Things I am passionate about. Injustice, stupidity, intolerance, bigotry and small-mindedness. Oh and there might just be some humor to offset the whole thing.

Tragic cases often spur fetal homicide laws

Posted by morganwrites on July 3, 2008

– A masked gunman enters an Indianapolis bank, jumps over the counter and shoots teller Katherin Shuffield, who was five months pregnant. She survives the wound to the abdomen. Her twin girls do not.

The suspected triggerman has been charged and faces four to 16 years in prison if convicted on two counts of killing a fetus — a penalty a prosecutor and some state lawmakers say is not enough.

“We’ve got two innocent babies whose lives were abruptly terminated, five months old, and all we can do is charge this individual with a C felony feticide for each life that was taken because of the way the law’s written,” Marion County Prosecutor Carl Brizzi said after the June 20 arrest of Brian Kendrick. Kendrick also faces other charges in the April 22 shooting that carry longer sentences.

Some legislators agree with Brizzi that the possible prison sentence for killing a fetus is too short and are looking to change the law. It could make Indiana the newest battleground for the debate that has been waged in other states.

Conservative groups say such legislation is needed to protect human life and to recognize that a crime against a pregnant woman has more than one victim. But abortion rights activists say fetal homicide laws are often a backdoor way to determine that life legally begins at conception and can pit a mother’s rights against those of her unborn child.

In Indiana, the law allows prosecutors to file murder charges in cases where a fetus dies, but only if the mother is at least seven months pregnant.

“The expectation of a child is a remarkable feeling — to have that stolen from you is just tragic,” said state Sen. Jim Merritt, a Republican from Indianapolis who plans to sponsor a bill that would amend the murder statute to cover a fetus at any stage of development.

More than 35 states have fetal homicide laws, including 23 that define a fetus starting with conception or fertilization, according to the Guttmacher Institute, a think tank that focuses on abortion and reproductive health issues.

In Kansas, lawmakers changed the state’s law last year to allow prosecutors to charge an assailant with murder, manslaughter or battery for intentionally harming a fetus.

A leader in the fight was Terri Brooks, who was looking forward to becoming a first-time grandmother when her pregnant teenage daughter was murdered in 2006, just three weeks before she was expected to give birth.

Brooks went from picking out baby clothes to planning two funerals.

“It’s like your whole life as you expected it to be is now gone,” she said.

Merritt and other supporters hope to change the feticide law during next year’s legislative session.

“Any time someone commits a crime and an unborn child dies, that ought to be a separate crime,” said Eric Miller, founder of the Indiana-based conservative group Advance America. “The laws should be amended to begin at the time that life begins, at conception. It shouldn’t be tied to viability.”

Such laws are often approved after disturbing cases of violence against pregnant women.

Kansas lawmakers called their bill “Alexa’s Law” after the child 14-year-old Chelsea Ann Brooks was carrying. The law had strong backing from abortion opponents but specifically excluded abortion. Brooks said she was disappointed that much of the debate focused on the issue.

“This isn’t about abortion, this is about justice,” she said.

Laci Peterson was eight months pregnant when she was killed in 2002 in California. Two years later, President Bush cited the highly publicized case when he signed a federal law making it a separate crime to harm a fetus during an assault on the mother.

That law applies only when a federal crime is being committed against the mother. That could include a bank robbery, which would cover the Indianapolis case. Kendrick has not yet hired an attorney and was being held on $250,000 bond.

But that is just one case, and some say Indiana should change its law to cover others.

However, such laws meant to protect a fetus can be used to prosecute pregnant women, said Lynn Paltrow, executive director of the National Advocates for Pregnant Women.

“What happens in legislation like this is that the pregnant woman is treated as collateral damage,” Paltrow said. “They create precedent through these laws that has all over the country been used not to protect pregnant women but to justify the arrest of pregnant women themselves.”

An Oklahoma City woman, for example, was sentenced last year to 15 years in prison for delivering a stillborn boy in 2004 after using methamphetamine during her pregnancy.

Theresa Lee Hernandez pleaded guilty to second-degree murder. She was originally charged with first-degree murder after her stillbirth at eight months. State law considers a fetus viable at 24 weeks.

Prosecutors said they were compelled to prosecute Hernandez because evidence showed she was responsible for the death of her child. But experts and public health groups said there is no medical evidence that meth use causes stillbirth. They argued that the prosecution will discourage pregnant women with drug-abuse problems from obtaining the care needed for themselves and their babies.

Indiana lawmakers may be able to avoid the controversy by simply expanding penalties for existing offenses. If feticide was a more serious class of felony, it could carry a prison sentence of 20 to 50 years.

“This is not a reproductive rights issue,” said Brizzi, the Marion County prosecutor. “This is protecting unborn children at conception.”

How can this be. There should be unity in all 50 states that if you kill a yet to be born child, regardless of the age of the fetus, you’re convicted of murder – no ifs ands or buts!


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