Arkansas Court of Appeals Overturns Criminal Conviction for Concealing a Birth

March 14, 2018

The Arkansas Court of Appeals has issued a unanimous ruling reversing Anne Bynum’s conviction for “concealing a birth” that resulted in a sentence of six years in prison. The criminal charge and conviction stemmed from the state’s claims about Ms. Bynum’s actions after she experienced a stillbirth at home in 2015. The three-judge panel found that the trial court in Drew County had abused its discretion by allowing the jury to consider evidence about Ms. Bynum’s past pregnancies and outcomes including abortion, that “clearly prejudiced” the verdict in the case.

It is rare to have a conviction overturned on the grounds of “abuse of discretion.” As the court found in throwing out Ms. Bynum’s conviction, the trial court here “act[ed] improvidently, thoughtlessly, or without due consideration.” Because the prosecutor introduced and the trial court allowed prejudicial evidence, the Court of Appeals remanded the case back to the trial level, which allows the prosecutor to choose whether to retry Ms. Bynum on the same charge.

Pregnancy Justice Director of Legal Advocacy Nancy Rosenbloom said, “The appeals court did not rule on several constitutional challenges to the law and how it was used, finding that the original trial attorney did not preserve those issues for appellate review. If the prosecutor opts to bring Ms. Bynum to trial again, constitutional claims will be raised.”

Ms. Bynum, an Arkansas mother, was arrested and charged with abuse of a corpse and concealing a birth after she had a pregnancy that ended with a stillbirth at home. After the stillbirth, Ms. Bynum safeguarded the fetal remains and several hours later brought those remains to a hospital, asking to see a doctor. Ms. Bynum was arrested five days later on charges of “concealing a birth,” a felony carrying a potential six-year prison sentence and fine of up to $10,000, and “abuse of a corpse,” a felony carrying a sentence of up to 10 years in prison and a fine of up to $10,000. Local law enforcement alleged that Ms. Bynum took a number of pills to induce an abortion, after which her pregnancy ended with a stillbirth. In fact, as the Court of Appeals recognized, Ms. Bynum had planned to give birth and have her baby adopted.

After a motion made by defense counsel, the trial court dismissed the abuse of a corpse charge before the case went to the jury. The jury, however, convicted her of concealing a birth. This law has only been used rarely and only in cases where people attempted to conceal the fact of a birth altogether. In this case the prosecutor argued that the jury should convict Ms. Bynum – an adult in her 30’s - for concealing a birth because she had not told her mother she was pregnant and because she temporarily placed the stillborn fetus in her car for several hours before going to the hospital. He made this claim despite the evidence that established she notified many people about her pregnancy, contacted several people after the stillbirth, and then went to the hospital with the fetal remains. Notably, in the decision, the court recognizes that the Arkansas concealing birth law, which “does not provide for any exceptions, including a ‘grace period’ for concealment,” is “harsh.” Pregnancy Justice Executive Director Lynn M. Paltrow said, “The concealing birth law and this prosecution will leave pregnant women in Arkansas with extreme confusion about what to do when they have a stillbirth or miscarriage at home. If a woman waits even one minute before calling the authorities, she could potentially be charged with concealing a birth.”

Paltrow continued, “Pregnant women should not have to endure the threat of criminal prosecution for pregnancy or for failing to guarantee a healthy pregnancy outcome.”

Pregnancy Justice represented Ms. Bynum on the appeal. Consulting attorney Daniel Arshack argued for Pregnancy Justice in front of a three-judge panel in January. The National Perinatal Association offered a friend of the court (amicus) brief in support of Ms. Bynum in this case, which the court did not accept without explaining why. Pending the final outcome of the case, Ms. Bynum has been home with her young son.

For more information, please contact Shawn Steiner, Media and Communications Manager, Pregnancy Justice: | 212.255.9252 | 917.497.3037