There Are No Safe Havens Without the “Exclusionary Rule”

New Hampshire’s legislature has just passed HB 1607, a bill to restore and expand New Hampshire’s Baby Safe Haven Law—sometimes called the “baby drop-off law.” While safe havens may not seem like a hot-button issue, bills in Concord rarely carry the moral weight of HB 1607. The lives of babies will be incontrovertibly saved if this bill is signed and lost if it is vetoed.

In New Hampshire, a bill’s title is not chosen by its sponsors. Although the title says it will “expand” safe haven protections—something it will certainly do—Rep. Glenn Cordelli and his colleagues introduced it primarily to bring our Safe Haven Law back from the dead. The reality is that, without this bill, New Hampshire’s law will simply no longer work.

Controversy around HB 1607 has focused on the bill’s “exclusionary rule” provision. This clause says that evidence obtained from a Safe Haven drop-off is inadmissible in a criminal trial against a parent. To put it in simpler terms, this bill will block safe havens from being used as a law enforcement tool to catch criminal parents. Instead, it will allow safe havens to be used for their intended purpose: to save babies.

Critics of the law sometimes insist that they “support the intent of the law” but oppose the exclusionary rule. But this is a meaningless series of words. Unless we prevent safe havens from being used as a trap by law enforcement, the law itself will no longer function.

Outspoken opponents of the bill—at this point, essentially a few state representatives and New Hampshire’s Department of Health and Human Services—are in effect rejecting the very idea of having a safe haven for babies.

What is the Safe Haven Law?

New Hampshire’s Safe Haven Law was signed 20 years ago by Republican Governor Craig Benson. Sponsored by Representative Phyllis Woods, the law allows unwanted babies to be legally surrendered at specific locations, including hospitals and churches.

Our Safe Haven Law has directly saved the lives of at-risk babies. While no state agency collects official statistics on safe haven drop-offs, at least four such cases have been mentioned in media reports, with three of these being well-documented.  

Some critics—chiefly New Hampshire’s DHHS—have downplayed the law by emphasizing that only four lives have been saved. This criticism is morally absurd. If Rep. Woods had personally carried four people from a burning building, nobody would minimize her actions by claiming that she “only saved four people.”

More importantly, this criticism ignores the numerous lives that may be saved if the law continues to function for even another twenty or forty years. Nationwide, safe haven laws rescue dozens of babies every year, including at least 73 in 2021 alone. Unfortunately, if nothing changes, no hospital in New Hampshire is ever likely to function as a safe haven again.

On paper, New Hampshire’s law allows parents to surrender their babies anonymously—no questions asked. Yet this guarantee has always relied upon hospitals, police, and other officials to willingly honor the spirit of the law. Without their voluntary participation, the current law can no longer work.

While law enforcement have unwittingly caused difficulties for our Safe Haven Law since at least 2012, the problem boiled over when a safe haven was used as a law enforcement tool to catch and prosecute two criminal parents, Danielle Dauphinais and Joseph Stapf.

In October of 2021, Stapf surrendered the couple’s newborn child at a New Hampshire hospital. But, rather than honor the parents’ anonymity—as Rep. Woods had always intended—the hospital actively reported Stapf to the authorities and helped law enforcement identify him. As a direct result of surrendering their baby alive, Dauphinais and Stapf were investigated and arrested for a separate murder charge and a litany of other crimes.

Danielle Dauphinais did not agree to surrender this baby out of the goodness of her heart. Dauphinais once laughed about starving her previous child to death and, presumably, would not have thought twice about casually murdering Stapf’s baby and discarding it in a trash bag. She later told police she had used the Safe Haven Law because she thought it would allow her to rid herself of the baby without attracting attention from the authorities. She was wrong.

Yet Stapf and Dauphinais were exactly the kind of parents who Rep. Woods and her colleagues had wanted to incentivize to surrender their children. As a rule, parents who are willing to leave their babies with strangers or in a box are drug addicts, violent criminals, or worse.

In New Hampshire, we have now announced to these parents that choosing to surrender your child will lead directly to your imprisonment: the complete opposite of how safe havens were intended to work. In other words, we have positively incentivized parents like Dauphinais not to spare their babies’ lives.

Based on my own conversations with lawmakers and advocates around the country, ours may be the first case in America of a safe haven law being misused so egregiously.  

Children are dying while the state fails

Consider a specific baby that could’ve been helped by Rep. Cordelli’s bill. Mattilynn Kitner, a 2-week-old baby who died in a Somersworth mobile home park, was the subject of a wrongful death suit earlier this year.

Mattilynn lived a short life surrounded by meth and other hard drugs. Her father died of a drug overdose two weeks before her birth, and Mattilynn herself was born with an addiction to cocaine and fentanyl. When Mattilynn was two weeks old, her mother and a male friend had sex on top of her while high on drugs, wedging her into the cushions of a couch and asphyxiating her.

What would’ve happened if, instead of suffocating her, Mattilynn’s mother had dropped her off alive at a hospital under the Safe Haven Law? Thanks to the Dauphinais case, we don’t need to speculate. The hospital would’ve reported Mattilynn’s mother to the police. The police would have investigated the mother, gone to the mobile home where Mattilynn lived, and made arrests for drug possession, drug trafficking, child endangerment, or other crimes.  

From the standpoint of pure self-interest, in fact, it would’ve been pretty stupid of Mattilynn’s mother to do the right thing and leave her at a safe haven. This is the situation we’ve created in New Hampshire.

Mattilynn is not alone: about 7 children die of abuse or neglect in New Hampshire per year. By asking Governor Sununu to sign HB 1607, you can help to prevent that number from increasing in the wake of Dauphinais’ arrest.

Arguments against the exclusionary rule do not make sense

Opponents of HB 1607 sometimes characterize the exclusionary rule as giving people “immunity” to commit crimes. In reality, the rule won’t immunize anyone from any prosecution.

Rep. Bob Lynn, New Hampshire’s former Chief Justice, spoke in support of the bill from the House floor. As he explained, the bill confers “use immunity,” not “act immunity.” That means the police can use witness testimony or other evidence to prosecute you—they simply can’t use evidence obtained as a direct result of your using a safe haven.

Similarly, a few Republicans have objected to the bill by saying the law should “always be consistent.” This bill is bad, the argument goes, because it treats people who are surrendering babies differently from other people in other situations. But Republicans making this argument simply don’t understand how the legal system works.

In the United States, we exclude all kinds of perfectly sound evidence from court. We exclude evidence obtained from illegal searches, attorney-client communications, and conversations between a patient and a doctor. We do this because we’ve decided that society has a strong interest in protecting the privacy of these kinds of communications.

If critics claim that “the law should be consistent,” or that “evidence should never be suppressed,” ask them if they also want to repeal the Fourth Amendment exclusionary rule, attorney-client protection, doctor-patient protection, and so on.

Just as people who are surrendering a baby will now be treated differently from people who are not surrendering their babies, doctor-patient privilege already treats people talking to their doctor differently from people who are talking to their friends.

Likewise, we can easily imagine a scenario in which the best evidence of a murder or rape is a defendant’s privileged statement to his attorney. In fact, this situation is far more common than the bizarre fantasy scenarios that critics like Rep. Seth King have concocted to attack safe haven protections. Yet, under attorney client-privilege, this defendant’s statements will be inadmissible in court. Should we therefore repeal attorney-client privilege on the grounds that it grants “immunity” to rapists and murders?

Because in this case we are talking about the lives of babies, the social interest in saving that baby is, if anything, even stronger than our interest in—for example—protecting my confidential conversations with my clients. 

We should extend at least that same protection to babies who will demonstrably die if we positively incentivize abusive criminal parents not to surrender them.

No critic of the bill will answer Rep. Peternel’s question

In Rep. Katy Peternel’s floor speech in favor of this bill, she asked legislators to consider what will happen to the next Dauphinais baby if this exclusionary rule is not added to the law.

If a dangerous, criminal parent wishes to rid herself of an unwanted baby, but keeps the baby only because she fears arrest, then—in Rep. Peternel’s words—“What will happen to the baby?

The complete refusal of critics to answer this question is their most telling failing. As Rep. Peternel has observed, “No legislator, no lobbyist, and no government official seems ready to say out loud what, if we do not pass this bill, will happen to the baby.”

That’s because the answer, which everyone on both sides of this debate already knows, is unspeakable: the bill’s critics would rather sacrifice the child’s life—in the faint hope of having more evidence against criminal parents—than allow the baby to be surrendered alive. If there was another logical answer to Rep. Peternel’s question, this bill’s critics would have told us. They have not.

HB 1607 could be signed or vetoed by Governor Sununu in a matter of days. Call on your churches, communities, and local charitable organizations to get involved. Call the Governor’s office at 603-271-2121, or email him at, and ask him to save the lives of children by signing this bill. 

For more information, see Rep. Katy Peternel’s full floor speech on the bill. You can also find out how to set up your church as a safe haven at Cornerstone’s resources page for churches.

Originally published in NH Journal.

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