Broomstick wrote:If she's only two weeks along it's unlikely that she or anyone else will ever know that she was pregnant at all.
Well it was an exaggeration, yes, but as far as I'm aware the law doesn't distinguish except in cases of abortion. If a person attacks a pregnant woman, regardless of whether or not it's in the early or late stages of pregnancy, and the foetus dies as a result of that attack, they will not be liable for murder unless: 1) it is proved that they intentionally attempted to harm the child the foetus would become and not the mother; or 2) the foetus was born injured as a result of the attack, and then died due to the injury, or with the injury being a major factor in the death.
In this case, the prosecution is attempting to argue that that "2)" applies. As this was not a "malicious" attack, the court will strike down any charge of homicide, or murder one, but might find a guilty verdict of negligent or voluntary manslaughter.
Broomstick wrote:If she's only two weeks along it's unlikely that she or anyone else will ever know that she was pregnant at all.
I know. I just accepted the two-week figure because it was what he'd used. Could equally well have said "four months;" a four-month fetus won't be able to breathe either, and under current law that means it isn't classed as a person and so you can't be charged for bringing about its death.
Honestly, why don't we just put "attacks on a pregnant woman that cause a miscarriage" under "aggravated assault" or something? It would be far simpler legally, it wouldn't depend on splitting hairs over whether the fetus would have been viable outside the mother's body, and it wouldn't create the potential for entanglement over abortion law or for a situation where we might wind up having to create the Miscarriage Police.
Simon_Jester wrote:Could equally well have said "four months;" a four-month fetus won't be able to breathe either, and under current law that means it isn't classed as a person and so you can't be charged for bringing about its death.
It actually depends on the fetus, as I have had a Birth certificate come across my desk for a baby who was only 20wks along. There was a matching Death certificate, so the little one didn't live more than 48hrs, but he had both a 1min and a 5min APGAR score which says he had a pulse and breath at the least.
Still, I repeat once again WV Code and several other states say if there's breathing (even under oxygen), it's a BABY and not a Fetus. One tiny breath is the difference between a Fetal Death Certificate and a Live Birth Certificate (even if it's followed by a Death Certificate later).
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I said four months for a reason, LadyTevar; I've heard of babies born at twenty weeks surviving, or at least staying alive briefly, but not at sixteen.
The exact number is kind of beside my point- it's that there's some range within which we can definitely say the woman is pregnant, and in which a miscarriage caused by assault will count as grievous extra harm, but in which there's really no chance of the fetus surviving past birth.
I know what the law says; my point is that it would make so much more sense to define assault on a pregnant woman that causes her to have a miscarriage as some form of aggravated assault. From a judicial standpoint, that strikes me as far, far more solid than doing this tapdance about making it a murder charge if the fetus draws a few breaths and nothing at all if it doesn't.
Simon_Jester wrote:
I know what the law says; my point is that it would make so much more sense to define assault on a pregnant woman that causes her to have a miscarriage as some form of aggravated assault. From a judicial standpoint, that strikes me as far, far more solid than doing this tapdance about making it a murder charge if the fetus draws a few breaths and nothing at all if it doesn't.
Wouldn't it be better to just legalise abortion and introduce a crime of 'forced abortion'? That would avoid this kind of nonsense, and actually make it easier to get at abusive boyfriends etc.
As for this case in particular: isn't there some sort of requirement for a prosecution to be in the public interest? What possible interest is there in prosecuting this case? Or am I completely wrong?
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You can already count it as "aggravated assault" because
-the injuries are already very severe, they have to in order to induce a miscarriage
-the woman suffers increased emotional harm from it. It's similar to the way rape is worse than just the injuries caused by it.
No need to introduce any new goofy laws that'll be used to limit womens reproductive rights.
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Simon_Jester wrote:
I know what the law says; my point is that it would make so much more sense to define assault on a pregnant woman that causes her to have a miscarriage as some form of aggravated assault. From a judicial standpoint, that strikes me as far, far more solid than doing this tapdance about making it a murder charge if the fetus draws a few breaths and nothing at all if it doesn't.
Wouldn't it be better to just legalise abortion and introduce a crime of 'forced abortion'? That would avoid this kind of nonsense, and actually make it easier to get at abusive boyfriends etc.
As for this case in particular: isn't there some sort of requirement for a prosecution to be in the public interest? What possible interest is there in prosecuting this case? Or am I completely wrong?
A lawyer can prosecute a case "in the public interest" but there's no requirement for it to be so. Otherwise you could get people saying: We shouldn't prosecute rich people because it wouldn't be in the public interest.
Simon_Jester wrote:
I know what the law says; my point is that it would make so much more sense to define assault on a pregnant woman that causes her to have a miscarriage as some form of aggravated assault. From a judicial standpoint, that strikes me as far, far more solid than doing this tapdance about making it a murder charge if the fetus draws a few breaths and nothing at all if it doesn't.
Wouldn't it be better to just legalise abortion and introduce a crime of 'forced abortion'? That would avoid this kind of nonsense, and actually make it easier to get at abusive boyfriends etc.
As for this case in particular: isn't there some sort of requirement for a prosecution to be in the public interest? What possible interest is there in prosecuting this case? Or am I completely wrong?
A lawyer can prosecute a case "in the public interest" but there's no requirement for it to be so. Otherwise you could get people saying: We shouldn't prosecute rich people because it wouldn't be in the public interest.
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