On Personhood, Fetal Homicide, And The Cleveland Kidnappings

Last Thursday, Cuyahoga County prosecutor Timothy McGinty announced he would be attempting to persuade the grand jury to indict Ariel Castro for “each act of aggravated murder he committed by terminating pregnancies that the offender perpetuated against the hostages during this decade-long ordeal.”

His announcement has drawn speculation from both sides of the abortion rights debate, with prochoice advocates concerned that prosecuting Ariel Castro could lead to an infringement upon a woman’s right to access abortion services, and antichoice advocates claiming victory concerning fetal personhood.

Unfortunately, what antichoice advocates always seem to misunderstand in these cases is the difference between natural and juridical personhood, and how fetal homicide laws are built around this difference.

Under US law, they are two types of “persons.” The first, natural persons, is the term used to refer to human beings’ legal status. Certain legal rights accrue immediately upon birth, and the term “natural person” can be taken to mean an entity who is entitled to maximum protection under the law.  Standing in contrast to natural persons are juridical (or judicial) persons. “Judicial person” is a term used to refer to an entity that is not necessarily a human being, but for which society chooses to afford some of the same legal protections and rights afforded to natural persons.

Further, it’s important to note that these terms also designate important distinctions. The first is that natural persons are ALWAYS genetically human. Juridical persons MAY be genetically human, but it is not a requirement (see, e.g., corporate personhood). Second, and this is important, natural persons are ALWAYS entitled to priority over juridical persons. This does not mean that juridical persons could never attain equal status with natural persons, merely that the allocation of such rights to juridical persons would have to be justified by the interests involved. (To read more about personhood, check out this post of mine).

These designations become important when we start to talk about fetal homicide laws across the United States, including in Ohio.

In the US, states have taken a couple of different approaches to crimes against pregnant women. The first is to increase the types of crimes and the penalty for crimes against pregnant women, an approach which centers on the harm done to a pregnant woman and the potential loss of her pregnancy, but does not focus on any potential rights of a fetus. Other states have taken a different approach and have drafted laws that grant some level of juridical personhood status to fetuses, making a fetus an actual actor/victim in a crime. Of these states, twenty-three currently apply this status to zygotes at the earliest stage of development (i.e. “conception,” “fertilization,” “post-fertilization,” etc.,).

So, while, yes, many states have designated a fetus as a person in order to have an additional actor for certain crimes, fetuses have NOT been granted natural personhood status, with all of its contingent rights and protections because doing so would NECESSARILY infringe upon the rights of a women – a currently recognized natural person – in violation of constitutional and international law.

Ohio is primarily one of the former category of states. In Ohio, the charge of aggravated murder can be brought against someone who “purposely cause[s] … the unlawful termination of another’s pregnancy while committing or attempting to commit…kidnapping.”

Ohio also gives specific definitions for some of those terms. For example:

(A) “Unlawful termination of another’s pregnancy” means causing the death of an unborn member of the species homo sapiens, who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues unless and until live birth occurs.*

So, while someone can be charged with murder for unlawfully terminating another’s pregnancy in Ohio, starting at fertilization, the crime appears to be focuses on the fact that a woman is losing a pregnancy; the state has not granted personhood rights to fetuses.

In the case of the Cleveland kidnappings it is alleged that Ariel Castro impregnated Michelle Knight at least five time, and then starved and beat her to cause the termination of her pregnancies. The charge focuses on Ms. Knight and the loss of her pregnancies, NOT on her fetuses.

As for the likelihood of success of these charges? As heinous as Castro’s alleged crimes were, Prosecutor McGinty will face a tough road in proving them.

This case would be the first time EVER that an individual would be sent to death row for the killing of a fetus where the woman survived. According to Douglas Berman, a professor of law at the Ohio State University and expert in sentencing law and policy, “Nobody has ever been prosecuted [in] a full-fledged death penalty case based on pregnancy termination all the way through. It’s a very hard case to prove and establish.”

It is clear that Castro kidnapped Ms. Knight. However, the prosecution will also need to prove (1) that Ms. Knight was pregnant and (2) that Mr. Castro purposefully (3) caused the termination of that pregnancy.

It is the latter two points that may prove difficult. While a thorough medical examination of  Ms. Knight could confirm prior pregnancy and might show bruising or other injuries, the prosecution would still need to prove that Mr. Castro intended to cause the termination(s) and that his actions actually DID cause the termination(s), which would require testimony from the other two kidnapping survivors, Gina DeJesus and Amanda Berry.    Unfortunately, the three women are still in an incredibly traumatized state from being subjected to physical torture and mental abuse for ten years. In addition, police have reported that they were often kept in separate rooms, meaning that DeJesus and Berry may not have witnessed the alleged beatings.

Given these difficulties, at least one legal scholar has suggested that the prosecutor’s statement was nothing more than bravado, meant to convince Castro to plead guilty to the kidnapping and rape charges he already faces.

This is a rather plausible legal theory. Considering the toll a trial would take on the three women he traumatized, pursuing a “quick and easy” guilty plea that lands Castro in prison for the rest of his life without re-traumatizing his victims could be the preferable option.

Till next time,

– H

*NB: To assuage some prochoice fears, fortunately, lawmakers in Ohio also had SOME commonsense when they drafted this legislation and excepted pregnant women and physicians who perform abortions with the consent of the woman from prosecution. They also except a pregnant woman from prosecution under this section for any act or omission that results in the delivery of a stillborn infant, her causing intrauterine death of a fetus, and death or injuries an infant suffers that were caused by the woman and sustained while in utero. 

© Heather Parker and Antigone Awakens, 2012-2013.

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