Ruling in case of newborn's death raises other issues
THE ISSUE
The Hawaii Supreme Court ruled that a woman may not be prosecuted for prenatal conduct resulting in her newborn son's death.
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THE
state Supreme Court's reversal of the manslaughter conviction of a woman for her newborn son's death resulting from her addiction to crystal methamphetamine clarifies the state's law regarding prenatal misconduct. However, it opens other issues, including misconduct by another person against a pregnant woman resulting in the post-birth death of the child she was carrying.
Without dissent, the high court overturned the conviction of 32-year-old Tayshea Aiwohi of Kaneohe for the death of her son two days after his birth four years ago. She admitted to smoking crystal meth in the days leading up to the birth and said she breast-fed the baby several times. Aiwohi pleaded no contest to the manslaughter offense, including a sentence of 10-year probation, on the condition that she be permitted to appeal the case.
According to Hawaii's penal code, manslaughter is committed if a person "recklessly causes the death of another person." A person is defined as "a human being who has been born and is alive." Thus, Aiwohi's smoking of "ice" during her pregnancy was not a crime; the court did not address whether breast-feeding contributed to the baby's death.
Courts in most states have similarly rejected prosecution of a mother for prenatal conduct causing harm or death to her subsequently born child, although the U.S. Supreme Court last year refused to consider overturning the murder conviction of a South Carolina cocaine addict for the stillbirth of her son.
At the same time, most states allow prosecution of a person for violence against a pregnant woman resulting in the death of her child after birth. Thirty-four states have "fetal homicide" laws allowing prosecution of a person for causing the death of a fetus. Most infamously, Scott Peterson faces the death penalty in California for his conviction of two counts of murder for the deaths of his wife, Laci, and their unborn child. Hawaii has no such law.
In a footnote to the Hawaii court's opinion, Justice Paula Nakayama wrote that "the logical implication" from the Aiwohi ruling is that a person who attacks a pregnant woman, causing the child's death after birth, "also cannot be prosecuted (for the child's death) under the manslaughter statute, inasmuch as the Legislature has not included fetuses within the definition of the term 'person.'"
Nakayama suggests that the Legislature assess what "may be significant policy implications and social ramifications surrounding the present issue."
If Hawaii legislators follow the advice, they will be entering a controversial area. While it seems inconsistent to draw distinctions between a person's conduct toward a pregnant woman and the conduct of the pregnant woman herself, or between conduct resulting in stillbirth and that resulting in post-birth death, the distinctions are central to the issue of abortion rights. Tread carefully.
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