Controversial issue of fetal homicide arises in Laci Peterson case

When a fetus dies as the result of an assault, is it murder? States are grappling with the question.

By Harriet Ryan
Court TV

Teresa Keeler was eight months pregnant on the winter day in 1969 when her ex-husband attacked her. Robert Keeler, whom she had divorced the previous fall, blocked the path of her car on a narrow mountain road near Stockton, Calif., and asked her if she was expecting a child by her new lover. When she ignored the question, he pulled her from the vehicle and, seeing her swollen belly, said, "I'm going to stomp it out of you."

He kneed her in the abdomen and then beat her unconscious. At the hospital, Keeler delivered a stillborn girl with a severely fractured skull.

That assault three decades ago paved the way for a fetal homicide law now being used to prosecute Scott Peterson. Because of the brutal attack on Keeler, California amended its homicide statute to include the killing of a fetus by a third party. Peterson was charged Monday with two counts of murder, one for his wife, Laci, who was seven months pregnant at the time of her disappearance, and one for their unborn son, Conner.

"If both the woman and the child were killed and we can prove the child was killed due to the actions of the perpetrator, then we charge both," said Stanislaus County Assistant District Attorney Carol Shipley recently.

It wasn't always that way. In Robert Keeler's case, prosecutors tried to charge him with the murder of "Baby Girl Vogt" — the child's father was a man named Ernest Vogt — along with the beating of his ex-wife. But the California Supreme Court threw out the charge, saying that a fetus was not a human being and therefore could not be murdered under the statute. According to a long tradition of common law, the justices said, only someone "born alive" could be killed.

A public outcry followed and the state legislature amended the murder statute to include the killing of a fetus. Later, the state Supreme Court stepped in again and ruled that murder charges can only apply to fetuses older than seven weeks, or beyond the embryonic stage.

There are fetal homicide laws on the books in more than two dozen states, but they vary widely. In some states, such as Missouri and Minnesota, a fetus is considered a living thing at conception. In others, like Georgia and Michigan, a fetus is only protected after "quickening" — when movement is first felt in the womb — occurs.

In Pennsylvania, where a woman was convicted recently of murder for causing a romantic rival to miscarry her 15-week-old fetus, the law passed in 1999 applies to any stage of pregnancy.

Passage of the laws is a key battleground in the abortion wars. Opponents push for the statutes as a way to establish within the law that fetuses are living beings with rights. Although the statutes make clear exclusions for legal abortions, anti-abortion activists believe the laws, in addition to punishing outrageous acts of violence, affect the public's perception of abortion.

"It's a tool to educate the public as to the value of a human life," said Denise Burke, staff counsel for the anti-abortion organization Americans United for Life.

Abortion rights groups have fought the laws, arguing that there are ways to toughen penalties for perpetrators without undermining Roe v. Wade, the U.S. Supreme Court decision that made abortion legal. Sondra Goldschein of the American Civil Liberties Union's Reproductive Freedom Project, cited a North Carolina provision that adds to the length of a prison sentence for assault if it causes a miscarriage.

"That way you are able to recognize the real victim, who is a woman who has experienced the devastating loss of a wanted pregnancy, without bestowing independent rights on a fetus," said Goldschein.

Although North Carolina does not have a fetal homicide law, it does have laws providing punishment for harming a fetus. Former pro football player Rae Carruth, convicted of plotting the murder of his pregnant girlfriend, was also found guilty of "using an instrument with intent to destroy an unborn child." His girlfriend eventually died from gunshot wounds, but her baby was delivered by Caesarean section 10 weeks early and survived.

In spite of opposition from abortion rights groups, such laws and bills are increasingly common. Last year, Idaho and Nebraska enacted new statutes, and Congress is expected to reconsider a fetal homicide bill entitled "Unborn Victims of Violence Act." The House of Representatives passed the bill in its last session.

Debating a law for fetuses

As in the Keeler case in California, new state laws usually come on the heels of a high-profile case that causes public outrage. Kentucky, a state with no fetal homicide law, is considering such a statute following the death of Veronica Jane Thornsbury.

The 22-year-old was in labor and being driven to a hospital in March 2001 when a drug-addled driver plowed his pick-up through a red light and smashed into her car. Thornsbury was killed and the fetus was stillborn, and prosecutors charged two counts of murder.

The state's Court of Appeals ruled that, since Thornsbury's child never drew a breath, the second murder charge was inappropriate. Her case was cited often last month as state legislators began debating a fetal homicide law.

In a similar case in New York, which has no fetal homicide law, a police officer named Joseph Gray ran over a pregnant woman and two relatives. All three were killed. Doctors delivered the baby, but it died after 12 hours on life support.

Queens prosecutors originally charged three counts of manslaughter, saying that, because the coroner listed the baby as stillborn, he had not been "born alive" and could not be a manslaughter victim. The baby's father protested that the baby's heart beat independently for close to an hour after life support was removed. Prosecutors relented, and Gray was convicted of four counts of manslaughter.

In Scott Peterson's case, the second murder charge is critical. Under California law, someone accused of multiple murders is eligible for the death penalty although the final decision about whether to seek capital charges rests with prosecutors.