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Criminal Liability of a Pregnant Woman For Acts Committed Against a Fetus

Hamra Law Group > Uncategorized  > Criminal Liability of a Pregnant Woman For Acts Committed Against a Fetus

Criminal Liability of a Pregnant Woman For Acts Committed Against a Fetus

The Court of Appeals recently examined the Criminal Liability of a pregnant woman for acts committed against a fetus that is later born, and subsequently dies, as a result of injuries suffered before death. A Long Island women should not have been convicted of Second Manslaughter for the death of her 6 day old baby from in utero injuries sustained in a car accident she caused, the Court of Appeals Ruled. Jennifer Jorgenson was driving one night when her car crossed the center line of a busy road and smashed heads-on into an oncoming vehicle. The occupants of the other vehicle also died. The Police said Jorgenson was incapacitated by alcohol and/or prescription drugs. She was 34 weeks pregnant at the time. Her baby, who was still a fetus at the time, was injured when she struck the steering column in the crash. They did an emergency cesarean section and delivered the baby alive. 6 days later the baby died from the trauma of the crash and from organ failure. Jorgensen was not wearing a seat belt at the time of the crash.

At trial she was acquitted of driving under the influence and vehicular homicide for the deaths of the 2 occupants of the other car. However she was convicted of Second degree manslaughter for the death of the baby.  The Court of Appeals in a 5-1 decision overturned the conviction stating, “When the provisions of the homicide statute are read in tandem with one another, especially PL 125.05(1) and PL(125.15(1), it becomes clear that the legislature did not intend to hold a pregnant woman criminally responsible for reckless conduct with respect to themselves and their unborn fetus unless such conduct is done intentionally.”

“When the provisions of the homicide statute are read in tandem with one another, especially PL 125.05(1) and PL(125.15(1), it becomes clear that the legislature did not intend to hold a pregnant woman criminally responsible for reckless conduct with respect to themselves and their unborn fetus unless such conduct is done intentionally.”

Judge Pigott, further states, “Had the Legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could have clearly done so. Moreover had defendant’s fetus died in utero, then, plainly, defendant could NOT have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of “persons” in the state homicide statute.” The Judge left it at if the Legislature want this to be a rule they should define the circumstances, not the courts.

The only dissenting Judge, Judge Fahey, said that the majority reached the untenable conclusion that the 6 day old baby is not a “person” under the homicide and manslaughter statutes. Judge Fahey said that the majority’s decision made no sense, “that because Jorgensen’s allegedly reckless behavior occurred before her baby was born alive, she cannot be convicted of a crime that requires her reckless actions to have caused the baby’s death. Where, as here, the baby-victim is born alive but subsequently dies, the Penal Law allows for the conviction of a defendant –mother of manslaughter in the second degree where the acts causing the baby’s death occurred before the infant was born.”

The Spokesman for the Suffolk County DA’s office said, “we agree with the court that the Legislature must clarify the extend of the criminal Liability of a pregnant women, as the court put it, ‘for acts committed against a fetus that is later born, and subsequently dies as a result of injuries suffered before birth.

What do you think? Should the legislature amend the statute to extend criminal liability of a pregnant woman for acts committed against a fetus that is later born, and subsequently dies, as a result of injuries suffered before death? Should the Legislature amend the statute, specifically to curb the liability? Or should they do nothing and keep the status quo.

If you are in support of option number 1, extending criminal liability, then would you convict a mother who smokes or drinks while they are pregnant, if the baby dies of a smoking or drinking related disease within days of birth?

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