February 01, 2013

Unborn Child a ‘Child’ for Crime of Chemical Endangerment

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Ankrom v. State, 2013 WL 135748 (Ala.)

Trial courts in unrelated but factually similar cases correctly applied criminal statute to mothers who used illegal drugs during their pregnancies, causing their children to be exposed in utero. Plain meaning of ‘child’ in statute providing penalties for exposing a child to controlled substances included unborn children based on common dictionary definitions.

Ankrom and Kimbrough, unrelated defendants, were convicted under the state child chemical endangerment statute. Both had ingested controlled substances before their children were born.

Ankrom tested positive for cocaine at and several times before the birth of her son. She was convicted of exposing him to cocaine, given a suspended prison sentence, and placed on probation.

Kimbrough gave birth to a baby boy who died a few minutes after he was born. The autopsy indicated he died from methamphetamine intoxication. Kimbrough was convicted and sentenced to 10 years in prison.

Their cases were heard independently by the Alabama Court of Criminal Appeals and both convictions were upheld. Both were granted certiorari by the Alabama Supreme Court, which consolidated the cases for appeal.

On appeal, the Alabama Supreme Court noted that the petitioners did not dispute the facts, merely the application of the law. It further noted that applying the statute to an unborn child was an issue of first impression in the state.

The offense of chemical endangerment applies where a person “[k]nowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia.”

The Court considered several arguments made by the petitioners. Petitioners argued the law was ambiguous in its application to unborn children. Thus, as a criminal statute, it should be construed in their favor.

Petitioners also argued that the legislature had not intended to make the statute apply to unborn children, as evidenced by its use of the term ‘fetus’ in other statutes and its failure to use that term or the term ‘unborn children’ in the statute. The court found this unpersuasive, noting that those statutes were specifically designed to protect unborn children.

Petitioners also argued that the fact that bills to make the statute explicitly apply to unborn children were introduced in the legislature but did not pass showed the law did not apply to unborn children. The state argued that those attempts may have failed because the statute already was thought to cover unborn children. The court concluded that these arguments were not helpful as diverging inferences could be drawn from the history.

Kimbrough also argued that the title of the statute, which describes “exposing a child to an environment where controlled substances are ‘produced’ or ‘distributed’” shows a lack of intent to apply to unborn children. She claimed ‘environment’ refers to “a person’s surroundings, to the situation in which a person lives his or her life,” not a womb. The court was not persuaded, finding the mother’s womb is a major part of an unborn child’s environment.

The Alabama Supreme Court concluded the plain meaning of ‘child’ included unborn children relying on Black’s Law and Merriam–Webster’s Dictionary definitions. The Court did disagree with the Court of Appeals’ finding that the statute only applied to viable fetuses, putting too much reliance on Roe v. Wade. Rather, the Supreme Court held the term ‘child’ unambiguously applied to all unborn children.

Based on the above, the Alabama Supreme Court affirmed the judgments of the Court of Criminal Appeals upholding the convictions.