Fetal homicide: woman or fetus as victim? A survey of current state approaches and recommendations for future state application.

• Author: Smith, Sandra L.

On June 7, 1998, Sabrina Adkinson was walking across Mercury Boulevard in Hampton, Virginia.(1) At the time, she was eight months pregnant with her seventh child, a daughter to be named Destiny.(2) Traveling between sixty-five and sixty-eight miles per hour in a forty-mile per hour zone, an apparently drunk driver plowed into, and killed, both Ms. Adkinson and the fetus(3) The driver had been convicted of driving under the influence (DUI) in 1996 and was charged with involuntary manslaughter in Ms. Adkinson's death.(4) He could not be charged in the death of the fetus because Virginia law does not allow separate prosecutions for fetal homicides unless the fetus is first born alive, nor does Virginia law provide increased penalties for vehicular homicides involving pregnant women.(5)

The Virginia General Assembly first considered a feticide bill in the 1996 session(6) and considered a similar measure in 1998.(7) The proposed 1996 bill provided that a fetus is a person for laws related to murder.(8) The General Assembly eventually passed legislation that increased penalties for murdering pregnant women and amended the aggravated malicious wounding statute to include miscarriage as a serious bodily injury(9) The proposed 1998 bill, sponsored by State Senator Forbes, from Chesapeake, established the crime of feticide for the murder of an unborn viable fetus, but the bill was not carried over to the next legislative session.(10)

This Note explores the topic of fetal homicide statutes and their application in Virginia and other states. The first section provides an overview of the approaches taken by states on the issue of fetal homicide statutes. The second section examines the dimensions of fetal homicide laws, noting important trends among the state statutes. Most significantly, the states tend to diverge with respect to who is the victim protected in homicide statutes: the fetus or the pregnant woman. The third section suggests ways that states can take a balanced stance on the issue of fetal homicide, regardless of which dominant approach is chosen, and submits that the optimal strategy should focus on the woman as the victim, thereby satisfying societal concerns while avoiding the brunt of opposition by pro-choice advocates. Finally, this Note proposes a Virginia statute that would penalize persons who drive under the influence of alcohol and injure pregnant women.

OVERVIEW OF APPROACHES TAKEN BY STATES

States take various approaches to punishing harm caused to pregnant women. Generally, states can be divided into those adopting a born alive rule, those punishing harm inflicted upon a fetus, and those punishing harm to the woman. Each of these approaches will be discussed in turn.

The Born Alive Rule

This subsection focuses on the born alive rule(11) and the changes to the rule adopted or considered by many states. The treatment begins with a historical discussion of the born alive rule and then surveys those states that subscribe to this rule.

The common law born alive rule originated in England, based on the medical knowledge of the sixteenth century.(12) Under this rule, live birth, regardless of the actual gestational age, was the point at which life could be observed clinically.(13) In cases of fetal death, it was difficult to distinguish between death from natural causes, or injuries inflicted in utero.(14) Determining if "material acts" caused the death required the fetus to be born alive.(15) Sir Edward Coke reflected the seventeenth-century common law view that the homicide of an unborn fetus was not murder, but some lesser crime,(16) which Sir William Blackstone reiterated in the eighteenth century.(17) The rule "is recognized to be an evidentiary principle that was required by the state of medical science of the day."(18) Jurisdictions in the United States adopted the born alive rule, and several states maintain the rule either through express statutes or court interpretation.(19)

The case most widely cited for a discussion of the born alive rule is Keeler v. Superior Court.(20) In Keeler, the defendant blocked his ex-wife's car on a narrow mountain road and forced her out of the car.(21) At the time his ex-wife was pregnant with a viable fetus, later determined to have a seventy-five to ninety-six percent chance of survival if born uninjured.(22) The defendant had warned her of the consequences if she were pregnant with another man's child.(23) After realizing that she was pregnant,(24) the defendant threatened "`I'm going to stomp it out of you,'" and then "pushed her against the car, shoved his knee into her abdomen, and struck her in the face."(25) The woman survived, but the fetus was stillborn and the defendant was charged with murder.(26) Writing for the majority, Justice Mosk discussed the history of the born alive rule extensively and evaluated the legislature's intent in enacting the state's murder statute(27) The majority determined that the legislature "did not intend the act of feticide--as distinguished from abortion--to be" a crime.(28)

Currently, a total of eighteen states still subscribe to the born alive rule, either by express statutory language or through judicial interpretation.(29) In eight of these eighteen states, criminal statutes explicitly define "person," "individual" or "human being" as one who is born and alive.(30) Eight other states have definitions of "person" or "human being" in their statutes or refer to persons or human beings in their homicide statutes;(31) their courts have held explicitly that the definitions of these statutes do not encompass fetuses.(32)

North Carolina considered application of the born alive rule in State v. Beale.(33) The grand jury indicted the defendant with the murder of his wife and unborn child,(34) specifically charging that he fired a "shotgun with intent to destroy the unborn child."(35) The Supreme Court of North Carolina held that the definition of a victim under the murder statute did not include an unborn viable fetus.(36) Despite the court's precedent recognizing a viable fetus as a person within the state's wrongful death statute,(37) the court distinguished the legislative actions and histories between the wrongful death and murder statutes.(38) The court relied upon DiDonato v. Wortman,(39) a case concerning the wrongful death of a stillborn child, in which the court reasoned that, because the state's statutes provided for tort claims by children to recover for fetal injuries, the legislature would also want to allow recovery for a viable fetus's death.(40) The court in DiDonato held that the term "person" in the wrongful death statute included a viable fetus.(41) In Beale, however, the court listed specific occasions in which the legislature could have amended criminal statutes to include fetuses as victims, but did not.(42) The court strictly construed the criminal statutes to exclude the fetus as a victim.(43)

Courts in Alabama, Kentucky, Maryland, New Jersey, New York, and Texas, though maintaining the born alive rule, have held that if fetuses are injured before birth, are born alive, and then die, their deaths can be prosecuted as homicides.(44)

States Criminalizing Actions Against Fetuses

In contrast to those maintaining the born alive rule, twenty-four states criminalize actions against the fetus. This approach recognizes the fetus as the victim of the aggressor's actions. As will be seen, however, these states differ with respect to the threshold at which criminal culpability attaches--some states will punish the offender only if the harmed fetus has reached a certain stage of development. This section surveys the states according to fetal gestational age.

Viability

Modern medical jurisprudence refers to "viability" as an important stage in fetal development.(45) The Supreme Court defined viability in Roe v. Wade(46) as that period at the end of the second trimester of pregnancy when the fetus is capable of surviving outside the womb.(47) The Court determined that when balanced against a woman's right to privacy, a fetus was not a "person" with rights under the Fourteenth Amendment.(48) States, however, have an interest in protecting "potential life" when the fetus reaches viability, usually at twenty-eight weeks of pregnancy, but theoretically as early as twenty-four weeks.(49) The Court in Roe limited its discussion to actions taken by the mother and her physicians, not actions taken by a third party to terminate the pregnancy without the woman's consent.(50)

Six states criminalize homicides of viable fetuses by statute or judicial interpretation.(51) Three of these states protect fetuses with homicide statutes(52) For example, Indiana originally enacted a "feticide" statute that criminalized knowing or intentional termination of another's pregnancy, with exceptions for abortion, and mandated a maximum eight-year penalty.(53) In Baird v. State,(54) the Supreme Court of Indiana held that the legislature intended this statute to punish those who "knowingly terminated a human pregnancy," even without the specific intent to kill the fetus.(55) Despite the defendant's argument that the statutory language required a specific intent to kill the fetus, the court reasoned that the language was used specifically to exempt from prosecution two intentional actions by physicians.(56) Yielding to popular support for a more effective feticide law,(57) the Indiana legislature, over the governor's veto, enacted sweeping legislation criminalizing acts against pregnant women and fetuses.(58) The most significant provision of these new laws established murder of a pregnant woman that results in the intentional death of a viable fetus as an aggravating circumstance for a death sentence or life imprisonment without parole.(59) The Indiana law also includes penalties for crimes against viable fetuses and pregnant women ranging from murder to aggravated battery.(60)

In the remaining three states that recognize viability...