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Laws Relating to Sex,
Pregnancy, and Infancy
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Laws Relating to Sex,
Pregnancy, and Infancy
Issues in Criminal Justice
Carmen M. Cusack
   , ,  
Copyright © Carmen M. Cusack, 2015.
All rights reserved.
First published in 2015 by PALGRAVE MACMILLAN® in the United
States— a division of St. Martins Press LLC, 175 Fifth Avenue, New York,
NY 10010.
Where this book is distributed in the UK, Europe and the rest of the world, this
is by Palgrave Macmillan, a division of Macmillan Publishers Limited,
registered in England, company number 785998, of Houndmills, Basingstoke,
Hampshire RG21 6XS.
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has companies and representatives throughout the world.
Palgrave
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and Macmillan
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are registered trademarks in the United States, the
United Kingdom, Europe and other countries.
Library of Congress Cataloging-in-Publication Data
Cusack, Carmen M., author.
Laws relating to sex, pregnancy, and infancy : issues in criminal justice /
Carmen M. Cusack.
pages cm
Includes bibliographical references and index.
1. Sex crimes—United
States.
2. Parent and child (Law)—United States—Criminal provisions.
3. Sex discrimination in criminal justice administration—United States.
4. Pregnant women—Legal status, laws, etc.—United States. I. Title.
KF9325.C87 2015
345.730253—dc23
2014044459
A catalogue record of the book is available from the British Library.
Design by Amnet.
First edition: May 2015
10 9 8 7 6 5 4 3 2 1
ISBN 978-1-349-70055-4 ISBN 978-1-137-50519-4 (eBook)
Softcover reprint of the hardcover 1st edition 2015 978-1-137-50518-7
DOI 10.1007/978-1-137-50519-4
is book is dedicated to YC, W, M, RY, P, B
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Contents
Introduction ix
1 Sex 1
2 Birth Control 7
3 Fakers 19
4 Baby Snatching 33
5 Animals 39
6 Freedom of Religion 45
7 Food 65
8 Pornography 71
9 Pregnant Criminal Justice Employees 77
10 Civil-Criminal Crossover 85
11 Criminal Justice Environments 95
12 Parental Duty, Child Maltreatment, and State Control 103
13 Pregnant on Drugs 113
14 Parents 125
15 Physical Violence 137
16 Illness 155
17 International and Comparative 163
Bibliography 171
Index 187
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Introduction
e role of children, mothers, and pregnancy in the criminal justice system
is varied and wide ranging. e presence of infants in legal environments
may illustrate that the criminal justice system functions successfully. For
example, Justice Ruth Bader Ginsburg was one of the only women to
attend Harvard and Columbia law schools. She ranked rst in both her
classes while caring for her rst child, who was a toddler at the time.
Yet, society has brutalized and ignored babies. Because the system works,
many babies have been defended and protected using the criminal justice
system. Laws Relating to Sex, Pregnancy, and Infancy: Issues in Criminal
Justice describes some of the laws, anecdotal evidence, science, history,
and policy dealing with pregnancy, babies, and sex in the criminal justice
system.
Sex, pregnancy, and babies are not necessarily correlated. Sex does
not necessarily lead to pregnancy; pregnancy does not necessarily result
in babies; and babies are not necessarily the result of sex or pregnancy
between intimate partners. Babies and motherhood may be the prod-
ucts of rape, fertilization treatment, adoption, and other anomalies or
unique experiences; and yet, since the beginning of human history, sex,
pregnancy, and babies have shared a biological, and often sacred, relation-
ship. Laws Relating to Sex, Pregnancy, and Infancy: Issues in Criminal Jus-
tice discusses family law, criminal codes, case law, policy, politics, history,
behavioral science, social science, current events, and anecdotal evidence
to demonstrate how varied and, at times, unpredictable the relationships
may be between the criminal justice system; sex; babies; and pregnancy.
e criminal justice system is not a singular entity; it is a concept describ-
ing numerous organized responses to problems in society; but, practi-
cally, philosophically, and legally, it is anchored together by a single root,
which is the U.S. Constitution. Despite its history and ability to evolve,
the criminal justice system must consistently respond in a manner that
x
Introduction
demonstrates fairness, fullment of duty, equality, and best practices. Yet,
facts between parties and changes in culture constantly require the system
to adapt; create new standards; respond to emergencies; and accommo-
date vulnerable populations (e.g., children and women).
Women and children are not always accommodated by criminal jus-
tice responses. For example, women may be electro-stunned by police or
placed in isolation in prison; they may be ignored by jailers when they are
hungry; and they may be discouraged from exercising their rights. Chil-
dren may be placed in physically and psychologically uncomfortable situ-
ations by criminal justice system branches (e.g., state custody). However,
the system, at large, attempts to regard these special populations with the
requisite level of sensitivity. e system should act in the best interest
of children; and at times, in the best interest of fetuses. Sometimes, this
interest countervails pregnant womens interests or lifestyles. Protections
for vulnerable populations have increased in recent years; but great work
remains to further develop them. Laws Relating to Sex, Pregnancy, and
Infancy: Issues in Criminal Justice discusses a history of laws’ progression;
gaps in protection; and future directions for policy changes. is interdis-
ciplinary text includes analyses of foreign policies, laws, and cases, which
may be compared to the U.S. criminal justice system.
CHAPTER 1
Sex
Morality
e government regulates sex, sexuality, morality, and family structure.
Legislation and regulation of morality have been traditional state pow-
ers. Under the Constitution, the state is authorized to use police power
to enforce morality laws. Morality laws aecting sex include laws pro-
hibiting consensual harmful sex (i.e., bondage and sadomasochism). e
government regulated non-harmful consensual sodomy prior to 2003.
However, following Lawrence v. Texas (2003), police power can no longer
be used by the state to prevent homosexuals or heterosexuals from non-
harmful private sexual relations.
Numerous fetishes (e.g., exhibitionism) are banned. Some fetishes are
banned because they harm individuals or society. For example, the City of
Sandy Springs, Georgia bans adult toys because it believes they are oen-
sive and obscene (Dixon, 2014; Ordinance No. 38–119, 2009). us,
obscenity is not protected under Miller v. California (2003). e city also
claims to have a substantial interest in protecting itself from crime (i.e.,
secondary eects) caused by adult establishments (e.g., prostitution and
vagrancy). Secondary eects may not be limited to increased crime asso-
ciated with vice. ey may possibly also include domestic violence cor-
related with pornography. For example, research indicates that women
who are coerced to watch pornography with their partners are signi-
cantly likelier to be victims of domestic violence (Cramer, 1998). us,
stores selling pornographic materials may be linked to domestic violence,
even though, according to the Rational Choice eory, adult establish-
ments are not the proximate cause of domestic violence. Yet fetishes, like
exhibitionism, are illegal even when those crimes are victimless, because
decency laws are designed to prohibit sexual immorality. For example,
2
Laws Relating to Sex, Pregnancy, and Infancy
indecent exposure inside a vehicle may be illegal even if no one witnesses
the crime.
Family structure was traditionally regulated under morality-based
laws. For example, criminal law, civil law, and family law were tradition-
ally used to prevent homosexual couples from marrying and adopting
children. As Constitutional law has been newly interpreted by the courts,
use of police power to regulate family structure has shifted in some juris-
dictions. Shifts reect judicial activism; contemporary attitudes toward
homosexuality; and evolved understandings of family. For example, some
jurisdictions currently permit same-sex marriage under the Fourteenth
Amendment and Fifth Amendment. Adoption by same-sex couples has
been permitted under best-interest-of-the-child standards (In re Gill,
2008). States conclude that despite traditional morality, children in fos-
ter care would not likely experience adverse consequences from being
adopted by same-sex parents; and, the state and children would benet
from increased adoption rates.
Consent
Consent is freely given assent and agreement (Cusack, 2014). Legally
cognizable consent is both a complicated area of law and a facet of
interpersonal relationships. Non-consent is discussed further in Chap-
ter 15. Conditions that void consent in some jurisdictions include
minority, intoxication, and incapacitation because they cause consent
to lack legal force or knowledge. Incapacitation could include sleep and
unconsciousness.
Consent must be knowing; thus, implicit consent apparently granted
during incapacitation may not be knowing. Most jurisdictions dene
incapacitation to include sleep, but sleep is not necessarily an incapaci-
tated state. Generally, defendants may defend by claiming that they did
not know that a victim was sleeping or incapacitated (10 U.S.C. §920b.
Art. 120b, 2014).
Intoxication may make consent void or voidable in some jurisdic-
tions. Intoxication may be considered to be a victims state of mind. Since
intoxication changes or clouds a victims mind, intoxication may void or
make assent voidable when a victim cannot freely and knowingly consent.
Mental incapacitation voids consent. If an intoxicated victim is consid-
ered to be mentally incapacitated (e.g., blacked out), then that victim
will not have consented. However, intoxication does not necessarily result
Sex
3
in mental incapacitation. Degree and voluntariness of intoxication, as
well as stare decisis, will inuence whether intoxication constitutes mental
incapacitation or vitiates consent.
Some jurisdictions provide heightened protections for victims by dis-
tinguishing mental incapacitation from intoxication. One dierence may
be the force required to demonstrate an absence of freedom. Distinctions
may become relevant when intoxicated victims can remember consenting
but do not believe that their consent was voluntary. A victims state of
mind is always relevant; thus, intoxication could impact victim credibility
(Stone, 2013). Statutes may potentially create strict liability for intoxica-
tion or permit any amount of intoxication to meet legal elements; how-
ever, in some jurisdictions, intoxication may not have any eect on the
validity of consent. In jurisdictions without intoxication provisions, vic-
tims’ credibility may be doubted because they were intoxicated. Evidence
of intoxication could become relevant when parties dispute whether con-
sent was express or implied. Express and implied consent are discussed in
Chapter 15.
Future laws may benet from more-precise denitions about the legal
eect of intoxication on incapacitation because, one, women are more
likely to be raped while intoxicated and, two, approximately half of sexual
assaults involve alcohol. Intoxicated women are more likely to be victims
of sexual assault than sober women, sober men, or intoxicated men. Yet,
legislatures must protect each gender equally from sexual assault. Laws
protecting individuals from predatory or opportunistic crimes involv-
ing alcohol can be precarious because perceptions of and relationships
between alcohol and sex may be relative to culture, gender norms, educa-
tion, gender rules, age, environment, and rape myths (Cowley, 2014).
us, predatory or opportunistic behaviors may be normalized in some
environments. Researchers have found that women who consume alcohol
were more likely to associate alcohol use with sex, but women who did
not consume alcohol were more likely to associate alcohol consumption
with coercion (Untied, Orchowski, and Lazar, 2013).
Legislatures may help reduce risk of sexual victimization by increasing
deterrence, especially by deterring sexual victimization of children (Walsh,
2013). Researchers sampled 546 female college students. ey found that
childhood sexual abuse correlated with revictimization. Respondents
expectations for relationships between sex and alcohol correlated with
risky sexual activity; perceptions of low sexual control; alcohol-related
revictimization; and childhood sexual abuse. Legislators could consider
4
Laws Relating to Sex, Pregnancy, and Infancy
providing child victims with programs designed to reduce risk of sub-
stance use and revictimization.
Minority voids sexual consent. Voluntary sexual intercourse with
a postpubescent minor who is younger than the legal age of consent is
described as statutory rape. Statutory rape would be consensual sex except
for legally imposed age limits on consent. is is discussed further in
Chapter 15. In most states, age of consent is delimited between 16 years
old and 18 years old. For certain kinds of charges (e.g., unlawful sexual
activity), age limitations may be relevant to partners’ ages and to the dif-
ference in years between the victim and the oender (Fla. Stat. § 794.05,
2014). For example, elements may not be met if one partner is 17 years
old and one partner is 20 years old. In some jurisdictions, minors may
lawfully engage in sexual encounters with peers of the same age. How-
ever, in other jurisdictions, minors have no right to consent to any sexual
activity. us, a minor may be a victim and an oender (Womancare of
Orlando v. Agwunobi, 2006). In almost every jurisdiction, prepubescent
children may not engage in any sexual contact. us, children younger
than twelve, for example, could potentially be held culpable for volun-
tarily participating in sexual contact with one another in some jurisdic-
tions. Engaging in sexual contact with a prepubescent child is a serious
criminal oense and a felony.
Parents possess a fundamental right to raise their children and to direct
childrens moral upbringing; however, parental assent does not legally
grant sexual consent to children. Children may be removed from their
parents’ home if parents permit children to be statutorily raped. Some
violations seem merely to bend cultural norms in favor of harmless sex-
ual deviance, but other violations are patently egregious. For example, a
19-year-old partner dating a 15-year-old partner would be distinguish-
able from the case of In the Matter of Martha A. (2010). In that case, a
mother began having sex with a 25-year-old man after that man twice
impregnated her 14-year-old daughter. He also smoked marijuana with
her daughter; and he slept in the same room as another of her children, a
12-year-old daughter, on whom he created a hickey mark. e court said
that the mother “show[ed] such poor judgment and awed understand-
ing of the mother’s role as a caretaker over a period of years as to place
the children at risk of imminent harm” (In the Matter of Martha A., 2010,
p. 478). at mothers children were removed. Removal is discussed is
Chapter 12.
Sex
5
Parents and the court can consent to marriage, which emancipates
minors and makes statutory rape laws irrelevant between spouses. us,
emancipation may be a complete defense (State v. Plude, 1993). However,
minors who were emancipated through marriage, but not through court
order, may potentially revert to being minors under statutory rape laws
if they divorce before turning 18 years old (Fla. Stat. § 39.01, 2014). For
example, under the Uniform Code of Military Justice (UCMJ) “[a] child
not legally married [at the time of the oense] to the person committing
the sexual act, lewd act, or use of force cannot consent to any sexual act,
lewd act, or use of force” (10 U.S.C. §920b. Art. 120b, 2014). Emancipa-
tion is discussed further in Chapter 14.
In some jurisdictions, minority may create strict liability; or, a defen-
dant’s knowledge of a victims age may be required to satisfy the elements.
Some jurisdictions hold any defendant culpable for engaging in volun-
tary, nonconsensual sex with minors. Jurisdictions may only hold defen-
dants culpable if they should have or could have reasonably known a
victims age. For example, a victim who appears to be a young teen may
be presumed to be lying about being an adult if the defendant knows
that the child attends middle school. Defendants will be prosecuted for
production and transmission of child pornography if they knew a minor
victims age (U.S. v. X-Citement Video, 1994). In some jurisdictions (i.e.,
California) emancipation and marriage may provide a defense to child
pornography prosecution, but in other jurisdictions (e.g., Missouri) they
will not (U.S. v. Stringer, 2014). In some jurisdictions, defendants may be
strictly liable. Defendants charged with sexual contact with minors have
argued constructive emancipation when minors live without parents and
provide for themselves; however, these defenses often fail when a defen-
dant knew or should have known a victims age; or in jurisdictions that
hold defendants strictly liable (People v. Perry, 2012). us, legal emanci-
pation by court order is distinguishable from constructive emancipation
under many statutory schemes (Feliciano v. State, 2006; Womancare of
Orlando, Inc. v. Agwunobi, 2006).
Voluntary and Involuntary
Relationships between consent and voluntariness are somewhat circu-
itous. Consensual sexual activity is sanctioned under the law. Involuntary
sexual contact is never consensual; but, it may be legal in jurisdictions
6
Laws Relating to Sex, Pregnancy, and Infancy
that dene force, but not consent, as an element of sexual assault. Con-
sensual sexual activity is always voluntary; however, voluntary sex acts
may be nonconsensual under the law. Involuntary sex acts are further
discussed throughout Chapter 15. Voluntary sex may include incest or
violent sex; but those acts are typically considered to be nonconsensual
(i.e., illegal). Incestuous sexual activity is illegal. Denitions of incest may
include step-relatives and distant cousins, or may include only immediate
family. Each jurisdiction denes incest. Many denitions include biologi-
cal rst cousins, aunts and uncles, grandparents, and relatives of similar
familial proximity by marriage, consanguinity, or adoption.
Voluntarily incestuous sex between adults is illegal. Parents may be
held culpable for violating children even when children are older than
18 years old (U.S. v. Vigil, 2003). In one case, minors between the ages
of 18 years old and 21 years old were held to be vulnerable child victims
because of the special position of authority held by a parent, steppar-
ent, or adopted parent. is is because young adults may feel coerced by
parents; fear the consequences of noncompliance with sexual requests;
or trust that parents will not harm them (U.S. v. Hargrove, 2005;
U.S. v. Martinez-Carillo, 2001).
Adults cannot consent to violent sexual activity (Cusack, 2015). Right
to Privacy under the Fifth Amendment and Fourteenth Amendment pro-
tects private consensual sexual activity between adults. However, sexual
activity must be non-harmful (Lawrence v. Texas, 2003). In many juris-
dictions, people who knowingly and voluntarily engage in self-harm may
be charged with battery, aggravated battery, or other crimes. More likely
than not, people who self-harm may be institutionalized, which is a civil
remedy. In some jurisdictions, people can consent to be harmed because
battery laws only apply when an actor harms another person (Spindel-
man, 2013). In some situations (e.g., sports), consent may be a defense
for committing a battery upon another; but it is not a defense when bat-
teries occur during sexual activity (Rapp, 2008). Harmful sex acts vitiate
consent for sex and participants can be charged with sexual assault, bat-
tery, aggravated sexual battery, and other violations (Cusack, 2014).
CHAPTER 2
Birth Control
History of Birth Control, Planned Parenthood,
and Women’s Privacy Rights
Birth control has been controversial for more than two centuries. Early
attempts to create birth control made by Charles Goodyear included vul-
canized rubber for condoms; syringes for douching; diaphragms called
womb veils”; and intrauterine devices (PBS, n.d.). Early in the 1900s,
the government began persecuting Margaret Sanger and others for pro-
viding information about birth control and contraceptives (Message
Photo-Play Co., Inc. v. Bell, 1917). Sanger opened the rst birth control
clinic in 1916 (People v. Sanger, 1917). Her sister and friend assisted her
to distribute information about birth control to women in New York.
After little more than one week, the New York City vice squad, led by
an undercover police ocer posing as a patient, searched and seized the
clinic, along with patients’ records, diaphragms, and condoms; and they
arrested Sanger (Wardell, 1980). Ethel Byrne, Sangers sister, was con-
victed of selling literature about birth control in contravention of New
York Penal Law § 1142 (People v. Byrne, 1917). Byrne claimed that the
law violated the Constitution because it unreasonably interfered with
womens rights not to bear children. e court noted that the unlaw-
ful literature sold by Byrne, “What Every Girl Should Know,” depicted
female sex organs; was distributed to minor males and females; and alleg-
edly contained text that promoted non-procreative sex. is literature
allegedly diminished an important deterrent for premarital sex (i.e.,
fear of unwed pregnancy). us, Byrne was convicted. In New York v.
Sanger (1917), Sanger was found guilty of violating New York Penal
Law § 1142, which mirrored some portions of the federal Comstock Act
designed to eliminate use of the U.S. mail to transport obscenity. It was a
8
Laws Relating to Sex, Pregnancy, and Infancy
misdemeanor to advertise; inform the public about; or sell birth control.
Sanger argued that the law was overbroad because it prevented doctors
from dispensing medical advice to married patients. On appeal, the judge
accepted Sangers rationale; but, armed her conviction because she was
not a doctor. e court held that doctors may treat married women seek-
ing medical advice about birth control.
is exception in behalf of physicians does not permit advertisements
regarding such matters, nor promiscuous advice to patients irrespective
of their condition, but it is broad enough to protect the physician who in
good faith gives such help or advice to a married person to cure or prevent
disease (New York v. Sanger, 1917, p. 195)
e landmark shift, known as “the Crane decision,” opened the door for a
new interpretation of the Comstock Act (PBS, n.d.). It exempted doctors
from the ban on obscene materials, which included material about birth
control. e Crane decision permitted Sanger to open medical clinics
throughout the country.
Margaret Sanger began to publish Birth Control Review in 1917
(Wardell, 1980). Sanger published 136 issues by 1928, and wrote more
than 600 articles and speeches. Sanger and other editors of Birth Con-
trol Review discussed academic philosophy, social justice, and scientic
information. She distributed literature to persuade the public to reform
birth control legislation and to inspire women to liberate themselves from
the patriarchal control that banned birth control contraptions, medicine,
and information. Birth Control Review delineated arguments for repro-
ductive rights and policy demands. ese materials discussed womens
freedom as well as issues such as selective breeding and overpopulation
(i.e.,eugenics and neo-Malthusianism). Because she related eugenics and
neo- Malthusianism to birth control, and because various social and polit-
ical movements during this era supported her, Sanger’s literature helped
unify and fortify the movement to legalize birth control.
Despite feminist victories, courts assisted members of the criminal
justice system to continue harassing and unlawfully arresting members
of the Birth Control League (In the Matter of Michael Martin Dolphin,
1924). Many defendants were convicted or pled to the charges. In Davis
v. U.S. (1933), the Sixth Circuit Court of Appeals dismissed violations
of 18 U.S.C. §334 and 18 U.S.C. §396 relating to the use of mail and
interstate commerce to distribute birth control information. A rubber
Birth Control
9
wholesaler was charged after selling goods to druggists, but successfully
defended its actions because rubber products could legitimately be used
to treat and prevent disease. In 1936, the Appellate Court for the South-
ern District of New York heard U.S. v. One Package (1936). In that case,
a doctor imported vaginal birth control devices from Japan. e govern-
ment alleged that the contents of the package violated section 305(a)
of the Tari Act of 1930 (i.e., 19 U.S.C.S. § 1305[a]). e appellate
court armed the lower court’s dismissal of the charge. e packages
abortive contents were exempted because they could be used to save a
mother’s life. Lifesaving procedures were legal and the law only criminal-
ized importation of objects to perform unlawful abortions. e court
held that conscientious physicians were permitted to import, sell, and
transport objects through the mail that could competently be used to
save a patients life.
Many doctors continued to adhere to traditional morals and associate
best practices with morality (Murhree and Gower, 2013). Although some
doctors became informed about birth control, they refused to partici-
pate in political reform. However, other doctors, as well as corporations,
researchers, venture capitalists, and activists, realized the market for birth
control. Still, contracts regarding experimentation with and production
of birth control products (e.g., rubber tampons and diaphragms) were
invalidated by the Comstock Act and state laws (Ill. Crim. Code § 223,
1937; Ill. Rev. Stat. ch. 38, 1937; Lanteen Laboratories, Inc. v. Clark,
1938). is increased the risks associated with funding and developing
birth control. Parties risked unenforceability and loss; and agreements
could be used as evidence of criminal activity.
During the early 1950s, Margaret Sanger and Planned Parenthood
had begun to fund scientic development of birth control. e Food
and Drug Administration (FDA) granted limited approval to test a birth
control pill on human subjects in Massachusetts, but by the mid-1950s
larger clinical trials were moved to Puerto Rico because anti-birth-control
laws in the United States excessively restricted administration of birth
control to the population. President Dwight Eisenhower stated that birth
control use should not be a political issue or governmental problem.
Birth control production then increased, after receiving FDA approval
and President Eisenhower’s apolitical endorsement; millions of women
began using birth control pills. However, the federal Comstock Act and
state laws could still ban dissemination of information discussing birth
control. Birth control activists (e.g., Bill Baird) continued to be arrested
10
Laws Relating to Sex, Pregnancy, and Infancy
during this time (New York v. Baird, 1965). In Griswold v. Connecticut
(1965), the court held that the right to make procreative choices was a
Constitutionally protected right that could be asserted by a doctor for his
or her patients. In that case, a Planned Parenthood doctor was convicted
under a Connecticut statute as an accessory for giving a woman medical
advice about contraception and prescribing a contraceptive device. e
well-known holding in Griswold expanded reproductive rights for women
and men. “[T]he Griswold decision can be rationally understood only as
a holding that the Connecticut statute substantively invaded the ‘liberty
that is protected by the Due Process Clause of the Fourteenth Amend-
ment” (Roe v. Wade, 1973, p. 168). e Griswold court said,
e present case . . . concerns a relationship lying within the zone of pri-
vacy created by several fundamental [C]onstitutional guarantees. And it
concerns a law which, in forbidding the use of contraceptives rather than
regulating their manufacture or sale, seeks to achieve its goals by means
having a maximum destructive impact upon that relationship. e very
idea is repulsive to the notions of privacy (Griswold v. Connecticut, 1965,
p. 485–486).
e U.S. Supreme Court held that the Planned Parenthood League in
Connecticut could not be prevented from counseling or distributing
information about contraception to married people because marriage was
protected under the penumbra of the Fourteenth Amendment and Fifth
Amendment. e right to privacy protects marriage and guarantees that
the government will not interfere with marital relations (Griswold v. Con-
necticut, 1965).
Despite worldwide support for birth control pill sales, the Pope of
the Catholic Church declared opposition to the pill in 1968. Even so,
one-third of Catholic women in the United States used a pill form of
birth control (Murhree and Gower, 2013). In spite of its popularity, or
perhaps due to the popularity of birth control, the government continued
to oppose its distribution. In 1972, Bill Baird was charged with a felony
because he provided contraceptives to an unmarried couple; but, he was
not a medical doctor (Eisenstadt v. Baird, 1972). e Massachusetts law
under which Baird was charged was stricken by the court as a violation of
Constitutional right to privacy, which must protect married and unmar-
ried people equally from governmental intrusion. Eisenstadt stands for the
proposition that reproductive decisions are fundamental matters that are
Birth Control
11
outside the realm of governmental interference. Due to controversy sur-
rounding abortion, history of birth control seems most impacted by Roe
v. Wade (1973). Roe held that the right to privacy legalizing abortion was
a fundamental right. However, the state’s interest in womens health and
fetal life needed to be balanced against the Constitutional fundamental
right to privacy. us, abortion in the rst and second trimester was legal-
ized in Roe.
Pregnancy, Abortion Laws, and Politics
Roe v. Wade and Planned Parenthood v. Casey are two cases that guide rst
and second trimester abortion law. More than simply a right to abort a
fetus, the history of birth control demonstrates that a woman has a right
to impede or end reproduction without undue burden placed on her by
the government. Access to medical advice, medical devices, and birth
control should not be regulated unless they pose harm to mothers or
fetuses. Abortion is one method of birth control protected by the right
to privacy, as stated by the Fourteenth Amendment and Fifth Amend-
ment. A womans right to privacy is balanced against the state’s interest
in fetal life. e states interest seems to increase as gestation progresses.
Spouses have some limited interests in fetuses; but, gestational week does
not increase parental or spousal interests in abortion. ese interests are
discussed in Chapters 12, 13, 14, and 15.
e court considered the government’s rational or important inter-
est in defending potential fetal rights in several cases, including Planned
Parenthood v. Casey (1992), Webster v. Reproductive Health Services (1989),
and Gonzales v. Carhart (2007). With respect to a states important and
legitimate interest in potential life, the ‘compelling’ point is at viabil-
ity, since the fetus then presumably has the capability of meaningful life
outside the mother’s womb. State regulation protective of fetal life after
viability thus has both logical and biological justications” (Roe v. Wade,
1973, p. 163).
Following Roe, Planned Parenthood v. Danforth (1976) set the ground-
work for the contemporary undue burden standard elucidated later in
Planned Parenthood v. Casey (1992). Danforth holds that married women
are not required to obtain spousal consent to receive abortion services.
Married women cannot be relegated to the position of children; thus,
abortions cannot require spousal consent. Bellotti v. Baird (1979) held
that the Constitution cannot permit all abortive procedures for minors
12
Laws Relating to Sex, Pregnancy, and Infancy
to be conditioned upon parental consent. Judicial waiver, parental abuse,
and other contingencies must be contemplated by legislatures that require
parental consent. In Planned Parenthood v. Casey (1992), the court held
that the undue burdens (e.g., consent or notication requirements) could
not pose a substantial obstacle to a females right to abortion. However,
restrictions may be placed on abortion services, as long as they do not
unduly burden pregnant women. For example, restrictions may require
that doctors have admitting privileges at local hospitals; or that patients
have any opportunity view sonograms (Whole Womans Health v. Lakey,
2014). Many abortion providers lack admitting privileges; thus, some
clinics in operation prior to restrictive legislation have been closed after
legislation is passed. Pro-choice activists claim that patients are unduly
burdened by such restrictions because closures force them to drive long
distances to be treated at compliant clinics. Yet, driving distance may not
present a substantial obstacle in some jurisdictions. Requirements that
patients view sonograms may be circumvented when patients close their
eyes. us, a substantial obstacle may not limit womens right to privacy
and reproductive freedom. Patients are not required to acknowledge the
sonogram; thus, free speech and right to privacy may be upheld.
Following political discord between abortion rights activists and fetal
rights activists, Roe and Casey were further dened in Gonzales v. Carhart
(2007). Roe specied that post-viability abortion could be proscribed in
circumstances that were not threatening to a mother’s life; and the undue
burden test is not disturbed by limits on partial-birth abortion because
pre-viability restrictions do not prevent access to abortive services.
A state criminal abortion statute that excepts from criminality only a life-
saving procedure on behalf of the mother, without regard to pregnancy
stage and without recognition of the other interests involved, is violative
of the U.S. Const. amend. XIV. For the stage prior to approximately the
end of the rst trimester, the abortion decision and its eectuation must be
left to the medical judgment of the pregnant womans attending physician.
For the stage subsequent to approximately the end of the rst trimester,
the state, in promoting its interest in the health of the mother, may, if
it chooses, regulate the abortion procedure in ways that are reasonably
related to maternal health (Gonzales v. Carhart, 2007, p. 163–164).
Historically, maternal safety, well-being, and health have been central
to both the development of birth control rights and the maintenance of
restrictions on birth control. Concern about maternal health appeals to
Birth Control
13
both pro-life and pro-choice activists. Carhart reiterates that mainstream
pro-life and pro-choice advocates believe that the law should permit a
mother’s life to take precedence over a fetuss life. erefore, political
consensus is achieved when pregnancy may be lawfully terminated at
any stage of gestation if a mother’s life can be saved by a terminative
procedure, including partial-birth abortion during the second and third
trimesters.
In addition to rights to be counselled, to be prescribed medication,
and to use contraception, it seems that the right to an abortion during
the rst trimester cannot be abridged; and a licensed doctor, who meets
jurisdictional requirements, has a right to supply a woman with access
to a terminative procedure during the rst trimester (Silverberg, 1994).
Pregnancy in zygote, embryo, and fetus stages can be terminated under
the right to privacy during the rst trimester. e meaning of “trimester”
is as uid as the gestative process itself. e rst trimester extends from
week one through week 12 (Kids Health, n.d.). e second trimester
runs from week 13 to week 26, and the third trimester begins at week
27. So, while the public or activists may discuss partial-birth abortion in
terms of trimesters, legislatures often discuss pregnancy in terms of weeks.
Laws that solely refer to gestative weeks and viability demonstrate that
women have the right to abort zygotes and embryos. However, fetuses
have rights that may escalate and eventually outweigh a healthy womans
rights as the gestation process nears birth (Rovner, 2006).
During the rst week of gestation, the zygote is microscopic, but by
the sixth week of gestation, the embryonic nervous system, the heart,
and the arms just begin to form a two-millimeter glob of tissue (Kid’s
Health, n.d.). Between the sixth and twelfth weeks, the embryonic stage
has ended, a few weeks prior to the conclusion of the rst trimester. Dur-
ing this time span, several options for abortifacients and abortion are
available under the Fifth and Fourteenth Amendment. However, birth
control options become limited as pregnancy gestation progresses. By the
eighteenth week, the fetus develops sensory organs necessary for hearing
and sight, and the fetuss bones begin to ossify. At this stage, though, most
forms of abortion are still guaranteed under the right to privacy.
e court in Roe cut o abortion rights at approximately 27 weeks,
and drew a bright dividing line at the end of the second trimester, at
around 24 weeks. Experts in Roe believed that a fetuss life could be
sustained by the use of medicine outside the mothers body. Fetuses
lungs develop rapidly during the third trimester, which is what makes
14
Laws Relating to Sex, Pregnancy, and Infancy
viability possible. irty weeks into the pregnancy, with the third tri-
mester almost over the fetus weighs about three pounds, and begins
to gain fat rapidly before birth at 36 weeks. At this point, abortion is
only permitted as a lifesaving procedure. e court specied, at the time
Roe was decided, that viability was “placed at about seven months (28
weeks),” but the court acknowledged that it “may occur earlier, even at
24 weeks” (Roe v. Wade, 1973, p. 160). Before the twenty-fourth week,
but after viability, some states may limit abortion to situations in which
a woman requires a lifesaving procedure. In some jurisdictions, viabil-
ity is believed to begin at 20 weeks; several babies have been delivered
early in the second trimester; and partial-birth abortion restrictions may
begin as early as the fteenth week (Collins, 2011; Hofstetter, 2010;
Telegraph, 2011; Webster v. Reproductive Health Services, 1989). us,
women have the right to exercise their rights to privacy before fetuses
become viable and are capable of surviving outside the womb. Viability
is not delimited by number of weeks or months; and due to scientic
advancements, fetal viability may occur sooner than at the beginning of
the second trimester.
Pro-life and pro-choice demonstrators have been visible within local
and national politics. Demonstrations outside abortion clinics were unre-
stricted speech under the First Amendment until 2000, at which point
the U.S. Supreme Court upheld a key Colorado statute. at law required
demonstrators to stay at least 100 feet from entrances to abortion clin-
ics when intending to distribute information to patients or approach
patients no closer than eight feet to discuss abortion (Hill v. Colorado,
2000). e court held that the law was a time, place, manner restriction
that was Constitutional because it did not restrict the content of speech
and left adequate alternative means to communicate with patients. Dem-
onstrators could hold signs, use loudspeakers, place leaets or pamphlets
on cars, or discuss abortion with patients while remaining an adequate
distance from clinics. In 2009, this policy was challenged in McCullen
v. Coakley (2014). Massachusetts’ legislature required a 35-foot buer
zone protecting all entranceways to abortion clinics. Pro-life counselors
seeking to discuss abortion with patients claimed in federal district court
that the law violated free speech protections under the First Amendment.
e district court upheld the law as a valid time, place, manner restric-
tion. e appellate court upheld the district court’s ruling. However, the
U.S. Supreme Court granted certioriari and unanimously distinguished
this case from other valid time, place, manner restrictions because the
Birth Control
15
law was not narrowly tailored. In the past, the court has held that time,
place, manner restrictions should be scrutinized at an intermediate level.
Intermediate scrutiny requires that laws have an important purpose that
substantially relates to the government’s regulatory scheme. In this case,
the court required that the law be narrowly tailored. is level of scru-
tiny has generally been reserved for Due Process violations and race-based
classications.
To meet the narrow tailoring requirement, however, the government must
demonstrate that alternative measures that burden substantially less speech
would fail to achieve the government’s interests, not simply that the chosen
route is easier (McCullen v. Coakley, 2014).
is analysis is consistent with stare decisis, but conservatively inter-
prets Constitutional requirements. e court held that the content neu-
tral act does not permit close, consensual conversations necessary for
pro-life counselors to exercise their speech rights. Pro-life counselors must
stand at a distance with political demonstrators, where their particular
approaches and messages are likely to be washed out.
Illegal Abortions and Late Term Abortions
Morality surrounding preservation of human life was the basis for a
Nebraska law prohibiting partial-birth abortion (Stenberg v. Carhart,
2000). at law was found by the U.S. Supreme Court to violate Due
Process. Many pro-life advocates believe that life begins at conception.
For the most part, though, rst trimester pregnancy does not resemble
human life. During the embryonic stage, which lasts until about week
12, there is no visible human identity in the tissue. All the matter that
is excreted during a termination procedure has the appearance and qual-
ity of thick menses (Cusack, 2011). Allegedly, during the fetal stage, the
semblance of a human is rst possible (Greenwood, 2010).
In Gonzales v. Carhart (2007), the court upheld the federal Partial-
Birth Abortion Ban Act of 2003. Abortion post-viability (i.e., approxi-
mately 15 weeks) is considered to be a late-term abortion, also known as
partial-birth abortion (Rovner, 2006). Partial-birth abortion restrictions
are prohibited under moral, ethical, and medical rationales (Lim, 2008).
Restrictions are not necessarily limited by viability or trimester; however,
viability may be a guide (Webster v. Reproductive Health Services, 1989).
16
Laws Relating to Sex, Pregnancy, and Infancy
Stare decisis does not indicate that states are required to protect late-term
fetuses from partial-birth abortion.
Legislatures may pass laws that do not place an undue burden on preg-
nant women who are seeking to abort. In Gonzales v. Carhart, the court
stated (2007):
e Casey Court rearmed what it termed Roes three-part “essential hold-
ing”: First, a woman has the right to choose to have an abortion before
fetal viability and to obtain it without undue interference from the State.
Second, the State has the power to restrict abortions after viability, if the
law contains exceptions for pregnancies endangering the womans life or
health. And third, the State has legitimate interests from the pregnancy’s
outset in protecting the health of the woman and the life of the fetus that
may become a child . . . ough all three are implicated here, it is the third
that requires the most extended discussion (Gonzales v. Carhart, 2007).
e third part is discussed in Chapter 13 and Chapter 16. A state may
express profound respect for all life, even life that begins at conception,
as long as laws do not create an undue burden. Despite the court’s reca-
pitulation of Roe in terms of the state’s legitimate interests in protecting
mothers’ health, a mother’s fundamental privacy interest outweighs the
governments legitimate interest in fetal life pre-viability. Post-viability,
only threats to a mothers health outweigh governmental interests. How-
ever, late-term abortions allegedly increase risks to a womans health.
us, doctors must weigh the seriousness of health risks against the risk
of pregnancy to determine whether late-term abortions are medically nec-
essary (Mills, 1998).
Medications such as RU486 are contraceptives and an abortifacient
that may be prescribed to terminate pregnancy during the embryonic
stage (Cusack, 2011; Morris, 2001; Silverberg, 1994). Generally, they are
legal. However, women who use them to terminate during late stages may
be arrested. For example, Jennie Linn McCormack was arrested in Idaho
for buying abortion pills online and terminating a late-stage pregnancy
(Hartmann, 2011). She was charged under a fetal pain statute prohibiting
self-induced abortion after 20 weeks. She sued and a court enjoined the
law prohibiting self-induced abortions, but did not enjoin the fetal pain
law. Because she aborted sometime after ve months, she was charged
with feticide. Before her case was dismissed for lack of evidence, she
argued that she was placed under an undue burden because so few doc-
tors provided abortion in her state. Feticide is discussed in Chapter 4.
Birth Control
17
A British study surveyed 883 women who had chosen to abort dur-
ing the second trimester (Abortion Review, 2007). Half of the women
were past the thirteenth week of gestation when they nally sought an
abortion. Researchers asked women why they delayed, and participants
selected reasons from a checklist; they were unrestricted in the number
of reasons they could choose from the list. Overall, the list reected com-
mon events that coincide with abortion and with the timing of a wom-
ans abortion. Researchers found that many reasons were quite common;
and approximately 20 percent of the respondents selected 13 reasons.
Forty-one percent of women cited needing more time to make a deci-
sion. irty-eight percent cited ignorance of pregnancy due to biological
or medical reasons. And 20 percent continued menstruating. irty-six
percent believed that they were in the early stages of pregnancy when they
elected to abort. irty-two percent were uncertain about how to carry a
child to term. Slightly less than one-third said that they used contracep-
tion; thus, they did not realize they were pregnant. irty percent cited
failure to react before the end of the rst trimester. Slightly more than one-
quarter were too worried about their parents’ reactions to decide early on;
and 23 percent cited emotional breakdowns with their parents. Almost
one-quarter disclosed that they had missed appointments that would have
led to early-term abortions; and 20 percent said that they had to wait too
long for an appointment. More than one-fth were reportedly worried
about having an abortion and wanted to avoid it. In most instances, rst
term abortions were accessible, but women voluntarily delayed.
CHAPTER 3
Fakers
Unlicensed Medical Practices
Unlicensed medical practitioners and midwives may claim to deliver
phantom babies; attempt to fraudulently provide fertility treatments;
and perform other duties that endanger patients and children (People v.
Odam, 1999). When licensed practitioners falsely claim to have adminis-
tered fertility treatment or fraudulently claim to have delivered phantom
pregnancies, criminal charges may result. Oenders may be convicted
of criminal negligence, criminal fraud, battery, sexual assault, aggravated
battery, and other relevant charges. Similar to unlicensed abortions, unli-
censed fertility treatments can be risky and unsafe. Vulnerable women
who knowingly or unknowingly turn to unlicensed fertility doctors may
risk unscrupulous practices and unsanitary conditions.
Reproduction is a rite of passage in Indonesia (Yeung, 2014). Couples
who cannot conceive may feel vulnerable and desperate. us, they may
feel too pressured to question suspicious practices. One unlicensed doctor
oered 14 sessions of fertility treatments over a seven-month period for
approximately $25. He provided women with capsulized pills intended
to create weight gain in cattle. e pill allegedly contained an anti-
inammatory steroid, Oradexon, which was allegedly consumed by pros-
titutes in the region to create inammation in their secondary sex organs.
e unlicensed doctor’s fertility treatments included hands-on energy
channeling, and orders that patients abstain from certain foods that are
normally associated with fertility and health during early pregnancy (e.g.,
bananas). Women were fooled into believing in false pregnancies. e
practitioner asked women to close their eyes and pray. While their eyes
were closed, he would switch urine samples that tested positive for preg-
nancy. He lied to patients about the dangers of obtaining sonograms at
20
Laws Relating to Sex, Pregnancy, and Infancy
legitimate hospitals; and most patients believed him. rough fraud, he
earned approximately $1,500 per month until patients began to realize
the scam when they received treatment from a licensed doctor and tested
pills through a local laboratory.
In Nigeria, an established lecturer and popular obstetrician and gyne-
cologist routinely scammed patients into believing that they received In
Vitro Fertilization (IVF) and became pregnant (Salako, 2012). He used
hormonal therapy to cease menstruation and presented positive preg-
nancy tests. Patients were likely desperate to conceive; excited to be preg-
nant; trusting toward their doctor; and relieved to satisfy African cultural
expectations to reproduce. After paying approximately $6,000, patients
were tricked into believing for nine months that they were pregnant.
Under hormonal therapy, patients exhibited the psychological and physi-
cal symptoms of pseudocyesis. e doctor recommended Cesarean deliv-
ery to patients and pretended to deliver stillbirths. On some occasions,
the doctor presented dead fetuses as evidence of stillbirth. However, one
couple attempted to lynch the doctor after he told them that their baby
had disappeared as the result of voodoo. Several other women reported
similar experiences; and the doctor was arrested and charged. e doctor
blamed his pseudocyesis scam on incompetent sonologists. One patient,
who could not conceive with her husband, claimed that the doctor
advised her to secretly secure another mans sperm to covertly receive arti-
cial insemination. us, his scams may have been multitiered, involving
multiple victims. e doctor is also suspected of murdering one of his
sta nurses who refused to participate in his pseudocyesis scam.
Hidden Contraband
Oenders attempt to smuggle contraband using fake baby-bumps, baby
diapers, baby formula, and other related objects. In some instances, the
crimes are petty, but others involve massive crime syndicates tracking
millions of dollars. Use of infants demonstrates callousness and disguis-
ing drugs inside baby products demonstrates cunning. e government is
aware of these tactics. In recent years, authorities like the Transportation
Security Administration (TSA) have been criticized for administering full
body pat-downs to infants, yet law enforcement, corrections ocers, U.S.
Drug Enforcement Agency (DEA) agents, and TSA ocers (TSO) con-
tinue to discover contraband inside babies’ diapers, baby bags, and baby
formula. Infant formula and black markets are discussed in Chapter 17.
Fakers
21
Occasionally, inmates’ intimate partners attempt to smuggle small
amounts of drugs into prisons (Chang, 2011). Drugs are intended for
intimates’ consumption and to sell on the prison black market. In one
case, police received a tip that a young woman was going to attempt
to smuggle sedatives into a prison. ey observed that when she vis-
ited her inmate boyfriend, she placed a baby on the inmates lap. e
inmate extracted from the child’s diaper a rubber glove containing pills.
e inmate and the girlfriend were charged. In other instances, intimate
partners involve their children in substantial drug operations. In Ger-
many, a young woman visited her husband in prison to deliver 46 ecstasy
pills and 15 grams of amphetamines (e Local, 2009). She transported
those drugs in her daughter’s diaper, and 12 additional grams of amphet-
amines in her clothing. Following her arrest, more than one dozen K-9
ocers searched the couples mobile home where they found 60 grams of
amphetamines, 166 ecstasy pills, and 530 grams of amphetamine paste.
Inmates use baby diapers not only to smuggle drugs, but also cash, cell
phones, weapons, and other contraband (Farrington, 2014). Cell-phone
possession in prison is a serious problem. Floridas Department of Correc-
tions alone reports that it conscates 11 cell phones each day. K-9 units
are trained to detect cell phones inside prison cells because they can be
used to deal drugs; conduct phone scams; maintain prohibited relation-
ships on social media; plan escapes; and disturb prison safety. In some
jurisdictions, cell phone possession can be a felony (Cusack, 2015).
Some mothers endanger their infants beyond involving them in drug
trade (Inquisitr, 2014). One woman, who was driving under the inu-
ence, hid heroin drug paraphernalia inside her infant’s diaper bag. After
she collided with an 18-wheeler, police discovered other serious viola-
tions. She possessed ecstasy; her license was suspended; and she failed to
secure her infant in a car seat.
Oenders have faked late-term pregnancy and motherhood to smug-
gle drugs. A woman from Georgia attempted to smuggle drugs inside a
fake baby-bump (e Smoking Gun, 2011). She packed 34,000 ecstasy
pills into the baby-bump and attempted to enter Canada riding a Grey-
hound bus. e baby-bump, containing 33 ziplock bags that weighed a
total of 21 pounds, was discovered to be fake during a pat-down. Another
woman, carrying four pounds of cocaine, attempted to evade detection by
smuggling the drugs under a fake latex belly (Daily Mail, 2013). Colom-
bian police who administered a pat-down noticed her belly seemed cold
to the touch and unusually hard. She was searched and arrested. Another
22
Laws Relating to Sex, Pregnancy, and Infancy
example nds an oender crossing through a border checkpoint in Cali-
fornia, attempting to enter with what appeared to be six infants but were
actually six bundles of cocaine (Manning, 2012).
Major drug busts reveal that drug dealers sometimes package drugs
inside baby products (Fidrus, 2012). In one case, Indonesian authorities
discovered that baby-powder bottles imported from Nigeria contained
532 grams of crystal methamphetamine worth $74,885. Another gang
smuggling heroin from Pakistan to Britain was sentenced to a total of 109
years in prison for attempting to smuggle approximately $15 million of
heroin inside baby-powder bottles (Edwards, 2013).
e DEA reported in 2004 that a crime syndicate used infants and
infant formula to mask drug-running (DEA, 2004). Millions of dollars
worth of cocaine and heroin were smuggled between New York, Chicago,
Illinois, and the United Kingdom (UK) between 1996 and 1999. Deal-
ers hid drugs inside baby formula containers. To avoid raising suspicions,
the crime syndicate paid female couriers to travel with infants, who they
rented from postpartum parents. Parents rented their children to travel
internationally on at least 45 occasions. Twelve of the 22 babies used by the
gang had been rented for cash or exchanged for drugs. e crime syndicate
also commissioned women to travel from Panama and Jamaica into the
United States with liquidized cocaine. ey injected liquid cocaine with a
syringe into baby formula cans so that the cans appeared to remain sealed.
e gang forged passports and defrauded airlines over $500,000 with fake
tickets. Shutting down this operation involved Immigration and Customs
Enforcement (ICE); the Chicago Police Department; the New York Police
Department; British Customs; the National Police Department of Panama;
Royal Canadian Mounted Police; the U.S. State Departments Passport
Oce; and local police departments throughout the suburbs of Chicago.
Escapes
Labor, labor pains, and pregnancy complications have been faked during
attempted escapes from custody, incarceration, court appearances, deten-
tion, correction facilities, mental institutions, and other related crimi-
nal justice locations. Some inmates’ attempts may be cunning; others are
rudimentary. For example, one pregnant inmate splashed red Kool-Aid
and convinced guards that the stain was blood (WJBK, 2013). Hospital
sta conrmed that she faked fetal distress. e inmate, who planned to
break out of the hospital, was charged with attempting to escape.
Fakers
23
Prison ocials have attempted to avoid escape attempts by taking
extreme measures. Constitutionally, when inmates are a high ight risk
they may be shackled to a hospital bed during labor. However, several
inmates have been falsely accused of faking labor or experiencing false
labor when actual labor began. Some inmates have been labeled medium
risks because they missed court appointments; but not because they have
attempted to escape or pose a danger to themselves or others. Women in
labor being transported to hospitals have been placed in full restraints,
including waist restraints and shackles. Women who pose little threat of
ight have also been shackled during labor (Journal of Obstetric, Gyneco-
logic, and Neonatal Nursing, 2011). Prison policies are often contravened
when waist restraints are used on a woman pregnant in her third tri-
mester. Restraints and prison policy are further discussed in Chapter 11.
Shackling a prisoner throughout labor may interfere with serious medical
needs (Brawley v. State, 2010). is interference may increase risks to
inmates’ health and pregnancy. Many times, shackling cannot be justied
because it is a penological aim designed to minimize ight risk. Courts
have held that unjustiably shackling women contravenes common sense,
departmental policy, and Eighth Amendment proscription against cruel
and unusual punishment. If ocers illegally shackle women during labor,
they may be immunized from charges if their actions were not deliber-
ately indierent to the risks of harm under those circumstances.
In one case, an inmate was placed in full restraints as she was trans-
ported to a hospital (Brawley v. State, 2010). Restraints were removed
when she arrived at the hospital; a male guard stood by during her exami-
nations; and an ankle cu was placed on her to attach her to a hospital
bed. e ankle cu was only removed briey for an epidural, and then it
was reattached. Because the inmate had been forced to wait several hours
at the prison before being transported to the hospital, her amniotic sac
contained no amniotic uid when she arrived at the hospital. Cesarean
surgery was required. Immediately prior to surgery, her ankle cu was
removed. After surgery, the plainti could barely ambulate. While she
bonded with her son, she was chained to the hospital bed. At one point,
her son had been placed out of reach so that he could receive medicine.
Hospital sta were not present when he began to choke. e inmate called
for help and attempted to reach her son, but the restraints bound her in
place. At another point, hospital sta required her to perform exercises
(e.g., walk around her room). She was forced to wear leg restraints and
could not adequately perform the exercises required to help her recover.
24
Laws Relating to Sex, Pregnancy, and Infancy
e pregnant inmate brought a claim under the Eight Amendment,
arguing that shackling a nonviolent inmate who posed no ight risk
unnecessarily, unjustiably, and wantonly inicted pain and cruelty
(Brawley v. State, 2010). Under the Eighth Amendment, prison ocials
must treat inmates humanely, ensuring that they are adequately fed,
clothed, sheltered, and given medical care. Inmates must be kept in safe
conditions (Farmer v. Brennan, 1994). Guards may not deliberately act
indierently toward inmates’ serious medical needs (Estelle v. Gamble,
1976). e court held that an objective standard demonstrates that labor
is a serious medical condition; however, prison ocials who shackle
inmates may or may not act with deliberate indierence (Brawley v. State,
2010). e second prong is a subjective determination. In this case, the
inmate was not faking contractions. She experienced unnecessary pain
because her chains restricted her movement. She could not adjust her
body to nd a comfortable position; yet, changing positions is central
to coping with labor pain. However, the guards may not have acted with
deliberate indierence even if their actions were purposeful and failed
to satisfy any penological aims. A guards subjective state of mind about
the necessity of the shackles may be relevant. Also relevant is whether a
guard could have inferred that shackles created a substantial risk of harm.
In this case, guards knew that they were violating prison policy by shack-
ling the inmate during labor. However, one guard’s testimony indicated a
belief that the inmate was not in labor. at guard cited several examples
where the inmate stated that she may not be in labor. Even after receiving
an epidural, guards continued to believe that the inmate was experienc-
ing illness or false labor. us, guards were mistaken about whether the
inmates medical condition was serious; and in their belief, her labor was
false. e guards who shackled the inmate would be immunized if policy
had been unclear, or if they made a good-faith mistake about the law; but
on this occasion, courts had already held that shackling inmates during
labor violated the Eighth Amendment (Brawley v. State, 2010; Hope v.
Pelzer, 2002; Nelson v. Correctional Medical Services, 2009; Women Prison-
ers of D.C. Dept. of Corrections v. District of Columbia, 1994).
Guards who falsely accuse inmates of faking labor or who mistake
actual labor for false labor are not necessarily culpable under the Eighth
Amendment (Smith v. Kankakee County, 2013). In 2011, an inmate was
in her second trimester of pregnancy with twins. Early in the morning
on September 11, she experienced severe pain. At 5:00 a.m. she used an
intercom in her cell to call for help, but an unidentied male corrections
Fakers
25
ocer replied that she should “mind her own business” (Smith v. Kanka-
kee County, 2013, p. 3). Around 8:00 a.m., another inmate found the
expectant mother in a fetal position in her cell; and at about 8:30 a.m.
the inmate asked a corrections ocer if she could go to a hospital. Around
9:30 a.m. prison sta likely learned that the inmate believed that she
was going into labor; and other inmates reported to prison sta that the
expectant mother was experiencing contractions. Prison ocers contacted
a nurse who did not describe the inmates contractions as an emergency
medical situation. At times, the inmate was mobile and did not appear
to be in distress. Two hours later, the inmate called her mother crying.
e inmates mother called the prison to inform them that her daughter
was in labor and required hospitalization. Prison ocials told ocers in
contact with the inmate that “she can stop calling her mama because her
mama cant do nothing up in here” (Smith v. Kankakee County, 2013,
p. 8). Prison sta and ocials said also said that the inmate “thinks she’s
having contractions,” and “she’s—in my opinion, a lot of times shes full
of shit. She dont even want to take her prenatal vitamins for the baby. You
know what I’m saying?” en they said,
And now you talking about she having stomach cramps. You can go eyeball
her and call me back if you want. Shes probably full of shit. But you can let
her know that she can see the doctor tomorrow if she’d like. Actually, she
was scheduled to see him, but refused. So if she doesnt—take her blood
pressure. If she doesnt appear to be in any serious distress, shes going to
wait until tomorrow (Smith v. Kankakee County, 2013, p. 15).
e inmate complained about pain in her back and genitals; but, when
the inmate complained about pain in her butt, prison sta joked that the
inmate was “not going to have the baby out of her ass” (Smith v. Kankakee
County, 2013, p. 15). At 2:45 p.m., the inmate began screaming while
sitting on the toilet bleeding. Around 3:00 p.m., ocers on the next shift
were ordered to transport the inmate to the hospital. She was not given
a wheelchair, but was forced to walk down stairs. By the time she arrived
at the hospital, ten miles from the prison, she was fully dilated. e twins
that she delivered around 5:20 p.m. died. e inmate alleged that guards
conduct violated the Fourteenth Amendment and Eighth Amendment
because it was deliberate, reckless, and wanton. She claimed that the
guards knowingly and willfully ignored her serious medical needs, which
resulted in substantial risk of serious injury, and ultimately, the death of
her twins. e court denied summary judgment but permitted the case
26
Laws Relating to Sex, Pregnancy, and Infancy
to go before a fact nder to determine whether deprivation of care was
objectively sucient; and whether the prison sta subjectively intended
to deliberately behave indierently toward the inmates safety. Juries
would likely nd that an inmate who is pregnant with twins in the second
trimester is at greater risk and in serious medical need. us, the objec-
tive component will be met. To determine whether guards were aware of
and deliberately indierent to excessive risks, juries must nd that guards
had a culpable state of mind (Holloway v. Delaware County Sheri, 2012;
Johnson v. Doughty, 2006). Criminal recklessness, not civil negligence, is
the required state of mind. A jury could nd either that the inmate did
give or did not give sucient notice of excessive risk; thus, the subjective
component was a matter for the fact nder.
Pseudo Pregnancies
Pseudocyesis is false pregnancy, also known as imaginary pregnancy,
phantom pregnancy, hysterical pregnancy, and spurious pregnancy (Gas-
kin, 2012). Traditionally, pseudocyesis was thought to aect newlywed
men or women or older women who are close to being menopausal. In
most cases, a person suering from pseudocyesis wishes to be pregnant
even if they believe that pregnancy is unlikely. False pregnancy primar-
ily aicts women who present with swollen abdomens and breasts and
pigmented areolae. In some cases, urinary tract infections and urine
retention, or other conditions, can present as pseudocyesis in patients
who suer from severe mental illness (Yeh, 2012). In rare cases, men
who have false pregnancies may suer similar symptoms. Symptoms
may include morning sickness; sensation of fetal kicking; and cessation
of menstruation (i.e., amenorrhea) (Gaskin, 2012). Men are likely to
understand that they are experiencing false pregnancy; but for women,
pseudocyesis, can be extremely saddening or humiliating when they dis-
cover that pregnancy was false. Some feel that they will be perceived
by others as being delusional, which further stigmatizes pseudocyesis.
Women are likely not delusional if they have no way of knowing that
pregnancy was false; for example, receiving false-positive results on a
pregnancy test.
Mental illness may relate to pseudocyesis in some cases (Simon, Vörös,
Herold, Fekete, and Tényi, 2009). Hypochondriacal delusion results
in extreme preoccupation with contraction of diseases or infections.
It may correlate with psychosis and postpartum symptoms following
Fakers
27
false pregnancy. Symptoms could include belief that babies are absent
because they have been stolen by culprits such as hospital sta or rela-
tives. Pseudocyesis typically describes delusional beliefs about pregnancy
that contradict factual evidence (Rosch, Sajatovic, and Sivec, 2002).
Some patients with false pregnancy who suer from postpartum delu-
sions may have family histories of pseudocyesis (Simon, Vörös, Herold,
Fekete, and Tényi, 2009). Patients with phantom pregnancies or post-
partum delusions may have family histories of schizoaective disorder;
however, they may not have personal histories of psychiatric illness. Posi-
tive pregnancy tests may be false positives ormay merely be delusions
(Bianchi- Demicheli, Lüdicke, and Chardonnens, 2004).
In one case, a 51-year-old female patient reported a positive home
pregnancy test after demanding urgent care at a hospital. She claimed that
she was in labor even though two gynecological visits demonstrated that
she was not pregnant. She presented no symptoms of pregnancy. She had
not menstruated for a year, but had experienced hot ashes for the past
two years. Doctors discovered that she was infertile as a result of voluntary
tubal ligation ten years prior. Doctors believed that her medical history,
including an abortion, combined with perimenopausal hormone changes
may have played a role in her pseudocyesis. In another case, a young
womans uncle attempted to fondle her four years prior to her presenting
with pseudocyesis (Manoj et al., 2004). Before presenting, but after being
incestuously attacked, the young woman attended a religious meeting in
which premarital sex was admonished. ereafter, she began to experience
delusions that a test-tube baby was growing inside her. She also believed
that someone would attempt to murder her. Her prior victimization and
fear of future victimization likely correlated with pseudocyesis.
Pseudocyesis may correlate with increased likelihood for encounters
with the criminal justice system. Comorbidity or risk factors include
postpartum psychosis; increased levels of hostility; greater likelihood of
polypharmacy and antipsychotic medications; frontotemporal demen-
tia; motor neurone disease; mania; past trauma; and higher resistance to
treatment (Larner, 2013; Moselhy and Conlon, 2000; Rosch, Sajatovic,
and Sivec, 2002). ese factors could potentially correlate with increased
risk for victimization; deviance; criminality; depression; self-medication;
risky behavior; violence; suicidality; or problems with medication. Bio-
logic, medical, and psychotherapeutic treatment could successfully inter-
vene by addressing emotional factors, including hostility, and resistance
to treatment. Psychotropic agents, cognitive therapies, and behavioral
28
Laws Relating to Sex, Pregnancy, and Infancy
modications may help to shift belief paradigms. In some cases, women
may deny being pregnant (Walloch et al., 2006). Emotional, therapeutic,
and social interventions may also benet patients.
Men who present with false pregnancy may be intimately involved
with pregnant women. In these cases, symptoms may be physical, but
unaccompanied by belief. However, delusions likely correlate with true
belief in the possibility of male pregnancy or persistence of belief after
scientic evidence of impossibility has been presented to the patient
(Tényi et al., 2001). ough it is somewhat normal for patients who
develop physical symptoms to attempt to self-diagnose, when males con-
clude that they are pregnant it may demonstrate problematic or abnor-
mal thinking. Delusional pregnancy in males may relate to trauma,
posttraumatic epilepsy, retardation, or better-than-average intelligence.
To some extent, doctors should investigate and be sensitive to patients
cultural backgrounds and exercise sensitivity. For example, some cultures
believe in “puppy pregnancy,” which could result when any human has
been bitten by or has come into close contact with a dog (Chowdhury,
2003). “Puppy pregnancies” may present with psychological and somatic
symptoms. Nevertheless, these strong cultural beliefs can correlate with
obsessive-compulsive disorder, anxiety, phobia, and pathological think-
ing. Rural cultural beliefs must be contextualized within modern medical
and criminal justice contexts because patients are subject to dominant
culture and laws. us, their thinking and behavior to some extent must
be normative and must conform to modern norms to avoid criminal
justice entanglements.
In some situations, people may fake pregnancies to commit fraud.
ese cases may begin as phantom pregnancy, but then oenders accept
scientic evidence that pregnancy is false. ey may continue to behave
as if they are actually pregnant to avoid shame and humiliation, or to con-
tinue beneting nancially. In either case, they may perpetrate fraud or
attempted fraud if they accept or request money for assistance with fake
pregnancies. Some oenders never truly believe that they are pregnant.
ey pretend to be pregnant to bilk donors, friends, or relatives. A couple
in Tennessee faked a pregnancy with twins (Bobo, 2013). e also faked
the twins’ deaths to fraudulently obtain donations for ctitious funeral
expenses. To induce donors, the wife showed prenatal ultrasounds. e
wife also contacted the mother of an ex-boyfriend to claim that he was
the father. e ex-boyfriend’s mother donated $100, but then contacted
the authorities. e husband showed photos of dead babies at work, and
Fakers
29
bilked approximately $900 worth of paid time and donations. e wife
was sentenced 30 days in jail. e court ordered two years’ probation; a
$100 ne; and 192 hours of community service in exchange for a plea to
the charge of creating a false impression of death. e husband pled to
the same charge and to theft of under $500 by fraud. e husband was
sentenced to just less than one year of probation and ned $100. e
wife claimed that her husband did not know that she faked the pregnancy
and miscarriages. e oenders repaid all of the victims, around $500,
which did not include a few hundred dollars in bereavement time the
husband collected at his job. eir pleas to creating a false impression
of death raise interesting legal and theoretical issues about the “death” of
unborn children or harm to fetuses. Fetal “death” is discussed throughout
Chapter 15.
Fake Surrogates
Sometimes, surrogates and surrogate agencies commit fraud, forgery, and
other crimes. ese crimes defraud would-be parents of money and may
inict severe emotional damage. Scams may involve asking clients to put
down nonrefundable deposits (Wood, 2006). Agencies pretend to search
for surrogates, and charge a fee, but then fail to locate any. ey may also
pretend to have found a surrogate who required medical costs throughout
the pregnancy, but then became unwilling to give up the baby. Scams
may also involve surrogates taking money and pretending to be pregnant
(Vorzimer, 2011). Some surrogates steal tens of thousands of dollars from
each victim. Most surrogacy involves little government oversight; thus,
fraudulent surrogates may attempt to forge contracts, receive stolen prop-
erty, and commit theft (Jensen, 2014).
e Uniform Status of Children of Assisted Conception Act
(USCACA) outlines rules for surrogacy. It species requirements for sur-
rogacy contracts and legal parenthood. However, few states have adopted
it. Allegations of fraud may be raised in civil court, family court, and
criminal court (Spivack, 2010). Generally, the elements of civil fraud and
criminal fraud are the same or similar throughout each state. e ele-
ments of fraud in surrogacy contracts may be met when (1) an agency
or surrogate knowingly and intentionally makes a deceptive statement;
(2) the statement is of material importance; (3) the victim is justied in
relying on the statement; and (4) as a result of relying on the statement
the victim suers damages.
30
Laws Relating to Sex, Pregnancy, and Infancy
States may prohibit surrogacy contracts under certain circumstances.
Some states prohibit surrogacy contracts for embryo implantation only
when embryos are unrelated to the surrogate; legislatures may prohibit
articial insemination; and some jurisdictions forbid natural means of
conception if surrogacy is the goal (A.R.S. § 25-218, 2014). Parties may
avoid involving the justice system if they entered into fraudulent surro-
gacy contracts in jurisdictions that prohibit surrogacy or void surrogacy
contracts or provisions.
In states where surrogacy is prohibited, natural mothers are considered
to be legal mothers who are entitled to custody (A.R.S. § 25-218 (2014).
Husbands of natural mothers are presumed to be legal fathers. When
surrogacy contracts are entered into illegally, contracts can raise issues
about human tracking, abandonment, and child endangerment. Legal
provisions regulating surrogacy often deal with contract law, not criminal
behavior. However, sale of children is prohibited in all states; and par-
ties who contract for surrogacy in an illegal manner could potentially
be charged under certain circumstances. For example, a few legislatures
specify that surrogacy amounts to child tracking if any money is paid
to a broker, not including nonprot adoption agencies; or if any money
is paid for services beyond living expenses and medical care for approxi-
mately one year total (La. R.S. 14:286, 2013).
In some cases, individuals pretend to be surrogates so that they can
participate in child tracking (Gecker, 2014). ey may participate in
small-scale or large-scale tracking operations. Child tracking may be a
form of unregulated adoption; or it may be motivated by sexual exploita-
tion of children. Sexually exploited children may be undocumented and
enslaved. Surrogacy is a convenient cover for human tracking opera-
tions because it may be used to explain numerous births and infant relo-
cation. Infants may be sold to enslavers, who don parental roles or enslave
children. Chapter 4 and Chapter 17 further discuss surrogacy, adoption,
and human tracking.
Reborn Dolls
Reborn babies are dolls that appear lifelike. Details may include lifelike
head weight, milk spots, ethnic features, birthmarks, wrinkles, skin tags,
acne, sonograms, “warm to the touch” bodies, heartbeats, and latching
mouths (BBC, 2008). Children, teens, adults, and seniors own these dolls.
Many invest considerable amounts of money on related designer clothes,
Fakers
31
carriages, car seats, feeding tools, changing products, and nurseries. Some
treat reborns as dolls, but others treat reborns as children. Adults who
treat dolls as children or adults who play with dolls may face ridicule
(Fitzgerald, 2011). Social constructions of motherhood and child’s play
may be too narrow to classify ownership of reborns as either motherhood
or play. “Motherhood” may be dened as a strategic, laborious, or loving
eort exerted by a woman to raise and protect a minor under her care.
“Play” is an activity during which a child uses imagination to participate
in ctitious events or to create an atmosphere of enjoyment. Ownership
of reborns may cause ridicule because in many cases, it is neither mother-
hood nor play. Reborn “babies” may be criticized because they are not
protected by “real mothers” or society; and adults’ dolls may be criti-
cized because they are disconnected from the innocence. For example, a
documentary about reborns noted that commenters on Internet websites
often discuss reborns using violent sexual innuendo. Violent sexual innu-
endo violates normative discussions about babies and innocent childhood
activities. us, feelings and skills involved in caring for a reborn doll may
be marginalized by the public.
Some people may be aware of and socially accept reborn dolls and
attendant ownership. Yet, because of the dolls’ lifelike appearances, many
members of society and the justice system are unlikely to be aware that
“babies” are actually dolls; and they may respond to reborns as if they are
children. e reborn community may play into gray areas, and may enjoy
blurring the boundaries between motherhood and play. For example, a
reborn doll maker in England solicits clients at grocery stores by shopping
with a reborn in a basinet; she approaches shoppers by asking, “Would you
like to buy a baby?” (BBC, 2008). At rst, customers are engaged by the
odd question, which implies solicitation for human tracking; but then,
the doll maker quickly dismantles their concerns by discussing reborns,
but only after using gray language to insinuate human tracking.
e lifelike quality of the dolls occasionally insinuates that abuse or
neglect are afoot. A few criminal justice system events have transpired
after concerned citizens, who confuse reborn dolls with actual children,
report child abuse or neglect. For example, police have attempted rescue
after tipsters report reborn dolls locked in hot cars (Daily Mail, 2011).
Babies left in hot cars have died; thus, police likely do not anticipate that
alleged “babies” in hot cars are actually dolls (McLaughlin, 2014). When
dolls are located where babies normally would be, police may likely believe
that dolls are babies. Police should not derogate doll owners, who lawfully
32
Laws Relating to Sex, Pregnancy, and Infancy
leave dolls in cars or other situations that cause police to mistakenly initi-
ate rescue operations. Even if some police could dierentiate between
toys and babies, social conscience may not encourage individual ocers
to exercise discretion without 100 percent certainty because the risk of
failing to rescue an actual infant would be too serious. Society expects
police to rescue infants in crisis. When police are aware that reborns are
in fact dolls, they may choose to be sensitive to owners who view reborns
as children. For example, Memorial Reborns may resurrect deceased chil-
dren (BBC, 2008). Police who encounter these simulacrums may respect
emotional bonds that people have with these dolls; yet, some may not
choose to assume risks associated with protecting or rescuing dolls.
CHAPTER 4
Baby Snatching
Child Custody
Most often, child custody is a civil matter. However, it may become a
criminal matter when children are kidnapped. Nonviolent, familial kid-
napping is the most common form of kidnapping. Often, noncustodial
parents defy court orders and move, with a child, from a ruling juris-
diction. Violating court orders can carry criminal sanctions in addition
to kidnapping charges (FBI, n.d.; U.S. Department of State, n.d.). e
International Parental Kidnapping Crime Act (IPKCA) of 1993 per-
mits issuance of an arrest warrant for international kidnapping; and
the Unlawful Flight to Avoid Prosecution (UFAP) law permits federal
authorities, at states’ request, to issue a federal arrest warrant for a par-
ent who abducts a child from a state. Internationally, interagency col-
laboration facilitates investigation and enforcement.
Children are often relocated to foreign jurisdictions where their cus-
todial parents may be either unable to locate them or unable to enforce
domestic custody orders without signicant eort and nancial expen-
diture (Gorman, 2014). Many children are abducted to jurisdictions
that will not enforce custody orders from the United States. Occasion-
ally, children may be agged by local, federal, or international authori-
ties when parents attempt to travel outside a foreign jurisdiction or
enter the United States. Seventy-four countries have partnered under
the Hague Convention permitting parents to le an Application for
Return. Central Authorities in each nation help locate children and
encourage civil resolutions between parents. Custody orders are rel-
evant, but not necessary. us, court orders need not be violated for
signatories’ Central Authorities to become involved.
34
Laws Relating to Sex, Pregnancy, and Infancy
Fetus Theft
Oenders may cut out babies from expectant mothers’ wombs. Some
women and fetuses have survived, but many have not. Oenders are gen-
erally mentally ill and may suer from delusions. Mentally ill men may
attack women and remove fetuses, although in such cases male perpetra-
tion often relates to domestic violence. For example, a man was accused of
stabbing his wife in the stomach (Malm, 2012). She was pregnant when
the accused attempted to cut the fetus from her womb. He was charged
with feticide and second-degree attempted murder.
Mentally ill oenders are often women who desire to be mothers or
believe that they are mothers. Pseudocysis is discussed in Chapter 3.
Sometimes, oenders have histories of sexual trauma or may have been
sterilized (U.S. v. Montgomery, 2011). ey may convince others, includ-
ing their families, that they are pregnant. In one case, a woman who
abducted a child was sexually traumatized and had been sterilized (U.S.
v. Montgomery, 2011). As a teenager, she had been sexually abused by
her stepfather, and she married her stepbrother when she was eighteen.
She was forced by her spouse to be sterilized. On at least four separate
occasions prior to her crime, she told people that she was pregnant. Vari-
ous experts provided theories about her being malingering, calculating,
severely defective, or delusional.
Some defendants may be charged with kidnapping or homicide for
actions relating to the mother or fetus. In one case, a defendant abducted
and strangled an expectant mother (U.S. v. Montgomery, 2011). When
the victim lost consciousness, the defendant cut open her abdomen with a
kitchen knife. e victim regained consciousness while the fetus was still
inside and struggled with the oender, but the victim died thereafter. e
defendant argued that the victim was killed before abduction could be
completed; thus, she should not be charged with kidnapping. However,
the court found that murdering the mother facilitated the kidnapping.
Human Trafcking
Human Tracking is a billion-dollar business. It is discussed in Chap-
ter 3 and Chapter 17. Fertile women, babies, and expectant mothers are
tracked for various reasons. Depending on the jurisdiction and cir-
cumstances, surrogacy may or may not be a form of tracking (Iowa
§ 710.11, 2014). Some victims will be adopted, but others will be sexually
Baby Snatching
35
exploited or enslaved. One common way to trac infants without suspi-
cion is to falsify birth records (i.e., lie about the biological fathers iden-
tity). In one case, a woman became pregnant with an unwanted child.
She drank alcohol throughout her pregnancy and the child was allegedly
born addicted to opiates (Daily Mail, 2012). e womans grandmother
reported to authorities that the woman sold her infant to a homosexual
couple for $15,000 to pay for her bills and a trip to Disney World for her
other children. e woman falsied a birth certicate by falsely claiming
that one of the men who paid her was the child’s biological father. She
claimed that she was mentally ill, and that she did not want to give the
child up for adoption because she wanted to remain in contact with the
child. As a result of selling her child, the state took custody and placed
the child into foster care. e mother and the buyer pled to the charges,
and faced up to ve years in prison with a ne of up to $100,000. In these
kinds of cases, tracking eectively kidnaps children from the biological
father.
Stealing Babies
Oenders have kidnapped babies from hospitals and homes. In some
cases, infant victims have not been recovered. In other cases, authorities
have investigated and located the victims. A major kidnapping conspir-
acy was alleged to have begun in Spain under General Francisco Franco
(Dunbar, 2011). More than 300,000 infants were allegedly stolen over
the course of ve decades. Following delivery, rogue churches, nuns, doc-
tors, priests, and nurses would allegedly tell mothers that their babies
were stillborn. Sometimes, they told them shortly after delivery, but other
times they waited several hours or days. Responsible parties sometimes
showed frozen stillborn infants to postpartum mothers; or they failed to
present any child to the mother. Often, victims were vulnerable because
they were typically unmarried. When questioned about why pregnant
women failed to place their names on birth certicates and why children
and infants were available for adoption, those priests, doctors, and other
ocials responsible could claim that the women chose to adopt infants
into other families, and that the birth mothers had chosen to remain
anonymous. However, many women later believed that they were targeted
because they were undesirable parents to the church. ey were unwed,
which made them vulnerable and an aront to traditional establishments.
Rogue nuns, priests, doctors, and nurses may have been paid thousands
36
Laws Relating to Sex, Pregnancy, and Infancy
of pesos to sell children illegally to families who could not adopt. Some
families were alternative families (e.g., same-sex couples), which refutes
claims that all babies were stolen to enforce traditional morality.
Switching Samples
Criminal oenders have purposefully contaminated sperm samples or
other biological materials at reproductive clinics. ese cases have been
rare but their impacts are far-reaching. Some oenders have fathered
numerous children by replacing sperm donors’ samples with their own
semen. Tom Lipperts case is a notable example because he had a criminal
record and psychiatric history prior to working at a fertility clinic (Foy,
2014). His background was not checked prior to employment. Lippert
rst encountered the criminal justice system when he allegedly kidnapped,
threatened, and tortured a woman to force her to love him (Lippert’s Chil-
dren, 2014; Witt, 1975). He accepted a plea deal to reduce his charges
from kidnapping to conspiracy and received psychiatric treatment for
90 days. Lippert then worked at the fertility clinic for approximately ten
years beginning in 1986; but he began making semen donations in 1983.
He allegedly processed his own samples and could have switched or inten-
tionally mislabeled numerous samples. At least one victim received con-
rmation through DNA testing that Lippert fathered her child; and more
than one dozen other families suspected that their samples may have been
switched by Lippert. e U.S. Food and Drug Administration regulates
fertility clinics, but it mainly focuses on sanitation, disease control, and
quality control protocols. Yet, semen samples are required to be clearly
and accurately labeled. e U.S. Clinical Laboratory Improvement Act
(CLIA) regulates registered clinics, but Lippert’s actions were criminal
because he acted in bad faith beyond professional negligence; thus, the
laboratory was not held liable (CLIA, 1967; WJLA, 2014). Furthermore,
labs are not required to register with CLIA, but they must comply with
requirements to submit samples to the Centers for Disease Control and
Prevention and to be certied by the Society of Assisted Reproductive
Technologies (Davidson and Andersen, 1992).
In another case involving fraud and bad faith, an infertility doctor
used his sperm to impregnate as many as 75 patients; and he falsied
positive pregnancies to defraud patients (WJLA, 2014). Denying crimi-
nal culpability, the doctor characterized his actions as mistakes. He said
that he misread sonograms; yet he substituted his own sperm samples on
Baby Snatching
37
several dozen occasions and lied to at least one patient about using her
husband’s sperm sample. e doctor lost his license; was ordered to pay
$77,805 in nes and $39,000 in restitution to at 15 least victims that he
fathered; and was sentenced to ve years’ incarceration without parole.
Surrogacy
Surrogacy laws may be complex; and, yet, many jurisdictions are criti-
cized for minimalistic or nonexistent surrogacy laws. is is discussed
in Chapter 3. Surrogacy disputes are usually resolved in civil court, but
some cases have criminal implications. Occasionally, criminal charges
have been brought against couples who kidnapped pregnant surrogates or
forced women to become surrogates. In some cases, surrogates absconded
with fetuses or infants; yet, due to surrogacy laws, this may not necessarily
be criminal (Soda Head, 2010). For example, a couple purchased egg and
sperm; and they paid a surrogate to carry twins for them. e couple met
with the surrogate in family court for the purpose of being granted cus-
tody. While in court, the surrogate became uncomfortable after learning
that the would-be mother had a criminal history of drug use and had used
medication to treat a mental disorder for the past ten years. e surrogate
asked the court to permit her to retain custody of the twins, who were not
biologically related to any of the parties. Because the State of Michigan
does not recognize surrogacy contracts beyond compensation for medical
expenses, the agreement was void and the contracting parents could not
exercise parental rights. e surrogate retained custody of the infants,
although they were in the couples physical custody.
Surrogacy may become criminal when it overlaps with human traf-
cking or sexual exploitation. After Australian surrogate parents allegedly
abandoned one twin born with Downs Syndrome, Interpol in ailand
began investigating a Japanese businessman who impregnated several sur-
rogates and fathered 16 surrogate children (Rawlinson, 2014). Interpol
raided his apartment and discovered nine infants and nannies; investiga-
tions revealed that he had traveled to ailand 41 times in four years; and
had traveled to Cambodia on several occasions to deliver babies. His goal
was to produce between 10 to15 children each year, and freeze sperm for
the future. e man claimed that he wanted a large family who could
vote for him in elections; but authorities believed that he was tracking
children for adoption or sexual exploitation. Chapter 17 further discusses
surrogacy and the law.
CHAPTER 5
Animals
Emergencies
Sometimes, the criminal justice system becomes involved when animals
attack humans. For example, in one South African town, two babies were
attacked and eaten by giant rats (Newling, 2011). One of the infants
teenage mothers was arrested for culpable homicide and negligence.
Emergency situations involving animals are further complicated in
remote areas (e.g., national parks) where cell phones have no reception
and dialing 9-1-1 would not result in an immediate emergency response
(Brisman and Rau, 2009; Simon and Pasternak, 2008).
Babies and pregnant women have been rescued from crime and danger
by animals, including dogs, horses, cats, and pigs (Barness, 2014; Nation
News Agency, 2008; Ochs, 2013). Many animals are trained to dial 9-1-1,
and others spontaneously dial 9-1-1 during emergencies. Sometimes,
before the criminal justice system can respond to such emergencies, ani-
mals have already responded, physically rescuing mothers and children.
For example, in Indiana, a man and his dog witnessed four dogs attacking
a pregnant woman (Held, 2011). e attacking dogs punctured the preg-
nant woman at least 50 times below her waist. e man fought o two
of the dogs and his dog rescued the woman from the other two attackers.
Feral Children
Some babies have been abandoned by humans and cared for by animals
for brief or even extended periods of time. Several examples of feral
children were the result of willful desertion; yet other examples involve
neglect and isolation with animals. Often, children who are abandoned
and isolated suer from parallel problems and exhibit similar behaviors
40
Laws Relating to Sex, Pregnancy, and Infancy
(e.g., quadruped locomotion and diculty ambulating) (McNeil, Pol-
loway, and Smith, 1984). In one study of 31 cases, approximately
10 percent of the children were reportedly covered in ne hair. Of 46
cases reviewed in another study, 78 percent of recovered children were
unable to articulate intelligible words.
Feral children and isolated children present similar diculties. For
example, an eight-year-old girl and a toddler were raised by wolves; and
two boys and one girl were isolated and conned with animals. Each
of the children lacked language skills, socialization, and human-coping
skills. ey demonstrated fear of new environments. All of the children
required training to unlearn animal skills, reactions, and emotions. Suc-
cessful rehabilitation may relate to the childrens exposure to human soci-
ety prior to living with animals. e girls were young when they began
living with wolves. When discovered by humans, they were described as
hunched over and their appearance was described as hideous (McCrone,
2003). Unlike children who were isolated with farm animals, the girls
ate only raw meat and tore o human clothing. ey had superior night
vision and could smell meat from a distance. Unlike children who were
raised in isolation, girls raised by wolves never observed human society
while in the wild. Mentally and psychologically, they were so dierent
from humans that they were not attuned to human voices. After recovery,
the girls never learned to be normal humans.
e idea of unlearning animalism and learning humanism raises philo-
sophical and neurocriminological questions about human nature and the
inuence of human mentality at birth. One possibility is that some such
children, who do not adapt to human society early on, are abandoned
and become feral. ey are abandoned by their parents in nature because
they seem predisposed to be wild. is could suggest that some humans
may naturally be less capable of conforming to tame social norms. is
idea may presuppose that infants are born with such mentalities or that
some have human psychological traits that resemble or are more compat-
ible with animal societies than human societies. e eect and fairness
of the law could be called into question because some people may be
inclined to behave wildly. However, feral children may develop animal
instincts, survival skills, and traits after being immersed in animals’ envi-
ronments and isolated from humans (Candland, 1993). Deprivation of
human contact and care provided by animals early on may create perma-
nent impressions that limit assimilation into human society later (Den-
nis, 1941). is possibility suggests that children are born without human
Animals
41
perspectives; and that, mentally, they are unarranged. Often, when feral
children are discovered, caretakers and researchers expect them to learn
to speak, identify with humanity, and use human perspectives to explain
feral childhood (Whiten, 1993). However, this presumption may be ill
conceived. Many feral children reject human society and fail to become
articulate. Feral children may only mirror or adopt human morality when
caretakers or researchers punish them for bad behavior and reward them
for good behavior (Gibbons, 2004).
Willful abandonment and isolation demonstrate extreme psychologi-
cal and physical abuse (e Week, 2012). Authorities may not be capable
of locating feral childrens biological parents. Parents may abandon chil-
dren in the wild or disappear once children have been rescued. However,
some feral children simply go missing or are carried away by animals.
us, parents may not be abusive in these cases. Isolated children may
be conned to live with goats, dogs, or other animals at a residential
property. Several relatives may willfully isolate children or be complicit,
participating in the abuse. In these cases, children who are rescued may be
unlikely to have relatives who will raise them as human. Isolated children
may be placed in state custody or foster care. Children who are young,
such as a one-year-old boy cared for by eight wild cats, may be easier to
reintroduce into human society and place with a foster family. In cases
where children were missing, but not neglected or abandoned, reunica-
tion with legal parents may be possible and benecial. However, if abusive
parents can be located, then their parental rights would likely be termi-
nated, and they may likely face charges for child maltreatment or torture.
Costumes
e criminal justice system encounters people dressed as animals. For
example, nude pregnant animal rights activists have posed mostly nude
to depict pregnant pigs restricted on farms. ey attract a signicant
amount of press and public attention to their message, which is intended
to raise awareness of animal mistreatment. ey may notify police of their
demonstration in advance in order to secure permits to block sidewalks.
Generally, using public sidewalks for demonstrations does not require a
permit unless large crowds gather that pose a threat to order or safety; or
walkways are blocked by immovable objects (e.g., displays or seated bod-
ies) (ACLU, 2012). Crates containing pregnant women are positioned
on the sidewalk, which likely requires permitting (e Telegraph, 2009).
42
Laws Relating to Sex, Pregnancy, and Infancy
Without a permit, blocking a public walkway could be an arrestable
oense (PETA v. Grace, 1983). Demonstrators have been arrested for
blocking sidewalks with displays. When demonstrators do secure permits
to block public walkways, they may have to choose a sidewalk that does
not serve a large amount of pedestrian trac. Municipalities’ granting of
permits implicitly guarantees that demonstrators’ rights to protest on that
sidewalk will be protected. Municipalities may provide police presence to
protect nude and pregnant demonstrators (Cusack, 2015a). Demonstra-
tors who do not require permits may notify police of their presence in
advance so that vulnerable pregnant activists are protected from members
of the public who may sexually harass or assault them.
Another example concerns an alleged sex oender in Orlando, Florida
who dressed as a dog and collected child pornography (Pacheco and Cur-
tis, 2007). Plushophilia is a victimless fetish involving animal costumes;
in this case, the man dressed professionally as Disney character the Beast
at the Magic Kingdom (Cusack, 2014a; Cusack, 2015; Pacheco and Cur-
tis, 2007). us, this man, who fetishized children, interacted with thou-
sands of children on a regular basis. When police searched his home, they
discovered over 1,000 pornographic depictions of young children. e
accused was the father of a one-year-old child whose mother was 16 years
old at the time she conceived. He was charged with 51 felony counts of
child pornography.
Working Animals
Working animals cannot consent to sex or impregnation. us, human-
animal sexual relations are considered to be cruel (Cusack, 2013). Fur-
thermore, sexual intercourse and object penetration with animals is illegal
because it is immoral. However, breeding is not classied as sexual contact
because of tradition; commercial purposes; and potentially, industry stan-
dards (A.R.S. § 13-1411, 2014). Object penetration, however, performed
to articially inseminate animals, is considered to be neither immoral
nor harmful. Generally, articial insemination of working animals is legal
when it conforms to industry standards and is performed for commercial
purposes. Animals’ compliance with insemination is irrelevant to breed-
ers’ legal right to inseminate them, who have a quasi-property status in
this context.
It is likely that most animals working in K-9 and mounted units are sur-
gically altered (i.e., spayed and neutered) (Cusack, 2015b). ough many
Animals
43
will not be bred after retirement, a few may be. Breeding is usually per-
formed by contracted breeders, but some police departments breed dogs
in-house. For example, over a six-year period, the Winnipeg Police Service
bred 42 pups; 90 percent of their dogs were purchased by police forces and
passed training courses for street work (e Winnipeg Police Service K9
Unit, n.d.). Some pups began working at 13 months old and may continue
working for nine to ten years before retirement.
Many canine and equine ocers are bred; and yet, in recent years,
numerous working animals have been donated to or adopted by police
units (Cusack, 2015a). For example, the New York State Police Division
Canine Unit receives donated canines from Humane Societies, breeders,
and private citizens (New York State Police, n.d.). Almost all working
animals are adopted from the government after they retire. More than
90 percent are adopted by their handlers, while some are adopted by the
public (Department of Defense Military Working Dog Adoption Pro-
gram, n.d.). Robbys Law was passed in 2000 to ensure that adoptable
military working dogs are not euthanized after retirement (H. R. 5314,
2000). When young working animals fail training standards, then they
may also become available for adoption. Failing training standards does
not necessarily indicate that animals lack sociability. To the contrary, the
animals typically have been housebroken, but may lack the best tempera-
ment, physique, or requisite skills for their jobs.
CHAPTER 6
Freedom of Religion
Male and Female Circumcision
Parents have a fundamental right to raise their children (Seldin, 2013).
Parents have a right to provide children with religious upbringing, but
they cannot exploit children through religious practice (Pierce v. Society of
the Sisters, 1925; Prince v. Massachusetts, 1944). ough the government
is obligated to act in the best interest of children, the court cannot substi-
tute its judgments for parents’ judgments. e government may intervene
into families when childrens health or safety is at risk.
Parents are typically prohibited from consenting to elective cosmetic
surgeries on infants’ genitals (Seldin, 2013). Yet, the government makes
general exceptions to applicable abuse laws made for ritual circumci-
sion on male infants. Religious freedom, including faith-healing exemp-
tions, and parental rights seem to result in a quasi-hybridized right to
circumcise. Furthermore, some studies indicate that circumcision may
correlate with health benets; and long-standing tradition supports
rationales for legalizing circumcision, generally. Orthodox religious pro-
cedures for removing male foreskin have been questioned by a couple
of jurisdictions in recent years, but have not been widely criticized even
though criminal charges could arise from religious ceremonies involv-
ing bris milah (i.e., circumcision). Orthodox Jews participate in ritual
circumcision procedures called metzizah b’peh (MBP) that require ritual
circumcisers (i.e., mohels) to orally suck blood o infants’ penises after
foreskin is removed. Several infants have died from the procedure after
being infected by mohels (e.g., contracting herpes). Yet, the majority of
jurisdictions have refused to contemplate either health concerns related
to MBP or sexual implications arising from oral-genital contact between
mohels and infants.
46
Laws Relating to Sex, Pregnancy, and Infancy
Female Genital Mutilation (FGM) is a term used to describe vari-
ous forms of circumcision, including clitoral amputation (i.e., clitori-
dectomy), clitoral amputation and labia minora removal (i.e., excision),
and labial removal and vulva closure (i.e., inbulation). It is a cultural
and cosmetic procedure aimed at improving females’ sexual status that
is alleged to reduce sexual pleasure; cause shame; and perpetuate patriar-
chy. Like the majority of male circumcisions, FGM is performed with-
out anesthesia. FGM is usually performed without surgical tools, and it
is performed in groups, which could spread HIV (Seelinger, 2010). It
is mainly practiced in Africa. FGM performed on children is criminal-
ized throughout the United States; and it is illegal to travel outside the
United States to perform FGM (18 U.S. Code § 116, 2014). Several
U.S. states criminalize performance of FGM on adult women (Equality
Now, 2014; Center for Reproductive Rights, 2004). However, the same
jurisdictions may not interfere with other elective procedures (e.g., vagi-
nal rejuvenation) that potentially reduce pleasure, and arguably, relate to
patriarchal inuence (Cusack, 2012). Every jurisdiction permits routine
episiotomies during labor even when they are not medically necessary
(Cusack, 2011). Some legal theorists claim that FGM is unfairly tar-
geted because it relates to Islam, whereas male circumcision is accepted
because it relates to Judaism. Yet Muslims practice male circumcision in
far greater numbers than Jews; and some people practicing FGM are not
Muslims (e.g., Christians in Africa). One major dierence between male
and female circumcision is that FGM amputates portions of a females
sex organs while male circumcision removes skin. Yet, male circumcision
is performed during infancy, before foreskin has retracted and forceful
removal causes trauma and pain; the procedure can result in amputation,
scarring, reduced sensation, disease transmission, and death (NoCirc,
n.d.). Critics of FGM claim that it is a crime against women with histor-
ical roots in male dominance; yet, male circumcision targets males, and
is rooted in a belief that God made a pact with Abraham to rule many
nations (Genesis 17: 1-27). All males, including slaves, in Abrahams
home had to be circumcised at eight days old so that Abraham could
increase his power and wealth. e story is the foundation of patriar-
chy in Judaism (i.e., the rst patriarch); and circumcision signies that
patriarchy continues. is narrative is also the basis for male circumci-
sion in Islam because Ishmael was circumcised as a result of Abrahams
patriarchy.
Freedom of Religion
47
Satanic Rituals
Satanism is a religion and secular philosophy that upholds and instructs
members about Satanic values and ritual. Anton Szandor LaVey, author
of e Satanic Bible, founded Church of Satan in 1966. Church of
Satan delineates rules and principles for Satanic individualism. Rituals,
psychodramas, ethical codes, and church membership are available to
anyone wishing to follow Satanism. Convicted felons are not permit-
ted to be members of Church of Satan, though they may practice inde-
pendently. e public may believe that Satanists sacrice humans and
animals; drink blood; become demon-possessed; rape women; and muti-
late babies. However, Church of Satan disavows any rituals that involve
harming animals or humans. In 1988, LaVey ocially addressed mis-
conceptions about Satanism in “Pentagonal Revisionism: A Five-Point
Program”:
In recent years, weve wasted far too much time explaining that Satanism
has nothing to do with kidnapping, drug abuse, child molestation, ani-
mal or child sacrice, or any number of other acts that idiots, hysterics or
opportunists would like to credit us with. Satanism is a life-loving, rational
philosophy that millions of people adhere to (LaVey, 1988).
LaVeys statement is consistent with “e Eleven Satanic Rules of the
Earth” established by Church of Satan in 1967 (LaVey, 1967). Satanic rit-
ual practice is not required for membership in Church of Satan or belief
in Satanism; rituals are considered to be a tool.
Generally, Satanism may be lumped together by traditional Chris-
tian religious communities with Wicca, pagan religions, and noncon-
ventional religions (e.g., Scientology, Branch Davidians, UFO religions,
and Heavens Gate) (French, 2003). On one hand, thousands of religions
are linked by a common thread (i.e., that they are non-Christian). His-
torically, Christian Europeans labeled people “witches” if they practiced
other, nonconventional religions (Elder, 1991). Poor people who served as
scapegoats were also labeled “witches.” Impertinent women who rejected
patriarchy could also be labeled “witches.” Demonologists worked with
courts to create a stereotype about female witches and their evil rituals.
On the other hand, Church of Satan is unrelated to witchcraft, Wicca,
paganism, voodoo, other forms of Satanic practice, and other non-
Christian religions.
48
Laws Relating to Sex, Pregnancy, and Infancy
Unlike Christian and non-Christian traditions that acknowledge faith
in false gods, demons, and spirits, Church of Satan believes that beliefs
in supernatural attacks and demonic oppression are psychological delu-
sions that require professional mental health treatment. Black Masses,
and other traditional rituals that stem from Church of Satan rituals, do
not invoke or communicate with spirits, demons, or supernatural beings.
However, Satanism may be associated publically with demons, mental
illness, and child murder because some oenders have claimed to hear or
have spoken to Satan prior to murdering their children (Pouncey v. State,
1983).
Defendants have suddenly experienced delusional beliefs about Satan
during sporadic manifestations of psychosis. ey may have believed that
they are killing Satan or exorcising Satan from their children. People who
are mentally deranged or experience psychotic reactions may not be able
to appreciate the nature of their conduct; and may not be able to con-
form their behavior to the law during delusional religious ideation. If
these people kill their infants during a delusion, then they may become
suicidal. Infanticide is discussed in Chapter 15 and Chapter 17 (People
v. Littlejohn, 1986). Andrea Yates, who drowned all of her children in
a bathtub, suered from severe postpartum psychosis (Leblanc, 2007).
She killed her children during a delusional episode because she believed
that Satan possessed her, and that the only way to save her children from
infernal suering was to kill them. Postpartum psychosis is discussed in
Chapter 16.
Child abuse and neglect have been associated with Satanism and men-
tal illness. Neglect may be established when, without malicious intent,
a parents mental illness causes children to believe that their parent has
ritualistically abused them (Matter of William O., 1995). In one case, a
mother frequently experienced psychotic delusions about her childrens
father perpetrating Satanic ritual sexual abuse on her children. e chil-
dren adopted this belief and experienced delusions about Satanic ritual
child abuse. e childrens symptoms abated after they were removed
from her custody.
Antisocial personality disorder, which may or may not relate to men-
tal illness, has aicted oenders who may also be Satanists (Alvarado
v. Dretke, 1995). Antisocial personality disorder signicantly correlates
with violent crime. Satanists who suer from antisocial personality dis-
orders and commit crimes may cause misconceptions about Satanism.
In one case, an institutionalized juvenile oender confessed to raping a
Freedom of Religion
49
woman to become initiated in a Satanic cult that mutilated and tortured
infants. erapists said that he suered from antisocial personality disor-
der, a reading disorder, and narcissism. He was charismatic and manipu-
lative. He had no conscience, used drugs, obtained weapons illegally, and
bragged about possessing powers sucient to avoid consequences for his
actions. Due to his narcissistic personality and absent conscience, he may
possibly have been a psychopath (Cusack, 2014c).
Victims may report alleged Satanic abuse to therapists while under
treatment. One patient reported that her parents forced her to participate
in Satanic rituals (Jones v. Lurie, 2000). She reported that cult members
physically and sexually abused her. Her father allegedly impregnated her.
e patient could remember babies being murdered and cannibalized.
She reported having over 100 alternative personalities, who informed her
about past abuse. She described those personalities as inner children who
would ght and dominate her. While alternative personalities spoke to
her, she would mutilate herself and attempt suicide; and she medicated
her problems with alcohol addiction.
Some doctors have been skeptical of patients’ allegations about ritual
Satanic abuse (Althaus v. Cohen, 1998). Allegations may become increas-
ingly eccentric as treatment progresses. Memories may implicate an
increasing number of people leading to unfounded arrests. In one case, a
doctor feared being implicated by a patient who continued to make false
allegations about her family, her father’s coworkers, and strangers. Physi-
cal evidence did not support the patient’s allegations that she had been
ritualistically tortured. She also claimed that several babies that she deliv-
ered through C-section had been murdered. ough the doctor believed
that the patient had been sexually abused, and as a result, suered from
Post-Traumatic Stress Disorder and depression, the doctor exercised pro-
fessional discretion by avoiding the patient possibly because the doctor
feared the patients escalating claims and blame on those around her.
Defendants and victims may be pressured to have false memories
about participating in sexual abuse and Satanic rituals. Memories may
be suggested by police or therapists (Cusack, 2014c; Kisch, 1996; Knox,
2013). e psychological eects of Satanic rituals have been documented
by courts; however, cases have also documented implantation of false
memories of Satanic abuse. In one case, a psychologist may have been the
proximate cause of damages suered by a patient who was made to believe
that she was sexually abused during Satanic rituals. e psychologist also
misdiagnosed the patient with multiple personalities.
50
Laws Relating to Sex, Pregnancy, and Infancy
Childhood memories of incestual abuse may be obscured by recovered
memories of Satanic abuse, alien encounters, and other improbable events
that are suggested and implanted by therapists (Leo, 1997). Some recov-
ered memories may be negligently implanted, but some may be inten-
tionally implanted (Bannon, 1994). erapy patients may experience
false memories of Satanic abuse inicted by teachers and neighbors; and
they may envision high priests or priestesses and cults. Some patients have
recovered false memories of drinking blood, sacricing fetuses, and rape.
e Federal Bureau of Investigation (FBI) acknowledges that innocent
parties have been incarcerated for allegations of Satanic ritual abuse even
though very little evidence of cults with these practices exists. In one case,
over the course of four years, children in therapy recovered false memories
of sacricial human bones, murdered infants, and fetal remains. However,
after hearing the evidence a jury reached a not guilty verdict in one day.
False accounts of Satanic ritual child abuse are not unheard of. In
1983, a mother alleged that her two-year-old son was ritualistically and
Satanically sodomized by a preschool teacher. Suddenly, seven adults were
implicated for ritualistically molesting numerous children. Animal sacri-
ces and child pornography were some of the 208 counts of alleged abuse.
Children told investigators that they had seen ying Satanists; walked
through underground tunnels; been drilled; seen mutilated corpses; been
attacked by lions; seen goat men; exhumed cons; and suered sexual
abuse from Chuck Norris (McNeill, 2014). e spectacle became known
as the McMartin trial. It lasted seven years and cost $15 million. While
awaiting trial, one defendant was incarcerated for ve years. Only two of
the accused were tried and neither was convicted.
Famously, false memories were produced using a few faulty methods
during the McMartin trial investigations (McNeill, 2014). Interviewers
who worked with McMartin children praised or rewarded them for dis-
closing abuse. Negative comments and behavior discouraged noncompli-
ance. For example, interviewers may have repeated questions if children
failed to admit some kind of abuse. Interviewers prompted children to
develop false memories by telling them what other children had admitted.
is induced conformity and stereotyping. Once stereotypes were estab-
lished, interviewers could also invite children to speculate about whether
abuse was possible. Interviewers also introduced information to children
that they had not previously discussed, encouraging them to incorporate
it into their own narratives. e town in which the children were living
was struck with Satanic panic. is sort of sensationalistic fear of Satanic
Freedom of Religion
51
abuse was not atypical of the 1970s and 1980s (Galanter, 1998). In some
circles, fear ourished about Satanic kidnappers, predators, and abusers.
Some defendants admit to Satanic rituals and membership in Satanic
cults. For example, a music teacher committed self-serving Satanic sex-
ual abuse and battery on students; and he admitted that he belonged to
a Satanic cult (Doe v. Robinson, 2010; Duyser v. School Bd. of Broward
County, 1991). In other cases, an adult victim remembered that as a child
she was subjected to sexual abuse during a Satanic cult ritual. Among
the participants, she remembered one hooded man who had evil eyes;
one fat, hooded man; her brother; and her brothers friends. Each of the
accused admitted to committing sexual and Satanic ritual abuse in a cult
environment.
In numerous cases, the authenticity of the rituals allegedly performed
is not investigated, and oenders’ bona de beliefs are not at issue. For
example, an oender was convicted of false imprisonment because he tied
a victim inside an abandoned barn and performed a Satanic ritual; he also
made death threats to silence the victim (Commonwealth v. Enders, 1991).
Alleged Satanic rituals in this case were not linked to organized prac-
tices. In another case, a teenage fathers rights were terminated because
he seriously injured his two-week-old son (In re A.S., 2002). He ignored
his treatment plan for chemical dependency and was incarcerated. While
incarcerated, he committed assault. e teen father failed to comply with
the terms of his parole. ese facts are enough to support the court’s deci-
sion; however, the court included other facts to illustrate the oender’s
character and potential dangerousness. In incarceration, the oender
created violent images depicting Satanic overtones, hatred, mutilation,
and death. He also recited lyrics from Marilyn Mansons music, which
has been linked to several high prole murder cases, including those
of Amanda Knox and Raaele Sollecito, the Columbine murders, Jodi
Jones, and others (Knox, 2013). However, the court did not indicate that
the drawings or recitation of lyrics related to the oenders personal phi-
losophies or beliefs.
Perhaps due to legitimate fears, but possibly due to Satanic panic, some
states outright impinge on freedom of religion by claiming that psycho-
logical protection of children is compelling; however, other states are silent
about the use of minors in Satanic rituals that are not physically harmful
(Hall v. Miller, 2001). Abuse inicted through any religious practice is
illegal, but ceremonial aspects of Satanism involving children are targeted
in some jurisdictions. Montana Code (MCA) 45-5-627 (2013) prohibits
52
Laws Relating to Sex, Pregnancy, and Infancy
ritual abuse of a minor if during ritual abuse an oender knowingly and
ritualistically engages in sexual intercourse with a minor younger than 16
years old, assaults in any way a minor younger than 16 years old, or kills
a minor younger than 16 years old. is statute is consistent with statutes
in all states that prohibit battery, murder, and sexual assault, and that
may add or aggravate charges for particularly heinous acts against certain
victims. However, the statute also punishes simulations of torture, muti-
lation, or sacrice performed in the presence of a child. Simulated victims
may be animals or humans. Yet, in the case of Church of the Lukumi
Babalu Aye v. Hialeah (1993), the U.S. Supreme Court prohibited juris-
dictions from implementing laws that unfairly target religious practices of
animal sacrice. e ruling stands for the proposition that jurisdictions
cannot use pretext to single out religious practices. Jurisdictions cannot
unfairly target religious rituals that are harmless under the pretext that
they relate to harmful rituals. Wisconsin v. Yoder (1972) and Pierce v. Soci-
ety of the Sisters (1925) permits parents the authority to choose the reli-
gious upbringing of children.
Rituals in Christianity expose children to simulated torture. For
example, Easter plays performed in Christian churches may reenact
the stations of the cross, during which a character playing Jesus may be
whipped; beaten; humiliated; stripped; pierced with spears and thorns;
nailed to a cross; crucied; or buried in a tomb. Montanas statute pro-
hibits adults from dissecting, mutilating, or incinerating any portion of a
corpse in the presence of a child. However, children may dissect hunted
and farmed animals and children may participate in rituals that involve
scattering human ashes. Laws, codes, and best practices may not prohibit
all children from being present when human corpses are incinerated or
autopsied at a licensed business or a government morgue. e statute
prohibits anyone from forcing a minor of any age to participate in or wit-
ness application of human or animal excrement; secretions; blood; bone;
drugs; or chemical compounds. During Christian communion, children
witness others ritualistically consuming wine and wafers, which represent
blood and esh. Even if these are symbolic, and not literal as required by
the statute, children are often forced to handle bones and consume esh
during Judeo-Christian rituals. For example, a child may be forced to
handle a shank bone or eat animal meat during anksgiving, Christmas,
or Passover dinner as part of a ritual. e statute also criminalizes placing
a child in a con or grave; or any person in a con or grave in the pres-
ence of a child. Yet minors are not prohibited from playing the role of or
Freedom of Religion
53
watching a performance of Jesus, Lazarus, or any other characters that are
entombed in Christian dramatic productions. e statute, which includes
threats of bodily harm and murder, when taken as a whole, may seem to
indicate that entombment must intentionally frighten or psychologically
torture a child. Yet, on its face, each prohibition seems to describe widely
accepted religious practices. Jurisdictions may be unlikely to prosecute
mainstream Christian practices under this statute. e statute does not
include lawful activities, so it becomes a matter of interpretation as to
which religious practices are lawful. Oenders face between two and
40 years in prison, a $50,000 ne, restitution, and counseling costs for
the victim.
Many Christians use a rosary cross for prayer, celebrate virgin birth,
and consume Jesus symbolically or actually. However, not all Christian
denominations focus on virginity or the virgin miracle; symbolically use
esh and blood; or believe in transmogried esh and blood (Stewart,
2011). Courts often view Christian religious practices and faith favorably
under best-interest factors in family proceedings and as character evidence
in criminal proceedings. Satanic rituals are often viewed disfavorably in
family and criminal proceedings. Despite the fact that Church of Satan
rituals do not necessarily harm children psychologically, and Satanic use
of sex and infants may be symbolic, several factors likely play a part in
criminalization of non-harmful and non-sexual Satanic rituals. ose fac-
tors may include traditional religious prejudices against Satanists; histori-
cal witch hunts of Satanists falsely accused of crimes against children; and
the cultural aliation of some rock music with violent crimes.
Historically, legislators, judges, and the public have punished or
ostracized Satanists for practicing Satanism. Courts characterize Satanic
values as possibly leading to and explaining self-centered behavior; self-
focus; desire-driven motives; disregard for others; individualism; taking
advantage of relationships; impatience; rejection of criticism; lack of
remorse; and being demanding. Satanism prioritizes self-preservation,
grants entitlement, permits practitioners to view themselves as God, and
promotes materialism (In re Dominique K, 2010). Satanists may break
social mores and disregard social values at their convenience. In the
Christian tradition, Satan is Gods enemy; and Satan is the source of evil,
suering, and godlessness. Members of the government may believe that
Judeo-Christian values underlie U.S. law. A parents Satanic practices
and values may be presented in family court as evidence of a parents
faulty morals or unwillingness to be a responsible parent; or as a reason
54
Laws Relating to Sex, Pregnancy, and Infancy
to modify visitation or custody (McDowell v. McDowell, 1994; Troop v.
Troop, 1996; Troxel v. Granville, 2000). Satanic worship may be one rea-
son that courts terminate parental rights when parents neglect work; fail
to stabilize a home environment; fail to formulate positive bonds with
children; and neglect childrens medical issues (In re Interest of Deziree k.
v. Richard K., 2012). However, parents have made false criminal allega-
tions of Satanic ritual abuse to gain custody of children (McClelland
v. McClelland, 1992). eir plans backre when courts nd that false
allegations about such a serious matter create a dangerous environment
for their children.
Some defendants deny that crimes are Satanic rituals or argue that
Satanic rituals have been unfairly linked to crimes. Evidence that Satan-
ism relates to a particular crime has been controverted by experts at trial
(Clark v. O’Dea, 2001). Unrelated facts, such as Satanic poems, handwrit-
ten spells, and sacrilegious drawings, may be undermined by evidence
that a crime was committed in a manner that seemed personal or pas-
sionate, not calculated and ritualistic. However, Satanic prayers, draw-
ings, and participation in rituals could be used to demonstrate a motive
or modus operandi even if none of those objects were involved with the
murder (McIntyre v. Williams, 2000). For example, Satanic writings may
become relevant to a crime if they express a desire to fulll Satans work by
murdering and mutilating people (Hardin v. Kentucky, 2013). Evidence
consistent with ritual abuse has supported confessions of ritual abuse;
yet, some defendants have been acquitted (Wright v. Illinois, 1994). For
example, in one case, scars on childrens genitals and anuses, shallow
graves, and testimony about postmortem rape corroborated a confession
that the oender committed ritualistic child abuse and murdered a child.
Two devil-like masks, bone fragments, a mattress stained with blood, and
knives used to dismember children supported the confession and wit-
ness testimony. Child victims alleged that their parents and grandparents
molested and tortured them with unknown people during Satanic rituals.
Yet, private occult investigators physically restrained the children during
interviews and suggested answers. Child Protective Services was critical of
investigators’ holding techniques. Adults interviewed by the investigators
recanted their testimony and claimed that answers had been suggested to
them. Furthermore, child witnesses are notoriously unreliable (Brown v.
Lyford, 2001; Doe v. Johnson, 1995; Jones v. San Francisco, 2013).
Some children experience Satanic child abuse as infants or tod-
dlers, and then continue to be abused throughout their lives. One child
Freedom of Religion
55
suered ritual abuse at 15 months and was removed to foster care,
where she continued to be physically and sexually abused. Another
child claimed that he had been forced to participate in Satanic sexual
abuse (In the interest of Emma Hair, 2000). He blamed his foster parents
and employees at the Oce of Child Services. He said that while at a
Satanic church, cult members worshiped Satan and abused him (State v.
Towery, 2003). Stories about Satanic abuse may become conated with
later episodes of abuse that are not rituals (In Re: Chrystal and Tasha,
1994). Even though Church of Satan does not have programs designed
for youth, many allegations of Satanic ritual abuse involve teenagers
(J. P. v. Carter, 1997).
A defendant may attempt to defend or mitigate by claiming a history
of ritual abuse. One defendant claimed several incidents of abuse, includ-
ing one during which his grandfather and several adults wore hooded
robes; beat and dismembered an infant; and attempted to force the defen-
dant to eat some of the corpse (People v. Hawes, 2008). Generally, history
of abuse is insucient for acquittal, but severe abuse could possibly miti-
gate crimes. Sentencing may also be inuenced by whether an oender
worships Satan or merely believes in Satan. At sentencing, oenders have
attempted to deny or play down Satan worship (People v. Kerbs, 2006;
Simmons vs. Nevada, 1996; State v. Howell, 2000).
Some courts hold that Satanism, Satanic paraphernalia, or discussions
about Satan may be unrelated to motives or crimes (Slaughter v. Oklahoma,
1997). Satanism should not be used as character evidence to demonstrate
that a defendant had a propensity to commit a particular crime on the
occasion in question (State v. Wyatt, 1996). Satanist practices may be pro-
tected by the First Amendment unless the practices are illegal. Highly
prejudicial evidence may outweigh any probative value. It is improper to
present evidence that defendants who commit crimes unrelated to Satan-
ism are the kinds of defendants who would be guilty of crimes because
they believe in Satanism. In one case, the state argued that a defendant
would be more likely to willfully kill a small weak infant because he was
a Satanist. e defendant claimed that his girlfriend secretly gave birth to
their child in her parents’ bathroom; and that his girlfriend smothered the
infant while the defendant cleaned the bathroom to hide the pregnancy
and birth. e defendant concealed the corpse. e court erred in permit-
ting the state to enter evidence about Satanism to prove the defendants
motive, because the defendants beliefs in Satanic worship were unrelated
to the crime. us, the evidence was improper and prejudicial, especially
56
Laws Relating to Sex, Pregnancy, and Infancy
because the defendant had no history of committing crimes in connec-
tion to his beliefs in Satanism (State v. Stensrud, 2006).
A prison inmate complained that his First Amendment rights were
violated because he was denied access to Satanic books and paraphernalia.
Valid penological aims may relate to reasonable measures taken to deny
access to Satanic books (McCorkle v. Johnson, 1989). Four factors were
considered by the court: (1) whether a valid connection between restric-
tions and legitimate governmental interests were rational and justiable;
(2) whether regulations left alternative means for practicing Satanism;
(3) whether practicing Satanism in prison would signicantly impact
allocation of prison resources, including use of guards and maintenance
of prison safety; and (4) whether alternative forms would be more cost
eective. e court agreed with the state that Satanism is not a bona de
religion protected under the First Amendment; but even if it were to be
a bona de religion, the inmate did not have a sincere belief in Satanism.
Furthermore, access to Satanic books and a medallion threatened prison
security. e Satanic Book of Rituals discussed Christian female virgin
sacrice as an initiation ritual. is ritual also included mutilation; blood
drinking; and eating human ngers. e ritual could possibly involve
murder. Candles used during the ceremony were to be made of fat from
an unbaptized infant. Other inmates had witnessed the complainant slic-
ing his wrist or drawing blood with a needle; burning paper; requesting
blood from other inmates; and worshiping Satan. e prison found that
e Satanic Bible condones self-serving actions, including murder, rape,
and theft; and disregards moral and legal consequences. us, the prison
felt that other inmates would be threatened by these sorts of practices
in prison.
e State of Kentucky systematically banned Satanic practices inside
prison (Elkins, 2004). Previously, Satanic worship was perceived to be
safer if it was regulated and monitored by prison ocials. en ocials
changed their positions, citing security risks recognized by other prison
systems (e.g., Texas Department of Criminal Justice). e court consid-
ered whether Kentuckys policies interfered with Satanists’ right to freely
exercise religion. Even though Kentuckys policies were not neutral, the
rules were designed to protect internal institutional order and security.
Alternative means of practice and impact on prison resources to main-
tain order must be considered. Prisons cannot accommodate traditional
Black Masses, involving a nude woman; two black candles composed of
Freedom of Religion
57
fat syphoned from an unbaptized infant; and a chalice lled with urine
excreted by a prostitute. Yet, e Satanic Bible admonishes harm to oth-
ers, including the acts of actual or symbolic rape, animal abuse, and child
molestation. us, prisoners may potentially be permitted to read e
Satanic Bible in prison and perform modied rituals.
Church of Satan promotes pleasure moderated by self-discipline
for inmates; and it claims that ritual (i.e., Greater Magic) is like ther-
apeutic release (Information for Prison Chaplains, n.d.). Modied
rituals in prison would require a fully dark room, black candles, and
possibly, white candles. ey could necessitate a bell, gong, cup, and
sword, which can be substituted for an outstretched arm. Rituals may
require masturbation, a phallic symbol, a bowl of water, and re; and
an altar bearing a goat face pentagram symbol, medallion, black robe,
and incense (Cusack, 2014b). Inmates are not entitled to full Constitu-
tional rights in prison due to safety concerns (e.g., re hazards). Inmates
may be denied violent Satanic literature or religious items necessary to
practice Satanism (e.g., candles). In prison, any occult interests, Satanic
literature, or Satanic paraphernalia may demonstrate continuing dan-
gerousness to society, resulting in a threat to safety and denial of parole
(Davis v. State, 2010).
Constitutional freedom of religion is protected by the First Amend-
ment. Satanic worship and practice is protected insofar as it does not
require practitioners and adherents to break the law. Satanic doctrine
prohibits inicting harm on others, even though it advocates selshness.
us, Satanic practices should be fully protected. However, members of
society and the criminal justice system may believe that Satanic rituals
involve sexual abuse, physical abuse, and murder. Numerous statutes and
cases prohibit and punish ritual abuse that is allegedly associated with
Satanic practices. Statutes may not specify Satanism, but case law and
legislative history indicate opposition to occult rituals. Cases may not
directly outlaw Satanism, but they raise Satanism as a criminal motive or
modus operandi. Slowly, Satanism that is disconnected from the notions
of baby sacrice, candles made of infants’ fat, rape, and child sex abuse
is demanding equal rights to place symbols in public places (Abcarian,
2014; Prager, 2014; Town of Greece v. Galloway, 2014). For example, at
governmental meeting places where Christian prayers are permitted and
nativity scenes are displayed, Satanists are requesting Satanic prayers be
allowed and statues to be displayed.
58
Laws Relating to Sex, Pregnancy, and Infancy
Medical Care
Religious exemptions for free exercise of religion may exist under state
law, the First Amendment, and the Religious Freedom Restoration Act
(RFRA) (42 U.S.C. § 1996a(a), 2004; 21 C.F.R. § 1307.3, 1990; City of
Boerne v. Flores, 1997; State v. Mooney, 2004). Laws may not be designed
to restrict such free exercise. Some federal and state laws prohibit govern-
ments from creating certain laws that abrogate religion. In her dissent-
ing opinion in Burwell v. Hobby Lobby Stores (2014), Justice Ruth Bader
Ginsburg stated that “[n]o tradition, and no prior decision under [Reli-
gious Freedom Restoration Act] RFRA, allows a religion-based exemp-
tion when the accommodation would be harmful to others”. is may
include withholding necessary medical treatment from children through
either the practice of religion or in favor of faith healing. Parents have a
fundamental right to raise children, as well as a right to exercise religion
(Carpenter, 2012). Educating children in religion may be a hybrid right;
however, hybrid rights are not unlimited. For example, parents can with-
draw children from compulsory public education, forgoing secular educa-
tion, so that the children receive religious education; yet religious parents
cannot break child labor laws for religious purposes (Pierce v. Society of
Sisters, 1925; Prince v. Massachusetts, 1944; Wisconsin v. Yoder, 1972).
Hybrid rights may underlie exemptions for medical treatment, or they
may end when medical treatment is necessary.
Parents have a fundamental right and duty to act in their childrens
best interest. Seeking and following medical advice may be in a child’s
best interest; yet, some religions require the faithful to avoid certain medi-
cal practices or even all health treatment other than faith healing. Courts
will not substitute their values for parents’ values; however, children may
not be neglected, abused, or abandoned. In Parham v. J.R. (1979), the
court decided whether parents had a right to make medical decisions
on behalf of their children in their childrens best interests. e court
held that parents’ control over medical decision-making is not unlimited.
Neutral authorities (i.e., physicians) may report medical decisions or lack
of decisions to the state that are not in the best interest of children. Any
person may place an anonymous tip about abuse or neglect; but physi-
cians are obligated to report abuse and neglect to the state. Furthermore,
religious practice cannot be a pretext for neglect or abuse.
Religious freedom and the right to parent may trump the state’s inter-
est in childrens welfare to an extent. For example, newborns with medical
Freedom of Religion
59
conditions may not receive medical treatment due to their parents’ reli-
gious beliefs. Christian Scientists, Seventh-day Adventists, Orthodox
Jews, and Jehovahs Witnesses are some religious groups that may opt
out of some or all medical procedures (Lonon, 2014). Many states pro-
vide that use of spiritual or religious healing is not sucient to prove
neglect or abuse (Ala. Code § 26-14-7.2, 2013; Ark. Code Ann. § 9-30-
103, 2012; Colo. Rev. Stat. §19-3-103, 2012). e District of Columbia,
Guam, and 37 states provide some exemptions or armative defenses
for parents or guardians who refuse or fail to provide their children with
medicine or medical procedures pursuant to religious beliefs (NDAA,
2013). Most statutes specify that religious exercise alone is insucient
grounds for ndings of abuse or neglect. Yet the wording of many statutes
suggests that religious practices could potentially be one factor in abuse
and neglect.
e U.S. Supreme Court has not decided whether exemptions to
neglect and abuse statutes for religious exercise are required under the
First Amendment or under hybrid protections; are valid uses of state
power; or violate the Establishment Clause (NDAA, 2013). However,
in many states parents cannot willfully place their children in life-
threatening situations. Parents who willfully refuse to provide children
with lifesaving treatment will not likely fall under religious exceptions.
Courts may intervene when parents make decisions that threaten a child’s
life or jeopardize well-being. Courts have been most willing when HIV-
positive mothers fail to take medicine that reduces risk of HIV trans-
mission (A.D.H. v. State Dep’t of Human Res., 1994). is is discussed
in Chapter 16. States may investigate whether children are old enough
to decide whether to seek treatment or independently practice faith for
healing. Whenever the state believes that it should act on behalf of chil-
dren who require medical treatment, the government may order medical
evaluation. If doctors believe that treatment is necessary to avoid seri-
ous injury or death, then children will receive treatment despite parents
and childrens religious beliefs. In the past, cases have turned on whether
children were of sucient age to decide whether to seek medical care,
but several jurisdictions may place into state custody minors of any age
or religion if they require medical care (In re Jensen, 1981). Some statutes
are broader than others (Hamilton, 2009; Plastine, 1993). For example,
some states may permit parents to defend childrens death using religious
exemptions for spiritual healing and religiously motivated conduct. Stat-
utes in Idaho and New Jersey indicate that parents who willfully cause
60
Laws Relating to Sex, Pregnancy, and Infancy
a child’s death, injury, or suering by praying for or spiritually treating
a child may not be prosecuted for violating his or her parental duties
to care for a child (Idaho Code Ann. § 18-1501, 2013; N.J. Stat. Ann.
§ 9:6-8.21, 2013). Yet inclusive language may be narrowly interpreted
by courts if children die (Mayes, 2013). Governments have indicated
that religious exemptions do not extend to decisions that lead to death;
and legislatures have revised or eliminated exemptions and defenses after
faith healing leads to death (ORS 137.712(2)(a)(A), 2011).
Employment Division v. Smith (1990) stands for the proposition that
parents seeking to give their children peyote to teach them about reli-
gion may be exempted from child welfare laws (Daniels, 2009; Peyote,
2003). ough peyote consumption cannot be prohibited under the
Religious Freedom Restoration Act (RFRA) of 1993 and the Religious
Freedom Act Amendments (1994), those pieces of legislation were
responses to Smith. Smith held that unemployment benets could be
withheld from Native Americans who used peyote for religious pur-
poses (42 U.S.C. § 2000bb-1(a), 1993; 42 U.S.C. § 1996, 1994).
ough Smith is not guiding law, it elucidates an important point. e
court held that hybrid situations involving peyote could receive greater
deference if the government’s drug laws “attempt to regulate religious
beliefs, the communication of religious beliefs, or the raising of ones
children in those beliefs” (Employment Division v. Smith, 1990, p. 882).
Children must likely be of sucient age to learn about religion and
not be harmed by peyote (Daniels, 2009). In People v. Woody (1964), the
California Supreme Court found that religious use of peyote was safe
because
[t]he evidence indicates that the Indians do not in fact employ peyote in
place of proper medical care; and, as the Attorney General with fair objec-
tivity admits. . . . Nor does the record substantiate the states fear of the
‘indoctrination of small children’; it shows that Indian children never, and
Indian teenagers rarely, use peyote. Finally, as the Attorney General like-
wise admits, the opinion of scientists and other experts ‘is that peyote...
works no permanent deleterious injury to the Indian.’
us, religious use of peyote may be exempted, in part, because the gov-
ernment believes that young children will not consume peyote (Brown-
stein, 2006). Some evidence shows that the government may feel that
children younger than ve may be too young to consume peyote (Pey-
ote.com, 2003). Young children may be permitted to take drugs under
Freedom of Religion
61
religious exemptions even if they cannot make those decisions for them-
selves (Parham v. J.R., 1979). e justication may be analogized to
young children sipping wine during a religious ceremony or meal; but
not if peyote is administered in much more potent doses than a sip of
wine (Dussias, 2012).
Women are not obligated to seek prenatal care. us, religious beliefs
that aect prenatal care are not required to be exempted. Religious use
of peyote is optional among natives, and may not be required during
pregnancy (Meyer, 2011). Peyote is a Class C drug, which means that
harmful eects may be possible. erefore, while peyote used for ritual
practice is not known to harm fetuses, it is not recommended during
breastfeeding. ough legal exemptions for peyote consumption do not
exclude pregnant women, women who consume drugs (e.g., hoasca, or
peyote) in harmful quantities may be charged with harming or killing
fetuses. us, women potentially may be charged if they knowingly use
drugs during religious activities that are the proximate result of fetal death
and injury (Gonzales v. O Centro Espirita, 2006; Religious Freedom Act
Amendments of 1994). is is discussed further in Chapter 13. e gov-
ernment has shown some interest in protecting fetal life; but Congress
has mandated that no state or federal government can criminalize use
of peyote in bona de religious practices. State laws that protect fetuses
from drug addiction and overdose are not aimed at religious practices
(Employment Divison v. Smith, 1990). If laws are generally applicable and
pose a substantial burden to religious practice, then RFRA will exempt
adherents. However, fetal and infant well-being may be a compelling gov-
ernment interest that trumps religious freedom when laws designed to
protect fetuses and infants from drug abuse and overdose are narrowly
tailored. is area of the law is gray because laws may be applied either
to prosecute or to exempt pregnant women who harm fetuses or infants
pursuant to religious rituals.
Cults
Freedom of religion is protected by the Free Exercise clause in the First
Amendment and the Religious Freedom Restoration Act of 1993 (RFRA)
(Burwell v. Hobby Lobby Stores, 2014; 42 U.S.C. § 2000bb, 2014). Reli-
giously motivated conduct may not be substantially burdened by the
government unless a narrowly tailored law restricting religious exercise is
necessary to protect a compelling government interest; and the law is the
62
Laws Relating to Sex, Pregnancy, and Infancy
least restrictive means for protecting that interest so that it leaves alterna-
tive means for practicing religion.
Right to marriage is a privacy right protected by the Fifth Amend-
ment and the Fourteenth Amendment. States and the federal govern-
ment dene marriage individually, but all denitions limit a marriage to
two people. Bigamy and polygamy are illegal (Reynolds v. U.S., 1879).
In some jurisdictions, professing to be married to more than one person
may be illegal if the public believes that spiritual ceremonies are marriages
(Cusack, 2013b). However, single adults may participate in polyamory or
cohabit with multiple partners simultaneously. Polyamorous households
have the right to bear and raise children. Married adults may potentially
have the right to cohabit with multiple partners or participate in open
marriages depending on the jurisdictional criminalization of adultery and
other factors; however, prosecution of adultery is scant within the few
jurisdictions that criminalize it.
Children may marry if they meet the legal minimum age requirement,
have parental consent, or have judicial waiver. Judicial waiver will never
be granted to prepubescent children, and is unlikely to be granted to
immature minors. Adults who have sex with minors younger than the
legal age of consent must be legally married to minors to avoid com-
mitting statutory rape. Spiritual unions, professed relationships, parental
consent, and cohabitation may be insucient, though some minors may
be emancipated or constructively emancipated. Emancipation and sex are
discussed in Chapter 1.
Some religious cults and sects may generally deviate from normative,
traditional, monogamous, adult, marital coupling. ey may engage in
polygamous “marriages” that are not legally sanctioned, but are recog-
nized by their communities as spiritually and socially binding unions.
In some cults, leaders and older men conscript young brides and lovers.
Often, teens who are drafted into polygamous marriage become pregnant.
Conceptually, polygamous practices may be severable from adult-child
marriages. In the rst instance, polygamous couples do not legally harm
others. ough the parties cannot legally marry or hold themselves out to
the public as being married, adult-child polygamous unions circumnavi-
gate the courts in a manner that results in statutory rape. In some cases,
children may be so young that relationships result in child sexual abuse.
Mormon Fundamentalists may practice plural marriage (D’Onofrio,
2005). Polygamist families challenge political shifts in legal denitions
of “marriage”; and Mormon Fundamentalists have attempted to lawfully
Freedom of Religion
63
participate in adult, polygamist marriages (Richards, 2010). Freedom
of religion and right to privacy does not guarantee exceptions to mar-
riage laws or statutory rape laws. us, the government has denied their
requests to become licensed. Polygamist families are usually ostracized
by society, media, and government. One reason is perceived or actual
links between polygamy and statutory rape and sex abuse. Governmen-
tal investigation and raids of Mormon Fundamentalists’ ranches demon-
strate that some polygamist cults involve child abuse and unlawful teen
pregnancy (Cusack, 2014c).
Fundamentalist Latter-Day Saints (FLDS) depart from contemporary
Mormonism, which abolished polygamy; the cult has been linked with
sexual violence, domestic violence, and scal fraud (Arredondo, 2008; In
re Tex. Dept of Family and Protective Servs., 2008; Kent, 2006; National
Geographic, n.d.). For example, cult leader Warren Jes settled several
civil suits for molesting young children. One litigant claimed that at ve
years old he was repeatedly and randomly raped by Warren Jes. He said,
All these parents put their trust in a man of power to run a school and be
the principal of the school over all of these kids but behind closed doors
he is this predator who is molesting and raping children, and no one even
knows about it.” During his tenure as FLDS leader, Jes had 60 wives.
Before he was apprehended, he ed and was placed on the Federal Bureau
of Investigations (FBI’s) most-wanted list for charges of aggravated sexual
assault of two minor females (i.e., 12 years old and 15 years old); and he
was previously convicted for orchestrating a forced marriage between two
cousins (i.e., a 14-year-old female and a 19-year-old male). For commit-
ting sexual assault against two female minors, he was sentenced to life in
prison. Texas law enforcement seized upon FLDS in 2008, using swat
gear and tanks similar to those used on the Branch Davidians in 1993.
Child protective services (CPS) were rst alerted to abuse at the FLDS
ranch when a 16-year-old female minor complained that she was physi-
cally and sexually abused by a 50-year-old man to whom she was wed.
CPS discovered many underage females were pregnant or had children.
FLDS did not feel that fertile females were too young to participate in
spiritual polygamist marriages. Sect leaders arranged marriages between
men and girls. Approximately 468 children were removed by CPS over
several days following the raid. Most of them, unharmed and not immi-
nently at risk, were returned to their families.
FLDS females abandon education to fulll religious obligations. e
Constitution protects religious life and upbringing, including children
64
Laws Relating to Sex, Pregnancy, and Infancy
exiting compulsory education early to participate in religious life. In
Wisconsin v. Yoder (1972), the U.S. Supreme Court held that Menno-
nite children could be withdrawn from elementary school to live in reli-
gious emersion. However, FLDS females exit education to marry older
men and bear the maximum number of children. is practice may be
protected if girls lawfully marry, but can be distinguished from practices
in which children learn a trade or receive religious education. However,
courts should not judge the value of religious beliefs.
Yet, in these cases, incestual marriage and procreation may be forced
on girls. Jurisdictions vary in their denitions of incest; thus, some mar-
riages to male relatives may be lawful. However, girls may be forced to
share husbands with their mothers and sisters. FLDS females may spiritu-
ally conceive each year after marrying. Repeated young pregnancy places
additional demands on girls’ growing bodies and doubles the mother’s
mortality rate. Furthermore, reproductive coercion is directly criminal-
ized in some jurisdictions (Cusack, 2013a; Cusack, 2014a).
Polygamist teen pregnancy may be normal throughout the world
(Waco, 1995). e majority of nations have polygamist marriages, and
evidence demonstrates that polygamist marriages may be several times
more prevalent than monogamous marriages worldwide (Price, 2011).
In West African cultures, practicing polygamy with girls increases HIV-
transmission risk, sex tracking, female genital mutilation, and domes-
tic violence (Buck, 2012). Boys involved in polygamous families are also
more likely to encounter domestic violence and lack education. Boys
may feel resentful because another mans polygamous marriage seems to
mathematically deprive him of a wife. In the United States and Can-
ada, polygamy more strongly correlates with international human traf-
cking (Kent, 2006). To take a rm stance against this practice, some
U.S. legislatures have specically outlawed child bigamy. However,
numerous cults are virtually insulated from the law. For example, Branch
Davidian children were hidden by leader David Koresh. He fathered one
dozen children with wives as young as 12 years old. He starved and hit
young children to achieve compliance. e government raided their com-
pound to rescue those children; yet the government may be unaware of
teen pregnancy, abuse, and sex abuse inside other clandestine cults.
CHAPTER 7
Food
Secretions and Excretions
Sexualization or fetishization of bodily uids may involve consumption
of feces, urine, ejaculate, menses, and breast milk. Consuming bodily u-
ids is not per se illegal or legal. Private sex acts are protected when they are
consensual and non-harmful. us, the government could classify con-
sumption of excrement (e.g., urine or feces) as harmful and prosecute it.
Pornographication of coprophagia or urophagia is likely to be illegal (i.e.,
obscene) (Cusack, 2012c; O.C.G.A. § 16-12-80, 2014; Miller v. Califor-
nia, 1973). Forcing any individual to consume urine or feces is illegal and
may create sucient contact to constitute an indecent sex act (People v.
Levesque, 1995; People v. Pitts, 1990).
Breast milk consumption between adults is likely to be fully legal
as long as it is consumed in private. Informal, non-sexual milk-sharing
between mothers is not uncommon; but, the Center for Disease Con-
trol and Prevention discourages it. Over one dozen states and the federal
government criminalize donation or sale of contaminated bodily uid by
an actor who knows that the uid is diseased (Ga. Code Ann. § 16-5-
60, 2010; King and West, 2012; Va. Code Ann. § 32.1-289.2, 2014;
Waldeck, 2002). e penalty may range from one to ten years and a
ne of over $10,000. Knowingly donating HIV-positive breast milk to
a breast milk bank may be punishable by a prison term of several years.
Yet, banks typically serologically screen donors prior to their rst deposits.
Every jurisdictions laws decriminalize public breastfeeding for moth-
ers and babies; yet, as a general rule, adults must breastfeed in private
(Lawrence v. Texas, 2003). If breast milk is contaminated (e.g., contagious
or infected), and breastfeeding is a sex act, then many states could pros-
ecute willful transmission of disease (Cusack, 2012b). us, supplying
66
Laws Relating to Sex, Pregnancy, and Infancy
breast milk would be criminal; but consuming it would not necessarily
be criminal if the victim was not informed. However, there is no private
right to sexually self-harm; thus, some jurisdictions may have an interest
in prosecuting individuals who knowingly consume contaminated breast
milk (Cusack, 2013). However, states would not likely prosecute unless
the breast milk was HIV-positive. Menses may be consumed in private
under similar conditions. us, knowing disease transmission is likely
may be illegal (Utah Code Ann. § 26-6-5, 2014). However, in many juris-
dictions scienter may be lower, such that an individual may be prosecuted
if a likelihood existed that disease transmission was possible.
Placentas, Embryos, and Fetuses
Eating, storing, and buying placentas may be legal or illegal depend-
ing on jurisdictional variations and other factors. Anthropophagy (i.e.,
human eating human tissue or blood) is not specically criminalized in
most U.S. jurisdictions (Cusack, 2011). However, possession of human
esh usually correlates with crime (e.g., grave robbing or murder). Yet,
placentaphagia is a form of anthropophagy that does not correlate with
crime because hospital policies often permit women to retrieve their pla-
centas following birth. Under these circumstances, consuming one’s own
placenta, or privately partaking in another persons donated placenta,
may be legal as long as such placentas are not contaminated by disease
or infection.
Medication abortion permits women to miscarry at home and
discard embryos. Medical providers often instruct women to ush
embryos because aborted embryos are frequently passed while women
are seated on the toilet. Generally, women are not prohibited from
handling or keeping embryos. us, embryophagia is legal in these
jurisdictions because women may lawfully possess their embryos; and
laws do not directly prevent them from eating embryos. Purchasing
embryos for embryophagia may be illegal in some jurisdictions, but
not every jurisdiction. Some jurisdictions completely proscribe the sale
of human embryos or ovum; other jurisdictions prohibit the sale of
human body parts, but exempt ovum. Sale of aborted fertilized ovum
may likely violate health codes; yet privately consuming someone elses
lawfully aborted embryo may be legal. Privately consuming semen and
secreted ovum in menses during oral sex is likely protected under right
to privacy. However, there is no particular right to consume these bodily
Food
67
uids outside of private, consensual sexual activity (Reich and Swink,
2010). Although consuming embryos is not criminalized, substantive
Due Process will not guarantee a right to consume them outside the
privacy of the bedroom.
Eating fetuses is dierent than eating embryos because it raises a rea-
sonable suspicion of feticide. Abortion usually occurs during the rst
12 weeks of pregnancy. Embryos are typically aborted using medication
abortion; thus, fetuses are usually aborted and discarded at medical clin-
ics. Possession of a fetus may be lawful if it is miscarried before a jurisdic-
tion considers it to be a stillbirth. Stillbirth may occur at approximately
20 weeks. is is discussed in Chapter 2. Women must dispose of still-
births consistent with jurisdictional requirements (e.g., like corpses or
biopsied tissue) (IC 16-18-2, 2014). However, women are not required
to report miscarriages. Yet, intentional iniction of harm or death to a
fetus may be a crime. Eating a fetus may raise reasonable suspicion about
whether a fetus was harmed and the gestational week at which a fetus was
miscarried.
Breastfeeding
Each jurisdiction in the United States makes exceptions to nudity laws to
allow pregnant women to breastfeed children; several states declare that
breastfeeding is a right; and some states specically decriminalize public
nudity related to breastfeeding (18 Pa.C.S. § 5901, 2014; Cusack, 2012a;
NY CLS Penal § 245.01, 2014; Tenn. Code Ann. § 68-58-102, 2014;
Wyo. Stat. § 6-4-201, 2014). Forty-six states specically permit public
breastfeeding; and breastfeeding is exempted from indecency laws in 29
states. In some jurisdictions, laws are written in a manner that technically
permit children of any age to breastfeed from any woman; in other juris-
dictions, laws specify that only infants may breastfeed from their mothers.
For example, New Yorks statute says that exposure crimes do not apply to
“breastfeeding of infants”; however, Arkansas’ statute says that a woman
does not commit indecent exposure when “breastfeeding a child” (A.C.A.
§ 5-14-112, 2014; NY CLS Penal § 245.02, 2014). In a few jurisdictions,
women are required to attempt to be discreet or modest; however, other
jurisdictions permit women to expose themselves at all times incident to
feeding (54 D.C. REG. 10714, 2014; Fla. Stat. § 800.03, 2014; MCLS
§ 750.335a, 2014). For example, women in North Dakota are exempt
from nudity statutes only if they discreetly cover their breasts while
68
Laws Relating to Sex, Pregnancy, and Infancy
breastfeeding; whereas Louisiana permits breastfeeding irrespective of the
degree of exposure (La. R.S. 51:2247.1, 2013; N.D. Cent. Code § 12.1-
20-12.1, 2014). Some jurisdictions exclude breastfeeding from disorderly
conduct statutes, but other jurisdictions could prosecute breastfeeding as
disorderly conduct if it is performed in a disruptive manner (R.I. Gen.
Laws § 11-45-2, 2013).
e military permits women to breastfeed or express milk at work.
For example, the U.S. Navy guarantees service members will have clean
and secluded spaces to pump breast milk (Meyers, 2014). Members are
guaranteed an area that is not a toilet space. Postpartum mothers are
also guaranteed a cold space to store milk. Most postpartum ocers and
approximately 66 percent of postpartum, enlisted mothers breastfeed;
however, approximately one-third nish breastfeeding before returning to
their duties (Zannette, 2009). Roughly half of enlisted mothers and more
than 30 percent of ocers have reported that they lacked a comfortable
and secluded area to breastfeed or pump. us, more than 60 percent of
enlisted mothers and approximately half of postpartum ocers reported
that work-related reasons led to their decision to stop breastfeeding.
Some women breastfeed baby animals, such as goats and monkeys
(e Rehmanshahs Channel, 2011; Wayne, 2011). is activity is rare;
but a few women have done it to nurse animals to health. roughout
the United States, this is likely to be legal. ere is no right to breastfeed
animals; but laws fail to proscribe it directly. Bestiality and cruelty stat-
utes do not seem to prohibit it. For example, bestiality statutes tend to
prohibit “any sexual act between a person and an animal involving the sex
organ of the one and the mouth, anus, or vagina of the other” (Fla. Stat.
§ 827.071, 2014). However, oral contact between an animal’s mouth and
a breast for the purpose of nourishing an animal likely may not consti-
tute a “sexual act” (A.R.S. § 13-1411, 2014; Cusack, 2015; Fla. Stat.
§ 827.071, 2014).
Crime and Infant Formula
Infant formula is a legal substance that has been involved in some very
serious crimes. Formula may be expensive and in demand; it is a billion-
dollar business in Asia where lawmakers have attempted to deal with neg-
ligent and fraudulent practices among formula corporations (e Milk
Code, 2014). Because the product is lucrative, it is attractive for smug-
glers and shoplifters (Lin and Cruz, 2013). For example, law enforcement
Food
69
ocers in Hong Kong arrested hundreds of formula smugglers where
smuggling unlicensed formula is an arrestable oense (Lopez, 2014). To
date, smugglers have attempted to smuggle more than 20,000 pounds of
baby formula into China; one smuggler attempted to personally smuggle
44 pounds of formula. Smugglers may be ned $64,282 and imprisoned
for up to two years. e Chinese rst became distrustful when tainted
formula killed six and poisoned 300,000 children in 2008. As a result of
selling fake and substandard products, two dairy industry workers were
sentenced to death and a corporate ocer was sentenced to life in prison
(Yoo, 2010). Investigations revealed that the culprits used melamine to
dilute raw milk so that the formula would appear to have higher protein
levels and meet nutrition standards. One father began an online support
group for parents whose children had been poisoned by formula (CBS
News, 2010; CNN, 2010). He demanded compensation for the harm.
However, police arrested him for causing a public disturbance; and the
government prosecuted him for disturbing social order.
Numerous aspects of infant formula production and sale are regulated
in the United States. For example, only certain vendors and locations
may lawfully sell infant formula (e.g., ea markets may not sell infant
formula in some jurisdictions) (Beckham, 2006; Business and Commerce
Code § 35.55, 2014). In U.S. v. Hanafy (2002), a jury found defendants
guilty for mislabeling individual cans of infant formula, though they were
eventually acquitted by the court (Hosch, 2003). e goods conformed
to industry standards and were authentic; thus, the defendants were not
criminally liable for repackaging retail goods. is case demonstrates that
police and prosecutors may view alleged breaches of infant formula regu-
lations as very serious, even though it is the courts that ultimately decide
whether actions are criminal.
In the United States, adulteration of infant formula could result in
imprisonment and a ne if the product does not meet quality require-
ments; but this consequence seems unlikely (21 U.S. Code § 350a,
2014). In the past, the Food and Drug Administration (FDA) has sought
to prosecute responsible laboratories for failing to market infant formula
without a nutrient essential for brain development, but the Department
of Justice (DOJ) decided not to prosecute (Duddleston v. Syntex Labora-
tories, 1990; Rustad, 1992). To date, the FDA lacks the power to recall
foods other than infant formula (Tennyson, 2012). In 1979, dozens of
infants in the United States consumed chloride-decient soy-based for-
mula (Jacobs, 2009). e infants became physically ill and developed
70
Laws Relating to Sex, Pregnancy, and Infancy
mental retardation and physical-growth retardation. Infants who suf-
fered brain damage were awarded 27 million dollars (Rustad, 1997). In
response to this breech, the Infant Formula Act of 1980 was passed to
establish standards, quality control, and recall procedures.
Postpartum and pregnant women have been caught shoplifting food
(e.g., formula). ey may hide items inside maternity clothes or stroll-
ers; or use pregnancy as a distraction. Some have received reprieves and
goodwill, while others have been dealt with harshly. Social justice scholars
have questioned whether shoplifting baby formula ought to be a crime
(Matsuda, 1998). Scholars point to the fact that food programs for poor
mothers often have long waiting lists; and that infants die of water poi-
soning each year because their mothers attempt to dilute and ration
formula. Some mothers may have so few options that they temporar-
ily resort to shoplifting. In these cases, social justice scholars argue that
mothers should be provided with social services, not charged with crimes.
Links between infant formula and crime are discussed in Chapter 3 and
Chapter 17.
Breastfeeding is associated with crime reduction and reduced health
care costs. Breastfeeding is known to protect adults and children from
acute and chronic diseases (Va. H.R.J. Res. 248, 1994). Some infant for-
mula has included a protein associated with premature growth, breast
cancer, and excessive development of mammary glands in males (Burk,
1997). Breastfeeding is also associated with reduced violent crime. Breast-
feeding is less common among urban poor (Crawford, 2000). Some
scholars estimate that Black children are more than 300 times likelier
than White children to be bottle fed and not breastfed, which makes
them likelier to suer neurotoxic poisoning. Neurotoxicity may contrib-
ute to violent behavior.
CHAPTER 8
Pornography
Infant Pornography
Infant pornography is not the most common form of pornography, but it
is prevalent. Infants may be explicitly exhibited or penetrated in pornog-
raphy. e crime is often perpetrated by trusted adults (e.g., doctors, bab-
ysitters, parents). Some of the most prolic child pornography producers
are babysitters. For example, in one international bust a babysitter was
sentenced to 315 years in prison after participating in an international
infant pornography ring involving dozens of suspects stretching across
Sweden, Serbia, the Netherlands, the United Kingdom, and the United
States (News 24, 2012). More often than not, authorities are unable to
identify childrens identities; but, identiable children who are abused
by their parents will be removed and placed in state custody. Even when
pornography distributors do not produce pornography, possessing and
distributing such images of infants may be particularly dangerous and
oensive to society (U.S. v. Slinkard, 2013). Noncontact pornography
crimes involving infants may merit an upward variance in sentencing.
Parents sometimes innocently photograph infants’ genitals to memo-
rialize their childhoods. ese images may be used as pornography (State
v. Aguirre, 2012). A man developed lm at a lm lab that depicted an
unhappy young boy naked below the waist (State v. Hamilton, 2013).
e man who developed the role appeared to look at the photos while
masturbating in the store parking lot. Police investigated and discovered
photos wrapped inside childrens underwear in his car. Many of the prints
depicted a child wearing a diaper, and the mans storage unit contained
thousands of adult and child diapers. Some diapers in the storage unit
were inscribed with names and dates. Videotapes were labeled “First
Steps,” “Potty Training,” “Toddlers at Work,” “First Six Months,” and
72
Laws Relating to Sex, Pregnancy, and Infancy
“Terrible Twos.” e man compulsively stole photos from photo albums,
and occasionally burglarized houses to photograph toddlers wearing dia-
pers. He had taken approximately 6,000 photos. us, photos stolen
from photo albums were not designed to be child pornography, but he
was using them as pornography.
Images innocuously posted online may be downloaded and altered by
pornographers. If images focusing on a child’s genitals are possessed in a
collection of exploitative photos, then prosecutors may be able to prove
that they were transmitted as child pornography (State v. Aguirre, 2012).
If innocuous photos are altered (e.g., cropped) to focus on a child’s geni-
tals, then they may constitute child pornography. However, even if they
do not meet the legal elements for child pornography, they may consti-
tute obscenity (Miller v. California, 1973). For example, an image of an
infant holding his penis while defecating can be considered obscene if
it depicts sexually explicit conduct that appeals to prurient interests in
a patently oensive way in violation of local community standards, and
the depiction lacks redeeming value using national standards (Cusack,
2012b). Infant pornography is usually downloaded from websites that
classify it as child pornography; thus, investigators can determine where
depictions were acquired and evaluate whether images were transmitted
as pornography or constitute obscenity. For example, a child pornography
website may title a message soliciting to rent a child as “Baby White Girl”;
or websites may describe depictions as “Pedo Babyshivid Childlover Pri-
vate Daughter Torpedo Ranchi Lolita” or “Pedo Dad F*cks Toddler Boy
(U.S. v. Eads, 2013). Obscenity need not actually depict sexual exploita-
tion or sexual violence to be illegal.
Infant pornography located inside ones home arguably may be in one’s
constructive possession. In one case, a police located infant and child por-
nography in two dierent places in a defendants apartment (U.S. v. Sum-
ner, 2013). e defendant argued that the CDs containing the images
had been misplaced by another party inside the defendant’s apartment.
However, the only other people living in the apartment were the defen-
dant’s ten-year-old son and three-year-old daughter. us, the govern-
ment argued that the defendant was in constructive possession.
An oender who views or possesses infant pornography may be a
sexually dangerous person (SDP) who should be civilly committed. An
oender who completes his or her sentence for a pornography conviction,
but is utterly incapable of controlling sexual impulses due to mental and
sexual psychopathic personality disorders, may be an SDP if he or she
Pornography
73
poses a danger to others. Viewing infant pornography alone would not
meet statutory denitions for civil commitment; but, it may be one factor
considered by the court. For example, in one case, an SDP: downloaded
infant pornography; participated in sadomasochism (BDSM); traded
thousands of child pornography depictions online; viewed child pornog-
raphy for up to eight hours daily; fondled two children while working
as a teacher; improperly photographed several childrens breasts while in
class; sexually abused his wifes friend as she slept; molested his wifes
young niece while she slept; paid premiums to prostitutes to abuse them;
and committed crimes against nature with dogs, a sheep, and a goat. His
behavior was extensive and habitual over a long period of time. He repeti-
tively harmed multiple victims.
Pregnant Women
Explicit images may depict pregnant women. Pornographic titles
include “World’s First Pregnant Orgy,” “Mondo Extreme 94: Pregnant
& Lactating Xtravaganza,” “Mondo Extreme 32: Ambers Pregnant
Gang Bang,” “Meet e Mother Fuckers,” “Make Womb For Daddy,
“Kelis Home For Unwed Mothers,” “Pregnant & Still Fucking,” “Preg-
nant Cocksockets,” “Lesbian Preggos,” and “Gynecologist Fucked My
Pregnant Wife” (Ramos, 2013). “Erotica” is a term used to describe
legal pornography; “obscenity” constitutes illegal pornography (Miller
v. California, 1973). Fetish pornography may be either artistic erotica or
illegal speech. Fetishistic erotic depictions of pregnant women may be
legal because they are inoensive or because they possess artistic, politi-
cal, or scientic value. However, some fetishistic depictions are illegal
because they are oensive and possess de minimis value. For example,
fetish pornography of pregnant women expressing milk may be obscene,
especially when images are coupled with depictions of other bodily u-
ids fetishistically being excreted or secreted (e.g., secretion or ejacula-
tion) (Cusack, 2012b). Depictions of breastfeeding are not obscene;
however, evidence of child pornography may indicate that breastfeeding
was performed to exploit a child or as part of a series of exploitative
photos (Fla. Stat. § 847.001, 2014). us, actors will be prosecuted
for sexual performance of a minor; and, possibly, child pornography or
obscenity. In some cases, harmless photos of pregnant or breastfeeding
women may be misappropriated online or photoshopped to appear as
obscenity (Locke, 2014). In these cases, actors may be investigated and
74
Laws Relating to Sex, Pregnancy, and Infancy
required to prove that the photos were misappropriated or doctored.
Defending ones innocence against charges can cost tens of thousands
of dollars in some cases (Cusack, 2014).
e issue of whether fetuses are exploited by pregnancy pornography
has not been decided. e government has a right to protect fetuses from
harm. Fetuses are not usually physically harmed when their mothers per-
form in pornography; but, they are exposed to increased risk of disease
transmission. Critics of pregnancy pornography may argue that society is
harmed because pregnancy pornography may involve sexual performance
of a fetus; or sexual exploitation of a fetus. While fetuses are not explicitly
displayed, some fetish lms specically require women to be pregnant
with fetuses who are inherently involved. Yet some titles indicate that
fetuses need not be involved to fetishize pregnancy (e.g., I Skipped Lamaze
Class to Suck a Cock) (Ramos, 2013). Yet, any pornography, including
pregnancy pornography, may be banned as obscenity if it oends com-
munity standards. Similarly, explicit cartoon pornography depicting
pregnant women may also be banned if it is oensive to members of the
community, such as police ocers, prosecutors, judges, or jurors.
Sonograms
A key dierence between child pornography and sonograms is that child
pornography is exploitative; sonograms dier from obscenity because they
possess scientic value. Furthermore, child pornography laws do not apply
to sonograms because fetuses are not children. Generally, sonograms are
acceptable and considered to be scientic; however, obscenity laws indi-
cate that displaying sonograms for nonscientic purposes could theoreti-
cally constitute obscenity. Sonograms may be detailed enough to depict a
child’s genitals in detail; thus, displaying detailed sonograms appealing to
prurient interests is patently oensive and likely to be obscene.
In State v. Aguirre (2012), the court analyzed whether X-rays, MRI
images, CT scan images, or other images depicting genitals constituted
lewd material even though patients were clothed when the images were
created. e statute required a person to be depicted in a state of nudity
involving graphic focus on an individual’s genitals. An X-ray of a hip socket
in which genitals were visible did not meet statutory elements because the
image was not preoccupied with sex, wickedness, or indecency, and the
genitals were hardly visible. Other X-rays graphically focused on clothed
childrens genitals; those were prosecuted as “illegal use of a minor in
Pornography
75
nudity oriented materials or performance.” Alone, these images may not
have seemed to be criminal, but the oender also possessed images taken
in a medical setting of minors in various states of nudity. None of those
photos focused on their genitals, but the voyeuristic photos were lewd.
Sonograms have been posted on child pornography websites (John-
son, 2014). One member posted a sonogram photo and wrote, “o man
do i have some news i have a new baby about to be added to the game i
will share her pics when i get some” (Oosterbaan, 2011). Synthetic sono-
grams have been posted online. ese could be like synthetic pornogra-
phy, which may qualify as obscenity but not child pornography because
children are not harmed by the depictions (Fitzgerald, 2011).
Visible Baby-Bumps
In some jurisdictions, the law may require baby-bumps to be covered by
clothing in public because municipal ordinances or morality-based dress
codes may require residents to cover their torsos (i.e., no bare midris).
For example, in the town of Easton, Maryland, males and females in
public are required to wear clothing designed to cover the torso. Viola-
tors are incarcerated for ten days or ned $100 (§18-9, 2014; Cusack,
2012a). Private establishments may require pregnant women to cover
their bellies, but permit nonpregnant women to expose them (Capital
Bay, 2014). e government will intervene into private discrimination
when it aects suspect or quasi-suspect classes (e.g., women); it is perpe-
trated by an employer; it aects interstate commerce; or it otherwise falls
under governmental regulations (Cusack, 2015). Dress codes disparately
aecting pregnant women may or may not be lawful depending on how
and why rules are enforced. For example, generally, dress codes cannot
prohibit women from breastfeeding (Cusack, 2012a).
During pregnancy, women may paint art on their baby-bumps. Because
art is viewed by the public, and may be viewed by children, depictions
may not be sexually explicit or profane. Despite First Amendment pro-
tections, artistic content may be subject to certain restrictions. For exam-
ple, some mothers depict fetuses on their baby-bumps. Fetuses drawn or
painted on baby-bumps may constitute obscenity if the fetuss genitals are
prominently and graphically displayed. Female sex organs depicted may
also be obscene, even if they are not lewd, if the content exhibits sexual
or graphic themes in a patently oensive way; and the art fails to dem-
onstrate any value using a national standard (Miller v. California, 1973;
76
Laws Relating to Sex, Pregnancy, and Infancy
Rao, 2014). Potentially, artistic symbols such as owers or caves used to
represent sex organs could be obscene, depending on the image when
taken as a whole.
Sex Offenders
Under federal guidelines, oenders convicted of child pornography
oenses are required to register as sex oenders, though obscenity oenses
usually do not require supervised release (Cusack, 2014). Sexual exploita-
tion of children, such as grooming online, sexting, or corruption, may also
be registerable oenses. Child pornography accounts for more than two-
thirds of total federal child exploitation cases (Carlson, 2010). Oenders
convicted of child pornography must register in sex oender registries.
Because many sex oenders have been convicted of oenses relating to
child exploitation and contact oenses, establishments caring for young
children, such as day cares, may be notied if sex oenders reside within
a certain distance. Some community control measures (i.e., probation
or parole) prohibit sex oenders from being near children; but certain
oenses may preclude oenders from contacting children or from having
unsupervised contact with children (Channel 3000, 2014; Code of VA §
18.2-370.2, 2014). Each states requirements dier and each municipal-
ity may establish its own rules. For example, in Ohio, sex oenders may
not live within 1,000 feet of a school, but they may live near day cares.
Oenders who violate the law cannot be prosecuted. Violations are civil,
and injunctive relief may be requested by a prosecutor (Cuyahoga County
Sheri, 2014; O.R.C. 2950.031, 2014). In Virginia, sexually violent
oenders who wish to enter day cares must notify and receive permission
from the circuit court (Code of VA § 18.2-370.5, 2014). In North Caro-
lina, licensed day cares are required to register an email address with the
government so that they may be notied when a registered sex oender
begins to live within one mile of the day care (G.S. § 14-208.19, 2014).
CHAPTER 9
Pregnant Criminal
Justice Employees
Military
Military rules, standards, and protocol for pregnancy may reect institu-
tional consideration for and misunderstandings about pregnancy within
the military. Pregnant and postpartum women are not permitted to join
the military. To enter into the military females must take a pregnancy
exam; but once women join, they may become pregnant while in the mili-
tary (USMEPCOM, 2014). Pregnant women may engage in modied
duties; however, any strenuous or potentially harmful duties (e.g., ying
jets) are prohibited (Lowe, 2014). Pregnant service members are exempted
from physical training or duty that would be hazardous if the women were
to experience nausea, fatigue, or lightheadedness (Womak Army Medical
Center, 2013). Pregnant soldiers may not be exposed to fuel, airborne lead
emissions from indoor weapons training, excessive vibrations, riot-control
chemicals, or motor pools with poor ventilation, and may not drive mili-
tary vehicles on unpaved surfaces. Pregnant women serving in the military
may wear elastic waistbands with their uniforms, and may not wear load-
bearing equipment. Exemptions are modied as pregnancy progresses.
Female soldiers who are 20 weeks pregnant are exempt from standing
at attention for periods of over 15 minutes; drown-proong and swim-
ming qualications; eld duty; weapons training; or riding in medium
or heavy tactical vehicles. Soldiers at 28 weeks of pregnancy may rest for
15 minutes every 120 minutes; and may not work more than eight-hour
shifts. In the U.S. Navy (USN), for example, service members may not
remain aboard ships after 20 weeks. Pregnant members will be transferred
ashore as soon as pregnancy is discovered. Pregnant members of the USN
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Laws Relating to Sex, Pregnancy, and Infancy
may not be assigned or travel overseas after 28 weeks of pregnancy (Mey-
ers, 2014). Female service members may engage in lightly strenuous and
low-risk work. For example, soldiers who are pregnant may lift up to
15 pounds and carry a rie (Womak Army Medical Center, 2013). e
eects of low-risk work (i.e., standing), repetitive lifting, and noise on
antepartum, intrapartum, and postpartum outcomes were measured
among 814 active-duty women over four years (Magann et al., 2005).
Preterm labor and birth were only associated with standing.
Duty strenuousness, personal physical tness, leadership, and envi-
ronmental factors may inuence pregnancy and postpartum health in
dierent service branches. Pregnant soldiers are strongly encouraged to
participate in Pregnancy Physical Training and Postpartum Physical Train-
ing (PSWP). Seventy-four postpartum soldiers, who delivered babies at
Womack Army Medical Center, answered a survey about PSWP (Kwolek,
Berry-Cabán, and omas, 2011). Approximately 66 percent participated
in the PSWP; and approximately 60 percent were personally encouraged
by their providers to participate. Most participated to achieve required
Army weight standards and benet child health. One study found that
postpartum women in the U.S. Marine Corps (USMC) were more likely
to be within weight standards within three months after giving birth than
women in the U.S. Navy (USN) (Greer et al., 2012). ough weight
gain was similar and normal between both groups of women, active-duty
USMC were more likely to experience spontaneous vaginal delivery, and
their babies’ birth weights were signicantly lower. In the U.S. Air Force
(USAF), active-duty postpartum women are exempt from physical tness
tests for six months (Armitage and Smart, 2012). In comparison to pre-
pregnancy performance, at six months USAF women had signicantly
larger abdomens and could perform fewer push-up repetitions; their sit-
up repetitions were the same; and they were able to run for longer periods
of time. Overall, their pass rates six months after pregnancy were lower
than their pass rates before pregnancy. A study about postpartum sol-
diers and Army Physical Fitness Test scores (APFT) found that pregnancy
complications, amount of weight gain, and exercise practices signicantly
aected postpartum APFT scores (Weina, 2006). e scores and soldiers
perceived tness levels indicated that six months was an inadequate time
for soldiers to achieve pre-pregnancy APFT scores. Postpartum soldiers
may be deployed outside the continental United States six months fol-
lowing labor (U.S. Army, 2010). However, soldiers who qualify may sign
a waiver and receive permission to deploy sooner.
Pregnant Criminal Justice Employees
79
Unintended pregnancy can be problematic in the military. Pregnancy
and unintended pregnancy are more common among military service
members than civilian populations in the United States (Holt, Grindlay,
Taskier, and Grossman, 2011). However, contraceptive use may also be
higher in military populations. Eighty-two percent of postpartum active-
duty singles had unplanned pregnancies; the majority occurred while they
were assigned to operational units during their rst enlistments (Biggs,
Douglas, O’Boyle, and Rieg, 2009). Postpartum active-duty respondents
completed surveys within 24 hours of delivery. Singles reported that their
commands were unsupportive during pregnancy. Seventy-ve percent of
single mothers required nancial support from e Special Supplemental
Nutrition Program for Women, Infants, and Children (WIC); and few
of their infants’ fathers were involved. In military primary-care clinics,
early pregnancy detection correlates with urine tests administration; thus,
many women may not know they are pregnant because they are not given
urine pregnancy tests at secondary-care clinics (Hochman et al., 2012).
Early detection permits women ample time to choose to abort or seek
appropriate care. Researchers found that clinicians at military treatment
facilities lack knowledge about emergency contraception pills (Chung-
Park, 2008; West and Lee, 2013). irty-four percent of clinicians at mil-
itary treatment facilities believed that pills had to be administered within
48 hours of pregnancy; and 60 percent lacked knowledge about timing
and doses of the medication (Chung-Park, 2008). Only 54.4 percent
reported prescribing emergency contraception. Some clinicians worried
about safety and liability; while others reported that service members fail
to ask for prescriptions.
Menstruation in austere environments is viewed as decreasing mem-
bers’ readiness and ability; suppression of the menstrual cycle is con-
sidered to be essential (Christopher and Miller, 2007). Many female
service members elect to take hormonal medications (e.g., birth control
medication) to suppress menstruation while deployed. Because women
on deployment suppress menstruation using contraceptive medication,
they may not realize that they are pregnant before they deploy (Sanghani,
2014). Furthermore, because women suppress menstruation, total con-
traceptive use decreases during deployment (Holt, Grindlay, Taskier, and
Grossman, 2011). A sample of 7,225 female active-duty service members
in 2008 found that rates of unintended pregnancy had increased slightly
from 2005 (Grindlay and Grossman, 2013). However, younger minority
women with lower education levels, who were involved in serious intimate
80
Laws Relating to Sex, Pregnancy, and Infancy
relationships, were at signicantly higher risk for unintended pregnancy.
Rates were constant between deployed and non-deployed women.
Generally, pregnant female soldiers may not be deployed or assigned
to duty outside the continental United States (Womak Army Medical
Center, 2013). is policy has mostly succeeded in preventing pregnant
women from entering combat zones, even though research demonstrates
that participation in war does not seem to be detrimental to fertility or
fetal health; it may, however, correlate with slightly premature birth (Haas
and Pazdernik, 2006). In some instances, pregnant women have been
on deployment. Incident to deployment, servicewomen are required to
become vaccinated. us, pregnant women are exempt from vaccinations
except those for inuenza and tetanus-diphtheria (Womak Army Medical
Center, 2013). Servicewomen will be asked whether they are pregnant
prior to vaccination; however, no pregnancy test is administered (Cross-
ley, 2014). Women who become pregnant may experience four dier-
ent possibilities (Sanghani, 2014). Women may (1) declare pregnancy
prior to vaccination and deployment and be precluded from deployment;
(2) intentionally conceal pregnancy to deploy; (3) unknowingly become
pregnant and then deploy; or (4) become pregnant while deployed. Being
asked about pregnancy may serve to suggest to servicewomen that they
ought to avoid becoming pregnant while deployed (Crossley, 2014).
However, probably less than 1 percent of deployed servicewomen have
returned from deployment in the past decade due to pregnancy (Dury
and Gladdis, 2012). For example, in the British military, approximately
100 women have been sent home from deployment since 2006 (Cross-
ley, 2014). Gynecological records of U.S. women deployed to Kuwait
between 2003 and 2004 revealed that 77 of 1,737 were pregnant (Albright
et al., 2007). Fifty-four percent were active duty, and others were Reserve,
National Guard, and governmental employees. Among the soldiers,
77 percent became pregnant in Kuwait while 23 percent arrived preg-
nant. Almost all, 92 percent, were administratively redeployed. Adminis-
trative deployment costs $10,000 per woman (Foster and Alivar, 2013).
us, the military has a nancial interest in detecting pregnancy before
deployment and reducing unintended pregnancy on deployment.
Police
Policies for pregnant and potentially pregnant police ocers may be
handled poorly, be widely misunderstood, and raise contentiousness
Pregnant Criminal Justice Employees
81
within law enforcement agencies and departments (Brantner-Smith,
2014; King v. Pillage of Gilberts, 2002). roughout the past 20 years,
ocial discrimination against pregnant ocers seems to have subsided,
though pressure and gender politics may continue within departments
and agencies (Crime Control Digest, 1991; Cusack, 2013; Discrimina-
tion, 1992; Moore, 2012; Police Ocer Grievances Bulletin, 1992; Police
Department Disciplinary Bulletin, 2003; Police Ocer Grievances Bulle-
tin, 2005; Przynski, 2006). Medium and small agencies may be the most
polarized (Brantner-Smith, 2014).
Many departments have pregnancy policies that outline maternity
leave, uniforms, duties, restrictions, and other related matters (Connelly,
2011). Under e Pregnancy Discrimination Act (PDA) of 1978, police
departments may not discriminate against pregnant ocers or ocers
who are potentially pregnant (e.g., using fertility treatment) (King v. Pil-
lage of Gilberts, 2002). ey must treat them similarly to other individuals
whose inability to work is comparable (i.e., temporarily disabled ocers)
(e Pregnancy Discrimination Act of 1978). During pregnancy, ocers
may transfer to low-risk positions, limited duty, or light-duty status, if
departmental structure and agency policy allows; however, pregnant o-
cers may not be required to transfer and may not be allowed to transfer
before it is medically necessary unless pregnancy policy permits the trans-
fer (Connelly, 2013; Kruger, 2006). Pregnant ocers could be forced to
take unpaid pregnancy leave when policies do not require departments
to assign light duty. Departments may force pregnant ocers to transfer
if they fail to properly perform normal duties due to pregnancy or they
pose a danger to themselves or other people (Connelly, 2013). However,
in this context fetuses are not considered to be persons placed in danger
(Automobile Workers v. Johnson Controls, Inc., 1991; Kruger, 2006). Police
culture tends to discriminate against female ocers; thus, departments
may attempt to pressure competent pregnant ocers to transfer positions
or take leave based on perceived stereotypes about pregnancy. Pregnant
ocers have been discriminated against; some have been denied the right
to take a light-duty position that would be assigned to ocers similarly
limited by a temporary disability. In some of these discrimination cases,
ocers have been awarded monetary damages.
Ocers are not required to disclose pregnancy status unless they
request light duty; female ocers are not questioned about or tested
for pregnancy (Risk Management Bureau, 2010). Pregnancy poli-
cies may require female ocers to submit a letter from their doctors
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Laws Relating to Sex, Pregnancy, and Infancy
verifying their pregnancies when they require light duty (Connelly,
2011; Underwood-Nunez, 2013). Some policies require early submit-
tal, but others may not require verication before the eighth month
of pregnancy. Pregnant ocers may elect to wear uniform jackets to
hide pregnancies whenever possible (Underwood-Nunez, 2013). Female
police ocers tend to be physically smaller than male ocers (Cusack,
2014). ough female ocers may view their smaller statures as positive
and challenging, civilians and male ocers may joke or harass female
ocers with derisive comments relating to body size. During pregnancy,
male ocers and civilians may continue to harass pregnant female o-
cers about their smaller statures while also harassing them about weight
gain or being larger.
To accommodate pregnancy, female ocers may alter their uniform
shirts with additional fabric; however, maternity-sized shirts may be
required (Underwood-Nunez, 2013). On light duty or in administrative
positions, ocers are not required to wear gun belts (Underwood-Nunez,
2013). Some pregnant ocers on administrative duty may be permitted
to wear civilian clothing when standard uniforms are unaccommodating
(National Center for Women and Policing, n.d.). However, those who
are not reassigned may require larger pants and a new belt. Weapons belts
that accommodate pregnancy should be available on the same terms as
belts for nonpregnant ocers (Risk Management Bureau, 2010). Doc-
tors’ orders may be used to excuse pregnant ocers from weapons train-
ing, especially because range qualications could expose ocers to lead,
toxic substances, and excessive noise; but departments may elect not to
exclude them. Departments are not required to accommodate or excuse
pregnant ocers beyond accommodations provided for temporarily
disabled ocers (Campbell and Kruger, 2010). Critics argue that some
departmental pregnancy policies fail to permit women to transfer to light
duty, which results in pregnant ocers being forced to take unpaid leave
during their pregnancies and become adversely aected during promo-
tional consideration. Activists propose that light-duty policies should be
exible; have no time limit throughout pregnancies; and stipulate that
women who elect to take light duty will not be adversely aected during
considerations of promotion or pay (National Center for Women and
Policing, n.d.; Risk Management Bureau, 2010). Despite arguments in
favor of administrative duty options, when administrative duties repre-
sent lower-ranking positions, pregnant ocers inevitably lose opportuni-
ties to gain experience (Glenn-Davis v. City of Oakland, 2003).
Pregnant Criminal Justice Employees
83
e Women in Law Enforcement Foundation and the International
Association of Chiefs of Police produced pregnancy policy guidelines for
U.S. federal law enforcement ocers (Women Police, 2011). In addition
to best practices already established by departments, the guidelines call
for federal law enforcement entities to avoid assigning pregnant ocers
work in which they may encounter toxic chemicals, drug labs, or infec-
tious diseases. Neither traumatic, high-risk, or tactical operations nor riot
control should be assigned to pregnant ocers. However, these policies
should be consistent with treatment given to other employees who are
temporarily disabled. If pregnant ocers elect to work regular duty that
includes risky assignments, then agencies ought to assume no risk for
those ocers or their fetuses.
CHAPTER 10
Civil-Criminal Crossover
Life Support
Advance directives can be used to declare patients’ wishes for medical care
in the case that patients become brain-dead, unconscious, or incompetent
to make medical decisions. Advance directives may be legally binding if
properly executed and led with doctors or enforced by designated health
care surrogates. Pregnant women may elect to be placed on life support
(e.g., respirator or feeding tube) treatment or may choose to object to
such measures in advance. In some cases, advance directives pertaining
to pregnant patients cannot be followed by doctors or enforced by health
care surrogates. Some states require that advance directives have no eect
when patients are pregnant with viable fetuses, as the state has an interest
in maintaining fetal life despite a patient’s wishes, while other states only
impose this requirement on female inmates (63 Okl. St. § 3101.4, 2013;
Ala. § 22-8A-4, 2014; O.C.G.A. § 31-32-4, 2013; Wardle, 2013). In
other states, advance directives have no eect throughout the duration of
pregnancy. Some states may lack laws on point; may specify that advance
directives can be enforced during pregnancy; or may require life to be
sustained unless pregnant patients object through advance directives (18
V.S.A. § 9702, 2013; Md. Health-General Code Ann. § 5-603, 2014;
N.J. Stat. § 26:2H-56, 2014).
When advance directives are not led, evidence of a patient’s wishes may
support a court’s orders to either maintain or end life support. However,
in certain jurisdictions this may be insucient when women are pregnant.
Families’ wishes may also be irrelevant when advance directives are silent
or have no eect. Sometimes pregnant women are placed on life support
against their families’ wishes. Courts may intervene, overturn law, or dis-
tinguish certain cases from the law. In Texas, a statute prohibited pregnant
86
Laws Relating to Sex, Pregnancy, and Infancy
women from being taken o life support (Fernandez, 2014; Texas Health
and Safety Code § 166.049, 2014). A judge ordered a pregnant patient to
be taken o life support in compliance with her family’s wishes. Criminal
charges could have resulted from taking the pregnant woman o life sup-
port before the court order was issued (e.g., killing a fetus); and charges
could also have resulted from ignoring a courts order to sustain or end
life support (e.g., contempt). e patient’s family argued that the patient
was brain-dead, thus that she was legally dead. In some cases, patients may
require life-sustaining interventions (e.g., feeding tubes); but they are con-
scious, albeit vegetative (Bush v. Schiavo, 2004; Schiavo v. Schindler, 2005;
In re Schiavo, 2001). However, this argument is that a brain-dead woman
is legally dead (Muñoz v. John Peter Smith Hospital, 2014). us, despite
pregnancy, a brain-dead woman is no longer a person (Sperling, 2004). A
corpse no longer possesses a persons rights, and is not required to follow the
law (Cusack, 2011). A judge found that a hospital should follow a familys
wishes to end life support. e court considered that life was not assisted
because the woman was dead. ough Texas’ code did not require fetal
viability like some states, the patient’s fetus was not viable. us, legislators
interests in maintaining fetal life were severely limited. e statute requir-
ing a pregnant patient to be sustained on life support did not apply in this
case, particularly because the woman was dead. e law, however, was not
declared to lack Constitutionality.
A recent case highlighted crossover between civil and criminal law
(Sharp, 2014; Kuruvilla, 2014). An infant, who was shaken by her father,
suered from spastic quadriplegia, blindness, deafness, inability to suck
or swallow, pain, neurologic impairment, and inability to breathe on
her own. Her father was charged with aggravated assault, but would be
charged with manslaughter or murder if the child died within a year of the
attack. e child’s 18-year-old mother, Virginia Trask, exercised parental
rights by signing a do-not-resuscitate (DNR) order for her infant under
the guidance of State of Maine child welfare employees. e infant was
removed from life support and placed in Trasks arms to die; however, the
child unexpectedly began breathing without life support. Trask wanted to
void the DNR order, but the child welfare department claimed that she
no longer had the authority to do so. A lower court heard Trasks case,
claiming that her parental rights entitled her to make medical decisions
for her infant. However, the judge found that Trask seldom visited the
child and was undependable; thus, the judge granted authority to Maines
Civil-Criminal Crossover
87
child welfare department. Child welfare agreed to abide by Trasks wishes,
making the case moot before Maine Supreme Judicial Court.
Hospital Rooms
Women delivering babies possess a right to privacy when babies are deliv-
ered within spheres that society is willing to recognize as private (De May
v. Roberts, 1881). A reasonable expectation of privacy may be possessed
in a hospital room and a home (Prosser, 1960). People are often nude in
hospital rooms and bedrooms, which is one indicator that a reasonable
expectation of privacy may be held in these places. Every U.S. jurisdiction
recognizes a reasonable expectation of privacy in bedrooms and, possibly,
other similar locations (e.g., nursing homes) (Cusack, 2015). However, a
right to privacy guarantees occupants freedom from intrusion even when
occupants are clothed. Intrusion is tortious conduct that results when
a tort-feasor physically intrudes into a hospital room without consent
(Shulman v. Group W Productions, 1998). Privacy violations are a matter
of degrees. Intruding during labor or birth may be particularly violative
conduct. e amount of privacy expected in a hospital room may not be
absolute because hospital sta enter a room without notice; yet, an expec-
tation of privacy is recognized as relative (Sanders v. American Broadcast-
ing Companies, 1999). Even if a patient can be forced to see nurses or
other hospital sta, an adult patient cannot be legally forced to consent to
have visitors in a hospital room. When hospital rules authorize visitation,
a patient may grant consent to be visited. e mere possibility that any
potential visitor could enter a hospital room does not grant consent for all
visitors to enter (People v. Brown, 1979). us, an expectation of privacy
is relative to consent granted to a particular visitor within a given context.
e identity or conduct of the intruder may determine whether the
conduct was intrusive. e guiding U.S. Supreme Court case about tor-
tious intrusion considered whether a pregnant woman was intruded upon
when a doctor brought a friend to deliver the birth of her baby (De May v.
Roberts, 1881). She consented for her doctors friend to enter her home, but
her consent was based on her belief that her doctor’s friend worked in the
medical eld. e court held that her consent was fraudulently obtained
because her doctor allowed her to believe that his friend’s presence was
relevant and appropriate. us, consent was not granted and her privacy
was violated by their physical and sensory intrusion (De May v. Roberts,
88
Laws Relating to Sex, Pregnancy, and Infancy
1881; Spinks v. Equity Residential Briarwood Apartments, 2009). Conduct
may be highly oensive in light of the tort-feasors’ identity or duty. For
example, a pharmaceutical representative was permitted to view a breast
cancer survivor’s bare chest during an oncological examination because
the patient believed that the representative was a medical professional
(Azucena Sanchez-Scott v. Alza Pharmaceuticals, 2001). e doctor owed
a duty to the patient, and the representatives identity was intrusive under
the circumstances. When considering whether intrusive conduct was
highly oensive, courts should consider the totality of the circumstances,
including the degree, context, motive, and setting of the intrusion, in
comparison to expectations held by the plainti.
In some jurisdictions, biological fathers may attempt to exercise a right
to be present in a hospital room during a childs birth. Some women
may object to the presence of progenies’ biological fathers during deliv-
ery. Courts have recognized the importance of womens privacy above a
father’s rights (Plotnick v. DeLuccia, 2013; Roe v. Wade, 1973). Courts
recognize this right in delivery rooms. Mothers may choose to object to
biological fathers being present during delivery (Phillis, 2014). When
intruders are not granted consent by a patient to enter a hospital room,
and yet refuse to leave, then they may be arrested. e fact that other
visitors are present or that an intruder believes he or she has a right to
be present does not countervail an intruder’s obligation to obey hospital
rules when asked to leave (Cleveland v. Municipality of Anchorage, 1981;
Kalfus v. e New York and Presbyterian Hospital, 2012). Trespass (i.e.,
nonconsensual visitation) committed by fathers could result in court-
order violations, trespass charges, breech of peace charges, or other related
criminal incidents. Trespassers who are arrested may challenge convic-
tions if sucient notice was not given to alert intruders to their trespas-
sory activities. For example, a sign forbidding visitors must be prominent
to sustain a criminal conviction for trespass, even if the conduct is found
to be tortious in civil court. In each case, the totality of circumstances
may be considered (Cohen v. Katsaris, 1982). A visitor claiming to have a
right to be present in a hospital room should seek court orders. However,
fathers’ requests to be notied prior to birth and to be present during
birth without mothers’ consent have failed to be supported by the law
even when judicial orders are sought ahead of time (Plotnick v. DeLuccia,
2013). In addition to the fact that the mothers privacy rights and pre-
birth interests in a child are greater than a fathers rights, the presence of
an unwanted guest in the delivery room could place unneeded stress on
Civil-Criminal Crossover
89
a mother in delivery and increase the danger of delivery for her and the
child (Phillis, 2014). Furthermore, hospitals owe mothers a duty to pro-
tect them from trespass if it is reasonably foreseeable. Hospital protocols
and policies are likely to protect women from unwanted intrusion dur-
ing childbirth; however, traditional attitudes toward fathers’ roles during
birth may cause some hospital sta to fall below the standard of care and
permit intrusion. ese breeches are foreseeable and avoidable; and they
can be remedied by patients asking intruders to leave or by having tres-
passers arrested (Necolay v. Genesee Hospital, 1946).
Criminal Procedure
Police may violate suspects’ Constitutional rights by deviating from
proper criminal procedure. If an ocer violates a suspect’s rights or
department policies, a claim may be brought against the ocer under
42 U.S.C. § 1983 (Orovitz, 2012). eoretically, these claims may serve
punitive and compensatory aims. For the plainti to prevail, an ocer
must have acted under the color of law while depriving a plainti of
Constitutional rights. In this context, late-term fetuses injured in utero
during police encounters may not be considered to be persons with
rights, but death or loss of a fetus may be a cognizable damage (AELE
Reporter, 1988; Security Law Newsletter, 2011; Williams v. Anderson,
2010). Qualied immunity is an armative defense that can result in
summary judgment. Police who exercise discretion are immunized, but
only if they objectively intend to act under the color of law. Exercise
of discretion may be called for or result in situations where the law is
unclear. ough discretion may be exercised when the law seems unclear,
under 42 U.S.C. § 1983 a Constitutional right must be clearly estab-
lished to give police fair warning. If the law gives police fair warning of
a plainti’s rights and police conduct is unreasonable, then such police
conduct will not be immunized.
Many incidences involving babies and pregnant women have resulted
in civil rights violation complaints, lawsuits, and judgments against
police. Outcomes of incidences and complaints vary widely by jurisdic-
tions, reasonableness of force use, and circumstances surrounding depri-
vation of rights (AELE Reporter, 1982). Many cases involve prisons, and
infant death due to negligent custody of inmates. Pregnant inmates may
leak amniotic uid, spot bleed, and cramp for hours or days before being
allowed to visit with a doctor (Swift, 2009). Some give birth on toilets,
90
Laws Relating to Sex, Pregnancy, and Infancy
prison ramps, and prison oces; and some have unnecessarily been shack-
led during labor. is is discussed in Chapter 3 and Chapter 11.
Some violations are less severe. In one case, Portland police were
ordered to pay a pregnant woman after they held her for 90 minutes with-
out a bathroom break. Usually, unreasonable detentions in which police
deny bathroom breaks span several hours (Miranda v. Arizona, 1966).
However, this case demonstrates that the system may expect police to
be considerate of the eects of pregnancy (e.g., pressure on a womans
bladder). Other cases do not demonstrate that police are required to be
considerate of womens pregnant condition. In Brooks v. Seattle (2010),
the court held that ocers who used a Tazer three times on a pregnant
woman to achieve pain compliance were entitled to immunity (John-
son, 2010). Police knew that the woman was seven-months’ pregnant
when she refused to sign a speeding ticket, exit her vehicle, or submit
to arrest. Pain-compliance shocks were not excessive under the circum-
stances because she was noncompliant (Criminal Law Reporter, 2010).
e oender immediately received medical care and delivered a healthy
baby two months after the incident.
Constitutional rights violations could result during search and sei-
zure. For example, police executed a search warrant at a home, but they
failed to knock and announce their presence as required by law (Belt,
2014). Under exigent circumstances, police may dispense with knock-
and-announce requirements. In this case, the suspect was believed to pos-
sess drugs and weapons. A child, who was temporarily residing there,
was injured and comatose after police threw a ash grenade into his crib,
which detonated on his face. e suspect was then arrested at a dier-
ent home, which calls into question polices claim that the circumstances
were exigent. However, police said that they did not know that an infant
was visiting, and there were no signs that any child lived there. Similar
cases may turn on what police knew or should have known; exigency of
circumstances; and reasonableness of police actions.
Birth Defects
Birth defect cases have played a pivotal role in law and justice (Paltrow
and Jack, 2010). For example, in 1993, Merrell Dow Pharmaceuticals was
sued by teens with shortened limbs who suered birth defects relating
to their mothers’ use of birth control products (Daubert v. Merrell Dow
Pharmaceuticals, 1993). Daubert, a case decided by the U.S. Supreme
Civil-Criminal Crossover
91
Court, set the contemporary standard for the admissibility of expert tes-
timony in civil cases. Although the holding could apply to criminal cases,
its reach within the criminal justice system has been limited in compari-
son to civil cases (Giannelli, 2011). Birth control and birth defects are
discussed in Chapter 17.
Birth defects have been studied at length by the criminal justice sys-
tem. Physiological explanations for crime have persisted in the study
of criminology for hundreds of years (e.g., Cesare Lombrosos Positiv-
ist Criminology). Some of these theories have been described as racist,
classist, or sexist. Some criminological knowledge about birth defects
refers to mental defects that cause crime; and recent biological theories
explain how hormones, brain shape, and brain function relate to delin-
quent or criminal inclinations (Rafter, 2001). Certain defects may relate
to external conditions aecting children in utero (e.g., maternal intoxi-
cation or contamination). Maternal intoxication and criminal liability
are discussed further in Chapter 13. Predispositions may be exacerbated
by environmental factors, lack of treatment, inappropriate responses to
defects, or learned behavior. Other individuals or corporations may be
civilly or criminally liable for causing or worsening birth defects.
Birth defects are a private matter, but they are also a matter of public
health. e states interest in individuals’ birth defects may be compel-
ling. Parents have a right to privacy, a right to raise children, and a right
to make medical decisions for their children, but the states police power
may impinge on those rights to the extent necessary to act in childrens
best interests and protect public health (HIV Justice Network, 2008;
State v. Neumann, 2013; Zucht v. King, 1922). For example, when treat-
ment is necessary to prevent death, states may intervene into parents
medical decision making (Kaplan, 2010; Seldin, 2013; Srinath, 2012).
Parents’ medical decision making is discussed in Chapter 6. Birth defects
among the general population are a matter of public health, the assur-
ance of which is one of the states traditional roles enforceable through
police power (Jacobson v. Massachusetts, 1905). Public health informa-
tion about birth defects may be gathered to document occurrences and
develop research data in case trends are causally related to negligent or
intentional activities. e Food and Drug Administration (FDA) recom-
mends that doctors inform them about potential birth defects using a
Medwatch form on its FDA.gov website, but they do not require report-
ing. Hospitals, doctors, midwives, and others who professionally deliver
infants may be required to report birth defects to the state (Texas Health
92
Laws Relating to Sex, Pregnancy, and Infancy
Code § 87, 2014). Departments may conduct epidemiological and toxico-
logical investigations to understand or measure diseases, causes, and con-
trols. Parents may be required to provide medical, toxicological, personal,
demographic, and other epidemiological information to the state. Parents
and government agents cannot be held liable to children or other entities
for collecting this information as required or providing such information
during an investigation; however, those who disclose criminal negligence
or intentionally criminal acts may be held liable. Records held in a central
registry are likely to be condential and certied for medical and health
use only. Criminal, civil, or special proceedings examining government
agents in possession of records may require parental consent to disclose
records used to monitor individual childrens medical histories. However,
de-identied records may be released for statistical purposes. If high prob-
abilities of occurrences are identied, then programs may be taken to
reduce incidences in certain regions; and potentially, criminal investiga-
tions could be conducted. Governmental responses depend on risk fac-
tors, causes, strategic practicability, classications of defects, prevalence,
morbidity and mortality rates, costs, and other factors.
Some scholars postulate that incident rates of birth defects may be
lowered by moral reprehension toward the environmental or corporate
negligence that causes them (Ostas, 2007). For example, even if creating
a product or waste product that caused birth defects was cost eective in
comparison to criminal liability, most corporations would not choose a
course of action that led to birth defects. Corporate agents would nd
such actions to be reprehensible and public outcry would negatively
aect corporate reputation. Others claim that moral reprehension is not
a factor, and is unrelated to risk. For example, ongoing animal studies,
designed to prevent human birth defects, may be just as morally repre-
hensible since they may not correlate precisely to human outcomes; and
they inict birth defects on animals (Shuman, 1997). Yet, the level of
moral reprehension toward animal birth defects may not be similar to
that regarding human birth defects. Even if studies do not directly cor-
relate, corporations may avoid concealing studies that potentially relate
to human birth defects. One explanation may be that most individual
corporate agents are deterred by criminal justice consequences, which can
result in criminal sanctions for individuals and corporations (Shenon,
1985). Individual agents who are grossly negligent or intentionally fall
below the standard of care by concealing potentially relevant data may
be criminally sanctioned. Corporations and corporate agents may fear
Civil-Criminal Crossover
93
jurors’ moral outrage in instances of criminal trials or civil trials resulting
in massive punitive sanctions (Nagareda, 1998). Incidents have occurred
in which medical professionals were encouraged by pharmaceutical cor-
porations to label reports about birth defects as “inquiries” (Green, 1996).
ese incidents may fall into gray areas that reect conicting professional
interests and standards, perhaps more so than concealment or immorality.
Nevertheless, even the wording could give rise to professional or criminal
investigations and sanctions; thus, due diligence may be required (Giles,
Hamilton, and Kim, 2011).
CHAPTER 11
Criminal Justice Environments
Babies in Corrections
Some female inmates are pregnant while incarcerated; and numerous
women deliver while in state custody (Babies Behind Bars, 2011). For
example, some babies live behind bars at Wee Ones Nursery in Indiana
Womens Prison. Advocates argue that Wee Ones Nursery lowers incar-
ceration rates for inmates and children. Ocer Morton at the prison says,
“We have to show the ladies we believe in them, and we believe that they
can change and make a dierence for their babies; and that would make
it worth it.” Yet, there is only room for ten infants at any one time, while
sixty inmates deliver at the hospital each year. Most inmates give birth
with only hospital sta and a prison guard present. Relatives rarely attend
births to support the women. Inmates support, advise, and comfort each
other. Ocer Morton at the prison says, “If youre pregnant and in prison,
you pretty much gotta feel like you failed something really badly. [Other
female inmates’ support] is not changing the facts, but it’s making them
a whole lot better.” Infants living behind bars receive medical and safety
care. Women with short sentences (e.g., 18 months), who have never
been convicted of a violent crime, are ideal candidates for the program.
Many inmates enter prison not knowing that they are pregnant. Many
use drugs and may feel grateful that they served time during pregnancy, so
that their infants were healthy throughout gestation and infancy. Prisons
encourage mothers to breastfeed, but some may express milk. Because
many inmates use drugs behind bars, breast milk may be tested; there
is no guarantee that it is pure and substance-free. ough grandmoth-
ers care for infants living outside a prisons baby dorm, relatives are only
permitted to visit once each week for four hours. Toddlers and infants
visiting inmates receive full pat downs. Inmates who have good behavior
96
Laws Relating to Sex, Pregnancy, and Infancy
can spend additional hours each month with their visiting children; at
Wee Ones Nursery, inmates receive six additional hours.
Another example is the New York State Department of Corrections,
where mothers who are nursing at the time they are committed to state
custody may continue to nurse while in prison. Children may be born
in the facility and reside with mothers until they are one year old; nurs-
ing children may accompany mothers for the same amount of time. e
main criterion is that an inmate must be physically capable of providing
her child with adequate care (N.Y. Correction Law § 611, 2014; 2009
N.Y. Laws, Chap.411, 2014).
Sterilization, Insemination, and Conjugal Visits
Some prisons, such as the Mississippi Department of Corrections, do not
permit conjugal visits (Mississippi Department of Corrections, 2014).
e Mississippi Department of Corrections was the rst department of
corrections in the United States to develop a program permitting con-
jugal visits, yet one reason cited for recently eliminating the program is
birth control (Severson, 2014). Mississippi’s program provides inmates
with contraceptives, but they cannot enforce that inmates use them. e
department feels that babies should not be conceived by and born to
parents behind bars. Conjugal programs were implemented in more than
a dozen states 20 years ago; but only California, Connecticut, New Mex-
ico, New York, and Washington currently maintain them. In New York
and California, inmates must be legally married or in civil unions (i.e.,
same-sex couples) to participate. Another reason conjugal visits have been
eliminated in state penitentiaries is the additional costs incurred when
prison sta must escort and clean up after inmates. States providing such
visits, such as Washington, may require inmates to pay a nightly fee; but
this charge may be less reasonable in penitentiaries that only allot one
hour for conjugal visits.
In Gerber v. Hickman (2002), an inmate who was ineligible for conjugal
visits claimed a civil rights violation because prison ocials prohibited
him from sending semen in the mail to a hospital where his wife would
be inseminated (Cusack, 2014). Both the lower and appellate courts held
that procreation is incompatible with incarceration because incarcerated
inmates who have been convicted of crimes lose rights to intimate associa-
tion; cohabitation; sex; conception; and parenting. Articial insemination
could not be permitted to circumnavigate incarceration goals of punishing,
Criminal Justice Environments
97
deterring, and isolating inmates. In response to strict prison policies, some
inmates have nevertheless reportedly smuggled semen to their wives, who
have conceived through articial insemination (Daily Mail, 2012).
In some cases, inmates may voluntarily attempt to use sterilization
as birth control. However, some sterilization procedures have lacked
informed consent; and a few allegedly elective procedures have been con-
sidered to be coercive (Howle, 2014). In one case, auditors in California
discovered that 39 female inmates were sterilized by the state; but they
may not have understood what some 17 doctors and eight hospitals were
doing. e State of California prohibits females in prison from electively
undergoing sterilization as birth control; but medically necessary steril-
ization is permitted. A total of approximately 150 female inmates were
sterilized without proper consent. Proper informed consent requires that
patients appear mentally competent; patients understand the permanent
eects; and patients wait between 30 days and 180 days before proceed-
ing with surgery. Informed consent for medical procedures is further dis-
cussed in Chapter 16. Over a seven-year period, 144 women cut or tied
their fallopian tubes solely to practice birth control. Investigators feared
that many of these surgeries were coercive.
Custodial Breaches
Guards sometimes impregnate inmates or become impregnated by
inmates. Some sexual activity may be voluntary and other activity may be
involuntary; however, inmates cannot legally consent to sexual conduct
while incarcerated, and all guards are prohibited from having sex with
inmates under their control (Cusack, 2014). In one extreme example,
Bulldog, the incarcerated gang leader of the Black Guerilla Family, used
several prison guards to courier contraband inside the prison (e Hu-
ington Post, 2013). While in business, Bulldog earned over $15,000 each
month and impregnated four corrections ocers. In another example,
one guard planned to conceive with a death row inmate convicted of kill-
ing two undercover police ocers; she lost custody of her child because
she binged on alcohol and cocaine during her third trimester, and she
drove while under the inuence with her baby in the car (Gregorian,
2013; Marzulli, 2013; Murphy, 2014). She faced a lengthy prison sen-
tence for sexually abusing the inmate; but, she mitigated by citing a his-
tory of incest and sexual abuse in the military. She was sentenced to one
year and one day in prison.
98
Laws Relating to Sex, Pregnancy, and Infancy
Sexual misconduct, including unwelcomed and forced contact,
between female prisoners and prison sta was alleged in three prisons
in Washington D.C. (Women Prisoners of D.C. Dept. of Corrections v.
District of Columbia, 1994). A court in the case described a high level
of tolerance for sexual misconduct and harassment and a sexualized
environment that accepted sexual relations between sta and inmates.
Abuse included forced kissing, fondling, rape, and sodomy; one inmate
was forcibly fondled after receiving prenatal care. Rather than address
malicious harassment and abuse, female prisoners were ignored and
instructed to avoid guards (e.g., quit their prison jobs to avoid encoun-
ters). Ocers found to violate sexual misconduct rules would possibly
be reassigned, but not red or prosecuted. In general, female inmates
have a higher rate than women in the general population for contract-
ing sexually transmitted diseases (STDs), including syphilis, HIV, AIDS,
and gonorrhea, and illnesses from infection, including cervical cancer
and sterility. e court held that these consequences are not acceptable
forms of treatment or punishment to impose on inmates sentenced to
corrections facilities.
Labor
Anecdotal evidence indicates that women experience labor while at police
stations, in immigration custody, in incarceration, or in other criminal
justice settings. Women are likelier to miscarry while incarcerated, and
women in jail tend to have drug and trauma histories that make them
likelier to miscarry (Pacillo, 1997). ey also have histories of poor health
care and are less educated than women in the general population. While
in prison they are likelier to continue receiving poor health care and
prenatal care. us, labor and delivery rates are lower among women
prisoners.
Prison sta and police may be required to behave heroically during
labor (CBS, 2012). For example, a drunk woman was arrested. After she
sobered up, she was released from jail. While being escorted by police, she
went into delivery. Her daughter was born a few months premature, and
she needed to be resuscitated by jail sta. Because the baby was delivered
prematurely to a drunken mother in police custody, Child Protective Ser-
vices was notied. Another example occurred in Spain. A police ocer on
the Spanish National Police Force, working as a research ocer, lled in
for a colleague (Laly, 2004). While beginning her duty shift, she learned
Criminal Justice Environments
99
that a taxi driver dropped o a pregnant woman. e ocer took control
and safely assisted the woman through delivery. A nal example is of a
woman in Iowa who failed to stop when police attempted to pull over her
vehicle (Kare 11, n.d.). A male driver led police for several blocks before
pulling over their vehicle. She was en route to the hospital, which was two
blocks away, when the baby crowned and the driver stopped. Audio from
the ocer’s radio, paired with video from the police-cam in the ocer’s
cruiser, recorded the moment that the newborn rst began to cry inside
the car while the ocer stood by. e mother exclaimed, “Oh my God!
Hes here! Hes here!” as her son was being born.
Dealing with Pregnancy in Prison
Female inmates generally lack gender-specic medical care and counsel-
ing, and pregnant inmates often lack prenatal and postnatal care and
education. Policies may be unenforced and or completely lacking, while
prison resources may fall below the standard of care (e.g., short-staed).
Policies may require prisons to counsel and educate women prisoners
about choosing to terminate pregnancies, and to provide religious coun-
seling on request. Written protocol may require inmates to undergo pre-
natal risk assessment (e.g., Problem Oriented Prenatal Risk Assessment
form). Prenatal medical treatment, delineated by a step-by-step pro-
cess, ensures that providers are not arbitrarily treating women or falling
below the standard of care. A physical examination; conversation about
breastfeeding; a pelvic exam; sexually transmitted disease (STD) testing;
pregnancy and viability tests; and transvaginal ultrasonography are some
important steps (Hacker, Gambone, and Hobe, 2009). During the rst
six months, standard care requires monthly visits; bimonthly visits during
the beginning of the third trimester; and weekly visits during the ninth
month.
In Women Prisoners of D.C. v. District of Columbia (1994), 11 women
prisoners failed to receive prenatal care several months after becoming
pregnant. is prevented doctors from administering timely treatment
for gestational problems, such as anemia, low weight gain, poor infant
growth, hypertension, and diabetes. One inmate experiencing vaginal
bleeding refused to wait in lock-up as she was instructed because she
feared having a miscarriage at the ve-month marker of pregnancy.
Lock-up would have required her to rest on a metal bed with no mat-
tress for several hours. She did not see a doctor until after the weekend
100
Laws Relating to Sex, Pregnancy, and Infancy
had passed. She requested prenatal treatment, but only received two
examinations and one sonogram prior to delivery. On the night before
delivery, she was taken to the hospital after she began experiencing labor
pains, but she was returned to custody because she was not dilated and
her water had not broken. However, her contractions were ve min-
utes apart. She was handcued and shackled, and directed to attend
her prescheduled appearance in court. Her appearance was cancelled
because she suered severe labor pain and could not walk; but she was
only oered aspirin. While in her cell, she delivered her child. Before the
afterbirth had passed, guards shackled and handcued her, and placed
her in an ambulance.
Prisons may fail to oer appropriate treatment (Women Prisoners of
D.C. Dept. of Corrections v. District of Columbia, 1994). Nutritional needs
are to be examined in light of womens weight gain. One inmate was
supposed to be placed on a nutritionally balanced diet, including milk
and a snack at night; yet, the prison deprived her of a prescribed dietary
supplement at least once, and the prison pharmacy failed to suciently
restock vitamins on several occasions. e prison oered weekly parent-
ing classes; biweekly prenatal exercise classes; and a therapeutic discus-
sion group; but postpartum inmates received minimal time allowances
to visit their babies. Furthermore, there was no written policy regarding
mother-infant visitation except that mothers were required to hold their
children during feeding. Postpartum counseling was available for moth-
ers whose infants were critically ill or died. Postpartum depression and
stress were also treated through counseling. Arrangements to place chil-
dren outside prison were directed to be made as soon as pregnancy was
discovered. us, counseling to treat separation-related trauma should
have begun no later than the second trimester. One inmate claimed that
she never received counseling or placement assistance. She was forced to
arrange for her child to live with a woman that she met one time briey.
However, several infants were already boarded at the hospital, which
indicates that arrangements could not be made. Lack of arrangements
was blamed on understang, as were missed prenatal appointments and
examinations.
Harsh Punishments
United Nations Rules for the Treatment of Women Prisoners and Non-
Custodial Measures for Women Oenders (i.e., Bangkok Rules) forbid
Criminal Justice Environments
101
pregnant women from being placed in solitary connement (ACLU,
2014). American prisons are not obligated to follow this rule, though
corrections departments may devise policies excluding pregnant women
from total isolation (e.g., New York State Department of Community
Corrections) (NYCLU, 2014). Solitary connement allegedly emotion-
ally damages expectant mothers (ACLU, 2014). ey acutely experience
negative psychological consequences of solitary connement; isolation
may deprive them of medical services and prenatal health care (e.g. vita-
mins). In some cases, lethargy may be cause enough for pregnant women
to be sent to solitary connement. One clinically depressed pregnant
woman suered dehydration and hot temperatures in insolation while
guards ignored her requests for water for several hours. Another woman
was 34 weeks pregnant when she was arrested on drug charges. She
received medical care (Johnston, 2014). However, the inmate experienced
severe pain while in solitary connement, and asked for medical care for
several hours before giving birth alone. Her infant was pronounced dead
after being transported to a hospital. In North Korea, women prisoners
have been placed in solitary connement and sent to hard-labor camps,
allegedly causing miscarriages (Lyons, 2014).
Corrections policies permitting pregnant inmates to be shackled have
been criticized even though such policies may call for minimal restraints.
(Hershberger, 2014). For example, in Maryland, pregnant women may
only be restrained if it is absolutely necessary to prevent harm or escape.
Restraints must be the least restrictive available to protect mothers and
fetuses while maintaining public safety. e most-restrictive restraints,
involving handcus with a black box; leg irons; and a waist chain, cannot
be used on inmates with medical issues. Moderately restrictive restraints
involve handcus and leg irons; and least-restrictive restraints may
involve exicus or one handcu securing an inmate to a wheelchair.
Pregnant inmates must be secured using the least-restrictive restraints
when they are in serious circumstances. If wheelchairs are not available,
then exicus must be secured in front using a ten-inch chain. Maryland
demands detailed documentation of restraints used on pregnant inmates.
In comparison to other policies and policy breeches, Maryland’s policies
seem progressive. e court in Women Prisoners of D.C. (1994) stated
that Eighth Amendment violations involving pregnant inmates are not
uncommon. In that case, a physician described a prison policy of shack-
ling women during the third trimester of pregnancy and labor, which
increases their chances for being injured and suering pain. Shackling
102
Laws Relating to Sex, Pregnancy, and Infancy
inmates during labor demonstrated deliberate indierence for prisoners
safety. Women were also denied visitation with their children, who were
boarded at the institution. e prison was indierent to inmates’ needs
for visitation and child placement counseling. e court found that this
indierence served no penological purpose. e court upheld policies
permitting expectant mothers in their third trimesters to be shackled; but
ruled the other acts of indierence to be inhumane.
CHAPTER 12
Parental Duty, Child Maltreatment,
and State Control
Duties
Law, justice, and the social contract impose on each person a standard
of care. Each person has a duty to behave and perform responsibilities in
line with the requisite standard of care expected of an individual in a par-
ticular circumstance. Falling below the standard of care results in liability.
Criminal liability usually results when a person behaves in a manner that
is criminally negligent, reckless, wanton, knowing, or intentional; and
that breach causes harm. In general, people have a duty to behave reason-
ably. Duty changes according to a persons role in a given circumstance.
Certain relationships create additional duties; thus, the standard of care
is raised.
Professionals must use best practices or a professional standard of care,
unless such professionals acting in a particular situation would not expect
remuneration. In that case, professionals may sometimes be culpable for
exercising a reasonable standard of care, not a professional standard of
care (Lake, 1999; McIntyre v. Ramirez, 2003). However, volunteers who
willfully take on the role of professionals during routine duties may be
held to a professional standard of care. In one case, a volunteer reghter
responded to a call where he found, abandoned in a cemetery, a newborn
infant covered in blood with her umbilical cord attached (AOL, 2014,
May 23). She was unharmed, and was adopted ve days later. Eighteen
years later, he was reunited with that girl and he gave her the eece blanket
that he wrapped her in when he found her. At rst, the volunteer reman
who responded to the call was given an address to the wrong cemetery. By
taking the call, he committed to rendering aid; but, after failing to nd
104
Laws Relating to Sex, Pregnancy, and Infancy
the infant in the wrong cemetery, his duty to render aid likely concluded.
However, his gut instinct led him to a nearby cemetery. Once he discov-
ered the infant there, his duty to aid her resumed. A volunteer gardener at
a park across the street, for example, may not have been under any duty
to report the infant. e gardener could watch the infant languish and
perish. However, once the infant died, the gardener may have a duty to
report the location of a corpse.
A minority of states impose a duty to call police if a serious crime
is occurring (Anderson v. Atchison, 1948; Cornell v. State, 1947; Dove v.
Lowden, 1942; Hollinbeck v. Downey, 1962; Johnston v. De La Guerra
Properties, 1946; Jones v. U.S., 1962; Martin v. Jones, 1953; Osbeck,
1985; Palmer v. State, 1960; State v. Benton, 1936). In some jurisdictions,
the duty only arises if parties share a special relationship. For example,
employees may be owed a higher duty by employers that they will not
be harmed at work. People in a few states may have a duty to assist civil
servants (e.g., police ocers or reghters) when requested to do so in
an emergency. is duty is likely very limited and would not harm the
volunteer.
Generally, there is no duty to aid infants, pregnant women, or rape vic-
tims during emergencies. Aid includes calling police or reporting crime
(Bemis v. Edwards, 1995). However, the law in this area is nuanced. Cer-
tain individuals may have a duty; certain crimes may create a duty; and
certain victims may be owed a duty depending on the circumstances. For
example, in Minnesota, reasonable assistance must be rendered by a wit-
ness who knows or has reason to know that a person has been wounded
by gunre (Minn. Stat. § 609.662, 2014). e duty requires that a wit-
ness investigate a victims injuries and immediately render reasonable aid.
When a person harms another in self-defense, the person performing self-
defense may be required to render aid after injuring the attacker (Pope v.
State, 1979). Aid may be required if it can safely be performed. Victims
and witnesses are not required to place themselves in harms way to per-
form these duties. Placing oneself in signicant risk of harm is unreason-
able. If an attacker has not been incapacitated, those who render aid may
be placed in unreasonable risk (Kuntz v. District Court, 2000; State v. Bier,
1979). Attackers may be incapacitated with deadly force by bystanders
who witness attacks, but bystanders are under no obligation to render
aid (People v. Bowman, 1971; People v. Williams, 1965). One of the most
common exceptions to the general rule that there is no duty to aid victims
arises after automobile collisions. In most jurisdictions, people involved
Parental Duty, Child Maltreatment, and State Control
105
in car accidents have a duty to render aid (Karl v. C. A. Reed Lumber Co.,
1969; People v. Monismith, 1969). e degree of aid required varies by
jurisdiction. In some jurisdictions, motorists may be required to notify
police or may be required to render reasonable aid. “Reasonable” may be
dened by case law.
e U.S. Supreme Court has held that the government does not have
a duty to protect citizens from private violence (Deshaney v. Winnebago
City Social Services Department, 1989; Klein and Orlo, 1993). When the
state took custody of a young boy, and failed to prevent him from being
exposed to his father’s violence pursuant to a modied visitation order,
the boy brought a civil action. e court held that it was a not a substan-
tive Due Process violation for the county to permit visitation. Taking
custody of the boy with the desire to protect him from violence did not
create a “special relationship” that created an additional or heightened
duty. e state does not have to protect children from dangers that it did
not create. e court reasoned that perhaps if the state had limited the
child’s ability to protect himself from his father, then perhaps a greater
duty would have been owed.
Even though pregnant mothers do not owe a high duty to fetuses,
they owe some. is is discussed in Chapter 14 and Chapter 16. Moth-
ers may have a duty to receive assistance during childbirth that is ade-
quate to ensure safe delivery. If neglecting to receive proper care and
medical attention during delivery results in a child’s death during birth,
then a mother may be held culpable for involuntary manslaughter. In
one case, an eighteen-year-old mother may have known that she was
pregnant; but, she never sought care and lived in a state of denial for
several months during her pregnancy (U.S. v. Riley, 1997). Late in her
pregnancy, she went to a hospital emergency room because she was expe-
riencing excruciating pain. While doctors were waiting for lab results
from her pregnancy test, the woman delivered a child in the hospital
waiting room. She said that while on the toilet she experienced an
instinct to push and a child “squirted out” and hit the oor (U.S. v.
Riley, 1997, p. 606). e child immediately died from head fractures;
and the woman left the corpse covered in blood and paper towels in the
bathroom. Because a doctor had already initiated a pregnancy test, and
hospital sta knocked on the door during delivery, the court found that
the woman behaved negligently by not accepting medical assistance. She
was culpable of disregarding foreseeable consequences and negligently
impeding assistance.
106
Laws Relating to Sex, Pregnancy, and Infancy
Parents always owe the highest duty to their children. Parents have
a duty to render aid to their children. e degree of assistance required
varies according to circumstance and jurisdiction. In Romley v. Dairman
(2004), the court held that a representative could be appointed for a
minor victim if a minor’s parents or guardians did not act in a child’s best
interest. Parents who fail to believe that a defendant injured their child
may not be acting in their child’s best interest, even though a defendant is
not at fault for their child’s injury. us, parents may owe their children
a duty to believe that they were injured.
A parent-child duty exists when children cohabit with adults who are
not their legal guardians, if a relationship between the adult and child
is similar to a parent-child relationship. Psychological parents or people
entrusted with care over a child may have relationships that are similar
to child-parent relationships. At common law, these relationships raise a
duty to protect a child; and if duty is breached, then a cohabiting adult
may be convicted of criminal endangerment (State v. Hocter, 2011). In
State v. Kuntz (2000), a defendant was convicted of criminal endan-
germent after he swung his girlfriend’s baby headrst into a crib. e
six-month-old baby sustained serious bodily injury. e court found that
children who live with cohabiting adults are owed a duty. At common
law, wives were not obligated to report husbands’ felonies; however, wit-
nessing felony child abuse obligates mothers to render aid (e.g., inform
the authorities). Mothers who fail to render aid may be convicted of abuse
or aiding the defendant (Hanson, 2014).
Once a person begins to render aid, assistance must be administered in a
safe and reasonable manner. Behaving reasonably under the circumstances
(i.e., duty) may require people to respond to and be aware of many factors.
People “acting in loco parentis . . . [are liable for] creating a substantial
risk of harm to [a child]’s health or safety by violating a duty of care, pro-
tection, or support” (State v. Johnson, 2009, p. 1). ey may be liable for
other charges when “the violation . . . result[s] in serious physical harm to
[a child]” (State v. Johnson, 2009, p. 1). In several cases, defendants have
been charged with criminal endangerment for failing to call for emergency
assistance for infants; and excessively attempting to treat or resolve medical
issues without emergency care. Sometimes courts hold defendants respon-
sible for poor responses only after defendants cause injuries to infants and
then attempt to treat them or take them to a hospital. Failing to take an
infant to the nearest hospital and opting for a more distant hospital in
another state may be a factor in a conviction for child endangerment.
Parental Duty, Child Maltreatment, and State Control
107
Defendants may choose to delay emergency responses when they believe
that it will minimize evidence of their crimes. For example, fractures to an
infant’s bones may begin to heal after one week. People who delay more
than a week to bring infants to the hospital may be hiding evidence.
However, failure to call immediately for emergency care may not be
sucient evidence of gross negligence demonstrating reckless disregard
for an infant’s life (Davis v. Commonwealth, 2012). In one case, a defen-
dant observed unusual spit-up. e defendant patted the child’s back and
swept the child’s airways. He changed the childs diaper twice and bathed
the child. He called and consulted with the childs regular caregiver. He
attempted to administer CPR for approximately 15 or 20 minutes to the
child, who appeared to be distressed. Finally, he called 9-1-1. His actions
may have demonstrated that he did not ignore the child. He did not avoid
calling 9-1-1 because he was grossly negligent or wanted to hide evidence
of abuse.
Gross and wanton reckless disregard for human life is judged under an
objective standard. A defendant must know or should have known that
his actions would probably result in an infants death or injury (Ferguson
v. Commonwealth, 2008; Kelly v. Commonwealth, 2004; Mosby v. Com-
monwealth, 1996). Negligence is generally a civil matter. us, criminal
negligence requires recklessness that demonstrates callous disregard for
human life and probable injury or death (Bell v. Commonwealth, 1938;
Keech v. Commonwealth, 1989; Wright v. Osborne, 1940). Failing to call
9-1-1 immediately is not necessarily heedless shirking of legal duty, espe-
cially if a defendant sought advice and rendered emergency aid (Tubman
v. Commonwealth, 1986). Wantonness is manifested by arrogant, merci-
less, inhumane, reckless, or unjust violation of others’ rights or feelings.
In some jurisdictions, those who render aid that results in harm may
be excused civilly and criminally. ese are known as Good Samari-
tan laws. People may be discouraged from attempting to render aid
if they believe they would be held liable. us, Good Samaritan laws
are policy-based. However, aid must be rendered in a reasonable man-
ner. It cannot be grossly negligent or reckless. Once assistance begins,
a rescuer may be obligated to continue rendering aid if the victim will
be in a worse position because of the initial attempts. If charged with
criminal endangerment or criminal recklessness, a defendant may only
claim a Good Samaritan defense by admitting to the elements of a crime
(Shaw v. Texas, 2007). e elements include the physical acts (i.e., actus
reus) and the mental state (i.e.,mens rea). e law provides a defense for
108
Laws Relating to Sex, Pregnancy, and Infancy
good faith, reasonable attempts to administer emergency medical care.
A Good Samaritan defense is a justication that follows a confession.
e conduct and mental state are not negated by the defendant who
invokes the defense. If a defendant denies intent to injure a child, then
the defendant may not be able to use a Good Samaritan defense.
In Shaw, a grandmother could not claim a Good Samaritan defense of
shaking her grandchild if she shook her grandson and hit his head against
objects. e government argued that, in fact, she shook and struck her
grandson because she was angry. His injuries led to his death. She admin-
istered CPR to resuscitate him after inicting the injuries. She claimed
that CPR inicted the injuries. She did not believe that these actions were
the only way to administer CPR; yet, she knew that she might cause head
injuries. erefore, she was not entitled to a Good Samaritan defense. Yet,
attempting to render aid or administer CPR may be considered a mitigat-
ing factor when a person cannot claim a Good Samaritan defense and is
convicted of criminal endangerment (Cathey v. State, 2010).
Criminal Abuse
Child abuse is a serious crime. Scholars and legislatures have analyzed
whether corporal punishment, humiliation, and other severe forms of
discipline constitute child abuse. In some jurisdictions they may. How-
ever, allegations of abuse must be determined on a case-by-case-basis; and
often, facts are considered under the totality of the circumstances (Fla.
Stat. § 827.03, 2014). Clear instances of abuse may involve intentional
physical or mental injury to a child. An actor need not be a parent to
commit child abuse. Intent may be determined by the reasonable likeli-
hood that a child would be injured. Individuals who actively encourage
others to mentally or physically harm children are also culpable of child
abuse. Some intentional abuse may be legally justiable. For example, a
mother was beaten and shot to death by her intimate partner (Hastings,
2014). As she was being abused, she placed her baby inside a toilet and
covered the infant with her body. Her intentions were likely to protect the
child, who survived but had a traumatic head injury. Under normal cir-
cumstances, placing an infant in a toilet may be life threatening; and, in
this case, it may have caused a head injury. However, in this circumstance,
the mother did not act maliciously. Malicious punishment or willful tor-
ture may be aggravated abuse. Some jurisdictions do not protect fam-
ily members from psychological abuse or mental injury. In jurisdictions
Parental Duty, Child Maltreatment, and State Control
109
where children are protected from mental injury, the government may
require evidence of substantial impairment to prove injury. Aggravated
child abuse is a rst-degree felony; willfully abusing a child without caus-
ing great harm is often a third-degree felony.
When child abuse is reported to a tip hotline, hotline operators notify
sta of whether a protective investigation must promptly be conducted
onsite. Allegations of abuse are also reported to local law enforcement.
If allegations of abuse are substantiated and investigators have probable
cause, then the accused party will be charged. e allegedly abused child
will be placed in state custody or with a temporary guardian; a great deal of
evidence is required for removal (Nicholas v. Scoppetta, 2004). e depart-
ment may oer services to families who have been cleared of any serious
allegations of mistreatment. For example, families may receive therapy;
transportation; clothing; and food.
When intimate partners and children have been abused, they may
need to ee their homes (Hardesty, 2011). Research among lesbian cou-
ples shows that decisions to report abuse and seek formal help correlate
with victims’ connections with informal networks. ese ndings are
generalizable to all kinds of victims of domestic violence; but same-sex
couples may experience greater diculty protecting their children due to
stigmatization of homosexual parents.
Fetuses under State Control
States have some interest in fetal health and well-being. A Wisconsin court
held that a viable fetus is a person who cannot be abused (State v. Kruz-
icki, 1995). e court discussed dicta from Roe v. Wade (1973), explaining
that the states legitimate interest in protecting fetal life becomes su-
ciently compelling when a fetus is viable. Wisconsin law protects at-risk
children. Wisconsins court said that in light of the government’s interest
in protecting potential children, Wisconsin law applied to viable fetuses;
and, that the government has an interest in making the womb a safe envi-
ronment for viable fetuses. Fetuses are not legal persons, but they may be
assigned a guardian ad litem by the court. e court also discussed State
v. Black (1994), where a defendant committed feticide in violation of a
statute prohibiting anyone other than a mother from intentionally killing
an unborn child. e Black court held that the government had an inter-
est in protecting all unborn children from being killed by anyone other
than the mother, who may legally terminate a pregnancy using a medical
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Laws Relating to Sex, Pregnancy, and Infancy
procedure. e court also discussed Puhl v. Milwaukee (1959), where a
pre-viable fetus was injured in a car collision. In either Black or Puhl, one
way to limit the states interest could be to determine whether a fetus was
injured post-viability; the other way is to invoke the states interest if the
injured child is born alive irrespective of when the injury occurred. e
court highlighted public policy, stating that injured fetuses should not be
deprived of their ability to be born. us, each jurisdiction may delimit
when the states interest is suciently compelling.
A juvenile court may have jurisdiction over a viable fetus for a few rea-
sons; however, government custody may place fetuses, infants, and moth-
ers at risk. First, the state may have jurisdiction if a juvenile is adjudicated
delinquent (In re K.E.A., 2012). Delinquent environments threaten
fetuses’ well-being, but juvenile detention also increases risk; thus, juve-
nile court should not assume control of fetuses unless their health and
safety are at serious risk of harm. A fetus that is in an unsafe environment
or is substantially at risk warrants governmental assumption of guardian-
ship. At-risk environments may include unstable and violent environ-
ments. A juveniles refusal to follow a guardians or parent’s advice may
indicate instability; however, minors are emancipated from their parents
with respect to medical decisions for fetuses. Some states require minors
to seek permission from their parents to abort unless seeking permission
would result in harm (e.g., domestic violence) (Wood, 2014). In some
cases, judicial bypass may permit abortions when guardians or parents
cannot be asked for consent. us, a second way that a court may have
jurisdiction over a fetus is judicial bypass. Judicial bypass may be denied
if minors are insuciently mature to have abortions; yet, pregnancy may
result in foster parents surrendering foster children to the state. us, a
third way is when a minor mother lives in state care. Children born to
minor mothers may be forced to live in state custody with their mothers.
In general, children in foster care and state custody are targeted for
sexual exploitation; thus, infants are at increased risk for abuse irrespec-
tive of whether the entry point is delinquency or state custody (State v.
Steer, 1986).
A mother’s threat against a fetus may lead to a state taking custody of
a baby. In one case, a mother required medication due to severe mental
problems that included seizures, narcissism, bipolar disorder, and explo-
sive disorder (In re D.W.M., Jr., 2014). e babys father was mentally
retarded and was incarcerated for manslaughter and aggravated child rape.
e mother stopped taking medication during pregnancy; thus, she began
Parental Duty, Child Maltreatment, and State Control
111
resisting medical advice and threatening self-harm and harm to the fetus.
She threatened to drown herself if doctors did not deliver her baby pre-
maturely. Because she was a high risk, doctors institutionalized her and
delivered the baby three weeks early. e Department of Childrens Services
(DCS) was notied, and they investigated the parents’ home, which was
lthy, cluttered, and infested. e mother neglected to feed her newborn
and to keep the infant healthy. DCS led a petition for dependency and
neglect in juvenile court. When the child was four days old, DCS removed
the baby and placed the infant in foster care. e infant was ordered to
be a dependent of the state. DCS planned to adopt the child or reunify
him with his parents. Reunication required parents to maintain a stable
home environment; complete parenting classes; adhere to a mental health
treatment plan; and submit to supervised therapeutic parenting sessions.
Even though both parents complied with the parenting plan, DCS led a
petition to terminate parental rights due to parental mental incompetence.
Neglect and Abandonment
Neglect results when a parent or caregiver fails to provide care, supervi-
sion, or means to maintain a child’s well-being (Fla. Stat. § 827.03, 2014).
is may include failure to provide food, clothing, health care, shelter,
or supervision; or to prevent a child from being abused or neglected by
another person. Generally, abandonment may result when a parent fails
to contact a child or provide any money to the minor for a specied
amount of time (e.g., one year). Neglect may traumatize children. Some
of the most violent members of society attempt to mitigate their crimes
by claiming that they were abused or neglected as children; or their moth-
ers used intoxicating substances during pregnancy (Brendel and Soulier,
2009; Sochor v. State, 2004 ). us, some serious eects of neglect are not
localized to families; they are diused onto society at large.
A study of 400 women in Appalachian New York State and 1,139 in
Memphis, Tennessee measured whether certain demographic characteris-
tics are prevalent among postpartum mothers who develop conduct dis-
orders and antisocial behavior (Olds et al., 1998). Researchers found that
among New Yorkers, 85 percent of them were either minors, unmarried,
or of low income. In Memphis, 65 percent were low-income minors. Par-
ticipation in the research program reduced risk in three capacities. First,
mothers were less likely to abuse substances during pregnancy. is is dis-
cussed further in Chapter 13. Second, mothers were less likely to maltreat
112
Laws Relating to Sex, Pregnancy, and Infancy
their children. ird, persistent reliance on government aid, family size,
and closely timed pregnancies were reduced. e presence of a single
factor increased risk for antisocial behavior and conduct disorders, but
co-occurrence signicantly increased risks for delinquency, violence, and
crime. Prenatal and early childhood programs that include home visita-
tion may also reduce risks.
Criminal justice system responses and situational factors may aect
outcomes of neglect. Researchers found that women with cocaine
dependence who neglect their children, but retain custody, are dier-
ent from cocaine-addicted mothers who lose custody (Brogan, 2013).
Poor, urban, cocaine-addicted mothers who lost custody of their infants
experienced greater postpartum impairment, including psychological
and functional impairment. Non-custodial mothers were likelier to have
risky sex, employment problems, and experience homelessness. Yet, one
reason that mothers neglect children is the diculty of both working and
caring for children; thus, women who lost custody also found it dicult
to attend drug treatment programs while caring for their children. us,
custodial mothers were less likely to have received any drug treatment.
More than mothers who retained custody, mothers who lost custody
experienced somatoform and aective disorders, psychosis, distress, and
childhood trauma. Traumatic experiences included neglect and physical
abuse; thus, neglect, like abuse, may be a cycle in some womens lives. For
example, a 10-month-old infant was abandoned at a train station (AOL,
2014, July 8). Her mother was a prostitute who drove a stolen Mercedes
and was facing charges on numerous prostitution arrests. e baby was
examined by doctors, but they found that the child suered no trauma.
However, the child’s father, who was unaware that his child had been
abandoned, indicated that the child’s mother had a history of trauma.
He attributed her actions to trauma, saying “I think its because she had
a tragic past. . . . She was holding all of that in.
CHAPTER 13
Pregnant on Drugs
Delivery
Over the past 20 years, approximately 90 percent of female drug abus-
ers have been of childbearing age (Saloum, Epstein, and Frost, 2012).
Anesthesiologists may encounter drug users or abusers who are enter-
ing labor or during emergencies (e.g., fetal distress or placental abrup-
tion). Because drug use and drug abuse are possible, and increase risk to
patients, anesthesiologists may screen patients for risk factors, including
premature labor, absence of prenatal care, and alcohol use. Risk factors
could correlate with use of cocaine, opioids, amphetamines, and mari-
juana. Pregnant patients who use or abuse substances are very likely to
lie or play down their substance consumption. Suspiciousness may be
appropriate and demonstrate best practices. Nonjudgmental questioning
may be necessary to verify suspicions. If patients disclose drug use or
abuse, but anesthesiologists do not respond appropriately, then criminal
charges may be brought, depending on the level of negligence. In some
jurisdictions, doctors can face some of the same charges used to prosecute
mothers who harm fetuses in utero. Civil remedies may also be permitted
under wrongful-death statutes. Civil recovery for wrongful death may
be possible if patients die due to anesthesia, irrespective of their personal
drug use (Glenn v. Performance Anesthesia, 2011). Doctors are not liable
for fetal death if termination was intended and lawful; but doctors may be
liable if patients die due to negligently or recklessly administered anesthe-
sia that departs from the professional standard of care. Doctors need not
be incompetent to be grossly negligent (Kearl v. Board of Medical Quality
Assurance, 1986).
In the past, especially before abortion was legal, numerous criminal
and civil actions were brought on behalf of patients who died as the
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Laws Relating to Sex, Pregnancy, and Infancy
result of illegal abortions. Doctors, anesthesiologists, and unlicensed
practitioners have been charged with murder, attempted illegal abor-
tion, and other related charges. In some cases, courts were tasked to
decide whether illegal abortions or anesthesia were the proximate cause
of patients’ deaths. Jurors in one case found that the precise cause of
death was unknowable; thus, reducing the charge to aggravated bat-
tery. In another case, a victim was anesthetized with sodium pentothal
(People v. Jackson, 1963). e defendant began the abortion and likely
internally punctured the victim. e defendant administered atropine
and Dilaudid, and then gave the victim sodium pentothal. e victim
stopped breathing, but rather than take her to a nearby hospital or con-
tact the police, the oender attempted to revive the victim for more than
one hour. e victim died from bilateral pulmonary congestion caused
by sodium pentothal. Death was unforeseeable and accidental in this
case, even though sodium pentothal is a strong and dangerous drug that
should only be administered in hospitals when nurses may attend to
patients. e defendant claimed that the anesthesia was an intervening
and superseding cause; and that the puncture wound was not the proxi-
mate cause of death. If the puncture wound, created during a felonious
illegal abortion, would have caused the victim to die, then the defendant
would have been guilty of second-degree murder. However, if the anes-
thesia killed the victim, then the defendant would have been guilty of
manslaughter because the sodium pentothal superseded the causation of
the puncture wound. In another case, a defendant was tried for murder
(Huntington v. San Francisco, 1907). e victim likely died from anes-
thesia administered during a surgical operation. e defendant denied
having knowledge of the victims pregnancy. e defendant also denied
intending to perform an abortion. e prosecution contended that an
instruction for manslaughter was inappropriate because the defendant
had knowledge of the pregnancy and intended to perform an abortion.
us, the victim was murdered. However, the defendant was convicted
of manslaughter.
Addicted Mothers
In the past 25 years, several hundred mothers in more than 30 states have
been prosecuted for harming fetuses with substances (Ala. Code § 26-15-
3.2, 2011; Alaska Stat. § 11.51.110, 2011; Del. Code Ann. tit. 11, § 1102,
2011; Haw. Rev. Stat. § 709-904, 2011; Idaho Code Ann. § 37-2737A,
Pregnant on Drugs
115
2011; Ky. Rev. Stat. Ann. § 218A.1441-1443, 2011; La. Rev. Stat. Ann.
§ 14:93, 2011; Minn. Stat. Ann § 609.378, 2011; Murphy, 2014; N.D.
Cent. Code § 19-03.1-22.2, 2011; Nev. Rev. Stat. § 453.3325, 2011;
Ohio Rev. Code Ann. § 2919.22, 2011; Or. Rev. Stat. § 163.575, 2011;
Utah Code Ann. § 76-5-112.5, 2011; Wyo. Stat. Ann. § 6-4-405, 2011).
Laws vary about whether women may be prosecuted for using alcohol or
drugs during pregnancy; or whether use must be extreme or result in harm
to fetuses. Some laws mandate women cannot knowingly consume sub-
stances or excessive quantities of some substances that result in harm to
fetuses; but other laws require women to avoid any recreational substance
use during certain months (Gonzalez, 2014; Mohney, 2014). e legality
of substance use or substance abuse during pregnancy may turn on a few
issues (Collins v. State, 1994; Commonwealth v. Welch, 1993; Herron v.
State, 2000; Hillman v. State, 1998; Johnson v. State, 1992; Kilmon v. State,
2006; People v. Bedenkop, 1993; People v. Hardy, 1991; Reyes v. Superior
Court, 1977; State v. Aiwohi, 2005; State v. Ashley, 1997; State v. Deborah
J.Z., 1999; State v. Dunn, 1996; State v. Eagle Hawk, 1987; State v. Geth-
ers, 1991; State v. Gray, 1992; State v. Luster, 1992; State v. Reinesto, 1995;
Ward v. State, 2006; Washoe County v. Encoe, 1994).
Drug-using mothers in various jurisdictions may experience signi-
cantly dierent outcomes. First, states’ treatment of fetuses as legal per-
sons may aect whether mothers’ substance use can be held by statute
to harm fetuses (Neil, 2014). If fetuses are not persons, then they may
not be protected under specic statutes protecting people from harm.
Even when personhood is not granted to viable fetuses, though, legisla-
tures may or may not specically protect them from particular forms of
abuse (e.g., murder or criminal recklessness) (Miss. Code Ann. § 97-3-19,
2006; State v. McKnight, 2003). Second, drug use may be distinguish-
able from addiction. Addiction may not be criminalized, but possession
may be prosecuted; and addiction may be treated. ird, jurisdictions
may distinguish between substances (e.g., alcohol, Schedule 1 drugs, and
Schedule 2 drugs). Schedule 1 drugs include illegal drugs (e.g., cocaine,
and methamphetamines). Schedule 2 drugs include highly addictive pre-
scription drugs (e.g., OxyContin) and other prescription medication.
Fourth, cases may turn on degree or intent of exposure. Mothers have
been prosecuted for exposing fetuses to controlled substances (Ala. Code
§ 26-15-3.2, 2011; Murphy, 2014). Chemical endangerment laws mainly
relate to exposure of children to fumes or byproducts of drug production,
but statutes can be applied to a variety of scenarios. If children die after
116
Laws Relating to Sex, Pregnancy, and Infancy
being exposed to controlled substances, then mothers may face felony
charges and ten years’ incarceration (Ala. Code § 13A-5-6(a)(1), 2011;
Murphy, 2014).
Pregnant women may produce, possess, and consume alcohol moder-
ately in public in certain jurisdictions (Fentiman, 2009). Several jurisdic-
tions (e.g., South Dakota, South Carolina, and Wisconsin) criminalize
alcohol consumption by pregnant women (Stogner, 2010). Some legisla-
tures have addressed the problem after courts found that existing statutes
could not protect fetuses from mothers’ alcohol abuse because fetuses
were not humans (State v. Deborah J.Z., 1999; Wis. Stat. Ann. § 48.193,
2008). Under some laws, women must know that they are pregnant to be
held liable. Other statutes may require that women be oered voluntary
treatment prior to legal intervention.
Pregnant addicts may prioritize addiction over motherhood (Mohapa-
tra, 2011; Murphy, 2014; Player, 2014). In some cases, addiction causes
women to fear legal repercussions more than health repercussions. us,
they avoid disclosing addiction to health care providers because they fear
that disclosure may serve as an entry point into the criminal justice sys-
tem. For example, an alcoholic woman in Wisconsin was charged with
attempted rst-degree intentional homicide and rst-degree reckless
injury because she went into labor while drinking at a bar. She reported
alcoholism to a nurse at the hospital. She was convicted by the lower
court, but the Wisconsin Court of Appeals overturned the case because
they found that, at that time, a fetus was not a person protected by Wis-
consins criminal statutes under which the woman was charged and con-
victed. It is estimated that approximately 25 percent of women consume
alcohol while pregnant; thus, it is probably likely that women underreport
consumption to avoid potential entanglements with the law. However, in
some cases, health care providers warn addicted mothers and encourage
them to control addictions or to seek treatment (Reyes v. Superior Court of
San Bernardino County, 1977). Reporting may only result after warnings
fail, but women may not be aware of legal nuances before they disclose.
Mental illness may cause women to abuse substances. Mental illness
and pregnancy are discussed further in Chapter 16. Expectant moth-
ers may self-medicate depression. In some cases, women may become
depressed, delusional, or suer from mental illness related to substance
abuse. Women who attempt to commit suicide during pregnancy by con-
suming poison or substances may be charged in some cases. In one case,
a woman in Indiana swallowed poison and was charged with murder and
Pregnant on Drugs
117
attempted feticide after her child was born alive but died shortly thereaf-
ter (Shuai v. State, 2012). However, she pled to a lesser charge of criminal
recklessness.
Civil commitment is typically reserved for persons with mental illness,
but addicted mothers who cannot control addictions during pregnancy
may be civilly committed. Mothers who are addicted to alcohol may be
no exception to these statutes (Stogner, 2010). Addiction alone does not
qualify as mental illness. However, many states permit civil commitment
of addicted persons. Some proponents argue that civil commitment is a
positive alternative to incapacitation through incarceration. Critics argue
that this measure inappropriately labels or stigmatizes addiction as men-
tal illness. In Indiana, the applicable statute denes mental illness as “a
psychiatric disorder that substantially disturbs an individual’s thinking,
feeling, or behavior and impairs the individual’s ability to function . . .
[including] alcoholism, and addiction to narcotics or dangerous drugs
(Ind. Code § 12-7-2-130, 2014). us, the statute specically includes
addiction for any persons, and does not inappropriately label or civilly
commit addicts (Derringer, 2010). In Minnesota, civil commitment stat-
utes are narrowed because the legislature delimits certain drugs to which
a qualifying “chemically dependent person” may be addicted (Fitzpatrick,
2012). e list includes alcohol, opiates, cocaine, PCP, amphetamines,
and marijuana. Civil commitment is not a criminal measure, it is a civil
remedy; thus, it does not violate stare decisis holding that defendants can-
not be singled out and prosecuted because they are substance abusers
(Robinson v. California, 1962).
In many states, substance use and substance abuse could be grounds
for child removal in family court. Mothers who are unable to provide
proper care for infants may be ordered to participate in programs for drug
treatment; may lose custody; and may have parental rights terminated,
in addition to facing criminal charges (Kilmon v. State, 2006). However,
criminal remedies are not available in every jurisdiction; and the court
may be limited to civil remedies (Cochran v. Commonwealth, 2010).
Critics have argued that fathers should be held responsible in civil and
criminal cases if they were intoxicated or addicted to drugs (e.g., cocaine)
that passed through sperm into embryos contributing to birth defects
(Pacillo, 1997). Birth defects are discussed in Chapter 10. Others argue
that consequences should be imposed on fathers who knowingly impreg-
nated a drug-addicted woman. ough these arguments raise important
gender equality issues, in some legal contexts they may be considered to
118
Laws Relating to Sex, Pregnancy, and Infancy
be specious. e law mainly addresses child abuse and neglect resulting
from fathers’ actions after children are born, and reserves control over and
responsibility for fetuses to women (Daniels, 1997).
Addicted Infants
Black Letter Law regarding womens rights and obligations during preg-
nancy is not well synthesized. A woman seems to be under no obliga-
tion to care for an early pregnancy (Dolgin, 1991). In some jurisdictions,
pregnant women may have the right to damage an embryo through the
legal use of alcohol, caeine, tobacco, and other drugs that could poten-
tially cause lifelong deciencies to fetuses. If a woman decides to carry a
child to term, then she may no longer be free to consume substances that
could endanger her pregnancy at any point. Moreover, some commenta-
tors have suggested that a woman who has the right to abort does not
automatically have a fundamental right to engage in embryo abuse, which
could manifest as a defect later (Gonzales v. Carhart, 2007; Roe v. Wade,
1973). e greater power to kill the fetus may not necessarily include
the lesser power to injure it. Case law seems to show that as long as the
infant’s injuries or deciencies are not evident near the time of birth a
mother will not likely be held liable when defects manifest later (Dolgin,
1991). If any defect (e.g., addiction) is noticeable at birth, the state may
attempt to causally link the mother’s drug use during pregnancy to the
deciency and prosecute her. e loss of viable pregnancies (e.g., still-
births) due to the consumption of substances during pregnancy has also
been prosecuted in some states (Cusack, 2011; Mills, 1998; Vestal, 2007).
Many laws designed to protect fetuses from addiction and harm were
formulated in response to the “crack baby” scare of the 1980s and 1990s
(Reese and Burry, 2004). e scare caused the public and legislatures to
believe that fetuses exposed to drugs in utero would be born as “little
junkies” who suer long-term predisposition to addiction, permanent
brain damage, and impeded development (Shannon and Walker, 2008).
“Crack babies” are somewhat mythical, but some eects of drug exposure
may be serious and can be long term. Schedule 1 drugs include illegal
drugs (e.g., cocaine and methamphetamines) that have been linked to
abnormalities in infants. ese drugs have been the main ones blamed
for “crack babies”; however, myths about the long-term physical eects
of drug use on persons born to mothers who abused drugs (e.g., “meth
babies” and “crack babies”) have been dispelled in recent years.
Pregnant on Drugs
119
Infants who suer from Neonatal Abstinence Syndrome experience
withdrawal symptoms (Tennessee Department of Health, 2014). With-
drawal may be immediate and may continue for as long as a similarly
addicted adult would experience withdrawal. Infants may be addicted
to opiates or drugs prescribed to treat addiction. For example, mothers
treated for heroin addiction may deliver infants addicted to methadone.
us, attempts to treat pregnant drug addicts can result in separate addic-
tions. Tennessees legislature recently criminalized substance use by preg-
nant mothers to protect fetuses and deter abuse (Pub. Ch. 820, 2014).
In 2013 in Tennessee, 921 infants were born drug-addicted; at midyear
in 2014, 253 infants had been born addicted (Gonzalez, 2014). Many
of these infants were addicted to Schedule 2 painkillers. Addiction not
only results from abuse of highly addictive Schedule 1 and Schedule 2
drugs (Tennessee Department of Health, 2014). Infants may also become
addicted when mothers use prescribed medicine as directed.
ough the “crack baby” scare has passed, many mothers now give
birth to infants who are addicted to prescription drugs, which are Sched-
ule 2 drugs. In South Florida, the epidemic is particularly inamed. Pain
clinics in that region supply individual addicts with hundreds of pain
pills each week; and addicts’ children are born addicted to oxycodone
and other heavy medications. Infants suer from withdrawal and other
serious health complications. Pharmaceutical drugs are classied accord-
ing to their potential level of risk to fetuses when used as directed by a
doctor; pregnancy categories are A, B, C, D, and X, ranging from least
risky to most risky. Oxycodone taken during early pregnancy pertains to
Pregnancy Category B, meaning that it may have some adverse eects but
no truly harmful eects to fetuses will result. Later-term use may be des-
ignated Category C because risks of fetal withdrawal may increase. Some
critics suggest that these highly addictive drugs should undergo greater
clinical trials because dosages prescribed at pain clinics are much higher
than dosages in clinical trials. us, previous studies underestimate risk to
fetuses when mothers take drugs as prescribed.
Dierences between opiate and cocaine addiction, infants’ gender,
and environmental factors have helped to tease apart generalized pan-
demonium about “crack babies.” Sequelae of cocaine exposure among
infants and toddlers, including anthropometric growth, neurobehavior,
sensory functioning, language development, cognitive development, and
motor skills, has been be less severe than among opioid-exposed infants
in some studies (Bandstra et al., 2010; Best, Segal, and Day, 2009).
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Opioid-exposed infants may suer from Neonatal Abstinence Syndrome
and more neurobehavioral decits in comparison to cocaine-exposed
infants, whose decrements may be more subtle. e month during which
particular drugs are administered also eect behavioral and cognitive out-
comes for infants (Dow-Edwards, 2010). Heroin-addicted mothers may
be more amenable to addiction treatment after month six of pregnancy
through to the month following birth. Women who can be detoxied
from heroin prior to giving birth may have nonaddicted infants (Comer
and Annitto, 2004). Mothers addicted to cocaine may be less predictable
in their habits. In some sense, that unpredictability may pose a greater
threat to society and contribute to the stigmatization of “crack babies.
Babies born addicted to heroin are likelier than nonaddicted infants to
experience trauma (Carroll et al., 1995; Emanuel, 1996). Trauma may
result from withdrawal, as well as from being in medical isolation and
treatment during early infancy juxtaposed with neglectful parenting later
on. Trauma may later correlate with inability to meaningfully process
emotional experiences, self-medication, mental illness, cycles of abuse,
and encounters with the criminal justice system. Caregiving environ-
ments clearly play a role in how the eects of drug exposure limit or
are overcome by children. Learned behavior, social challenges, and aca-
demic deciencies may stymie development and wellness of drug-exposed
infants during their teen years. Environment may aect genders dier-
ently. Females may become hyperresponsive to stressed environments,
even though several studies indicate that male fetuses are more aected
than female fetuses by cocaine use.
In several states, prosecutors have attempted to prosecute mothers
under statutes designed to protect children when children have been born
addicted to drugs. Some courts have held that the denition of “child”
in child protection statutes does not include fetuses; and that the harms
aecting fetuses do not meet statutory elements (State v. Geiser, 2009;
State v. Wade, 2007). Alleged harms inicted on fetuses during preg-
nancy or on children before they were born do not satisfy certain statutes
designed to protect children after they have been born. For example, child
endangerment may be an inapplicable charge (Kilmon v. State, 2006; State
v. Martinez, 2006). In some jurisdictions, prosecution for reckless endan-
germent has succeeded; but, in other jurisdictions, it has failed (Ward v.
State, 2006). Courts may nd that endangerment results when mothers
are reckless irrespective of whether children have been born. Depend-
ing on statutes’ wording, transferring drugs to a child may result when
Pregnant on Drugs
121
children consume or absorb drugs in utero (State v. Aiwohi, 2005). Many
states implicitly analogize miscarriages to fetal overdose and specically
permit parents to be charged with manslaughter; however, other states
have overturned convictions for manslaughter unless infants die from
harm inicted after birth (Collins v. State, 1994; Reinesto v. Superior Court,
1995; State v. Dunn, 1996). Courts and legislatures may dene “victim
or “person” in applicable statutes to include fetuses. In one case, a mother
was convicted based on drug use during her pregnancy, but her convic-
tion was overturned. e infant died days after birth, but the Hawaii
Supreme Court held that at the time of the allegedly criminal conduct,
the fetus was not a person protected by the statute (Reyes v. Superior Ct.,
1977; State v. Aiwohi, 2005).
Drug Treatment and Rehabilitation
Drug abuse is linked with approximately two million arrests annually
(Brendel and Soulier, 2009; Brogan, 2013). is represents approxi-
mately 14 percent of all arrests. Approximately 80 percent of drug-related
arrests are for possession; and of those, almost half are for marijuana pos-
session. Mishandling prescription drugs has become a leading cause of
incarceration and death (Prison Legal News, 2013). Women are arrested
and incarcerated for drug-related oenses at much lower rates than men;
and womens crimes are often less violent. Most incarcerated women have
committed nonviolent drug crimes, such as taking drugs not prescribed to
them. Yet, retrospective data analysis demonstrates that over the past few
decades women may be disproportionately incarcerated for drug crimes.
us, drug treatment programs to divert women from prison may be nec-
essary. A couple of states mandate prenatal screening for substance abuse;
but most women are not obligated to undergo pregnancy or drug testing
during criminal proceedings. us, identifying pregnant substance abus-
ers can be dicult or limited by court authority and the scope of charges.
In general, drug abuse and child neglect have high rates of comorbidity.
Of 513 children exposed in utero to drugs, 30 percent were later involved
in tips about child abuse or neglect; and authorities substantiated nearly
20 percent of the reports (Brendel and Soulier, 2009). Almost three quar-
ters, 72.6 percent, of reports were about toddlers. Among families served
by child protective services, substance abuse correlates with sexual abuse
and child mistreatment in between 33 percent and 66 percent of fami-
lies. Cycles of drug abuse potentially can result if mothers’ addictions are
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Laws Relating to Sex, Pregnancy, and Infancy
untreated (Brendel and Soulier, 2009). Mothers who expose infants to
their drug addiction likely demonstrate poor judgment and poor coping
skills. Children exposed to drug-addicted mothers may tend to experience
behavioral misconduct and attention deciency. If children do not receive
adequate environmental feedback, they may also develop poor coping
skills and insucient decision-making skills that lead to risky behavior
and self-medication to alleviate trauma. Children who experience mater-
nal drug abuse in utero are also more likely to be placed in state custody
or out-of-home care due to their mothers’ arrests; convictions; drug abuse
by mothers’ intimate partners; pregnancy complications; lack of prenatal
medical service; mental illness; and trauma from drug exposure and envi-
ronmental factors. Addicted mothers in need of addiction treatment may
lack housing, education, employment, or any network of support. is is
also discussed in Chapter 12.
Some jurisdictions may attempt to treat substance abuse rather than
punish it. Womens treatment may be emphasized by courts during preg-
nancy because the government has an interest in protecting fetuses and
families whenever possible (Brendel and Soulier, 2009). e state’s inter-
est in protecting fetuses may be met through incapacitation, but treat-
ment promises to work in childrens best interest after birth. To ensure
compliance, women may be held in noncriminal, institutional settings
before delivery. Women may be restricted to hospitals, but may not
receive substance abuse treatment prior to delivery. Mental illness and
institutionalization are discussed in Chapter 16.
Courts, legislatures, and organizations struggle to strike a balance
between tough-on-crime attitudes, policies that serve the community,
considerations about the best interests of children, equal protection of
men and women, and how to most eciently prevent or signicantly
reduce recidivism risks (Brendel and Soulier, 2009). Some courts feel that
treatment programs aid the court by providing greater information and
insights about oenders’ past substance treatment, mental illness, prog-
noses, and family history. Mixed-gender facilities may oer less intensive
treatment programs than programs designed exclusively for women.
Programming designed for women may be targeted and comprehen-
sive (Brendel and Soulier, 2009). Specic programming aims to identify
womens greatest motivators; and thus, improve their chances for success.
Womens motivation tends to predicate completion of drug abuse treat-
ment programs. Completion of programs indicates to courts that women
are working to remove obstacles, responsibly care for children, overcome
Pregnant on Drugs
123
stigmatization, and better manage resources. More than half of states
have funded substance abuse treatment programs designed for pregnant
women. Some facilities involved only treat women or may oer child
care service. More often than not, women who receive these services tend
to be substance free six months following program completion. Family
involvement in therapy and treatment programs increases success because
it provides a network for continued and long-term rehabilitation, and
because it decreases stigmatization.
In drug court, defendants may be diverted into treatment (Brendel
and Soulier, 2009; Cusack, 2013). Courts establish conditions for diver-
sion, for example, whether to include certain misdemeanants, recidivists,
or felony oenders. Diversion and compliance are usually voluntary. Yet,
incarceration may result if participants fail to participate and stay clean.
Patients are supervised throughout treatment, and progress is reported to
the drug court. Treatment may be long term (e.g., one year). Treatment
may address patients’ comorbid issues (e.g., mental illness).
Child welfare needs may be integrated into programming (Conly,
1998). Community-based responses can be benecial if they coordinate
multitiered programming and support systems, including services for par-
ticipants’ GED, transportation, childrens school needs, child care, cloth-
ing, counseling, and food. Drug courts may act as program liaisons and
record keepers. Programs may steer the focus from drug abuse to family
therapy and community reintegration. Likelihood of sobriety increases
when intimate partners and local relatives support recovering addicts.
In diversion programs, frequency of drug testing may increase as
pregnancy progresses (Marchand, Waller, Carey, 2006). For example, a
program treatment in Kalamazoo, Michigan tests twice each week, but
increases testing to three times each week during later phases of program-
ming for pregnant women. Pregnant women in phases two and three of
the program are tested with phase one participants. Additional testing
of patients increases pressure and accountability to protect fetuses, and
permits sta to discover sooner whether fetuses are at risk for damage.
In Brooklyn, New York, the Kings County Drug Treatment Alternative
to Prison (DTAP) program has successfully reduced drug abuse, improved
public safety, and eciently managed resources (Swern, 2007). First,
DTAP participants plead guilty to a felony. en, a plea is drafted that
includes a prison term to be imposed if substance abuse treatment fails.
Some exceptions permit readmission for low-risk participants because
relapse is recognized as being a part of recovery for some addicts. Program
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Laws Relating to Sex, Pregnancy, and Infancy
completion entitles defendants to withdraw guilty pleas and to have
charges dismissed. A ve-year longitudinal study of DTAP found that
within two years after completing treatment, participants were 67 percent
less likely to encounter the criminal justice system than those who had
not been treated (Correctional Association of New York, 2012). e pro-
gram seems to be scally ecient. Likelihood of employment increased by
350 percent for recovering addicts after program completion, and DTAP
costs half the average rate of incarceration. DTAP saves money each year;
between approximately $30,000 and $60,000 is saved for each participant
who is diverted from serving one year of jail. Residential treatment is the
most expensive treatment, and yet it costs several thousands of dollars less
than the lowest average cost of incarceration. New Yorks Oce of Alco-
holism and Substance Abuse Services (OASAS) oers several drug treat-
ment programs, including a few residential programs. More than half,
55 percent, of women in correction facilities in New York lived in New
Yorks low-income suburbs prior to incarceration. More than three-
quarters, 88 percent, of female inmates self-reported substance abuse,
including alcoholism. One survey found that approximately 62 percent
of women using OASAS programs were pregnant during treatment or
had children. However, only 2.5 percent of OASAS-certied programs
oered parents residential care. us, residential care for families is likely
insucient, which may aect incarceration rates.
Problematically, OASAS has certied less than 10 percent of its drug
treatment programs specically to help women. is gure may repre-
sent a general need for women-centered drug treatment programming
nationwide. One study found that approximately 62 percent of females
admitted to OASAS-certied programs in 2006 were mothers or were
pregnant. Programs designed for male addicts may be ineective for
women, especially mothers or expectant mothers, because many females
who abuse substances engage in self-medication to treat past trauma and
abuse. Almost three-quarters, 70 percent, of female inmates in New York
self-reported history of abuse during childhood. is rate is signicantly
higher than reports of abuse among male inmates. Only 12 percent of men
reported that they had been abused as children. In New York state prisons
in 2008, 2,821 women and 59,823 men were incarcerated. Of these, 905
women and 12,520 men committed drug oenses. us, OASAS certi-
cation focuses on male oenders because they are more numerous; yet,
many jurisdictions, including New York, could likely increase holistic and
targeted programs for women for greater success.
CHAPTER 14
Parents
Child Support Debts
Child support is a debt owed to a child. e right to receive child sup-
port is a right held by a child. Parents are obligated to pay child support.
Like alimony, student loans, and taxes, child support is not dischargeable
(Landry and Mardis, 2006). Child support is a civil matter. However, par-
ents who disobey court orders to pay support can be incarcerated under
a civil contempt charge (James, 2002). Courts do not punitively send
parents who are in contempt to “debtors’ prison” because the govern-
ment cannot incarcerate people for failure to pay debts (Weinberg, 2012).
However, contempt charges can be used coercively (James, 2002). Almost
all states permit some form of incarceration for failure to repay money
to the state; and many permit incarceration for child support arrearages.
Penologically, the state’s reasons for incarcerating debtors who fail to pay
child support and comply with court orders may be distinguishable from
incarcerating persons who have unpaid private debt.
Paying minimums may be acceptable before parents are incarcerated,
but it may be unsatisfactory after incarceration if parents have outed
orders. Parents who are incarcerated may be required to pay lump sums
or balances before they can be released; some denite incarceration terms
may be imposed for defying orders. Scholars argue, and some courts
have held, that indenite incarceration pending repayment amounts to
debtors’ prison, which was abolished (Chadwick v. Janecka, 2002; James,
2002). Yet, incarceration may be indenite for failure to pay, not only
because child support is owed to a child, but because child support pay-
ments and compliance with the law is a debt owed to society under the
social contract (Cusack, 2014; U.S. v. Ballek, 1999). Prison inmates work,
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Laws Relating to Sex, Pregnancy, and Infancy
but these jobs do not necessarily suciently serve to repay child support
debts (Levingston and Turetsky, 2007).
In addition to state-level coercion, federal laws may also be coercive.
For example, debtors with more than $2,500 in arrearages may be denied
passports, have passports revoked, or be limited in their uses of passports
(42 U.S. Code § 652, 2014). is law had been challenged, but was
upheld because, although it restricts interstate travel, it does not violate
Due Process (Eunique v. Powell, 2002). Willful interstate arrearages of
more than $5,000 or unpaid debt for more than one year can result in
a federal ne and incarceration for up to six months; and more than
$10,000 in arrearages or more than two years of interstate unpaid child
support can result in federal imprisonment for up to two years and a ne
(18 U.S. Code § 228, 2014). Convicted oenders will be ordered to pay
restitution in the total amount owed to children.
Incarceration correlates with open child support cases. Relationships
between incarceration and child support arrears can be cyclical. For exam-
ple, in Massachusetts one study found that among all parolees sampled
almost all of the inmates, approximately 94 percent, had at least one
open child support case (oennes, 2002). Arrears may accrue before
and during incarceration. Inmates’ debt to society is compounded and
complicated by the fact that they are poor. e sampled population owed
approximately $15 million to custodial parents and $15 million to the
State of Massachusetts. On average, 40 percent of the cases in oennes
study involved public assistance; and 66 percent previously involved pub-
lic assistance; but only between 8 and 13 percent never involved public
assistance. Most active orders are for $200-$400 per month. is group
of 2,191 prisoners, 806 parolees, and 354 inmates living in a house of
corrections typically owed interest between $4,000 and $5,000; and the
average penalty debt was approximately $2,000. Due to poverty, limited
income, and, possibly, limited habilitation among incarcerated samples,
parolees were much less likely to be able to repay debts and make pay-
ments at higher sums. irty percent of house of corrections popula-
tions paid; and 40 percent of parolees made voluntary payments that
included wage assignments, direct payment, and unemployment inter-
cepts. Eighty-nine percent of prisoners made no payments within a year
of the study. Most inmates who entered prison already had child support
arrearages; were unmarried; and had histories of domestic violence. us,
cycles of violence may interrelate to cycles of poverty, debt, arrearages,
Parents
127
and incarceration, which could likely aect or perpetuate into successive
generations (Patterson, 2008).
DNA
DNA evidence has law, policies, and procedures. Paternity and DNA
tests can be administered during criminal investigations, casework, or
post-conviction. Evidence may help determine guilty parties or identify
victims (DDC, n.d.). Despite the merits of forensic evidence, one study
found that forensic evidence in rape cases is auxiliary, nondeterminative,
and inconsistent (Sommers and Baskin, 2013). From the time that a vic-
tim les a report to the nal disposition of a case, a victims injuries and
willingness to testify correlate most strongly with case outcome.
DNA testing is accepted by the criminal justice system as reliable evi-
dence. However, chain of custody issues, contamination, or faulty testing
can lead to false convictions. It is widely known that routine DNA testing
has caused backlog in forensic labs. Many forensic labs are understaed
to deal with the rise in DNA requests (Cantillon, Kopiec, and Claw-
son, 2009). Some forensic units attempt to reduce backlog by outsourc-
ing; in fact, all but a small fraction of labs outsource DNA testing. Most
outsourced DNA testing relates to post-conviction cases as opposed to
casework. It has been proposed that backlog could be resolved if parties
who are interested in expediting particular cases paid for forensic test-
ing. One study found that 28 percent of investigators at Miami-Dade
Police Crime Laboratory Bureau, Minnesota Bureau of Criminal Appre-
hension Forensic Science Service, Pennsylvania State Bureau of Forensic
Services, Philadelphia Police Forensic Science Bureau, Phoenix Forensic
Crime Laboratory, St. Louis Metropolitan Police Department Crime
Laboratory, Virginia Department of Forensic Science, and Washington
State Patrol Forensic Laboratory Services wish to outsource backlogged
criminal post-conviction paternity DNA tests; and 21 percent would like
to outsource paternity DNA tests in open criminal cases. However, many
times, they cannot aord it. Between 40 and 60 percent of labs require
federal assistance to process, within 90 days, DNA requests relating to
violent crimes. States continue to demand more DNA evidence, thus
thousands of outsourced samples are likely to continue being outsourced
at once. is strain could diminish accuracy or the value of timely results
in criminal and appellate cases. Chain of custody is extremely important,
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Laws Relating to Sex, Pregnancy, and Infancy
especially because overworked labs could potentially switch samples lead-
ing to false conviction (Cusack, 2014).
Defendants have argued that some expert testimony regarding DNA
results violates the Confrontation Clause if the expert who conducted
the tests is not present in court. Experts who submit DNA results to
the courts may be used as witnesses against the defendant. When cases
are outsourced, it can be costly to bring the analyst into court to deliver
expert testimony; thus, the prosecution may use expert witnesses other
than those who analyzed the DNA samples. Under the Sixth Amend-
ment, the Confrontation Clause guarantees the accused the right to cross-
examine witnesses brought against them. In Indiana, the state supreme
court held that results of DNA testing conducted by experts may be pre-
sented in court by an expert’s colleague (Criminal Law Reporter, 2009). In
Pendergrass v. State, a child victim aborted a fetus; and the state performed
DNA tests on the aborted fetus (2009). Victims of sexual assault almost
always abort fetuses conceived during rape (Reshef et al., 2011). Fetuses,
placentas, or other materials may be sent to forensic laboratories for pater-
nity testing. Maternal contamination of placental tissues, the fetuss age,
and the condition of the tissue are factors in successful DNA testing. e
defendant in Pendergrass was convicted of child molestation after DNA
evidence demonstrated that he fathered the aborted fetus (Pendergrass v.
State, 2009). e Pendergrass court held that a qualied expert delivered
the testimony in a reliable and professional manner, which satised Sixth
Amendment requirements (Pendergrass v. State, 2009).
When a victim has been killed, maggots may be collected from the
corpse (Chávez-Briones et al., 2013). Frequently, researchers can deter-
mine from the rate of maggot growth the time of a victims death. DNA
analysis may be performed on the contents of maggots’ stomachs. When
a victims remains are unidentiable, then DNA retrieved from mag-
gots’ stomachs can be compared to people believed to be the suspected
victims parents. In some cases, ndings could exonerate parents, or give
them peace of mind; but in other cases, it could further incriminate
them. However, this under-studied technique could be subject to attack
for unreliability until it is better established.
e Michigan Supreme Court decided People v. Zajaczkowski (2012).
In that case, DNA evidence demonstrated that two people who engaged
in intercourse were unrelated by blood; the pair was previously believed
to be half-siblings through their father. e defendant was under the
care of their legal father for two years during the 1970s. His biological
Parents
129
mother divorced his legal father; and the next child was born long after,
in the 1990s. e pair never lived together; and they did not believe that
they were related at the time they had intercourse. e state held that a
blood relationship was not required to convict for incest. e govern-
ment argued that civil presumption of legitimacy satised the elements.
e lower court sentenced the defendant to between 11 and 35 years in
prison. e Supreme Court held that the pair was not related by blood;
and legal ction could not override how the pair viewed their relation-
ship (i.e., unrelated by anity). Civil presumption of paternity could not
establish the blood relationship required by the statute.
One court found that signicant likelihood of paternity established
by a DNA test can prove that a defendant had sex with a victim. e
defendant in Butcher v. Commonwealth (2002) cohabited with his inti-
mate partner. e intimate partner was the mother of a seven-year-old;
and the coupled bore twin girls together. When the twins were born, the
defendant began sodomizing, penetrating, and fondling the older daugh-
ter, who was at the time ten years old. Regular abuse continued for ve
years until the victim conceived at fourteen, and subsequently gave birth.
DNA testing found that the defendant was 388 times more likely than
a random male in the defendant’s race to be the father (i.e., 99.74 per-
cent). e defendant argued that using a paternity DNA test to prove that
intercourse occurred amounted to bootstrapping. e defendant argued
that administration of the test erroneously presumes that sex occurred.
e court explained that DNA tests begin with a 50/50 presumption
that intercourse occurred. DNA tests compare a defendant’s sample to
other members of a defendant’s race. e test determines the chance that
a defendant is the father instead of any other randomly selected person.
Neither the defendant nor randomly selected people are specically pre-
sumed to have had sex with a victim by the test. If the court followed
the defendant’s logic, and began with a zero percent chance of sexual
intercourse to presume his innocence, then there would be no likelihood
that the defendant committed the crime. e court found that Constitu-
tional presumption of innocence does not require a factnder to presume
impossibility. It only requires the jury to believe that the defendant did
not commit the crime until they have heard all of the facts.
DNA paternity testing in civil cases can be used as evidence in crimi-
nal cases. In Michigan, a man who had a vasectomy believed that he
impregnated his girlfriend (People v. Nugent, 2007). He signed an a-
davit of paternity, but later discovered that his 14-year-old son fathered
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his girlfriend’s child. e court held that the adavit could be voidable
because the man was mistaken about the fact that he was the father,
which caused him to sign the adavit. However, the court also held
that equities could require him to remain the child’s legal father in the
best interest of the child. Because the childs biological father was only
14 years old, the girlfriend was charged with, and pleaded no contest to,
criminal sexual conduct. She chose to terminate parental rights to the
child. Paternity and statutory rape is discussed in Chapter 14. In Mis-
souri, a putative father was ordered by a family court to submit to pater-
nity DNA testing in a child support case (Sanders v. Sauer, 2006). On
several occasions, he refused to submit to testing. A judgment was entered
presuming his parentage, which legitimated the child. e legal process
of legitimation was later questioned by the defendant in a criminal non-
support case. e criminal court relied on the family court’s ndings to
prove that the defendant was the child’s father and satisfy the elements
of the crime. e defendant claimed that reliance on the family court’s
order deprived him of Due Process because a criminal court should have
used a reasonable-doubt standard rather than the civil court’s order. Mis-
souri’s Supreme Court held that the court’s ndings could be relied on
because the criminal matter arose from failure to obey the family courts
order. Furthermore, the defendant had numerous opportunities to sub-
mit to a DNA test for the child support case.
Rape, Visitation, and Child Support
Rapists are likely to have parental rights to visit children conceived from
rape. Congressional Representative Debbie Wasserman Schultz spon-
sored federal legislation to incentivize states to pass legislation terminat-
ing parental rights of rapists who conceived children through rape (H.R.
2772, 2013). e Rape Survivor Child Custody Act cites studies showing
that approximately 25,000 to 32,000 pregnancies result from rape each
year in the United States. e Act points to studies demonstrating that
among women who become pregnant from rape, approximately one-third
to two-thirds will keep and raise their children. Civil ndings of rape may
be more eective than criminal ndings because only ve percent of rapes
are successfully prosecuted. In family law, a standard of clear and convinc-
ing evidence is used by most states to terminate parental rights; and it has
passed the court’s muster (Santosky v. Kramer, 1982). Schultzs legislation
Parents
131
points out that only six states permit rape victims to petition the court to
terminate rapists’ parental rights. ese states require clear and convinc-
ing evidence, not the proof beyond a reasonable-doubt threshold required
for rape convictions. Clear and convincing evidence is a standard used
to terminate parental rights for child abuse, neglect, or abandonment.
Best-interest factors may be considered. One factor includes domestic
violence between parents or sexual abuse. However, a single incident of
sexual abuse between parents may be insucient to terminate parental
rights. Yet, rape between persons uninvolved in domestic situations may
be a special case. Nonconsensual insemination, reproductive coercion,
intimate partner rape, and marital rape are no less serious than stranger
rape or date rape, but the totality of the circumstances may more clearly
call for termination of parental rights for cases of stranger rape or date
rape. Nonconsensual insemination is discussed in Chapter 15.
e Rape Survivor Child Custody Act cites legislative intent to pro-
tect victims from psychological trauma, which can negatively inuence
children and impact maternal abilities. Schultz also states that legislation
is necessary to prevent rapists from blackmailing victims to remain silent
at the threat of increased or total parental custody modications. e
bill would authorize the Attorney General to provide participating states
with grants. e bill does not specify whether rape would be dened
to include forcible rape, nonconsensual sex, sexual assault, and statu-
tory rape. State denitions vary, and based on some states’ denitions it
seems that women who voluntarily conceived, but were victims of statu-
tory rape, could take advantage of the Act. Furthermore, the legislation
only requires states to terminate fathers’ parental rights, which completely
denies the possibility that women rape men and conceive children; or
that female rapists should be treated equally with men. However, many
states acknowledge that female oenders may force males to penetrate
them. is form of victimization is discussed in Chapter 15. e Rape
Survivor Child Custody Act does not aect a biological fathers duty to
pay child support. Public policy holds that rapists owe child support to
children. Childrens rights to child support are discussed in Chapter 14.
However, men who are statutorily raped, and cause pregnancy voluntarily
or involuntarily, also owe a duty of child support to children. e duty
is owed to children, not to violators, thus critics have pointed to poten-
tial inequity in state laws obligating victims to pay child support and in
Schultzs legislation.
132
Laws Relating to Sex, Pregnancy, and Infancy
Emancipation
“Babies having babies” describes unemancipated minors becoming par-
ents. Emancipation is a technical and somewhat unsettled area of family
law that may overlap with criminal law. Generally, minors become legal
adults at 18 years old. However, they may not be viewed by the govern-
ment as being emancipated until they are young adults (e.g., 21 years old
or 19 years old) for some matters, like duty to provide medical care or
child support.
Children who are independent, self-sucient, and demonstrate a his-
tory of being abused may be emancipated by court order. In general, ter-
mination of parental rights in cases of abuse, abandonment, and neglect
does not automatically emancipate children. Evidence in emancipation
petitions must suciently demonstrate that parental rights are not in the
best interest of a child and a child does not need to become a dependent
of the state. e court may consider best-interest factors and other rel-
evant factors, which may include a minors age; a child’s mental health; a
child’s medical needs and physical health; parents’ ability and willingness
to feed, shelter, and clothe a child; parents’ providence of medical care;
parents’ mental illness; and parents’ physical health. Typically, minors
become emancipated when facts show that they can care for themselves
and parents have breached their roles or are unable suciently to care for
children due to circumstances beyond their control. A minor’s indepen-
dence is usually insucient for legal emancipation without a showing
that parental rights should be terminated. When children are indepen-
dent, but parental rights should not be terminated, then courts may order
implied partial emancipation. Parents must support children, but chil-
dren can retain their own employment wages.
Many states permit unemancipated children to consent to sex prior
to adulthood (e.g., 17 years old). However, these statutes do not emanci-
pate minors. Emancipation and statutory rape are discussed in Chapter
1 and Chapter 14. ere is no particular age required by the Constitu-
tion at which states must recognize minors’ consent to have sex; however,
courts may consider a child victims age to determine whether a victim
was capable of knowingly consenting to sex acts (People v. Lloyd, 2011).
When child rape is alleged, courts may consider a victims age as one fac-
tor for determining whether sex was knowing or unknowing (i.e., volun-
tary or involuntary). A victim may be so young as to give notice that sex
is unknowing. us, sex may be rape, not statutory rape. For example, a
Parents
133
13-year-old victim willingly went for a drive with a defendant. e defen-
dant and victim engaged in intercourse, but at trial, they disagreed about
whether sex was voluntary. e victim hid details about the incident from
her mother until she discovered that she was pregnant and required an
abortion. In that case, the court held that a child’s age, 13 years old,
was insucient to prove a defendant’s knowledge because the victims age
alone did not necessarily inform the defendant that the victim was unable
to knowingly consent (People v. Lloyd, 2011; People v. White, 2012).
Generally, minors are emancipated by marriage. Some prepubescent
children may be emancipated by marriage when legal marriages per-
formed abroad are recognized in the United States (10 U.S.C. § 920 -
Art. 120, 2014). Minors who are 17 years old become emancipated if
they are permitted to serve in the military by parental consent (10 U.S.C.
§505(a), 2014). However, their home states may not consider them to be
emancipated adults for all purposes. If children are independent and self-
sucient, then they may be emancipated by their home states (Bradford
v. Futrell, 1961). Courts may not agree that entering a military academy
emancipates a minor like entering service (Howard v. Howard, 1992). Yet,
some courts have decided that enrollment in a military academy is the
same as entering active duty with the military (Porath v. McVey, 1994;
Zuckerman v. Zuckerman, 1989). Nevertheless, military cadets cannot
be married, have children, or be pregnant without special authorization.
Each state delimits ages for marital consent. Many states delimit marital
consent between 15 and 17 years old (Md. Code Family Law §2-301,
2014). Judicial waiver can allow minors over a certain age (e.g., 13 years
old) to marry. Many jurisdictions permit pregnant minors to be married
or permit marriage with parental consent. In some cases, marriages may
not be valid. For example, marriage may be invalid when a foreign minor
wed in a polygamous marriage enters the country as a second wife. To
determine whether a minor is emancipated, courts may question whether
minors are self-supporting. Married minors may consent to medical
treatment. Emancipated and unemancipated minors may consent to psy-
chological treatment depending on the jurisdiction; but, in some cases,
they cannot refuse psychological treatment if their parents consent to it
(Cusack, 2013; Md. Code Health-General §20-104). Unemancipated
minors can consent to medical treatment for their own children. Paren-
tal consent is typically not required for unemancipated children to test
for sexually transmitted diseases (STDs). Minors may receive emergency
treatment for sexual assault injuries without parental consent; however,
134
Laws Relating to Sex, Pregnancy, and Infancy
parents may be notied. Medical practitioners may be required to disclose
some information, but some information may be protected (Md. Code
Health-General §20-102, 2014).
Pregnancy does not emancipate minors because it does not demon-
strate that a minor can independently provide for herself. However, mar-
riage implies that a spouse, whether male or female, will honor his or
her duty to support a pregnant wife if necessary. In certain jurisdictions,
minors may consent to prenatal medical decisions if they have achieved
the legal age for consent; this age may be the same as the legal age for
sexual consent. In some states, minors are legally emancipated for limited
purposes, such as medical decisions relating to pregnancy (i.e., prenatal
care); this may or may not include decisions about abortions (In re Smith,
1972). Some states may require parental notication or consent for medi-
cal decisions (e.g., abortion or pregnancy). Minors in several states are
not required to notify parents or obtain consent. Parental notication
statutes may require that one parent is notied before minors perform
abortive procedures. Criminal charges against physicians could result
when consent is not obtained. Physicians performing abortions may
be required to notify parents of minors’ wishes. Some jurisdictions may
permit physicians to perform abortions without parental notication if
minors are constructively emancipated (e.g., do not live with a parent
or guardian); or when diligent eorts have failed to notify parents (Md.
Code Health-General §20-103, 2014). Jurisdictions may permit doctors
to perform abortions without notication if minors would be physically
or emotionally abused by parents as a result of notifying them; if minors
are suciently mature and capable to grant informed consent; or when
notication is not in a minor’s best interest.
Notication requirements can pose an undue burden on women
(Planned Parenthood v. Danforth, 1976). us, judicial bypass can be
granted in jurisdictions where doctors are not permitted to bypass noti-
cation or consent requirements. Independent minors who can under-
stand the decisions to abort may be granted bypass. ese policies imply
that minors who are not mature enough to understand a decision to abort
may be required to give birth. Minors as young as 13 years old have been
held to be mature enough to abort in the third trimester, while older teens
with early pregnancies have been held to be too immature to abort (Ertelt,
2014). A minor who lives in the custody of and under the care of a non-
parental adult, who is not the child’s legal guardian, may receive authori-
zation for abortive procedures under certain circumstances depending on
Parents
135
jurisdictional variations (Md.Code Health-General §20-105, 2014). Par-
ents and guardians may not force emancipated or unemancipated minors
to undergo abortive procedures or to place their children for adoption.
Emancipated and unemancipated minors may independently place chil-
dren for adoption. Parents of unemancipated minors may be notied of
proceedings to terminate parental rights.
Among certain populations, pregnancy rates may vary. Where employ-
ment rates, availability of parents’ insurance, and social stability are higher
(e.g., children in military families), pregnancy rates may be drastically
lower than among the general population (Burr et al., 2013; Muram et
al., 1995). Typically, childbearing among teenagers highly correlates with
poverty, social and family instability, poor education, substance use, and
unemployment. us, many of these minors may not be stable enough to
be emancipated or seek judicial waiver for an abortion. Many may rely on
their parents for support, and their children will rely on their grandpar-
ents for support. Yet, Guttmacher Institute reports that a relatively high
percentage of unwed teenage pregnancies may be intended (1998). Sexual
or physical abuse is common among childbearing teenagers. us, if their
parents’ rights are terminated or they are removed from their homes while
they are pregnant, then they may become dependents of the state.
Pregnant juvenile delinquents or juveniles who perpetrate sex crimes
that result in pregnancy may be waived into criminal court if oenses are
suciently serious (e.g., crimes that carry a life term or capital crimes);
and their children may be removed. e doctrine of parental immunity
holds that parents and children may not sue each other for tort damages
for negligence arising within parental duties. Public policy prohibits inter-
ference with parental control. For example, placing a child in “time out”
cannot be claimed as false imprisonment (Hewlett v. George, 1891). How-
ever, the doctrine may not apply if parents committed personal injuries
against the minor during sexual assault, abuse, or exploitation. Severely
abusive acts are punished by the criminal justice system; and impermis-
sible conduct can make parents liable in torts (Hollister, 1982). e doc-
trine does not apply to emancipated children (Baker v. Baker, 1953; Grant
v. Norwich Discount Liquor, 2011; Henderson v. Woolley, 1994).
CHAPTER 15
Physical Violence
Infanticide
Infanticide is usually committed by mentally ill mothers, violent fathers,
or poor families. Some parents commit suicide after committing licide.
One researcher reported that 10 percent of parents who committed li-
cide had histories of substance abuse (Eliason, 2009). Some experts believe
that this gure may be a low estimate. Substance abuse correlates with
poverty, depression, trauma, and suicide. Drugs and alcohol signicantly
correlate with crime in numerous studies, yet licide does not have a high
correlation with history of criminal behavior. Only 25 percent of fathers
and 10 percent of mothers who committed licide had any criminal his-
tory. In general, murder-suicide tends to correlate with people involved in
lawsuits; typically older couples. More than three-quarters of people who
commit murder-suicide are employed full time. However, researchers
found that, within populations that committed licide-suicide, 90 per-
cent of fathers and 30 percent of mothers were employed. us, among
mothers who commit licide-suicide, traditional suicide predictors may
not be present; but fathers’ criminal history, poverty, and other factors
may be more predictive (Nau, McNiel, and Binder, 2012). Older per-
petrators may be more likely to be aicted with mental illness. Younger
women who are unmarried may be more likely to be motivated by emo-
tional, spiritual, and social problems. When women with no history of
mental illness commit infanticide at any point during the rst year, they
may have attempted to mother the child; but then, for no relational or
socioeconomic reason, they fail to cope with motherhood. Suicide rates
are extremely low among mothers who commit neonaticide. Approxi-
mately 2 percent of mothers and 11 percent of fathers commit suicide
after committing infanticide. e average age of women who commit
138
Laws Relating to Sex, Pregnancy, and Infancy
suicide after neonaticide is 29 years old. e average age of women who
do not commit suicide after committing neonaticide is 22 years old.
In one study in the United States, half of all child murders and all infant
murders were committed by parents (D’Argenio, Catania, and Marchetti,
2013). Between 16 and 29 percent of mothers and 40 to 60 percent of
fathers are believed to commit suicide after committing licide. In some
countries, where economic licide is not routine, fathers tend to murder
their wives after committing licide, but mothers mostly commit licide-
suicide. Fathers are more likely to be violent and tend to kill the whole
family. Mothers are likelier to kill children who are younger, while the risk
of being killed by a father increases with a childs age. However, in certain
countries, fathers are far likelier to kill newborns for nancial reasons.
Several research studies indicate that nationality and culture correlate
with signicant dierences in demographic characteristics among par-
ents who commit homicide-suicide (D’Argenio, Catania, and Marchetti,
2013). One dierence is that in some cultures, it is more prevalent for
a mother exclusively to perpetrate neonaticide during or immediately
after delivery, due to her perception that she has been abandoned morally
or spiritually. In some countries, licide is more commonly performed
48 hours after delivery. Either parent may commit aggravated homicide.
Some of these cultural particularities are discussed in Chapter 17.
Among depressed mothers in one study, 41 percent thought of harm-
ing their children (Friedman and Sorrentino, 2012). Over three years,
only 7 percent of control group mothers wanted to harm their children.
However, 70 percent of mothers in the general population had explicit
aggressive thoughts about colicky infants; and 26 percent thought about
infanticide during infants’ colic episodes. A study of hospitalized Indian
women found that psychotic beliefs about a baby correlated with post-
partum infanticide behavior. Negative maternal reaction also correlated
with infanticidal behavior among Indian women with postpartum ill-
ness. Infanticide in India is discussed in Chapter 17. A pattern may exist
among women who kill their infants when mothers experience powerless-
ness, alienation, and poverty. Gender and economic prejudice may lead
to women being executed for postpartum psychosis-related infanticide in
countries that routinely practice gender-selective licide.
Dozens of nations (e.g., Italy and Canada) punish neonaticide dier-
ently from licide; and excuse infanticide with lesser charges and lower
sentences (Friedman and Sorrentino, 2012; Nau, McNiel, and Binder,
2012). Countries will charge mothers with manslaughter rather than
Physical Violence
139
homicide if mothers suered from mental illness at the time of the
crime. Laws that lower charges for mothers who kill during postpar-
tum psychosis may be based on the 1922 British Infanticide Act (Nau,
McNiel, and Binder, 2012). Jurisdictional variations within nations may
aect the outcomes of cases. For example, criminal justice responses to
infanticide in Australia vary by states (de Bortoli, Coles, and Dolan,
2013). Legislation generally provides a defense for mothers who kill chil-
dren within one year of birth if mothers are mentally imbalanced due to
the eects of childbirth or lactation. Laws apply equally to indigenous
and nonindigenous populations, though greater research is needed. In
some cases, infanticide results from chronic abuse or neglect that results
in fatal maltreatment (Nau, McNiel, and Binder, 2012). It may also
result from altruism and belief that death is in the child’s best interest.
Altruistic motives may be common, especially in licide-suicide. ese
beliefs may be related to abuse, poverty, acute psychosis, or other factors.
us, infanticide relating to delusions can only be exculpated if moth-
ers had not knowingly abused or neglected the infant. In cases where
mothers’ drug abuse results in delusions or mothers repeatedly murder
infants on subsequent occasions, courts are far likelier to charge women
with murder even when their behavior relates to delusional thinking
because that behavior likely demonstrates knowledge, willfulness, and
depraved selshness rather than momentary inability to conform to the
law (NBC, 2014).
In the United States, laws do not address postpartum psychosis and
infanticide. Yet, many women who kill during postpartum psychosis pre-
vail on a theory of Not Guilty by Reason of Insanity because women
do not know the wrongfulness of their actions during a delusion; and
they cannot conform their behavior to the law. However, some defen-
dants struggle to defend themselves if courts focus on the importance of
the Diagnostic and Statistical Manual of Mental Disorders, fth edition
(DSMV). Postpartum psychosis is not listed as an illness in DSMV, but it
is specied as an onset for psychosis. Following the case of Andrea Yates,
in which she believed that the devil would possess her children if she did
not murder them, Texas introduced a bill that was widely criticized. Yates
case is also discussed in Chapter 6. Women may be sentenced to as little
as a term of probation and mental health treatment. Some factors fuel-
ing opposition were gender bias; prejudice against persons with mental
illness; and claims that postpartum mothers could nd justice in insanity
defenses.
140
Laws Relating to Sex, Pregnancy, and Infancy
In one study of postpartum cases in the United States using the
Model Penal Code denition and the M’’Naughten test denition of
criminal insanity, 39 cases of licide were analyzed in which women
prevailed on a theory of Not Guilty by Reason of Insanity (NGRI).
Among the defendants, 72 percent had received mental health treatment
in the past; 56 percent planned to commit suicide with or after licide;
49 percent suered from depression at the time that they killed their
children; more than half were psychotic; 74 percent were delusional;
69 percent experienced hallucination (i.e., auditory hallucinations);
82 percent were diagnosed with mood disorder involving psychosis or
with a psychotic disorder. More than half, 54 percent, had altruistic
motives; 33 percent had motives that were acutely psychotic; 5 percent
of licide resulted from maltreatment; and 2 percent of mothers did
not want their children. Even when court evaluations determined that
mothers did not want their children, a verdict of NGRI may be found.
In some cases, mothers may be intellectually handicapped, but not
criminally insane. ey may be sentenced for capital oenses. However,
mentally ill individuals cannot be executed under the Eighth Amend-
ment and Atkins v. Virginia (2002) because penological aims would not
met. Low IQ (e.g., below 70 IQ) cannot be the only measure of mental
retardation; but low IQ may be one factor in why women kill infants
(Hall v. Florida, 2013).
In another study of 24 U.S. cases of postpartum psychosis and infan-
ticide, 33 percent of defendants were found NGRI; 17 percent received
terms of probation; 42 percent were incarcerated; but fewer than 10 per-
cent received life sentences. NGRI defenses are only raised in 1 percent of
felony cases, and they are unsuccessful in 90 percent of cases; but they are
more successful among cases involving infanticide (Friedman and Sorren-
tino, 2012). Approximately one-third of NGRI pleas among postpartum
women were successful in one study; and approximately one-half were
adjudicated NGRI by agreement between opposing counsels. However,
some postpartum mothers have been sentenced to death. ere is much
greater variability in the outcome of U.S. cases than in jurisdictions with
infanticide laws (Spinelli, 2004). For example, England’s Infanticide Law
requires probation and psychiatric treatment. is is a strong reason for
why the DSMV should list postpartum psychosis. Incarceration may fail
to treat women and may plant criminal tendencies where none existed
previously (Pansarasa, 2004).
Physical Violence
141
Pregnant Battery Victims
Battery and sexual battery of a pregnant woman may aggravate charges.
Additional charges may result depending on factors like, gestational
weeks, injury to a fetus, and oender’s knowledge of a victims pregnancy.
Generally, sexual assault is aggravated when an oender threatens to use
or uses a deadly weapon (Conn. Gen. Stat. § 53a-70a, 2013). e law
may require that oenders intended to seriously or permanently disgure
the victim. e elements of aggravation may be met when an oender
destroys or injures a victims organs, psyche, or other parts of a victims
body. Aggravation may also result when oenders demonstrate extreme
indierence to human life or conduct that is so reckless that it creates a
risk of death. is could apply to threats or actual transmission of sexu-
ally transmitted diseases (STDs). Use of deadly instrument may include
destructive liquids (e.g., HIV-infected semen) (Idaho Code § 18-907,
2012). However, caustic chemicals (e.g., acid) used to irritate or poison a
pregnant victim are not considered to be “chemical weapons” (i.e., weap-
ons of war) (Bond v. U.S, 2014; Robinson, 2014). A person may commit
aggravated battery against a victim if the criminal act causes great bodily
harm or permanent disgurement to an embryo, fetus, or pregnant vic-
tim. Pregnancy may result from sexual assault or may exist at the time of
sexual assault.
e mere fact that a fetus is not a permanent part of the mother’s body
does not lead to the conclusion that it is not a part of her body, within
the meaning of [aggravated sexual assault statutes] Conn. Gen. Stat.
§§ 53a-70a(a)(2)and 53a-59(a)(2), at least for the period of time that it
is attached to and dependent upon the mother (State v. Sandoval, 2003,
p.524).
Embryonic tissues from a ve-week pregnancy were considered by a court
to be part of a victims body; and, therefore, a “member” of the victims
body because they are attached to the victims body (State v. Sandoval,
2003, p.524).
Law enforcement and volunteer-based crisis intervention may be ill
equipped to respond to aggravated assault involving pregnancy. Partici-
pants may be unaware of the applicability of jurisdictional laws because
injuries involving conception or harm to fetuses may not be visible. Yet,
pregnant victims of intimate partner violence (IPV) may be more likely
142
Laws Relating to Sex, Pregnancy, and Infancy
to receive volunteer-based victim services. In one study victims’ reports
of IPV to police were analyzed to determine whether police activated
volunteer-based crisis intervention (Kernic and Bonomi, 2007). e sam-
ple included 2,092 adult females who had been attacked by male intimate
partners. In 415 incidents, approximately 20 percent, police activated vic-
tims’ services. Crisis intervention services were more likely when victims
were married to abusers or were pregnant. Victims in certain precincts
were more likely than others to receive crisis intervention services. is
nding reinforces variability of criminal justice responses to criminal
impregnation and pregnant women. Nonconsensual insemination and
similar violations are discussed in Chapter 15.
Pregnant Transgressors
Pregnant women may be charged with crimes against fetuses if they insti-
gate attacks or engage in reckless behavior while pregnant. ough not
intending to hurt their pregnancies, women may be charged for domestic
violence or for batteries against unborn children even if no harm results
(720 ILCS 5/12-3.2, 2014). In several states, statutes designed to protect
fetuses from illegal abortions could be used to prosecute women who
self-harm (Rovner, 2012). For example, a pregnant woman intentionally
ingested rat poison during an attempt to commit suicide and feticide. e
child was surgically delivered, but died a few days later. e woman was
charged with attempted feticide and murder. e case raised questions
about federal law and states’ laws in the majority of states criminalizing
fetal injury and death. Many laws fail to distinguish between harm arising
from third-party conduct and injury caused by pregnant mothers. Legis-
lation in Utah proposed to include reckless behavior from conception to
delivery resulting in stillbirth or miscarriage (Paltrow, 2010). Legislation
could have included prosecution of women who knowingly remained
in abusive relationships or failed to receive prenatal care. Prenatal duties
and lack of maternal obligation to embryos is discussed in Chapter 12.
Legislators allegedly intended to target illegal abortions, but the bill was
written in response to a case in which a minor female hired an attacker to
induce a miscarriage. e teen and fetus survived the attack.
Normally, self-harm is considered to be a public health issue, but when
pregnant women self-harm, it may be a criminal justice issue (Rovner,
2012). For example, in South Dakota assaulting a pregnant woman may
lead to criminal battery charges for assaulting an unborn child if a fetus
Physical Violence
143
is born alive after an assault (S.D. Ann. § 22-18-1.3, 2014). e govern-
ment may argue that laws are necessary or important to protect govern-
ment interests in fetal health. However, laws should be narrowly tailored
to only protect viable fetuses, and not to impose duties on women to care
for embryos that impinge in rights to privacy found under the Fourteenth
Amendment and Roe v. Wade (1973). For example, in Kansas, Alexas Law
protects all human life beginning at gestation. However, the law speci-
cally excludes acts committed by pregnant women (Kan. Stat. 21-5419,
2014). Several states have narrowed legislation to punish physical attacks
against pregnant women, but do not exclude self-harm. In Iowa, a woman
was arrested after she received emergency care following a fall down stairs.
Hospital sta alerted police after the woman disclosed that she fought
with her husband and then became light-headed and fell. Hospital sta
believed that she attempted suicide and feticide. She was held in police
custody for two days. Prosecutors could not proceed with the case because
she was not in a suciently advanced stage of pregnancy to satisfy statu-
tory requirements. On one hand, Iowa failed to treat potential self-harm
as a public health issue; but on another hand, they drew an appropriate
legal line to protect fetuses while not limiting womens rights.
e case in Iowa raises questions about the extent that initial police
investigation and prosecution should rely on emergency medical stas
opinions that contradict witness testimony (Cusack, 2014). If states con-
tinue to apply fetal injury statutes to reckless behavior, then they ought
to consider natural changes experienced by pregnant women that may
cause them to become more prone to injury during pregnancy. However,
public policy does not permit punishing pregnant women for automobile
accidents or restricting pregnant women from driving. Ample anecdotal
evidence demonstrates that some women become clumsier during preg-
nancy due to rapid physical transformations. Public policy does not sup-
port punishing women who are accident prone. One study found that
women in late stages of pregnancy may be more prone to car accidents
(Redelmeier, May, iruchelvam, and Barrett, 2014). Among 507,262
women who gave birth during the three-year longitudinal study period,
6,922 drivers were in automobile accidents. During the second trimester,
757 pregnant drivers crashed, which was a 42 percent increase. Nota-
bly, risk increased most steeply early in the second trimester, and lev-
eled by the third trimester. However, increases were not noted among
pregnant passengers or pedestrians involved in accidents, intentional
self-harm, falling accidents, or self-reported risky behavior. Furthermore,
144
Laws Relating to Sex, Pregnancy, and Infancy
relative to the general population, risk decreases for poisoning, burns, and
depression-related intentional self-harm (Redelmeier et al., 2014; Yadav
et al., 2013). Laws targeting fetal harm could refer suspected violence to
child protective services prior to escalating to criminal charges (Hallam,
2013). Investigators may handle incidents as family issues and refer many
pregnant women to appropriate services rather than prosecute.
Aggravated Battery and Manslaughter
Murder and manslaughter of a pregnant woman may result in murder or
attempted murder charges for unborn fetuses depending on statutes, case
law, and fetal development. Feticide may be charged. Some jurisdictions
actively prosecute, while other jurisdictions seem to reserve prosecution
for particularly egregious or high-prole cases. Charges can depend on
fetal gestational stage; and whether a child is born alive, dies in utero,
or dies subsequent to birth; or whether a mother was murdered with or
without malicious intent; and other relevant factors (Inquisitr, 2014;
Police Department Disciplinary Bulletin, 2008).
Some jurisdictions do not codify fetal murder. Where jurisdictions are
silent, the doctrine of transferred intent may apply. In one case, a young
man killed his intimate partner and his six-month-old child (People v.
Singh, 2003). He shot his child three times in the head and once in the
heart, causing four fatal wounds. He challenged paternity of this, his
rst child, but he had recently and denitely learned the child was his.
He believed that a second child would sidetrack his career plans. While
parked in a car with his family, he aimed downward and shot his intimate
partner three times in the top of her head. She remained alive during at
least one shot because she inhaled some blood before death. A two-inch
fetus with well-dened body parts and organs was in her uterus. Investi-
gators specied that the tissue had advanced beyond the embryonic stage.
Because the mother died, the fetus died from lack of oxygen. e court
held that the doctrine of transferred intent applied because the intended
target was murdered (People v. Bland, 2002). Generally, completed mur-
der of the intended target may not be required to apply the doctrine of
transferred intent. Attempted murder of an intended target mistakenly
resulting in murder of an unintended target may be prosecuted as mur-
der in the rst degree rather than murder in the second degree under
the doctrine of transferred intent because the oender possessed intent
to commit homicide and killed the second person. us, in states where
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statutes include fetuses in murder statutes, doctrine of transferred intent
may apply.
Courts may mitigate feticide, or feticide may enhance charges. Feti-
cide may not inuence courts’ sentencing for murder charges. Feticide
may be a separate charge not included in murder charges (10 U.S.
Code § 919a-Art. 119a, 2014). In one case, an oender was con-
victed of murdering his parents, his pregnant wife, and his wifes fetus
(Baird v. Indiana, 1992). He was convicted of unlawfully terminating
a pregnancy. e jury recommended the death sentence for the mur-
der of his parents, but not of his wife. e trial court held that his
wifes murder was an aggravating circumstance justifying the death
sentence for murdering his parents. Many mitigating circumstances
outweighed the aggravating circumstance. Mitigating factors include
clean criminal history; law abiding and civil conduct; church participa-
tion; steady employment; caring for his family; and military service.
e oender’s crime against his wife was mitigated by the fact that he
was under extreme mental or emotional strain, which impaired his abil-
ity to conform his conduct to the law. e appellate court found that
mental conditions inuenced his decision to murder his parents. e
defendant was operating under a grandiose delusion about becoming
wealthy and feared that his fantasy would be exposed as an unfounded
belief to his parents and wife. However, the appellate court felt that
character evidence only minimally mitigated the defendant’s conduct.
e value of clean criminal history was weighted as having a medium
value. e appellate court held that the aggravating circumstance was
very high, and thus outweighed the mitigating circumstances. Feticide
was not considered to be a relevant aggravating factor to his parents’ or
wifes murder. e defendant argued that feticide statutes were enacted
to punish illegal abortion. e court reasoned that the statute contem-
plates other punishments for illegal abortion; thus, it should be inter-
preted as a feticide statute. e statute is designed to extend homicide
statutes to protect fetuses. He argued that the statutes required specic
intent to kill a fetus. However, the statute only requires knowledge that
termination will result. Knowledge is construed as high probability
of certainty. Feticide in this case was a lesser-included oense of his
wifes murder. However, feticide is not inherently included in murder.
e information for murder of his wife did not list feticide as being
included. Unlawful termination of fetal life punished by the feticide
statute is not included in murder charges.
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Laws Relating to Sex, Pregnancy, and Infancy
Abortion Doctors
Societys willingness to punish abortion doctors is evident. Abortion doc-
tors and their agents are liable for performing abortions illegally; and for
harming women or fetuses (e.g., 22-week abortion in a 20-week jurisdic-
tion) (Segal, 2009). is is discussed further in Chapter 3. Even when
abortion doctors safely and legally perform abortions, some members of
society are willing to punish them by injuring or killing them. For exam-
ple, a rash of antiabortion sniper shootings struck Canada and western
New York during the 1990s (Yardley and Rohde, 1998). Many doctors
were murdered through windows in their homes, after years of anti-
abortion demonstrations outside their homes. Some were provoked and
attacked before they were executed. For example, one doctor was con-
fronted on Hanukkah by protesters decrying him a murderer. e doctor,
who also delivered hundreds of babies, was accused of attacking a pro-
tester with a baseball bat. e doctor was charged with a felony; but that
charge was reduced and he was ned $400. roughout the 1990s, abor-
tion clinic employees were attacked at work. For example, two employees
in Boston were killed when a gunman opened re. e 22-year-old
gunman, who also wounded ve people, was sentenced to consecutive life
sentences. e gunman killed himself in prison. Several bombs exploded
outside abortion clinics throughout the United States. For example, at
least two bombs were set at abortion clinics in Atlanta, Georgia; and one
exploded in Birmingham, Alabama, killing an o-duty police ocer. In
recent years, violence has subsided signicantly and medical patients have
received greater protection. is is discussed further in Chapter 2. Yet,
ghting continues to occasionally erupt outside abortion clinics.
Baby Rape
Sexual penetration of infants is particularly egregious because infants
are often injured and killed. In one case, an oender raped and mur-
dered an 11-month-old child (Warner v. Workman, 2011). e infant
lived with the oender, his two young children, and her mother; as well
as another toddler on occasion. One day, the victims mother left their
house while all the children and the oender remained at home. When
she returned, she saw the victim lying on a bed wearing only a diaper,
but the child had been dressed when she left. When she went to grab
the victim, the oender intervened and mentioned that the victim was
not breathing. e mother grabbed the limp victim and screamed. She
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147
ordered the oender to drive to the emergency room and performed
CPR. e victim was pronounced dead; but a nurse noticed red blood
on the victims anus, accompanied by fresh injuries. Doctors performed
X-rays and discovered two skull fractures; a depression; and two jaw frac-
tures. Combined with retinal hemorrhages discovered in the victims eyes,
the injuries likely indicated violent shaking. e doctor diagnosed sexual
abuse and physical abuse. An autopsy revealed numerous head, chest, and
abdominal injuries; the victims brain was crushed; her liver was lacerated;
and her organs were bruised. Some external bruises were in the shape of
adult ngertips (Cusack, 2015; Warner v. Workman, 2011). Blunt force
penetration likely caused six rectal tears. e victims death was ruled a
homicide. e oender complained of sore knuckles, but denied abusing
the victim. He said the victim fell on the oor and bumped her head. His
home was searched and pornography was located near a tub of Vaseline
and a container aloe vera gel. Video was cued to a clip of adult lovemak-
ing. e oender’s son observed him shaking the victim because she was
noisy; and attributed her death to his father’s violence. e oender pre-
sented witnesses who testied that the victims injuries could have been
caused by a fall. However, his young children testied that he often physi-
cally abused them (e.g., whipped them with cords). e oender was
convicted. Even though 13 witnesses testied to mitigate his sentence,
two aggravating circumstances guided the jury. ey found him to pose a
continuing threat; and they believed that his crime was heinous and atro-
cious. He was sentenced to death.
Infant as Weapons, Shields, or Hostages
Every so often, criminals use infants as weapons or shields during crimes.
Some oenders have launched infants at police, while others have directly
used infants as hostages or to shield their bodies (e.g., from being struck by
a taser). For example, one 23-year-old woman was suspected of shoplifting
clothing worth $261 from a department store (e Smoking Gun, 2013).
She hid the clothing in a baby stroller as she shopped. After realizing that
police were notied by store security, she jumped into a getaway vehicle
driven by her husband. Inside the vehicle were a four-year-old girl and a
two-year-old boy. She held her three-month-old daughter in a baby carrier
as she ed from police. While eeing, she shouted “You will have to shoot
through the baby to get me!” en she ed on foot from the car with the
carrier, which she tossed several feet in the air toward police. Rather than
148
Laws Relating to Sex, Pregnancy, and Infancy
stop to rescue the baby, who was uninjured, an ocer proceeded to appre-
hend the shoplifter, who had tripped. While bleeding from a head injury,
the woman allegedly said, “Now you motherfuckers have my blood all
over you, bitches.” Later, the shoplifter claimed that she had stolen school
clothes for her children, but she actually shoplifted womens clothes. She
was charged with felony child abuse, theft, and resisting arrest.
Nonconsensual Insemination
Nonconsensual insemination may occur under a variety of scenarios
including the following: (1) initial consent for penetration is conditioned
on parties’ mutual intent to use the withdrawal method, but one party
intentionally fails to withdraw and intentionally causes insemination;
(2) consent for penetration is withdrawn during otherwise consensual
sex prior to insemination, with sucient time for withdrawal, but one
party intentionally continues to engage in intercourse to cause insemina-
tion after consent for penetration has been withdrawn; or (3) one party
intentionally misleads the other to cause insemination (Cusack, 2012;
Cusack, 2013a; Cusack, 2013b; Cusack, 2013c). Due to jurisdictional
variations, only some sexual assault and assault laws may apply to these
scenarios. Depending on statutory language, case law, and legislative
intent, these scenarios may be prosecuted or tolerated by the criminal
justice system, or they may fall into legal gray areas.
In some jurisdictions, consent can be withdrawn during sex (In re John
Z, 2003). Denitions of “consent,” and rules about withdrawal, express
consent, express revocation, and other factors may be determinative.
Jurisdictions provide various denitions for “consent.” For example, one
denition is that “‘[c]onsent’ implies a willingness, voluntariness, free
will, reasoned or intelligent choice, physical or moral power of acting, or
an active act of concurrence (as opposed to a passive assent) unclouded
by fraud, duress, or mistake” (People v. Whitten, 1995, p. 104). “[P]osi-
tive cooperation in act or attitude pursuant to the exercise of free will”
is another denition of consent (People v. Williams, 1992). us, earlier
consent may be nullied when consent is withdrawn (People v. Roundtree,
2000). If consensual sex is occurring, and the victim actively or attitudi-
nally expresses objection or withdrawal of consent, and attempts to stop
sex, then continuation by the defendant is forcible. However, some juris-
dictions require demonstrations of force, not withdrawal of consent, prior
to penetration to prosecute oenders.
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149
Some critics of nonconsensual insemination argue that because state
laws do not require seminal emission to complete an act of sexual inter-
course, consent for sex does not automatically or presumptively grant
consent for insemination (Conn. Gen. Stat. § 53a-65, 2013). Without
express or implied consent for insemination, continuing sex to achieve
insemination could be considered to be sexual assault. In one case, the
court mentioned that it was an act of sex abuse for the defendant to
ejaculate inside of another’s orice (State v. Makekau, 2007). Ejaculation