Rights of the Unvaccinated Child: Criminal Law
Feb 25, 2014

This is the third post in a five-part series which addresses the legal rights of the unvaccinated child. 

This post is written by guest blogger Dorit Rubinstein Reiss who is a Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA.  She examines the social policies of vaccination in various articles, blogs and law journals and in this series she elaborates on the legal mechanisms that are available to protect children against the risk of non-vaccination.  A detailed explanation of each post in the series appears at the conclusion of this article.

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This post will explore criminal sanctions in cases where a purposely unvaccinated child was seriously injured or killed by a vaccine-preventable disease and will focus on whether criminal law can be used in the context of the unvaccinated child’s right to health.

 What Does the Law Say?

Criminal Prosecution for Violating Compulsory Education Statutes

One way criminal law has been put to the test is when parents have been prosecuted for violating compulsory education statutes in situations where a child was not allowed to attend school because the parents refused to vaccinate him (Anderson v. State, 84 Ga.App. 259 (Ga.App. 1951); State v. Drew, 89 N.H. 54, 192 A. 629 (N.H. 1937)). For two reasons, these cases are unlikely to happen today. First, if parents are eligible for an exemption, a child can attend school unimmunized (see: In re Maria R., 81 Misc.2d 286 (N.Y.Fam.Ct. 1975) and State v. Miday, 263 N.C. 747 (N.C. 1965)). Second, if a parent lives in a state that does not require immunization for attending private school or for homeschooled children, a parent can choose that option and they are not violating compulsory education laws.

However, these cases suggest that if a parent chooses not to send a child to school and in doing so fails to meet the requirements of compulsory education for her state, she can be prosecuted but she cannot claim her oppositions to vaccines as a defense. Similarly, if a child is denied school attendance because she is not immunized and the parent does not qualify for a lawful exemption, the parent can be prosecuted for failing to meet the requirements of compulsory education for her state, but cannot claim as a defense the fact that the school denied her child entrance because she was unimmunized.

Criminal Prosecution for the Death or Harm to the Child from a Vaccine Preventable Disease

Criminal prosecution may be considered in a situation where the parent did not vaccinate and the child died, or was seriously injured, as a result of a vaccine preventable disease. In this post, however, I’m going to focus only on cases where the child died.  In my next post, I intend to discuss when the law can intervene before the child actually gets a disease.

Several considerations may justify criminal sanctions if a child dies because of a parent’s failure to vaccinate. First, if parents left their child exposed to a preventable serious risk, punishment might be just: the harm to the child calls for a response. Second, prosecuting a parent whose child has died because of their decision not to vaccinate may deter others from making a similar choice (and potentially deter the same parent from leaving other children unvaccinated). This may protect more children against preventable diseases, harm, suffering and death.

However, there are reasons to be very cautious in using criminal law to prosecute parents.  First, parents who choose not to vaccinate are not trying to harm the child, but trying to protect the child and act according to what a parent believes is in her best interest. They are not deciding on how to best care for an ill child, but are considering whether they need to protect a healthy child from a disease they often have little or no personal experience with (Luckily, high vaccination rates make most vaccine preventable diseases very rare today, leading to the famous saying that “vaccines are victims of their own success”.) The non-vaccinating parents’ risk calculation is wrong, but their state of mind makes this a very different case from a parent who neglects a child by withholding food for weeks, letting a child with high fever languish without treatment, or leaving an ailing child tied to a bed while they go out.  These are all instances in which parents were convicted for neglect that led to the death of a child.

Criminal law is also a heavy-handed instrument, and should probably be reserved, in the family context, for the most extreme of extreme situations. People should not be constantly looking over their shoulder with fear of the intervening state when making decisions about managing their children.  In the situation where a non-vaccinated child was injured or died from a vaccine-preventable disease, the family has to deal with the death or severely injury of a child. Adding a criminal sanction on top of that may be disproportional to the offense and unnecessarily cruel.

Each of the considerations above should affect whether criminal law should be used, and which type of offense, if any, should be brought against the parents.

The Legal Framework

To the best of my knowledge, no parent has been prosecuted for the death of a non-vaccinated child from a vaccine preventable disease.  There are, however, cases where parents were prosecuted for failure to provide medical aid to a sick child. The question is, can we extend these cases to apply to a situation in which the child dies as a result of being unvaccinated – and should we?

The starting point is that parents have a duty to provide medical aid to their children. In some states, courts find such a duty in child neglect and abuse statutes (e.g. Faunteroy v. U. S., 413 A.2d 1294 (D.C. 1980)). In others, courts create it.  This is referred to as a common law duty (See, for example, Com. v. Twitchell, 416 Mass. 114 (1993)). That duty can include providing the child with appropriate medication or taking the child to a doctor in appropriate circumstances. If a parent violates that duty and a child dies, a parent may be prosecuted under a manslaughter or homicide statute, depending on the circumstances.

How does this apply to non-vaccinating? It is unlikely, under usual circumstances, that parents had one of the more culpable states of mind necessary for anything higher than involuntary manslaughter. Parents choosing not to vaccinate are probably acting in a way they think is for a child’s benefit (if it can be shown otherwise, it’s a different ballgame). In some jurisdictions, voluntary manslaughter requires recklessness– a showing that the parents were very, very negligent. In others, ordinary negligence can be enough.

Not vaccinating is probably negligent: the risks of not vaccinating are substantially higher than the risks of vaccinating, and vaccinating is supported by an extensive medical consensus (see post 2 of this series). But recklessness seems incorrect. While the risks of not vaccinating are higher than the risks of vaccinating, most disease rates are low enough, thanks to vaccines, that the risk is still pretty small. One definition of recklessness is a high risk of serious harm; as long as the diseases are rare enough, that’s not the case. In addition, this situation is radically different from the cases usually prosecuted for manslaughter when a child dies because of medical neglect.  Not vaccinating a healthy child is different than not getting medical treatment to a child gravely ill, starving or otherwise in serious condition (e.g. State v. Jones, 778 So. 2d 1131 (La. 2001), People v. Pierson, 176 N.Y. 201 (1903), Faunteroy v. U. S., 413 A.2d 1294 (D.C. 1980), State v. Crawford, 188 Neb. 378 (1972)).

This supports the suggestion that we treat these cases differently than the current cases of medical neglect: where the heavy hand of criminal law may be justified in cases where a sick child is not provided with medical treatment, it can be seen as too harsh when the decision was not to vaccinate a healthy child against a disease that is rare in the population.  Under the formal definition of the law prosecution is possible, at least in jurisdictions where negligence is enough. But it is probably undesirable. In the midst of an outbreak of a potentially fatal disease a parent may be found reckless, and there is more justification to allow criminal prosecution – though it’s still not clear-cut that it’s appropriate.

There may also be a proximate cause problem: often, there is a time lag and many intervening events between a parent’s decision not to vaccinate and a child’s death.

That said, there are situations where a parent can be found to have been reckless. Here is a selection of situations I came across:

  • A child has been bitten by a dog. The parent makes a public statement online that she will not get the child a rabies or tetanus shot even if the doctor recommends it.
  • A parent is traveling to another country where the incidence of some vaccine preventable diseases is substantially higher than in the United States, but the parent decides not to vaccinate. For example, the parents of an 18 month old who has not received her MMR travel with their child to Wales knowing they are in the middle of a measles epidemic.
  • The parent intentionally exposes the unvaccinated child to a preventable disease. Or, in a variation I came across, a parent actively seeks to expose her nine-year old to whooping cough while also having an infant in the house.
  • A child steps on a nail and the parent washes the wound and applies hydrogen peroxide, but refuses to get the child medical attention or a tetanus shot.

In all of these situations it’s at least arguable that if a child dies a manslaughter prosecution is appropriate since the parent’s behavior is highly culpable. Criminal law may still be too harsh a response; but it’s worth considering.

Exemptions

One potential barrier to prosecution is the existence of religious exemptions in certain states.  Two should be addressed here: religious exemptions that exonerate a parent of child neglect for using faith healing; and religious exemptions from school immunization requirements.

The starting point to this discussion  is that courts would not acknowledge religious beliefs as a reason not to provide a child with medical assistance absent a specific statute protecting such beliefs (Com. v. Barnhart, 345 Pa. Super. 10 (1985)). And in several cases the courts, even in the presence of an exemption, have upheld convictions from manslaughter by interpreting the exemption as narrowly as possible (Walker v. Superior Court, 47 Cal. 3d 112 (1988), Com. v. Twitchell, 416 Mass. 114 (1993)). But many states have adopted explicit statutory exemptions which protect parents from prosecution in cases such as those involving faith healing.   (State v. Lockhart, 1983 Ok CR 76 (Okla. Crim. App. 1983)) (It’s not obvious they should; there is at least an argument that such exemptions are unconstitutional, as discussed below).  It would be hard to justify acquitting a parent who stood by as a child died slowly from diabetes or from a condition easily curable by antibiotics, while convicting a parent who did not vaccinate. If the statute is clear that faith healing or religious belief is a defense to manslaughter, it should probably also cover cases in which the decision not to vaccinate was really religiously motivated.

Supporting this is the fact that in some cases, even where the religious exemption did not apply, the courts felt a conviction was inappropriate because the mere existence of the exemption lead a parent to believe their behavior was exempt, thereby depriving the parent of fair warning that their behavior was criminal.   (State v. McKown, 475 N.W.2d 63 (Minn. 1991), State v. Miskimens, 22 Ohio Misc. 2d 43 (C.P. 1984)). This could be applied here: we could argue that non-vaccinating parents did not have fair warning that their behavior was criminal.

On the other hand, if courts interpret these exemptions narrowly and only on their terms they would not apply to failure to vaccinate.

Part of the irony is that these religious exemptions do not cover cultural beliefs that are not religious, even if sincerely held.

While a religious exemption may prevent a criminal conviction, non-medical exemptions from mandatory school vaccinations – whether religious or philosophical – probably should not. Exemptions from school immunization requirements reflect a state’s willingness to allow children to receive public education in spite of lack of vaccines. Their focus is probably protecting the wellbeing of other children in school and the assumption that a small number of exempt children would not result in widespread outbreaks that would endanger all.  However, the exemption does not necessarily protect a parent against prosecution for harm to the unvaccinated child herself. If courts apply exemptions that are explicitly about medical neglect narrowly, refusing to extend them to contexts in which they do not apply, they should refrain from applying exemptions from school immunization requirements in that context.  If a parent believed that they were not responsible for harm to their unvaccinated child on the basis that they were granted an exemption from school immunization requirements, that position would be unconvincing.

How Should the Law Change?

One appropriate reform would be to get rid of religious exemptions from manslaughter if the parent used faith healing. A parent should not be able to sacrifice a child’s life to her religious choices with impunity. A child’s life is not less worthy of retribution if the reason the parents did not provide medical aid was religious as opposed to cultural (and as stated above, cultural views are not covered by these exemptions).   The child does not get to choose the religion, and the parent should bear responsibility.

These religious exemptions may also be problematic under the Lemon test. In Lemon v. Kurtzman, 403 U.S. 602 (1971) the Supreme Court addressed when legislatures may enact legislation governing religion, and set three conditions. For a statute addressing religion to be constitutional, it must have a secular purpose, not have the primary effect of either advancing or inhibiting religion, and not result in excessive government entanglement with religion. Arguably, religious exemption – by leading courts to examine the sincerity of belief and providing shelter to religious-motivated nontreatment – can advance religion and lead to extensive government entanglement. (See: Alicia  Novak, The Religious and Philosophical Exemption to State-Compelled Vaccination: Constitutional and Other Challenges, 7 U. Penn J. Con. L. 1101, 1115(2005)).

Further, for the reasons above, courts should explicitly reject the use of religious or philosophical exemptions from school immunization requirements as a defense against manslaughter laws.

Finally, it may be appropriate to create a specific statute that outlines the circumstances by which the death of a child as a result of a parent’s decision not to vaccinate can be actionable in criminal law.


Readers are encouraged to pose questions in the comment section below for the author’s review and consideration.  Each of the remaining posts in the series will appear over the course of the next several weeks.  

Summary of “The Rights of the Unvaccinated Child” Blog Series

Part 1: Setting the Legal Framework  (click here to read)

Part 2: Can an Injured Child Sue a Parent Based on Their Choice Not to Vaccinate?  (click here to read)

Part 3: Can Parents Be Criminally Liable in Cases of Injury to an Unvaccinated Child? (see above)

Part 4: Under What Circumstances Is It Appropriate to Require Parents To Vaccinate?  (click here to read)

Part 5: The Role of School Immunization Requirements in Protecting the Unvaccinated Child (click here to read)

 


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