id.
41. See Talbot, Government Should Not Interfere, supra note 37, reprinted in FREEDOM
AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 9 (stating
that people practice faith healing because they have had positive experiences with it, not
because they were pressured by anyone to do so).
42. MARY BAKER EDDY, SCIENCE AND HEALTH WITH KEY TO THE SCRIPTURES 26 (The
First Church of Christ, Sci., 1971) (1875).
43. See Talbot, Government Should Not Interfere, supra note 37, reprinted in FREEDOM
AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 8-9
(Reliance on disciplined prayer is a way of life deeply rooted in reason and love.).
44. See David Brooks Andrews, Breaking Stereotypes About Healing, reprinted in
FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3,
at 12, 13.
times of crisis.45 Christian Scientists view their connection with God and
faith as a necessary means to establishing a sense of well-being and
wholeness.46
In extreme situations an adherent will retain the services of Christian
Science practitioners who are professional prayers and who charge fees
for their services.47 Members of the Church are quick to point out that
characterizations of this spiritual practice are often misguided and
inappropriately portrayed as striving for a miracle.48 Instead, the
practitioner steps in to help guide the sick individual and those around him
to understand God and to feel His presence more closely to become
spiritually sound.49 Practitioners function in much the same way as
traditional doctors, as they must comply with certain guidelines and are
educated in the specifics of the field.50 The practitioners objective is
carried out when those involved begin to experience a heartfelt yielding to
Gods presence and power.51
45. Talbot, Government Should Not Interfere, supra note 37, reprinted in FREEDOM AND
RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 9.
46. See Nathan A. Talbot, The Position of the Christian Science Church, 309 NEW ENG.
J. MED. 1641-44 (1983), as reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE
HEALING FOR CHILDREN, supra note 3, at 18, 19 [hereinafter Talbot, Position of the Church].
Moreover, Christian Scientists believe that human beings are vastly more than biochemical
mechanisms, that because they have a direct relationship to God who is Spirit, their true
naturelife and health includedmust ultimately be found in a day-by-day spiritual
discovery of this relationship. Id.
48. Andrews, supra note 44, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 15 (The work of the practitioner is not to
petition God to intervene to set aright a tragic human life, an ill body, or a decaying physical
universe.); Talbot, Government Should Not Interfere, supra note 37, reprinted in FREEDOM
AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 9.
49. Andrews, supra note 44, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 14.
50. Jennifer Stanfield, Note, Faith Healing and Religious Treatment Exemptions to
Child-Endangerment Laws: Should Parents Be Allowed to Refuse Necessary Medical
Treatment for Their Children Based on Their Religious Beliefs?, 22 HAMLINE J. PUB. L. &
POLY 45, 49 (2000). The churchs central authority must approve all practitioners. The
approval process requires practitioners to attend classes on the religion and to submit to the
administrative body any proof of healing performed by the practitioner. Id.
3. Recognition of the Christian Science Church in

Mainstream Society
The Christian Science Church occupies a peculiar place in society as
it is legitimized through government programs and insurance policies,52 yet
called into question by the legal community and society at large.53 A
primary element of the religion involves spiritual treatment,54 which is
performed by a hired healer who administers various spiritual healing
services.55 These services are tax-deductible,56 recognized as a form of
authorized treatment under the federal employee health insurance plan,57
and reimbursed by private health insurance policies.58 As such, [m]any
state Medicaid programs and most large insurers reimburse Christian
Science practitioners as they do doctors.59 Christian Scientists may file a
claim with their federal or private insurance company in order to defray the
costs incurred by enlisting a spiritual healer for illness.60 Numerous laws
have been adopted that provide rules and regulations regarding Christian
Science, which are an implicit acknowledgement of its legitimacy.61
Most of the major health insurance companies in this country include
coverage of Christian Science care and treatment under their individual and
52. Robinson, supra note 30, at 419.

54. See supra Part I.A.2.
55. See Andrews, supra note 44, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 14-15.
56. Brief of Amicus Curiae on Behalf of the First Church of Christ, Scientist, in Support
of Petitioner, Walker v. Superior Court, 763 P.2d 852 (Cal. 1988), reprinted in FREEDOM
AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 60, 62
[hereinafter Brief] (explaining how the IRS recognizes expenses from Christian Science
nurses and practitioners as legitimate deductions on tax returns); Rita Swan, On Statutes
Depriving a Class of Children of Rights to Medical Care: Can This Discrimination Be
Litigated?, 2 QUINNIPIAC HEALTH L.J. 73, 85 n.67 (1998) (The Internal Revenue Service
allows bills for prayers by Christian Science practitioners to be deducted as medical
expenses from income tax.).
57. Brief, supra note 56, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
59. Id. at 419 n.40 (quoting Parents Faith, Childrens Lives, WASH. POST, July 7, 1990,
at A22).
60. Id. at 419.
61. See Brief, supra note 56, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 61-62 (discussing income tax deductions
for spiritual healing costs, recognition of practitioners certifying illness for disability and
workmans compensation programs, and incorporation of spiritual healing in many states
medical practices acts).
group health insurance policies.62 These policies are consistent with the
viewpoint of the Church that health is considered both a personal and
community endeavor.63 Most companies do not distinguish between
Christian Science practices and mainstream healthcare professionals and
facilities.64 Additionally, the federal government has authorized Christian
Science treatment through its Aetna Life Insurance Company for civil
service employees, including Christian Science treatment facilities, faith-
based nurses, and reimbursement of fees from practitioners.65
4. Christian Science Publications in Massachusetts

The Mother Church for the Christian Science faith was established in
Boston, Massachusetts, and a high population of believers continues to
mark the city and state.66 Although national numbers of churches and
practitioners have declined during the past few decades, Massachusetts has
continued to have a high population of Christian Scientists for a state of its
size.67 Christian Scientists make themselves visible in a number of ways in
Massachusetts, often with a political focus.68 Currently, the Christian
Science Church continually prints five primary publications. The most
famous of these publications is the Christian Science Monitor.69 This
ability to voice their opinions through the written word is an invaluable tool
in terms of political activism.70 All versions of this publication are printed
in Massachusetts, which is a reflection of the centralized power and high
62. Id. at 63.

63. See id. at 63 (explaining that insurance companies include Christian Science care in
both individual and group polices).
64. Robinson, supra note 30, at 419 n.40 (describing how Medicaid programs and
insurance companies make payments to Christian Science practitioners as if they were
doctors and hospitals).
65. Brief, supra note 56, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
66. See Directory, supra note 15. There are over 100 branch societies and branch
churches in Massachusetts, including six major ones that are located in Boston. Id.
67. Stephen Barrett, Christian Science Statistics: Practitioners, Teachers, and Churches
in the United States, QUACKWATCH, Nov. 11, 2005, http://www.quackwatch.org/
01Quackery Related Topics/cs.html (last visited Dec. 28, 2007).
68. See infra Part V.B (discussing the established lobbyist power of the Christian
Science Church on both the state and federal levels).
69. Contacts, THE FIRST CHURCH OF CHRIST, SCIENTIST, 2006, http://www. tfccs.com/
Contact_information.jhtml (last visited Dec. 28, 2007). Christian Scientists publish The
Christian Science Journal, Christian Science Sentinel, The Herald of Christian Science, and
Christian Science Quarterly, in addition to the most notable Christian Science Monitor. Id.
70. See infra Part V.B.
population of Christian Scientists within the state.71

The Christian Science Monitor was founded in 1908 by Mary Baker
Eddy and is generally secular in the nature of its reporting.72 Its readership
extends beyond members of the Church since its motive is not to
propagate denominational doctrine; it provides news purely as a public
service.73 While primarily secular in its content, it continues to publish
one religious article per day as part of a long-standing requirement
established by Mary Baker Eddy.74 Religion is undeniably implicit in the
newspaper, as evidenced by Eddys rationale that through our paper we
shall be able to reach many homes with healing, purifying thought.75
Despite the later focus on politics and social issues, the underlying
religious mission of its founder has remained central to the newspaper.76
B. Spiritual Healing in Practice
1. Spiritual Healing Is a Proactive Alternative to Traditional

Medical Care.
When assessing the credibility of the Christian Science faith
regarding juveniles, it is necessary to understand that these parents make
decisions that they feel best serve their children.77 For Christian Science
parents, withholding medical care or relying on spiritual treatment is the
safest and best choice for the child; it is the choice least likely to cause the
child harm.78 Christian Scientists approach causation and illness from a
holistic viewpoint, and believe that spiritual healing is the most effective
means for achieving the mind-body connection required to overcome
illness.79 Christian Scientists view the process of prayer and faith as a
71. See About the Monitor, THE CHRISTIAN SCIENCE MONITOR, http://www.csmonitor.
com/aboutus/about_the_monitor.html [hereinafter About the Monitor] (last visited Dec. 28,
2007).
72. Id.
73. Id.
74. Id. (Everything in the Monitor is international and US news and features, except for
one religious article that has appeared each day in The Home Forum section since 1908, at
the request of the papers founder, Mary Baker Eddy.).
75. Id.
76. See id.
77. See Lederman, supra note 1, at 893.
78. Id.
79. Talbot, Position of the Church, supra note 46, as reprinted in FREEDOM AND
RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 19 ([A]
Christian Scientist regards all forms of disease as symptomatic of an underlying condition
that needs to be healed. This is the healing, or spiritual wholeness, that he or she seeks to
proactive approach to maintaining health.80 To a Christian Science parent,

spiritual healing involves taking active responsibility for their childrens
well-being.81 Christian Science parents do not believe that doctors are
capable of providing the same relief as spiritual healing.82 Moreover,
Christian Science parents argue that they should be able to make important
decisions regarding their childs health and faith.83
Much of the criticism of spiritual healing surfaces because the
dominant culture reveres medical science84 and views it as the only
reasonable option for treatment.85 In advancing this argument, such critics
focus exclusively on tragedies involving Christian Science children,86 but
do not recognize the effective and uniquely personalized nature that marks
true spiritual healing.87 In doing so, they fail to realize that because
genuine spiritual healing usually includes a quiet change of heart or
understanding, one isnt as likely to hear about [it] on the evening news.88
Those who practice spiritual healing seek to define care or
responsible care simply as a consistent form of treatment which regularly
and effectively meets the needs and maintains the well-being of [its]
recipients.89 Opponents of spiritual healing do not accept this definition
and argue that Christian Science parents allow their children to become
martyrs for their religion.90 Adherents to the Church, however, feel that
effect through prayer.).

80. Phinney, supra note 23, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 22 (Christian Science treatment is
expected to bring change for the better to an individuals state of thought for the purpose of
healing. It has a strong, definite effect on the person.).
81. Talbot, Let Parents, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE
HEALING FOR CHILDREN, supra note 3, at 79, 80.
82. Vaillant, supra note 11, at 501 (They honestly did not feel that doctors would be
able to help their child as well as prayer. It would be like asking a non-Scientist to rely on
faith-healing, even though you thought medicine would work better. These were loving
parents. These were caring parents.).
HEALING FOR CHILDREN, supra note 3, at 79, 80.
86. See Talbot, Let Parents, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN
SCIENCE HEALING FOR CHILDREN, supra note 3, at 79, 80.
87. See Robinson, supra note 30, at 431.
89. Id. at 7-8.
90. Vaillant, supra note 11, at 482.
they are acting out of love and parental concern for the childs best
interest.91 Like all good parents, Christian Scientists make their decisions
based upon serious thought about the needs of their children.92 There is an
innate level of uncertainty in most courses of treatment; therefore, it is not
prudent for an authoritative state to expressly single out spiritual healing as
inherently dangerous.93 There are no guarantees in choosing either
conventional medicine or spiritual healing when it comes to a childs
health.94 Parents who take the traditional route of providing conventional
medical care for their children do not normally face prosecution when
something goes wrong.95 The same does not hold true for Christian
Scientists who choose spiritual healing.96
2. Spiritual Healing Is a Parental Choice that Has Proven

Effective.
Various scientific studies point to high death rates among Christian
Science adherents.97 Members of the Church, however, do not widely
participate in empirical studies, making it nearly impossible to compare the
relative effectiveness of spiritual healing and conventional medicine.98
Deaths of Christian Science children appear more frequently in the news,99
while nobody in the media . . . is really taking into account that these
healings have been happening over many years.100 Instead, a public
91. Lederman, supra note 1, at 922-23.

92. Timothy A. MacDonald, Choosing Spiritual Healing over Medicine, BOSTON
GLOBE, June 5, 1988, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE
HEALING FOR CHILDREN, supra note 3, at 35-36.
94. See id.
96. See id. (Christian Scientists are quick to point out that while Christian Science
healing methods sometimes fail, the healing methods of medical doctors do as well, and
parents of children who die in hospitals are not prosecuted.).
97. See Seth M. Asser & Rita Swan, Child Fatalities from Religion-Motivated Medical
Neglect, 101 PEDIATRICS 625, 626-29 (1998).
98. Merrick, supra note 22, at 273 (From the medical scientists perspective, the
effectiveness of a treatment is measured by empirically based morbidity and mortality
studies. The effectiveness of Christian Science and faith healing methods cannot be
compared to medical therapies because members of these churches do not participate in
scientific studies.).
99. Robinson, supra note 30, at 418-19.
100. Lois OBrien, Prayers Not a Gamble, U.S. NEWS & WORLD REPORT, Apr. 28, 1986,
reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN,
supra note 3, at 30, 30. According to OBrien, society does not want its secular
assumptions questioned by seriously considering the evidence of Christian healing. Id.
backlash is created by the universal focus on failures.101

The Christian Science religion is by no means a new development.102
Its continued expansion grows out of the experience of those who have
seen their children healed again and again through Christian prayer . . . .
[The] church could not have lasted for so long as a worldwide
denomination if its overall record were not very good indeed.103 A choice
to pursue a course of spiritual healing is not a trivial decision, but instead
the result of both firsthand experience and exposure to success stories of
individuals in similar situations.104 Though anecdotal in nature, these
documented stories of spiritual treatment are the only viable means for
depicting successes given the lack of empirical studies on the issue.105
C. Recklessness, Negligence, and Criminal Prosecutions
1. Manslaughter Statutes
Absent an exemption statute, parents are charged with manslaughter if
they practice spiritual healing in lieu of traditional treatment and their child
dies.106 In many jurisdictions, including Massachusetts, manslaughter is not
defined by statute, so courts have developed a meaning for the term
through the evolution of common law.107 Massachusetts courts have
defined manslaughter as an unlawful homicide, unintentionally caused . . .
by an act which constitutes such a disregard of probable harmful
consequences to another as to constitute wanton or reckless conduct.108
Courts deciding spiritual healing cases often characterize the practice as
wanton recklessness.109
Manslaughter provisions attempt to protect citizens by criminalizing
conduct that creates an unreasonable risk or causes death.110 A leading
101. See id.

102. See supra Part I.A.1 (describing the origins of the Christian Science Church in the
nineteenth century).
103. J. Thomas Black, Christian Science Convictions, DETROIT FREE PRESS, Nov. 9,
1983, reprinted in FREEDOM AND RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR
CHILDREN, supra note 3, at 27, 28.
104. See MacDonald, supra note 92, reprinted in FREEDOM AND RESPONSIBILITY:
CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 36.
105. See Merrick, supra note 22, at 273.
107. See Commonwealth v. Godin, 371 N.E.2d 438, 442 (Mass. 1977).
108. Commonwealth v. Campbell, 226 N.E.2d 211, 218 (Mass. 1967).
109. See, e.g., Walker v. Superior Court, 763 P.2d 852, 868-69 (Cal. 1988);
Commonwealth v. Twitchell, 617 N.E.2d 609, 617 (Mass. 1993).
110. Merrick, supra note 22, at 288-89. ([T]he manslaughter and homicide statutes are
Massachusetts case in the discourse on manslaughter, Commonwealth v.

Welanksy,111 held wanton or reckless conduct is intentional conduct, by
way either of commission or of omission where there is a duty to act, which
conduct involves a high degree of likelihood that substantial harm will
result to another.112 It is generally through this omission framework that
Christian Science parents are ultimately charged with manslaughter.113
Spiritual healing is viewed by the court as involving a high likelihood of
causing harm, and thus would be an omission where there is an underlying
duty to act.114
2. Affirmative Duty as a Debated Issue

The legal elements of negligence in tort law and criminal law overlap
in many respects, as discussions of special duty relationships resonate in
both disciplines.115 While Christian Scientists view spiritual treatment as a
proactive approach to health and well-being,116 many legal commentators
feel differently.117 Courts generally impose criminal penalties or civil
liability upon Christian Scientists when a child dies and the parents elected
spiritual healing over conventional medical care.118 Aspects of duty are
generally a function of the common law, and they impose an obligation in
certain relationships where inaction leads to a finding of negligence or
criminal conduct.119 This is consistent with the omission principles
designed to protect citizens by allowing prosecution of persons who cause the death of
another person by exposing that person to unreasonable risk or by intentionally causing their
death.).
111. 55 N.E.2d 902 (Mass. 1944).
112. Id. at 910.
113. See supra note 108 and accompanying text.
114. See Welansky, 55 N.E.2d at 910.
115. See Vincent R. Johnson & Claire G. Hargrove, The Tort Duty of Parents to Protect
Minor Children, 51 VILL. L. REV. 311, 313-14 (2006) (comparing the concept of duty in tort
law with how it is treated in criminal law).
116. See supra Part I.B.2 (describing how Christian Science parents feel that pursuing a
course of spiritual treatment is an affirmative attempt to care for their children).
117. Hughes, supra note 14, at 265; see Merrick, supra note 22, at 298.
119. State v. Williquette, 385 N.W.2d 145, 151 (Wis. 1986). Common law, specifically:
[I]mposes affirmative duties upon persons standing in certain personal
relationships to other personsupon parents to aid their small children .
. . . Thus a parent may be guilty of criminal homicide for failure to call a
doctor for his sick child . . . . Action may be required to thwart the
threatened perils of nature (e.g., to combat sickness, to ward off
starvation or the elements) . . . .
Id. (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW
articulated in Welansky.120
In ruling on manslaughter cases involving Christian Science parents,
courts have defined what is meant by duty when declaring these parents
reckless or wanton.121 Parents are deemed to share a special relationship
with their child, which carries with it a requirement to act.122 However,
manslaughter statutes and common law principles are generally retroactive,
and do not impose a duty or criminalize conduct until a child dies.123
Spiritual exemption laws usually prevent a parent from being charged with
criminal neglect, but such limited exemptions do not protect a Christian
Science parent from criminal liability under an involuntary manslaughter
statutory framework.124
Generally, choosing spiritual healing over traditional medicine does
not fulfill the duty required in the parent-child relationship and can be
grounds for manslaughter charges.125 When ruling on such cases, courts
have looked to a common law duty to provide medical services for a child,
the breach of which can be the basis . . . for the conviction of a parent for
involuntary manslaughter.126 In making these decisions, courts do not
view spiritual healing as an alternative to traditional medicine for the
purposes of the duty definition.127 Instead, the judiciary has reasoned that
spiritual healing is an acceptable means of attending to the needs of a
child only insofar as serious physical harm or illness is not at risk.128 After
the child dies, religious treatment no longer fulfills the duty to provide
care.129
3. Spiritual Healing Exemptions

State legislatures have carved out immunity exceptions for the
practice of spiritual healing through child neglect provisions, mandatory
183-84 (1972)).
120. Commonwealth v. Welansky, 55 N.E.2d 902, 910 (Mass. 1944).
121. See, e.g., Commonwealth v. Twitchell, 617 N.E.2d 609, 612 (Mass. 1993).
122. See Johnson & Hargrove, supra note 115, at 322.
123. Merrick, supra note 22, at 288-89.
124. See infra Part I.C.3 (describing the types of conduct generally protected by spiritual
healing exemptions).
125. See, e.g., Twitchell, 617 N.E.2d at 612 (rejecting the use of a spiritual healing
exemption where parents did not seek medical attention and child died).
126. Id. at 613-14.
127. Donna K. LeClair, Faith-Healing and Religious-Treatment Exemptions to Child-
Endangerment Laws: Should Parental Religious Practices Excuse the Failure to Provide
Necessary Medical Care to Children?, 13 U. DAYTON L. REV. 79, 93 (1987).
128. Lederman, supra note 1, at 899-900.
129. See LeClair, supra note 127, at 93.
abuse reporting schemes, and statutes designating children as a special

class.130 These exemptions are often the result of extensive lobbying
campaigns and debates by politically active Christian Scientists.131 Many of
these measures are implicit recognitions in agency rules and regulations at
the state or federal level,132 while others are more specific and provide
exemptions from metabolic testing of newborns, . . . mandatory
prophylactic eye drops[,] physical exams for school children[,] and
studying about disease.133 Many of these exemptions are new to the legal
landscape and are not representative of the common law.134
While these types of statutes differ somewhat from state to state, the
general message is that the treatment of any child by a Christian Science
practitioner in lieu of treatment by a licensed practitioner of the healing arts
shall not of itself constitute maltreatment.135 However, this type of
exemption can be somewhat misleading, because it generally refers only to
negligence,136 and does not come into play in relevant statutes concerning
either homicide or murder.137 Problems arise in the interpretation of such
statutes and provisions when courts prohibit their use when Christian
Science parents raise such exemptions as an affirmative defense to
manslaughter.138
Issues of legality and notice often arise, but courts generally have held
that abuse and neglect statutes are manifestly different from those
concerning manslaughter.139 More specifically, one court held that prayer-
130. Hartsell, supra note 13, at 509. According to Hartsell, these exemptions are an
attempt by legislatures to provide general overt protection of religious parents . . . within
the framework of societys broad respect for the private realm of family life. Id.
131. See Swan, supra note 56, at 75. There is a Christian Science lobbyist group
established in each of the fifty states. Id.
132. See Merrick, supra note 22, at 277.
133. Id.
135. CONN. GEN. STAT. 17a-104 (2006); see MASS. GEN. LAWS ANN. ch. 273, 1 (West
1992) (A child shall not be neglected or lack proper physical care for the sole reason that
he is being provided remedial treatment by spiritual means alone in accordance with the
tenets and practice of a recognized church or religious denomination by a duly accredited
practitioner thereof.).
136. See 17a-104 (stating explicitly that the spiritual healing exemption is only [f]or
the purposes of sections 17a-101 to 17a-103, which are the sections of the code dealing
specifically with child abuse and neglect).
137. Merrick, supra note 22, at 288 ([T]he statutes containing the exemptions and the
manslaughter and homicide statutes usually do not refer to each other.).
138. See, e.g., LeClair, supra note 127, at 93.
139. See, e.g., Walker v. Superior Court, 763 P.2d 852, 860 (Cal. 1988); Merrick, supra
note 22, at 290.
based healing is not permitted as a defense when a caretaker engages in

omissive conduct which results in the childs death.140 While some critics
are willing to extend protection in terms of neglect charges, there is
widespread opposition to the idea of a blanket exemption which would
provide immunity in instances of death.141
II. SPIRITUAL HEALING EXEMPTION TRENDS BEGAN WITH A FEDERAL

MANDATE
States originally incorporated spiritual healing exemptions in their
child-protection laws after Congress passed the Child Abuse Prevention
and Treatment Act of 1974 (CAPTA).142 The goals of CAPTA were to
establish a program for the prevention, identification, and treatment of
child abuse and neglect [and] to establish a National Center on Child Abuse
and Neglect.143 Legislators felt there was a need for the statute because
many incidents of child abuse were going unreported, and an enforcement
mechanism would be essential to create national guidelines.144 The
National Center on Child Abuse and Neglect (NCCAN) was created to
identify major problem areas, collect information to develop programs, and
to allocate grant money to states.145 There was also a requirement that states
comply with the federal definitions of abuse and neglect in order to receive
federal funds to help combat child abuse within the state.146 For the
purposes of CAPTA compliance, child abuse was defined in broad terms,
and failure to provide medical care was not included.147 While it is unclear
140. Hall v. State, 493 N.E.2d 433, 435 (Ind. 1986).

141. Garnett, supra note 26, at 115-16.
Some take the position that exemptions reflect attempts to balance free-
exercise values and the States interest in protecting children, that it is
appropriate to balance these interests, and that while blanket exemptions
might reflect excessive deference to the religious beliefs of parents,
some limitation on exposure to criminal liability is probably appropriate.
Id.
142. 45 C.F.R. 1340 (1975); see LeClair, supra note 127, at 96.
143. H.R. REP. NO. 93-685 (1973), reprinted in 1974 U.S.C.C.A.N. 2763, 2763.
144. Id.
145. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MAJOR FEDERAL LEGISLATION
CONCERNED WITH CHILD PROTECTION, CHILD WELFARE, AND ADOPTION 4 (2003), available
at http://www.childwelfare.gov/pubs/otherpubs/fedlegis.pdf; Hughes, supra note 14, at 248.
146. 45 C.F.R. 1340.3-5 (1975).
147. Id. 1340.1-1340.2(b)(1) (1975). The regulation specifically stated:
(b) Child abuse and neglect means harm or threatened harm to a
childs health or welfare by a person responsible for the childs health or
welfare.
how many Christian Scientists testified before Congress to encourage the

regulation, their presence was well known as lobbyists in state government,
and their impact was at least implicit at the federal level.148
Regulations of CAPTA were amended pursuant to a rule promulgated
by the Department of Health and Human Services (HHS) in 1983.149 This
HHS rule altered the definition of child abuse and neglect to include failure
to provide medical care harmful to a childs health or welfare.150 In keeping
with administrative policy, HHS published a Notice of Proposed
Rulemaking (NPRM) on May 27, 1980.151 The Department received
comments from twenty-four individuals, agencies, and organizations in
response to the NPRM.152 Among other proposed changes, there was a
clear effort to expand the definition of negligence and maltreatment to
include required medical care.153
The NRPM also contained a note regarding the religious exemption
from CAPTA.154 There was a proposal in the NRPM that would remove the
CAPTA exemption.155 The 1983 rule did not contain an exemption
requirement as a prerequisite to receive federal grant money, as had been
the case under the originally codified CAPTA provisions.156 In reference to
a religious exemption, the HHS 1983 rule said that such a provision was
not prohibited or required in a state law framework.157 This seems to
(1) Harm or threatened harm to a childs health or welfare can occur

through: Non-accidental physical or mental injury; sexual abuse, as
defined by State law; or negligent treatment or maltreatment, including
the failure to provide adequate food, clothing, or shelter.
Id.
149. Child Abuse and Neglect Prevention and Treatment Program, 48 Fed. Reg. 3698
(Jan. 26, 1983) (codified as amended at 45 C.F.R. 1340 (1983)).
150. Compare 45 C.F.R. 1340.2(d)(3)(i) (1983) (Negligent treatment or
maltreatment includes failure to provide adequate food, clothing, shelter, or medical
care.), with 45 C.F.R. 1340.1-1340.2(b)(1) (1975) (mentioning only food, clothing, and
shelter).
151. Child Abuse and Neglect Prevention and Treatment Program, 48 Fed. Reg. at 3698.
152. Id. at 3698.
153. Id. at 3699.
154. Id.
155. Id. at 3698.
156. Id. at 3700. (Thus, States are free to recognize or not recognize a religious
exception without that choice having any effect on the eligibility for a State child abuse
grant.).
157. Compare 45 C.F.R. 1340.2(d)(3)(ii) (1983) (Nothing in this part [defining child
abuse and neglect] should be construed as requiring or prohibiting a finding of negligent
treatment or maltreatment when a parent practicing his or her religious beliefs does not, for
indicate a low point for Christian Science lobbying groups, which was
reflected by their failure to greatly impact or change the final rule during
the comment and note period.158
Despite the altered language regarding protection between CAPTA
and the 1983 rule, states continued to support spiritual healing
legislatively.159 There was, however, some confusion over the implications
of the 1983 rule in terms of its limitations on CAPTA.160 In an attempt to
clarify, the Department of Health and Human Services issued a rule in
1987.161 The statement in 1987 made clear that it was up to the states to
decide whether spiritual healing constitutes a crime in relation to children
and their well-being.162
Following the original CAPTA requirement and the subsequent
interpretations through HHS rules, thirty-nine states have enacted statutory
exemptions.163 This is perceived as a direct result of CAPTAs initial
financial implications, through which the U.S. Department of Health,
Education, and Welfare required states to enact [exemptions] as a condition
for receiving federal grants.164 Much of the lawmaking that went on at the
state level happened in the same general time frame that CAPTA was
enacted.165 Presently, only five states do not have any legislative provision
that reason alone, provide medical treatment for a child.), with 45 C.F.R. 1340.1-2 (1975)
(stating that practice of religious beliefs in lieu of medical treatment shall not be grounds for
a finding of neglect).
158. Child Abuse and Neglect Prevention and Treatment Program, 48 Fed. Reg. at 3699-
700 (providing a statement that was offered by parties who made note of the Christian
Science Church that was ultimately rejected by the HHS).
159. John T. Gathings, Jr., When Rights Clash: The Conflict Between a Parents Right to
Free Exercise of Religion Versus His Childs Right to Life, 19 CUMB. L. REV. 585, 592
(1989).
160. See id. [O]ne commentator points out a flaw in current federal child-protection
legislation: the regulations require that children receive medical treatment; yet, they allow
the states to retain statutes which excuse a failure to provide medical treatment when the
parent acts in accordance with his religious beliefs. Id.
161. See Child Abuse and Neglect Prevention and Treatment Program, 52 Fed. Reg. 3990
(Feb. 6, 1987) (codified as amended at 45 C.F.R. 1340 (1987)). The regulatory
philosophy of this Administration has been to provide maximum State and local flexibility.
The deletion of this provision in 1983 reflected our approach to regulatingnot a policy
shift regarding State protections for parents who practice their religious beliefs. Id. at 3993.
162. Id. at 3993.
163. Hughes, supra note 14, at 248.
164. Id.
165. Merrick, supra note 22, at 278. Although the evidence is not completely clear
regarding the role of the Christian Science church in the adoption of the original
[Department of Health, Education, and Welfare] rules, their lobbying activities for the
adoption of spiritual exemption statutes at the state level is well documented. Id.
providing immunity to Christian Science parents.166

In the years following the 1983 HHS rule removing the funding
eligibility requirement, the topic of spiritual healing has become
particularly contentious in the courts.167 This is a reflection of the open-
ended nature of the 1987 statement by HHS that left the decision up to
states to determine whether spiritual healing will be considered neglect.168
Consequently, states could follow the path of Massachusetts169 because in
that state there is no longer an implicit federal mandate to create a spiritual-
healing provision.170 Massachusetts repealed its statute subsequent to the
death of a child, and other states could potentially follow suit if similar
deaths were to occur in their jurisdictions.171
III. CHRISTIAN SCIENTISTS GENERALLY HAVE BEEN UNSUCCESSFUL IN

DEFENDING SPIRITUAL HEALING IN COURTS
Conviction is often a foregone conclusion when a Christian Science
parent is charged with manslaughter for the death of his or her child and the
case advances to trial.172 The results have little variation, regardless of the
arguments advanced by the defendants.173 Statutory construction defenses
are frequently cited, as parents argue that they were not properly notified of
the potential for prosecution.174 This is often coupled with a legislative-
intent analysis in which defendants argue that manslaughter statutes and
child-neglect provisions should be read together in pari materia.175 Despite
some liberty in child-rearing decisions,176 spiritual healing has been
considered outside the realm of acceptable religious cultivation in ones
166. See supra note 14 and accompanying text.

167. See infra Part III.
168. Child Abuse and Neglect Prevention and Treatment, 52 Fed. Reg. 3989, 3990-94
(Feb. 6, 1987) (codified as amended at 45 C.F.R. 1340 (1987)).
170. 45 C.F.R. 1340.2(d)(2)(ii) (1983) (declaring that states are neither prohibited nor
required to establish a spiritual healing exemption in their child abuse and neglect statutes).
172. See infra Part III.A-C.
173. See infra Part III.A-C.
174. Hartsell, supra note 13, at 519; infra Part III.B.
175. See ROGER J.R. LEVESQUE, CHILD MALTREATMENT LAW: FOUNDATIONS IN SCIENCE,
PRACTICE, AND POLICY 118-19 (2002). It is a canon of construction that statutes that are in
pari materia may be construed together, so that inconsistencies in one statute may be
resolved by looking at another statute on the same subject. BLACKS LAW DICTIONARY 807
(8th ed. 2004).
176. See Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
children.177 It is through this framework that free exercise and parental-

rights arguments are rejected.178
A. Statutory Exemption Argument

Christian Science parents have argued that the spiritual-healing
exemption in neglect statutes should imply an identical provision under
common-law manslaughter.179 According to this defense, defendants read
the manslaughter statues and child-abuse statutes to have the same
exemptions.180 Under a plain-meaning approach, it has been held that such
a reading of the statutes shows that an act which does not qualify as child
abuse may still be done in a manner which causes death and thus qualifies
as involuntary manslaughter.181
When the plain-meaning method fails, in pari materia is an
alternative method of interpretation.182 Under this method of statutory
analysis, statutes are deemed to be in pari materia when they relate to the
same person or thing, to the same class of person or things, or have the
same purpose or object.183 However, the manifest differences between
homicide statutes and child abuse provisions generally lead courts to
disregard this argument.184 The Massachusetts Supreme Judicial Court has
specifically rejected this idea of conflating statutory principles and has held
that common-law-involuntary-manslaughter definitions and the spiritual
healing exemption serve different purposes.185 A court will only apply the
177. Prince v. Massachusetts, 321 U.S. 158, 170 (1944); State v. Miskimens, 490 N.E.2d
931, 935 (Ohio Ct. Com. Pl. 1984); see also infra Part III.C.
178. See infra Part III.C.
179. See, e.g., Walker v. Superior Court, 763 P.2d 852, 856 (Cal. 1988); State v.
McKown, 461 N.W.2d 720, 722 (Minn. Ct. App. 1990).
180. Walker, 763 P.2d at 856. Applying the exemption under the child-abuse-and-neglect
statute, Ms. Walker moved to dismiss the [manslaughter] prosecution . . . on the grounds
that . . . her conduct was specifically protected by law. Id.
181. Commonwealth v. Nixon, 718 A.2d 311, 314 (Pa. Super. Ct. 1998).
182. See BLACKS LAW DICTIONARY 807 (8th ed. 2004); see also Bd. of Educ. v. Assessor
of Worcester, 333 N.E.2d 450, 452 (Mass. 1975) (Additionally, where two or more statutes
relate to the same subject matter, they should be construed together so as to constitute a
harmonious whole consistent with the legislative purpose.).
183. BLACKS LAW DICTIONARY 807 (8th ed. 2004).
184. See McKown, 461 N.W.2d at 723 ([P]articularly in light of ambiguous legislative
history . . . it is not natural and reasonable to presume the legislature believed the
manslaughter statute would be influenced by enactment of the child neglect statute. We
therefore do not find the two statutes to be in pari materia.); see also supra Parts I.C.1,
I.C.3.
185. See Commonwealth v. Twitchell, 617 N.E.2d 609, 614-15 (Mass. 1993) (describing
how the common law definition of involuntary manslaughter is concerned exclusively with
principle of in pari materia if it determines that the legislators intended the

principles to be construed together.186 In terms of spiritual exemptions,
courts tend to rule that the legislative intent behind child-neglect provisions
is different from the intent for manslaughter as defined by courts through
common law.187
B. Lack-of-Fair-Notice Argument
Christian Science parents frequently argue that fair notice of
consequences was not provided to the public and that they should not be
prosecuted under a manslaughter statute when a neglect provision would
seemingly protect them.188 This argument is based on a conception of the
vagueness doctrine, in which parents rely on religious exemptions for
neglect and do not understand that the laws in their jurisdiction would not
support spiritual healing in a manslaughter case.189 It is through this
framework that parents unfairly prosecuted for reliance on ambiguous
statutes argue that the rule of lenity should apply.190 The rule of lenity
provides protection against unfair prosecution and ensures that criminal
statutes will provide fair warning concerning conduct rendered illegal
[while] strik[ing] the appropriate balance between the legislature, the
prosecutor, and the court in defining criminal liability.191
Additionally, other authorities, such as the Opinions issued by the
state Attorney General, can create confusion for Christian Science parents
in determining their legal rights.192 Courts may also look to legislative
history to clarify legislative intent when various secondary authorities
wanton and reckless killing, while the statute containing the spiritual-healing exemption
looks to proper care of a child).
186. Vaillant, supra note 11, at 496. When deciding if a neglect statute involving spiritual
exemption should be construed with a manslaughter charge, the court will generally
consider whether the statutes refer to one another, whether the purposes of each are similar,
and if the statutes were both passed during the same year . . . these criteria are rarely met, if
ever. Id.
187. See, e.g., Walker v. Superior Court, 763 P.2d 852, 856-60 (Cal. 1988); Lybarger v.
People, 807 P.2d 570, 576-79 (Colo. 1991); Twitchell, 617 N.E.2d at 618 n.15.
188. Hartsell, supra note 13, at 519.
189. Eric W. Treene, Prayer-Treatment Exemptions to Child Abuse and Neglect Statutes,
Manslaughter Prosecutions, and Due Process of Law, 30 HARV. J. ON LEGIS. 135, 182
(1993).
190. See State v. McKown, 461 N.W.2d 720, 725 (Minn. Ct. App. 1990).
191. Liparota v. United States, 471 U.S. 419, 427 (1985).
192. See Walker, 763 P.2d at 863 (The Attorney General urges a different construction
of the statutory language.); Treene, supra note 189, at 157 (explaining that Opinion of
Attorney General was unclear); infra Part IV.B (discussing the issues of fair notice in
Twitchell where defendants relied on statement by Attorney General).
prove ineffective. However, this tactic is often futile, due to the competing
goals advanced by law-makers,193 which may be presented in a confusing
way or lack a distinct government mandate by the Legislature.194 The use of
legislative intent for statutory interpretation raises due process concerns for
parents who attempt to act in accordance with the laws of their
jurisdictions, but who may lack fair notice.195 Fair notice is connected to
due process, and parents should not be prosecuted for a crime that they
could not have reasonably known existed at the time of their actions.196
C. First Amendment Rights Coupled with Parental-Rights Argument

When Christian Science parents are on trial, the judge balances a
number of competing interests.197 An important defense raised by parents is
that they were acting in accordance with their First Amendment right to the
free exercise of religion.198 The United States Supreme Court has granted
parents the power to decide how to raise their children.199 This right has
certain limitations, however, and parental power may be curtailed if it
appears that parental decisions will jeopardize the health or safety of the
child.200
In ruling on this issue, a California court held that spiritual healing
was not protected by the Free Exercise Clause because the practice was too
hazardous and the states interest in keeping its juvenile citizens healthy
outweighed the parental desire to practice religion.201 An Ohio court
similarly characterized legalization of spiritual healing as a dangerous
193. See infra Part IV.D (describing the diverse perspectives advanced by legislators in
Massachusetts during the debates surrounding the religious exemption repeal).
194. See, e.g., McKown, 461 N.W.2d at 725 (Minn. Ct. App. 1990) ([T]he legislative
history, taken as a whole is at best, ambiguous, and at worst, utterly contradictory.).
195. See id. at 721. The Appeals Court affirmed the trial courts ruling which held that
the states failure to provide notice of potentially criminal conduct violated federal and state
due process standards of definiteness. Id.
196. See id.
197. John E.B. Myers, Neglect of Childrens Health: Too Many Irons in the Fire, 8 J. L.
& FAM. STUD. 317, 317-18 (2006) (The judge in a medical neglect case balances three sets
of interests. First, the right of the parents to make medical decisions for their minor child.
Second, the states interests. Finally, the childs interests.) (footnote omitted).
198. See, e.g., Walker v. Superior Court, 763 P.2d 852, 869-71 (Cal. 1988); Hermanson
v. State, 604 So. 2d 775, 780-81 (Fla. 1992).
199. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (The history and culture of Western
civilization reflect a strong tradition of parental concern for the nurture and upbringing of
their children. This primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition.).
200. Id. at 234.
201. Walker, 763 P.2d at 869-72.
precedent whereby almost any action purportedly related to faith could be

exempted by law, regardless of its potential harms and consequences.202
While parental rights have been held in high regard by the United States
Supreme Court, it has also placed limitations, stating it does not follow
[that parents] are free . . . to make martyrs of their children before they
have reached the age of full and legal discretion when they can make that
choice for themselves.203 This is the general mentality of courts, namely in
Massachusetts, as Christian Science spiritual healing is deemed reckless
and careless.204
IV. COMMONWEALTH V. TWITCHELL205 AND ITS AFTERMATH

The Massachusetts Supreme Judicial Court (SJC) decided
Commonwealth v. Twitchell in 1993, which closely preceded and
influenced the repeal of the states spiritual exemption law.206 This case
was particularly interesting as the SJC addressed all three major defense
arguments, and the end result was a complete rejection of spiritual healing
in Massachusetts.207 Robyn Twitchell died of a treatable illness, and his
parents relied upon spiritual healing and sought protection under a state-
based exemption.208 In ruling on the case, the SJC ultimately held that a
declaration by the Attorney General rendered the statute unclear, and it
ordered a remand.209 Dicta in the opinion, however, clarified that the
provision was a defense for neglect but not a protection against
manslaughter charges.210 The legislature sought to prevent any confusion
by repealing the provision of the statute that protected Christian Science
202. State v. Miskimens, 490 N.E.2d 931, 935 (Ohio 1984). The court presents an
extreme hypothetical in which baptism was performed not by traditional means but rather
by throwing the infant into a deep and swift-flowing river and then permitting assistance to
the helpless child only by spiritual means through prayer alone. Id.
203. Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
204. See infra Part IV.C (explaining dicta from the Twitchell opinion which characterized
spiritual healing as a basis for a finding of recklessness for the purposes of common law
manslaughter).
205. 617 N.E.2d 609 (Mass. 1993).
206. Compare MASS. GEN. LAWS ch. 273, 1 (1992) (containing a provision whereby a
child would not be considered neglected if he were receiving treatment by a duly accredited
religious practitioner), with MASS. GEN. LAWS ANN. ch. 273, 1 (West 2000 & Supp. 2007)
(demonstrating that the current statutes do not recognize a spiritual healing exemption).
208. See Twitchell, 617 N.E.2d at 612.
209. See infra Part IV.B (describing the main holding of the case in which an Opinion of
the state Attorney General was misleading to parents). The Court held that this notice issue
should have been raised at trial. See infra Part IV.B.
210. Twitchell, 617 N.E.2d at 616 n.10.
healing practices for the purposes of neglect.211 Twitchell may have been
the most newsworthy religious exemption scenario in Massachusetts, but it
was certainly not the last.212 A decade later another Christian Science child
died under questionable circumstances, but intricacies of his death and his
parents view of medical care led to a decision not to prosecute.213
A. Facts of the Case

Defendants David and Ginger Twitchell were charged with
involuntary manslaughter after their two and one-half year old son Robyn
died from a condition that could have successfully been treated by medical
care.214 In defending their choice to spiritually heal, Mr. and Mrs. Twitchell
raised the Massachusetts spiritual treatment provision, which stated in
pertinent part: [A] child shall not be deemed to be neglected or lack proper
physical care for the sole reason that he is being provided remedial
treatment by spiritual means alone.215 Robyn was visibly ill, and a central
issue of the case was whether the Twitchells had fulfilled their common
law duty to care and support their child.216
The SJC had previously ruled that parents who did not seek medical
attention could be found guilty of wanton or reckless involuntary
manslaughter for [their] childs death caused by [their] omission to meet
[their] duty to provide for the care and welfare of [their] child.217 The
defendants argued that there was no duty to provide medical care because
Chapter 273, 1 provided an exception to the general statutory definition
of support when the parents rely upon spiritual healing.218 To bolster this
reliance claim, the Twitchells argued that they were misled by an Attorney
211. See infra Part IV.D (discussing repeal of statute).

212. See infra Part IV.E (providing a recent example of prosecutorial discretion whereby
Christian Science parents were not charged when they failed to seek medical treatment and
their child died).
213. See Robert Carroll, Community Briefing: DSS Keeps Family Under Assessment,
BOSTON GLOBE, Jan. 1, 2004, at 2; infra Part IV.E.
214. Twitchell, 617 N.E.2d at 612 (Robyn died of the consequences of peritonitis caused
by the perforation of his bowel which had been obstructed as a result of an anomaly known
as Meckels diverticulum. There was evidence that the condition could be corrected by
surgery with a high success rate.).
215. MASS. GEN. LAWS ANN. ch. 273, 1 (West 1992).
216. Twitchell, 617 N.E.2d at 613. The Commonwealth claims that the defendants owed
an affirmative duty of care to their son which they wantonly or recklessly failed to perform.
The duty to provide sufficient support for a child is legally enforceable in a civil proceeding
against a parent. Id.
217. Id. (quoting Commonwealth v. Gallison, 421 N.E.2d 757, 761 (Mass. 1981)).
218. Id.
Generals Opinion219 that appeared to provide an interpretation allowing for

spiritual healing in all instances.220
The reference to the Attorney Generals Opinion in this particular
instance is somewhat misguided, however, because the Opinion discussed
the overlap between the mandatory reporter statute221 and the child abuse
and neglect statute.222 The Twitchell court considered how the Attorney
Generals Opinion affected the interpretation of common law
manslaughter,223 even though the Opinion focused solely on issues of
criminal negligence.224 In ruling on the issue, the court discussed the
Opinion as if the different types of law should be used interchangeably,
while merely mentioning in a footnote that a more relevant place to
reference in the Massachusetts General Laws would be the manslaughter
section.225
B. Main Holding of the Court

The SJC remanded the case due to an unresolved factual question
concerning the defendants reliance on the statement by the Massachusetts
Attorney General.226 In so deciding, the court ruled that the declaration227
was misleading for the purposes of fair notice as a procedural defense to
involuntary manslaughter.228 As such, the Twitchells should have been
allowed to present a theory of entrapment by estoppel concerning their
reliance on the statement.229 Since [t]here [was] no mention of potential
criminal liability for involuntary manslaughter[,]230 the SJC held that the
defendants were entitled to present such an affirmative defense, and that
219. 12 Op. Mass. Atty Gen. 139, 139-40 (1975).

220. Id. at 140. General Laws, c. 273, 1 is a criminal statute and it expressly precludes
imposition of criminal liability as a negligent parent for failure to provide medical care
because of religious beliefs. Id.
221. MASS. GEN. LAWS ANN. ch. 119, 51A (West 1993).
222. Id. ch. 273, 1.
223. Twitchell, 617 N.E.2d at 618.
224. 12 Op. Mass. Atty Gen. at 140.
225. Twitchell, 617 N.E.2d at 615 n.7 (General Laws c. 265, 13 (1992 ed.), which
fixes the penalty for common law manslaughter, would be the logical place for any such
recognition of spiritual treatment as barring a charge of involuntary manslaughter.).
226. Id. at 619-20.
227. 12 Op. Mass. Atty Gen. at 139-40 ([The exemption] expressly precludes
imposition of criminal liability as a negligent parent for failure to provide medical care
because of religious beliefs.). This does not, however, prohibit the court from ordering
medical treatment for children. Id.
228. Twitchell, 617 N.E.2d at 619-20.
229. Id.
230. Id. at 619.
failure to do so, coupled with wrongful exclusion of evidence, created a

substantial risk of a miscarriage of justice requiring reversal of the
convictions.231 The court also held that the spiritual exemption statute did
not provide immunity from prosecution for involuntary manslaughter upon
the death of a Christian Scientist child.232 Issues of fair notice, however,
complicated the situation somewhat and caused the SJC to rule that the
Twitchells should have been able to plead that particular defense.233
C. Dicta from the Opinion

While the SJC ultimately found that the Twitchells were entitled to
present an affirmative defense regarding the lack of fair notice for criminal
liability,234 the dicta concerning potential grounds for prosecution is the
most important part of the cases effect as precedent.235 The court looked to
the competing goals of common law manslaughter and the spiritual healing
exemption in terms of the difference between recklessness and
negligence.236 In the section of the Massachusetts General Laws which
describes criminal neglect of a child, it states that wilful failure to provide
necessary and proper physical care is grounds for a finding of negligence,
absent an exception.237
The court made clear that an investigation into negligence is not the
same analysis a court would perform for a case involving involuntary
manslaughter, because the two are not considered functional equivalents.238
While a case regarding child neglect would look into willful intentions, this
is not required in involuntary manslaughter prosecution, which involves
proof of reckless or wanton conduct.239 The risk and willfulness involved
differ greatly between negligence and recklessness.240 Thus, the SJC came
to the conclusion that by its terms, the spiritual treatment provision in 1
does not apply to involuntary manslaughter.241 The SJC clearly articulated
231. Id. at 620 & n.17 (The basic principle has been established that 1 did not provide
the Twitchells with protection against a charge of involuntary manslaughter.).
232. Id. at 616 n.10 ([A] spiritual treatment statute does not apply to exonerate a parent
from some other criminal charge, such as unlawful homicide.).
234. Id. The Court noted that the Attorney Generals opinion presents an additional
element to the fairness assessment. Id.
235. Id. at 615-16.
236. Id.
237. Id.; see id. at 615 n.8 (quoting MASS. GEN. LAWS ANN. ch. 273, 1 (West 1992)).
238. Id. at 615-16 (Wanton or reckless conduct is not a form of negligence.).
239. Twitchell, 617 N.E.2d at 615-16.
240. Commonwealth v. Welansky, 55 N.E.2d 902, 909-11 (Mass. 1944).
that the coexistence of the spiritual healing exemption and common law
involuntary manslaughter charge was not a sufficient basis for the
Twitchells affirmative defense based on lack of warning in trying to
combine the two.242
D. Repeal of the Massachusetts Spiritual Healing Exemption

The Massachusetts Legislature repealed the religious exemption on
March 28, 1994.243 Several state senators and representatives vehemently
opposed the decision to criminalize spiritual healing through both a neglect
and manslaughter framework.244 Representative Lane wanted the
Legislature to work together to put two stronger bills on the table - a
strong statute against child abuse and a protection of the tenets of a church
that has meant so much to so many people.245 Similarly, at least one
legislator cautioned against equating spiritual healing with a criminal act.246
During the Senate debate, Senator Lees expressed concern that the
amendments to the child protection statute would restrict religious
freedom.247
Given the confusing message of the Attorney Generals Opinion,248
the vagueness doctrine is an important component to cases such as
Twitchell.249 The Twitchell court seemed to advocate a statutory revision,250
rather than an outright appeal of the exemption, yet the Legislature came to
a different conclusion. This choice of repeal, rather than clarification, was
242. Id. at 617. The spiritual treatment provision protects against criminal charges of
neglect and of wilful failure to provide proper medical care and says nothing about
protection against criminal charges based on wanton or reckless conduct. Id.
244. See DEB. OF THE MASS. H.R. (Nov. 16, 1993) (statements by Reps. Rushing, Lane,
and Tarr), available at http://0-www.statehousenews.com.portia.nesl.edu/cgi/as_web.exe?
1993.ask+D+2306978. The State House News is an independent, privately owned wire
service covering Massachusetts government in-depth. State House News Service, Today,
http://www.statehousenews.com/public/TheService.htm (last visited Dec. 20, 2007).
245. See DEB. OF THE MASS. H.R. (Nov. 16, 1993) (statement of Rep. Lane), available at
http://0-www.statehousenews.com.portia.nesl.edu/cgi/as_web.exe?1993.ask+D+2306978.
246. See id. (statement of Rep. Tarr).
247. See DEB. OF THE MASS. S. (Dec. 15, 1993) (statement by Sen. Lees), available at
But I would hope that even though many people dont understand Christian Science, they
do know it is an established religion with its home base in Boston. Id.
248. See 12 Op. Mass. Atty Gen. 139, 139-40; Treene, supra note 189, at 157
(explaining that a Christian Scientist could be confused by the ambiguity of the Attorney
Generals Opinion).
249. See supra Part III.B.
250. See Commonwealth v. Twitchell, 617 N.E.2d 609, 615 n.7 (Mass. 1993).
criticized by some state legislators251 during debates but ultimately

prevailed.252 In removing the religious portion of the statute, the
Massachusetts Legislature made a definitive statement regarding the
criminalization of spiritual healing and prevented any lingering legal battles
over the issue.253
E. The Most Recent Case of Spiritual Healing in Massachusetts

A decade after the Twitchell case, another Christian Science child
died in Massachusetts after lack of prompt medical treatment.254
Unbeknownst to his parents, Eben Tryon suffered from diabetes.255 In the
days prior to his death, Eben complained of stomach pains and was sent
home from school.256 The Department of Social Services found the parents
to be at least partially responsible, and there was evidence that the child
may have died because of undiagnosed diabetes.257 Given the apparent
evidence that the child was unhealthy, officials questioned whether the
parents acted reasonably in not promptly seeking medical attention.258
The facts surrounding this death were somewhat different than
Twitchell because the Tryons had visited doctors in the past.259 Robyn
Twitchells parents indicated an unwillingness to seek medical care, and
universally relied upon spiritual healing.260 By contrast, Mr. and Mrs.
Tryon, although practicing Christian Scientists[,] . . . believe in medical
251. See DEB. OF THE MASS. H.R. (Dec. 14, 1993) (statement of Rep. Lane), available at
The court in a footnote talks about the need to revisit the statutes. No way do I believe the
court meant to take it out of the statutes. Id. (statement of Rep. Lane).
252. Id. (statement of Rep. McIntyre) (This Legislature decided to address the ambiguity
by repealing it.).
253. See LeClair, supra note 127, at 91 ([L]egislative intent and the constitutionality of
these exemptions continue to produce dilemmas that challenge the courts.).
254. See Patricia Wen, Officials Probe Death of Boy, 7, Christian Science Parents
Investigated, BOSTON GLOBE, Nov. 19, 2003, at B1.
255. Franci Richardson, Dead Boys Parents Say They Didnt Avoid Docs, BOSTON
HERALD, Nov. 20, 2003, at 33 ([T]he preliminary autopsy report showed Eben had
extremely high blood sugar levels, indicating he may have suffered from diabetes . . . . But
his parents told DSS investigators . . . that their son had not been diagnosed.).
256. Wen, supra note 254.
257. Carroll, supra note 213, at 2.
258. Wen, supra note 254 (Investigators [were] looking at whether the parents took
appropriate action over the weekend before going to the hospital.).
259. Richardson, supra note 255, at 33. A Department of Social Services spokesperson
stated that the Tryons had indicated in the past that they sought conventional medical care,
despite their adherence to the Christian Science Church. Id.
260. See supra Part IV.A.
treatment if anyone becomes critically ill.261 Therefore, it was somewhat

unclear whether spiritual healing played a role or whether the parents
simply did not initially realize the gravity of the situation.262 Mrs. Tryon
referred questions to a Christian Science spokesperson, which may indicate
that spiritual healing was a relevant factor.263
The investigation by the Department of Social Services supported
allegations of neglect,264 but the Norfolk County District Attorneys Office
did not file criminal charges, stating it was unclear whether the parents
actions were criminal.265 During the legislative debate regarding the repeal
of the Massachusetts spiritual healing exemption in 1993,266 the
Massachusetts District Attorneys Association supported the repeal.267
Several individual county offices also signed on to support, but Norfolk
was absent from that list.268 The decision not to prosecute in the Tryon case
may have been an act of prosecutorial discretion.269
V. MASSACHUSETTS CHRISTIAN SCIENTISTS SHOULD PURSUE

LEGISLATIVE ALTERNATIVES TO RESTORE A SPIRITUAL HEALING
EXEMPTION IN THE COMMONWEALTH
Christian Scientists in Massachusetts are more likely to be successful
if they focus on legislative change to protect their ability to practice
spiritual healing rather than hope for favorable outcomes in court.270
Oftentimes challenges in court are a last resort, and only occur when parties
have exhausted their efforts in creating or repealing unfavorable statutes.271
Political strengths exist for Christian Scientists, and they should place their
261. Wen, supra note 254. [The spokeswoman said] Christian Scientists believe in
prayer and spiritual treatment for medical problems, but individuals may decide whether
they wish to seek medical treatment for themselves or family members. Id.
262. Richardson, supra note 255, at 33. Despite the fact that the child complained of
stomach pain for three days, his parents said they did not seek help sooner because [t]hey
thought this was the flu or a minor virus. Id.
263. See Wen, supra note 254.
264. See Carroll, supra note 213, at 2.
265. Richardson, supra note 255, at 33.
266. See supra Part IV.D.
267. Mass. Citizens for Children, DEATH BY RELIGIOUS EXEMPTION: AN ADVOCACY
REPORT ON THE NEED TO REPEAL RELIGIOUS EXEMPTIONS TO NECESSARY MEDICAL CARE FOR
CHILDREN app. I (Jan. 1992), http://www.masskids.org/dbre/dbre_a1.html [hereinafter
Appendix I] (last visited Dec. 28, 2007).
268. Id.
269. See infra Part V.A.
270. See supra Part III.
271. CORBETT, supra note 2, at 345.
initial focus on effectuating change in the legislative arena.272 Too many

variables exist in the functions of the judiciary;273 thus, statutory activism is
a better course than hoping for a sympathetic judiciary or prosecutorial
discretion.274 Christian Scientists should use their large population275 and
well-established publications276 to mobilize a political constituency to draft
a Massachusetts spiritual healing statute.277
A. Prosecutorial Discretion Is an Uncertain Course.

Prosecuting authorities are given great leverage in assigning charges
and processing cases.278 One commentator stated that the attitude towards
prosecutors has been less one of judicial restraint than of judicial
withdrawal, treating the prosecutor as so integral and expert a part of the
Executive Branch that he may not be interfered with by the judiciary.279
Prosecutorial discretion is a power associated with the Executive Branch,
rather than the Judicial.280 Through this framework, the prosecutor cannot
generally be charged with abusing his discretion.281 A prosecutor may
choose not to bring charges for a given case or suspect.282 Moreover, a
defendant alleging that he has been unfairly targeted for selective or
vindictive prosecution must meet a high evidentiary burden in order to
proceed with such a suit.283
Using the duties of the attorneys in the United States Attorneys Office
272. See Swan, supra note 56, at 75 (The Christian Science church maintains a salaried
representative in every state to lobby for such exemptions.).
274. See infra Part V.A.
275. See How the Church Began, About the Church of Christ, Scientist, The Church of
Christ, Scientist, http://www.churchofchristscientist.org/aboutthechurch.jtml (noting 2,000
churches worldwide) (last visited Dec. 22, 2007).
277. See infra Part V.C.
278. A. GOLDSTEIN, THE PASSIVE JUDICIARY: PROSECUTORIAL DISCRETION AND THE
GUILTY PLEA 3-4 (1981).
279. Id. at 5.
280. United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1972).
281. Id. Prosecutorial discretion resides in the executive, not in the judicial, branch, and
that discretion, though subject of course to judicial review to protect constitutional rights, is
not reviewable for a simple abuse of discretion. Id.
282. See, e.g., Newman v. United States, 382 F.2d 479, 480-81 (D.C. Cir. 1967).
283. See United States v. Cyprian, 23 F.3d 1189, 1195-97 (7th Cir. 1976) (describing the
evidentiary threshold that a defendant must meet in order to be entitled to a hearing on
allegations of selective prosecution, vindictive prosecution, or outrageous government
conduct).
as a model, the discretion given to federal prosecutors is quite broad.284

Furthermore, due to the constitutional separation of powers, courts defer to
the discretion of prosecutors because of their location in the Executive
Branch.285
The charging function is perhaps the most important and also most
unchecked power of a prosecuting attorney.286 In criminal situations,
private citizens are unable to initiate suits, and all charging power rests in
the hands of the prosecuting authority.287 When a prosecutor makes a
decision regarding charging, [he] enjoys an unusual degree of
independence both from administrative superiors and from judges.288
Although there has been at least one instance in Massachusetts where
prosecutors elected not to bring charges upon the death of a Christian
Science child,289 a high-stakes case involving death and spiritual healing is
probably not a sound candidate for relying on prosecutorial discretion to
escape prosecution.290 Although a prosecutor cannot be compelled to bring
charges,291 district attorneys acquire their jobs through the political process,
and such visibility will lead a prosecutor to seek the highest charge possible
in an effort to quell public outrage for a murder case.292 Spiritual healing is
clearly a contentious issue with constituencies mobilized against it.293
284. See 28 U.S.C. 547(1) (2000) ([E]ach United States attorney, within his district,
shall (1) prosecute for all offenses against the United States.).
285. See United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965).
286. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521,
1525 (1981) (Decisions whether and what to charge, and whether and on what terms to
bargain, have been left in prosecutors hands with very few limitations.).
287. See, e.g., People v. Municipal Court, 27 Cal. App. 3d 193, 206-08 (1972) (stating
that a municipal court may not appoint a special prosecutor if the relevant district attorneys
office decides not to prosecute); Tonkin v. Michael, 349 F. Supp. 78, 81 (D. Virgin Islands
1972) (demonstrating the rejection of private prosecution and reliance on Attorney
Generals Office to perform charging function); Harman v. Frye, 425 S.E.2d 566, 576
(W.Va. 1992) (holding that private citizens may not file charges of a criminal nature that are
within the purview of the prosecuting authority).
288. GOLDSTEIN, supra note 278, at 4.
289. See supra Part IV.E (describing the death of Eben Tryon).
290. Cf. Vorenberg, supra note 286, at 1526-27. Prosecutors exercise the least discretion
over those crimes that most frighten, outrage, or intrigue the public, such as murder, rape,
arson, armed robbery, kidnapping, and large-scale trafficking in hard drugs. Id. at 1526.
291. E.g., Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381-82 (2d Cir.
1973); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965).
292. Vorenberg, supra note 286, at 1526-27. Since visibility focuses greater scrutiny on
the prosecutor, only a prosecutor whose political position is unusually secure can disappoint
expectations that are part of the climate in which he works. Id.
293. See Appendix I, supra note 267 (providing a list of over thirty organizations that
supported the repeal of the spiritual healing exemption statute repealed in 1994).
Consequently, it is unlikely that a district attorneys office would be willing

to suffer the public and political repercussions for failing to bring criminal
charges against the parents of a child who died from a lack of medical
treatment.294
B. Christian Scientists Have a Well-Established Lobbyist

Component.
Religion-based interest groups have become prominent forces in both
national and state governments.295 Broadly defined, interest groups are a
group of people who share some interest or set of interest[s] and pursue
their interests through the political system.296 As with any lobbyist group
mobilized around a policy or set of social goals, religious groups encourage
the enactment or repeal of legislation that promotes their ability to practice
their beliefs.297 Generally, religious interest groups operate in much the
same way as their secular counterparts in influencing legislators.298
It is through this framework that Christian Scientists would be best
equipped to effectuate change and protect their choice to practice spiritual
healing.299 Frequently, Christian Scientists have been unable to successfully
defend their decision to decline medical care in court,300 so challenges
based on legislation are likely a better option. Sheer membership volume
would enable a Massachusetts Christian Science interest group to mobilize
a large constituency.301 Additionally, the publications printed by the
Church address both secular and religious issues, and thus would be able to
publicize their positions and opinions in the political realm.302 Expressing a
294. See Vorenberg, supra note 286, at 1526-27.

295. CORBETT, supra note 2, at 120.
We have said that perhaps the most important discovery that religious
groups made during the 1800s through the first half of the 1900s was
that they could use the political process to achieve their social, and
sometimes religious, goals. This realization continues to be an important
factor in the last half of the twentieth century.
Id.
296. Id. at 292.
297. ALLEN D. HERTZKE, REPRESENTING GOD IN WASHINGTON: THE ROLE OF RELIGIOUS
LOBBIES IN THE AMERICAN POLITY 44 (University of Tennessee Press 1988).
298. Id. They propose bills and amendments, testify before congressional committees,
track legislation, provide information on the effects of public policies, and bring pressure to
bear by mobilizing their constituencies in congressional districts and states. Id.
299. See supra Part I.A.2 (describing what spiritual healing entails).
301. See Directory, supra note 15.
position through the written word is an invaluable tool for interest groups,
and Christian Scientists already have this infrastructure in place for printing
message-based journalism.303
Christian Scientists also have a legacy of focusing on legislative
change rather than judicial activism.304 In 1967 a Massachusetts woman,
Dorothy Sheridan, was prosecuted for manslaughter after her child died
when she chose spiritual healing over medical treatment.305 When she
attempted to appeal her conviction, the local Christian Science Church did
not support her case for fear of setting an appellate precedent.306 Instead,
the Christian Science Church made a concerted effort to change the laws to
allow for a parental choice in spiritual healing.307 The Massachusetts
Legislature eventually added a religious exemption to its child neglect law,
and Christian Scientists were a primary force behind that action.308
While the debate over language concerning neglect versus
recklessness resonated in the Twitchell case,309 the statute as enacted prior
to that case did provide some spiritual healing protection.310 In the post-
Twitchell legislative environment, however, there was a public backlash
against Christian Scientists.311 Perhaps the situation surrounding the death
of Eben Tryon indicates a newfound public perception of spiritual
healing.312 With this in mind, Christian Scientists should utilize their
lobbying strengths, large Boston constituency, and publication power to
influence legislative change.313
303. Supra Part I.A.4; see also HERTZKE, supra note 297, at 44 (explaining the role of
religious lobbyist groups in publicizing their position to influence legislation).
304. See Swan, supra note 56, at 79.
305. Id.
306. LEO DAMORE, THE CRIME OF DOROTHY SHERIDAN 253, 293, 303-05 (1978).
307. See Swan, supra note 56, at 79.
308. MASS. CITIZENS FOR CHILDREN, DEATH BY RELIGIOUS EXEMPTION: AN ADVOCACY
REPORT ON THE NEED TO REPEAL RELIGIOUS EXEMPTIONS TO NECESSARY MEDICAL CARE FOR
CHILDREN, HISTORY OF THE MASSACHUSETTS RELIGIOUS EXEMPTION LAW 6 (Jan. 1992),
http://www.masskids.org/dbre/dbre_6.html (last visited Dec. 22, 2007).
309. See supra Part IV.C (discussing dicta in the Twitchell case).
311. See supra Part IV.D (discussing the repeal of the Massachusetts spiritual healing
exemption).
312. See supra Part IV.E (discussing death of Eben Tryon and the fact that his parents
were not criminally prosecuted).
313. See Swan, supra note 56, at 74. The Churchs Christian Science Monitor is based in
Boston, and would be a powerful political tool for mobilizing a lobbying effort to legalize
spiritual healing. See supra Part I.A.4.
C. Possible Options for Statutory Protection

The Massachusetts Christian Science population could go one of two
ways in its approach to promoting legislative change: encourage broader
legislative language that would create a state-based Religious Freedom
Restoration Act (RFRA)314 or lobby for specific recognition of spiritual
healing.315 The RFRA approach would be more analogous to the policies
adopted by several states316 in the wake of the Supreme Courts holding in
City of Boerne.317 Under the second and likely more successful option,
Christian Scientists would look to religious exemptions that currently exist
in the statutes of other states.318
1. Adopt a State-Based Religious Freedom Restoration Act

Interpretation of the Free Exercise Clause has evolved over time, but
absent additional statutory protection, it will not serve the needs of
Christian Scientists practicing spiritual healing.319 In applying this clause,
the Supreme Court has made a clear distinction between religious beliefs
and religious practices.320 The message is explicit that statutes are made
for the government of actions, and while they cannot interfere with mere
religious belief and opinions, they may with practices.321 Over time, the
standard for deciding when a governmental action has interfered has
greatly evolved, and thus the Clause has become an uncertain tool to use
for recognition of free exercise rights.322
In 1963, the Supreme Court granted extensive freedom under the Free
Exercise Clause by applying a strict scrutiny test in Sherbert v. Verner.323
The Court reasoned that a statute or regulation infringing on free exercise

316. See Thomas C. Berg, The Permissible Scope of Legal Limitations on the Freedom of
Religion or Belief in the United States, 19 EMORY INTL L. REV. 1277, 1288 (2005). A
number of states reacted to the invalidation of RFRA by passing their own RFRA-type
enactments . . . . Id.
317. See City of Boerne v. Flores, 521 U.S. 507 (1997) (finding RFRA unconstitutional).
318. See supra Part I.C.3 (describing statutory exemptions in other states).
319. See Hartsell, supra note 13, at 512-13. [W]hile the Free Exercise Clause defense is
[t]he most common and certainly the most obvious constitutional defense that parents raise,
[it] is also the least successful. Id. (citations omitted).
320. See Reynolds v. United States, 98 U.S. 145, 166 (1878).
321. Id.
322. Compare Sherbert v. Verner, 374 U.S. 398, 403 (1963), with Employment Div. v.
Smith 494 U.S. 872, 884-85 (1990) (modifying and limiting the standard articulated in
Sherbert).
323. See Sherbert, 374 U.S. at 404.
must provide a compelling state interest.324 A major shift occurred in

1990 when the Court decided Employment Division v. Smith,325 rejecting
the compelling governmental interest standard and allowing greater
intrusions on religious rights.326 After Smith was decided, Congress passed
the Religious Freedom Restoration Act (RFRA).327 The RFRA was an
attempt by Congress to reinstate the strict scrutiny standard.328 Soon after
its enactment, however, the Supreme Court declared the RFRA invalid as it
applied to state governments in City of Boerne v. Flores.329
Currently, state and local laws cannot be challenged on the basis of
the RFRA, as Boerne ruled that Congress overstepped the balance of
powers and principles of federalism in creating the statute.330 The holding
in Boerne indicated that the federal statute was unconstitutional based on
sovereignty issues, and that it was up to states to create their own standards
of interpretation.331 In response, a number of states have passed their own
RFRAs.332 Generally, the legislative intent behind the state laws, similar to
that of the federal RFRA, is an attempt to codify the strict scrutiny standard
of Sherbert.333
Massachusetts has already adopted a strict scrutiny standard in
various rulings in state courts.334 The SJC has applied the Sherbert test in
324. Id. at 406. To provide some framework for this test, the Court recognized a
willingness to restrict free exercise when it invariably posed some substantial threat to
public safety, peace, or order. Id. at 403.
325. 494 U.S. 872 (1990).
326. See id. at 884-85. In Smith, the Court held that a law which is religion-neutral and
generally applicable will be held to a reasonableness standard, even if the effect of the law
specifically burdens the free exercise of a particular faith. See id. at 879, 884-85, 890.
327. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488
(codified at 42 U.S.C. 2000bb to 2000bb-4 (1994)). Congress passed the Act after
finding that the Smith Court eliminated the requirement that the government justify burdens
on religious exercise. Id. 2(a)(4) (codified at 42 U.S.C. 2000bb(a)(4) (1994)).
328. Id. 2(b)(1) (codified at 42 U.S.C. 2000bb(b)(1) (1994)) (The purposes of this
Act are . . . to restore the compelling interest test . . . and to guarantee its application in all
cases where free exercise of religion is substantially burdened . . . .).
329. See 521 U.S. 507, 535-36 (1997).
330. Id.
331. See id.
332. See Gary S. Gildin, A Blessing in Disguise: Protecting Minority Faiths Through
State Religious Non-Restoration Acts, 23 HARV. J.L. & PUB. POLY 411, 433 (2000).
333. See Berg, supra note 316, at 1288. In general these mini-RFRAs parallel the
original by requiring that any substantial burden on religious exercises be justified as the
least restrictive means to a compelling governmental interest. Id.
334. See Rasheed v. Commr of Corr., 845 N.E.2d 296, 301 (Mass. 2006) (recognizing
that in the vast majority of circumstances, the Massachusetts Constitution provides greater
religious protection than the Federal Constitution); Ahmad v. Dept of Corr., 845 N.E.2d
interpreting the Free Exercise Clause, which is a common law equivalent to

enacting a state-based RFRA.335 In Attorney General v. Desilets,336 the SJC
explicitly rejected the United State Supreme Courts holding in Smith and
instead chose to apply the balancing test utilized in Sherbert.337 However,
application of the compelling interest and narrowly tailored requirements
has not been universal.338 In the context of a prisoners free exercise rights,
for example, the SJC has instead applied a reasonableness test.339
Consequently, this lack of uniformity in applying Sherbert demonstrates
that it is not as secure as a codified state-based RFRA would be.340
Therefore, Christian Scientists would be wise to influence the legislature to
codify the Sherbert strict scrutiny test in much the same way the federal
RFRA was structured.341
2. Combine Elements of Other Statutes

Under Massachusetts law, a parent practicing spiritual healing could
be convicted of either criminal neglect342 or manslaughter if the child
subsequently died.343 The manslaughter conviction would be based upon a
characterization of recklessness for not pursuing conventional medical
treatment.344 Consequently, efforts on the part of Christian Scientists to
codify a spiritual healing provision would provide the greatest scope of
protection.345 In this manner, spiritual healing would be recognized as an
289, 294 (Mass. 2006) (holding that the strict scrutiny test applies in most instances, and
that the prison context is one of the only exceptions to this standard of review); Attorney
Gen. v. Desilets, 636 N.E.2d 233, 236 (Mass. 1994) (applying the Sherbert test).
335. See Rasheed, 845 N.E.2d at 301.
336. 636 N.E.2d 233.
337. Id. at 234-36.
338. See Mass. Prisoners Assn Political Action Comm. v. Acting Governor, 761 N.E.2d
952, 959 (Mass. 2002) ([W]hen a prison regulation impinges on inmates constitutional
rights, the regulation is valid if it is reasonably related to legitimate penological interests.
(quoting Turner v. Safley, 482 U.S. 87, 89 (1987))); see also Abdul-Alazim v.
Superintendent, Mass. Corr. Inst., Cedar Junction, 778 N.E.2d 946, 951 (Mass. App. Ct.
2002) (exercising deference to the decisions of prison administrators who craft rules which
may limit religious freedom but are connected to the need for safety and order).
339. Mass. Prisoners Assn, 761 N.E.2d at 959.
340. See Berg, supra note 316, at 1288.
341. See Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb(b)(1) (1994)
(stating that one of the purposes of the statute was to restore the compelling interest test
from Sherbert).
342. See MASS. GEN. LAWS ANN. ch. 273, 1 (West 2007).
343. See id. ch. 265, 13 (describing the punishment for manslaughter).
344. See supra Part I.C.1-2.
345. See supra Part I.C.3.
affirmative defense when parents are criminally charged.346

The pre-Twitchell statute recognized a spiritual healing exemption for
neglect, but in doing so it differentiated between neglect and
recklessness.347 Subsequently, the legislature repealed the entire spiritual
healing provision of the neglect statute in an effort to prevent any
confusion regarding a defense to manslaughter on religious grounds.348 In
order to re-establish legislative protection, Christian Scientists should
attempt to codify spiritual healing as a defense to both reckless and
negligent characterization.349 Not only would this avoid future litigation
over statutory construction as in Twitchell,350 but it would also articulate
the notion that Christian Scientists view spiritual healing as a fulfillment of
their parental duty.351
Crafting the language as an affirmative choice rather than an
exemption would perhaps better emphasize the proactive nature of spiritual
healing.352 Relying upon an exemption appears as if the legislature is
providing excuses, when in fact Christian Science parents wholly believe
they are acting in their childs best interests.353 Christian Science parents
feel that spiritual healing reflects their responsibility and their duty to their
children, and legislation should articulate that notion.354 Additionally, this
language would differ from the statute that was repealed after Twitchell,
and thus an affirmative defense approach would be more than an attempt to
346. See DEL. CODE ANN. tit. 11, 1104 (2001) ([I]t is an affirmative defense that the
accused is a member or adherent of an organized church or religious group, the tenets of
which prescribe prayer as the principal treatment for illness, and treated or caused the ill
child to be treated in accordance with those tenets.).
347. See supra Part IV.C.
348. See supra Part IV.D.
349. See Commonwealth v. Welansky, 55 N.E.2d 902, 909-11 (Mass. 1944)
(characterizing omission as a reckless action for the purposes of the manslaughter charges);
see also MASS. GEN. LAWS ANN. ch. 273, 1 (West 1992) (A child shall not be deemed to
be neglected or lack proper physical care for the sole reason that he is being provided
remedial treatment by spiritual means alone . . . .).
350. See supra Part IV.B.
RESPONSIBILITY: CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 7 (advocating
a definition of care that focuses on well-being rather than simply requiring conventional
medicine).
352. See supra Part I.B.1.
353. See Lederman, supra note 1, at 893 ([P]arents . . . relying on spiritual treatment do
not intend to harm the[ir] children.).
HEALING FOR CHILDREN, supra note 3, at 80.
simply re-codify the rejected provision.355

In order to establish protection for both negligence and recklessness,
the spiritual healing provision should be added to both the manslaughter356
and the neglect provisions.357 The text of the chapters could be identical in
using affirmative defense language.358 It would also be wise to accent the
nature of spiritual healing as a means for treatment, in order to characterize
it as an alternative to traditional medicine.359 Thus, the provision should
read:
[I]t is an affirmative defense that the accused is a member or
adherent of an organized church or religious group, the tenets of
which prescribe prayer as the principal treatment for illness,360
and the accused provided treatment by spiritual means in
accordance with the tenets and practice of the church or religious
group by a duly accredited practitioner thereof.361
CONCLUSION
Action must be taken on behalf of Christian Science Church
members because the current status of the law essentially outlaws the
practice of spiritual healing.362 Prohibiting this form of treatment is
the functional equivalent of outlawing the religion, since spiritual
treatment is such an integral aspect of the faith.363 It is virtually
impossible to separate the practice from the religion, and
[b]asically, they are being punished because they follow their love
of God, and what they feel God has instructed them to do. . . . By
punishing Scientists for holding these beliefs and acting on them,
society is certainly encroaching on the free exercise of their faith.364
355. See MASS. GEN. LAWS ANN. ch. 273, 1 (West 1992). The language of the statute
did not portray the practice of spiritual healing as an affirmative action, but instead treated it
as an exception to neglect and care requirements. Id.
356. MASS. GEN. LAWS ANN. ch. 265, 13 (West 2007) (describing the punishment for
manslaughter).
357. Id. ch. 273, 1.
358. See, e.g., DEL. CODE ANN. tit. 11, 1104 (Michie 2007).
359. See MacDonald, supra note 92, reprinted in FREEDOM AND RESPONSIBILITY:
CHRISTIAN SCIENCE HEALING FOR CHILDREN, supra note 3, at 36.
360. See tit. 11, 1104.
361. See MASS. GEN. LAWS ANN. ch. 273, 1 (West 1992).
362. See supra Part IV.
363. See Vaillant, supra note 11, at 481 (One of the central tenets of the faith is that
healing comes through prayer, not through medicine.) (citations omitted).
364. See id. at 488.
Christian Scientists, as well as many other religious groups, have

carved out a lobbying niche in the political arena and operate as
quasi-businesses.365 While defense of their position in court has
proven to be a weakness, politics and statutory reform are the
primary strengths of Massachusetts Christian Scientists.366 Playing
upon these strengths, they would be wise to focus their efforts on
lobbying the legislature to pass a statute protecting their right to
practice spiritual healing.367 Christian Scientists should make a
concerted effort to recast the public and legal perception of their
practices and faith because they are unlikely to defend their
avoidance of medical treatment as the States interests in protecting
children will be viewed as superior to their free exercise rights.368
They must assert their rights in order to maintain the ability to
practice this central aspect of their faith.369
365. HERTZKE, supra note 297, at 101. Church denominations, as institutions, do have
distinct, tangible interests (and thus fit prevailing interest group theories). They own
property, have employees, enjoy tax exemptions, and operate an array of schools, colleges,
hospitals, nursing homes, large charitable agencies, and even life insurance companies. Id.
367. See supra Part V.C (providing examples of possible statutory protection options).
When Scientists have Big Brother looking over their shoulders at their
parental job, they clearly are not free to do as they wish. When
Scientists are compelled to take their child to the doctor, against their
faith and better judgment, they are not being given the complete
authority over the childs upbringing talked about in the Supreme
Courts past decisions.
Id.

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FINAL EDIT 1/7/2008 10:14:54 PM

Abstract: A number of states have exemptions written into their neglect or

156 NEW ENGLAND LAW REVIEW [Vol. 42:155

The exceptions for spiritual treatment are an example of the

1. Anne D. Lederman, Understanding Faith: When Religious Parents Decline

2007] SPIRITUAL HEALING EXEMPTIONS 157

to recovery.11 Prosecuting parents for practicing spiritual healing reflects a

158 NEW ENGLAND LAW REVIEW [Vol. 42:155

healing in Massachusetts, and its complete lack of legislative protection.

20. 617 N.E.2d 609 (Mass. 1993).

2007] SPIRITUAL HEALING EXEMPTIONS 159

A. Creation of the Christian Science Church

1. Principles of the Faith

27. See id.

160 NEW ENGLAND LAW REVIEW [Vol. 42:155

of traditional medicine.37 A common misconception is that practitioners

2. What Is Spiritual Healing?

2007] SPIRITUAL HEALING EXEMPTIONS 161

162 NEW ENGLAND LAW REVIEW [Vol. 42:155

3. Recognition of the Christian Science Church in

52. Robinson, supra note 30, at 419.

2007] SPIRITUAL HEALING EXEMPTIONS 163

4. Christian Science Publications in Massachusetts

62. Id. at 63.

164 NEW ENGLAND LAW REVIEW [Vol. 42:155

population of Christian Scientists within the state.71

B. Spiritual Healing in Practice

1. Spiritual Healing Is a Proactive Alternative to Traditional

2007] SPIRITUAL HEALING EXEMPTIONS 165

proactive approach to maintaining health.80 To a Christian Science parent,

effect through prayer.).

166 NEW ENGLAND LAW REVIEW [Vol. 42:155

2. Spiritual Healing Is a Parental Choice that Has Proven

91. Lederman, supra note 1, at 922-23.

2007] SPIRITUAL HEALING EXEMPTIONS 167

backlash is created by the universal focus on failures.101

C. Recklessness, Negligence, and Criminal Prosecutions

101. See id.

168 NEW ENGLAND LAW REVIEW [Vol. 42:155

Massachusetts case in the discourse on manslaughter, Commonwealth v.

2. Affirmative Duty as a Debated Issue

2007] SPIRITUAL HEALING EXEMPTIONS 169

3. Spiritual Healing Exemptions

170 NEW ENGLAND LAW REVIEW [Vol. 42:155

abuse reporting schemes, and statutes designating children as a special

2007] SPIRITUAL HEALING EXEMPTIONS 171

based healing is not permitted as a defense when a caretaker engages in

II. SPIRITUAL HEALING EXEMPTION TRENDS BEGAN WITH A FEDERAL

140. Hall v. State, 493 N.E.2d 433, 435 (Ind. 1986).

172 NEW ENGLAND LAW REVIEW [Vol. 42:155

how many Christian Scientists testified before Congress to encourage the

(1) Harm or threatened harm to a childs health or welfare can occur

2007] SPIRITUAL HEALING EXEMPTIONS 173

174 NEW ENGLAND LAW REVIEW [Vol. 42:155

providing immunity to Christian Science parents.166

III. CHRISTIAN SCIENTISTS GENERALLY HAVE BEEN UNSUCCESSFUL IN

166. See supra note 14 and accompanying text.

2007] SPIRITUAL HEALING EXEMPTIONS 175

children.177 It is through this framework that free exercise and parental-

A. Statutory Exemption Argument

176 NEW ENGLAND LAW REVIEW [Vol. 42:155

principle of in pari materia if it determines that the legislators intended the

2007] SPIRITUAL HEALING EXEMPTIONS 177