Second Circuit Clerk's Office Relocation
Programming Note

Yet Another Questionable Decision to Prosecute

People v. Swinton, 2006 NY Slip Op 05240, is a case with an extremely interesting set of underlying facts.  The Swintons were charged with Assault in the First Degree, Reckless Endangerment in the First Degree and Endangering the Welfare of a Child based upon allegations that they'd acted in a depraved manner by keeping their child on a strict vegan diet from the date that she was born. They were ultimately convicted of the charges following a jury trial and sentenced to state prison.

Earlier this month, the Court of Appeals concluded that the evidence against the Swintons was legally insufficient to establish the culpable mental state of depraved indifference.  The charges were reduced to Assault in the Third degree and remitted to the trial court for re-sentencing.  The Swintons were released from prison on July 18, 2006.

After reading the dissent from the Second Department's decision, I'm not sure that they should have even been prosecuted in the first place.  This case raises a number of the same issues as those that I previously discussed in this post regarding Starchild Abraham Cherrix and the court's order that required him to undergo traditional cancer treatment. 

The Swintons appeared to have genuinely believed that they were doing the right thing for their child, although their decisions had disastrous results.  From the Second Department dissenting opinion:

The defendants are the parents of a baby girl named "Ice," who was born July 31, 2000. Based upon her personal experiences, the defendant mother became mistrustful of doctors and modern medicine. As a result, the defendant mother researched childbirth alternatives, eschewed professional medical services, and gave birth to Ice at home, assisted only by the defendant father. Ice weighed approximately three pounds at birth.

The defendants are strict vegetarians. They determined that they would raise Ice on a vegetarian diet. It is not seriously controverted that Ice did not flourish on this diet. She remained undernourished and underdeveloped to the extent that when Ice came to the attention of child welfare authorities in November 2001, when she was approximately 16 months of age, she weighed 10 pounds when she should have weighed about 25 pounds. Ice had no teeth, underdeveloped and soft bones, and was unable to support her own head or bear her own weight. These and numerous other conditions were caused by "severe malnutrition secondary to insufficient intake of calories and protein and nutrition." In short, the strict vegetarian diet provided by the defendants was to blame for Ice's many maladies.

Clearly the defendants' treatment of Ice warranted involvement of child welfare officials (see Family Ct Act art 10). What is less clear to me is the need for criminal prosecution. The defendants each stand convicted, inter alia, of assault in the first degree. While I do not dispute the conclusion that the evidence adduced at trial was legally sufficient, under the unusual circumstances herein, I find that the jury's verdict was contrary to the weight of the evidence. Accordingly, I would reverse the assault convictions and dismiss the count charging same.

The dissent also sets forth a number of facts that support the defendants' assertion that they believed that she was a healthy, but small child, including the father's low IQ.  And, an EMT and a social worker that saw the child prior to the Swintons' arrest did not feel compelled to notify the authorities regarding any sort of neglect.

The Swintons were negligent--no doubt about it.  But reckless or evincing depraved indifference to human life?  Absolutely not.  And, how did society ultimately benefit from the prosecution and imprisonment  of this couple?  Was the greater good truly served?


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I'm assuming you would have agreed with civil remedies, like removing the child and educating the parents, and supervising upon return, so its not really like the Starchild case. Also, if your ideas are that dumb and dangerous I'm not too concerned with whether they're deeply held beliefs or whether you are mentally slow. (Always a defense, rarely disqualifies anyone from doing anything - what's up with that by the way!) Also, the court left us in the position of hit the child with a belt - felony. Starve a child cruelly for a long period of time - misdemeanor. Does that make sense? Not to me and not to that jury.


Slick--while it's factually different from Starchild in some ways, it's similar, in my mind, in that it deals with the issue of parents making decisions (sometimes quite misguided) re: how to care for their child and whether to utilize modern medical technology and recommendations. Certainly, there's a sizeable range of acceptable decisions and outcomes, with some being begrudgingly accepted (ie--not vaccinating your kids) vs. a vegan diet,which clearly was not adviseable.

Th Starchild case, in my opinion, was a situation that did not call for civil remedies or interference by the gov't. The Swinton case, on the other hand, fell on the other end of the range of possibilities, and civil remedies were certainly appropriate, whereas criminal charges were not.

As for the issue raised in the latter half of your comment--there's certainly a difference in the mental state in the two scenarios that you mention. The first is certainly an intentional act, whereas the second is negligent. If a parent had a habit of swinging a leather belt around the kids without regard to the kid's location, that might be comparable. But intentional hitting is not, IMHO.

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