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What about charges in the death of a fetus...


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  #1  
April 2nd, 2010, 12:04 PM
WineKeepsMeSane's Avatar Platinum Supermommy
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that the mother fully intended to carry to term?

If someone intentionally harms a woman and the death of her unborn child results, but before the gestation the law states the fetus is a person and when abortion is still legal, should there be a way to charge the person in the death of the fetus if the woman intended to carry to term? Note that the woman would still have the choice over her own body, this wouldn't be a law banning a mother's choice to abort. Hopefully that made sense....
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  #2  
April 2nd, 2010, 12:22 PM
irishxrose
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They can be charged in Colorado for unlawful termination of pregnancy and criminal abortion. Both are class 4 felonies (2-6 years in prison, facing up to $500,000 fine), and if the woman also dies, then it becomes a Class 2 felony, which is 8-24 years in prison and up to $1,000,000 fine. The statutes are 18-3.5-101(and 18-3.5-102), and 18-6-102, Colorado Revised Statutes.

Last edited by irishxrose; April 2nd, 2010 at 12:26 PM.
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  #3  
April 2nd, 2010, 12:35 PM
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Quote:
Originally Posted by irishxrose View Post
They can be charged in Colorado for unlawful termination of pregnancy and criminal abortion. Both are class 4 felonies (2-6 years in prison, facing up to $500,000 fine), and if the woman also dies, then it becomes a Class 2 felony, which is 8-24 years in prison and up to $1,000,000 fine. The statutes are 18-3.5-101(and 18-3.5-102), and 18-6-102, Colorado Revised Statutes.
I *think* that statute states the assailant needed to know or have reason to believe the woman was pregnant. I agree with that, because we can't charge someone with a crime when they had no intent. I'm having trouble wording this question for Ashley: Does that make a difference in the scenario you're thinking of? Like, were you asking if someone should have additional charges added if their victim happens to be pregnant and miscarries as a result of an attack where the assailant didn't know the victim?
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  #4  
April 2nd, 2010, 12:51 PM
irishxrose
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Yes, both statutes have intent as elements, but Ashley said "intentionally" so the statutes would apply which is why I posted that....

I'm confused.
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  #5  
April 2nd, 2010, 01:14 PM
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Haha, I'm confused, too. That's why I asked for clarification. I read "intentionally harms a woman" as something like a rape that results in a miscarriage. The intent was to harm the woman, but not the fetus. So is the question, should the assailant be charged in the termination of the pregnancy if the termination results as a complication from the attack?
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  #6  
April 2nd, 2010, 04:47 PM
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Ok, so I'm glad I'm not the only one having trouble wording this I'll see if I can clarify.

I've heard of cases where the person couldn't be charged in the death of the fetus because it hadn't reached a certain gestation, and was therefore not a "person" under the law. Don't ask me to post links though, it's just something I've heard in passing. I'm reasonably sure it was actual cases, not tv shows

My question boils down to, if a person other than the mother harms the fetus, should weeks of gestation matter?

It was more about weeks of gestation and definition of a person under the law, than intent of the assailant. Does your definition of person under the law change when it's not the mother's right to choose in question?

Did that make more sense?
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  #7  
April 2nd, 2010, 05:24 PM
IAmMomMomIAm
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I think I get it.. if someone who knows I'm pregnant kills my fetus at 15 weeks gestation should they be charged.

Given that there is a gestational age where abortion is illegal (barring health of the mother), it's considered homicide after that point (i.e. Scott and Lacy Peterson). But if the fetus dies BEFORE that legally set point, should it still be homicide?

My answer: I have no idea.. I'll have to think about it.
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  #8  
April 2nd, 2010, 06:48 PM
irishxrose
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Originally Posted by Keskes View Post
I think I get it.. if someone who knows I'm pregnant kills my fetus at 15 weeks gestation should they be charged.

Given that there is a gestational age where abortion is illegal (barring health of the mother), it's considered homicide after that point (i.e. Scott and Lacy Peterson). But if the fetus dies BEFORE that legally set point, should it still be homicide?

My answer: I have no idea.. I'll have to think about it.
Well, and that's what I thought - and that's why I gave the answer I did. Those laws don't have set gestation periods, it is for any time during a pregnancy that someone intentionally terminates a woman's pregnancy without her consent.
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  #9  
April 2nd, 2010, 08:23 PM
chlodoll
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I think if a woman is murdered for the reason of being pregnant than a charge should possibly be laid for mother and fetus since the goal was to kill both of them. But if someone who was pregnant was murdered in the second degree then I think that only the murder of the woman should be what they are charged with.

I guess! Its a confusing situation.
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  #10  
April 2nd, 2010, 09:43 PM
irishxrose
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Originally Posted by chlodoll View Post
I think if a woman is murdered for the reason of being pregnant than a charge should possibly be laid for mother and fetus since the goal was to kill both of them. But if someone who was pregnant was murdered in the second degree then I think that only the murder of the woman should be what they are charged with.

I guess! Its a confusing situation.
I agree. With Colorado's laws, if someone intentionally hurts a woman to kill her fetus without her consent, then I fully agree with the laws already in place in my state. If the woman is murdered along with the fetus, and the murder of both was the intent, then the person needs to be charged with homicide AND the unlawful termination of pregnancy & criminal abortion laws.

It is confusing, and really I'm basing my own answer on my state's laws only. I don't really know what the laws are like in other states, or in other countries like Canada, and it could be a far more confusing situation there than it would be here. Although, I'm really not sure if those two statutes have ever been used here, and if they have, it's certainly not common. I don't envy a prosecutor having to prove beyond a reasonable doubt that someone hurt a woman just to terminate the pregnancy... I hate to say it, but if the woman is also killed, it does make the charges easier to make and prove, and honestly the homicide charge (most likely first degree, though second degree IF it is a heat of passion case might be able to be pursued... eek, really depends though) would be the one pursued, not the others...

Yeah, definitely confusing - and a really hard decision to make as well on all sides of the justice system from the cops to the DA to the jury to the judge.

Quote:
Haha, I'm confused, too. That's why I asked for clarification. I read "intentionally harms a woman" as something like a rape that results in a miscarriage. The intent was to harm the woman, but not the fetus. So is the question, should the assailant be charged in the termination of the pregnancy if the termination results as a complication from the attack?
Right, and that's where the situation, and the subsequent charges, can get murky. There's not really precedent for those types of cases (the example you gave), which makes it really hard to say definitively, KWIM?

Personally - if there's no intent to actually terminate the pregnancy (as in the attacker didn't know of the pregnancy, which I would assume would only occur in the early stages of pregnancy since late-term pregnancy is generally obvious? oh man, but then you run into those situations with those that don't show pregnancy...), I'm not sure how the intent elements could be proven...

Okay, yeah, refining my answer - it definitely depends on each individual case and the evidence therein, and even then it can get relatively murky depending on the situation. A woman who is clearly say 38 weeks pregnant and someone preys upon her (like the rape example, beating her up trying to kill her and the child) KNOWING she is pregnant is different than a situation in which someone is drunk and speeding and slams into a car and kills both the woman and the child without knowing that the woman is pregnant, which even then is still different from a rapist that has killed his victim without knowing she was pregnant. Each of those situations could bring on a whole slew of different charges. Essentially, each element must be proven for Colorado's statutes to apply. Jeez, what a grey area... like I said, I don't envy the DA's office in those types of matters. I sincerely hope I never run into a situation like that during my career. Anyway, I hope my rambling makes sense...

Last edited by irishxrose; April 2nd, 2010 at 09:46 PM.
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