Tuesday, January 18, 2011

How should a crime that kills a wanted fetus be classified?

I recently (possibly today?  Possibly a few days ago?  Everything runs together when you realize you have to finish planning a wedding and fill out a Bar application in less than two months!) read an article on Jezebel-- and then the initial news article-- on laws affecting crimes against pregnant women, specifically ones that cause them to miscarry.

I tried to refind the articles, but I can't.  Which annoys me, because context is always helpful.  But at any rate, the issue is how do you deal with an attack that causes a miscarriage?  Is it simply ignored, with the crime against the woman considered, whether it's murder or just assault?  Is it an additional homicide in cases where the parent(s) were intending to bring it to term?  Is it an unlawful abortion?  Is it a form of theft?

The way it's dealt with matters, because in both the law and society, words have meaning-- and application of laws can create precedent.  We dealt with this situation some back in 1L Criminal law.  I don't remember how most of the people in the class felt, but I do remember that the cases dealt with scenarios where the woman wanted a child, and some of them were pretty horrifying, in part because of our societal views that pregnant women are to be protected, and in part just because of the brutality of the attack (I still remember reading about one man who said he was going to "stomp the baby" out of a woman).

I do think it should be taken seriously-- and I don't think that that in any way is in conflict with my being pro-choice.  It's pro-choice. Which means I respect the choices that women make for their bodies and reproductive futures, and I don't think abortions or miscarriages should be forced any more than I think they should be prohibited.  But the killing of a wanted fetus that the mother is planning to bring to term still should not count as a homicide-- because a fetus is not a person.  When it dies, a person is not dying-- a potential person is, even though a couple who wants a child may have already named it, and may already be emotionally thinking of it as a person.  But it isn't a person.

Still, because of their hopes and dream and effort put into it, and lifestyle changes, and potential dangers of just being pregnant, people invest a lot into a wanted pregnancy.  And there should be some kind of extra charge.  I guess the best that I can come up with would be a new charge, based on the idea of theft, but even that doesn't quite convey the right tone.  It's a trespass against someone's body in a way that a normal physical assault isn't, and it steals their past efforts and their hope of having that fetus be a child.  So I don't think it should be ignored, and I don't think it should be treated as murder, but I do think there should be some additional charge, and I also think that that is completely in low with a pro-choice viewpoint.


ASF said...

Well, I don't think fetuses would ever be classified as chattel property, unlike animals. So I don't think any property crime is likely to be applicable.

I do agree with your notion of upping the charge if a fetus is involved, but then you have to prove that a woman wanted the baby. I suppose that such a finding would be for practical purposes a rebuttable presumption, because most people would assume she wanted it. What evidentiary standard for that, however? Preponderance? Clear & convincing?

Suppose someone wanted to kill only the fetus and not the mother, but the mother ended up dying. What charge there?

Verchiel said...

Prefacing this with the statement that I'm ardently pro-choice and oppose these end-run attacks on Roe with "fetal personhood" bills, I don't see many options.

Once you remove the option of treating the fetus as a person from the table, you're left with precious little else. Taking the approach of property is, as was already noted, quite disturbing. If the fetus is neither person nor property, then the only remedy I can see is a civil charge for infliction of emotional distress or some such thing.

Dark Daughta said...

pro-choicer who understands fetuses as people. i think it came home for me when i started having babies and wanting them to emerge from my body, feeling them kick and move and grow inside me. i was still pro-choice but i realized that i didn't need to disassociate from the being inside me being a real live person in need of my bodily shelter, in order to be able to sometimes let them go and not agree to shelter them further. i just don't need the mindfuck to say that i believe in full reproductive rights for all wimmin.
kangaroo babies...not fully formed but clearly still all about living, emerge from their mamas' uterus and crawl, blindly, not yet fully formed, still very much fetuses, to the continued shelter of the pouch.
human babies born before term can be supported to continue living and growing outside the mama's uterus.
a baby not yet full term is killed not aborted but attacked and killed. i don't mind debating with stupid ass pro-lifers about the difference. they will turn blue in the face trying to conflate murder with abortion before i say uncle.
it's different.
it doesn't matter whether the woman wanted the baby or not. if someone kicked her in the belly or stabbed her belly or did any other thing to kill her baby for me that's murder and it should be punished accordingly.
yes, it's difficult to debate but i don't think that this absolves law makers from trying to see the hairsbreadth of difference between murder and abortion. if they can't, if we can't then basically what you're saying is that we're a bunch of negligent simpletons who need an issue to be completely black and white if we are going to validate its existence. not good enough. it's just not good enough...for me, anyways. :)

Nancy Green said...

I'm not a lawyer, but I notice that assault on a person over 60 carries a more severe penalty, as do crimes against minors.
How about making assault on a pregnant woman a kind of aggravated assault? Let anyone who is considering beating a woman up be warned they are taking their chances on a long sentence if she happens to be pregnant.

Anik Breton said...

If I read your post title, It reads "how-should-crime-that-kills-wanted-fetus-be-classified? "

Well, If I wanted that fetus to be born and my girlfriend/wife/fiancée killed it via abortion, I would logically expect premeditated murder no less.
I am pretty sure you all were a fetus at some point. Although reading through this site and some of the hideous comments from womyn here I really wonder/question at your humanity.

Dark Daughta said...

moron. plain and simple.

April said...

I think the way the punishment is decided should depend on the motive of the crime.

A pregnant woman's desire, or lack thereof, for a child, does not change anything about the fetus residing in her body, so attaching a "homicide" label to the intentional ending of its life at the hands of someone other than the pregnant person ends up missing the point. I think what we should focus on in determining how to treat cases of pregnant women who miscarry as a result of assault is the intent of the perpetrator. For example:

A pregnant woman is involved in a car crash, which she survives, but causes her to miscarry a pregnancy that she intended to carry to term and was emotionally attached to. Should the death of the potential life be considered a homicide? No.

On the other hand, a pregnant woman, who intends to carry her pregnancy to term and is emotionally attached to the pregnancy, is assaulted by the guy that got her pregnant, and he assaulted her in the hopes of causing her to miscarry, because he did not want a baby. While that's not homicide anymore than an abortion is, that was an attack on both the mother and the fetus. Whether the fetus is considered a person isn't really important, so long as it's acknowledged as an additional crime that the perpetrator intentionally committed, as it was the intentional ending of at least a potential human life.

Since a person cannot commit a crime against a fetus without committing physical crime against the pregnant woman, I don't believe the penalties should be lessened, even if they were only intending to harm the fetus; but I do think that the specific intent to harm a fetus should be an additional crime that is acknowledged.

Anonymous said...

I agree that there should be NO additional crime involved since if she decided to abort the father has no say and that is totally legal. Unless they change the laws to allow men to have a paper abortion first, then it is total bunk to have this double standard.

And if you think they double standards in this are not blaringly serious, remember that men who are abused, raped and molested are STILL liable for child support is a child results from it. Can you picture if we forced female rape victims to pay their perpetrators for ANY reason and the outrage involved as well as how fast the news and public would be on it?

The Biscuit Queen said...

Really interesting and well thought out post. Assault against a pregnant women is one of those issues which bridge the gap between the pro-choice and the pro-life groups.

I see it from the other side, as I am pro-life. My reasoning is that there is no hard line where a fetus becomes a baby. There is a gradual transition between the prenatal stages, but earlier and earlier fetuses are born viable and survive.

Fetuses show all the signs of life from a very early age. They respond to stimuli, they take nourishment, they feel pain. They are no more capable of reproducing as a 1 month old born baby, but they will someday.

If a 1 month fetus is killed, most people would not consider it murder. But how about 5 months old? A baby just survived at 22 weeks http://www.msnbc.msn.com/id/17237979/ns/health-kids_and_parenting/

Is this a fetus or a baby? I am sure her mother would say she was a baby.

My cousin gave birth to a 2.5 pound girl several years ago, 3 months premature. I would say the little girl I saw last week as a human and not a fetus.

Yet it is legal in some places to abort these 'fetuses'.

The metric used to decide if something is a fetus or a baby seems not to be a characteristic in the child, but the mental attachment of the parents. We consider it a baby if it is wanted, and a fetus if it is not wanted.

No other crime decides the punishment based on the attachment of the owner to the item or person affected. It is not more wrong to steal a man's precious 68 Camaro than it is to steal his Dodge Minivan. It is not more abusive to beat the favorite child as it is to beat the less favored one.

To me this issue clearly forces pro-choicers to really look at the rationality of their stance. I am fine with considering a crime against an unborn child. It fits in my worldview. But obviously it is difficult for you to fit it in yours.

Good luck on figuring this out. This is really an important topic and you did a good job of presenting both sides.

The Biscuit Queen said...

April, if you feel the hypothetical man committed a crime against the fetus by attacking it, then every abortion is a crime against the fetus. The intention is exactly the same-get rid of the fetus. If the fetus is the victim, then it does not matter what gender or what relationship the assailant has with the victim.

That is like saying a mother has a right to beat her children, but no one else has that right.

The Biscuit Queen said...

Nancy, that is a good option-to treat visibly pregnant women as a more vulnerable class such as the elderly and children. There is still a big fuzzy line, but that is a good start.

Poester99 said...

I'm glad to know that I made the cut and was promoted to human on the day of my birth. That being said it seems completely arbitrary that I was less than human on the day before my birth.

I wonder if cognitive dissonance eventually causes drain bamage.