"Manslaughter" if your child is stillborn?

[techs]

http://www.motherjones.com/politics/2013/05/buckhalter-mississippi-stillbirth-manslaughter


Mississippi Could Soon Jail Women for Stillbirths, Miscarriages

The state's manslaughter laws weren't supposed to apply to women who lose pregnancies. Prosecutors don't seem to care.

On March 14, 2009, 31 weeks into her pregnancy, Nina Buckhalter gave birth to a stillborn baby girl. She named the child Hayley Jade. Two months later, a grand jury in Lamar County, Mississippi, indicted Buckhalter for manslaughter, claiming that the then-29-year-old woman "did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence."

The district attorney argued that methamphetamine detected in Buckhalter's system caused Hayley Jade's death. The state Supreme Court, which heard oral arguments on the case on April 2, is expected to rule soon on whether the prosecution can move forward.

Mississippi's manslaughter laws were not intended to apply in cases of stillbirths and miscarriages. Four times between 1998 through 2002, Mississippi lawmakers rejected proposals that would have set specific penalties for damaging a fetus by using illegal drugs during pregnancy. But Mississippi prosecutors say that two other state laws allow them to charge Buckhalter. One defines of manslaughter as the "killing of a human being, by the act, procurement, or culpable negligence of another"; another includes "an unborn child at every stage of gestation from conception until live birth" in the state's definition of human beings.

...prosecuting Buckhalter opens the door to investigating and prosecuting women for any number of other potential causes of a miscarriage or stillbirth, her lawyers argued in a filing to the state Supreme Court—"smoking, drinking alcohol, using drugs, exercising against doctor's orders, or failing to follow advice regarding conditions such as obesity or hypertension." Supreme Court Justice Leslie D. King also raised this question in the oral arguments last month: "Doctors say women should avoid herbal tea, things like unpasteurized cheese, lunch meats. Exactly what are the boundaries?"

Perhaps the most perverse impact of prosecuting Buckhalter, her lawyers say, is that it could lead to more abortions. Fear of prosecution "may cause a mother to seek an abortion that she might not have otherwise have sought," particularly if she is dealing with drug or alcohol addiction, Buckhalter's lawyers argued in a court filing.



With Mississippi just about leading the nation in things like least education, obesity, lack of health care, etc, it's great knowing what's a priority.

Seriously, how did Mississippi get so f*cked up?

 

[smackababy]

To be fair, I am not exactly against a drug user being jailed for the lose of life due to her own drug use. Now, if she lost the child from complications due to other reason, I could see an objection. However, the fact she had methamphetamine in her system and that can be argued as the result of the lost pregnancy, I don't have a problem with it at all.

 

[nehalem256]

Perhaps the most perverse impact of prosecuting Buckhalter, her lawyers say, is that it could lead to more abortions. Fear of prosecution "may cause a mother to seek an abortion that she might not have otherwise have sought," particularly if she is dealing with drug or alcohol addiction, Buckhalter's lawyers argued in a court filing.

So the "perverse" impact is that less children might be born to women with drug or alcohol problems...

Also note there are already laws on the books specifically to charge other people with the death of a fetus. So why is it any different if a woman's actions lead to the death of viable fetus?

 

[Craig234]

Logically, this policy follows from their position about the fetus being a human being.

As a practical matter, they're going to have a lot of good times trying to investigate and prove the exact cause of the miscarriage beyond a reasonable doubt.

One ugly possibility: black drug users are assumed to hav the drugs be the cause while white druge users have reasonable doubt that was it for sure.

As a non-lawyer, I'd speculate that if were to try going down that road of manslaughter, they'd quickly find it not feasible to prove beyond a reasonable doubt, and switch to a standard prosection approach being to try them for a crime of the drugs some being some crime about 'reckless disregard' or similar, only requiring them prove drug use.

 

[Charles Kozierok]

One ugly possibility: black drug users are assumed to hav the drugs be the cause while white druge users have reasonable doubt that was it for sure.

While anything is "possible", there's no mention of race in the article, and introducing that here greatly increases the chances of the thread going off-tangent. Let's try to stick to what is actually being reported.

 

[smackababy]

Logically, this policy follows from their position about the fetus being a human being.

As a practical matter, they're going to have a lot of good times trying to investigate and prove the exact cause of the miscarriage beyond a reasonable doubt.

One ugly possibility: black drug users are assumed to hav the drugs be the cause while white druge users have reasonable doubt that was it for sure.

As a non-lawyer, I'd speculate that if were to try going down that road of manslaughter, they'd quickly find it not feasible to prove beyond a reasonable doubt, and switch to a standard prosection approach being to try them for a crime of the drugs some being some crime about 'reckless disregard' or similar, only requiring them prove drug use.

As far as cause of death, I am pretty sure they can determine that fairly well even in fetuses (is that right? it sounds wrong). So, after testing the blood for drugs (and alcohol, but that would be harder due to how fast it is removed from your bloodstream) it shouldn't be hard to prove "defendant x had levels of y substance in her blood similar to that of a habitual drug users and fetus z died from know complications with y substance, x was clearly negligent resulting in z being stillborn.

 

[nehalem256]

Logically, this policy follows from their position about the fetus being a human being.

As a practical matter, they're going to have a lot of good times trying to investigate and prove the exact cause of the miscarriage beyond a reasonable doubt.

One ugly possibility: black drug users are assumed to hav the drugs be the cause while white druge users have reasonable doubt that was it for sure.

As a non-lawyer, I'd speculate that if were to try going down that road of manslaughter, they'd quickly find it not feasible to prove beyond a reasonable doubt, and switch to a standard prosection approach being to try them for a crime of the drugs some being some crime about 'reckless disregard' or similar, only requiring them prove drug use.

Actually it would stem logically from a 31 week old fetus being considered a human being.

In fact I think there was a recent court case where murder charges were brought against an abortion doctor for killing fetuses younger than that. And in fact this was called by people of all political stripes an abominable crime.

 

[Craig234]

As far as cause of death, I am pretty sure they can determine that fairly well even in fetuses (is that right? it sounds wrong). So, after testing the blood for drugs (and alcohol, but that would be harder due to how fast it is removed from your bloodstream) it shouldn't be hard to prove "defendant x had levels of y substance in her blood similar to that of a habitual drug users and fetus z died from know complications with y substance, x was clearly negligent resulting in z being stillborn.

As a non-doctor, while there might be a few cases where it's clear - though I suspect those would be likely to kill the mother as well - I suspect there'd be mostly uncertainty.

It might even be 90% certainty - but that's not 'beyond a reasonable doubt' generally. It's just messy. And how often are they going to have the body of the fetus and go doing these tests? A lawyer can go into the mess if they agree, but bottom line, I suspect they'd be a lot happier just prosecuting the crime of the use of drugs which the law presumes to be a crime threatening the fetus without having to prove the actual harm.

It's analogous to someone legally drunk injuring a pedestrian while driving - you have to show the alcohol level, not prove that the accident was caused by the drunkenness.

 

[smackababy]

As a non-doctor, while there might be a few cases where it's clear - though I suspect those would be likely to kill the mother as well - I suspect there'd be mostly uncertainty.

It might even be 90% certainty - but that's not 'beyond a reasonable doubt' generally. It's just messy. And how often are they going to have the body of the fetus and go doing these tests? A lawyer can go into the mess if they agree, but bottom line, I suspect they'd be a lot happier just prosecuting the crime of the use of drugs which the law presumes to be a crime threatening the fetus without having to prove the actual harm.

It's analogous to someone legally drunk injuring a pedestrian while driving - you have to show the alcohol level, not prove that the accident was caused by the drunkenness.

No. You have to prove that due to the negligence of driving while intoxicated, you injured a pedestrian. The accident could have been entirely avoided in almost all cases had the driver been responsible and called a cab. Instead, they broke the law which resulted in the injury and / or death of someone else. If someone is hurt in the act of you causing a crime, 99% of the time you are deemed responsible.

 

[Craig234]

No. You have to prove that due to the negligence of driving while intoxicated, you injured a pedestrian. The accident could have been entirely avoided in almost all cases had the driver been responsible and called a cab. Instead, they broke the law which resulted in the injury and / or death of someone else. If someone is hurt in the act of you causing a crime, 99% of the time you are deemed responsible.

I'm not talking about proving negligence, I'm talking about proving that it was the alcohol that was the cause. Sober people can be negligent too.

The law doesn't force prosecutors to somehow prove the alcohol made a difference - the law just presumes it does.

There's an analogy I've heard that applies - take a baseball player who hits a lot more homr runs after he starts taking steroids - now prove WHICH home runs were because of the steroids. You can't. You can make a strong case that the steroids increase the number, but you can't point at certain ones and say 'that one is because of steroids'.

So you just ban the substance, without proving specific effects from its use.

 

[techs]

Well, if a child is born with birth defects can you charge the mother with assault if she smoked? Ate bacon? Didn't lose weight like the Doctor ordered? Didn't exercise? Drank sugary soda?

 

[nehalem256]

Well, if a child is born with birth defects can you charge the mother with assault if she smoked? Ate bacon? Didn't lose weight like the Doctor ordered? Didn't exercise? Drank sugary soda?

I am not sure that those things can be linked conclusively with birth defects. With smoking being perhaps the closet as I believe it is linked with low birth rate.

A better example might be fetal alcohol syndrome. I would have no problems pressing charges against the mother in that case.

 

[Arglebargle]

I predicted this exact situation years ago, as the logical conclusion to this particular legal position. According to this view, ANYTHING that might 'harm the baby' could end up as a legal prosecution. The wrong tea, the wrong exercise, not exactly following doctor's orders, anything.....

Prosecutors with political ambitions love face time. And it will start with the more maligned, the easist to make look bad. But why stop there?

 

[Lithium381]

slippery slope it certainly is. wonder if the ACA addresses anything related to this, in terms of pregnancy and health recommendations.

the double standard needs to be looked at, too, and dpending on the state the definition of a human. a man who kills a woman who is pregnant is charnged with double murder while the same woman can't carpool "by herself" . . .

 

[BudAshes]

I think it's probably better that child wasn't born. The punishment shouldn't be jail, it should be sterilization.

 

[Craig234]

the double standard needs to be looked at, too, and dpending on the state the definition of a human. a man who kills a woman who is pregnant is charnged with double murder while the same woman can't carpool "by herself" . . .

That's completely legitimate. The carpool is for a specific purpose. It doesn't define a human being. They could make it for more than 2 people, they could exclude minors, whatever they want to make it serve the intended puprpose. If that means not counting pregnant women, that's completely legitimate.

 

[Craig234]

I predicted this exact situation years ago, as the logical conclusion to this particular legal position. According to this view, ANYTHING that might 'harm the baby' could end up as a legal prosecution. The wrong tea, the wrong exercise, not exactly following doctor's orders, anything.....

Prosecutors with political ambitions love face time. And it will start with the more maligned, the easist to make look bad. But why stop there?

That's where the arbitrariness of public opinion and prosecutors comes in. What people 'feel like' should be a violation can get passed, same for what legislators 'feel like'.

 

[TerryMathews]

http://www.motherjones.com/politics/2013/05/buckhalter-mississippi-stillbirth-manslaughter


Mississippi Could Soon Jail Women for Stillbirths, Miscarriages

The state's manslaughter laws weren't supposed to apply to women who lose pregnancies. Prosecutors don't seem to care.

On March 14, 2009, 31 weeks into her pregnancy, Nina Buckhalter gave birth to a stillborn baby girl. She named the child Hayley Jade. Two months later, a grand jury in Lamar County, Mississippi, indicted Buckhalter for manslaughter, claiming that the then-29-year-old woman "did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence."

The district attorney argued that methamphetamine detected in Buckhalter's system caused Hayley Jade's death. The state Supreme Court, which heard oral arguments on the case on April 2, is expected to rule soon on whether the prosecution can move forward.

Mississippi's manslaughter laws were not intended to apply in cases of stillbirths and miscarriages. Four times between 1998 through 2002, Mississippi lawmakers rejected proposals that would have set specific penalties for damaging a fetus by using illegal drugs during pregnancy. But Mississippi prosecutors say that two other state laws allow them to charge Buckhalter. One defines of manslaughter as the "killing of a human being, by the act, procurement, or culpable negligence of another"; another includes "an unborn child at every stage of gestation from conception until live birth" in the state's definition of human beings.

...prosecuting Buckhalter opens the door to investigating and prosecuting women for any number of other potential causes of a miscarriage or stillbirth, her lawyers argued in a filing to the state Supreme Court—"smoking, drinking alcohol, using drugs, exercising against doctor's orders, or failing to follow advice regarding conditions such as obesity or hypertension." Supreme Court Justice Leslie D. King also raised this question in the oral arguments last month: "Doctors say women should avoid herbal tea, things like unpasteurized cheese, lunch meats. Exactly what are the boundaries?"

Perhaps the most perverse impact of prosecuting Buckhalter, her lawyers say, is that it could lead to more abortions. Fear of prosecution "may cause a mother to seek an abortion that she might not have otherwise have sought," particularly if she is dealing with drug or alcohol addiction, Buckhalter's lawyers argued in a court filing.



With Mississippi just about leading the nation in things like least education, obesity, lack of health care, etc, it's great knowing what's a priority.

Seriously, how did Mississippi get so f*cked up?

Ok techs, try to pull your head out of Obamas ass and think for a minute.

If I inject you with meth and kill you, I'm guilty of murder right?

Why does a term fetus in utero not get the same protection?

The law does NOT allow a mother to do whatever they want to their child. Riding in a car without a car seat, for example. I would think exposing to illegal substances should be included.

Leave the head/ass stuff in P&N, thank you. --ck

 

[colonelciller]

there is no way to scientifically (for sure) say why the baby died... this case should be crushed by even an incompetent attorney.

 

[Jaskalas]

there is no way to scientifically (for sure) say why the baby died... this case should be crushed by even an incompetent attorney.

I have misgivings towards the prosecutor for his role in the pursuit of this "case". Is he sitting around all day with nothing better to do?

Substance abuse potentially leading to a miscarriage is a grey area. I'd rather keep a court of law focused on more certain things.

 

[Craig234]

I have misgivings towards the prosecutor for his role in the pursuit of this "case". Is he sitting around all day with nothing better to do?

Substance abuse potentially leading to a miscarriage is a grey area. I'd rather keep a court of law focused on more certain things.

Nothing better to do than pursue a case that will help their party greatly?

Perhaps you have forgotten the history of Terry Shchiavo?

 

[Jaskalas]

Nothing better to do than pursue a case that will help their party greatly?

Perhaps you have forgotten the history of Terry Shchiavo?

I do not understand what "help their party greatly" means with regards to "Manslaughter" over stillborn.

 

[nehalem256]

I have misgivings towards the prosecutor for his role in the pursuit of this "case". Is he sitting around all day with nothing better to do?

Substance abuse potentially leading to a miscarriage is a grey area. I'd rather keep a court of law focused on more certain things.

For one I don't think it is common to have a miscarriage at 31 weeks.

For two how can we prosecute Gosnell for aborting fetuses at 26 weeks and then look the other way when a woman kills her fetus at 31 weeks?

 

[smackababy]

For one I don't think it is common to have a miscarriage at 31 weeks.

For two how can we prosecute Gosnell for aborting fetuses at 26 weeks and then look the other way when a woman kills her fetus at 31 weeks?

They are trying to argue that abusing drugs might not be the cause of the miscarriage and therefore we shouldn't pursue charges against what is obvious negligence.

 

[nehalem256]

They are trying to argue that abusing drugs might not be the cause of the miscarriage and therefore we shouldn't pursue charges against what is obvious negligence.

If we were talking about a 10 week fetus I would be inclined to go along with that.

But when you are talking about a 31 week fetus I would expect it to either be the drugs or some obvious "birth" defect.