North Carolina Needs Fetal Homicide Law

An abridged version of this article first appeared in the January 24, 2008, issue of the Raleigh News & Observer.

Adding another bizarre twist to the death of Marine Lance Cpl. Maria Lauterbach, Onslow County sheriff’s investigators are trying to determine whether Lauterbach’s deceased baby was born and then killed by murder suspect Cpl. Cesar Armando Laurean. Lauterbach was due to give birth to a girl some time between January 8 and February 14. The crucial question is whether the baby took a breath outside of Lauterbach’s womb. If she did, Laurean may be charged with two murders – instead of just one. The sheriff’s office is being forced to conduct this strange inquiry because North Carolina is the only state in the Southeast that does not have a fetal homicide law.

Why Bother?

If convicted of first-degree murder (a Class A felony) Laurean will either be sentenced to death or imprisoned for life without parole. Under North Carolina’s “injury to a pregnant woman” law, the death of Lauterbach’s unborn child is essentially treated as an aggravating factor that would make Laurean guilty of a “felony one class higher than the felony committed.” Because no crime is more serious than a Class A felony, it doesn’t seem to matter whether Laurean is charged with a double homicide or not. At least that’s what state Senator Julia Boseman (D-New Hanover) believes: “They’re going to go away forever or die and adding another charge to it is not going to make them die twice or spend two lives in prison.” By Boseman’s logic, anyone charged with first-degree murder should not be charged with any other crime. Anyone charged with one murder, should not be charged with two. Think of the time and expense that would be saved if we dispensed with all of these multiple convictions. Take, for example, Gary Hilton. Hilton currently sits in a Georgia prison cell, accused of murdering a hiker in the North Georgia mountains. Hilton is also a suspect in the murder of two hikers killed near Asheville. But why bother? Hilton has already been charged with one murder. What good will it do to charge him with two more – not to mention another murder in Florida?

Hilton will probably be charged with four murders – and not just one – for the same reasons Cesar Laurean should be charged with murdering both Maria Lauterbach and her unborn child. To begin with, prosecutors often pursue multiple murder convictions in case one conviction is later overturned. Multiple charges also make it easier to negotiate plea bargain agreements, thus avoiding the uncertainty of the trial process. Neither of these practical considerations, though, would ordinarily apply to a double homicide of a mother and unborn child. If one conviction is overturned, the other probably won’t stand. Likewise, an accused murderer can’t plea down from one Class A felony to another. It would seem Boseman is right. When a pregnant woman is murdered, isn’t one first-degree murder charge enough?

But the primary reason prosecutors pursue multiple murder charges – and judges give concurrent life sentences – is because the law is about more than simply meting out punishment. As President George W. Bush explained when he signed the federal Unborn Victims of Violence Act in 2004, “Justice demands a full accounting under the law.” A full accounting requires that every life and every victim be recognized under the law. Setting aside the much-disputed question of whether the child in utero is a person under the law, she is certainly alive – and when she is murdered, she becomes a victim. Justice requires that this victim status be recognized and that the murderer be punished accordingly. The parents and grandparents of these children understand this. Just ask Kevin Blaine, father of Jennifer Nielsen, who was eight-months pregnant when she was murdered last June in Raleigh. “For us, as families that have had this tragedy happen, we just can’t understand why the state doesn’t recognize an unborn child.” Blaine didn’t say he wanted the Supreme Court to overturn Roe v. Wade. What he wants is what every victim wants – to be recognized. And with this recognition, to be protected.

What About Roe?

Some people fear that laws protecting the unborn victims of violent crime will somehow be used as a precedent for reversing Roe v. Wade. Speaking on behalf of her colleagues in the General Assembly who blocked the passage of a fetal homicide bill (HB 263/SB 295) last session, Boseman warned: “This [bill] is looked at as a back door way of going in and taking away a woman’s right to choose and right now the General Assembly supports a woman’s right to choose. Many of us do and given the makeup, I don’t think a bill like that would have any chance right now.”

It is unfortunate that the legislative leadership continues to frame the fetal homicide bill as an abortion issue. In theory, it is conceivable that such a law could be used to question the rationale of Roe v. Wade. In theory, though, fetal homicide laws provide just as much support for the presupposition that only the mother has the right to choose to terminate her pregnancy. Maria Lauterbach, a rape victim, had many reasons to abort her baby. She chose not to. What right did Lauterbach’s murderer have to take this choice away from her?

Yet under current state law, if Lauterbach’s attacker had only assaulted her, causing her to miscarry, her assailant would likely have been convicted of a Class I felony – which typically results only in some form of probation, plus additional community-based sanctions. Would this have been just? If we can’t all agree that abortion should be illegal, can’t we at least recognize that the murder of an unborn child should be treated as more than just a legal footnote?

At least 36 states have passed fetal homicide laws, which have weathered several constitutional challenges along the way. The courts have repeatedly found that fetal homicide laws are a legitimate means of protecting women and children from harm. As the Georgia Supreme Court ruled in upholding Georgia’s 1982 fetal murder law: “Nothing in Roe v. Wade, 410 U. S. 113 (1973) nor Doe v. Bolton, 410 U. S. 179 (1973), supra, is in conflict with our holding here. There the court dealt with a balance between a woman’s right of privacy affording her the choice to decide the question of abortion of her child. … But here we deal with the interest of the state in protecting both the mother and the fetus from the intentional wrongdoing of a third party who can claim no right for his actions.”

Fetal homicide laws protect both life and choice. It’s a shame that even as North Carolina legislators espouse their commitment to protecting a woman’s right to choose an abortion, they deny legal protection to the pregnant mom who chooses to carry her baby to term.

This article was posted in Life & Family Issues by Jameson Taylor on January 24, 2008 at 4:14 PM.

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