January 12, 2021 By Paul Wallin

Recently, the question confronting courts is whether the use of meth by a pregnant woman is reckless and deliberate enough to elevate the death of a fetus from manslaughter to murder?   And if it is, does such a charge of murder create a slippery slope against other actions that may be considered ‘reckless and deliberate’ enough to elevate those charges to murder as well?  

Interestingly, those arguing against murder charges are not ordinarily on the same side.  California Attorney General Xavier Becerra, the American Civil Liberties Union and some defense attorneys have argued that such charges assume a near-limitless level of liability that would subject women who suffer the loss of a pregnancy to unconstitutional criminal prosecution. And they believe that murder charges are improper.

California Law – Penal Code 187 Homicide 

Wallin & Klarich Criminal Defense Attorneys Orange County Methamphetamine Overdose

The law of murder changed in 1970, when the California Supreme Court overturned the conviction of a man who assaulted his pregnant wife and killed her fetus. At the time, the law prosecuted murder only for one who killed a human being. The law did not define human beings to include a fetus. The Legislature amended the statute in response to this ruling to presume fetuses can in fact, be murder victims. However, the change stipulated that a person cannot be charged with murder if the actions that caused the death of a fetus were “solicited, aided, abetted or consented to by the mother of a fetus.”

Taken literally, the exemption would prevent charges for a woman as described above because the actions were caused by the mother. Proponents of the law suggest that such a reading is too narrow. Prosecutors argue that the law only excludes murder liability when a woman solicits, aids, or abets a third party to facilitate the death of her fetus, such as a doctor. As they see it, “the statute does not carve out an exception for a pregnant woman who stabs herself in the stomach and kills her viable fetus or, in this case, chooses to carry the child full term, and chooses to use toxic quantities of methamphetamine throughout her pregnancy and shortly before birth.” 

The debate is unsettled and will likely head to the Supreme Court. 

In 2003, the South Carolina Supreme Court upheld a mother’s homicide conviction reasoning that 20 years in prison was not cruel and unusual punishment for someone whose use of crack cocaine killed her fetus. These California cases mark the first time in nearly 40 years a court has considered an argument  to expand the reach of California’s murder statute, wrote ACLU Attorney Jennifer Chou in a brief filed with the court.

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AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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