The Court of Appeals for the State of Maryland has ruled that a mother who intentionally ingests an illegal drug while pregnant cannot be found guilty of “reckless endangerment” towards a baby that is later born.
The issue came up after two mothers, Regina Kilmon and Kelly Lynn Cruz, were both convicted last year, in separate cases held in the Talbot County Circuit Court, of reckless endangerment towards their baby boys. Both babies tested positive to cocaine upon being born. Andrew Kilmon was underweight, coming in at five and a half pounds, while Denadre Michael Thomas Cross was born after only 29 weeks, weighing three pounds and two ounces.
(Cocaine can increase the likelihood of the placenta being separated from the uterus, cutting off the blood supply and leading to some brain damage. It can also cause premature births and low birth weights. However, if a cocaine-affected baby can be carried to term, the chances of fairly normal later development are quite good.)
The Appeals Court considered [pdf] the common issue in both cases to be the Maryland statute dealing with reckless endangerment, Criminal Law Article Section 3-204, in particular subsection (a)(1), which makes it a misdemeanour for a person recklessly to
engage in conduct that creates a substantial risk of death or serious physical injury to another.
The Appeals Court determined that “another” clearly referred to “another person”, based on the relevant wording of the previous criminal code before it was entirely rewritten. And, because of constitutional issues relating to whether a fetus or embryo is a person, the State of Maryland - the appellee - for the purposes of convictions under CL § 3-204 meant a baby delivered and alive.
Further, the Court referenced previous cases it had been involved in, in which it had decided and confirmed that the statute was addressing not the intention of an accused to create a substantial risk of death or injury by their reckless behaviour, but whether the conduct in question, viewed objectively, was beyond the pale of how a law-abiding person would act.
With all definitions being settled, the Appeals Court then had to decide whether the Legislature intended for acts such as those committed by the two appellants to be covered by CL § 3-204, due to its somewhat ambiguous text.
The State of Maryland argued before the Court that when the Legislature first enacted the reckless endangerment law in 1989, it was cognizant of a ruling the previous year by the Court of Special Appeals whereby “an injury committed while a child is still in utero [in the womb] can produce criminal liability if the child is later born alive”. This was made as a result of Williams v. State, a case in which an arrow was shot at an intended victim but hit a pregnant mother instead. The mother died as a result of massive blood loss but the baby was born, only to die later as a result of the mother’s blood loss. It was determined that the defendant was correctly convicted of two counts of manslaughter. The court made the decision based on a common law interpretation by the 18th century English jurist Edward Coke and characterised it as the “born alive” rule.
The Appellants responded that just because there was a “born alive” rule in existence it doesn’t mean the Legislature meant to criminalise the conduct of a pregnant mother and that the statute, although broad in its language, didn’t specifically address the issue. The Appeals Court agreed and looked for better evidence of the Legislature’s intentions.
The Court reasoned that if the Legislature intended for pregnant mothers to be convicted of reckless endangerment, then so could other conceivably reckless activity be under consideration as well, including:
- excess alcohol consumption or smoking;
- a poor diet;
- failure to wear a seat belt;
- avoiding proper and available prenatal medical care;
- exercising too little or too much; and,
- ordinary activities like skiing or horseback riding.
The Court concluded, unapprovingly, that defendants would then be at the mercy of prosecutors and how aggressive, persuasive or inventive they were.
It then cited numerous pieces of legislation proposed by the Maryland Legislature from 1989 to 2005 that linked the intentional ingestion of controlled dangerous substances to criminal child abuse, but which were rejected because they were seen as bad public policy and ineffective in dealing with substance abuse issues. Instead, drug treatment was preferred over criminal sanctions. The Court considered this as yet more proof that the Legislature didn’t have prenatal drug ingestion in mind when it came to CL § 3-204 and thus it overturned the two Circuit Court decisions.