"Maybe some lawyer folks here can help."This ex-lawyer folk here actually did. (See post #10, e.g.)
You're absolutely correct about the illegitimacy of fetal-homicide laws, and the appropriateness of using assault laws against persons who cause miscarriages by force. Heavy sentences can be imposed by the sentencing court based simply on general sentencing principles, or a legislature can make the miscarriage an aggravating factor to be considered in sentencing, or a legislature could even create a separate offence: assault causing a miscarriage, although it's really already covered by assault causing bodily harm.
"I'm pretty sure I read something about punishments needing to be 'fair and equal' and that increasing the punishment for assault on a pregnant woman which results in feticide is not in line with other forms of punishment from assault."Equal protection requires similar treatment in similar circumstances. It's arguable that a blow to the abdomen that causes bruising is not "similar" to a blow to the abdomen that causes a miscarriage.
This decision is reasonable:
http://www.ama-assn.org/amednews/2003/06/02/prsc0602.htmConnecticut's high court ruled that a fetus is part of the mother's body, opening the door for serious assault charges against anyone who attacks it. The implications for abortion law are unclear.
In a concurring opinion in the May 13 Supreme Court decision, one justice was quick to point out that the ruling doesn't suggest that the court "concluded that a fetus may not have its own independent existence." He said a fetus may be both "a part of its mother as well as its own individual being."
(The court was not called on to decide the question of "individual being". Anything it said on that point would have been
obiter dictum; what it did say, and all it said, was that it was not deciding the issue.)
What the opinion in State of Connecticut v. Edwin Sandoval does, however, is allow prosecutors to charge people who attack fetuses with a more serious crime.
"Connecticut law makes it a more serious crime if you try to chop someone's arm off or try to destroy or harm another organ or part of the body," Sugrue said. "The court said the fetus is a body part."
The accused man had wanted the pregnant woman to terminate the pregnancy; she refused, he pretended to make up with her in order to have sexual intercourse with her, she experienced pain and subsequently bleeding, and a medical examination found two pills inside her vagina (not identified in this report).
The state charged Sandoval with attempt to commit aggravated sexual assault in the first degree and attempt to commit assault in the first degree. A jury convicted him on those higher counts and on appeal he argued that the state never proved he assaulted the woman "with the intent … to destroy … or disable permanently a member or organ of <her> body."
The high court disagreed. While the court said the fetus was not an organ, it did say that the fetus was a member of a woman's body under the assault and sexual assault statutes used to charge Sandoval.
"Do you mean should pregnant women have the right to use lethal force in situations where other women might not?"I addressed that one too.
The question of
reasonable apprehension of serious injury or death is considered in the actual circumstances of the case. It would not be reasonable for an adult to apprehend serious injury or death if a three-year-old tried to kick him/her in the shins. It might be reasonable for a pregnant woman to apprehend serious injury or death if a large, strong adult raised an arm, made a fist, stared at her abdomen and said "I'm going to get rid of that thing", and to use force causing injury or death to avoid the blow. Just as it might be reasonable for a person unable to get out of a wheelchair to shoot someone advancing toward him/her and making death threats, whereas you or I could be expected to run the other way.
"if I was in a hurry and bumped your, unbenknownst to me, pregnant wife out of my way and she took this as an assault against her person, whipped out her handgun and shot me down, would that be ok?""Taking" an accidental touch as an assault is a long way from establishing reasonable apprehension of serious injury or death. And NO self-defence standard permits
retaliation, and a standard that permitted it for pregnant women would no longer be a self-defence justification, it would be permission to lynch, and of course a denial of due process and equal protection.
"What could you plead if some pissed-off, trailer-park-mama came tearing after *your* ass for sleeping with her sister and you 'defended' yourself against her?"There is actually (at least in the traditional law of self-defence) a higher standard that must be met by anyone who
initiates a violent conflict and is subsequently faced with having to defend him/herself from reasonably apprehended serious injury or death. That person has a positive duty to terminate the conflict
before the need for self-defence arises. So your trailer-park mama would not be able to claim self-defence, if she assaulted you first, unless she had tried to back off and you had continued to assault her.
You, of course, would be able to claim self-defence if you used only the force that was
necessary to defend yourself against the attacking pregnant woman. (I guess I'd neglected to mention that bit earlier; of course the degree of force permitted in self-defence is only the degree of force that is necessary to avoid serious injury or death.) If that force ultimately caused a miscarriage, that fact would be irrelevant, just as the death of someone else you had defended yourself against would be, as long as you had acted out of reasonable apprehension of serious death or injury, had no alternative but to use force, and had used only the force necessary to avert serious death or injury.
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