Plum Crazy

I believe the 14th Amendment is worded in a manner that would preclude charging someone with crime against an unborn. I would happen to think the state's attorneys can still file capital murder charges against Peterson because of the wife's pregnancy at the time of the murder.

You could have a philosophical argument regarding whether or not the 14th Amendment does allow for such statutes. Practically, no fetal homicide statute (and 29 states have them) has ever been successfully challenged as unconstitutional.

Well Plum, the 14th only extends protections of the law to persons "... born..." or naturalized as U.S. citizens. I wouldn't know for sure prior to examining a specific state's law for the wording, if a 'fetal homicide' statute would withstand constitutional challenge. On the surface, such a law -- well intentioned as it may be -- sounds as shaky and problematic as those prohibiting partial-birth abortions.

I would say though that I wouldn't want to be the lawyer arguing for repealing that law. I can understand why no one would challenge such a law, even one with provisions for legal abortions. It sounds as one of those laws created as a token political gesture with little practical merit. The crime itself is so gruesome that should the evidence plausibly demonstrate Peterson as the killer, I've got a better chance at winning an Oscar than he does at anything less than a life sentence.

I truly wonder if a 'fetal homicide' case has ever been prosecuted.

If Laci Peterson was pro-choice, killing the fetus would not be murder.

If she was pro-life, killing the fetus would be murder.

Perhaps one day SCOTUS will agree to hear a challenge, and we'll see. I know of at least one true fetal homicide case that was tried in Pennsylvania. They're appealing, so let's see how high it goes.

With respect to Peterson, I still don't get why this has to be a fetal homicide case, since two bodies were found separate from each other.

Actions don't have to be against "persons born or naturalized" to be considered a crime. Treason comes to mind, it is a crime against a social construct not a person and is punishable as a capital offense.

The language of specific fetal homicide statutes may be challenged because a fetus is not technically a person if the statute refers to the fetus as a person, but to say it cannot be a crime because the fetus hasn't been delivered is incorrect.

And yes there have been cases of fetal homicide charges successfully tried and upheld.

Erie County Judge John Trucilla ruled Friday that whether a fetus would live outside the womb was irrelevant under the law.

"The state must prove only that the implanted embryo or fetus in the mother's womb was living, that it once had a life, and that it has life no longer,"

http://www.philly.com/mld/inquirer/news/local/5038236.htm

Oh Lesley already posted about this trial.

What was that about great minds thinking alike?

No, Justin, crimes don't have to be against a person. However, I think it's fair to say that homicides do.

Not to be too persnickety, but treason qualifies as a crime against the State (or the People). As does homicide. The prosecution of both offenses are still subject to the guarantee of due process for the defendant. My thinking is fetal homicide statutes have a very shaky legal foundation because they're difficult to enforce equally -- even with provisions for legal abortions. (We're having a rip-roaring debate about the 14th Amendment and 'substantive due process' on Jay's blog.) Charging Peterson with two homicides appears to be more about outlawing abortion than penalizing the guilty party.

I understand your distinction, MIB, but I still think it's fair to say that you can't have a charge of homicide without a person having been victimized. Treason is a crime that does not directly victimize an individual. Homicide is not.

I haven't read all the fetal homicide statutes, labels are not the legal description of the crime, just the label of the statute used to charge a person. What is in the actual statute is what counts. The label may be fetal homicide, but if the language within the statute is correctly worded then the crime may be considered a crime against a non-person and may be constitutional. Using the labels of the statutes Peterson was charged with 2 homicides. One was a human, the other was a developing human.

As the judge said "The state must prove only that the implanted embryo or fetus in the mother's womb was living, that it once had a life, and that it has life no longer,"

I see nothing about independent life or viable human life or chance of survival if the fetus had been delivered at the point in time the crime occured.

Don't mind me... I'm just splitting hairs.

I think the worst justification I have heard in support of NOW's position was pur forth by KGO radio talk show host, Bernie Ward. He queried his listeners with this:

"Could that fetus be claimed as a dependent for tax purposes??? Nooooooooooooooooooooooooo."

Needless to say, the caller who was the lucky recipient of this pearl of wisdom was stunned into a a sort of palpable silence, the likes of which in the cartoon world is accompanied by violent head-shaking and the echoing sounds of a ringing cowbell.

Thank goodness for IRS and their tax guidelines! Now this whole silly debate can be resolved.

Hey what a grand idea! create anothre tax loophole err tax break. Anything to keep uncle sam from taking more of my money.

Oh wait. I won't be getting pregnant anytime soon. How about a tax break for the children I won't be having? You know a tax credit for not producing more kids avoiding further strain on social services programs?

Oh... Phew, Justin. Even the American feudal lords only justify tax breaks for those that produce something.