Critics dispute prosecutors’ need for co-sleeping bill

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A bill that seeks to add another charge prosecutors can use for co-sleeping deaths already is getting pushback for a lack of clarity.

The bill, introduced Tuesday in the state Senate, would make it a felony to harm a child under the age of 1 while intoxicated and sleeping in the same bed. If convicted, a defendant would face up to 25 years in prison.

Senate Bill 357 states that if an infant is harmed due to co-sleeping, the guilty party faces up to six years in prison. If an infant is severely harmed, the defendant faces more than 12 years.

The bill is sponsored by Sen. Alberta Darling, R-River Hills. It was referred to the Senate’s Health and Human Services Committee, which is chaired by the bill’s co-sponsor, Sen. Leah Vukmir, R-Wawautosa.

Darling did not immediately return a phone call Wednesday.

The sponsor of the bill’s Assembly version, Rep. Samantha Kerkman, R-Powers Lake, said it should be introduced there this week.

Though it’s possible the bill could result in increased prosecution, Kerkman said, the main goal is to provide prosecutors another tool for combatting co-sleeping deaths.

“I don’t want to see the statute used,” she said, “but by chance there is a circumstance that arises where facts of the case show that the parent did co-sleep with the child, it would be there as a tool for the DA to make that.”

But critics say there is nothing in the bill that would facilitate increased prosecution or clarify the issue.

Anthony Cotton, an attorney with Kuchler & Cotton SC, called the bill “another tool for an agency that doesn’t need a tool.” Prosecutors already have a number of applicable charges, he said, from child neglect to reckless homicide.

Milwaukee County District Attorney John Chisholm has said prosecutors and investigators already have a protocol to investigate infant deaths and to determine whether anybody should be charged. More often than not, he said, nobody is charged.

Adam Gerol, president of the Wisconsin District Attorneys Association and the district attorney in Ozaukee County, said the criminal negligence portion of any charge involving co-sleeping is difficult to prove. If the situation involves intoxication, he said, that often means testing suspects hours after the death – when they wake up – and after most alcohol has been metabolized.

“Short of a confession, we’re left with very little at that time,” Gerol said, adding that his organization has not yet taken a position on the bill.

Brian Peterson, Milwaukee County’s medical examiner, took his opposition to the bill a step further. He said the bill would provide “a new class of crime that puts the onus squarely on us to say exactly what happened.”

Peterson said it already is difficult to tell the difference between Sudden Infant Death Syndrome and asphyxiation – the cause of the vast majority of deaths that result from bed sharing. This bill, he said, would immediately treat parents as a suspect instead of a victim of a tragedy, and they would in turn be less likely to be truthful about what happened in the bed that night.

“Unfortunately, there is nothing easy about infant death,” he said. “This bill is trying to legislate one. It’s trying to legislature technology or legislate science.”

But Kerkman pointed out that Kenosha County, where she lives, includes in its protocol a requirement that the adult who was in the bed with the child submit to a blood test. She said that she wants to work with other counties, including Milwaukee, to create a similar protocol to ensure that all bases are covered during investigations of possible co-sleeping deaths or injuries.

The bill also contains a number of educational components, including requiring a doctor or nurse to give new parents materials about co-sleeping and providing high school students with materials about co-sleeping while intoxicated.

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