(note: Although I had intended a longer discussion of the pros and cons of criminalizing fetal injury that occurs during the commission of another crime, I have realized that there is ample yelling from both sides of the abortion debate already out there. So rather than recite my concerns with respect to the potential for turning such a statute into a sword to eviscerate abortion rights, I am going to spend my time here on the philosophical dimensions of crime and culpability and intent.)
The crime of injuring or killing a fetus during the commission of another crime presents us with an opportunity to examine the role of punishment in our society. It is normally narrowed down to three distinct, and at times conflicting, aims- retribution, rehabilitation and deterrence. In the perfect world that we like to hypothesize about, punishment would be tailored to serve both ends (perhaps not equally, but nearly so).
For the sake of argument I will dispense with the psychological battle over whether rehabilitation is possible for all criminals and accept that it is (I actually do not believe it is, but that is not the focus of this piece).
The criminalizing of fetus injury is a good case to use to clarify some of the issues surrounding the confluence of morality and criminality. It was Bentham who posited that morality and law were concentric circles with morality encompassing the smaller sphere of law. And while this, I think, is a fairly accurate description of the law in general, it still leaves open the dilemma of just how close the outer limits of the criminal law circle are to the morality circle.
Quite obviously, no society can come to a point where its law reflects the exact same area as morality. Simply because morality is not a static or objective concept. Even the most monolithic society will have a difficult time staking out two equal circles of crime and morality. But that should not foreclose the inquiry as to where the inner law circle lies.
There are, it would seem, certain fundamental moral values that we all share. I would suggest that we might all agree that homicide is immoral and therefore a logical act that lies within both the moral and law spheres. We might further agree, as a society, that injury to a fetus is morally wrong and should also be subject to criminal sanction.
Yet, even if we accept that further notion there is still the question of punishment and how it ought to be determined and which of our two remaining aims ought to shape how this crime is punished. There may be a distinction we would like to make between death or serious bodily harm to a fetus that was the result of a knowing action versus that which was unknown. We might further wish to think about the distinction between knowing and intended versus knowing yet unintended.
This is where we have to examine our underlying beliefs about the goals of criminal law. Let us first turn to the notion of deterrence. It might be said that a criminal scheme that grading crimes according to the distinctions made above would provide some sort of deterrent effect that might prevent an actor from knowingly and intentionally injuring a fetus (MPC malice); or, knowing and negligently (MPC reckless) bringing about injury to a fetus; or, in the most hopeful sense, provide an incentive not to do harm to women, period.
However, all of these suppositions rest on the ideal that deterrence is actually possible. It is a dubious assumption that the putative criminal actor is rational, and therefore susceptible to criminal penalties as disincentives to act. What proponents of the deterrence school would have us believe is that the batterer would think twice and halt his plan simply on the knowledge that his victim was pregnant. Even at the margins it is hard to believe that there is an actual chance for deterrence, at least partially because of the lack of knowledge of the criminal sanction. But even more so because the act of battery is in and of itself a fairly irrational act.
(note: I realize that what I am arguing here may lead to the conclusion that crimes are committed by some sort of compulsion and without the type of volition or free will that might then lead us to examine whether there is ever culpability.)
Does such a finding with respect to a lack of deterrent effect mean that this crime should be a strict liability crime? Perhaps not. If we accept that there are gradations of blameworthiness, there is no reason why the threshold offense might not be strict liability with increased punishments for higher levels of culpability as determined by increased mens rea requirements.
This would dovetail nicely with our notions of retributive justice in that there is some form of punishment for fetal injury no matter what the attendant level of knowledge on the part of the defendant. However, as the actor's level of knowledge increases to negligent to reckless to malicious it would make some sense that he would face stiffer sanctions as society's outrage over his act increases.
Again, though, this may also be a part of our hypothetical fantasyland. First, divining the defendant's mens rea, absent some affirmative statement, is not a science. There is ample opportunity to find a particular defendant negligent when in fact he was reckless. The distinction between grades is often vague and difficult for a room of jurors to grasp, and is prone to large error. Further, and perhaps more important, is whether we want to make a distinction between levels of knowledge. We might rather draw the line between knowing and not knowing, with the former carrying a much stiffer sanction. It would seem, from a practical matter though that the line might be best drawn at the level of negligence (know or should have reasonably known). In the former example, where grades were based on level of knowledge the result might be that an actor could disclaim knowledge even though the putative victim was clad in maternity wear.
Even still, there remains an additional mens rea problem. What is it that the defendant has knowledge of- that the victim is with child or that his actions are likely to harm the fetus. This may sound to some like a distinction without a difference, but think of this case- the defendant robs victim who is pregnant; the victim informs defendant that she is pregnant; defendant places a gun to victim's head and the apprehension of death causes such trauma as to result in miscarriage. If we use knowledge of likely effect as the mens rea test, then this defendant quite likely has not violated the law unless he knew or reasonably could have foreseen that placing a gun to his victim's head would result in miscarriage. That would certainly be a most difficult row to hoe.
One final note is to see the striking similarity all this has to the felony murder rule. There, many jurisdictions have backed away from the rule, deciding that the defendant did not have the requisite intent to commit murder and is therefore not culpable. Suffice to say that I think those jurisdictions are wrong, especially California and its merger doctrine. But I think that the same objections that have been made to the felony murder rule can be made here. And it falls back on intent and how that factors into culpability and punishment. Essentially, the argument is this- one should only (in most circumstances) be punished for what he intended to do. Yet, the actor who commits murder during an armed robbery, just like the robber who injures a known pregnant woman, must be held accountable for his actions. Not just because they are likely, but because it is the right thing to do if we are to serve any notion of retributive justice.