Legal Blog

When is Religious Freedom a Defense?

23 December 2016 | Criminal Defense,  Legal Blog,  

Attorney Sean Hessler

Written by
Sean Hessler

23 December 2016

Criminal Defense,  Legal Blog,  

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Indianapolis resident Kihn Par Thaing, a 30-year-old refugee from Myanmar (formerly known as Burma) was arrested and charged with felony child abuse and neglect because she beat her son with a plastic coat hanger. The child’s bruises were so severe that he winced in pain when his teacher patted his back the next day. Under the state’s duty to report law, the teacher contacted child services, which then alerted law enforcement to this case of suspected abuse.

Mrs. Thaing’s lawyer was able to defend her case by appealing to the Indiana Religious Freedom Restoration Act and a recent Indiana Supreme Court ruling guaranteeing a parent’s right to discipline a child in the way they see fit. The prosecutor ended up dropping the felony charges, and the court allowed Mrs. Thaing to walk free after she pleaded guilty to battery.

New Indiana Law Specifically Protects Religious Freedom

According to court documents filed by her defense lawyer, charging Mrs. Thiang with child abuse would constitute a violation of her religious freedom. As an evangelical Christian, Mrs. Thiang adheres to a biblical approach to disciplining children. According to Proverbs 23:14: “Do not withhold discipline from a child; if you strike him with a rod, he will not die. If you strike him with the rod, you will save his soul from Sheol.”

Mrs. Thaing’s defense lawyer argued that the Indiana Religious Freedom Restoration Act gives parents the right to raise their children according to their beliefs. Indeed, the Act prohibits the government from interfering with religious liberties unless the interference furthers a compelling government interest, and it is put in place through the least restrictive means possible.

The prosecutor countered that Mrs. Thiang’s beating went “beyond these religious instructions” and that the government’s interest in protecting children from abuse outweighs its interest in protecting religious freedom. Furthermore, no section of the Religious Freedom Restoration Act specifically pertains to parenting, so it might not even be designed to apply to cases such as Mrs.Thaing’s.

The Indiana Supreme Court Grants Wide Parenting Rights

Despite the weakness of the defense’s arguments under the Religious Freedom Restoration Act, the prosecutor backed down from the felony charges. The reason is probably a 2008 Indiana Supreme Court decision that affirmed the right of parents to discipline their children in the way they see fit – regardless of whether others feel the measures are excessive. Under this ruling, parents can use cords, belts, and apparently, coat hangers to discipline their children.

Mrs. Thaing’s position was further strengthened by the fact that her style of parenting was based not on individual choice, but on cultural norms. According to Elaisa Vahnie, the executive director of the Burmese American Community Institute in Indianapolis, beating children with sticks – which would be considered criminal in many US jurisdictions – is normal in Myanmar. Mrs. Thaing has expressed her willingness to adapt to American standards of child rearing in the future.

When Can Religious Freedom Be Used as a Defense to Criminal Charges?

Governor Pence signed the Indiana Religious Freedom Act into law last year, so it has not yet been raised as a defense in many criminal cases. In fact, Mrs. Thaing’s case was one of the first. But outside of Indiana, people have used similar freedom of religion laws to avoid criminal charges.

For example, the right to religious freedom has been cited in child abuse cases where parents have refused medical treatment for their children for religious reasons. In other cases – and this is certainly not what Mike Pence had in mind – people charged with using peyote or marijuana have countered their charges by claiming that their religious beliefs require them to consume these illegal substances.

Hessler Law is Here to Help

Whether such defenses will work depends on the letter of the law and the personal inclinations of the judge hearing your case. In any criminal case, a good lawyer will know what arguments may be successfully used in court. The Indianapolis criminal lawyers of Hessler Law have intimate knowledge of the Indianapolis criminal court system and prosecutor’s office, which enable us to craft defense strategies with a strong likelihood of success.

If you’re facing criminal charges, call us today at (317) 886-8800 for a free and confidential case consultation.