February 19, 2002
MURDER OF AN UNBORN CHILD
By: Christopher Reinhart, Associate Attorney
You asked whether someone who kills an unborn child can be charged with murder.
The Connecticut Supreme Court has not ruled on this issue. But in one Superior Court case the judge ruled that killing an unborn child is not murder under the Connecticut statutes. Under Connecticut law, someone commits murder when he causes the death of another person. The statutes define a “person” as a human being. “Human being” is not defined and the court in this case ruled that the legislature did not intend that an unborn child be considered a “human being” under the penal code.
Another Superior Court case agreed and ruled that a “person” includes those who are born and alive. But, relying on a common law rule, the court ruled that a person could be charged with murder for injuries to an unborn child when that child is born alive and later dies as a result of the injuries suffered before birth.
A person commits murder when, with intent to cause the death of another person, he causes the death of such person or a third person (CGS § 53a-54a). “Person” means a human being, and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, a government, or a governmental instrumentality (CGS § 53a-3(1)). The statutes do not define “human being.”
State v. Anonymous
In State v. Anonymous, the Connecticut Superior Court considered whether an unborn fetus is a “human being” within the meaning of the penal code (40 Conn. Supp. 498 (1986)). In that case the state applied for an arrest warrant charging the accused with murder in the death of an unborn but viable fetus whose mother the accused allegedly shot.
The court concluded that the legislature did not intend a viable unborn fetus to be considered a human being for the purpose of the penal code based on (1) an analysis of the legislative history of the penal code, (2) an analysis of the statutory scheme of state homicide laws, (3) an examination of the common law of murder, (4) an examination of the constitutional requirement that people be given notice that their actions will violate specific criminal laws, and (5) an examination of the relationship of the legislature to the court in the enactment of criminal laws.
The court's analysis and examination revealed that:
1. the codes (model penal and the New York codes) from which our statute was drawn define “human being” as a person who has been born and is alive;
2. at the time the new penal code was enacted, “unborn child” was defined in the statutes but that definition was not used in the new penal code;
3. under common law, an unborn fetus could not be the subject of homicide;
4. to apply a new interpretation of “human being” retroactively would violate constitutional principles that prohibit retroactive criminal laws; and
5. any redefining must be left to the legislature because it has primary authority to define crimes.
State v. Courchesne
In State v. Courchesne, the court considered whether someone could be charged with murder of an infant when the child suffered injuries before birth and then lived for 42 days before dying (46 Conn. Sup. 63 (1999)). The court discussed the analysis in the Anonymous case and concluded that the murder statute applies to the killing of a “person,” which includes those who are born and are alive.
The court then discussed the common law “born alive” rule. Under this rule, the death of a fetus could be the basis for a murder charge if the fetus was born alive and later died of prenatal injuries. The court discussed Connecticut's statutory scheme and found that the “born alive” rule applied. The court ruled that the infant in this case was a “person” under the murder statutes and the state could charge the defendant with murder.
The court also discussed the intent required under the murder statute. It stated that a person who acts with intent to kill someone can be charged with a separate count of murder for each person actually killed by his conduct. In this case, the defendant's intent to kill the mother could transfer to the child as well, as long as the child was born and lived a sufficient time so as not to be stillborn.