Senate Bill 295 – Protecting Fetuses, Killing Adults

March 24, 2007

The death penalty news coming out of the General Assembly this session is not all good. Senator Brock (R-Davie and Rowan) has proposed a bill which would make it a capital offense to kill a pregnant woman. At a time when so many are calling for the narrowing of the capital statute, Senator Brock (and his co-sponsors Allran (R-Catawba and Iredell), Apodaca (R-Buncombe, Henderson, and Polk), Berger (R-Guilford and Rockingham), Blake (R-Harnett and Moore), Brown (R-Jones and Onslow), East (R-Alleghany, Stokes, Surry, and Yadkin), Goodall (R-Mecklenburg and Union), Hunt (R-Wake), Jacumin (R-Burke and Caldwell), Pittenger (R-Mecklenburg, Preston (R-Carteret, Craven, and Pamlico), and Smith (R-Johnston and Wayne)) are trying to expand the statute in a way that is both unnecessary and unfair.

Senate Bill 295 would change North Carolina’s murder statute as follows:

“§ 14‑17. Murder in the first and second degree defined; punishment.

(a) [current definitions of first and second degree murder]

(b) Any person who engages in conduct that violates any of the provisions of subsection (a) of this section with respect to the death of a pregnant woman, and who thereby causes the death of a child who is in utero at the time the conduct takes place, is guilty of a separate offense under this subsection. Except [in cases of death during a lawful abortion or other medical procedure], the punishment for that separate offense [will be either the death penalty or life imprisonment without the possibility of parole]. An offense under this subsection does not require proof that the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant or that the defendant intended to cause the death of the unborn child.

As used in this section, the term ‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.”

It is often said that homicide is the leading cause of death among pregnant women in the United States. The statement misrepresents the findings of the study on which it was based. Homicide is the leading cause of injury deaths among pregnant and postpartum (up to one year after birth) women in the United States. (Chang, Jeani; Cynthia Berg; Linda Saltzman; and Joy Herndon. 2005. Homicide: A Leading Cause of Injury Deaths Among Pregnant and Postpartum Women in the United States, 1991-1999. American Journal of Public Health. 95(3):471-77.) It is important to have a realistic grasp on the scope of the problem – pregnant women are not being killed in large numbers, and statistics about such killings (the Chang study found 617 homicides in nine years) include women who have already given birth (and would therefore not fall under the statute). For the record, the leading cause of death among pregnant women in the United States is thromboembolic disease (blood clots that can lead to pulmonary embolism, stroke, or complications during delivery).

It is fair to assume that the bill was proposed, at least in part, as a response to the murder of Michelle Young. Young, four months pregnant, was found beaten to death in her home in late 2006. Although no charges have been filed, many believe that Young’s husband is responsible. Sheerly for the sake of argument, let’s assume that Jason Young did kill his wife. Even without Senate Bill 295, it could still be a capital offense. It has been reported that the Youngs were having financial trouble, and that there was a substantial life insurance policy for Michelle. If she was killed for the money, the murder would fall under the “pecuniary gain” category of capital-eligible homicides. It is unknown exactly how the murder occurred, but it is possible that it would also fall under the “especially heinous, atrocious, and cruel” category. If the goal is to execute Jason Young, it is unnecessary to redefine the legal status of a fetus to do so.

There are myriad implications for such a redefinition, which I will leave aside for now. I argue that the definitions provided by the bill are overly broad. First, the statute does not require that the assailant be aware of the victim’s pregnancy. I think it fair to assume that this bill’s sponsors believe the death penalty is a deterrent to murder, and that this particular bill will discourage the murder of pregnant women. A potential assailant cannot be deterred from something s/he is unaware they are doing. Second, the bill defines an “unborn child” as a “homo sapiens at any state of development.” It would be a capital felony to kill a woman two days after conception – before even she was aware of the pregnancy. Any argument for deterrence at this point is entirely preposterous. As for retribution, given the absence of a requirement for the intent to kill, such a murder cannot be said to be “the worst of the worst” that the death penalty is intended to punish. As written, this statute serves none of the penological objectives of capital punishment, and is therefore questionable on both moral and Constitutional grounds.

Violence against women, pregnant or otherwise, is a serious problem. Capital punishment will do nothing to stop it. If the legislature really wants to protect women, it should do so while they’re still alive. Providing education and resources for women at risk of battering may not win legislators as many votes, but it will help save lives.


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