Last week in Colorado, Dynel Lane, 34, allegedly lured a nearly eight-months pregnant Michelle Wilkins, 26, to her home using a Craigslist post, advertising gently used baby clothes for sale. Shortly after Wilkins arrived, Lane viciously stabbed her in the stomach, allegedly going so far as to cut out her fetus. Her motive, say investigators, was to replace her own fetus, which she had recently miscarried.
Fortunately, Wilkins survived but the child died not long after the incident. Now, Lane faces charges of attempted murder and assault on Wilkins. Shockingly, however, murder charges for the death of the unborn child are not likely to be a part of the state's case against Lane; instead the state will only pursue child abuse charges.
How can that possibly be?
The short answer is that Colorado legislators have rejected laws - including a bill proposed last fall - that would have defined this type of death as a homicide.
Federal law and laws in 38 states currently categorize the violent death of a fetus as a homicide (New Hampshire may soon follow as the 39th, if a recently passed bill becomes law). But that's not the case in Colorado.
The reason these laws have been defeated there can be traced directly to long-standing debate about what constitutes "life." Further, defeat of these laws can be traced to pro-choice advocates who characterize them as a slippery slope that could lead to abortion being characterized as "violent death" and therefore made illegal. In response to such fears, however, those on the other side of the debate point out that "violent death laws" pertaining to the fetus have been in existence for 30 years in some states without any direct impact on the legality of abortion.
In general, then, the outcome of fetal rights cases depends in large part upon the state where the case is brought. For example, Alabama defines the violent killing of an unborn child as a homicide (Ala. Code Sec 13A-6-1). In addition, state legislators also recently passed a law allowing the court to appoint a lawyer to represent the fetus in cases where minors are seeking an abortion (HB 494). Of course, this law has pro-choice activists up in arms; the ACLU filed suit last week asking that it be blocked.
Whether Lane can be charged with murder will depend almost completely on the autopsy in this case (results should be available next week). In order for prosecutors to issue murder charges there must be sufficient evidence that a suspect's act caused a victim's death. If the autopsy supports the claim that Lane's actions actually caused the baby's death after it was outside the womb, prosecutors will likely pursue murder charges; otherwise, under existing Colorado law, they will be unable and can only go so far as child abuse charges.
No matter the result, this case may ultimately lead to Colorado joining the majority of states that define the violent death of a fetus as a homicide.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
