W. Virginia: Child Neglect Resulting in Death Does Not Extend to Certain Prenatal Actions of Mother

A mother will not be charged with child neglect resulting in death due to actions she took while pregnant because of the West Virginia Supreme Court’s textual interpretation of the statute

State v. Louk, 2016 BL 169764, W.Va. No. 15-0021, 5/27/16.

    A West Virginia law criminalizing child neglect resulting in death does not extend to actions taken by a pregnant woman before the child is born. The Supreme Court of West Virginia focused their argument on the statute’s definition of child, which does not include unborn children or fetuses. The chief justice wrote, “[W]hen our legislature intends to include an unborn child in a statute, it writes that language into the statute.”
 
    The Supreme Court also rejected the argument that the statute prohibiting child neglect resulting in death should be interpreted along the common law “born alive” rule, which applies to a child who is born alive, but subsequently dies due to injuries inflicted while in the womb. The rule provides that the inflictor of those injuries may be guilty of murder. In rejecting this argument, the court noted that the overwhelming majority of jurisdictions have rejected these types of arguments because of the unwillingness to expand this rule to criminal offenses.

http://www.bloomberglaw.com/public/document/State_v_Louk_No_150021_2016_BL_169764_W_Va_May_27_2016_Court_Opin.