Can I Be Criminally Prosecuted for my Pre-Natal Substance Abuse?
Mother's who abuse illegal substances during their pregnancy can now be prosecuted under federal law for criminal endangerment of their child, and also for delivery of controlled substances to a child. What is the Basis of this Federal Law?
While there originally was no specific government authority for these crimes law-makers in congress and at the state level have managed to fit existing theories of criminal law to this crime. Mothers whose prenatal substance abuse injures their newborn infants are charged under statutes concerning child abuse or endangerment and drug delivery and distribution laws. Mothers charged under these laws are also prosecuted for possession of a controlled substance on the basis of a substance's existence in the bodily fluids or organs of their infants. Who is Likely to Prosecute Me for this Crime?
A number of people may prosecute a mother for pre-natal substance abuse. First, and most important, is the local district attorney. If the substance abuse has had harmful enough effects on the child and there is strong evidence of past drug abuse a local district attorney may have a mother arrested and prosecuted. In addition, concerned relatives may also file civil suits against the mother. Are There any Defenses to the Crime?
While in theory where there is a situation where the newborn displays obvious drug related behavior any district attorney should be able to prosecute a case against any mother successfully, this is not always the case. A number of mothers have been able to defend against these charges using a number of different defenses. Some have argued that the fetus is not yet a child so they cannot be charged with a crime involving a minor. Others have argued that in the absence of state statutes on the subject they cannot be prosecuted of the crime. Should I Contact an Attorney if I Am Charged with this Crime?
This area of the law is a new and difficult area. A good criminal defense attorney may be able to help you defend against such a charge. Juries are very tough on mothers that have abused drugs during pregnancy, and if one looses such a case, they may face significant jail time. |
