Should laws be changed in the case of a woman who killed a woman and her unborn baby?

[oregonjen]

http://www.kgw.com/news-local/stories/kgw_060609_news_pregnant_woman_murder.567dd486.html


New charges in pregnant woman's killing don't include baby's murder

10:35 PM PDT on Monday, June 15, 2009

By Kgw.com Staff

BEAVERTON, Ore. -- A 27-year-old woman accused of murder in the death of a pregnant woman in Oregon was arraigned on new charges Monday, but won't be tried for allegedly killing the 8-month-old unborn child.
{snip}

Hermann said additional murder charges would not be filed in the boy's death because prosecutors could not prove beyond doubt that the baby had in fact taken a breath before dying -- a critical legal threshhold in Oregon for a murder charge.

________________________________________________________________________________________________________________________________________




I understand this is pretty sensitive territory, but I have to ask this question. Do you think laws should be changed to be able to charge this sick vile woman for murder of an unborn baby? For those who are unfamiliar with the story, the woman wanted to steal the pregnant woman's baby, killing her and the baby.
I think laws should be changed for this, but then it plays into the religious right's views on abortion.

What say you?

[dysfunctional press]

1. sorry- but you can't change laws after the fact.

it's kinda...unconstitutional.

[oregonjen]

5. I'm not talking about after the fact

I'm talking about for future crimes

[paulsby]

9. it is certainly within the legislature's or the citizen's (by initiaitve in many states)

prerogative, but you are correct, it doesn't apply ex-post facto.

in many states, what the accused did WOULD be prosecuted as multiple or aggravated murder. in oregon, they have no such law.

you can argue either policy preference is better, but we live in a democratic republic where laws vary SIGNIFICANTLY from state to state.

i used to live in a state where the age of consent was 14, for instance. thus, an act that would be a class A felony in my current state, was entirely legal behavior.

in the state i live in now, it's legal to carry a firearm openly, w/o a permit.

in my previous jurisdiction, that would be a felony.

[dysfunctional press]

26. that's NOT what you said...

and i quote:
"Do you think laws should be changed to be able to charge this sick vile woman for murder of an unborn baby?"

nice attempt to back-pedal, though...:hi:

[noamnety]

2. Please don't go there.

Fetuses don't have personhood until they are born for good reason. We really don't need people arguing that "killing a fetus is murder."

Thanks.

[Recursion]

6. You maybe could fit it in under mayhem laws

I personally don't have a problem with "fetal murder" laws; I'm pro-choice because I don't think the state can enslave women, not because I think a fetus deserves no legal protections.

[AngryAmish]

13. Maybe malicious wounding (it is illegal to cut off a body part)

Above and beyond "mere" aggravated assault and battery.

[Rosa Luxemburg]

16. the key word is consent

abortion is with consent of the mother.

[sandnsea]

3. Clearly the woman is mentally ill

Yes? What difference does it make how many charges there are when the result ought to be lifelong mental health care and that is where the law really fails.

[AngryAmish]

14. What proof do you have that she is mentally ill?

Some people are evil - or if you think of evil in a religious sense, just completely cold hearted. This is not an unheard of crime. Some women covet a baby so they do anything to get it. Just like people covet money so kill for life insurance, shoot someone in the head to steal their wallets, etc.

Murder is murder.

[dorkulon]

4. It's a legal wedge, a step toward banning abortion.

Calling it murder establishes the precedent that a fetus is a legal person with rights. Once that premise is established, it only follows that abortion is murder.

This woman is already charged with a brutal, psychotic, heinous murder. I think that's probably enough.

[Recursion]

7. My own take

I personally think we lose the choice debate if we make it about the status of the fetus. Mostly because biologically it's pretty obvious that a human life is created at conception. Even if the fetus were fully adult, the state could not force a woman to keep it inside of her; it's about the woman, not the fetus.

[dorkulon]

8. Life is not personhood.

I agree that a woman should not be seen as obligated to serve as a life-support system, even for a legal person. But it's also true that "life" is NOT the issue. Yes, a zygote is alive, but so is an avocado. The question is whether is is a person.

[Recursion]

19. If you'll notice, there's already a "fetal murder" law in the state

But since the fetus may not have breathed on its own after the attack, it doesn't seem to apply. I think the OP is asking whether the breathing on its own is the right line to draw for a state that has already decided this should constitute a separate crime.

[dorkulon]

21. It does seem a bit arbitrary.

But was probably insisted on as a nod to abortion law. I understand these laws exist but don't think them necessary and maintain that they are part of a broader legal strategy against abortion.

[condoleeza]

10. Horrible as this is, I don't think the laws should be changed

She has been charged with aggravated murder, the most serious charge she could be charged with in these circumstances, which is a death penalty offense.

This would give the pro-lifers a toe-hold to overturn Roe v Wade, which cannot ever happen.

[gratuitous]

11. IF the law is to be changed . . .

It really shouldn't be done for at least a legislative session, to allow for the cooling of emotions. Yes, this was a horrible crime, and our sense of justice is outraged. But how does the law get written in such a way that the intentional killing of a near-term fetus doesn't become a law against abortion, miscarriage, or other late-term pregnancy misfortune? There is surely public sentiment that would deem a family that lost their child just before delivery has suffered enough, but the added stress of a criminal investigation wouldn't be good for the family, and it takes just one zealous prosecutor to sensationalize and publicize what should be a private tragedy.

Hastily passing a new law in the immediate aftermath of this crime, before the investigation is even completed (let alone that whole trial thingie), is a recipe for making bad public policy.

[nichomachus]

12. All you would have to add

would be a clause that specifies the killing of a fetus after a certain term and "during the commission of a felony." That would exclude it from being applied to the things you mention.

[Recursion]

22. Well, in this case there is already a law, and was already an investigation

If I'm reading the OP right, killing a late-term fetus against the mother's wish is already murder if the fetus breathes on its own before its death. Since that didn't happen, the law doesn't apply. But this wouldn't be a case of coming up with a whole new law, just changing the parameters of an existing one (eg, change it to "could have survived were it not for the attack" or something).

[stray cat]

15. If a fetus isn't considered human - killing one shouldn't be illegal

nor perhaps should health care extend to neonatal surgery or saving premies. Its an extreme but consistent argument.

[mainegreen]

17. It's the mother's womb, it's the mother's choice.

If it can be shown she intended to carry the child to term, and it can be shown that the child could survive outside the womb at that point, then I say yes.

If it can't be shown however, that the mother intended to carry the child to term then no.

[TexasObserver]

18. Yes.

A fetus over 6 or 7 months old is viable outside the mother, with proper care. While it is in the mother, those who love the mother and the child she bears come to love the unborn child. It often has a name already picked out. The killing of it by another is worthy of criminal sanction, and that comports with societal expectations.

We already have laws in many states that curtail the right of abortion in late months, for this very reason: we perceive older fetuses different than younger ones, and we have a different set of values and rights regarding them as they become older.

[colinmom71]

27. Just because the pregnancy is in the sixth to seventh month does not mean the fetus is viable...

At least not automatically. Yes, most pregnancies at 6-7 months can generally be expected to have a viable fetus (according to current medical technology standards). But this is assuming that the fetus is developmentally normal and without defect.

Not all fetuses past 23 weeks though can meet the medical criteria for viability. In order to be considered viable, the fetus must have a healthy appearing (if immature) heart and lung system, be free from threatening defects that may hinder major life function (polycystic kidneys, severe hydrocephalus, other serious disorders), and "on track" with development for gestational age. Understand that some disorders may retard growth and maturity to the point that even a 38 week fetus may not be medically viable. While pre-natal care can determine this for medical reasons, it would come down to autopsy results for a proposed fetal homicide.

There have been very few prosecutions (and even fewer convictions) under fetal homicide laws in those states that have them. Because you have to prove that the fetal death resulted from direct injury to the fetus from the assault in question AND that the fetus was medically viable at the time of the assault. Also, you have to prove that the assault was designed to result in the fetus's death.

In other words, had the pregnant woman gone into labor at the time of the assault and would have given birth to a baby that could have lived outside the womb and the intent behind the crime was to kill the fetus, THEN a valid count of fetal homicide could be charged. The problem with the case cited in the OP is that the intention was not to kill or harm the fetus. In fact, the intention was to get a viable and healthy baby from the crime. But as someone above pointed out, the accused has been charged with the most serious murder charge in Oregon for the pregnant woman's death, so justice will be served.

[endarkenment]

20. No. Back door anti-reproductive rights stealth move. nt.

[shireen]

23. if the baby could survive outside the womb, then yes, it's murder.

The technology for keeping preemies alive is getting better and better. If the baby was old enough to survive outside the womb in a premature baby ward, i'd call that murder. 8 month old babies routinely survive when born premature. That case should be a double homicide.

[colinmom71]

24. Actually, this case does not support fetal murder laws...

In this cited (and terribly sad) case, the intention was not to harm or kill the fetus, but rather to only harm the pregnant woman in order to garner the baby. In all 50 states in the US, the intention behind the crime is what determines whether the homicide is considered murder or manslaughter. Murder is a premeditated act with malicious intent to kill or gain profit (hence felony murder statutes). Manslaughter counts are usually crimes where a person was killed but where the intent of the crime was not earn profit or to end in death.

Here, the person who killed the pregnant woman was intending to gain a baby from maliciously harming (and thus killing) the victim. As stated above in this thread, the accused has been charged with the most serious murder charge in Oregon because she is accused of performing the act of a murder in order to personally profit from the death, which shows malicious intent and premeditation. Since she was wanting to get a live baby from her actions, the accused was not intentionally trying to end the life of the fetus through her actions. Thus, she is not culpable for the fetus's subsequent death.

In those states that do have fetal homicide laws, the only ones that can withstand Constitutional muster are laws that charge the homicide as an intentional act designed to bring about the death of a medically viable fetus *and* where the action can be proven to have resulted in such a grievous injury to the fetus that death was inevitable. The case a few years back where a teen couple attempted to "self-abort" a 6-7 month pregnancy by the boy hitting the girl in the abdomen with a baseball bat is a better example to clarify fetal homicide laws. There, the action was an assault designed to result in a medically viable fetus's death. The fetus was indeed medically viable (developmentally normal and could have survived outside the womb) and died as a result of injury from the assault, according to the medical examiner's autopsy findings. The boy was charged and found guilty of fetal homicide. I have not followed the case closely since the verdict, so I have no idea how any appeals have progressed... Still, this is one of the few cases I've read that actually meets the criteria that Constitutional scholars have said could be considered a valid law.

[JustABozoOnThisBus]

25. Maybe a dangerous law, and unnecessary

Murder charges apply to the unborn? This is an anti-choicer's dream. Yikes.

Plus, would it affect the sentencing? The woman can get life (or maybe death), so would doubling the murder charge have any real effect?

[damntexdem]

28. No, a fetus is not a baby -- and killing it should not be murder.

There should be heightened charges for killing a wanted fetus; but not murder charges for that.

The 'murder' laws are a backdoor way to try to get around Row v Wade.