Unborn children, or fetuses, often face special categorization in criminal laws. While they are living beings capable of being harmed, or even murdered, by someone else, they are also subject to the actions and circumstances of the women who host them. Efforts to criminalize violence against unborn children often require special consideration for the restrictions or unfair requirements that may be imposed on pregnant women. For instance, would a blanket prohibition on harming an unborn child include the possible prosecution of mothers who smoke while pregnant? These are the difficult questions that legislators must often confront and that the Supreme Court of Appeals for West Virginia recently considered.
In State of West Virginia v. Stephanie Elaine Louk, the Supreme Court considered a recent case against Ms. Louk for the death of her child 11 days after birth. While 37 weeks pregnant, Ms. Louk ingested methamphetamines, leading to an incident of acute respiratory distress. During the incident, emergency medical personnel believed that her child was being deprived of oxygen and performed an emergency C-section. Ms. Louk’s daughter, Olivia, was born brain dead and placed on a ventilator. She died 11 days later. After her death, the State charged Ms. Louk with child neglect, arguing that she had caused her child’s eventual death through her drug use. At trial, Ms. Louk was convicted and sentenced to three to 15 years. She appealed.
On appeal, Ms. Louk argued that the West Virginia child neglect statute was never meant to apply to the deaths of unborn children. The statute reads: “If any parent, guardian, or custodian shall neglect a child under his or her care, custody, or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony….” Ms. Louk argued that an unborn child is not a “child” for the purposes of the statute. Conversely, the State argued that a child who is injured prior to birth but is born alive should be considered a child under the statute.
In determining the appropriate interpretation of the child neglect statute, the Court turned first to the plain language and meaning of the text. The court noted first that the statute defined a child as “any person under eighteen years of age,” but it did not include unborn children or fetuses within the definition. This was in contrast to many other West Virginia statutes, which specifically provide for the protection of unborn children, such as the Unborn Victims of Violence Act. The Court also noted that in such statutes, minors, or children, are defined differently from unborn children, suggesting that an unborn child and a “child” under the statute are not meant to be one and the same. Finally, the Court held that interpreting the child neglect statute to include actions by a pregnant mother against a fetus would cause the statute to become impermissibly broad, since this could seemingly criminalize any potentially dangerous action by a mother, such as skiing, that could cause harm to a child. For all of these reasons, the Court determined that West Virginia’s child neglect statute was not meant to encompass harm by a pregnant mother to an unborn child. Moreover, it also noted that to the extent such actions were to be criminalized, it would have to be done by the legislature.
If you are, or have been, pregnant and are facing criminal charges related to your child, it is important to speak with a criminal defense attorney as soon as possible. Pregnant women are exempt from many charges involving children under West Virginia statutes, and you may have a strong defense to the charges brought against you. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years and are available to assist you. Call us at 1-877-637-5756 or contact us online for a free consultation.
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