Protecting the Unborn:
Why North Carolina Needs an Unborn Victims of Violence Law

Family North Carolina Magazine—Mar/Apr 2008

by R. Matthew Lytle

“In North Carolina, the killing of a viable but unborn child does not constitute murder, therefore I did not submit any bills of indictment involving the death of the unborn child.”

With this statement on January 24, 2008, Onslow County District Attorney Dewey Hudson announced the indictment of Marine Corporal Cesar Armando Laurean for the murder of fellow Marine Lance Corporal Maria Lauterbach—both of whom were stationed at Camp Lejeune in Onslow County.

Corporal Lauterbach’s murder has received a large amount of local and national media coverage. While some of this coverage is no doubt due to the fact that this murder was allegedly perpetrated by one Marine against another and was horrific in nature, the fact that Lauterbach was carrying an unborn child upon her death has received its own share of media attention. National awareness of cases that involve the murder of a pregnant woman and the coinciding death of her unborn child has been greatly impacted by the much-covered murder of the eight-month pregnant Laci Peterson and the subsequent trial in California. In North Carolina, similar cases have also occurred, such as the 2007 murder of Kathryn Nielson and her unborn child in Wake County and the 2003 murder of April Greer and her unborn child in Alamance County. Each of these murders involves the death of not one victim, but two.

Unfortunately, such murders are not isolated events. Researchers have noted an increase in the murder rate for pregnant women.¹ In an influential study released by the Journal of the American Medical Association,² researchers in Maryland found that the “leading cause of pregnancy-associated death was homicide.”³ In the data analyzed in the study, homicide accounted for 20.2% of all pregnancy-related deaths.⁴ While little corollary data currently exist on the murder rate of pregnant women in other states, it stands to reason that this statistic is most likely representative of other states across the Union. Thanks to efforts on the part of the U.S. Congress and President Bush, some of the unborn victims of these violent crimes can be vindicated in court.

National Response
On April 1, 2004 President Bush signed into law the Unborn Victims of Violence Act (UVVA), which received notoriety in the wake of the murder of Laci Peterson and her unborn son Conner. According to this law (Public Law 108-212), anyone who “causes the death of, or bodily injury . . . to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense.”⁵ In addition, according to the law, the “punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother.”⁶ In other words, this law states that when an assault on a pregnant woman kills her unborn child, the child is not only recognized as a separate victim, but the penalties associated with the unborn child treat the child as a full person with all the legal benefits and protections. Furthermore, the UVVA does not require the assailant to know of the woman’s pregnancy or intend to cause the death of the unborn child.

Since the UVVA is a federal law, it only applies to certain kinds of offenses. Specifically, the UVVA only applies to sixty-eight different enumerated federal crimes against the mother. In the case of a particular offense, the federal government must demonstrate federal jurisdiction by establishing that one of these sixty-eight enumerated offenses had been committed. The UVVA’s inclusion in the Uniform Code of Military Justice (UCMJ) carries with it similar limitations, meaning that the federal government would need to demonstrate that the assailant had violated an enumerated military crime that refers to the mother. In order for an unborn child to count as a separate victim in cases where the federal UVVA does not apply, the state in which the crime occurred must have a similar law designating fetal homicide as a separate offense. Thirty-six states currently possess such a law in their state code.⁷ North Carolina is not among these.

In North Carolina
North Carolina statutes currently maintain that it is a crime to inflict injury on a pregnant woman that results in the stillbirth or miscarriage of her child, but only if the assailant knows that the victim is pregnant. This means that even though a murder results in the termination of two distinct human lives, prosecutors can only charge the murderer with one count of homicide.⁸ In addition, if a pregnant woman is assaulted, which results in the death of her unborn child, but not the death of the mother, the assailant is guilty of a crime, but not murder.⁹ In these cases, prosecutors can charge assailants with a higher class of penalty for the underlying crime to the mother.¹⁰ However, the increased penalty is not seen as a recognition of the unborn child as a separate person, but instead focuses on the injury inflicted upon the mother.

While North Carolina law allows for an escalation of the charges against an assailant, the unborn child involved in the assault is only considered a direct victim if he or she is born alive and later dies as a result of the injuries inflicted while in the womb according to the 1968 Supreme Court case Stetson v. Easterling.¹¹ In 1989, the North Carolina Supreme Court did not allow an extra charge of murder in the case of the death of an unborn child in State v. Beale.¹² Instead, the Court deferred to its interpretation of North Carolina’s Abortion Crime Laws¹³ when it determined that the killing of a viable but unborn child is not murder.¹⁴

These laws and their interpretations in the Courts therefore do not actually protect an unborn child’s right to life because the law does not recognize the child as a separate victim. Rather, they recognize the rights of the mother. Other than wrongful abortion statutes, there is currently no North Carolina statute that protects the rights of an unborn child, even in the wake of the recent passing of the UVVA. Indeed, North Carolina is among the minority of states in the Union that do not recognize the legal status of unborn children when it comes to murder. In an attempt to remedy this, bills have been presented to the North Carolina General Assembly that would legally recognize the unborn as a separate victim of murder or homicide.

Two such bills were presented to the North Carolina House and Senate during the 2007 legislative session. The first bill, HB 263—Unborn Victims of Violence, recognizes the unborn child as a separate victim in the case of manslaughter or murder against the mother that also results in the death of the child. The death of an unborn child resulting from domestic violence counts as a separate offense that would receive the same punishment as the underlying crime to the mother.¹⁵ A similar bill, SB 295—Fetal Murder—creates a separate offense for the death of an unborn child resulting from the death of the child’s pregnant mother.

An Esteemed Tradition
While the UVVA became a federal law (UVVA) in 2004, laws that protect unborn lives are not recent phenomena. In fact, such laws have been in existence for thousands of years. One notable example is found in the ancient Hebrew legal code known as the Torah, which makes up the first five books of the Old Testament.¹⁶ Exodus 21:22–25 deals with violence toward the unborn:

If men struggle with each other and strike a woman with child so that she gives birth prematurely, yet there is no injury, he shall surely be fined as the woman’s husband may demand of him, and he shall pay as the judges decide. But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.

Specifically, the book of Exodus discusses penalties for crimes that harm or kill an unborn child. According to this law, if a pregnant woman is struck and gives birth to a child, and the child lives, the assailant is to be fined. If the assault results in miscarriage or stillbirth, however, then the penalty is “life for life.”¹⁷ Even in cases where the unborn child is born, but with defects due to the injury, the assailant must pay the penalty for those crimes—a penalty that matches the nature and extent of the injury inflicted.¹⁸

Exodus 21:22–25 not only recognizes the unborn child as a separate victim, but also mandates punishment equal to that of the injury inflicted on the unborn child. In addition, the law in Exodus covers more than just the death of an unborn child, but goes even further and punishes assailants for any injuries or defects the child receives while in utero.

The UVVA therefore stands in a long and esteemed tradition of valuing and protecting the lives of the unborn that stretches thousands of years into antiquity.

The Inter-American Convention on Human Rights convened in 1978 also offers such protection. Article 4.1 of that convention states, “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.”¹⁹

Unfortunately, bills to enact a UVVA in North Carolina have failed to pass the General Assembly. The recent deaths of pregnant women such as Lance Corporal Lauterbach and their unborn children demonstrate the need for such a law to ensure that both victims of a crime receive justice under the law. Such a law would not only bring North Carolina law in line with federal law, but would also align North Carolina with the majority of states that already have in their statues a law protecting the right of the unborn first, to live, and second, to be represented as victims when crimes are committed against them.

An interesting observation concerning the unfortunate murder of Lance Corporal Lauterbach is that if her death had been the result of one of the federal crimes enumerated in the UVVA, her unborn child would be recognized as a separate victim under the UVVA. As it stands, however, the murder is still being investigated and appears not to be included in the list of federal crimes covered by the UVVA. Thus, it is likely that Lauterbach’s unborn child will not be recognized as a separate victim—even though the murder occurred in the same county as Camp Lejeune.

The American Constitution’s due process clause in the fourteenth amendment declares that no state can “deprive any person of life, liberty, or property, without due process of law.”²⁰ While the U.S. government has taken steps to assure that unborn children who are victims of violence against their mothers are guaranteed life, North Carolina has not protected these silent victims.

By passing a law that protects the unborn from violence, the General Assembly would help to advance the just cause of protecting the rights of the most defenseless in the state. Not only this, but the legislators will also ensure that justice is preserved in those crimes perpetrated against this defenseless sector of North Carolina.

R. Matthew Lytle is Director of Research with the North Carolina Family Policy Council.

ENDNOTES

1 See the April 2003 article from ABC News. <http://abcnews.go.com/US/Story?id=90678&page=1>

2 Horon, Isabelle L. and Diana Cheng, “Enhanced Surveillance for Pregnancy-Associated Mortality—Maryland, 1993–1998,” Journal of the American Medical Association 285/11 (March 2001):1455–59.

3 Ibid., 1457.

4 Ibid.

5 United States Code, Title 18, § 1841.

6 Ibid.

7 The states that currently do not have some form of an unborn protection law are Colorado, Connecticut, Delaware, Hawai’i, Iowa, Maine, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Vermont, and Wyoming.

8 N.C. GEN. STAT. § 14–18.2 (2007).

9 State v. Beale, 376 S.E.2s 1 (1989).

10 N.C. GEN. STAT. § 14–18.2 (2007).

11 Stetson v. Easterling, 161 S.E.2d.531 (1968).

12 State v. Beale, 376 S.E.2d 1 (1989).

13 N.C. GEN. STAT. § 14–44 to –46.

14 Stam, Paul and Tami L. Fitzgerald, “North Carolina: An Indifference to Life,” Americans United for Life, 2007, 16.

15 HB 263 §14-18.2(b)–(c).

16 Exod 21:22–25.

17 Exod 21:23. Older versions such as Revised Standard Version and the New American Standard (1977, prior to the 1995 update in which the translation of this passage was changed) translate Exod 21:22 along the following lines: “When men strive together, and hurt a woman with child, so that there is a miscarriage, and yet no harm follows, the one who hurt her shall be fined” (RSV). This translation, however, does not adequately reflect the Hebrew text. The word that the RSV and NAS translate as “miscarriage” is elsewhere in the Bible used to refer to a live birth; it is never used to refer to a miscarriage. In fact, the Hebrew language has another word to refer to a miscarriage (see Job 3:16 and Eccl 6:3)—a word that does not appear in the current context. It should be noted that the 1995 update to the New American Standard changed the translation of the current text to reflect the proper meaning of the Hebrew words. The New Revised Standard Version (NRSV) retained the incorrect translation found in the RSV.

18 Exod 21:24 presents this in the following way, “Eye for eye, tooth for tooth, hand for hand, foot for foot” (NASB).

19 Inter-American Commission on Human Rights, Article 4.1.

20 U.S. Const. amend. XIV, § 1.