416 Mass. 114, 617 N.E.2d 609 (1993)
David and Ginger Twitchell were the parents of Robyn Twitchell, who died on April 8, 1986, at the age of two and one-half years.1 Robyn's death resulted from peritonitis caused by the perforation of his bowel, which had been obstructed as a result of an anomaly known as Meckel's diverticulum.2 Evidence presented at trial indicated that this condition could be corrected by surgery with a high success rate.3
The Twitchells are practicing Christian Scientists who grew up in Christian Science families and believe in healing by spiritual treatment.4 During Robyn's five-day illness from Friday, April 4, through Tuesday, April 8, they retained a Christian Science practitioner, a Christian Science nurse, and at one time consulted with Nathan Talbot, who held a position in the church known as the Committee on Publication.5 As a result of that consultation, David Twitchell read a church publication concerning the legal rights and obligations of Christian Scientists in Massachusetts.6
That publication quoted a portion of G.L. c. 273, § 1, as then amended, which accepted remedial treatment by spiritual means alone as satisfying any parental obligation not to neglect a child or to provide a child with physical care.7 The Twitchells appealed their convictions of involuntary manslaughter, and the Supreme Judicial Court granted their request for direct appellate review.8
Whether the spiritual treatment provision in G.L. c. 273, § 1 protects parents from criminal liability for involuntary manslaughter when they rely on spiritual treatment for an ill child?9
Parents owe a common law duty to provide medical care to a seriously ill child, and the breach of that duty through wanton or reckless conduct can support an involuntary manslaughter conviction.10 The spiritual treatment provision in G.L. c. 273, § 1 addresses only neglect and wilful failure to provide physical care within the support statute and does not extend to alter the common law elements of manslaughter.11 The provision therefore supplies no defense to a manslaughter charge even when parents rely in good faith on spiritual treatment.12
No. David and Ginger Twitchell retained a Christian Science practitioner and nurse rather than obtaining medical care for Robyn during his five-day illness.13 Robyn's condition involved a bowel obstruction from Meckel's diverticulum that surgery could correct with a high success rate.14 The common law duty recognized in Commonwealth v. Gallison requires parents to seek medical help for a gravely ill child.15 The spiritual treatment language in § 1 applies solely to the misdemeanor offenses of neglect and wilful failure to provide care.16
It does not reach the distinct wanton or reckless conduct that defines involuntary manslaughter under Commonwealth v. Welansky.17
The spiritual treatment provision in G.L. c. 273, § 1 does not protect the Twitchells from criminal liability for involuntary manslaughter.18
Related opinions on this issue
Justice Nolan agrees that the spiritual treatment provisions of G. L. c.
273, § 1 are no defense to common law manslaughter.19 He maintains that the Attorney General's opinion addresses only negligent failure to provide care and never reaches homicide liability.20 Nolan argues that the court is improperly straining in concluding that the opinion might be read as inviting a conclusion that parents who fail to provide medical services are not subject to criminal prosecution in any circumstances.21
Whether the defendants were denied due process of law because they lacked fair warning that their conduct could support a manslaughter prosecution?22
Due process requires fair warning that conduct may be criminal, but a statute is not unconstitutionally vague when it clearly covers only specific offenses and leaves common law manslaughter untouched.23 Retroactive judicial construction that surprises defendants violates due process only when the interpretation was unforeseeable.24 Coexistence of a limited statutory protection and the common law of homicide does not create contradictory commands that deny fair warning.25
No. The Twitchells consulted Nathan Talbot and read the church publication that quoted G.L. c. 273, § 1 before Robyn's death.26 That statute on its face protects only against charges of neglect and wilful failure to provide physical care.27 The common law definition of involuntary manslaughter, requiring proof of wanton or reckless omission of a duty to provide medical care, remained unchanged and was not altered by the spiritual treatment language.28
The Twitchells therefore received constitutionally adequate notice that their conduct could still constitute manslaughter.29
The defendants were not denied due process of law for lack of fair warning that their conduct could support a manslaughter prosecution.30
Whether the defendants were entitled to present to the jury an affirmative defense based on reasonable reliance on an official statement of the law?31
A defendant may assert an affirmative defense of entrapment by estoppel when an official charged with interpreting the law issues a statement that a reasonable person could read as authorizing the conduct later charged as criminal.32 The defense requires proof by a preponderance that the defendant reasonably relied on the official interpretation and that the reliance was the product of an effort to comply with the law while adhering to religious beliefs.33 The trial court must allow the jury to decide the factual questions of reasonableness and actual reliance.34
Yes. The Attorney General's 1975 opinion stated that parents relying on spiritual treatment would not be subject to prosecution for failure to provide medical services and issued no caveat about manslaughter liability.35 The church publication that David Twitchell read repeated language from that opinion and assured readers that the statute precluded criminal liability for negligent failure to provide medical care.36 The Twitchells consulted the Committee on Publication and sought to determine the legal limits of their religious practice.37
These facts entitled them to present the affirmative defense of reasonable reliance to the jury even though they did not request the instruction at trial.38
Related opinions on this issue
Justice Nolan rejects the majority's creation of an affirmative defense on these facts.41 He notes that the defendants were unaware of the Attorney General's opinion itself and relied only on the church publication.42 Because the publication never addressed manslaughter liability and was properly excluded as incompetent evidence, Nolan concludes that no basis existed for submitting an estoppel defense to the jury and that the convictions should stand.43
The publication was properly excluded because it was not competent evidence on the issue of manslaughter.44 For this reason, the defendants' reliance on it is not relevant and it should not be considered by a jury.45