Posted on 12/02/2005 3:04:41 PM PST by NYer
Honolulu, Dec. 02, 2005 (CNA) - Yesterday, the Hawaii state Supreme Court handed over a precedent-setting opinion, ruling that 32-year old Tayshea Aiwohi could not be convicted of killing her unborn child, because at the time, it was not a “person.”
In July of 2001, Aiwohi gave birth to her son, Treyson, who died two days later due to his mother’s use of methamphetamine while she was pregnant.
She was initially convicted of manslaughter but was able to appeal the decision all the way to the high court. To date, no appeals court in the U.S. has ever upheld an manslaughter charge for a mother who caused the death of her child while pregnant.
In their Thursday decision, all five of Hawaii’s Supreme Court Justices agreed that the charge should be overturned because, they said, the child was not a “person” when Aiwohi smoked the drug.
When he was born, Treyson was found to have had high levels of methamphetamine in his system and Aiwohi even admitted to having taken a “hit” on the morning of his birth.
According to the Honolulu Advertiser, City Deputy Prosecutor Glenn Kim, who handled the trial and appeal, was disappointed in the decision. "We continue to believe that babies such as Treyson Aiwohi deserve the protection of the law," he said.
"And we also continue to believe that people like Tayshea Aiwohi doing what she did to her baby continue to deserve to suffer the consequences of the law for those actions."
As a crime against the mother, not society, though in some circumstances society can file charges on behalf of the mother. The fetus has an odd "provisional personhood" status in the second semester. There are a number of serious legal issues with granting full personhood to a fetus, which presumably led to the rather forced compromise in definitions. No good solution, but I can see the reasoning in how the common law came to be.
Yes. So do you. Get over it.
Two different cases. In the New Hampshire case, the federal court overturned the statute on federal constitutional grounds, and SCOTUS is reviewing that decision. In this case, the Hawaii Supreme Court held that the Hawaii statute, as written, didn't apply to the facts of this case. No constitutional issue for SCOTUS (but the Hawaii Legislature can fix the statute).
Correct. This is a very confusing part of the common law. In the second semester, a fetus has a status of provisional personhood to the mother but not to society. Therefore, the mother has the right to file manslaughter charges but society at large does not, though in some cases society can file charges on behalf of the mother e.g. when the mother is killed as well. In short, it is only "manslaughter" when a fetus is killed if the mother asserts the personhood of the fetus in the second semester.
If you look at it this way, all the apparently contradictory cases make sense. This was, for example, why killing the fetus was murder in the Scott Peterson case -- society filed charges on behalf of Lacy since she presumably wanted to give birth to that baby.
The Hawaii statute defines "person" as "a human being who has been born and is alive." So the Court was probably (technically) correct, but the Legislature can re-write the statute to cover these kind of cases.
My guess is that the native Hawaiians as a culture don't embrace the killing of the unborn.
Rather, they must feel a need to keep their umbilical intact to their DC political compatriots; the irony if so is sadistically appalling.
Whores?
This is as correct as the Dred Scott decision, or the way the enlightened-Post-WWI Central-European intelligencia dealt with the Untermenschen.
The American Colonies fought a war with Britain over less than this.
this is sickeningly gross!
The church is the clergy and the Pope? What are we, cream cheese?
"Whores?" You are way too kind to them.
I think you raise a good point. If the mother drinks or smokes while pregnant, can she be charges with assault, or reckless endangerment? How about if she eats unhealthy food, or fails to seek proper prenatal care? On the civil side, would the child be able to sue teh mother for damages if aharm results from any of these actions by the mother?
Or three. But so what? It's "humans" all the way.
Oh, and a technical point. They don't evolve. They develop. (Or, another accurate verb available here: they "mature.")
I think you raise a good point. If the mother drinks or smokes while pregnant, can she be charged with assault, or reckless endangerment? How about if she eats unhealthy food, or fails to seek proper prenatal care? On the civil side, would the child be able to sue the mother for damages if harm results from any of these actions by the mother?
Except that this is not some random statute dreamed up somewhere by a politician -- apples and oranges. This is literally thousands of years of Common Law precedent that has been put through the filter of pre-Christian as well as devoutly Christian societies. The historical weight of what we now call the English Common Law as a tradition dwarfs almost all other institutions our culture embraces (and pre-dates all of them). It is so pervasive that we barely even notice, but it is arguably the cornerstone of the American social contract.
This feature of the common law may have side effects that people do not like, but it was neither arbitrary nor invented for political expediency. Classifying it as a mere technicality is akin to classifying the US Constitution as a mere technicality.
This is the chief legal concern (among a few others) that led to the compromise we have now. If you grant unconditional personhood to a fetus, you open the door to all sorts of obscene and ridiculous legal outcomes as well as all manner of statutory mischief. Doubly so because the law assumes certain legal properties of a "person" that are patently untrue for a fetus. There is no perfect solution to this issue.
Nope.
. "If there is anyone who strikes a pregnant woman or gives her a poison which produces an abortion, if the foetus be already formed or animated, and especially if it be animated, he commits homicide." Henry de Bracton (c.1250)
See also Blackstone who describes the penalties for aborting a post quickened unborn baby.
But let's look more closely at the logic of the law. "Quickening" is a measure, not of the child's humanity, but of the mother's sensitivity: that is, it is determined by the mother's own self-reported perception of the child's movement. Certainly before the development of modern medical imaging, hormone-based diagnostic tests and so forth, it wasn't even possible to prove that a woman was pregnant until she herself reported movement.
Even the phenomenon of fertilization/conception was poorly understood until the development of optical lenses capable of rendering the human sperm and ovum visible (and that was, IIRC, the mid-19th century?)
It seems unreasonable to me to base a contemporary understanding of Common Law on an obsolete, pre-scientific understanding of human prenatal development.
Since the principle of Common Law is to protect prenatal children as soon as they can be reliably detected, the principle should certainly apply to a child whose existence had been confirmed for months, and who was two days postpartum when he died.
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