Experts discuss murder charges for mom
A Chattanooga woman faces first-degree murder charges after prematurely giving birth to twins, who later died and tested positive for illegal drugs. Since then, experts have been weighing the legal basis for those charges. The woman’s case highlights a simmering debate nationwide about legal protections for fetuses and the legal liability pregnant women face.
Tiffany Marie Roberts, 29, prematurely gave birth July 21 at 23 weeks to twins with drugs in their system, according to court documents. The twins died and the mother, who tested positive for ecstasy on the day she gave birth and for multiple other drugs during her pregnancy, now faces charges of first-degree murder, aggravated child abuse and viable fetus as victim in Hamilton County, the documents state.
Hamilton County District Attorney General’s Office spokesman Bruce Garner said the office can’t comment because the case is pending. Roberts will appear Tuesday in Hamilton County Sessions Court-Criminal Division before Judge Gerald Webb. Her bond has been set at $1 million, and she is being held in the Hamilton County Jail.
At least 38 states, including
Tennessee, have laws that allow prosecution for “fetal homicide.” Generally, those laws apply prior to birth and are aimed at those who commit crimes against pregnant women.
The Chattanooga case is the latest to draw attention.
An Alabama woman who was five months pregnant was arrested in June and charged with manslaughter after she was shot, resulting in the death of her fetus.
A grand jury decided Ebony Jemison, 23, had intentionally caused the death of the fetus when starting a December fight that led to her being shot in the stomach. However, the charges later were dropped by Alabama prosecutors.
Christopher Slobogin, director of Vanderbilt Law School’s Criminal Justice Program, said the ability to charge Roberts with first-degree murder most likely stems from the “felony murder doctrine.”
The felony murder doctrine is a rule that elevates killings that take place during the commission of a felony, such as aggravated child abuse, to murder. The doctrine is in place in many states in some form, including Tennessee.
Under Tennessee law, first-degree murder is defined as the premeditated and intentional killing of another. But it also is defined as a “killing of another committed in the perpetration of or attempt to perpetrate” other crimes, including aggravated child abuse and aggravated child neglect.
“The Tennessee statute allows a first-degree murder charge when a killing occurs in the course of specified felonies,” Slobogin said.
He said that is a debated legal perspective because some think it is justified for someone to move toward a murder charge in negligent situations and others do not.
“The argument would be you shouldn’t be able to charge and convict someone of murder for a negligent action, assuming this woman was only negligent,” he said.
“In other words, she knew she was doing drugs, she shouldn’t have been doing drugs, she probably knew that it would hurt her kids, but she didn’t intend to kill her kids,” Slobogin said. “That should not be murder. It might be manslaughter.”
Nancy Rosenbloom, director of legal advocacy for the National Advocates for Pregnant Women, agrees.
“We need to have compassion for this woman,” she said. “Those babies died. She’s suffering. … None of the charges are fair and none of the charges are constitutional or supported by Tennessee law from what we can tell,” she said.
Rosenbloom said Roberts’ charges are legally questionable.
“What we’re seeing is that one of the three charges, the one the police officer referred to as ‘viable fetus as victim,’ that’s not a separate crime,” she said.
Rosenbloom said there are definition sections of Tennessee law that refer to “viable fetus as victim,” but it does not exist as a separate crime.
The current definitions stem from a 2012 Tennessee law that revised definitions of “fetus” as a victim of criminal homicide and assaults in order to remove the viability requirement and include an embryo.
But both sections state that the definitions do not “apply to any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant … ”
“The statute also specifically exempts pregnant women,” ACLU of Tennessee Legal Director Thomas Castelli said in an analysis sent to The Tennessean. “Therefore, the state should not charge a pregnant woman with assault or homicide where her own embryo is the alleged victim.”
In 2014, Tennessee adopted a law in which women could be arrested after their baby tested positive for drugs. Pregnant women could dodge criminal charges under the law if they sought treatment.
But the law expired in 2016 and it has not been renewed.
At the time of the law, advocates raised concerns it would scare expecting mothers away from treatment and affect the Tennessee Safe Harbor Act that allows women to seek care without losing custody of their child.
Rosenbloom said those kind of laws can deter pregnant women from pinpointing appropriate treatment.
“There is no place for police or prosecutors in pregnancy,” she said.