# Legal question: letting a child die **URL:** \ **Category:** Factual Questions\ **Created:** [February 4, 2005, 5:58pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399 "2005-02-04T17:58:18Z")\ **Posts on this page:** 17\ **Page:** 5
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [February 7, 2005, 5:09am UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/81 "2005-02-07T05:09:43Z")
> [@Random](#): > > But there still must be a duty of care and a breach of that duty, (which I believe was his point). I again disagree. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [February 7, 2005, 5:30am UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/82 "2005-02-07T05:30:32Z")
Chronos, that’s an interesting question, but I was only commenting on what appeared to be your suggestion that the mere fact that you might end up with more than one guardian was of itself a hurdle. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [February 7, 2005, 9:36pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/83 "2005-02-07T21:36:37Z")
> [@Cliffy](#): > > You’re wrong. 😉 In the hypo, under the common law, the skier has not engaged in any conduct; he has merely refused to do anything. Active != passive. > > –Cliffy > > P.S. Again, this is the type of thing that legislatures may change if they want; I see nothing in **Badge** ’s cite that indicates they have done so. Would you mind providing a link that explains the common law definition of “engaging in conduct”? ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [February 7, 2005, 9:44pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/84 "2005-02-07T21:44:49Z")
I’d still like that link, but a refined google found [this](http://www.heritage.org/Research/LegalIssues/lm7.cfm): > [@](#): > > The law also recognizes yet another culpable mental state with a further diminished aspect of purposefulness: One may be deemed guilty of a crime if one has acted with “criminal negligence.” One common law definition of “criminal negligence” (that is, negligence of such a substantial kind and degree as to warrant punishment) suggests the nature of the historical definition: "aggravated, culpable, gross or reckless [conduct], that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life."54 Under this standard, for example, chiropractic doctors who have recommended fasting as a treatment for tuberculosis have been convicted of culpably negligent manslaughter.55 Today, this type of “negligence” is more commonly called “recklessness”–that is, the awareness of a risk and disregard of the risk in circumstances that the law would consider unreasonable. Emphasis added. I would certainly offer that “an ordinarily prudent or careful man” would feed a three year old child, particularly since resources are not an issue. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [February 7, 2005, 10:15pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/85 "2005-02-07T22:15:02Z")
> [@Walloon](#): > > I again disagree. And you’re again wrong. Unless specifically defined in a statute otherwise, “reckless” means: “A person’s conduct is reckless if he does an act or intentionally fails to do an act **which it is his duty to the other to do** , knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary, under the circumstances.” (emphasis added) (RESTATEMENT (SECOND) OF TORTS § 500 (1965), quoted in _Galloway v. Walker_, a 2004 Idaho case found here: [http://www.isc.idaho.gov/opinions/galloway.pdf](http://www.isc.idaho.gov/opinions/galloway.pdf) ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [February 7, 2005, 10:22pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/86 "2005-02-07T22:22:01Z")
Clarification: My cited definition and the point I’m making relate to the central question of this thread: Whether it is illegal to refrain from acting, when that action would prevent injury to another, and inaction will make that harm reasonably certain. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [February 8, 2005, 2:36am UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/87 "2005-02-08T02:36:58Z")
When did Idaho court decisions become the national standard for all states? ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [February 8, 2005, 2:48am UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/88 "2005-02-08T02:48:11Z")
They didn’t. The Restatement, however, is just that. A restatement and distillation of the laws of all 50 states. A real cite. Something you haven’t offered yet. Also, outside of a Monty Python sketch, repeated contradictions do not make an argument. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [February 8, 2005, 12:22pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/89 "2005-02-08T12:22:50Z")
> [@Random](#): > > And you’re again wrong. Is he? Even in Idaho it may not be so clear: > [@Idaho Statutes Title 18](#): > > 18-401. DESERTION AND NONSUPPORT OF CHILDREN OR SPOUSE. Every person who: > (1) Having any child under the age of eighteen (18) years dependent upon > him or her for care, education or support, deserts such child in any manner > whatever, with intent to abandon it; > (2) Willfully omits, without lawful excuse, to furnish necessary food, > clothing, shelter, or medical attendance for his or her child or children, or > ward or wards; provided however, that the practice of a parent or guardian who > chooses for his child treatment by prayer or spiritual means alone shall not > for that reason alone be construed to be a violation of the duty of care to > such child; > (3) Having sufficient ability to provide for a spouse’s support, or who > is able to earn the means for such spouse’s support, who willfully abandons > and leaves a spouse in a destitute condition, or who refuses or neglects to > provide such spouse with necessary food, clothing, shelter, or medical > attendance, unless by the spouse’s misconduct he or she is justified in > abandoning him or her; > Shall be guilty of a felony and shall be punishable by a fine of not more than > five hundred dollars ($500), or by imprisonment for not to exceed fourteen > (14) years, or both. > > 18-403. ABANDONMENT OR NONSUPPORT PRIMA FACIE WILFUL. Proof of the > abandonment or nonsupport of a wife, or the desertion of a child or children, > ward or wards, or the omission to furnish necessary food, clothing, shelter, > or medical attendance for a child or children, ward or wards, is prima facie > evidence that such abandonment or nonsupport, or omission to furnish food, > clothing, shelter, or medical attendance is wilful. Both 18-401(1) and 18-403 make no reference to biological children. I think it could certainly be arguable as to whether our skier is subject to criminal prosecution. Forgive this non-lawyer his ignorance, but aren’t the Restatements generally about civil cases? I thought we were discussing a potential criminal case. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [February 8, 2005, 3:01pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/90 "2005-02-08T15:01:06Z")
No, I think the Idaho statutory language “having a child … dependant on him” for care refers to a prior relationship, with existing duties. (I agree with you that it need no be a biological child, though.) The Restatement does deal with torts, and not criminal law directly, but (i) many of the criminal statutues that people have cited here only apply if there’s a prior relationship or duty, and we can look to general (including tort) law for discussions of that; (ii) recklessness is primarily a tort concept; and there is often a parallel tort remedy for crimes. I’m also not aware of a Criminal Law Restatement. For these reason, a court considering a criminal charge will often look to tort definitions of words/phrases such as “negligent”, “willful and wanton”, “duty of care” and, yes, “reckless”, if there is no definition of the word in the criminal statute at issue. For example, here’s an Illinois Supreme Court reckless homicide case, where the court looks to general common law (and the Tort Restatement section I cited earlier) to determine whether the defendant’s behavior falls within the definition of “reckless”: _People v. Potter_, 5 Ill.2d 365, 125 N.E.2d 510 (1955). ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [February 8, 2005, 3:18pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/91 "2005-02-08T15:18:11Z")
> [@Random](#): > > The Restatement does deal with torts, and not criminal law directly, but (i) many of the criminal statutues that people have cited here only apply if there’s a prior relationship or duty, and we can look to general (including tort) law for discussions of that; (ii) recklessness is primarily a tort concept; and there is often a parallel tort remedy for crimes. I’m also not aware of a Criminal Law Restatement. There is no Restatement of criminal law, but there is the Model Penal Code; I’m not at home with my law books, or I’d provide some quotes. Unlike the restatements, of course, the MPC does not state common law – it provides recommendations, some that conflict with common law – especially in the area of _mens rea_. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [February 8, 2005, 5:15pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/92 "2005-02-08T17:15:10Z")
> [@Random](#): > > No, I think the Idaho statutory language “having a child … dependant on him” for care refers to a prior relationship, with existing duties. (I agree with you that it need no be a biological child, though.) I guess what I see is that 18-401(1) in conjunction with a reasonable, prudent test (see the reference in post #84) establishes the dependancy, ie, in a case where two people are left alive (one a very small child) and resources are available, would a reasonable, prudent person take the step of feeding and caring for the child? Since the rather obvious answer is yes, the child is dependent and the statute applies. To borrow from **Bricker** , “I think if I were a[n Iowa] DA, I’d roll the dice.” ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [February 8, 2005, 6:55pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/93 "2005-02-08T18:55:42Z")
> [@Cliffy](#): > > Interesting cite, **chriscya**. Just reading that, I think the guy in the OP hypo would be indictable were it to occur in Texas. Then again, not much skiing going on in the lonestar state. 🙂 ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [February 8, 2005, 6:57pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/94 "2005-02-08T18:57:00Z")
> [@Bricker](#): > > I’d be tempted to indict the guy anyway, and force him to pay to defend himself… but that would be wrong on my part. It would be wrong, I agree. Would it be criminal? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 9, 2005, 2:54pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/95 "2005-02-09T14:54:40Z")
> [@vetbridge](#): > > It would be wrong, I agree. Would it be criminal? Lacking a good-faith belief that the person I was prosecuting was factually guilty? Yes. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [February 9, 2005, 7:59pm UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/96 "2005-02-09T19:59:06Z")
> [@](#): > > Originally posted by **chronos** > Interesting cite, Cheesesteak… That seems to indicate that the skier in our hypothetical would be guilty… But it also seems to imply that a lot of other folks are guilty. Somewhere in some third world country, some kid is starving to death, and I’m permitting it. I could load up my duffel bag with Ramen noodles and book a plane ticket to Somalia, but I don’t. Am I guilty, under that law? (Ignoring, of course, the fact that I’m not in California.) A similar question could be asked about medical personnel. An M.D. is required by law to help a heart attack victim on the street. What if the same M.D. walks through the N.Y.C. subway system everyday and never bothers to offer help to any of the many mentally disturbed individuals who could at any moment throw themselves on the tracks? Would he be liable if one did? ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [February 10, 2005, 12:08am UTC](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399/97 "2005-02-10T00:08:30Z")
> [@x-ray vision](#): > > An M.D. is required by law to help a heart attack victim on the street. I don’t believe this is correct. It’s a common misconception, debunked already in this thread, that the so-called Good Samaritan laws require this. They don’t. What they may do is immunize medical personnel who **choose** to help an injured stranger on the street (injured as a result of a car accident, heart attack, drowning, or whatever) from malpractice claims brought by the victim, even if the treatment somehow worsens the injury. (Note: Good Samaritan laws are enacted at the state level. They vary, and your state may not have one. Don’t rely on this post as legal advice that applies in your situation.) [Previous page](https://boards.straightdope.com/t/legal-question-letting-a-child-die/288399.md?page=4)