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Friday, Jun. 01, 2001

A South Carolina jury recently convicted Regina McKnight of murder. The prosecution was unprecedented: McKnight, a cocaine addict, was charged in the death of her stillborn daughter. A few women have plead guilty to involuntary manslaughter in similar situations, but none has ever been tried and convicted of murder. McKnight will now serve at least 12 years in prison — where her next child will be born.

The McKnight case will undoubtedly encourage other prosecutors to consider bringing similar charges for either child abuse or homicide. And who could blame them: few things appall us more than an innocent newborn suffering injury or death due to her mother's conduct during pregnancy. But before we turn these admirable instincts into court cases, we should pause to consider a number of issues.

Only in South Carolina

Assaulting a woman who is pregnant is twice as bad as assaulting one who isn't — literally. In many states, if you injure both a woman and her viable fetus, you can be charged twice.

an unborn child was exempt from criminal liability for conduct that harmed the child. Even in states in which abortion was a crime, only the doctor could be charged; the mother was considered a victim.

This is still the rule almost everywhere. In 1997, for example, Florida charged Kawana Ashley with murdering her unborn child after she shot herself in the stomach in her third trimester. The Florida Supreme Court, however, barred the prosecution.

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

Under this rule, statutes are presumed to be consistent with the common law, unless they explicitly say otherwise. So if mothers can't be prosecuted at common law for crimes against their unborn children, and modern criminal statutes don't explicitly reach out to include such crimes, then the state can't prosecute.

South Carolina is different. Several years ago — in a case that, like McKnight's, involved a young, pregnant crack addict — the state's Supreme Court ruled that its criminal child abuse statutes covered a mother and her viable fetus. Many see the McKnight prosecution as one small remove from that case: if a mother can be prosecuted for child abuse, why not murder?

The Need for Notice

In addition to outrage, we have lots of ways of dealing with pregnant women who injure their children, including terminating their parental rights. But criminal prosecution is another matter.

Start with the Florida court's reasoning in Ashley's case: Until she was actually indicted, the court said, Ashley had no way of knowing that she could be charged with a crime based on what she had done. Historically, in fact, she couldn't be.

Regina McKnight's situation wasn't all that different. Given the severity of criminal sanctions, society demands rather specific notice of what constitutes a violation of the criminal law. Mothers who harm their unborn children don't have such notice right now — at least, not outside South Carolina.

The Need for Consensus

law is, today, mostly statutory. The statute books stay tuned to society's frequencies through the ballot box: new criminal laws are written by legislators who have to face voters. Legislatures openly debate changes to the criminal law (remember all the publicity surrounding California's "three strikes" rule?). Voters who disagree can register their disapproval in the next election.

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

For what it's worth, the medical community generally opposes criminal approaches on the grounds that pregnant women will be discouraged from seeking much needed prenatal care. Criminal liability may, as a result, ultimately harm more unborn children than it protects.

General criminal laws, like those prohibiting homicide, should not be deployed on the cutting edge of society's efforts to regulate behavior. The criminal law's operation is too selective and its consequences too harsh. Whatever the merits of South Carolina's prosecution of McKnight, such cases should have the sanction of a proposed statute, a public debate, and a legislative vote.

A Problem of Prosecutorial Discretion

We should also pause before creating a new crime (or category of criminals) whenever that would pose unusual problems for the exercise of prosecutorial discretion. A prosecutor has to choose, from among a large number of violations of the criminal law, those she will investigate and then actually prosecute.

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

A state could, conceivably, criminalize otherwise legal conduct (like drinking) that harms a child or causes a miscarriage; thousands of children are born every year with fetal alcohol syndrome. But do we want prosecutors selecting targets for prosecution among women engaging in otherwise legal conduct?

Put differently, how many glasses of wine are too many? Some women will drink a lot, with no discernible effect on their children; others may drink less and still do harm. When injury is serendipitous, can prosecutors fairly exercise their discretion to prosecute?

Causation Problems

of causation. In most criminal cases, proving causation is merely a technical necessity. The coroner may solemnly intone that the decedent died from a massive cerebral hemorrhage caused by blunt force trauma, but the jury's already tumbled to the fact that the bad guy did in the other guy by whacking him on the head with a bat.

Homicide cases (though perhaps not child abuse cases) like McKnight's will be different. Three pathologists testified at her trial on the possible causes of her baby's death. Such civil style "battles of the experts" will be commonplace in such prosecutions. We need to ask whether, under such circumstances, we can (or want to try) to secure reliable verdicts under the criminal standard of guilt beyond a reasonable doubt.

South Carolina's prosecution of Regina McKnight will, inevitably, become enmeshed in the abortion wars. Such entanglement is likely to prevent a useful debate on whether the criminal law can play a meaningful role in the overall effort to ensure the health of pregnant women and the children they bear. Short of such a debate, we should be cautious indeed before turning the McKnight case into a model to follow.

Barton 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.

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