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The 13th fatality of the Aurora theater shooting — and justice for unborn victims

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By Michelle Malkin  •  July 30, 2012 10:04 AM


Ashley Moser, critically wounded mother of the two youngest murder victims in the Aurora theater shooting

This morning here in Colorado, the alleged Aurora theater shooter will be formally charged for the murders of 12 victims who died in the horrific massacre. (Update: The alleged shooter was charged with 24 counts of murder, 116 counts of attempted murder.)

But there is a 13th victim whose life was taken.

Over the weekend, Ashley Moser — mother of 6-year-old Veronica, who was the youngest killed in the theater — suffered a miscarriage. Her unborn baby died as the result of Moser’s extensive critical injuries.

Yet, authorities will not charge the alleged shooter for this additional tragic death:

The miscarriage of one critically injured Aurora shooting victim will not result in additional homicide charges for the suspect, a former prosecutor said Sunday.

…ccording to defense attorney Karen Steinhauser, currently an adjunct professor at the University of Denver, Moser’s miscarriage won’t result in a new homicide charge for suspect James Holmes.

Homicide charges only apply to those “who have been born and alive,” Steinhauser said.

According to one member of Moser’s family, she still hasn’t been told about Veronica’s death. The family says funeral plans for the girl remain pending.

Here is a statement from the family:

Ashley Moser is recovering from an additional surgery she had this morning. Tragically, the extreme trauma she sustained also caused a miscarriage.

We want to send a special thank you to the courageous HEROES of law enforcement, other first responders, paramedics, and doctors and nurses who have all gone beyond the call-of-duty in caring for our daughter, granddaughter and all of the other victims of this tragic event.

Our sincere appreciation goes out to all of those who have been sending well-wishes, prayers and good thoughts to Ashley. Her lifetime of care will be a long road. For those who wish to donate, please go to any Wells Fargo Bank and request the “Donation Account for Ashley and Veronica Moser”. This is the only official donation account for the family.

Funeral arrangements for Veronica are still pending.

But couldn’t the alleged shooter be charged under the Unborn Victims of Violence Act, which covers certain federal crimes of terrorism? Perhaps, via the NRLC, it is time for the state of Colorado to join the 36 other states in the nation that recognize unborn victims:

What appears below is a summary of the laws of the 36 states that recognize the unlawful killing of an unborn child as homicide in at least some circumstances. The federal Unborn Victims of Violence Act, enacted April 1, 2004, covers unborn victims of federal and military crimes.

Full-Coverage Unborn Victim States (27)
(States With Homicide Laws That Recognize Unborn Children as Victims Throughout the Period of Pre-natal Development)

Alabama: Legislation taking effect July 1, 2006 (HB 19) amended Section 13A-6-1 of the Code of Alabama to include “an unborn child in utero at any stage of development, regardless of viability” as a “person” and “human being” for purposes of the state laws dealing with murder, manslaughter, criminally negligent homicide, and assault.

Alaska: Alaska Statutes 11.41 (as amended by Senate Bill 20, enacted June 16, 2006) establishes the crimes of “murder of an unborn child,” “manslaughter of an unborn child,” “criminally negligent homicide of an unborn child,” and “assault of an unborn child.” Alaska Statutes 11.81.900(b) defines “unborn child” as “a member of species Homo sapiens, at any stage of development, who is carried in the womb.”

Arizona: The “unborn child in the womb at any stage of its development” is fully covered by the state’s murder and manslaughter statutes. For purposes of establishing the level of punishment, a victim who is “an unborn child shall be treated like a minor who is under twelve years of age.” Senate Bill 1052, signed into law on April 25, 2005, amending the following sections of the Arizona Revised Statutes: 13-604, 13-604.01, 13-703, 13-1102, 13-1103, 13-1104, 13-1105, 13-4062, 31-412, 41-1604.11 and 41-1604.13.

Georgia: Legislation taking effect July 1, 2006 (SB 77) recognizes an “unborn child” (defined as “a member of the species homo sapiens at any stage of development who is carried in the womb”) as a victim of the offenses of feticide, voluntary manslaughter of an unborn child, assault of an unborn child, and battery of an unborn child. (Official Code of Georgia Annotated, Sections 16-5-20, 16-5-28, 16-5-29, 16-5-80)

Legislation (SB 529) taking effect July 1, 2008 recognizes the crimes of “feticide by vehicle” in the first and second degree. (Section 40-6-393.1)
Idaho: Murder is defined as the killing of a “human embryo or fetus” under certain conditions. The law provides that manslaughter includes the unlawful killing of a human embryo or fetus without malice. The law provides that a person commits aggravated battery when, in committing battery upon the person of a pregnant female, that person causes great bodily harm, permanent disability or permanent disfigurement to an embryo or fetus. Idaho Sess. Law Chap. 330 (SB1344)(2002).

Illinois: The killing of an “unborn child” at any stage of pre-natal development is intentional homicide, voluntary manslaughter, or involuntary manslaughter or reckless homicide. Ill. Comp. Stat. ch. 720, §§5/9-1.2, 5/9-2.1, 5/9-3.2 (1993). Ill. Rev. Stat. ch. 720 § 5/12-3.1. A person commits battery of an unborn child if he intentionally or knowingly without legal justification and by any means causes bodily harm to an unborn child. Read with Ill. Rev. Stat. ch. 720 § 5/12-4.4.

Kansas: Under “Alexa’s Law,” signed into law on May 9, 2007, as part of HB 2062, effective July 1, 2007, an “unborn child,” meaning “a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth,” is defined as a “person” and a “human being” for the purposes of the Kansas statutes against first degree murder, second degree murder, capital murder, voluntary manslaughter, involuntary manslaughter, vehicular homicide, and numerous battery offenses.

Kentucky: Since February, 2004, Kentucky law establishes a crime of “fetal homicide” in the first, second, third, and fourth degrees. The law covers an “unborn child,” defined as “a member of the species homo sapiens in utero from conception onward, without regard to age, health, or condition of dependency.”

Louisiana: The killing of an “unborn child” is first degree feticide, second degree feticide, or third degree feticide. La. Rev. Stat. Ann. §§14:32.5 – 14.32.8, read with §§14:2(1), (7), (11) (West 1997).

Michigan: The killing of an “unborn quick child” is manslaughter under Mich. Stat. Ann. § 28.555. The Supreme Court of Michigan interpreted this statute to apply to only those unborn children who are viable. Larkin v. Cahalan, 208 N.W.2d 176 (Mich. 1973). However, a separate Michigan law, effective Jan. 1, 1999, provides felony penalties for actions that intentionally, or in wanton or willful disregard for consequences, cause a “miscarriage or stillbirth,” or cause “aggravated physical injury to an embryo or fetus.”(M.C.L. 750.90a through 750.90f)

Minnesota: Since 1986 the killing of an “unborn child” at any stage of pre-natal development is murder (first, second, or third degree) or manslaughter, (first or second degree). It is also a felony to cause the death of an “unborn child” during the commission of a felony. Minn. Stat. Ann. §§609.266, 609.2661- 609.2665, 609.268(1) (West 1987). The death of an “unborn child” through operation of a motor vehicle is criminal vehicular operation. Minn. Stat. Ann. §609.21 (West 1999).

Mississippi: Under a law enacted May 6, 2004, and effective July 1, 2004, for purposes of enumerated state laws dealing with various types of homicide and certain other violent crimes, “the term ‘human being’ includes an unborn child at every stage of gestation from conception until live birth and the term ‘unborn child’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.” (SB 2869) In 2011, the legislature revised the law to clarify that certain conduct resulting in “serious physical injury to the embryo or fetus” is a felony punishable by up to 20 years imprisonment. (SB No. 2615, signed February 24, 2011, effective July 1, 2011.)
Missouri: The killing of an “unborn child” at any stage of pre-natal development is involuntary manslaughter or first degree murder. Mo. Ann. Stat. §§1.205, 565.024, 565.020 (Vernon Supp. 1999), State v. Knapp, 843 S.W.2d 345 (Mo. 1992), State v. Holcomb, 956 S.W.2d 286 (Mo. App. W.D. 1997).

Nebraska: The killing of an “unborn child” at any stage of pre-natal development is murder in the first degree, second degree, or manslaughter. Neb. Rev. Stat. § 28-391 to § 28-394. (2002) In addition, “The Assault of an Unborn Child Act,” effective April 13, 2006, provides that a criminal attacker who causes “serious bodily injury” to an unborn child commits the offense of “assault on an unborn child” in the first, second, or third degree. “Unborn child” is defined as “an individual member of the species Homo sapiens at any stage of development in utero.” (LB 57, 2006)

North Carolina: House Bill 215, titled the Unborn Victims of Violence Act / Ethen’s Law, signed April 29, 2011 and effective December 1, 2011, recognizes an “unborn child” (defined as “a member of the species homo sapiens, at any stage of development, who is carried in the womb”) as a victim for the crimes of “murder of an unborn child,” “voluntary manslaughter of an unborn child,” “involuntary manslaughter of an unborn child,” “assault inflicting serious bodily injury on an unborn child,” and “battery of an unborn child.” (N.C. Gen. Stat. § 14-23.1-14-23.8).

North Dakota: Since 1987 the killing of an “unborn child” at any stage of pre-natal development is murder, felony murder, manslaughter, or negligent homicide. N.D. Cent. Code §§12.1-17.1-01 to 12.1-17.1-04 (1997).

Ohio: At any stage of pre-natal development, if an “unborn member of the species homo sapiens, who is or was carried in the womb of another” is killed, it is aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, negligent homicide, aggravated vehicular homicide, and vehicular homicide. Ohio Rev. Code Ann. §§ 2903.01 to 2903.07, 2903.09 (Anderson 1996 & Supp. 1998).

Oklahoma: House Bill 1686, signed into law on May 20, 2005, recognizes “an unborn child” as a victim under state laws against murder, manslaughter, and certain other acts of violence. The law defines “unborn child” as “the unborn offspring of human beings from the moment of conception, through pregnancy, and until live birth including the human conceptus, zygote, morula, blastocyst, embryo and fetus.” Following upon the law enacted in 2005, Senate Bill 1742, signed into law May 23, 2006, ensures that Oklahoma’s recognition of the unborn child as a separate victim applies uniformly across all of Oklahoma’s homicide statutes.
Pennsylvania: An individual commits criminal homicide in the first, second, or third-degree, or voluntary manslaughter of an “unborn child” if the individual intentionally, knowingly, recklessly or negligently causes the death of an unborn child. 18 Pa. Cons. Stat. Ann. §§ 2601 to 2609 (1997) “Unborn child” and “fetus.” Each term shall mean an individual organism of the species Homo sapiens from fertilization until live birth.” On December 27, 2006, in the case of Commonwealth of Pennsylvania v. Bullock (J-43-2006), the Pennsylvania Supreme Court unanimously rejected an array of constitutional challenges to the law, including claims based on Roe v. Wade and equal protection doctrine.

South Carolina: S. 1084, signed into law and effective on June 2, 2006, recognizes a “child in utero” who is enjured or killed during an act of criminal violence as a separate victim of a separate offense. The term “child in utero” is defined as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”

South Dakota: The killing of an “unborn child” at any stage of pre-natal development is fetal homicide, manslaughter, or vehicular homicide. S.D. Codified Laws Ann. §22-16-1, 22-16-1.1, 22-16-15(5), 22-16-20, and 22-16-41, read with §§ 22-1-2(31), 22-1-2(50A) (Supp. 1997).

Tennessee: Effective July 1, 2012 (HB 3517, enacted as Pub. Ch. 1006), Tennessee law includes “a human embryo or fetus at any stage of gestation in utero” as a victim of such offenses as murder, voluntary manslaughter, vehicular homicide, and reckless homicide. See Tennessee Code Annotated, Sections 39-13-107 and 39-13-214. This law replaces a law that took effect in 2011, which had applied the same principle to “a fetus of a human being.” The new language is intended to ensure that the protection extends throughout the period of pre-natal development, along with other technical changes. Prior to 2011, Tennessee law recognized an unborn child as a crime victim only after “viability.”
Texas: Under a law signed June 20, 2003, and effective September 1, 2003, the protections of the entire criminal code extend to “an unborn child at every stage of gestation from fertilization until birth.” The law does not apply to “conduct committed by the mother of the unborn child” or to “a lawful medical procedure performed by a physican or other licensed health care provider with the requisite consent.” (SB 319, Prenatal Protection Act)

Utah: The killing of an “unborn child” at any stage of pre-natal development is treated as any other homicide. Utah Code Ann. § 76-5-201 et seq. (Supp. 1998)and UT SB 178 (2002). See Utah Supreme Court decision in State of Utah v. MacGuire (January 23, 2004).

Virginia: Effective July 1, 2004, Code of Virginia Section 18.2-32.2 provides: “Any person who unlawfully, willfully, deliberately, maliciously and with premeditation kills the fetus of another” may be imprisoned from 20 years to life; and any person who does so without premeditation may be imprisoned for not less than five nor more than 40 years.

West Virginia: 2005 Senate Bill 146, signed into law on May 20, 2005, provided that “a pregnant woman and the embryo or fetus she is carrying in the womb constitute separate and distinct victims” for purposes of the state laws governing murder, manslaughter, and certain other crimes of violence. Code of West Virginia Section 61-2-30.

Wisconsin: Since 1998 the killing of an “unborn child” at any stage of pre-natal development is first-degree intentional homicide, first-degree reckless homicide, second-degree intentional homicide, second-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, homicide by intoxicated use of vehicle or firearm, or homicide by negligent operation of vehicle. Wis. Stat. Ann. §§939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 940.06, 940.08, 940.09, 940.10 (West 1998).

Partial-Coverage Unborn Victim States (9)
(States with Homicide Laws That Recognize Unborn Children as Victims, But only During Part of the Period of Pre-natal Development)

NOTE: These laws are gravely deficient because they do not recognize unborn children as victims during certain periods of their pre-natal development. Nevertheless, they are described here for informational purposes.

Arkansas: The killing of an “unborn child” of twelve weeks or greater gestation is capital murder, murder in the first degree, murder in the second degree, manslaughter, or negligent homicide. Ark. Stat. Ann. § 5-1-102(13)(b)(i)(a), read with Ark. Stat. Ann. §§ 5-10-101 to 5-10-105. (A separate Arkansas law makes it a battery to cause injury to a woman during a Class A misdemeanor to cause her to undergo a miscarriage or stillbirth, or to cause injury under conditions manifesting extreme indifference to human life and that results in a miscarriage or stillbirth. Ark. Stat. Ann. § 5-13-201 (a)(5)(a)).

California: California Penal Code § 187(a) says, “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” The words “or a fetus” were added by the legislature in 1970. The California Supreme Court later interpreted “fetus” to apply “beyond the embryonic stage of seven to eight weeks.” (People v. Davis, 1994) In addition, Penal Code § 190.2(3) makes a defendant eligible for capital punishment if convicted of more than one murder, and the California Supreme Court ruled that fetal homicide is included under this provision as well (People v. Dennis, 1998).

Florida: The unlawful killing of an “unborn quick child” is murder in the same degree as if committed against the mother. [Fla. Stat. Ann. § 782.09 (West 2005)]. Other provisions cover the killing of an “unborn quick child” as manslaughter [Fla. Stat. Ann § 782.09 (West 2005)], vehicular homicide [Fla. Stat. Ann. § 782.071 (West 1999)], and DUI manslaughter [Fla. Stat. Ann. § 316.193 (West 2005)]. Under Fla. Stat. Ann. §§ 316.193 and 782.09, the term “unborn quick child” is the same as the term “viable fetus,” which is defined in the following way: “… a fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures.” [Fla. Stat. Ann § 782.071 (West 2005)].

Indiana: The killing of “a fetus that has attained viability” is murder, voluntary manslaughter, or involuntary manslaughter. Indiana Code 35-42-1-1, 35-42-1-3, 35-42-1-4.

Maryland: Under 2005 House Bill 398, amending Section 2-103 of the Annotated Code of Maryland, signed into law on May 26, 2005 and effective October 1, 2005, “A prosecution may be instituted for murder or manslaughter of a viable fetus,” if the person prosecuted “intended to cause the death of the viable fetus, intended to cause serious physical injury to the viable fetus, or wantonly or recklessly disregarded the likelihood that the person’s actions would cause the death of or serious physical injury to the viable fetus.”
Massachusetts: The killing of an unborn child after viability is vehicular homicide. Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984). The killing of an unborn child after viability is involuntary manslaughter. Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989).

Nevada: The killing of an “unborn quick child” is manslaughter. Nev. Rev. Stat. § 200.210 (1997.

Rhode Island: The killing of an “unborn quick child” is manslaughter. The statute defines “quick child” to mean a viable child. R.I. Gen. Laws § 11-23-5 (1994).

Washington: The killing of an “unborn quick child” is manslaughter. Wash. Rev. Code Ann. § 9A.32.060(1)(b) (West Supp. 1999).

***

Via Rusty Weiss: “Just read your post on the Aurora shooter not being charged with the murder of an unborn child. The fact is, you’re right. He can be charged under the Unborn Victims of Violence Act. The application seems to be arbitrary however. The act applied in the case of Robert Bales, the man who shot and killed Afghan villagers. But it did not apply in the case of Nidal Hasan. Makes you wonder if the Act was utilized in the Bales case as a way to placate those outraged at the violence against the citizens of the Afghan village. Another case of law being applied through a prism of political correctness?”

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