Prosecutors Across the Country File Charges in Unborn Babies' Deaths

By Liz Townsend

Acknowledging that unborn babies are separate victims of crime, prosecutors across the country are charging the babies' killers with homicide and manslaughter - - as long as the deaths were not caused by abortion.

While some of these cases have resulted in convictions and long prison terms, courts in many states continue to treat an unborn baby's death as only an additional injury to the mother.

Twenty-four states have laws that recognize babies as crime victims during all or part of their pre-natal development. These laws deal only with unborn children injured by criminal assailants and do not affect legal abortions. [A factsheet on these state laws is available at www.nrlc.org/Whatsnew/sthomicidelaws.htm.]

A bill pending in Congress, the Unborn Victims of Violence Act, would recognize unborn children as victims under federal criminal laws, but most acts of violence are governed by state laws. [For more information, see www.nrlc.org/ Unborn_Victims/keypointsuvva.html.]

In Mississippi, the killer of an "unborn quick child" can be charged with manslaughter. Eric Laquinne Brown of Pontotoc, Mississippi, received a life sentence November 29 for the murder of Shorlonda Moore and a concurrent 20-year sentence for manslaughter in the death of her unborn baby.

Brown pled guilty to strangling his pregnant ex-girlfriend on January 22, 1999, leaving the bodies of Moore and her unborn child in a burned-out car in Memphis, Tennessee, the Associated Press (AP) reported. Brown killed Moore "primarily because she was pregnant and was causing him problems, demanding child support," Assistant District Attorney Clay Joyner told the AP.

An unborn baby was one of three people killed in a 1998 fire that destroyed an apartment building in El Reno, Oklahoma. Ryan Owen McCarty, 18, received three concurrent life sentences November 30 for the first-degree murders of Johnny Joe LeBleu, 24; Felicia Chisholm, 16; and Chisholm's unborn baby, the Oklahoman reported. Oklahoma law allows a homicide prosecution only if the child is "viable"; the killing of an "unborn quick child" can be considered manslaughter.

McCarty was convicted November 8 of all three murders. Felicia Chisholm's family had asked Canadian County District Judge Edward Cunningham for the sentences to run consecutively. They expressed disappointment when the concurrent sentences were announced, since McCarty may be eligible for parole in his lifetime. "I guess this is our life sentence, reliving that day over and over again," Chisholm's mother Cindy told the Oklahoman.

Prosecutors in states that rely on case and common law instead of a statute in cases involving unborn victims of violence have a much more difficult time obtaining a conviction. Olivia Taylor Garcia, an eight-month-old unborn baby, died October 10, 1998, after she was delivered in an emergency Caesarean section when a drunk driver collided with her family's car in Ontario, California. Her mother Raylene survived with a broken pelvis, broken ribs, and punctured lung, but Olivia spent four hours on a respirator at Loma Linda University Medical Center fighting for life until she died in her father's arms, the Daily Bulletin reported.

However, Antonio Ortiz, the drunk driver who caused her death, was acquitted of manslaughter November 24 when a judge determined Olivia was not a "viable human being." California law allows homicide charges to be brought against the alleged killer of an unborn baby after the embryonic stage, from about the eighth week after conception. If the defendant is charged with manslaughter, the baby must meet the "legal definition of life" outside the womb, according to the AP.

In Olivia's case, prosecutors did not believe they could meet the "very high standard" of proof that Ortiz knew the risks of driving drunk that would be required in a homicide case, prosecutor Kent D. Williams told the AP, and instead charged Ortiz with manslaughter.

"The manslaughter law is very unfortunate in that it makes an arbitrary distinction," Williams told the Daily Bulletin. "It's a distinction without a difference. It shouldn't make a difference whether a baby is killed inside or outside the womb."

West Valley Superior Court Judge Mary Fuller ruled that Olivia was "clinically dead" after she was delivered, with only a "weak heartbeat and ineffectual attempts to breathe," according to the Daily Bulletin. Fuller decided there was no evidence that Olivia's brain stem was functioning, which is a requirement to prove a person is alive.

"I don't care what the judge said," Olivia's mother Raylene Garcia told the AP. "To my husband and I, she was alive. We held her. We watched her die."

NRLC Associate Western Director Jan Carroll told NRL News that pro-life legislators in California have tried several times to pass a law allowing prosecutions for the manslaughter of unborn babies, but have not been successful. The Garcia case has revived interest in changing the law, Carroll said.

"Maybe something good can come out of this," Raylene Garcia told the Daily Bulletin. "Maybe a law can be passed. Maybe that's what Olivia died for."

The tragic deaths of a 14-year-old girl and her 7-month-old unborn baby in Boston have focused attention on how Massachusetts law views unborn victims of violence. Based on a 1984 Supreme Judicial Court ruling, the state's homicide law applies to the death of a "viable fetus," according to the AP. The court did not define what "viable" means, leading to continuing court battles over the interpretation of the law.

Two men, including the baby's father, were charged with double murder November 4 for stabbing 14-year-old Chauntae Jones in the stomach, killing her and her unborn baby. Kyle Bryant, 19, the baby's father, and Lord Hampton, 20, allegedly lured Jones to an abandoned hospital in Mattapan, beat and stabbed her, and buried her in a pre-dug grave, according to the Boston Globe.

Pro-abortionists immediately criticized prosecutors, saying that treating the unborn baby as a separate victim could be used to erode the "right" to abortion. "The assault or violence that harms a pregnancy is an attack on a woman," Melissa Kogut, executive director of the Massachusetts chapter of the National Abortion Rights Action League, told the AP. "The focus ought to be on the violence that harms a woman."

State pro-lifers insisted that both victims, mother and child, should be persons in the eyes of the law. "This is a baby," said Maryclare Flynn, executive director of Massachusetts Citizens for Life. "This family lost two people, and a defendant, or defendants, must pay for these two lives."

On the same day Bryant and Hampton were charged in the deaths of Jones and her baby, the Massachusetts Supreme Judicial Court heard the appeal of another case involving the death of a seven-month-old unborn baby and her mother, the AP reported.

Michael Crawford was convicted of involuntary manslaughter in the 1989 deaths. At the trial, the judge "instructed the jury to consider the fetus viable if it was potentially able to live outside the mother's womb," according to the AP.

Crawford's attorney, Matthew Robinowitz, argued to the Supreme Judicial Court that this definition was too broad and that, with the lack of a clear definition of viability, his client did not know the unborn baby was a legal person and should not be held responsible for the baby's death, the AP reported.