Commonwealth v. Welch

eight preg- vein. Because she was months arrested, nant not taken into when was COMMONWEALTH custody simply given appear but date to Movant, Kentucky, court. 1,1989, gave On December Welch birth WELCH, Respondent. Connie attend- son. Because Welch informed the No. 92-SC-490-DG. ing physician drug depen- of her continued arrest, dency, after even he admitted Supreme Kentucky. Court of baby to unit the neonatal intensive care to be 30, Sept. 1993. observed for neonatal abstinence report oxyco- The toxicology negative was for done, positive but for nicotine and caffeine. term, baby full birth born without was defects, appro- and weight and his size were Further, priate gestational age. for his baby going there was no evidence was baby long-term disability, have a symptoms diagnosed suffered from as neona- syndrome tal abstinence attributed baby having passively become addicted drugs by being exposed through the mother’s during pregnancy. When baby drug supply was cut was delivered severing cord. off the act of the umbilical temperature, irri- symptoms were: mild lot, table, jittery, tremulous and cried a mottling some of the skin. Neonatal absti- syndrome possibility nence carries with it the complications of much more serious occur, including sei- did not convulsions and zures which could cause the cessation breathing result or death. The was released 11, 1989, good on December health. Gorman, Gen., Atty. Chris Michael L. County January Boyd On

Harned, Gen., Atty. Appellate Asst. Crim. charging Jury Grand returned an indictment Frankfort, Div., for movant. Welch criminal abuse in (KRS 508.110),possession degree of a Sched- Mandelbaum, Pinz- Sara L. Isabelle Katz (KRS 218A.990(7)), pos- ule II narcotic ler, Rights Project, Women’s American Civ. (KRS paraphernalia session Union, City, Liberties New York Michael J. count, 218A.990(15)). The criminal abuse Ashland, Curtis, respondent. amended, neo- alleged the suffered syndrome and the natal abstinence “abuse” LEIBSON, Justice. through including Decem- up сontinued on November Connie Welch was arrested 11, 1989, baby were when Welch and the ber 7, 1989, executing police, when while a war- hospital. released from the dealer, suspected the home of a rant at 23, 1990, guilty possession oxycodone, May Welch was found On found Welch narcotic, was to two syringes. charges. II of all She sentenced Welch Schedule oxycodone, sub- years of a controlled under the influence of the stance, plus years fоr just injected jugular into her five having some

281 degree, to run argues consecutive with that on this Commonwealth years, plus grant discretionary each other for a total of seven of review we should con- possession drug para- arguments twelve months for of sider none of the the defense has (a misdemeanor) phernalia presented against scope to run concurrent the of the statute Hollis, felony with the except apply sentences. how tо because this was Appeals the issue the of discussed in Court Appeals of Court affirmed her convic- reaching decision not un- and Welch did tions for of a controlled substance However, cross-appeal. dertake to the issue drug paraphernalia, and of and vacated her Appeals decided the Court of and now charge. conviction on the criminal abuse We before us is whether the criminal abuse stat- granted ‍​​​​‌‌‌‌​​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌​​‌​​‌​​​​‌‌‌‌‌‌​‌​​‍petition the Cоmmonwealth’s for re- situation, applies present ute to the fact portion opinion reversing view of that arguments we must consider those essential charge. the criminal abuse For reasons deciding arguments pre- this issue. The stated, be we affirm the decision of the Court aspects sented are different of the same issue Appeals. Indeed, separate rather than the issues. expand Commonwealth is the first to the presents argu- Welch’s counsel various scope argument ap- over how Hollis why statute, ments as to the criminal abuse plies by taking up here. It does so this 508.110, apply KRS does present not to the Commonwealth, (1) opinion Court’s Jones authority fact situation: under the supra, published Appeals after the Court of Commonwealth, Ky., Hollis v. 652 S.W.2d 61 case, (1983) gloss rendered its this as a Commonwealth, Ky., Jones on Hollis. (1992), “person” S.W.2d 877 a fetus is not a 508.110, as that word is used in KRS the ap- We turn first to the Commonwealth’s prosecute abuse statute used to proach to the Hollis and Jones cases. Hollis (2) Welch; construing 508.110 to KRS cover up his forced hand his wife’s present fact situation violates the stat- vagina, thereby killing the fetus and substan- intent; (3) ute’s the statute so construed tially damaging vagina. the wife’s uterus and process violates guarantee the due of fair held, be, regrettable may We however notice, i.e., it unconstitutionally would be charged Hollis could not be murder (4) vague; the statute operаtes so construed though intentionally even he killed a viable as a constitutionally impermissible post ex fetus, because the definition of who was (5) law; and prosecutor’s applica- facto “person” per- under the common law as it tion of the statutes leads to results that are applied tained to murder to the criminal counterproductive irrational legislative homicide statutes in the absence of a new expressed intent as through H.B. Ch. statutory definition. Common law murder Acts, the Maternal Health Act. killing was limited “to the of one who has (652 63).” Appeals been born alive. at limited its S.W.2d arguments, Kentucky, adopting held that Model finding first these that our (1962)published by decision in the Penal Code the American controlling Hollis case was Institute, and excluded Law embraced the Model Penal pur- abuse of a fetus from the statute, Commentary subject, view of the Code on this criminal abuse albeit the fetus was later states: born alivе and suffered from symptoms causally related to the mother’s [statutory] “... absent statement express previous drug course, Of the facts contrary, following '[statutes

Hollis present differed case in sev- may expected carry Model Code] (1) respects: eral Hollis was a criminal homi- approach.” forward the common-law Id. (2) case, case; cide not a child abuse injury ease, to the fetus in Applying Hollis was caused party’s mother, third assault on Apрeals not Court of that criminal reasoned self-abuse; (3) fetus, fetus, the mother’s abuse of a like murder of the dead, punishable whereas here the discrete criminal offense born alive. against from the crime committed mother, morally reprehensible metaphysical questions regarding however or medical (830 Appeals 878),” be. The Court of stated: begins when life simply apply meaning common

“Albeit facts in Hollis involve a murder “person” in criminal cases in prosecution, word homicide ‍​​​​‌‌‌‌​​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌​​‌​​‌​​​​‌‌‌‌‌‌​‌​​‍rationale remains statutory presume of a different defini- legis- same: The courts cannot absence expand persons lative to intent class of tion. Because the common law decided the activity.” question person treatable as of criminal victims was a victim of whether criminal homicide on basis whether the The Commonwealth attacks this conclusion alive, victim was born As- and General baby because this instancе the otherwise, sembly has not decreed we past and activity alive the effects of criminal appropriate it deemed to follow the Commen- baby to postpartum caused suffer from tary Penal from our to Model Code which syndrome. neonatal abstinence While this derive, reasoning criminal homicide statutes temporary, condition was and treatable intended draw to have caused place. line at same 508.110,second-degree оr death. KRS crim- abuse, requires only inal abuse of “another no But the common law offers similar line person of [the whom actual offender] abuse, be- of demarcation for criminal child “(b) custody” places him which in a situation cause, course, it was not common law physical him injury.” that cause serious place. in the we look crime first Thus must purpose of the statutes on “criminal meaning “per- to elsewhere determine the (KRS .120) 508.100, .110, is abuse” and to son” under criminal сhild abuse statutes. physical criminalize serious children Indeed, applying to lower avoid courts by person, although twelve or less a custodial and to other situations where the com- Jones scope “physi- their includes are others who precedent, provides mon law Jones stated: cally helpless mentally helpless.” They commonly known as the criminal child necessary Opinion this “It is a caveat to abuse statutes. specify certain limitations on rationale. only have criminal addressed homicide points The Commonwealth out that our which, offenses while now codified KRS explains in Jones the Hollis by Chapter were heretofore addressed for a result where calls different the common law. We do address new baby prenat- born alive dies later from offenses, abuse, such as criminal child injuries, al on crimi- because the common law offenses, which were not common law recognized further “if nal homicide provides no for which the common law by child be born alive and dieth reason of the legal precedent.” similar potion or bruises it received 880. seems, by opinion, to the better be murder.” Jones, 879, quoting 830 S.W.2d at Black- upon we for valid reasons which When look stone’s Commentaries. case, this find two decide we Jones, In held we drunk driver problems by the raised facts. second-degree could be convicted of man- problem in Hollis first is the same as slaughter causing a motor vehicle colli- Assembly intend did the General Jones: injuring pregnant baby

sion woman whose scope of criminal to include within the postpartum prenatal injury. then died from causing injury prenatal abuse statutes To the extent that the To postpartum which carries over the state? postpartum case from a condition suffered issue, complicate here the causes, this first further superficially from the Jones abuse, particular the mothеr’s use of mode of prose- suggests decision could be Welch postpartum drugs, was not a direct cause second-degree cuted for criminal abuse based with- injury an cause: it was the activity. indirect on her But the be- drugs to similarity drawal of which stops here. The rationale Jones addicted, ab- passively rather than behind both Hollis that this come and Jones was drugs, imme- presume sorption was the Court would “not to address either of these baby’s díate cause of thе transgress limits; neonatal abstinence reasonably identifiable they lack fair notice and violate constitutional process against due statutory vague- limits We will not engage undertake to the com- recently persuasively ness. stated As plexities problem of this first because the Pennsylvania factually trial court in a case problem second dispositive of the case. similar to this one: problem The second is: did the General As- “If the applied statutes at issue are sembly intend prenatal injury to include during pregnancy, women’s conduct they woman’s self-abuse as well as scope could have an unlimited injury and create inflicted person? a third In Hollis an indefinite number of new ... ‘crimes.’ injury Jones the neonatal was caused short, In Attorney’s interpre- the District a blow outsider; administered statutes, validated, tation might if self-abuse, issue here is the mother’s ‘slippery slope’ whereby lead to a also the law had the effect of transmitting drugs covering be construed as baby through the full the umbilical cord. range pregnant of a woman’s behavior —a But, The mother drug was a addict. plainly would, unconstitutional result that matter, she could have pregnant been a among things, other render the statutes alcoholic, causing syndrome; fetal alcohol or vagueness. void for Commonwealth v. she could have been by addicted to self abuse Kemp, 1991, No. 2707 C Common Pleas of smoking, byor abusing presсription painkill- County, Westmoreland ‍​​​​‌‌‌‌​​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌​​‌​​‌​​​​‌‌‌‌‌‌​‌​​‍Pa. Criminal Divi- ers, medicine; or over-the-counter or for that sion, Op. p. SI. 12.” matter she could have been addicted to skiing downhill or sport some other The defense cites other creating decisions to the serious risk of injury, expectant same effect risk which mother wantonly disregarded drug mother abuse cases from trial as matter of courts in New self-indulgence. pregnant Michigan, What if a York and appellate woman аnd from (State limit, drives speed over the Gray, or courts Ohio as a matter of 62 Ohio St.3d 514, vanity (1992)), prescription doesn’t wear the 584 N.E.2d 710 lenses California Court, she (Reyes 214, knows she dangers Superior Cal.App.3d needs to 75 see the (1977)), (John- the road? Cal.Rptr. The defense asks where do we Florida Florida, (Fla.1992)). draw the by line on son v. pregnant self-abuse 602 So.2d 1288 wantonly woman that All exposes of these cases to risk address statutes similar in her baby? one, unborn effect to the replies Commоnwealth and all conclude that, Assembly properly construed, the General probably intended the statutes in- to draw the line at qualifies punish conduct that volved do not intend to as as criminal criminal, and then conduct prosecutor expectant leave it to the self-abuse injurious to decide potentially when such prose- conduct should be carries. cuted as point child abuse in All of way addition to these cases out in the crime one or actually committed. another that to construe the statute involved impermissibly vague, otherwise makes it However, it inflicting is intentional or wan- if legislature their state intended to injury upon ton the child that makes the pregnant include a woman’s self-abuse which conduct criminal under the child abuse stat- also abuses her unborn child within the con- utes, criminality not the per of the conduct criminally prohibited, duct it would have se. approach The Commonwealth’s would expressly. done so The Commonwealth of- abuse, exclude alcohol devastating however contrary. fers no cases to the in the unless the Com- prove monwealth could an act of drunk weapon arsenal, driv- final the defense’s ing; alcoholism, but it is the mother’s one, not the perhaps telling the most is the driving act of that causes the fetal Kentucky Assembly’s alcohol confirmation “case-by-case” approach legislative intent found the Maternal suggеsted by the Commonwealth is so arbi- Health Act of 1992. H.B. Ch. Ken- that, trary (1992). if the criminal child tucky abuse statutes Acts The Act is intended to it, support construed to provide the statutes comprehensive plan to address the covering healthy childbearing pre- Health Act amends KRS 218A.990 caused threat trafficking penalties guilty those drug The Preamble found natal alcohol and subpar- possessing drugs, in or to add new purpose the Act’s as follows: states agraph follows: “WHEREAS, The General finds “(19) Any person traffics in a con- who healthy bear ability that a woman’s I, substance classified trolled Schedules consequences children is threatened II, III, any person who is IV V to abuse; many alcoholism and felony guilty shall (10%) percent of all in the ten births Com- punished by confinement in the shall be monwealth be affected alcohol or (5) years penitentiary for than not less five abuse; during drug and use alcohol (10) years, fined nor more than ten or be birthweight, pregnancy can result in low ($10,000) ten not less than thousand dollars deformities, retardation, physical mental twenty nor than thousand dollars more disabilities, learning prob- health and other ($20,000), Each shall or both. violation infants; syn- alcohol lems newborn fetal constitute a offense.” leading cause of drome identifiable in the nation and the mental retardation only the fact KRS We can conclude totally only preventable; one provide special 218A.990 was amended impаired pose ex- and alcohol individuals supplies punishment for the dealer who traordinary societal costs in terms of the pun- drugs pregnant person, but not to to medical, educational, support services and on takes ish the woman the basis that she throughout individual’s life- needed the As- drugs the pregnant, while that General time; are and treatment essen- education punish- sembly intends no additional criminal preventing prenatal expo- strategies in tial pregnant woman’s abuse ment for the drugs; pregnant and sure to alcohol other drugs the apart punishment alcohol and abusing face more barri- substance women committing everyone caught imposed upon abuse than oth- ers to substance treatment involving substances. Welch’s crime those treatment; persons seeking adequate er is a drugs which she took element in prenatal care is essential offense, punishment is not punishable but her delivering healthy, well-developed new- pregnant, nor is she she is enhanced because born; against preg- punitive actions taken injurious punished to be results substance abusers would nant alcohol or deliberately ignore baby. to would have We including problems, dis- create additional the legislative and legislative purpose couraging seeking these individuals from accept H.B. 192 to approach specified in prenatal care and substance the essential present argument that Commonwealth’s necessary to deliver a abuse treatment Assembly to use the deter- General intended newborn; healthy and stat- child abuse rent effect of criminal WHEREAS, Assembly approach General to the self- utes an additional as necessary problem it is to ‍​​​​‌‌‌‌​​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌​​‌​​‌​​​​‌‌‌‌‌‌​‌​​‍treat problem. abuse finds during pregnancy alcohol use argument to a further The defense makes solely-as public problem seek- health experts uni public that health effect ing expanded prenatal access to care and including formly alcohol substance abuse education to crim by the mother within alcohol self-abuse [Emphasis programs.” and treatment counterproduc inal child abuse statutes added.] tive; experts unanimously oppose that these The difficul prosecution for provides The Act then remedial measures it is argument in is that ty pursuing this concerns to address these maternal health hаve should grounded in literature which amending Chapters of the seven different level, and there at the trial problem presented of been Kentucky to “treat the statutes reliable, bring as authentic and during pregnancy identified abuse alcohol scope of record {supra).” within the solely problem literature public health appellate to which an us. extent provides punishment criminal as a before It rely upon of this material court can or shоuld only one instance: The Maternal deterrent very great it cried a deal. He persuasive nature as or authoritative when irritable and tremulous, sleep jittery and could not has at the trial level has was not been introduced the ner- His skin was mottled because question been a ever since the well. troublesome blood his skin originated control of the vessels practice with the Brief in vous Brandeis majority states Oregon, was disturbed. Muller v. U.S. S.Ct. (1908). good health. will it was relеased 52 L.Ed. 551 not address here, with sidestepping not even the issue imprecisely majority opinion frames a footnote as courts are wont to do. There is legal issue as “whether the because in 192 the need to H.B. Preamble applies fact situ- abuse statute Assembly establishes the General has In that it does not. so ation” concludes already absorbed the literature and made its simply doing, majority rewritten ap take decision to the maternal health аrgument, At oral the issue devel- statute. proach rather than to the criminal sanc use the line. oped to where we should draw approach tion as a deterrent. It is abundant view, my In the line should be drawn where ly clear if the consid inju- being human cause the activities one part ered the criminal child statutes as ry or abuse to another human As solution, specified would have 500.080(12) person as a “hu- defines KRS original of a in a child state being,” crimi- man and KRS 508.110defines exрressing of statutes the elements of the wantonly degree nal abuse fense, or, least, at the so when chose done abusing permitting anoth- person another multiple problem address entire person custody he has er whom actual statutory amendments in the “relat 1992 Act abused, little doubt the con- there is ing to maternal health.” dition of the child at birth was caused reasons, foregoing

For the the decision of exposure drugs resulted which could have Appеals affirmed. breathing a cessation of have in resulted STEPHENS, C.J., REYNOLDS and death. SPAIN, JJ., BURKE, and KATHRYN majority Recent decisions of this Court Justice, Special concur. disagree ‍​​​​‌‌‌‌​​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌​​‌​​‌​​​​‌‌‌‌‌‌​‌​​‍fully appear I to indicate with which WINTERSHEIMER, J., dissents person. a fetus is that what calls not LAMBERT, J., Commonwealth, opinion in which Ky., 652 S.W.2d 61 joins. Commonwealth, (1983), Ky., and Jones v. (1992). Despite this, all standard WINTERSHEIMER, Justice, dissenting. dictionary “per- definitions define the term respectfully I majority dissent from the long a human has son” as Civil law accept because it not con- does person. recognized that an unborn child is cept of unborn being an child as a human § 2 biologi- 42 Am.Jur.2d states that Infants given protection. who legal should cally speaking, being life of a human majority opinion of in begins conception states that the at the moment full-term, defects, general without birth and as a rule of mother’s law, weight appropriate legal personality that his size and in were construction However, gestational age. purpоses my imputed his of to an child for all review unborn the record indicates that at the time of deliv- which would be beneficial to the infant after Edition, ery, published the doctors meconium discovered stain- birth. Prosser’s 4th ing of the amniotic fluid and summarizes the law to the effect that admitted nursery. authority long recognized child to the neonatal intensive care medical has developed syndrome He neonatal is in from the moment of abstinence the child existence views, passive which occurs as a All above as well as conception. result of addiction drugs exposure subject, drugs through can be extended discussion during pregnancy. Upon my concurring opinion in Jones v. mother severance found Commonwealth, cord, my dissent supply supra. the umbilical was See also fever, Hollis, supra. ended. child was found to have a however, majority grasps at opinion, MUSIC, shrewdly Appellant, authority for its other sources Charles W. legal reach the builds on Hollis and Jones to protect not that criminal does conclusion METHODIST CHURCH UNITED the child who born alive and suffers with- Spain, Bishop Robert H. drugs effects of consumed drawal Appellees. during pregnancy. No. 93-SC-388-MR. fully originally, I agree, I with must did concurring Justice Lambert’s Kentucky. Supreme Jones, part: he when said 28, 1993. Oct. enjoys fetus should hold that a viable protection full the criminal law “person” beings”

the terms and “human viable unborn children.

include prerogative not the of this Court to

It is it is our

rewrite a criminal statute and

prerogative application stat- refuse disagree

ute its reach. because we legislative prerogative

Such are matters thereby rights are

and unless constitutional

violated, fretting, this Court has business majority, over whether ingested prosecuted if

woman could be

alcohol, nicotine, prescription non-pre- engaged danger-

scription painkillers, or majority has sporting

ous activities. The

interjected foregoing issue false justifying apply

means of refusal clearly by appel- violated

statute which injection jugular into vein

lee’s cocaine her eight pregnant.

when she was months disappoint- great sadness and

It is I that in

ment that am forced conclude majesty of the is unable or

Kentucky the protect

unwilling to innocent unborn children the conduct another

from harm caused

human

LAMBERT, J., dissenting joins this

opinion.

Case Details

Case Name: Commonwealth v. Welch

Court Name: Kentucky Supreme Court

Date Published: Sep 30, 1993

Citation: 864 S.W.2d 280

Docket Number: 92-SC-490-DG

Court Abbreviation: Ky.