Is it (Attempted) Murder?

A mother was recently convicted of attempted murder for withholding cancer medication from her child, a child who subsequently died when his cancer returned after a period of remission. The mother admitted to withholding the medication, but defended herself by claiming that she did so because she thought the side effects of the medication were too harsh:

LaBrie said she told her son’s doctor two or three times that she was afraid that “he just had had it.”

“He was just not capable of getting through any more chemotherapy,” LaBrie said. “I really felt that it could out-villainize the disease — the medicine could — because he was very, very fragile.”

The little boy, only 7-8 years old at the time, was also severely autistic, and his mother was caring for him alone. She and the father had a contentious relationship, although after the child’s doctors found out that the child hadn’t been receiving the cancer treatments, the boy went to live with his father. The mother was suffering from depression at the time she chose to withhold the medication, but the doctors testified that they told her that her son had an 85-90% chance of surviving the cancer if she stuck to the medication plan. It was after it was discovered that the mother deviated from the plan that the doctors discovered that the cancer returned, and a year later the child was dead. (The father died in a car accident several months after the boy’s death.)

Murder is not a term to throw around lightly, and in fact, the law does not. Murder requires the intent to cause death, or at least to cause grievous bodily harm. Intent cannot be inferred from the results of one’s actions; in other words, just because someone dies, or is grievously harmed does not allow an inference that the person who caused such harm intended for it to happen. To charge murder, the prosecution has to show that regardless of outcome, the accused intended, through their conduct, to cause death.

This is an attempted murder charge, which simply means that the accused must intend to commit murder, which is already a crime of intent. So the accused must intend to intend to cause death – they must intend to do whatever will cause death and they must intend to actually accomplish the act, i.e., cause death. One cannot attempt murder unconsciously or involuntarily. Courts use many different tests to determine how far the accused has to go to actually attempt a crime, but in Massachusetts (where this case is from), the accused must take a substantial step and come “reasonably close” to executing the crime through an overt act. An overt act is the point of no return – “an overt act must be of the type that a reasonable person would expect to set off the events that would naturally result in accomplishing the crime but for an unforeseen interference.” Attempted murder is simply murder that was unsuccessful in actually producing death.

In this case, to convict this mother of attempted murder – and not just murder – the jury had to believe that this mother intended, through withholding the medications, for her child to die, but her conduct – withholding the medication – did not actually cause the child to die.

Am I the only one who sees a problem in this?

The doctors testified that there were five phases of treatment, and if all five phases were completed, the child had an 85-90% chance of survival. The mother testified that she followed through four of the phases to completion, but withheld only the fifth phase. When the doctors reexamined the child, that’s when they noticed the cancer had returned in a more aggressive form.

First, where is the intent to kill? Nothing in this article, at least, indicates that this mother intended to kill her child, or that she knew that in withholding the medication that death was certain to occur.

Second, and closely related, there was no guarantee that if the child completed the treatment completely, meaning all five phases, that he would survive. So no reasonable person would expect that not finishing all the phases would certainly lead to death. There was no overt act that creates the attempt to commit murder.

Third, the child died from cancer, but not the original type of cancer he once had. The fact that the child eventually died is really not relevant, but I’m sure that the prosecutor used the fact that the boy died to their advantage. They couldn’t charge her with murder because there is no way to prove that her withholding the drugs is what led to the cancer coming back and ultimately the child’s death. But ironically, if her conduct was attempted murder, then what stopped the attempt from being full-out murder? What stopped her conduct from producing the result that she intended? Again, its clear that there was no guarantee that the child would have survived had she given him the drugs, and no guarantee he would have died from withholding. Why did the jury find beyond a reasonable doubt that this woman intended for her child to die when no reasonable person would believe that death would be his outcome, and the prosecutor could not even charge murder because the causal chain is too tenuous?

We put a lot of pressure on moms to be superheroes. We expect them to make all the right choices, the choices we say we would have made. We chide them, punish them when they make a choice that turns out to be the wrong one, one that we think they should have chosen differently on. We expect mothers to be martyrs, and saints. We call them murderers when perhaps they were choosing compassion.We constantly second guess what they do, never really stopping to put ourselves in their shoes.

I hope this mother and her lawyer passionately pursue an appeal. While she is probably guilt-ridden, I don’t think she is guilty.