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States Add Penalties For Death of Unborn

Abortion Rights Activists See Measures As Attempt to Redefine When Life Begins

By Donna St. George
Washington Post Staff Writer
Monday, December 20, 2004; Page A06

When Melissa O'Connell was strangled and beaten to death at nearly nine months pregnant in Chesapeake, prosecutors were asked repeatedly why it was not possible to file criminal charges for the killing of her fetus. Her husband stood trial on one count of murder.

Four years later -- and partly because of her case -- a law took effect in Virginia making fetal homicide, as many call it, a separate crime, punishable in a first-degree case by 20 years to life in prison.

Melissa O'Connell was eight months pregnant when she was killed by her husband. Her death helped fuel a movement to make fetal homicide a separate crime in Virginia. (Family Photo)

That day, Virginia became the latest of about 30 states with such a law on its books.

Many of the laws -- including a federal one, signed by President Bush last spring -- have been named or partly inspired by the Laci Peterson homicide in California. The law in Virginia is called Conner's Law, in memory of the boy Peterson was expecting.

"All we had to do was mention the Laci Peterson case, and everyone got it," said Virginia Attorney General Jerry W. Kilgore (R), shortly after the state's bill passed this year. "For some, it requires a case you can see."

The growing catalogue of state laws has opened another chapter in the highly charged debate over abortion rights while also calling attention to how little is known about maternal homicide itself.

Critics say the measures are thinly veiled efforts to redefine when life begins and grant fetuses legal status similar to a child outside the womb. They argue that the laws stand to undermine the rights granted to women under the landmark court decision Roe v. Wade -- which is, they charge, what the bills' supporters would like.

"There's no question these crimes should be punished," said Rachel Laser, senior counsel at the National Women's Law Center. "The question is how to do it. I think these laws exist as a tactic by anti-choice folks to erode the right to choose."

Supporters counter that crimes against pregnant women stand to claim two lives, not one, and that punishments should be increased accordingly. They argue that the laws will not affect abortion rights.

In some states, lobbying has been taken up by relatives of women killed during pregnancy -- as it was for Debbie Florence in Connecticut, whose daughter was shot by an abusive ex-boyfriend in 2001 when she was nearly nine months pregnant. "I couldn't believe there was not a law already," Florence said. "Out of all the laws we have for dogs and deer, there was nothing for people."

The heated debate that has ensued in many statehouses has led to both passage and defeat. A Maryland bill, sponsored by state Sen. Leo E. Green (D-Prince George's), was killed in the Senate last spring. The District has no such law on its books, said Patricia Riley, special counsel to the U.S. attorney.

The federal bill that Bush signed covers harm to a fetus that occurs during the commission of a federal crime of violence.

In Maryland, Michael Rexroad, senior assistant state's attorney in Howard County, said he hoped the recent trial of Tjane Marshall would show the need for a law in his state. Marshall was convicted in late October of shooting mother-to-be Shameka Fludd in a crime prosecutors said was intended to end her pregnancy.

"It was very frustrating for us not to be able to have a separate crime we could charge and not to be able to seek additional time for the separate crime of the death of a fetus," he said. Ending the pregnancy, he said, was "the absolute, clear-cut, manifest motive for this murder."

Jacquelyn Campbell, who studies domestic homicides at Johns Hopkins University, argued that whether good or bad, the law will not reduce maternal homicide. "These men are not thinking about whether they're going to do life or what the consequences might be," she said.

Researcher Cara Krulewitch also questioned the basis for the legislative proposals because no public agency can be definitive about how often these crimes happen. "How can we make a law for something that we know so little about?" she asked.

Some new federal efforts may improve tracking of maternal homicide, such as a model death certificate that asks about a victim's maternal status. But experts also point out that pregnancy questions on death certificates routinely miss many cases.

After Melissa O'Connell was killed in Virginia in 2000, her mother was one of the people who asked prosecutors why O'Connell's husband was not charged with more than one killing.

Kay Briggs said she was pleased when prosecutor Randall Smith called after the trial to say a fetal homicide bill would be proposed by Del. John A. Cosgrove (R-Chesapeake).

Briggs offered to come from her Tennessee home to testify in support.

Her daughter, she said, had already picked out a name -- Alexandria -- and decorated a nursery with Baby Looney Tunes characters. With the pregnancy nearly nine months along, Briggs said, "the baby was fully developed. . . . Laci Peterson's baby counted. I just wish hers had counted, too."

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