Pregnancy Criminalization, Reproductive Asymmetry, and Race: An Experimental Study

• Published date: 01 December 2018
• DOI: 10.1177/1557085117698752
• Date: 01 December 2018
• Subject Matter: Articles

https://doi.org/10.1177/1557085117698752

Feminist Criminology

2018, Vol. 13(5) 560 –582

© The Author(s) 2017

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DOI: 10.1177/1557085117698752

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Article

Pregnancy Criminalization,

Reproductive Asymmetry,

and Race: An Experimental

Study

Cynthia Daniels1 and Christin L. Munsch2

Abstract

Despite scientific evidence to the contrary, pregnancy criminalization cases are based

on assumptions of reproductive asymmetry—the belief that women are exclusively

responsible for fetal health. In this article, we test the impact of disrupting this

assumption. In Study 1, when asked to read a case involving charges of chemical

endangerment, participants exposed to testimony about the effects of paternal drug

use on pregnancy outcomes viewed both Black and White defendants as less culpable

than participants in the control group. In Study 2, a homicide case, information about

male-mediated harm reduced perceptions of culpability for White, but not Black,

defendants.

Keywords

pregnancy criminalization, reproductive asymmetry, mothers who use drugs, legal

issues, intersections of race/class/gender, female criminality, child abuse, homicide

In 2014, Melissa McCann Arms was charged with “introducing a controlled substance

into the body of another person” when she gave birth to an otherwise healthy baby

who tested positive for methamphetamine. The original intent of the Arkansas law

under which Arms was prosecuted was to criminalize the surreptitious use of Rohypnol

(the “date rape drug”) and allow victims to criminally prosecute their assailants. In

Arms’ case, however, the law was applied to the transmission of drugs from a pregnant

woman to her fetus. Arms was found guilty and sentenced to 20 years in prison. When

1Rutgers, The State University of New Jersey, New Brunswick, NJ, USA

2University of Connecticut, Storrs, CT, USA

Corresponding Author:

Christin L. Munsch, University of Connecticut, 344 Mansfield Road, Unit 1068, Manchester Hall, Storrs,

CT 06269, USA.

Email: christin.munsch@uconn.edu

698752FCXXXX10.1177/1557085117698752Feminist CriminologyDaniels and Munsch

research-article2017

Daniels and Munsch 561

her conviction was later overturned by the Arkansas Supreme Court, the State Attorney

General and legislature immediately moved to explicitly criminalize drug delivery to

a fetus (Arms v. Arkansas, 2015; Associated Press, 2015).

Such cases are increasingly common. Between 1973 and 2005, Paltrow and Flavin

(2013) documented more than 400 cases in 44 states in which pregnant women were

criminally charged for behavior allegedly harmful to their fetuses. A more recent

investigation identified more than 400 cases between 2006 and 2015 in the state of

Alabama alone (Martin, 2015). In this article, we argue such cases are based on

assumptions of reproductive asymmetry—or the belief that women are nearly exclu-

sively responsible for fetal health. Despite widespread and growing evidence that

men’s behaviors—including alcohol use, nicotine use, legal and illegal drug use, and

exposure to occupational and environmental hazards—are associated with increased

rates of miscarriage, stillbirth, and birth defects (Daniels, 2006), prosecutors and

defense attorneys have failed to consider the role of fathers in such cases. We experi-

mentally assess the impact of disrupting these assumptions by introducing information

about male-mediated fetal harm in pregnancy criminalization cases. To be clear, we

are not advocating widening the circle of criminal punishment to include fathers.

Rather, we introduce this information to complicate potential jurors’ thinking about

causality—which has been singularly focused on individual women—and to test

whether its introduction might reduce criminal culpability for pregnant women.

Furthermore, given that Black women are disproportionately arrested, convicted, and

incarcerated on pregnancy criminalization charges (Flavin, 2009; Paltrow & Flavin,

2013), we also examine the role of defendant race in pregnancy criminalization cases,

as well as the possible multiplicative effects of assumptions of reproductive asymme-

try and race on assessments of culpability.

We begin our article with a brief summary of typical pregnancy criminalization

cases, followed by a summary of the evidence regarding male-mediated fetal harm.

Next, we introduce the race critique to show how seemingly colorblind pregnancy

criminalization laws may create and perpetuate racial inequality. We then describe the

findings of two experimental studies designed to test the effect of disrupting assump-

tions of reproductive asymmetry on perceptions of Black and White defendants in

pregnancy criminalization cases. In the first study, we examine the effect of receiving

information about male-mediated fetal harm on perceptions of a defendant charged

with chemical endangerment, or exposing her fetus to a controlled substance. In the

second study, we examine the effect of receiving information about male-mediated

fetal harm on perceptions of a defendant facing the more egregious charge of homi-

cide. We conclude by reflecting on the implications of our findings for the defense of

pregnant women facing prosecution, as well as what they reveal about the role of

pregnancy criminalization in the perpetuation of racial inequality.

Pregnancy Criminalization and the Law

Pregnancy has long been the basis for differential treatment under the law (Daniels,

1993; Eisenstein, 1988). Pregnant women often lose certain constitutional rights