Forced miscarriages, however horrible, should not qualify as “murder”

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.

9 replies »

  1. Yep. This ought to be a crime, and a big one. But it isn’t “murder.” That’s religion poking its nose over the wall between church and state and it needs to be struck down. Rewrite it with the appropriate language and I’m good.

  2. You’ve hit on the crux of the matter: a planned/potential child taken from the mother without her consent. It is a real, undeniable, and likely devastating loss. The “murder” label feels right to a lot of people, I’d wager, though I agree that through a critical, dispassionate, secular lens, it misses the mark.

  3. Our daughter was born at 6 and a half months, she’s 24 with a baby of her own now. She wasn’t the idea of a daughter she was and is a daughter. A fetus is a real thing it’s not an imagined thing or a desire.

    If your concerned about definitions why didnt you call it a baby in the womb.. The use of the words fetus or zygote fail in your attempt at their use as you define them.

    Fetus is Latin for offspring, not tissue, and its use in this context is a bastardization of the word to make it seem less human. You use the word zygote incorrectly as well and for the same reason.

    Zygote is a Greek word defined as a single diploid cell resulting for the fusion of two haploid gametes, or a sperm and an egg. Once that cell divides a single time it is no longer a “zygote” is is an “organism”. By your use if the word you and I are Zygotes as well. So I guess you could call it a human organism but then would you object to it being called human?

    If he stopped the development of this baby against the will of its mother, or host or whatever you would call her it that’s not a baby, It’s murder. It is the clearly the mothers intent that defines the baby. That’s different that a woman choosing to end the life within her.

    • Primalnights – I never claimed a fetus was imagined or hypothetical, but rather that a fetus (or embryo, or zygote, or any prenatal development stage) was not the same thing as a child. Your daughter (and mine) was pure potential right up until she was born. I don’t expect that you expected to have a preemie, with all the attendant difficulties. As such, your child became something very different than what you expected, what your idea of your child had been. And from birth onward, the reality of your daughter diverged from the idea of her (or him, if you didn’t know her gender in utero).

      Some things must be experienced to be understood, or even to be realistically imagined. Parenthood is one of those things. No parent I’ve talked to about their children could have ever imagined the highs and lows, the frustrations, and love – the unadulterated reality – that is their children. To do so would have required the parents to be oracles.

      Unlike Sam, I don’t see this as a necessarily religious issue. But it is an emotional issue precisely because we love our children and we can imagine that we would have been devastated if we’d lost everything the actual child became. And so I completely understand why you or anyone would feel that this should be murder, even from a secular position.

      However, our judicial system is designed specifically to remove emotion from the process of assigning guilt and dispensing justice. Our courts rely on evidence and logic – the tools of science – to reach their decisions. My feelings, or yours, or anyone’s, should not be involved. As I said in the original post, “we only charge people for crimes against real things, not against someone’s desires or emotions… or the idea of a person (emphasis original).”

      A zygote, an embryo, and a fetus are not the same thing as an infant, however much we might feel they should be. And so it is not appropriate for the law to treat a zygote or embryo or fetus the same way it would treat an infant, youth, or adult.

  4. I have no problem with murder prosecutions for forced, non-consensual terminations of an unborn child’s life. Abortion with the mother’s consent has parallels to self-defense in that a pregnancy is inherently uncomfortable and dangerous; those principles that lead us to permit consensual abortion are absent in forced abortion cases.

    As for the label “murder,” the later in the pregnancy it is, the more apt that is. For a viable fetus, certainly, it seems artificial to say that it is murder if the child takes one breath but not if it is killed a moment before. That fetus is a real thing, not just an idea – it is corporeal and may be able to feel pain, and is barely less ‘potential’ than a young child is. Even before viability, the label is defensible in that it connotes the kind of intentional, inexcusable violence that we want to condemn more than any other crime.

    I oppose the death penalty in all cases, at least in peacetime when we can be certain that a prison will incapacitate a person. But I have no qualms about defining murder to include violent forced abortion, as long as it isn’t defined so loosely as to criminalize self-abortion or something extremely early on like forcing someone to take a morning after pill.

    • What do you mean by “unborn child”? In my experience, that’s a propaganda term that asks me to grant the whole debate by forfeit.

  5. heard on the radio similar charge is being levied against a doctor who convinced his pregnant girlfriend to swallow morning after pills by telling her they were amoxicylin.