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PA & WV Accidental Death Lawyer Blog

West Virginia’s Child Neglect Resulting in Death Statute Does Not Apply to a Fetus

Although the below case, which involves the tragic death of an 11-day-old child, pertains to a criminal statute, it is important to civil matters from the standpoint of how the judiciary looks at the plain language of a statute when interpreting the statute.

In West Virginia v. Louk, 237 S.E.2d 219 (W.Va. 2016), the defendant injected methamphetamine when she was thirty-seven weeks pregnant.  Hours later, the defendant suffered acute respiratory distress caused by the methamphetamine.  Due to concerns the fetus was being deprived of oxygen, a doctor performed an emergency C-section.  A forensic pathologist, who performed the autopsy on the child, stated the child was born “essentially brain dead” from a lack of oxygen.  Id. at 222.  A Nicholas County, West Virginia Grand Jury indicted the defendant on one felony count of child neglect resulting in death pursuant to W.Va. Code Section 61-8D-4a.  A jury later convicted defendant.  She was sentenced to be incarcerated for three to fifteen years.  The defendant appealed the conviction.

On appeal, the West Virginia Supreme Court of Appeals addressed this issue: “whether a pregnant woman who ingests a controlled substance which results in harm to her subsequently born child can be charged with child neglect resulting in death, as set forth in W.Va. Code Section 61-8D-4a.”  Id.   W.Va. Code Section 61-8D-4a provides: “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony ….”  Id. at 222-23.

The defendant argued that an “unborn child” or “fetus” is not a “child” under W.Va. Code Section 61-8D-4a and thus the statute did not apply to her.

After reviewing the plain language of the statute and other statutes passed by the West Virginia Legislature that specifically mention and define “fetus” and mention “unborn child,” the West Virginia Supreme Court of Appeals held that W.Va. Code Section 61-8D-4a does not mention “fetus” or “unborn child.”  As such, the court further held that the child neglect resulting in death statute does not encompass prenatal acts.  Id. at 228.  Because the statute does not apply to a fetus or unborn child or to prenatal acts, the court vacated the conviction and remanded the matter to the circuit court for the entry of a judgement of acquittal.  Id.  

This case is an example of the difficult issues that a court can face in civil and criminal matters.  Yet, the court must follow the plain language of a statute as written and passed by the legislature.


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