From State of California V. Scott Peterson to State of Utah V. Mark Hacking Willmore States Adopt Fetal Protection Laws?

American University Criminal Law Brief Volume 4 Issue 2 Article 3 2009 From State of California V. Scott Peterson To State of Utah V. Mark Hacking WillMore States Adopt Fetal Protection Laws? April Walker Follow this and additional works at: https://digitalcommons.wcl.american.edu/clb Part of the Criminal Law Commons Recommended Citation Walker, April. "From State of California V. Scott Peterson To State of Utah V. Mark Hacking Will More States Adopt Fetal Protection Laws?" American University Criminal Law Brief 4, no. 2 (2009): 46-59. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Criminal Law Brief by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. FRom StAte oF CAliForniA v. S Cott PeterSon to StAte oF UtAh v. M Ark hACkinG Will moRe states adopt Fetal pRoteCtion laWs ? April Walker* child because of her refusal to have an abortion. 8 In Introduction 2002, Paul nino Tarver of Ohio was convicted of aggra - vated murder of his unborn child and felonious assault Roe v. Wade sparked the flame igniting wide - of the mother of the child. 9 Perhaps the most famous spread interest in the issue of fetal protection. 1 Much of incident was the December 2002 muder of Laci Peterson the debate centered on a woman’s right to choose. Roe and her unborn child. 10 In 2004, the world was shocked exhibited a prevalent sentiment toward individual rights again when Mark hacking of utah was arrested and that existed during the 1970s. The individual rights of charged with the aggravated murder of his pregnant wife persons were paramount during this time period and Lori hacking. 11 In Texas in May of 2004, Gerardo Flo - many individual rights movements were enjoying suc - res was convicted of two counts of capital murder and cess. The Roe court cemented the sentiment by recog - sentenced to life in prison for the death of his two un - nizing that women have an individual right to determine born children. 12 unfortunately, high profile murder whether or not to have an abortion. 2 Consequently, Roe cases have been an important factor in recent scholar - diminished the standing of many abortion laws. 3 ship regarding the validity and possibility of fetal homi - however, since the 1970s, fetal protection laws cide. Particularly, can one murder a fetus? have reclaimed some of the standing lost within the Roe Constitutionally, can a third party be punished for an act decision, specifically in criminal codes and statutes ad - that a mother can commit? This article will explore dressing third party action against the fetus. Today, these questions. It will also address the differences in however, fetal protection laws differ in their focus. The fetal protection laws across the country while analyzing issue of a woman’s choice is not at the heart of the de - some of the aforementioned highly publicized cases. To bate, because in many cases, the woman’s choice is pre - explore this conundrum, some background on feticide empted by a third party murdering of the fetus. 4 A recent and its legal elements is necessary. rise in spousal homicides has highlighted state imple - mentation of fetal protection laws throughout the coun - try, and indeed, in February of 2005, ABC news Defining When Fetal Protection Laws Apply reported that with the exception of medical complica - tions, murder was the primary cause of death of preg - As noted above, the application of fetal protec - nant women. 5 Although fetal protection laws differ from tion laws is becoming more prevalent. 13 The contro - state to state, each seems to share a common goal of pro - versy lies in whether or not a fetus is legally considered tecting the mother and unborn fetus from third party a person and, therefore, can be considered a victim of a harm. 6 Therefore, crimes against a pregnant woman and crime. Concurrent with analyzing the fetus’ status as a her unborn child have been included in fetal protection person is the consideration of the definition of life. statutes. 7 More specifically, the ‘life’ analysis addresses the in - Attention to fetal protection laws has increased stant at which a fetus is considered a person and there - with the rise in spousal homicide fore becomes subject to victim rates. Widely publicized incidents of Widely publicized incidents status. Courts have attempted to the murders of pregnant women by of the murders of pregnant outline a definitive standard for de - their significant others have inflamed women by their significant termining the fetus’ status as a per - public passions and reignited interest son. however, the earliest instance in the issue of fetal protection. In others have inflamed public of human status for fetuses can be 1999, many people were astonished passions and reignited in - traced to common law principles. 14 when news reports revealed that pro - terest in the issue of fetal In traditional common law, the fessional athlete Rae Carruth was doctrine of ‘quickening’ was intro - charged with conspiracy to murder protection. duced to help determine the mo - his pregnant girlfriend and unborn ment at which a fetus gained human 46 Criminal Law Brief status. 15 ‘Quickening’ is defined as the “period prior to went on to say that the viability of a fetus is not dispos - viability when the mother first feels the fetus move in itive because criminal liability only requires concep - the womb, which is usually between the sixteenth and tion. 30 This illustrates Minnesota’s unique version of eighteenth week of pregnancy.” 16 Further, once ‘quick - feticide. 31 ening’ occurred, the traditional common law jurisdic - The classic California case, Keeler v. Superior tions provided basic criminal protections for fetuses. 17 Court of Amador County , set the tone for punishment of Because ‘quickening’ was not precisely dispositive of the crime of infanticide. 32 The Keeler court was unwill - the fetus’ viability, the common law required that the ing to exceed its judicial and constitutional authority. child be born alive and subsequently die of injuries sus - This was probably due to the first impression nature of tained because of the defendant’s actions to receive pro - the Keeler case. As previously mentioned, the Carruth , tection under homicide laws. 18 Therefore, the ‘born Peterson and Hacking cases are all relatively new cases alive’ rule was created and became the first barometer compared to the 1970 ruling of Keeler. Therefore, the for determining the fetus’ human status for purposes of unprecedented opinion in Keeler set the tone, via Justice charging defendants with homicide. In 1850, American Burke’s dissent, to amend §187 of the California Penal jurisdictions began to adopt the ‘born alive’ rule. 19 In Code to include fetuses. 33 In Keeler , a husband con - Roe, however, the Supreme Court defined viability as fronted his wife who was pregnant with another man’s “the period at the end of the second trimester of preg - child and kneed his wife in the abdomen. 34 The husband nancy when the fetus is capable of surviving outside of told his wife that he was going to stomp the baby out of the womb.” 20 The Roe court seems to determine the her: “‘I hear you’re pregnant,’ glanced at her body and human status of a fetus from a more scientific and ob - added, ‘You sure are. I’m going to stomp it out of jective calculation. Conversely, the common law you.’” 35 The woman was thirty-five weeks pregnant. 36 ‘quickening’ doctrine suggests a less scientific calcula - When she arrived at the hospital, 37 the emergency room tion of human status. Because of the certainty attendant health care providers performed a caesarean procedure, to the Roe test of human status, states have since used which produced a stillborn child with a fractured skull. 38 the Roe test as the barometer for determining the viabil - Keeler was charged with murder pursuant to California’s ity of fetuses when crafting fetal protection laws. 21 Penal Law §187, which defines murder as “the unlawful killing of a human being, with malice aforethought.” 39 Feticide Laws/Fetal Protection Laws In a 5-2 decision, the California Supreme Court held that § 187 could not apply to the Keeler case because the The treatment of feticide by statute varies from child was not born alive. 40 up until that time, the act state to state. Some states apply murder statutes to pun - committed in the Keeler case was classified as feticide, ish persons for killing fetuses while other states adhere “which was not a crime under California law.” 41 As a to the “born alive rule.” 22 For example, in Massachu - result of the Keeler decision, §187 was amended. 42 setts, South Carolina, and Oklahoma, common law mur - Since Keeler , the California Supreme Court has applied der has been applied to the killing of a fetus. 23 In the crime of murder to the killing of a fetus as young as Minnesota 24 and California, however, 25 statutes classify seven weeks old. 43 the killing of a fetus as murder. Generally, states are divided into those with a The law in Minnesota represents the most radi - “born alive rule” and those who punish defendants con - cal treatment of the killing of a fetus because it applies victed of killing a fetus. The origin of the common law murder statutes at the time the fetus is conceived. 26 The born alive rule can be traced to england.

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