26 Apr 05
Originally posted by eagles54That would be a medical question. I don't think a glass of wine each day has been shown to cause harm, a bottle would. And for there to be a penalty, you'd still have to establish harm has occurred, not just that the mother drank an unsafe amount of alcohol.
Who determines how much alcohol intake and cigarette consumption constitute potential abuse?
You can't penalize the mother for the drinking and smoking alone if there was no measurable harm done. It would need to be a case by case assessment.
26 Apr 05
Originally posted by ColettiI can't see coppers issuing tickets to visably pregnant women for smoking either.
That would be a medical question. I don't think a glass of wine each day has been shown to cause harm, a bottle would. And for there to be a penalty, you'd still have to establish harm has occurred, not just that the mother drank an unsafe amount of alcohol.
You can't penalize the mother for the drinking and smoking alone if there was no measurable harm done. It would need to be a case by case assessment.
26 Apr 05
Originally posted by KneverKnightFrom the point of the view of the child, this matters not one whit. Please don't ignore that the hypothethical I gave presumed a terrible genetic defect that the parents were aware that they could pass on to the innocent infant. The parents could avoid this by simply not having children. Since they choose to disregard the risk, has a mother chooses to disregard the risk that smoking or drinking while pregnant might cause harm to the child (and less harm at that), I fail to see how one should be culpable and the other not.
Can't see how being handicapped is the same as smoking during pregnancy; one the mother can't change, the other she can.
26 Apr 05
Originally posted by ColettiWhat if two pregnant women smoked and drank like no tomorrow. One gives birth to a normal child, the other, a brain-damaged child. Both were grossly neglegent in the prenatal care of their unborn children. Should the mother of the normal child suffer a penalty?
That would be a medical question. I don't think a glass of wine each day has been shown to cause harm, a bottle would. And for there to be a penalty, you'd still have to establish harm has occurred, not just that the mother drank an unsafe amount of alcohol.
You can't penalize the mother for the drinking and smoking alone if there was no measurable harm done. It would need to be a case by case assessment.
26 Apr 05
Originally posted by eagles54No harm no foul. But it's a good question.
What if two pregnant women smoked and drank like no tomorrow. One gives birth to a normal child, the other, a brain-damaged child. Both were grossly neglegent in the prenatal care of their unborn children. Should the mother of the normal child suffer a penalty?
I don't think you should convict someone for doing something that is otherwise legal, or for stupid behavior. (They might close down the forums! ) If you allowed both women to be prosecuted, you are opening a whole new can of worms. So I'd say no
26 Apr 05
Originally posted by no1marauderI see your point, but a handicapped person can't change the risk to her child whereas a smoker can. I also see that by punishing the smoker, you think that will lead to punishing the handicapped as well since you say that they both intentionally risk the child's welfare. Is this what you are saying?
From the point of the view of the child, this matters not one whit. Please don't ignore that the hypothethical I gave presumed a terrible genetic defect that the parents were aware that they could pass on to the innocent infant. The parents could avoid this by simply not having children. Since they choose to disregard the risk, has a mother cho ...[text shortened]... the child (and less harm at that), I fail to see how one should be culpable and the other not.
26 Apr 05
Originally posted by ColettiColetti: A mother who smokes and drinks is knowingly doing harm to her fetus.
A mother who smokes and drinks is knowingly doing harm to her fetus. If she did not known then the law says her ignorance is not excusable - she should have known better. She has a duty to give due diligence to learning how her actions could cause harm to the fetus. Since she has knowingly caused harm that she could have easily prevented - then it would b ...[text shortened]... ncluded both compensation to the victim, and civil/criminal penalties as a deterrent to others.
No she is not; she is increasing the risk that harm MAY be done to the fetus. She doesn't KNOW that harm will result; it seems in most cases harm doesn't result.
Coletti: If she did not known then the law says her ignorance is not excusable - she should have known better. She has a duty to give due diligence to learning how her actions could cause harm to the fetus. Since she has knowingly caused harm that she could have easily prevented - then it would be justified to penalize her.
This drops criminal culpability down to simple negligence. No criminal law that I know of that requires culpability goes down to a "simple negligence" standard. In New York, those few criminal statutes which punish criminal negligence require that "the risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." I seriously doubt whether smoking cigarettes while pregnant would reach such a standard. Smoking crack might, but the enforcement problems would be immense and not worth the effort in my view.
26 Apr 05
2 edits
Originally posted by KneverKnightI'm saying that the rationale in one case could be used in the other, yes. I'm saying that you have a feeling that it would be OK to use the criminal law in one case but not the other. I'm saying that others might have different feelings and could use the logic behind one to press for the other. Essentially, I'm making a "slippery slope" argument which are usually weak, but it is incumbent upon the side rationalizing disperate treatment of similar things to give good reasons why they should be treated differently. I dispute that any arguments have been given here to treat the situations differently under criminal law principles.
I see your point, but a handicapped person can't change the risk to her child whereas a smoker can. I also see that by punishing the smoker, you think that will lead to punishing the handicapped as well since you say that they both in ...[text shortened]... entionally risk the child's welfare. Is this what you are saying?
BTW, are you deliberately using the term "handicapped" for emotional reasons? I spoke of parents having a genetic predisposition towards a terrible disease. Your attempt to transform that into "handicapped" is a fallacious appeal to emotion.
26 Apr 05
Originally posted by ColettiBy your own admission the mother of the brain-damaged child should not be penalized either in that case, as she was only exercising "stupid behavior."
I don't think you should convict someone for doing something that is otherwise legal, or for stupid behavior. (They might close down the forums! ) If you allowed both women to be prosecuted, you are opening a whole new can of worms. So I'd say no
26 Apr 05
Originally posted by no1marauderSo, if it was decided that addiction was in some way equal to a handicap, then by punishing the smoker, we run the risk of punishing the handicapped as well because the same reasoning could be used in either case. OK.
I'm saying that the rationale in one case could be used in the other, yes. I'm saying that you have a feeling that it would be OK to use the criminal law in one case but not the other. I'm saying that others might have different feelings and could use the logic behind one to press for the other. Essentially, I'm making a "slippery slope" argu ...[text shortened]... rguments have been given here to treat the situations differently under criminal law principles.
What if the mother wasn't addicted to alcohol, yet still drank during pregnancy?
26 Apr 05
Originally posted by no1marauderIf there is measurable damage, and it is a simple thing to know the smoking can cause fetal damage - that would be "a gross deviation from the standard of care that a reasonable person would observe in the situation." Whether it is smoking cigarettes of crack does not matter if a reasonable inquiry shows a strong correlation between those acts and damage - and damage has occurred - penalties can be applied. Maybe in the case of smoking cigarettes, the medical evidence is not as strong.
"the risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." I seriously doubt whether smoking cigarettes while pregnant would reach such a standard. Smoking crack might, but the enforcement problems would be immense and not worth the effort in my view.
26 Apr 05
Originally posted by ColettiYour legal analysis is incorrect; you would include all cases of negligence in the criminal negligence formula and that is dead wrong. A "gross deviation" means a particulary glaring and obvious one that has a substantial risk of serious harm; smoking a cigarette during pregnancy will not meet such a standard. Look, if someone is tailgating another car and as a result hits the back of the car and causes injury, he is negligent, but not "criminal negligent" - he has been careless, but hasn't "grossly deviated" from the "standard of care that a reasonable person would observe in the situation". This would be true no matter how much damage was inflicted; he'd be civilly but not criminally liable.
If there is measurable damage, and it is a simple thing to know the smoking can cause fetal damage - that would be "a gross deviation from the standard of care that a reasonable person would observe in the situation." Whether it is smoking cigarettes of crack does not matter if a reasonable inquiry shows a strong correlation between those acts and damag ...[text shortened]... can be applied. Maybe in the case of smoking cigarettes, the medical evidence is not as strong.