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New Crimes Protecting Unborn Children

New legislation this year creates a handful of new homicide and assault crimes protecting unborn children. S.L. 2011-60. The term “unborn child” “means a member of the species homo sapiens, at any stage of development, who is carried in the womb.” G.S. 14‑23.1. The new crimes, which apply to offenses committed on or after December 1, 2011, are described below.

Murder of an Unborn Child. G.S. 14-23.2.

A person commits this offense when he or she

(1)    unlawfully

(2)    causes the death of an unborn child

(3)    (a)   by willfully and maliciously committing an act with the intent to cause the death of the unborn child,

(b)   in perpetration or attempted perpetration of any of the criminal offenses set forth under G.S. 14‑17, or

(c)   commits an act causing the death of the unborn child that is inherently dangerous to human life and is done so recklessly and wantonly that it reflects disregard of life.

Elements (3)(a) through (c) are alternate ways to commit this offense. If Elements (3)(a) or (b) are present, the offense is a Class A felony punished with life in prison without parole. G.S. 14-23.2(b). If Element (3)(c) is present, it is punished as a Class B2 felony. Id. It is not clear whether Element (3)(b) is meant to refer only to first- and second-degree murder as described in G.S. 14-17, only to the felonies identified in G.S. 14-17 that support first-degree felony-murder, or both. Element (3)(c) seems to be similar to one of the forms of malice recognized by the homicide law generally. Because the statute only mentions “acts,” it is not clear whether omissions are covered.

Voluntary Manslaughter of an Unborn Child. G.S. 1423.3.

A person commits this offense, a Class D felony, if he or he

(1)    unlawfully

(2)    causes the death of an unborn child

(3)    by an act that would be voluntary manslaughter if it resulted in the death of the mother.

Involuntary Manslaughter of an Unborn Child. G.S. 1423.4.

A person commits this offense, a Class F felony, when he or she

(1)    unlawfully

(2)    causes the death of an unborn child

(3)    by an act that would be involuntary manslaughter if it resulted in the death of the mother.

Battery on an Unborn Child. G.S. 14-23.6.

A person commits this offense, a Class A1 misdemeanor, when he or she

(1)          commits a battery

(2)          on a pregnant woman.

This offense only applies to a battery—that is, the actual striking—not to an assault. It is a lesser-included offense of “Assault Inflicting Serious Bodily Injury on an Unborn Child,” below. G.S. 14-23.6(a).

Assault Inflicting Serious Bodily Injury on an Unborn Child. G.S. 14-23.5.

A person commits this offense, a Class F felony, when he or she

(1)          commits a battery

(2)          on the mother of an unborn child and

(3)          the child is subsequently born alive and

(4)          suffered serious bodily harm as a result of the battery.

As with “Battery on an Unborn Child,” above, this offense requires an actual battery. The statute does not define the term “born alive.” On a national level that term has come to mean that the fetus is “fully brought forth” and “established an ‘independent circulation.’” WAYNE R. LAFAVE, 2 SUBSTANTIVE CRIMINAL LAW 419-20 (2d ed. 2003). “Serious bodily harm” means “bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization, or causes the birth of the unborn child prior to 37-weeks gestation, if the child weighs 2,500 grams or less at the time of birth.” G.S. 14-23.5(b).

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Except for the Element (3)(a) version of “Murder of an Unborn Child,” none of these offenses require proof that the defendant knew or should have known that the woman was pregnant or that the defendant intended to cause the death of or bodily injury to the unborn child. G.S. 14‑23.8.

For all of the crimes, the statutes provide that each is a “separate offense.” This indicates a legislative intent that a defendant may be convicted of the particular offense and any other offense (such as a felonious assault on the woman) when based on the same conduct. This reading is confirmed by the Session Law, which states: “A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.” S.L. 2011-60 sec. 7.

None of the offenses may be used to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. S.L. 2011-60 sec. 4. Additionally, following acts are excluded from coverage:

(1) causing the death of an unborn child if the acts were lawful, pursuant to G.S. 14‑45.1 (when abortion is not unlawful);

(2) committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment, or

(3) committed by a pregnant woman with respect to her own unborn child, including, butnot limited to, acts which result in miscarriage or stillbirth.

G.S. 14‑23.7.