Man who let his son die loses appeal

Associated Press/July 16, 1998
By Charles E. Beggs

Salem -- The conviction of a man whose son died of leukemia after he rejected medical treatment in favor of prayer was upheld Wednesday by the Oregon Court of Appeals.

Loyd Hays of Brownsville was convicted of criminally negligent homicide in the November 1994 death of his 7-year-old son, Tony.

Hays and his wife, Cristina, were charged with manslaughter and negligent homicide. A Linn County Circuit Court jury convicted Hays of negligent homicide and acquitted his wife.

The family belongs to the General Assembly and Church of the First Born, whose members eschew traditional medicine. When Tony was ill, family members prayed for him.

Hays was sentenced to five years on probation and ordered to report any serious illness or injury to any child in his care.

Hays' appeal claimed that Oregon's criminally negligent homicide law is constitutionally vague and overly broad, violating the First Amendment right to freedom of religion.

A three-judge appeals court panel said the law "is not ambiguous when applied to a parent's duty to provide medical treatment to a child."

"If the parent's failure to be aware of a substantial risk that the child will die is a gross deviation from the standard of a reasonable person, and if as a result the child dies, the parent is guilty of the offense," the court said.

Clackamas County District Attorney Terry Gustafson, who in April declined to file charges in the diabetes-related death of an 11-year-old boy treated only with prayer, said Wednesday that the Hays decision has no legal bearing on the Clackamas County case.

Unlike the Hays case, the Clackamas County case is governed by laws put into effect in 1997 providing a religious exemption for manslaughter, Gustafson said. But Attorney General Hardy Myers has said the Clackamas County case could have been prosecuted under the state's criminally negligent homicide statute.

Gustafson has argued that the second-degree manslaughter charge that includes religious immunity is worded nearly identically to the negligent homicide law. Because of the contradiction, she said prosecution would be unfair.