Controversy brews
over pregnant women
using harmful drugsA manslaughter case against
an "ice" addict may hinge on
when a human life begins
A homeless tobacco worker with a 10th grade education and a cocaine addiction is the first woman in the country to be convicted of killing her daughter because of substance abuse during pregnancy.
CORRECTION
Tuesday, May 25, 2004South Carolina is the only state that uses the term "viable fetus" when prosecuting women for behavior during their pregnancy. Other states use the term in relation to abortion cases. A story on Page A1 in yesterday's early edition incorrectly stated that South Carolina was the only state to define a "viable fetus" as a person under the law.
The Honolulu Star-Bulletin strives to make its news report fair and accurate. If you have a question or comment about news coverage, call Editor Frank Bridgewater at 529-4791 or email him at corrections@starbulletin.com.
In 1999, Regina McKnight of Conway, S.C., delivered a stillborn baby with toxic levels of cocaine in the child's system. Two years later, McKnight, who has an IQ of 72, was convicted of "homicide by child abuse" and sentenced to 12 years in prison.
For the past 10 years, South Carolina has prosecuted more women than any other state for behavior during pregnancy or breast-feeding that results in the death or injury of the child.
The McKnight case received national attention because it showed how far a state could go in prosecuting child abuse. South Carolina remains the only state to define a "viable fetus" as a person under the law, allowing for prosecutions of pregnant women for substance abuse.
In its own precedent-setting case, Hawaii is debating the issues, politics and emotions of prosecuting women for their behavior during pregnancy. Last week, a group of 54 local and national health and human services providers asked Honolulu Prosecutor Peter Carlisle to drop the prosecution of Tayshea Aiwohi, a Kaneohe mother whose crystal methamphetamine use caused the death of her son.
Carlisle refused.
Carlisle said he will pursue manslaughter because "this was the reckless killing of another human being. Is this any different than a case in which someone uses drugs or alcohol and gets into a car and recklessly causes the death of another?"
Critics say prosecuting women for using drugs, alcohol or tobacco will deter women from seeking drug treatment and prenatal care, which is considered crucial for the health of any baby.
Critics say that to avoid jail or losing custody of children, women may avoid hospitals for deliveries, abandon babies or abort pregnancies.
One question raised by the McKnight and Aiwohi cases is: Is the social goal to treat people so they can take personal responsibility for raising their children or is it to punish offenders to stop them from hurting others and to serve as a public deterrent?
Tomorrow, Circuit Judge Michael Town will hear arguments from the defense and prosecution before deciding whether the case can go forward.
Aiwohi, 31, was indicted Oct. 9 on charges of manslaughter for allegedly causing the death of her son, Treyson, because she allegedly smoked "ice" in the five days before and two days after his birth at Kaiser Medical Center on July 15, 2001.
Treyson was born almost a month premature, weighing 5 pounds 5 ounces. An autopsy found his system contained four times the minimum toxic level of ice for an adult and two times the toxic level of amphetamines for an adult.
Aiwohi, whose other four children range in age from 4 to 12 years, faces a maximum sentence of 20 years in prison. She has admitted that she used ice, has been through drug treatment. After Treyson's death she worked as a drug-addiction counselor.
According to grand jury transcripts, Susan Siu, an investigator for the Honolulu medical examiner, testified Aiwohi told her "she'd smoked (crystal methamphetamine) three days prior to the birth of her baby and also the morning of the birth of her child."
Deputy Medical Examiner William Goodhue Jr. testified Treyson died because of "the toxic effects of methamphetamine," according to grand jury transcripts.
"This was a tragic, tragic thing that happened," said Claire Woods, executive director of Woman's Way, a residential drug treatment program for young mothers at The Salvation Army.
"But this is a public health issue, not a criminal one. We don't prosecute women who miss prenatal appointments or don't take their insulin shots during pregnancy," said Woods. "Locking these mothers up will make the problem worse."
A key legal issue is defining when a child is considered a person with constitutional rights. Under current Hawaii law, a person is "a human being who has already been born and is alive."
Aiwohi's attorney, Public Defender Todd Eddins, filed three motions in early March asking that the case be dismissed in part because an unborn fetus is not a person under state law.
Eddins wrote, "The critical issue is whether an expectant mother's alleged conduct before the birth of her child can serve as the basis for a homicide prosecution."
He added that Hawaii law "does not encompass the reckless killing of a newborn by his mother for conduct which allegedly occurred prior to his birth."
Eddins wrote that after Treyson's birth his mother could not be prosecuted for manslaughter because he would have ingested "a physically impossible amount of breast milk relative to his weight to arrive at the purported methamphetamine level."
Eddins argued the issue is not for prosecutors or judges to decide, but for the state Legislature, which has the power to define whether or not a fetus is considered a person with full legal rights. He said the Legislature has the job of deciding whether pregnant mothers should be prosecuted.
Deputy Prosecutor Glenn Kim wrote in his motion opposing Eddins that the defense must prove Aiwohi did not know the difference "between lawful and unlawful behavior."
Kim wrote he believed Aiwohi knew her conduct was harmful because she had already had four children and received prenatal care and education each time. He said she had "been a recipient, multiple times, of drug abuse education and counseling for a long-standing substance abuse problem" and that in the end "she voluntarily binged on ice."
Across the country, some prosecutors are taking a hard line against mothers, arguing, as Carlisle and Kim do, that their actions are on behalf of the children.
Gordon Trask, the district attorney for Riverside County in California, prosecuted a mother for killing her son with methamphetamine delivered either through breast milk or from the tainted baby-bottle liners she used to store her drugs. The mother, Amy Leanne Prien, 31, was also accused of risking her son's life because when he was found unresponsive, she and her roommates delayed calling 911 while they hid drugs and a safe.
In a recent interview with the Chicago Tribune, Trask said, "It's long overdue that we focus on the effects addictive drugs are having on the children. We need to send a message that, hey, if you don't care about yourself, that's one thing. But people need to understand that we expect them to care about the innocent children they are bringing into the world."
Woods, of the Salvation Army treatment program, disagrees.
"We are being overly zealous and wrong-headed in our attempt to protect children," she said.
Woods also said it is unfair to prosecute pregnant women for drug use when there is a shortage of drug treatment programs in the state, particularly for women in isolated rural areas.
"It's putting those women into a cruel Catch-22," agreed Pam Lichty, president of the Drug Policy Forum of Hawaii.
"You can't make them criminals when they can't seek and get treatment to begin with," Lichty said.
Woods and Lichty also said Aiwohi's prosecution is a political move to play on public sentiment. They argue the indictment came two years after Treyson's death at a time when the public had become alarmed at the "ice epidemic" that has been the subject of extensive media coverage, the work of a legislative task force and a prime focus of Lt. Gov. James "Duke" Aiona.
"This is a witch hunt," said Woods.
