Yesterday I heard that Ariel Castro was being charged by the prosecutor with several counts of “aggravated murder” for each of the miscarriages he caused Michelle Knight, Amanda Berry, and/or Gina DeJesus. I don’t have a problem with Castro, assuming he’s found guilty of the various crimes that he’s been charged with, being locked away forever or even put to death. But something about the fact that Castro is being charged with “aggravated murder” regarding the forced miscarriages bothers me. It’s the word “murder.”
The prosecutor in this case is not stretching Ohio’s murder statute in any way to bring this charge against Castro. The statute is written specifically to permit charges of aggravated murder in this kind of situation. Ohio statute 2903.01 applies the term “aggravated murder” to homicides as follows:
(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.
(B) No person shall purposely cause the death of another or the unlawful termination of another’s pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape. (emphasis added)
There’s no question that, by the statute, inducing a miscarriage by repeatedly punching a kidnapped, pregnant woman in the stomach qualifies as aggravated murder. Yet I still question why a forced miscarriage should belong in any homicide statute.
The way it’s written, the statute is really, really close to defining a fetus (or a zygote) as a person, and that’s a very unwise thing to do. Zygote personhood laws would have all sorts of unintended consequences, and as someone living in Colorado who has written about these laws (and where voters have wisely rejected at least three zygote personhood laws at the ballot box), I’ve had a greater opportunity to consider those unintended consequences than most.
But I’m also a parent of two children. Having children was and is an amazing experience for me and my wife, but it’s also one hell of a lot of work that can be both physically and emotionally exhausting at times. Kids are not all sweetness and light, however much you love them. That’s why being a parent has made me more pro-choice, not less – no-one should be forced to raise children they are not able or willing to raise.
I won’t speak for my wife on this (I’m not stupid) but if someone had attacked her and she’d had miscarried either of our children, I would personally have considered it murder. Not because I felt the fetus was fully human in the same way a newborn or adult is, but because I wanted that child to be born. I had imagined that fetus as my child, and I already loved the child it was becoming. I would have been devastated if my wife had miscarried spontaneously, and my devastation would have been greater if she had miscarried as a result of an attack.
But while I would have considered it murder, I don’t think it really would have been one. It certainly would have been been the murder of the idea of my son or my daughter. It certainly would have been the murder of a hypothetical being. But however much I could have imagined what the future would be with the hypothetical child, the reality of my children has been unique and truly unimaginable.
Furthermore, the fact that I was already in love with my future child and wanted him or her shouldn’t matter to the law either. We only charge people for crimes against real things, not against someone’s desires or emotions. Nor do we don’t charge people with a crime for killing the idea of a person.
So I’m conflicted about the charges of “aggravated murder” in the case of a forced miscarriage. I absolutely feel that battery leading to a forced miscarriage (or, if you prefer, a forced abortion) should be a crime. The battery itself is criminal, and I’m OK with criminalizing the “unlawful termination of a pregnancy.”
Call it “feticide” if “unlawful termination of a pregnancy” isn’t pithy enough. Define types like “simple” and “aggravated” if you must. By all means have a public discussion about what kind of punishment fits the crime. Debate the unintended consequences of criminalizing “feticide” and work to minimize them.
But don’t call it something it’s not. Don’t call it murder.