{"id":50159,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/a-south-carolina-conviction-based-on-a-pregnant-womans-cocaine-use.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"a-south-carolina-conviction-based-on-a-pregnant-womans-cocaine-use","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/a-south-carolina-conviction-based-on-a-pregnant-womans-cocaine-use.html","title":{"rendered":"A South Carolina Conviction Based On A Pregnant Woman’s Cocaine Use"},"content":{"rendered":"\n
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A SOUTH CAROLINA CONVICTION BASED ON A PREGNANT WOMAN’S COCAINE USE: Should We Criminalize Harm To Unborn Children? <\/h1><\/td>\n <\/tr>\n

By BARTON ARONSON<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Jun. 01, 2001<\/td>\n\n <\/tr>\n <\/table>\n

A South Carolina jury recently convicted Regina McKnight of murder. The prosecution \nwas unprecedented: McKnight, a cocaine addict, was charged in the death of her \nstillborn daughter. A few women have plead guilty to involuntary manslaughter \nin similar situations, but none has ever been tried and convicted of murder. McKnight \nwill now serve at least 12 years in prison \u0097 where her next child will be \nborn.<\/p>\n

The McKnight case will undoubtedly encourage other prosecutors to consider \nbringing similar charges for either child abuse or homicide. And who could blame \nthem: few things appall us more than an innocent newborn suffering injury or death \ndue to her mother’s conduct during pregnancy. But before we turn these admirable \ninstincts into court cases, we should pause to consider a number of issues.\t<\/p>\n

Only in South Carolina<\/b><\/p>\n

Assaulting a woman who is pregnant is twice as bad as assaulting one who isn’t \n\u0097 literally. In many states, if you injure both a woman and her viable fetus, \nyou can be charged twice. <\/p>\n<\/span>\n\n \n \n
<\/td>\n\"[citizen<\/span><\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\nan unborn child was exempt from criminal liability for conduct that harmed the \nchild. Even in states in which abortion was a crime, only the doctor could be \ncharged; the mother was considered a victim.\n

This is still the rule almost everywhere. In 1997, for example, Florida charged \nKawana Ashley with murdering her unborn child after she shot herself in the stomach \nin her third trimester. The Florida Supreme Court, however, barred the prosecution.<\/p>\n

Florida’s murder laws, of course, don’t say anything about mothers or anybody \nelse; they simply prohibit murder. In ruling that these laws didn’t apply to Ashley, \nthe court relied upon a rule of statutory interpretation that strictly limits \nthe reach of statutes that are contrary to the common law. <\/p>\n

Under this rule, statutes are presumed to be consistent with the common law, \nunless they explicitly say otherwise. So if mothers can’t be prosecuted at common \nlaw for crimes against their unborn children, and modern criminal statutes don’t \nexplicitly reach out to include such crimes, then the state can’t prosecute. <\/p>\n

South Carolina is different. Several years ago \u0097 in a case that, like \nMcKnight’s, involved a young, pregnant crack addict \u0097 the state’s Supreme \nCourt ruled that its criminal child abuse statutes covered a mother and her viable \nfetus. Many see the McKnight prosecution as one small remove from that case: if \na mother can be prosecuted for child abuse, why not murder?<\/p>\n

The Need for Notice<\/b><\/p>\n

\n\nIn addition to outrage, we have lots of ways of dealing with pregnant women \nwho injure their children, including terminating their parental rights. But criminal \nprosecution is another matter. <\/p>\n

Start with the Florida court’s reasoning in Ashley’s case: Until she was actually \nindicted, the court said, Ashley had no way of knowing that she could be charged \nwith a crime based on what she had done. Historically, in fact, she couldn’t be. \n<\/p>\n

Regina McKnight’s situation wasn’t all that different. Given the severity of \ncriminal sanctions, society demands rather specific notice of what constitutes \na violation of the criminal law. Mothers who harm their unborn children don’t \nhave such notice right now \u0097 at least, not outside South Carolina. <\/p>\n

The Need for Consensus<\/b><\/p>\nlaw is, today, mostly statutory. The statute books stay tuned to society’s frequencies \nthrough the ballot box: new criminal laws are written by legislators who have \nto face voters. Legislatures openly debate changes to the criminal law (remember \nall the publicity surrounding California’s “three strikes” rule?). Voters who \ndisagree can register their disapproval in the next election. \n

But there is no consensus in our society regarding criminal<\/i> liability \nfor pregnant mothers who harm their unborn children. Legislation has been introduced \nin nearly every state (including South Carolina) to criminalize drug use by pregnant \nwomen; to date, not one bill has passed. Our society is riven on virtually every \nquestion involving the rights and responsibilities of pregnant women, including \nthe question whether criminal penalties are appropriate in cases like these. <\/p>\n

For what it’s worth, the medical community generally opposes criminal approaches \non the grounds that pregnant women will be discouraged from seeking much needed \nprenatal care. Criminal liability may, as a result, ultimately harm more unborn \nchildren than it protects. <\/p>\n

General criminal laws, like those prohibiting homicide, should not be deployed \non the cutting edge of society’s efforts to regulate behavior. The criminal law’s \noperation is too selective and its consequences too harsh. Whatever the merits \nof South Carolina’s prosecution of McKnight, such cases should have the sanction \nof a proposed statute, a public debate, and a legislative vote.<\/p>\n

A Problem of Prosecutorial Discretion<\/b><\/p>\n

We should also pause before creating a new crime (or category of criminals) \nwhenever that would pose unusual problems for the exercise of prosecutorial discretion. \nA prosecutor has to choose, from among a large number of violations of the criminal \nlaw, those she will investigate and then actually prosecute. <\/p>\n

Using (or, actually, possessing) cocaine is against the law for everyone. A \nwoman who uses cocaine while pregnant may, of course, do serious damage to her \nfetus. So might a woman who drinks or smokes too much. But if the point of laws \nagainst child abuse and homicide is to protect the victims, there is no rational \nway to distinguish between a woman who harms her child through the illegal use \nof cocaine and one who does the same through the legal use of alcohol. <\/p>\n

A state could, conceivably, criminalize otherwise legal conduct (like drinking) \nthat harms a child or causes a miscarriage; thousands of children are born every \nyear with fetal alcohol syndrome. But do we want prosecutors selecting targets \nfor prosecution among women engaging in otherwise legal conduct? <\/p>\n

Put differently, how many glasses of wine are too many? Some women will drink \na lot, with no discernible effect on their children; others may drink less and \nstill do harm. When injury is serendipitous, can prosecutors fairly exercise their \ndiscretion to prosecute?<\/p>\n

Causation Problems<\/b><\/p>\nof causation. In most criminal cases, proving causation is merely a technical \nnecessity. The coroner may solemnly intone that the decedent died from a massive \ncerebral hemorrhage caused by blunt force trauma, but the jury’s already tumbled \nto the fact that the bad guy did in the other guy by whacking him on the head \nwith a bat.\n

Homicide cases (though perhaps not child abuse cases) like McKnight’s will \nbe different. Three pathologists testified at her trial on the possible causes \nof her baby’s death. Such civil style “battles of the experts” will be commonplace \nin such prosecutions. We need to ask whether, under such circumstances, we can \n(or want to try) to secure reliable verdicts under the criminal standard of guilt \nbeyond a reasonable doubt.<\/p>\n

South Carolina’s prosecution of Regina McKnight will, inevitably, become enmeshed \nin the abortion wars. Such entanglement is likely to prevent a useful debate on \nwhether the criminal law can play a meaningful role in the overall effort to ensure \nthe health of pregnant women and the children they bear. Short of such a debate, \nwe should be cautious indeed before turning the McKnight case into a model to \nfollow. <\/p>\n<\/span> \n

\n\n\n<\/a>\nBarton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.\n\n\n

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