State v. Louk

Decision Date27 May 2016
Docket NumberNo. 15-0021,15-0021
CourtWest Virginia Supreme Court
PartiesState of West Virginia, Respondent v. Stephanie Elaine Louk, Petitioner

237 W.Va. 200
786 S.E.2d 219

State of West Virginia, Respondent
Stephanie Elaine Louk, Petitioner

No. 15-0021

Supreme Court of Appeals of West Virginia.

Submitted: April 19, 2016
Filed: May 27, 2016
Concurring Opinion of Justice Davis June 3, 2016

Jason D. Parmer, Esq., Public Defender Services, Charleston, West Virginia, Counsel for the Petitioner

Diana Panucci, Esq., 13th Judicial Circuit, Public Defender Corp., Charleston, West Virginia, Farah Diaz-Tello, Esq., National Advocates for Pregnant Women, New York, New York, Counsel for Amici Curiae

Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie A. Warren, Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent

Chief Justice Ketchum :

Petitioner Stephanie Louk (“Ms. Louk”) was convicted of child neglect resulting in death in violation of W.Va. Code § 61-8D-4a [1997], and sentenced to three to fifteen years of incarceration by the Circuit Court of Nicholas County. Ms. Louk appeals the circuit court's December 9, 2014, sentencing order. She argues that when the Legislature wrote our child neglect resulting in death statute, it did not include prenatal acts that result in harm to a subsequently born child.

We have read the law and it is clear: when enacting our child neglect resulting in death statute, the Legislature did not criminalize a mother's prenatal act that results in harm to her subsequently born child. We therefore reverse the circuit court's December 9, 2014, sentencing order. Although we recognize that there may be significant policy implications and social ramifications surrounding the present issue, our review is confined to the plain language of the statute enacted by the Legislature. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. This Court does not sit as a superlegislature, commissioned to pass upon the social, political, or

786 S.E.2d 221

scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions. Thus, the Court's duty in this matter is to enforce the plain language of the child neglect resulting in death statute enacted by the Legislature.1



On June 11, 2013, Ms. Louk injected methamphetamine into her left arm. She was thirty-seven weeks pregnant at that time. A few hours after injecting the methamphetamine, Ms. Louk experienced breathing problems and went to Summersville Regional Hospital. Dr. Tracey Lester treated Ms. Louk upon her arrival at the hospital. Dr. Lester testified that Ms. Louk presented to the emergency room with acute respiratory distress which was caused by her methamphetamine use. Dr. Lester described acute respiratory distress and its effect on Ms. Louk and her fetus2 as follows:

It can cause you to get fluid in your lungs.... In that situation, your lungs fill up with fluid, and your blood stream is not able to get oxygen from your lungs and take it to your brain and vital organs to provide your body, you know, fuel to survive....

When you are deprived oxygen, whether you are pregnant or not, your body shunts all available blood to the brain and the heart for survival....

And with a pregnant patient, blood is going to be shunted away from the baby, away from the placenta to try to keep the mother alive. Any available oxygen is going
786 S.E.2d 222
to be going to the brain and the heart of the mother to try to sustain life....

The baby would normally be getting plenty of oxygen from the mother, but, in this situation where the mother isn't getting enough oxygen to survive herself, any available oxygen's going to the mother, and it's going to be shunted away from the baby to the mother for her survival.

Due to concerns about Ms. Louk's fetus being deprived of oxygen, Dr. Lukasz Rostocki performed an emergency Cesarean section and delivered the child. The child, Olivia Louk, was born “essentially brain dead,” according to Dr. Susan Venuti, the forensic pathologist who performed Olivia Louk's autopsy. Dr. Venuti testified that upon being born, Olivia Louk “had no movement, no spontaneous respirations, and they had to immediately put her on a ventilator to help her breathe.” Olivia Louk died eleven days after she was born. Her death certificate states:

Cause of Death and Contributory Conditions/Factors : It is our opinion that Olivia Louk, an 11 day old female infant who resided in the hospital since birth, died as the result of anoxic encephalopathy following the emergent delivery by Cesarean section to a mother with cardiorespiratory insufficiency in the setting of methamphetamine, benzodiazepine and opioid intoxication. The mother was diagnosed with a new onset cardiomyopathy, clinically diagnosed as possibly stress-induced or drug-induced, and less likely a peripartum cardiomyopathy....

This infant's death occurred in the setting of maternal drug abuse; however, other natural causes contributing to the mother's cardiorespiratory insufficiency cannot be excluded by the postmortem examination of this newborn.

(Boldface in original.)

On January 14, 2014, Ms. Louk was indicted by a Nicholas County Grand Jury on one felony count of child neglect resulting in death in violation of W.Va. Code § 61-8D-4a. The indictment charged Ms. Louk with ingesting methamphetamine which resulted in the death of her child.

Ms. Louk filed a motion to dismiss the indictment, arguing that the law “regarding whether the state can prosecute a pregnant woman for a neonatal loss allegedly caused by a drug overdose during pregnancy is abundantly clear: the legislature has refused to make women criminally liable for the outcome of their pregnancies.” The circuit court denied the motion to dismiss. During a pretrial hearing on Ms. Louk's motion to dismiss, the circuit court explained its ruling as follows: “I'm going to deny the motion to dismiss. I think the child was alive—born alive, and it died eleven days later, and, I mean—and when we get down to doing instructions in this case, I'll have to be a little more specific about what—what comes within that statute, but we will—we'll cross that bridge when we get to it.”

Following a two day jury trial, Ms. Louk was convicted of one felony count of child neglect resulting in death. The circuit court subsequently ordered that she be incarcerated for three to fifteen years. Ms. Louk appeals the circuit court's sentencing order.



This Court's standard of review is set forth in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). It states, “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”



The issue before this Court is 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 § 61-8D-4a. The offense of child neglect resulting in death under W.Va. Code § 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
786 S.E.2d 223
cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars or committed to the custody of the division of corrections for not less than three nor more than fifteen years, or both such fine and imprisonment.

(Emphasis added.) The term “child” is defined in W.Va. Code § 61-8D-1(2) : “ ‘Child’ means any person under eighteen years of age not otherwise emancipated by law.”

Ms. Louk argues that an individual cannot be charged with child neglect resulting in death under W.Va. Code § 61-8D-4a for prenatal ingestion of a controlled substance because an “unborn child” or “fetus” is not a “child” under the statute. By contrast, the State contends that “a child injured prior to birth but born alive, is a ‘child’ as defined in W.Va. Code § 61-8D-1(2), and may be a victim of parental neglect pursuant to W.Va. Code § 61-8D-4.” Further, the State argues that Ms. Louk's criminal liability for Olivia Louk's death “is consistent with the common law ‘born alive’ rule.”

This issue requires us to examine W.Va. Code § 61-8D-4a. We therefore begin with a review of our rules of statutory construction. This Court has held that in deciding the meaning of a statutory provision, “[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep't of West Virginia , 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995) ; see also Syllabus Point 2, Crockett v. Andrews , 153 W.Va. 714, 172 S.E.2d 384...

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    • Georgetown Law Journal No. 109-3, February 2021
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