News Law and Policy

Tennessee Woman Takes Plea Deal Under State’s Fetal Assault Law

Jessica Mason Pieklo

Advocates say the law effectively criminalizes an entire population: pregnant people.

A Tennessee woman who was one of the first to be charged under the state’s controversial fetal assault law accepted a plea deal that will keep her out of jail but on probation for almost a year.

Brittany Nicole Hudson pleaded guilty to child abuse, or simple assault, stemming from an incident in October 2014 where Hudson allegedly gave birth to a baby girl in a car on the side of a Blount County, Tennessee road. The Blount County Sheriff’s Office then opened an investigation and determined that Hudson had used illicit drugs during her pregnancy.

Tennessee lawmakers in April 2014 passed the first-of-its-kind fetal assault bill, which enables prosecutors to charge pregnant patients with assault for actions patients took while pregnant that cause “harm” to their fetus.

SB 1391 allows a person to be prosecuted for the illegal use of a narcotic while pregnant, if the baby is born addicted to or harmed by the narcotic drug, and the addiction or harm is a result of illegal use of a narcotic drug taken while pregnant.

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This bill allows women to be charged with aggravated assault, which carries a maximum penalty of 15 years in prison, if they have a pregnancy complication after illicit drug use.

Hudson was one of the first women to be charged under the fetal assault law, passed by Tennessee’s GOP-majority state legislature.

“It is very easy to mistake a plea deal that keeps someone from spending time behind bars with a victory,” Farah Diaz-Tello, senior staff attorney at the National Advocates for Pregnant Women, told Rewire in an email. “Ms. Hudson and her attorney made the choice that was best for her under the circumstances, but we need to read between the lines [and] look more closely at the circumstances—including the fact that she gave birth in a car on the side of the road—and … what probation really means.”

Hudson’s baby reportedly showed signs of being affected by drugs at birth, which prompted authorities to place the baby in the University of Tennessee Medical Center’s neonatal intensive care unit, where the child was weaned off opiates.

Tennessee passed its fetal assault law in response to what public health officials decried as a rash of births of babies born with neonatal abstinence syndrome [NAS], a temporary, treatable condition that can occur if a person takes opiates during pregnancy. As Diaz-Tello explained, the law effectively criminalizes an entire population: pregnant people.

“First of all, she [Hudson] pleaded guilty to something that is not a crime: Tennessee’s notoriously failed law makes giving birth to a baby with NAS simple assault, not child abuse,” said Diaz-Tello. “This tells me that she saw the odds so stacked against her that pleading guilty to a non-existent crime of ‘fetal child abuse’ and putting her name on a record of child abusers that will affect her employability and child custody for possibly decades seemed like the better choice than fighting the charge.”

Hudson received two sentences of 11 months and 29 days of supervised probation under the plea deal, according to reports. But Diaz-Tello said that even probation is a poor outcome for people who are facing a fetal assault charge.

“Then there is the fact that probation means 11 months and 29 days of living under the microscope of correctional control. Probation is not designed for people to be successful and whole, it is designed for them to be quasi-prisoners,” Diaz-Tello said. “I’m happy for every woman who manages to keep out of jail, but it’s cold comfort: health-care issues should never be under the jurisdiction of the criminal justice system in the first place.”

A woman who helped Hudson deliver her baby, Bailey McCay Propst, was reportedly also charged with child abuse and providing false information to police after the birth of the child. Officials eventually dropped the child abuse charge against Propst and she later pleaded guilty and was placed on probation for the charge of providing false information to a police officer.

The Tennessee law is set to expire July 1, 2016 unless lawmakers renew the measure.

Commentary Maternity and Birthing

Pregnant and Punished: How Our Drug Policies Hurt Women

Farah Diaz-Tello & Cynthia Greenlee

The sad truth is that pregnant women with drug problems are overwhelmingly likely to be criminalized rather than getting the help they need.

Throughout the world, pregnant women involved in illicit drugs as users, producers, or sellers are roundly vilified. They are viewed, as described by conservative Tennessee state legislator Rep. Terri Lynn Weaver (R-Lancaster), as the “worst of the worst.”

The sad truth is that pregnant women with drug problems are overwhelmingly likely to be criminalized rather than getting the help they need. At this week’s U.N. General Assembly Special Session (UNGASS) on the world drug problem, dozens of organizations worldwide are pushing global leaders to reconsider punitive drug policy in a declaration that explains how such laws hurt women and families.

In the eyes of the law and often the broader society, a woman’s pregnancy can compound any crime she may have committed. In countries as different as Russia and the United States, a pregnant woman charged with a drug offense may be harshly punished-and often treated more severely than a woman who is not pregnant. In addition, she is very likely to lose custody of any child born while she is incarcerated or undergoing legal proceedings.

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In 2014, for example, the U.S. Department of Justice’s Knoxville, Tennessee, office issued a press release about the prosecution of Lacey Weld, who had six years added to a prison term because she was pregnant when she participated in methamphetamine manufacturing. Weld pleaded guilty to the offense, but the court increased the penalty because she had used methamphetamine during the manufacturing, which the prosecutor argued risked the health of her fetus.

Notably, none of the men who were involved in the manufacture of the drugs, who were equally responsible for any toxic fumes Weld may have inhaled, were given enhanced penalties.

Tennessee legislators in 2014 also passed a controversial and wrong-headed fetal assault law that allowed pregnant drug users to be prosecuted for harming their fetus—even if there was no medical evidence of harm or no chronic health effects. It was a law that had the chilling effect of scaring women who used drugs away from seeking help; at least one gave birth without medical assistance.

The good news is that in March, after a long fight by activists and public health authorities, Tennessee legislators voted to let the law expire. That was a heartening but single victory. The bigger fight is overcoming the notion that jail is an appropriate place for a pregnant woman—or any person—who has committed a nonviolent drug crime.

Too often, women are on the wrong end of conventional wisdom that is based on bad science and knee-jerk sensationalism. In the 1980s and 1990s, media reported countless lurid stories of a generation of “crack babies” forever harmed by this new form of cocaine. But the link between cocaine use and chronic health and developmental issues in infants and children turned out to be unclear, at minimum, and sometimes spurious. Factors like poverty and the level of neonatal care were as important as cocaine use or many other licit and illicit drugs, including alcohol.

And that generation of crack babies who would overwhelm and threaten our health-care and educational systems? Never materialized.

Still, the mythology persists.

The same tropes are now reappearing in connection with neonatal abstinence syndrome (NAS), a treatable and temporary condition that may affect drug-exposed infants. We are now seeing a groundswell of anxiety about NAS and opioid use, particularly in the United States. While research suggests that NAS is but one of many factors affecting a child’s health, infants with NAS are the subjects of the same panicked rhetoric of a generation ago.

And their mothers are condemned even when they seek help. Public health authorities recognize that medication-assisted treatment (MAT), such as methadone, is the gold standard of treatment for pregnant women experiencing drug dependency. But on the ground, probation officers, social workers, and judges in family courts and drug courts often have shockingly little knowledge about the benefits of MAT and order women off the very medication that can help them carry a pregnancy to term.

For a woman behind bars, denial of MAT during pregnancy is just the start of her worries. Even if she has a healthy delivery, her baby can be removed from her within hours. The state is supposed to prefer placing the infant with a family member, but some will end up in the foster-care system-a bleak outcome that challenges the official line that the goal is really to defend the vulnerable and preserve healthy families. In too many cases, children whose mothers could have safely parented them with just a little support wind up cycling through foster care and, for some, a permanent placement with another family or guardian.

A minor drug offense shouldn’t mean the splitting of a family. Being pregnant is not a crime. Instead of being criminalized, a woman who needs help for problematic drug use should be given appropriate health care outside the criminal justice system and services that can help her lead a healthy life and support her parenting. Time and time again, public health research has shown that supportive services that focus on the whole woman and preserve the family bond, can mean better health outcomes for both mother and child.

But public health consensus means little in the context of the War on Drugs and mass incarceration. The United States is a world leader in how many of its people it puts in jails and prisons. According to data compiled by the Sentencing Project, the number of incarcerated women in the country has risen almost 650 percent between 1980 and 2010. Statistics from the Department of Justice estimated that, in 2004, 3 percent of inmates in federal corrections facilities and some 4 percent in state institutions were pregnant when they arrived in detention.

The United Nations’ Bangkok Rules on the treatment of women offenders and prisoners, adopted in 2010, urge authorities to seek alternatives to imprisonment for women, especially if they are pregnant or a sole or primary caretaker, and to take into consideration women’s special needs as prisoners.

Instead, what we have are U.S. states and many nations investing more in the drug war than they’ve invested in the health and human rights of the women, children and families they claim to protect.

News Human Rights

Advocates: Trans Woman’s Killer Getting 12 Years in Prison ‘Not a Win’ for Trans Community

Kanya D’Almeida

Twenty-two trans and gender-nonconforming people were killed in 2015, almost double the number who were killed in 2014. The vast majority of homicide victims were people of color, mostly trans women of color, according to national statistics.

James Dixon, 25, will be sentenced to 12 years in prison for beating to death a 21-year-old Black trans woman, Islan Nettles, in August 2013 in New York City.

The sentencing date comes two weeks after Dixon pleaded guilty to the top count of the New York State Supreme Court’s indictment against him—manslaughter in the first degree—following the revelation that his 2013 videotaped confession to prosecutors would be admitted as evidence into a jury trial.

Dixon would have faced a 17-year prison term if the jury had found him found guilty.

“With this conviction, James Dixon has finally been brought to justice for this brutal and lethal assault,” Manhattan District Attorney Cyrus R. Vance said in an April 4 statement. “Members of the transgender community are far too often the targets of violent crime. I hope that this conviction provides some comfort to Ms. Nettles’ family and friends.”

Advocates and organizers, however, say the opposite is true.

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“This is not a win for the trans community,” Lourdes Hunter, co-founder and national director of the TransWomen of Color Collective (TWOCC), told Rewire in a phone interview. “James Dixon going to jail will not stop trans murders, it will not bring Islan Nettles back, it will not bring peace to Delores Nettles [Islan’s mother], who for many years sat in anguish as the murderer of her child roamed the streets due to the negligence of the New York Police Department and the New York District Attorney.”

Nettles was attacked just after midnight on August 17, 2013, when she and her two friends encountered a group of about seven men, including Dixon, in West Harlem, according to reports. Dixon, per those reports, stated in his confession that he had flirted with Nettles until his friends pointed out that she was transgender.

He says he then flew into “a blind fury,” first punching Nettles in the face and then striking her a second time while she lay on the sidewalk.

Accounts of the murder vary, with eyewitnesses and prosecutors claiming Dixon punched her several times and even slammed her head against the concrete pavement. Those allegations are confirmed by the New York District Attorney’s office, which concluded that Dixon “repeatedly struck the victim with a closed fist, causing serious brain injury, before fleeing the scene.”

Nettles’ mother, Delores, claims the assault rendered Nettles unrecognizable. At a protest in 2014 she blasted New York City officials for failing to send a detective to the hospital where Nettles lay in a coma; Delores stated, “half of my child’s brain is hanging out of her head,” according to the Washington Post.

Nettles was declared brain dead on August 20, and taken off mechanical support a few days later. Her death prompted large and sustained protests in New York City, including vigils and rallies that drew hundreds of people.

“Nettles was killed at an interesting time: The start of what we’re now seeing to be a more visible national trend in awareness and conversations about trans murders,” Shelby Chestnut, co-director of community organizing and public advocacy with the New York City-based Anti-Violence Project (AVP), told Rewire in a phone interview.

Citing data collected by the AVP, which is the only national organization to track lethal violence against the trans community, Chestnut told Rewire that 22 trans and gender-nonconforming people were killed in 2015, almost double the number who were killed in 2014. The vast majority of homicide victims, she said, were people of color, mostly trans women of color.

Keyonna Blakeney, a 22-year-old Black trans woman, was murdered Saturday in Montgomery County, Maryland. An AVP spokesperson told Rewire that Blakeney is the ninth trans woman to be killed in 2016.

Chestnut told Rewire that Nettles’ death had a deep impact on the community because “the rest of the world sees New York City as a safe haven for LGBT people, but in fact its no different from anywhere else—trans people are still subjected to violence, and in some cases death, simply because of who they are.”

Chestnut said Dixon’s confession invokes what’s called the “trans panic defense”—a legal tactic used to convince judges or juries that a victim’s sexual identity both explains and excuses a perpetrators’ “loss of self-control” and resulting assault. This type of defense has been outlawed in California, and the American Bar Association has called on other states to ban it as well.

“Sadly the media has been focusing on this so-called panic defense, which adds to a really terrible, transphobic narrative that there is something fundamentally wrong with being trans when in fact there is nothing wrong with it,” Chestnut added.

Both Chestnut and TWOCC’s Hunter agree that locking Dixon up will not stem the tide of violence against the trans community, since mass incarceration has proved to be an outright failure in terms of preventing crime.

“Sending someone to prison is not ‘justice,'” Chestnut said. “We need to address the bigger, systemic issue, which is: Why is violence like this allowed to permeate our society? And how are we investing in modes of prevention and education for everyone, so that a young, trans women of color can walk down the street and not be killed simply for who she is?”

“In the United States the life expectancy of a trans woman of color is less than 35 years,” Hunter added. “We can no longer ignore that state-sanctioned violence, including [that] the denial and lack of access to jobs, housing, and health care is inextricably linked to the physical violence we face every day. If you don’t have a job and can’t pay your rent, you may be forced to engage in activities for survival that further endanger your life.”

Ten percent of 6,400 transgender adults interviewed for a national survey had engaged in survival sex work between 2008 and 2009, a number that rose to 33.2 percent among trans Latino/a respondents and 39.9 percent among Black respondents, as Rewire has reported.

Trans communities experience disproportionate rates of homeless and incarceration, with 47 percent of Black transgender people having experienced incarceration.

Nettles had been forging a pathway for herself out of this cycle of poverty and violence when she was killed. Hunter said Nettles had just moved into her first apartment, was attending school, holding a steady job, and was an active member of the community, even volunteering at a local homeless shelter—all of which may have contributed to the wave of protests that followed her death.

“There are all these ‘respectability politics’ involved in narratives around trans lives,” Hunter told Rewire. “For instance, Nettles was not engaging in street-based sex work or trying to ‘trick’ people about her identity; when Dixon questioned her, she proudly affirmed that she was trans. Basically she did not fit easily into the stereotyped narrative that the media likes to present about trans women.”

Hunter said a broad coalition of local advocates supported justice for Nettles and her family members. While these advocacy efforts almost certainly played a role in pushing the District Attorney’s office toward a resolution of the case, Hunter says it’s important to fight back against the notion of “respectability.”

“We need to stand up and fight for all trans lives, not just the ones that are deemed ‘respectable,’ because no trans person deserves to die,” Hunter said. “Given the historical lack of [effort] to bring closure to these heinous crimes, the only appropriate response for D.A. Vance is to launch a concerted effort to re-open all cold cases of trans murders in New York City.”

“This is why we say ‘Not One More,’” Hunter said, referring to TWOCC’s video campaign. “At the core of this campaign is the message that we cannot be silent, we cannot wait until a trans woman of color is murdered to celebrate who we are and raise awareness and visibility around our lives, and around the women whose lives were taken away without them being able to experience the happiness and joy that is entitled to all of us as humans.”