Last Updated on September 9, 2024
Under California law, abortion may be a legal option for a mother to choose, but otherwise, feticide can result in murder charges. Just because the death occurred to an unborn person does not mean it is a lesser crime. If you have been accused of murder related to the death of a fetus, call a criminal defense lawyer as soon as possible.
The California Fetal Homicide Law
Under California Penal Code 187 (PC), murder is defined as “the unlawful killing of a human being, or a fetus, with malice aforethought.” Notably, a fetus is listed in the definition, distinguishing it from a human being but still specifying that the law covers it.
This fetal murder statute specifies that it does not matter if the fetus was viable or if the killer knew the woman was pregnant. That being said, while the legislature did not define the age of the fetus, the courts require at least seven to eight weeks after fertilization for these statutes to apply. Eight weeks is around how long it takes for most mothers to learn they are pregnant and when many scientists define pregnancy as having evolved from the embryo to fetal stage. In other words, an embryo is not covered by the feticide law of California.
For example, if a woman who was 10 weeks pregnant and not yet showing was killed in a random mugging, the attacker could be charged with two murders even if he had no idea the woman was pregnant. If she was only 4 weeks along though, the suspect would only face one murder charge related to the mother, not the embryo.
There is No Such Thing as Fetal Manslaughter
Interestingly, there is no fetal manslaughter charge in California, so if a pregnant woman was accidentally killed (in a reckless driving accident, for example), the person responsible would not be penalized because the woman was pregnant. This distinction is crucial for two reasons:
- it requires the defense to prove a defendant had murderous intent when a woman is attacked and a feticide occurs
- it means making a plea bargain that reduces the related homicide charges to manslaughter also means the fetal murder charge will be dropped
There is Also a Federal Fetal Murder Law
You can also be convicted of fetal homicide under federal law. In fact, the California case of Scott Peterson inspired Congress to create the Unborn Victims of Violence Act. The federal law protecting the unborn is slightly different than California’s, so anyone accused of killing a fetus in a crime that qualifies as a federal offense needs to speak with a federal crimes lawyer immediately.
Can Mothers be Criminally Charged for Using Drugs?
While the state didn’t intend for mothers to face charges under these laws, the District Attorneys in King’s County pressed murder charges against two women after their fetuses died due to drug use. Although the women originally plead guilty, the California Supreme Court overturned the conviction in one of the cases, rendering the other decision invalid. The judges ruled that a woman should only face murder charges if they intentionally caused a miscarriage by using drugs, not because they used a drug they were addicted to while pregnant.
Critics of the King’s County D.A. celebrated the court’s decision, arguing that pressing murder charges against mothers who use drugs could cause pregnant women addicted to drugs to avoid seeking treatment for their addictions or help for pregnancy complications. The State Attorney General Rob Bonta did emphasize that charges can still be filed against mothers whose infants die after being exposed to drugs in breastmilk.
You Can Fight the Charges
While feticide cases are serious, they can be won, just like traditional murder cases. The most important thing you can do when accused of such a crime is to refuse to speak with the police or prosecutors until you have spoken with your attorney. If you have been charged with killing a fetus, please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation with Peter M. Liss.
