Conner Peterson, An Unborn Victim of Violence, and the California Law

By Jan Carroll

When, several months after their Christmas Eve disappearance, the bodies of Laci and her unborn son Conner Peterson (who was eight gestational months old) were discovered, Scott Peterson was charged with a double homicide. Prosecutors were able to do so thanks to a series of rulings that go back more than three decades.

In 1970, three years after the state legislature made abortion legal under almost all circumstances in California, Robert Keeler hunted down his estranged wife, Teresa Keeler, who was then seven months' pregnant with a child who was not his. He ran her off a rural road and pulled her out of the car.

As the California Supreme Court related in Keeler v the Superior Court of Amador County, Robert Keeler, after saying, "'You sure are [pregnant]. I'm going to stomp it out of you,' pushed Teresa Keeler against the car, shoved his knee into her abdomen, and struck her in the face with several blows." The assault fractured the skull of Baby Girl Vogt, causing her to be delivered stillborn.

But to the shock and horror of almost everyone, the Court ruled that Keeler would only be guilty of murder if a fetus was "a human being within the meaning of the statute" - - which the Court said was not the case. The public was outraged, and the California Legislature acted quickly to amend the homicide law. Three words were added, so that the homicide statute now reads "murder is the unlawful killing of a human being, or a fetus, with malice aforethought." The law also included, as all such laws must since Roe v. Wade, an exception for legal abortions.

For many years, the California courts misinterpreted the statute, often requiring that the child be "viable" - - capable of surviving outside the womb on his or her own - - before this charge would apply. This had a chilling effect on the willingness of district attorneys to prosecute.

Requiring evidence of fetal viability was not only a big hurdle to overcome, it was also particularly ironic because the legislature had specifically rejected floor amendments which would have narrowed its application to late-term babies or babies after viability. The California Supreme Court would eventually revisit the issue in the 1994 case of People v. Davis.

Maria Flores was 22-25 weeks' pregnant and carrying a 20-month-old toddler in one arm when she was shot point blank at a check-cashing store, causing her child to be stillborn. In addition to assault and robbery, Robert Davis was convicted of murder in a lower court for causing the miscarriage. Ms. Flores miraculously survived.

In a 6-1 decision, the California Supreme Court upheld the lower court decision. However, the Court looked to a medical-legal dictionary and concluded that "fetus" meant the "unborn offspring in the post-embryonic period, after major structures have been outlined" - - seven or eight weeks after fertilization.

There was nothing in the legislative history to indicate the legislature intended to make this distinction between an embryo and a fetus. Be that as it may, the Court calibrated that "[t]he third-party killing of a fetus with malice aforethought is murder. . . as long as the state can show that the fetus has progressed beyond the embryonic stage of seven to eight weeks."

People v. Davis clarified the law for future cases such as the tragic murders of Laci and Conner Peterson.