Filling the void: Model legislation for fetal homicide crimes

Columbia Journal of Law and Social Problems

Volumn 43, Issue 1, 2009, Pages 77-116

  Pedone, Joanne ^a  

^a NONE

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EID: 75749100624     PISSN: 00101923     EISSN: None     Source Type: Journal    
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References (289)

1. People v. Gray, 736 N. Y. S.2d 856, 858 (Sup. Ct. 2002),
2. aff'd, 778 N. Y. S.2d 291 (App. Div. 2004).
3. Gray, 736 N. Y. S.2d at 859.
4. N. Y. PENAL LAW § 125.05 (1) (McKinney 2009).
5. Unless otherwise indicated, for ease of reference, this Note will use the term "fetus" when referring to an unborn child at any stage of development, including the zygote, blastocyst, and embryo.
6. A key difference between abortion laws and fetal homicide laws is that the latter are designed to remedy a harm that occurs without the consent of the woman. Unlike with abortion, the actions taken against her and her fetus with fetal homicide are not done for her benefit and do not concern her constitutional right to privacy. Fetal homicide laws typically contemplate a third-party's violent actions against the pregnant woman, so that both the woman and her fetus are victims. As will be discussed, nine of these sixteen states do have explicit provisions criminalizing assaults against pregnant women; however, even when these assaults result in fetal death, they are neither classified as nor punished as homicides.
7. Michael Holzapfel, Comment, The Right to Live, the Right to Choose, and the Unborn Victims of Violence Act, 18 J. CONTEMP. HEALTH L. & POLY 431, 434 (2002).
8. See Douglas S. Curran, Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws, 58 DUKE L. J. 1107, 1112-15 (2008).
9. H. R. REP. NO. 108-420, pt. 1, at 3-4 (2004), reprinted in 2004 U. S. C. C. A. N. 533.
10. An example of one such challenge occurred regarding the Illinois fetal homicide statute, 720 ILL. COMP. STAT. ANN. 5/9-1.2 (West 2009). The Appellate Court of Illinois, Fourth District, upheld the constitutionality of the fetal homicide statute in People v. Ford, 581 N. E.2d 1189, 1200, 1202 (Ill. App. Ct. 1991). The defendant claimed that since Roe v. Wade allows a woman to destroy her nonviable fetus, Illinois's fetal homicide law violates the Equal Protection Clause of the Federal Constitution.
11. Id. at 1199. The defendant argued he was similarly situated to a pregnant woman, yet he was being treated dissimilarly because his actions were criminalized while a mother's same actions would not be criminal.
12. Id. Applying rational basis scrutiny, the Court rejected this argument:
13. Clearly, a pregnant woman who chooses to terminate her pregnancy and the defendant who assaults a pregnant woman, causing the death of her fetus, are not similarly situated. A woman consents to the abortion and has the absolute right, at least during the first trimester of the pregnancy, to choose to terminate the pregnancy. A woman has a privacy interest in terminating her pregnancy; however, defendant has no such interest. The statute simply protects the mother and the unborn child from the intentional wrongdoing of a third party.
14. Id. For a more comprehensive review of other such challenges
15. see discussion infra Part III. C.1.
16. Hughes v. State, 868 P.2d 730, 732 (Okla. Crim. App. 1994).
17. But see Bracton, THE LAWS AND CUSTOMS OF ENGLAND s reprinted in Keeler v. Superior Court, 470 P.2d 617, 620 n. 4 (Cal. 1970) ("If there be anyone who strikes a pregnant woman or gives her a poison whereby he causes an abortion, if the foetus [sic] be already formed or animated, and especially if it be animated, he commits homicide.");
18. Michael S. Robbins, The Fetal Protection Act: Redefining "Person" for the Purposes of Arkansas' Criminal Homicide Statutes, 54 ARK. L. REV. 75, 77-78 (2001) (citing to Fleta, a contemporary of Bracton, who shared his understanding that prosecution for fetal homicide can occur even if the fetus is not born alive). No reported cases support Bracton's view.
19. Keeler, 470 P.2d at 620 n. 4. By the early fourteenth century, the "born alive" rule was firmly entrenched in the common law.
20. Robbins, supra, at 78.
21. See Stephanie Ritrivi McCavitt, The "Born Alive" Rule: A Proposed Change to the New York Law Based on Modern Medical Technology, 36 N. Y. L. SCH. L. REV. 609, 612 (1991). Many states have since changed their laws regarding fetal homicide, so this Note updates McCavitt's research.
22. See Roger J. Magnuson & Joshua M. Lederman, Aristotle, Abortion, and Fetal Rights, 33 WM. MITCHELL L. REV. 767, 772 (2006).
23. Curran, supra 7, at 1114.
24. Sandra L. Smith, Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application, 41 WM. & MARY L. REV. 1845, 1847 (1999);
25. see also Hughes, 868 P.2d at 732 ("The born alive rule was necessitated by the state of medical technology in earlier centuries. In fact, as late as the nineteenth century, prior to quickening 'it was virtually impossible for either the woman, a midwife, or a physician to confidently know that the woman was pregnant, or, it follows, that the child in utero was alive.'" (quoting Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U. L. REV. 563, 573 (1987)) (citation omitted));
26. Alison Tsao, Fetal Homicide Laws: Shield Against Domestic Violence or Sword to Pierce Abortion Rights?, 25 HASTINGS CONST. L. Q. 457, 460-461 (1997) ("The primitive state of medicine during the common law period necessitated the 'born alive' rule. First, the medical profession considered it impossible to determine whether a fetus was capable of independent existence before the baby was born. Second, doctors could not accurately determine the cause of death of a fetus, thereby destroying the requisite causation element necessary to prove a murder." (footnote omitted)).
27. Keeler, 470 P.2d at 631.
28. Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 EMORY L. J. 843, 846 (2007);
29. Shannon M. McQueeney, Recognizing Unborn Victims over Heightening Punishment for Crimes Against Pregnant Women, 31 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 461, 464-65 (2005).
30. Hughes, 868 P.2d at 732.
31. Smith, supra note 14, at 1847.
32. McCavitt, supra note 11, at 612 (footnote omitted). The oft-quoted words of Sir Edward Coke, in the seventeenth century, illustrate the common law understanding of the intersection between the criminal law and actions taken to cause the death of a pregnant woman's fetus against her will: "If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision (i.e., misdemeanor), and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, In rerum natura, when it is born alive." 3 Edward Coke, Institutes of the Laws of England 58 (1648)
33. as reprinted in Keeler, 470 P.2d at 620 (footnote omitted)
34. superseded by statute, CAL. PENAL CODE § 187 (a) (West 2008).
35. Id. at 621.
36. Curran, supra note 7, at 1132.
37. Id.
38. Forsythe, supra note 14, at 586.
39. In 1970, in Keeler v. Superior Court, the California Supreme Court resisted abandoning the "born alive" rule without evidence of the explicit legislative intent to include fetuses in the definition of "human being" in the state's murder statute. 470 P.2d at 618, 625-26. The California legislature responded almost immediately by eliminating the "born alive" rule. In Keeler, the victim was married to the defendant, although they were separated at the time.
40. Id. at 618. She had been secretly living with another man and was in the third trimester of pregnancy when the defendant made this discovery and accosted her.
41. Id. He blocked her car while she was driving on a narrow road and told her that he would "stomp it out" of her.
42. Id. He proceeded to drive his knee into her abdomen, crushing the fetus's skull.
43. Id. After a caesarian section, the fetus was delivered stillborn.
44. Id. at 618-19. The court found that no criminal charges could be brought with respect to the dead fetus because the child was not born alive first.
45. Id. at 628. In the same year as the decision, the California legislature responded to Keeler by changing the murder statute to explicitly include fetuses, becoming the first state to recognize fetal homicide.
46. See, e.g., People v. Carlson, 112 Cal. Rptr. 321, 325 (Ct. App. 1974) ("In response to the holding in Keeler, the Legislature subsequently amended section 187 to provide that [m]urder is the unlawful killing of a human being, [o]r a fetus, with malice aforethought.") (internal quotation marks omitted).
47. See discussion infra Part II. C.
48. MODEL PENAL CODE § 210.0 (1) (1962).
49. H. R. REP. NO. 108-420, pt. 1, at 5 (2004)
50. reprinted in 2004 U. S. C. C. A. N. 533.
51. Tsao, supra note 14, at 461.
52. 868 P.2d 730, 732 (Okla. Crim. App. 1994).
53. Commonwealth v. Cass, 467 N. E.2d 1324, 1328 (Mass. 1984) (quoting Cyril C. Means, Jr., The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Centurty Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335, 339 (1971)) (citations and footnotes omitted).
54. Other courts have similarly recognized that the basis for the "born alive" rule has been undermined but have deferred to the legislature to change the rule. For example, in 1987, the Tennessee Court of Criminal Appeal in State v. Evans recognized the argument that the "born alive" rule was a "rule of evidence mandated because the primitive nature of medicine at common law prevented proof that a child in utero was alive unless it was physically observed to be so outside the womb." 745 S. W.2d 880, 883 (Tenn. Crim. App. 1987). The court also noted the arguments presented by amicus curiae: "It is earnestly insisted that current advances in medical science have eliminated the only reason for which the 'born alive rule' was created and the rule no longer can be rationally applied. This argument is bolstered by references to a host of medical writings on the subject documenting the theory that the 'born alive rule' has outlived its usefulness."
55. Id. at 883. After considering these arguments, ultimately the court upheld the "born alive" rule because "[w]hile it may be true, as Amici suggest, that medical evidence today can clearly establish the corpus delicti of the unborn child in this case, this is a matter which lends itself to action by the legislature."
56. Id. at 884. By 1989, the Tennessee legislature changed the law to include viable fetuses as victims in the state's homicide laws. TENN. CODE ANN. § 39-13-214 (West 2009).
57. McQueeney, supra note 16, at 463. Before more sophisticated medical technology was available to monitor a fetus, it was almost impossible to determine when an unborn child died in the womb. "As a result, live birth was required to prove that the unborn child was alive and that the material acts were the proximate cause of death, because it could not otherwise be established if the child was alive in the womb at the time of the material acts."
58. Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U. L. REV. 563, 575 (1987).
59. H. R. REP. NO. 108-420, pt. 1, at 4 (2004)
60. reprinted in2004 U. S. C. C. A. N. 533.. Although few cases make are widely publicized, many murders of pregnant women go unnoticed. The Washington Postran a series of articles on the unbelievably high number of pregnant woman killed. For some reason there is great reluctance to address the problem of criminal acts against pregnant women in the news as well as in the law. Their killings produced only a few headlines, but across the country in the last decade, hundreds of pregnant women and new mothers have been slain. Even as Scott Peterson's trial became a public fascination, little was said about how often is [sic] happens, why, and whether it is a fluke or a social syndrome.
61. Donna St. George, Many New or Expectant Mothers Die Violent Deaths, WASH. POST, Dec. 19, 2004, at A01. Dr. Diana Cheng, the director of women's health at the Maryland Department of Health and Medical Hygiene, noted that, "[t]he reality is there are a lot more of these cases that either aren't reported in the news or we just don't know about...." CNN.com Archive of CourtTVNews.com, Laci Peterson Case: When Pregnancy Ends in Murder, http://edition.cnn.com/2007/US/law/12/11/court. archive.peterson8/index.html (last visited Sept. 22, 2009). Along with Dr. Isabelle Horon in 2001, Dr. Cheng "conducted a study in Maryland to determine the leading cause of death among pregnant women from 1993 to 1998. Of the 247 women who died while pregnant, homicide was found to be the leading cause of death, accounting for about 20 percent of the cases."
62. Id.
63. This finding was based on a study, which relied on data from the Pregnancy Mortality Surveillance System at the Centers for Disease Control and Prevention, published in the March 2005 edition of the American Journal of Public Health, that found "homicide was a leading cause of death among pregnant women in the United States between 1991 and 1999" and "the pregnancy-associated homicide ratio was 1.7 per 100, 000 live births."
64. Bryan Robinson, Why Pregnant Women are Targeted, ABC NEWS, Feb. 24, 2005, http://abcnews.go.com/US/LegalCenter/Story?id= 522184&page=1.
65. In addition to Laci Peterson, the murders of Lisa Underwood (killed by her boyfriend) and Lori Hacking (killed by her husband) exemplify "what experts say is a growing, and disturbing, national trend: pregnant women being murdered. According to The Washington Post, more than 1, 300 pregnant women and new mothers have been slain since 1990."
66. Brian Dakss, Murders of Pregnant Women Rising, CBS NEWS, Feb. 23, 2005, http://www.cbsnews.com/stories/2005/02/23/earlyshow/main675945. shtml.
67. McQueeney, supra note 16, at 461-62.
68. 410 U. S. 113, 154 (1973).
69. Id. at 150.
70. Id. at 163;
71. Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 833-36 (1992) (maintaining viability as the relevant constitutional standard for determining a state's ability to regulate abortion).
72. Roe, 410 U. S. at 163.
73. Fetal homicide laws contain explicit exceptions for actions authorized by the pregnant woman, such as abortion or other medical procedures. An example is the South Carolina Unborn Victims of Violence Act of 2006: Nothing in this section may be construed to permit the prosecution under this section: (1) of a person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law; (2) of a person for any medical treatment of the pregnant woman or her unborn child; or (3) of a woman with respect to her unborn child. S. C. CODE ANN. § 16-3-1083 (B) (2009).
74. Roe, 410 U. S. at 154.
75. See, e.g., State v. Coleman, 705 N. E.2d 419, 421 (Ohio Ct. App. 1997).
76. See discussion infra Part IV. A.
77. ALA. CODE § 13A-6-1 (2009);
78. ALASKA STAT. § 11.41.150 (2009);
79. ARIZ. REV. STAT. ANN. § 13-1102 (2009);
80. ARK. CODE ANN. § 5-1-102 (13) (B) (i) (a), (b) (West 2009);
81. CAL. PENAL CODE § 187 (a) (West 2009);
82. FLA. STAT. ANN. § 782.09 (West 2009);
83. GA. CODE ANN. § 16-5-80 (West 2009);
84. IDAHO CODE ANN. § 18-4001 (2009);
85. 720 ILL. COMP. STAT. ANN. 5/9-1.2 (West 2009);
86. IND. CODE ANN. § 35-42-1-1 (West 2009);
87. KAN. STAT. ANN. § 21-3452 (2009);
88. KY. REV. STAT. ANN. § 507A.010 (West 2009);
89. LA. REV. STAT. ANN. § 14:32.5 (2009);
90. MD. CODE ANN., CRIM. LAW § 2-103 (West 2009);
91. MICH. COMP. LAWS ANN. § 750.322 (West 2009);
92. MINN. STAT. ANN. § 609.2661 (West 2009);
93. MISS. CODE ANN. § 97-3-37 (West 2009);
94. NEB. REV. STAT. §§ 28-388 to-394 (2009);
95. NEV. REV. STAT. § 200.210 (2009);
96. N. D. CENT. CODE §§ 12.1-17.1-01 to-08 (2009);
97. OHIO REV. CODE ANN. §§ 2903.01-.08 (West 2009);
98. OKLA. STAT. ANN. tit. 21, § 691 (West 2009);
99. 18 PA. CONS. STAT. ANN. § 2604 (West 2009);
100. R. I. GEN. LAWS § 11-23-5 (2009);
101. S. C. CODE ANN. § 16-3-1083 (2009);
102. S. D. CODIFIED LAWS § 22-16-1.1 (2009);
103. TENN. CODE ANN. § 39-13-214 (West 2009);
104. TEX. PENAL CODE ANN. § 1.07 (49) (Vernon 2009);
105. UTAH CODE ANN. § 76-5-201 (West 2009);
106. VA. CODE ANN. §§ 18.2-32.2 (West 2009);
107. WASH. REV. CODE ANN. § 9A.32.060 (West 2009);
108. W. VA. CODE ANN. § 61-2-30 (West 2009);
109. WIS. STAT. ANN. § 940.04 (2), (6) (West 2009).
110. The Supreme Court of Massachusetts rejected the common-law born-alive rule with respect to viable fetuses in Commonwealth v. Cass, 467 N. E.2d 1324 (Mass. 1984)
111. and Commonwealth v. Lawrence, 536 N. E.2d 571 (Mass. 1989).
112. COLO. REV. STAT. ANN. § 18-3.5-101 (West 2009);
113. CONN. GEN. STAT. ANN. § 53a-59c (West 2009);
114. DEL. CODE ANN. tit. 11, § 606 (2009);
115. IOWA CODE ANN. § 707.8 (West 2009);
116. ME. REV. STAT. ANN. tit. 17-A, § 208-C (2009);
117. N. H. REV. STAT. ANN. § 631:1 (2009);
118. N. M. STAT. ANn. § 30-3-7 (West 2009);
119. N. C. GEN. STAT. ANN. § 14-18.2 (West 2009);
120. WYO. STAT. ANN. § 6-2-502 (2009).
121. Hawaii, Missouri, Montana, New Jersey, New York, Oregon, Vermont, and the District of Columbia.
122. Alabama, Alaska, Arizona, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia, and Wisconsin. See supra note 45.
123. Arkansas, California, Florida, Indiana, Maryland, Massachusetts, Michigan, Nevada, Rhode Island, Tennessee, and Washington. See supra note 45.
124. CAL. PENAL CODE § 187 (a). Interestingly, to date the legislature has not created the "crime of voluntary or involuntary manslaughter of a fetus...."
125. People v. Taylor, 86 P.3d 881, 886 (Cal. 2004).
126. Taylor, 86 P.3d at 881.
127. People v. Davis, 872 P.2d 591, 602 (Cal. 1994). People v. Davis was actually the first California case to hold that while viability was not an element of fetal homicide, the fetus must have progressed beyond at least seven to eight weeks.
128. Id. As one commentator notes, The Davis court viewed the decision in Roe as very narrow and only applicable when a state's interest in protecting potential life is weighed against a mother's right to privacy. Therefore, the court held that 'when the mother's privacy interests are not at stake, the Legislature may determine whether, and at what point, it should protect life inside a mother's womb from homicide.' The Davis court found no such threat to a mother's right to privacy and thus eliminated the viability requirement that had been read into the statute.
129. Monica Mendes, A Low Threshold of Guilt: Interpreting California's Fetal Murder Statute in People v. Taylor, 39 LOY. L. A. L. REV. 1447, 1450-51 (2006) (quoting Davis, 872 P.2d at 599) (footnotes omitted). The interaction between abortion and fetal homicide statutes will be discussed in subsequent sections.
130. Florida, Michigan, Nevada, Rhode Island, and Washington require quickening. Indiana, Maryland, Massachusetts, and Tennessee require viability. See supra note 45.
131. McQueeney, supra note 16, at 464.
132. Id. at 464-65.
133. Eggart v. State, 25 So. 144, 145 (Fla. 1898). Similarly, a Washington statute in 1946 criminalized abortion for a quickened fetus: "It may be noted here that this reference to 'quick child' in the statute is an allusion to the common law rule that the embryo came within the protection of the law only when it quickened. This has nothing to do [with] an abortionist's criminal liability for the death of the mother."
134. State v. Hart, 175 P.2d 944, 949 (Wash. 1946).
135. McQueeney, supra note 16, at 465;
136. see also IND. CODE ANN. § 16-18-2-365 (West 2009) (defining viability for the purpose of feticide liability as the "ability of a fetus to live outside the mother's womb").
137. Matt Sedensky, Tiny Baby to Leave Florida Hospital, WASHINGTONPOST. COM, Feb. 19 2007, http://www.washingtonpost.com/wp- dyn/contentyarticle/2007/02/19/AR2007021900848.html.
138. For example, Michigan in MICH. COMP. LAWS ANN. § 750.322 (West 2008) defines manslaughter as the "wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother...." Yet the Supreme Court of Michigan interpreted the statute in the following way: We hold that the word child as used in M. C. L. A. § 750.322... means a viable child in the womb of its mother; that is, an unborn child whose heart is beating, who is experiencing electronically measurable brain waves, who is discernably moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of the usual medical care and facilities available in the community.
139. Larkin v. Cahalan, 208 N. W.2d 176, 180 (Mich. 1973).
140. Rhode Island in R. I. GEN. LAWS § 11-23-5 (2009)
141. and Florida in FLA. STAT. ANN. § 782.09 (5) (West 2009) adopt nearly identical definitions of "quick child" as well.
142. For example, the Massachusetts Supreme Court makes the following argument in response to a defendant's claim that Roe precludes a state from including a fetus in its murder statute:
143. [E]ven in the context of clinical abortion, in which the mother's right of privacy is implicated, Roe v. Wade permits a State to proscribe abortion after the third trimester except when the mother's life or health is in danger. Thus, Roe v. Wade does not support the defendant's contention that in these circumstances the death of a viable fetus caused by murdering the mother may not be punished as a crime.
144. Commonwealth v. Lawrence, 536 N. E.2d 571, 584 (Mass. 1989) (Abrams, J., concurring) (citation omitted).
145. These states are Colorado, Connecticut, Delaware, Iowa, Maine, New Hampshire, New Mexico, North Carolina, and Wyoming.
146. See supra note 46.
147. Iowa has the most stringent statute protecting pregnant women from violence; instead of being classified under the chapter for "assault", the statute is classified under the chapter for "homicide and related crimes." It reads as follows: "A person who terminates a human pregnancy without the consent of the pregnant person during the commission of a forcible felony is guilty of a class 'B' felony." IOWA CODE ANN. § 707.8 (1) (West 2009). The maximum sentence for a class B felony is twenty-five years. § 902.9.
148. A person can be convicted if, "with intent to terminate unlawfully the pregnancy of another person, the person unlawfully terminates the other person's pregnancy." COLO. REV. STAT. ANN. § 18-3.5-101 (West 2009). This is a class 4 felony, which has a range of 2 to 4 years in prison with one year of parole. § 18-1.3-401.
149. See discussion supra Part II. B.
150. Pub. L. No. 108-212, 118 Stat. 568 (codified as amended at 10 U. S. C. § 919 (a), 18 U. S. C. § 1848 (2006)). This will be discussed in greater detail below.
151. H. R. REP. NO. 108-420, pt. 1, at 21 (2004)
152. reprinted in 2004 U. S. C. C. A. N. 533.
153. Id. at 9.
154. Id.
155. Id. at 4 n. 4.
156. Id.
157. Id.
158. Id.
159. "The House of Representatives approved the UWA, 254-163, and the Senate approved it 61-38."
160. McQueeney, supra note 16, at 462.
161. H. R. REP. NO. 108-420 (1), at 5.
162. Congress in the House Report explains that this law provides "that an individual who injures or kills an unborn child during the commission of one of over sixty Federal crimes will be guilty of a separate offense."
163. Id. at 13.
164. Id. at 4, 13.
165. 18 U. S. C. § 1841 (d) (2006).
166. § 1841 (a) (1).
167. McQueeney, supra note 16, at 473-74 (internal quotation marks omitted).
168. Id. at 474.
169. § 1841 (a) (2) (A).
170. The Supreme Court recently approved of the doctrine of transferred intent in Bradshaw v. Richey, where the defendant was convicted under Ohio law for aggravated felony murder committed in the course of arson.
171. 546 U. S. 74, 75 (2005). The defendant set fire to the apartment of his neighbor in an attempt to kill his ex-girlfriend and her new boyfriend who resided in the apartment below.
172. Id. at 74 Both managed to escape, but the fire killed the neighbor's two-year-old daughter, Cynthia Collins.
173. Id. at 74-75. At trial, it was established that the defendant had the specific intent to kill the ex-girlfriend and the new boyfriend, and undisputed forensic evidence established that the fire was started intentionally; but the prosecution presented no evidence of the defendant's specific intent to kill the two-year-old.
174. Id. The Supreme Court deferred to the Ohio Supreme Court's interpretation of Ohio law, which included the doctrine of transferred intent.
175. Id. at 78. The Court cited the relevant portion of the state court opinion that explained the doctrine of transferred intent as follows: "'[t]he fact that the intended victims escaped harm, and that an innocent child, Cynthia Collins, was killed instead, does not alter... [the defendant's] legal and moral responsibility."'
176. Id. at 76 (quoting State v. Richey, 595 N. E.2d 915, 925 (Ohio 1992)). Instead, the legislature's criminal scheme still applies where the defendant had formed a calculated decision to kill.
177. Id. at 77. Additionally, the Court rejected the Sixth Circuit's holding that "evidence of direct intent was constitutionally insufficient to support conviction. "
178. Id. at 75. Since the statute "provided fully adequate notice of the applicability of transferred intent", the Court found that applying it did not violate the Due Process Clause "where the defendant's contemplated conduct was exactly what the relevant statute forbade...."
179. Id. at 76-77 (citation omitted).
180. 21 AM. JUR. 2D Criminal Law § 120 (2009).
181. § 1841 (c).
182. H. R. REP. NO. 108-420, pt. 1, at 19 (2004)
183. reprinted in 2004 U. S. C. C. A. N. 533.
184. Id. at 3-4.
185. Id. at 85.
186. 21 AM. JUR. 2D Criminal Law § 120 (2009).
187. H. R. REP. NO. 108-420, pt.1, at 82 (footnote omitted).
188. Id. at 86.
189. See Deborah Tuerkheimer, Conceptualizing Violence Against Pregnant Women, 81 IND. L. J. 667, 695 (2006).
190. H. R. REP. NO. 108-420, pt. 1, at 86.
191. Id. at 88.
192. Id. at 82.
193. Id. at 4.
194. Id. at 86.
195. See 18 U. S. C. § 1841 (2006). For a discussion of court decisions on this topic, see below.
196. H. R. REP. NO. 108-420, pt.1, at 19 (quoting 815 F.2d 1386, 1388 (11th Cir. 1987)).
197. Id. at 18. According to the Supreme Court, [S]ome States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.... In short, the unborn have never been recognized in the law as persons in the whole sense.
198. Roe v. Wade, 410 U. S. 113, 162 (1973).
199. 492 U. S. 490 (1989).
200. MO. ANN. STAT. § 1.205 (2009).
201. H. R. REP. NO. 108-420, pt.1, at 18 (quoting Webster, 492 U. S. at 491).
202. 705 N. E.2d 419, 421 (Ohio Ct. App. 1997).
203. 956 S. W.2d 286, 291 (Mo. Ct. App. 1997).
204. 450 N. W.2d 318, 322 (Minn. 1990) (holding that the Minnesota fetal homicide statute allowing prosecution for death of a twenty-eight-day-old fetus does not violate equal protection and is not unconstitutionally vague).
205. 872 P.2d 591, 597 (Cal. 1994) (citation omitted).
206. Constitutional scholars debate the connection between abortion, fetal homicide laws, and legal personhood for fetuses. Some, such as Judith Jarvis Thomson and Anita Allen, find it consistent to have criminal laws protecting fetal personhood and laws allowing abortion.
207. Luke Milligan, A Theory of Stability: John Rawls, Fetal Homicide, and Substantive Due Process, 87 B. U. L. REV. 1177, 1179 (2007). Others, however, such as Ronald Dworkin and Jack Balkin, find that "a societal understanding of fetal personhood cannot be reconciled with a general right to abortion. "
208. Id. at 1179-80. Luke Milligan challenges the easy acceptance of a separate analysis for fetal personhood in the abortion context and in the fetal homicide context by asserting that the growing statutory recognition of fetal rights as an end-run around deeper societal and philosophical notions of justice. Milligan's analysis may be accurate, and deserves greater attention, but is beyond the scope of this Note. Courts and legislators have not expressed any problem with allowing these two visions of the fetus to co-exist, and given that many legal fictions are created for dealing with practical problems, it is politically feasible to allow such a schism to continue in the legal analysis of fetal homicide.
209. United States v. Montgomery, No. 05-6002-CV-SJ-GAF, 2007 WL 2711511 (W. D. Mo. Sept. 13, 2007).
210. The defendant, in the commission of the offense, or in escaping apprehension for the violation of the offense, knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense." 18 U. S. C. § 3592 (c) (5) (2006).
211. *2.
212. *3 (internal quotation marks omitted).
213. Id. (citing Coe v. County of Cook, 162 F.3d 491, 497 (7th Cir. 1998)).
214. Id.
215. H. R. REP. NO. 108-420, pt. 1, at 19 (2004)
216. reprinted in 2004 U. S. C. C. A. N. 533 (citing Roe v. Wade, 410 U. S. 113 (1973)).
217. Id. at 19-20 (citing Doe v. Bolton, 410 U. S. 179 (1973);
218. City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U. S. 416 (1983)
219. overruled by Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833 (1992);
220. Webster v. Reprod. Health Servs., 492 U. S. 490 (1989)).
221. See, e.g., FLA. STAT. ANN. § 782.09 (West 2009);
222. State v. Coleman, 705 N. E.2d 419, 421 (Ohio Ct. App. 1997).
223. H. R. REP. NO. 108-420, pt.1, at 88.
224. Id. at 14.
225. *2 (W. D. Mo. Sept. 13, 2007).
226. See supra Part I.
227. N. Y. PENAL LAW §§ 125.05 (2), 125.45 (McKinney 2009). These crimes clearly target abortion much more readily than fetal homicide. Section 125.05 (2) classifies an abortional act as: "an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female." Section 125.05 (3) creates an exception for justifiable abortional acts, which occur "when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy." Section 125.45 at best awkwardly fits the situation of fetal homicide: "A person is guilty of abortion in the first degree when he commits upon a female pregnant for more than twenty-four weeks an abortional act which causes the miscarriage of such female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05."
228. § 70.00 (2) (d).
229. 86 P.3d 881 (Cal. 2004).
230. CAL. PENAL CODE § 190 (a) (West 2009).
231. Taylor, 86 P.3d at 867.
232. Courts seem to be willing to recognize the protection of fetal life under the criminal law when the privacy interests of Roe are not implicated. Additionally, the current state of medical technology makes establishing causation in criminal fetal death cases possible, whereas in earlier times such a determination could not have been made. It is true that drastic discrepancies exist in the criminal law from one state to another. For example, some states allow for reasonable mistake in defense of a third person, while other states do not. Therefore, in one state the conduct would be classified as murder while in another state the exact same behavior is not punished. These kind of policy decisions differ from refusing to recognize violent crimes against pregnant women and their fetuses as a class. In the former example, such a discrepancy applies in infrequent cases and is distinguishable from the latter case, which creates an absolute bar to recognizing a class of vulnerable victims. Given the disturbing prevalence of domestic violence and murders of pregnant women, women of childbearing age as a group need this additional protection.
233. Roe v. Wade, 410 U. S. 113, 162-63 (1973).
234. Id.
235. Id.
236. See Jeffrey Rosen, A Viable Solution: Why It Makes Sense to Permit Abortions and Punish Those Who Kill Fetuses, LEGAL AFF., Sept.-Oct. 2003, at 20-21 ("[O]nly the interests of a constitutional person are strong enough to overcome a woman's fundamental right to choose abortion. ").
237. The California Supreme Court also found no conflict with abortion law in interpreting the word "fetus" in California's murder statute to exclude a viability requirement. People v. Davis, 872 P.2d 591, 597-600 (Cal. 1994). Contrary to the way the Supreme Court used the term in Roe v. Wade, the California Supreme Court believed "fetus" could be defined differently "when the mother's privacy interests are not at stake, [because) the Legislature may determine whether, and at what point, it should protect life inside a mother's womb from homicide."
238. Id. at 599. The Davis Court explained, "The fetus is not a 'person' for purposes of the Fourteenth Amendment and has no constitutional rights that would outweigh the exercise of the woman's Fourteenth Amendment rights. The fetus' rights and the state's interest, or lack of interest, in protecting maternal health and in protecting the life of the fetus, were distinctly balanced against the woman's right to privacy in the context of consensual abortion". Thus, when the state's interest in protecting the life of a developing fetus is not counterbalanced against a mother's privacy right to an abortion, or other equivalent interest, the state's interest should prevail.
239. Id. at 597 (quoting Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U. L. REV. 563, 616 (1987)).
240. See supra note 24.
241. 467 N. E.2d 1324 (Mass. 1984).
242. Id. at 1325 (internal quotation marks omitted).
243. Jennifer A. Brobst, The Prospect of Enacting an Unborn Victims of Violence Act in North Carolina, 28 N. C. CENT. L. J. 127, 136 (2006) (internal quotation marks omitted).
244. See Magnuson & Lederman, supra note 12, at 770-72.
245. H. R. REP. NO. 108-420, pt. 1, at 4 n. 3 (2004)
246. reprinted in 2004 U. S. C. C. A. N. 533.
247. The mens rea requirements for the UWA and in California are overinclusive with respect to murder, as they create a kind of strict-liability crime for murder of a woman of childbearing age because she could potentially be pregnant. Such behavior with respect to the fetus, which the attacker neither knew about nor should have reasonably known about, is more aptly punished as manslaughter.
248. MODEL PENAL CODE § 210.0 (1) (1962).
249. While theoretically gestational age should be irrelevant when applying the law, practically the prosecution still has to prove causation. In the earliest stages of pregnancy, this may be difficult to establish. However, the defendant should not be able to undercut causation by arguing that, although he killed the fetus, it had a medical condition that would have been fatal: "[m]urder is never more than the shortening of life... the law will not hear... [the defendant] say that his victim would thereafter have died in any event." People v. Valdez, 23 Cal. Rptr. 3d 909, 913 (Ct. App. 2005) (internal quotation marks omitted). The court in Valdez found that even though the fetus had a fatal medical condition and would not have survived past the second trimester, the defendant was still liable for murder because the legislature had the policy of protecting fetal life.
250. Id. at 913-14. The Court held that "just as the state may penalize an act that unlawfully shortens the existence of a terminally-ill human being, it may penalize an act that unlawfully shortens the existence of a fetus which later would have perished before birth due to natural causes."
251. Id. at 914.
252. Robbins, supra note 10, at 88.
253. But see Bicka A. Barlow, Severe Penalties for the Destruction of "Potential Life" - Cruel and Unusual Punishment?, 29 U. S. F. L. REV. 463, 506 (1995) (proposing model legislation for fetal homicide that excludes all non-viable fetuses). The author repeatedly recognized that the Supreme Court has stated it has not decided when life begins; however, the author proceeds to draw the conclusion that the Court has held fetal life to be less valuable than the lives of those that have been born generally, placing, in particular, the lives of non-viable fetuses as of so little value that they should be excluded from fetal homicide statutes to remain consistent with Roe.
254. Id. at 465-66, 506-07. The Supreme Court's stated agnosticism does not support this conclusion. The Court explicitly attempted to balance, by relative importance, the rights of the woman with the rights of the state in the potential life of the fetus in the context of abortion and did not authoritatively decide, for constitutional purposes, the absolute value of fetal life. Roe v. Wade, 410 U. S. 113, 159-63 (1973).
255. This Note does not address sentencing specifically, deferring to the states' sentencing guidelines for the different categories of homicide.
256. MODEL PENAL CODE § 2.02: (2) Kinds of Culpability Defined. (a) Purposely. A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (b) Knowingly. A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. (c) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. (d) Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
257. Adapted from the UVVA, 18 U. S. C. § 1841 (2006). This definition excludes the issue of an embryo not yet implanted in the womb since the focus is on harm to both a pregnant woman and the fetus.
258. Adapted from the Nebraska fetal homicide statute, NEB. REV. STAT. §§ 28-388 to - 394 (2009). The "should have known" standard should be judged from the perspective of a reasonable person in the defendant's position. This is to aid the prosecution in cases where, for example, the defendant claims he did not know the woman was pregnant when, in fact, she was in the third trimester and was visibly pregnant.
259. Adapted from the North Dakota fetal homicide statute, N. D. CENT. CODE §§ 12.1-17.1-01 to-08 (2009).
260. Adapted from the Kentucky fetal homicide statute, KY. REV. STAT. ANN. § 507A.020 (West 2009).
261. See supra note 144 and accompanying text.
262. See supra note 148 and accompanying text.
263. Id.
264. See supra note 144 and accompanying text.
265. Id.
266. Prosecutors can use this presumption to cover scenarios that might otherwise be prosecuted under a felony murder provision for fetuses - a provision that is noticeably absent from this proposed legislation. Some argue that felony murder cannot be justified retributively.
267. See Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 ARIZ. ST. L. J. 763, 778-79 (1999). This argument applies even more forcefully for holding a defendant liable for another murder if the woman he killed also happened to be pregnant. For states that recognize felony murder, the prosecution can charge the defendant with criminally negligent homicide for the death of a fetus. The presumption that a woman of childbearing age could be pregnant would apply to the "substantial and unjustifiable risk" that the actor failed to perceive. Utilizing the presumption, "[a] person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk" that the woman whose death he caused could be pregnant and will result in the death of the fetus.
268. See supra note 144. Since this presumption does not rely on the doctrine of transferred intent, the defendant will not automatically be liable for an additional murder. Instead, the prosecution must undertake a separate analysis to ensure the punishment fits the actual mens rea.
269. At least one court has explicitly stated that such presumption is not unconstitutionally vague. The Minnesota Supreme Court held: The fair warning rule [of the Due Process Clause] has never been understood to excuse criminal liability simply because the defendant's victim proves not to be the victim the defendant had in mind.... The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude.
270. State v. Merrill, 450 N. W.2d 318, 323 (Minn. 1990).
271. H. R. REP. NO. 108-420, pt. 1, at 85-86 (2004)
272. reprinted in 2004 U. S. C. C. A. N. 533.
273. 21 AM. JUR. 2D Criminal Law § 120 (2009).
274. "If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being." 18 U. S. C. § 1841 (a) (2) (A) (C) (2006).
275. Mordica v. State, 618 So. 2d 301, 304 (Fla. Dist. Ct. App. 1993).
276. For example: Vehicular Homicide of a Fetus - A person who causes the death of an unborn child unintentionally while engaged in the operation of a motor vehicle in violation of the vehicular laws of the state and operates the vehicle (1) in a grossly negligent manner or (2) in a negligent manner while under the influence of: (i) alcohol; (ii) a controlled substance. This formulation was adapted from the Nebraska vehicular homicide of an unborn child statute, see NEB. REV. STAT. §§ 28-388 to-394 (2009)
277. and the Minnesota criminal vehicular homicide statute, MINN. STAT. ANN. § 609.21 (West 2009). Vehicular homicide statutes generally respond to highway accident frequency.
278. 13 AM. JUR. Trials § 295 (2009). As such, they do not require that the defendant have any particular knowledge or specific intent with regard to how many passengers might be travelling in the vehicle with which he collides. Applying a similar principle, it should not be more difficult to obtain a conviction regarding a fetus killed in such a collision. It must be shown that the driver was both the legal and proximate cause of the death; as applied in this context, neither type of causation requires that the defendant have any knowledge or intent with regard to any particular victim.
279. 7A AM. JUR. 2d Automobiles § 363 (2009).
280. For example: Punishment - The punishment for any offense listed in this section is the same as the punishment provided under comparable state law for that conduct had that death occurred to the fetus's mother. Nothing in this section is intended to preclude separate prosecution, conviction, and punishment of a person for actions taken against the fetus's mother. This formulation was adapted from the UVVA, 18 U. S. C. § 1841 (2006).
281. But see Curran, supra note 7, at 1139.
282. See supra Part III. C.1.
283. See supra Part III. C.2.
284. Smith, supra note 14, at 1877. The other five factors are: First, the bill should define the woman alone as the victim, as opposed to the fetus alone, or both the woman and the fetus. If the state does not include such exceptions, then the proposal will probably be stiffly opposed by pro-choice activists who might view it as a threat to abortion rights, as well as by groups opposed to laws criminalizing maternal behavior during pregnancy. Second, in order to diffuse pro-choice opposition, the bill should have an exemption for abortions and the woman's conduct.... Fourth, to comport with due process, the bill should require adequate knowledge or intent to commit the crime. Fifth, the terms and prohibited conduct should be defined precisely to avoid vagueness concerns. Sixth, the penalties for causing fetal death should not be as severe as for killing a live person.
285. Id. at 1876-77 (footnotes omitted). The proposed model legislation comports with all of these requirements except the first and the sixth. The problems these two factors indentify concern the interaction between fetal homicide laws and abortion rights. As has been discussed throughout the Note, there is no reason to assume that there is a conflict between such laws and a woman's right to have an abortion, and punishing an assailant separately and severely for illegally terminating her pregnancy and interfering with the state's interest in potential life does not take away from a woman's constitutional zone of privacy with respect to her own body.
286. For a thorough discussion regarding the few jurisdictions that apply fetal homicide laws for a mother's actions, and the potential constitutional problems such prosecutions raise, see Marka B. Fleming, Feticide Laws: Contemporary Legal Applications and Constitutional Inquiries, 29 PACE L. REV. 43 (2008).
287. Adapted from the South Dakota fetal homicide statute, S. D. CODIFIED LAWS § 22-16-1.1 (2009).
288. Adapted from the Alaska fetal homicide statute, AASKA. STAT. § 11.41.180 (2009).
289. See supra Part IV. A.