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 victim was an unborn child 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 the fetal stage typically begins. 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 could only be charged with manslaughter for her death, not the fetus. 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, which 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?
No. While a few women were charged for causing the death of their fetus under this law, the state Attorney General Rob Bonta clarified that this law is only intended to be applied to third-party individuals, not the pregnant individual, while also emphasizing that charges can still be filed against mothers whose infants die after being exposed to drugs in breastmilk.
The California legislature also took action to prohibit this outcome with the passage of AB 2223, which protects women from criminal or civil liability based on their actions while pregnant. The bill also no longer requires coroners to hold inquests in cases where women are suspected of self-induced and criminal abortions, and prohibits the use of coroner’s statements to support criminal prosecutions.
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.
