(dissenting).
I respectfully dissent. I fully concur in the majority’s determination that nothing in the language of either Minn.Stat. § 609.-378 (1988), the child neglect statute, or Minn.Stat. § 609.205 (1988), setting out the crime of second degree manslaughter, suggests they are so closely related as to require them to be interpreted in the light of each other. Having determined that the two statutes, which have quite different purposes, should not be construed together, the majority goes on to hold that the indictments issued here failed to meet constitutional requirements of due process of law because the child neglect statute did not notify them that although depending on “spiritual means or prayer for treatment or care of disease or remedial care of the child” constituted “health care” for purposes of the child neglect statute, that conduct might, under some circumstances, constitute unlawful conduct pursuant to some other statute. This novel proposition, that conduct which complies with the requirements of one statute complies with all other statutes absent notification to the contrary, is in my opinion nothing more than the rejected in pari materia argument garbed in the cloak of due process. Inasmuch as defendants do not complain that either the child neglect statute or the manslaughter statute is so vaguely worded that one cannot reasonably discern what conduct each prohibits, the due process argument necessarily depends on construing the two statutes together.
Moreover, the due process argument is defective not only because it depends on construing the two statutes together but also because it depends on misconstruction of a statute and because it rests on an unavailable defense to the charge of manslaughter.
As set forth in Minn.Stat. § 609.205(1) (1988), the offense of second degree culpably negligent manslaughter is “an offense that involves both the objective element of negligence and the subjective element of recklessness, * * * *” State v. Grover, 437 N.W.2d 60, 63 (Minn.1989). In order to establish the objective element of negligence the state must prove “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” State v. Zupetz, 322 N.W.2d 730, 733 (Minn.1982) [quoting 2 C. Torcia, Wharton’s Criminal Law § 168 at 272 (14 ed. 1979]). In order to establish the subjective element of recklessness the state must establish “an actual conscious disregard of the risk created by the conduct.” State v. Frost, 342 N.W.2d 317, 320 (Minn.1983).
Statutes of this type have regularly and uniformly withstood due process challenges. Indeed, in State v. Grover, 437 N.W.2d at 63-64, we upheld against a due process challenge a criminal statute containing only an objective element of negligence.1 In doing this, we quoted Justice *70Oliver Wendell Holmes, Jr.’s response to a due process challenge to a criminal statute containing a negligence element: “[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” Id. at 64 [quoting Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913)].
One cannot be convicted of culpably negligent manslaughter simply because one has not “estimated rightly.” It is not enough that one has estimated wrongly, even in a grossly deviant sense. The state must also establish that the defendant was aware of the risk created by his or her conduct and actually and consciously disregarded that risk.
The statute on which defendants rely in support of their argument that their prosecution for culpably negligent manslaughter is barred is not the statute dealing with culpably negligent manslaughter, nor is it one of the statutes setting forth the defenses recognized by the legislature as being generally applicable in criminal prosecutions [See, e.g., Minn.Stat. § 609.08 (1988) (duress)]. Rather, defendants rely on what they characterize as an exception to the statute which makes it a gross misdemeanor to willfully deprive a child of various enumerated necessities, including “health care,” if the deprivation “substantially harms the child’s physical or emotional health.” Minn.Stat. § 609.378 (1988). The relevant statutory language is this definition:
If a parent, guardian or caretaker responsible for the child’s care in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the child, this treatment shall constitute “health care” as used in clause (a).
There is no reason to believe that the legislature intended this provision of the child neglect statute to have any effect on a parent’s criminal liability for culpably negligent manslaughter. This definitional language does not “except” spiritual means and prayer from operation of the child neglect statute; it simply provides that a parent who “in good faith” selects and depends on spiritual means or prayer for treatment of his or her child is.no more— nor less — subject to prosecution for gross misdemeanor child neglect than a parent who furnishes more conventional health care. Whatever kind of health care is selected, one who violates Minn.Stat. § 609.-205(1) (1988) has by definition not acted “in good faith” but has both (a) grossly deviated from the standard of care that a reasonable person would observe in the actor’s situation and (b) although aware of the risk created by that deviation, callously or consciously disregarded the risk. Whatever kind of health care is selected, due process does not require notification that selection of and reliance on a course of conduct which appears to comply with the requirements of one statute may not meet the requirements of another.
If, for example, a parent selects conventional health care and engages a physician to treat a child, there is no basis for a prosecution for child neglect because the parent has provided necessary health care. If, however, the parent who selects conventional health care knowingly engages a physician whose license has been suspended or revoked because of habitual neglect of patients caused by drug addiction and if the child should die because of the physician’s neglect, I think it highly unlikely that anyone would contend that the absence of a warning in the child neglect statute insulated the parent from a charge of manslaughter. Due process does not require notification that selection of a form of treatment acceptable under the child neglect statute does not eliminate all possible criminal responsibility.
Similarly, a parent who provides clothing for a child has not violated the child neglect statute because the parent has not willfully deprived his or her child of necessary clothing. If, however, the parent knowingly *71clothes the child in pajamas of flammable material with full knowledge that the child’s siblings frequently cause fires by playing with matches, and the pajama-clad child is subsequently burned to death in a fire started by the child’s brother, the absence of a warning in the child neglect statute could hardly be said to protect the parent from a charge of manslaughter.
I believe that an individual “should be able reasonably to rely upon a statute or other enactment under which his conduct would not be criminal.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.1(2) at 591 (1986). However, I reject the argument that that concept has any application here. In enacting Minn.Stat. § 609.378 (1988), the legislature did not in any way shield parents from prosecution for culpably negligent manslaughter under Minn. Stat. § 609.205(1) (1988). Any mistake by defendants based on the child neglect statute is a mistake of law, which is not recognized as a defense. 1 W. LaFave & A. Scott § 5.1(d).
This is not to say, however, that defendants’ belief that prayer is a better cure than medicine is without relevance in a prosecution under Minn.Stat. § 609.205(1) (1988). As stated in 2 W. LaFave & A. Scott § 7.12(a) at 281-82 n. 28:
[I]t is no interference with one’s freedom of religion to convict of manslaughter one who, for religious reasons, fails to call a doctor when to fail to do so constitutes criminal negligence. Yet an honest religious belief that prayer is a better cure than medicine, that Providence can heal better than doctors, might serve to negative the awareness of risk which is required for manslaughter in those states which use a subjective test of criminal negligence.
As I stated earlier, there is both an objective element and a subjective element to the offense of second degree culpably negligent manslaughter. Here a grand jury returned an indictment charging the defendants with second degree manslaughter, that is, the grand jury found probable cause to believe that the defendants’ conduct met both the objective element (unreasonable risk) and subjective element (consciously disregarded a known risk) of the crime of second degree manslaughter. Nevertheless, the majority simply assumes the defendants acted in good faith. Without intending to address the wisdom of prosecuting these parents or to speak specifically to the various evidentiary issues that might arise at a trial of defendants, I assume as a general matter that a trial court would liberally admit evidence supporting defendants’ claim that they acted in good faith in relying on prayer and spiritual means rather than seeking medical care. But in light of the action of the grand jury, whether or not the defendants were culpably negligent — that is, whether they created an unreasonable risk and if so, whether they lacked good faith and consciously disregarded a known risk — is in my opinion a jury question, not a question appropriately decided by this court at the pretrial stage on the basis of a mistaken interpretation of a statute.
. Specifically, we upheld the child abuse reporting statute, Minn.Stat. § 626.556, subd. 6 (1986), subjecting certain professionals to misdemeanor *70liability if they know or have reason to believe a child is being abused and yet fail to report the suspected abuse.