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Fetal homicide issue arises in Laci Peterson case

By Harriet Ryan
Court TV

Laci Peterson
Laci Peterson

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(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, California, and asked her if she was expecting a child by her new lover, Ernest Vogt. 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. Her head was severely fractured from the blow to Teresa Keeler's stomach.

That assault three decades ago paved the way for a law against fetal homicide that may be applied in the case of Laci Peterson, the Modesto woman who vanished in December when she was seven months pregnant. Police recently reclassified the missing person case as a homicide investigation, and a spokeswoman for the local prosecutor's office said the district attorney generally charges two counts of murder when a pregnant woman is killed.

"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.

It wasn't always that way. In Robert Keeler's case, prosecutors tried to charge him with the murder of "Baby Girl 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 Wednesday of murder for causing a romantic rival to miscarry her 15-week-old fetus, the 1999 law 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 Peterson's case, the fetal murder statute could lead to a capital case. Under California law, anyone charged with multiple murders is eligible for the death penalty. Prosecutors must prove that the perpetrator had the intent to kill the fetus or at least knew that the death would result from the mother's killing. It seems unlikely that anyone could not know that Laci Peterson, less than two months from full-term, was pregnant.

But prosecutor Shipley said a double murder charge is far from a certainty. She pointed to speculation that Peterson was abducted by someone who planned to steal her baby. Perhaps, she said, there is no second murder at all.

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