Posted on 10/22/2015 7:19:44 AM PDT by Behind Liberal Lines
On May 30, 2008, defendant, driving eastbound on Whiskey Road in Suffolk County, entered the westbound lane and struck the vehicle of Robert and Mary Kelly head on, killing them both. At the time of the collision, defendant was 34 weeks pregnant. She was taken to a local hospital where, due to signs of fetal distress, she consented to an emergency cesarean section.
Despite the best efforts of hospital personnel, the baby died six days later. An autopsy confirmed that the cause of death was due to injuries sustained in the accident....
Following deliberations, the jury returned a verdict finding the defendant not guilty on all counts except manslaughter in the second degree for the death of her child. The Appellate Division affirmed defendant's conviction (113 AD3d 793 [2d Dept 2014]). A Judge of this Court granted defendant leave to appeal. We now reverse
The underlying facts and circumstances of this appeal are tragic to all parties involved. The sole issue that we reach on this appeal, however, is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in utero where the child was born alive but died as a result of that injury days later We hold that it is evident from the statutory scheme that the legislature, in enacting Penal Law § 125.05 (1) and § 125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally...
Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so. Moreover, had defendant's fetus died in utero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a "person" ...had defendant not consented to the cesarean section with the result that the child be born alive, she would not have been prosecuted for manslaughter in the second degree. Thus, if we accorded the word "person" the interpretation advocated by the People, it would create a perverse incentive for a pregnant woman to refuse a cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct, jeopardizing the health of the woman and the unborn fetus. This is plainly not what the legislature intended when it enacted the definition of "person" under section 125.05 (1) or the manslaughter in the second degree offense as delineated in Penal Law § 125.15 (1).
The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor.
FAHEY, J.(dissenting): I respectfully dissent and would affirm the Appellate Division’s order. I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person...
If a 6 day old baby isn’t a person, then a 60 year old judge shouldn’t be considered a person either.
-PJ
What is her charge against Robert and Mary Kelly???
What is her charge against Robert and Mary Kelly???
She was found not guilty on those by the jury and guilty of the charge vis a vis the baby. The appeals court threw out the guilty verdict regarding the baby with this deciison.
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