Should Cleveland kidnapper Ariel Castro get the death penalty? That option is now on the table, as the lead prosecutor in the case says he will bring aggravated murder charges for the miscarriages Castro allegedly forced on Michelle Knight, one of the three women rescued from Castro’s home this week after a decade of imprisonment. Castro is also being charged with rape and kidnapping for the abduction of Knight, Amanda Berry, and Gina DeJesus. One of the many sickening details of their captivity is the women’s report that Knight got pregnant five times, and that Castro starved her for weeks and beat her so she would miscarry.
Criminal law professors and former prosecutors are warning that the aggravated murder charges could be hard to prove. Usually, the state has to show medical evidence of a pregnancy, and of a forced termination. That could be hard to come up with years after the event, based only on the testimony of Knight, Berry, and DeJesus, who are likely the only witnesses. Douglas Berman, law professor and sentencing blogger, says the prosecution is still right to consider these aggravated murder charges, because based on the facts in the police report, “Ariel Castro is the poster child” for the kind of offender Ohio intended to go after. The state’s aggravated murder law includes prosecution for purposely causing “the unlawful termination of another’s pregnancy.”
The story of what Castro did to Knight, Berry, and DeJesus haunts me. I understand the drive to send this man to his death—he seems like a monster. And I can also see why states treat the forced termination of a pregnancy as a significant crime. I still think, though, that there would be something very strange about executing Castro for the harm he did to fetuses, as opposed to the harm he did to three living and breathing women. Maybe that seems like a legal nicety. But in this case the aggravated murder charge is really a proxy for condemning the years of rape and captivity Castro inflicted. And that makes me wary of it.
Thirty-eight states have fetal homicide laws on the books, and 23 of them apply them from the first weeks of a pregnancy. Ohio’s law has been on the books since 1996. After a woman who was eight months pregnant was killed by a reckless driver who could not be charged with the fetus’ death, the legislature added “unlawful termination of another’s pregnancy” to the aggravated murder statute. The law has been used to prosecute other drivers for killing fetuses as a consequence of their reckless driving, and a similar assault statute led to the 1998 conviction for involuntary manslaughter of a man who beat his wife and caused her to miscarry.
Pro-choice groups have opposed fetal homicide laws out of concern that treating a fetus as a person for purposes of a murder prosecution could lead to prosecutions of women who have abortions, or undermine the legal right to abortion more generally. It’s a fight that got a lot of attention when Congress made the killing of a fetus a federal crime by passing the Unborn Victims of Violence Act in 2004. But pro-choice fears here haven’t really come to pass. (Update, May 10, 2013: Women have been prosecuted under the laws, for example for giving birth to a stillborn child after using drugs as this report alarmingly details. But not for having legal abortions.) Legally speaking, “there is nothing especially troubling about permitting the law to define the word ‘person’ differently for different purposes,” as law professor Michael Dorf has written. That’s why (for better or worse) corporations can be persons when they give campaign donations but not when it comes to the right to vote.
It’s also intuitive to treat a forced miscarriage differently from the choice to have an abortion. The former can be a devastating loss for a woman who has imagined herself as a mother to the baby she is carrying (because, yes, to a woman who wants a baby, that’s the right word). The other is a personal exercise of autonomy, whatever emotions come with it. As law professor Sherry F. Colb writes, the debate over fetal homicide laws helps make clear that “the constitutional right to abortion is simply a right to stop being pregnant, no more and no less.” Colb says that when she talks about this issue with her students, “pro-choice students point out that the choice of abortion belongs to the mother, and that taking away that choice by killing her fetus without her consent does as much—or more—violence to reproductive freedom as a prohibition against abortion would.”
Fetal homicide laws also express the collective sense that the death of a woman “already a tragedy, was an even greater tragedy because she was carrying a fetus, one she intended to bring to term.” Michael Dorf wrote that about the murder of Laci Peterson. Her infamous husband, Scott Peterson, was convicted in 2005 of killing her when she was eight months pregnant. At first Laci’s family stood by Scott, but it turned out that he was a lying cheat who at the time of her death was having an affair with a massage therapist, to whom he also lied. If you’ve read the book Gone Girl, Scott Peterson is a partial model for the main character. He was sentenced to death; his case is on appeal and he remains on California’s death row.
But the main reason Scott Peterson is on death row is because he killed his wife. At Peterson’s sentencing hearing, the judge focused on the “heartless” murder of Laci. For all the suffering he inflicted on the women he held captive, Castro didn’t kill them, and we can hope they will live, free from him, for many years to come. The Supreme Court has so far ruled out the death penalty for crimes other than murder. If you think that’s the right line to draw—that the state should not take the life of someone who has not killed—then Castro shouldn’t be executed. I have to say I’m having some trouble typing those words. But in this case, I think that’s the right call.