Investigating & Prosecuting Drowning Cases
Presented by: Kate Loudenslagel & Hilary Weinberg
Audience Poll: Have you ever investigated or prosecuted a case involving drowning?
Drowning Cases are not common for some jurisdictions.
What types of cases do they see?
- Children/Vulnerable adults in pools
- Children/Vulnerable adults in bathtubs
- Homicide victims placed in bathtubs, pools, lakes
These cases range from homicides all the way down to “accidents”
It’s hard to put a bright line on what is an accident.
Audience Poll: Does your jurisdiction have a law where someone could be charged criminally for a drowning?
I don’t know 38%
In Arizona, Child or Vulnerable Adult Abuse Laws fall into 2 categories:
- Are left to likely produce death or serious physical injury
- Left under circumstances other than those likely produce death or serious physical injury
Level of Felony
Class 2 Felony – Intentionally/knowingly
Class 3 felony – not a DCAC
Class 4 Felony – Not a DCAC
Class 5 – Recklessly
Class 6 – Felony can be pled as a 6 open or misdemeanor, possible 36-week diversion program
They talk with the law enforcement officers, child protective services, investigators – what is going on in the home: get the right services to the home. For example: is there a constant pattern of leaving the kids alone?
Drowning Cases Come with a lot of Challenges
According to Kevin Erskine’s article in Evidence Technology Magazine (2011) even the personnel responding to a water-related death consider it an accident.
- Culturally these types of deaths were perceived as accidents – similar to
- Many agencies do not have the training to adequately handle these types of investigations (like of dive team/equipment)
- Chaotic scenes – it’s not as easy to contain a water scene (ie: a lake) – can result in loss of evidence and witnesses.
Key tips for investigations:
- Note level of water in the tub.
- Make sure it’s documented and observations made with what kind of stopper is used to keep the water in.
- If water is drained, where is the highest point tub is wet?
- How long is does it take to fill the tub to that point?
- The temperature of the water can matter.
- Is there anything in the tub that should not be there/things missing?
- Just like with any child abuse case – get the best timeline possible.
Timelines become incredibly important in these cases and may require experiments, particularly with premeditation.
Getting Past the Concept of “Accident”
- Juries don’t like to think that a parent could be responsible for a child’s death
- Parent/caretaker often comes across as sympathetic
- Varying degrees of culpability
- Susan Smith case in South Carolina
- Andrea Yates case in Houston (had suffered from mental illnesses for years)
- Considerations: Presence of others, mislabeled depths
[Presenters share a surveillance video of a drowning at a public “lagoon-like” pool with numerous people in and around the pool area as a “case study” for understanding drowning cases.] A child abuse-related charge was filed, case was pled out.
Having watched the video, should someone be charged criminally for this drowning?
Select one or more of the following:
No, this was just an accident 12%
Yes, the community pool owners operators 12%
Yes, the child’s caregiver 71%
I don’t know 17%
Difficulties for Pathologists
- These cases are one of the most challenging for pathologists
- Lungs may not reflect drowning
- Postmortem wandering = the body sinks until refloat which can cause the body to be injured on the bottom of the waterway.
- Maggots/fish feeding
- Decomposition – though bodies submerged for long periods such as weeks or months will develop a waxy film which slows decomposition and preserves internal organs.
What if the body has trauma on it not related to drowning?
- Was the victim injured and placed in water?
- Was the victim likely deceased before being placed in the water?
Key issue is causation – was the victim left in a position where a drowning was likely to occur? (Homocide)