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Killing Older Fetus Is Murder, Federal Court Determines

February 18, 1988|KIM MURPHY | Times Staff Writer

Applying the federal murder statute for the first time to the death of a premature infant, a federal appeals court ruled Wednesday that an Arizona man who kicked and stabbed his pregnant girlfriend in the abdomen can be convicted of murdering her unborn child.

The U.S. 9th Circuit Court of Appeals ruling, echoing earlier decisions in several state courts, concluded that the killing of a fetus is murder under federal law if the fetus could have survived outside the womb.

The case involved an assault on a young Navajo woman, Rena Blackgoat, who was 33 to 34 weeks pregnant when her boyfriend, Garland Spencer, stabbed her twice and repeatedly kicked her in the abdomen.

Doctors delivered her baby by Caesarean section the next day, but the baby died within 10 minutes of delivery, apparently from injuries sustained during the assault, according to court records.

Spencer, 23, of Cornfields, Ariz., pleaded guilty to second-degree murder in the death of the fetus, with the provision that he be allowed to appeal the applicability of the murder statute in the case. Spencer's lawyers argued that he should have been charged with assault, not murder.

Though many states have amended their murder laws to include fetuses in the definition of "human being," Spencer's attorneys argued that the federal murder statute, generally applied in homicides that occur on federal property, did not include such a definition.

The issue before the court was whether Congress intended fetal infanticide to be covered by the statutory definition of "killing a human being."

"Baby Boy Blackgoat's death was caused by prenatal injuries sustained during Spencer's assault of Rena Blackgoat. Under common and state laws, if the baby is born alive, this is murder. Congress intended to assimilate common and state law meanings into (the federal murder statute)," Judge Eugene A. Wright wrote for the unanimous three-judge panel, which released the decision in San Francisco and Pasadena.

Assistant U.S. Atty. Susan A. Ehrlich said the key issue in the case was the viability of the fetus. The opinion did not address the issue of whether the statute might also apply to a very young fetus, which could not survive outside the womb.

"Had the fetus been three weeks old, I don't know whether we would have charged murder or not," she said in an interview.

Baby Was Breathing

"But this baby was born and did survive for 10 minutes. Our argument was that the umbilical cord was cut, the child had independent circulation, independent breathing. . . . This was a baby. A human being. It was murder."

Spencer's attorney could not be reached for comment Wednesday. But in an interview after Spencer's sentencing, attorney David G. Alvarez said the murder statute should not have applied because the victim was a fetus, not an infant.

"The fetus was unborn, and so it wasn't a human being when it was injured," he said. "It may have died after birth, but he (Spencer) did not cause any injuries after birth."

But the appeals court said the conclusion that the baby's death "was the result of the prenatal injuries that caused the infant's death is inescapable."

The death certificate, which listed Spencer as the child's father, said the cause of death was trauma to the uterus, oxygen deprivation and bleeding of the brain.

The California Legislature in 1970 amended the Penal Code to include the killing of an unborn child within the definition of murder. That action came in response to a controversial decision by the state Supreme Court the same year concluding that such a killing was not murder because a fetus was not a human being.

Some observers said the federal clarification could have broader implications for criminal charges brought in illegal, late-term abortions, conducted at a time when the fetus might be capable of surviving outside the womb.

"I think the real significance of this case is for the abortion issue," said one lawyer, who asked not to be identified. "Now, if you have a viable baby, it's murder. What if the situation were an illegal abortion?"

Wright was joined in the decision by Judges Dorothy Nelson and Clifford Wallace.

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