But can that man be charged with child abuse? What if the fetus injured in the womb is born, survives and suffers lasting harm?
The state’s court of appeals has issued contradictory rulings on the issue, and now, the nuanced, hairsplitting questions — which are part of a long-standing and contentious debate about whether fetuses ought to be recognized as persons under state law — has landed before the Colorado Supreme Court.
The Supreme Court justices last week heard an appeal in the case of a man who was convicted of killing his pregnant wife and injuring his wife’s baby. The justices must decide whether the man can be convicted of child abuse even though the injuries he caused to the baby — who survived, and still suffers lasting injuries — happened before the child was born.
The Supreme Court’s opinion could have wide-ranging implications, said Aya Gruber, a professor of law at the University of Colorado Boulder.
“It’s going to be big in Colorado,” she said. “It will answer the question of, ‘Does child abuse extend in utero?’ Is Colorado going to be one of those places where you can prosecute people for causing injuries to fetuses?”
The reason a suspect can’t be charged with killing a fetus is because homicide is defined in state law as the killing of a person who had been born and was alive at the time of the homicidal act.
That’s why Dynel Lane, the Longmont woman who lured a pregnant woman to her home then cut the baby from the mother’s womb in 2015, couldn’t be charged with killing the baby — the infant was not born when the homicidal act occurred.
Lane was, however, charged with unlawful termination of a pregnancy — a 2013 law that made it a felony to end a pregnancy without the mother’s consent. Lane was convicted and sentenced to 100 years in prison.
The unlawful termination law, like the homicide statute, specifically notes that it does not confer the status of “person” upon an unborn child at any point prior to birth. Yet it still allows prosecutors to charge for the death of a fetus by considering the harm to the mother, Gruber said.
“The victim is the person whose pregnancy was terminated against their will,” she said.
“When it gets trickier is when the victim is supposed to the be child, and whether or not a fetus would count in a child abuse case.”
That’s what’s before the state Supreme Court now.
On Tuesday, the justices listened to an hour of argument in the case of Andre Jones, a 38-year-old Fountain man who was convicted of killing his estranged wife in 2013. She was pregnant with someone else’s child. Jones was accused of breaking into her apartment while she was away, waiting for her to return home and then shooting her in the belly as she unlocked the door.
Lakeisha Jones, 32, died. Her infant survived, although the child suffered lasting neurological damage from a lack of oxygen in the womb.
Andre Jones was sentenced to life in prison on murder and child abuse charges, but his convictions were overturned on appeal in part because the court found Jones could not be convicted or retried on the child abuse charges, because an unborn child does not qualify as a “person” under the child abuse statute. The court of appeal also decided the trial judge infringed on Jones’ constitutional rights when he excluded Jones’ mother and stepfather from the courtroom while their grandchildren testified.
The state appealed both parts of that ruling, and on Tuesday, assistant attorney general Erin Grundy argued that Jones can be convicted of child abuse. The child abuse law does not explicitly exclude unborn children in the way the homicide and unlawful termination laws do, she said.
“Had the legislature intended to limit this to those who are already alive, they’d have used the same language,” she said.
She also pointed to a previous court of appeals ruling in which the court ruled a suspect can be prosecuted for child abuse, but not for homicide, if the infant is injured in the womb but is subsequently born alive, even if the child later dies.
Gruber, the law professor, said that 2009 ruling, in which the court overturned a homicide conviction but kept a child abuse conviction in the death of an infant who was injured in utero and died shortly after birth, seemed to be a compromise.
“They become a person when they are born but they were injured before they became a person but it constitutes an injury to the person,” she said. “So you’re not establishing the fetus as a person.”
The approach can create some odd legal scenarios, she said.
“So say someone takes drugs,” she said. “If the baby is born and is defective, maybe they’ll get child abuse. But if the mother takes enough drugs that the baby dies, then it isn’t anything. It’s a weird compromise when you think about it.”
An attorney for Jones, state public defender James Hardy, argued before the state Supreme Court on Tuesday the court of appeals ruling was wrong and should be overturned.
Since both the homicide and unlawful termination laws exclude unborn children, he said, the child abuse statute should be interpreted in the same way.
“Colorado law generally provides that the unborn are not persons,” he said, adding later that if the child abuse statute was intended to include unborn babies, then it should have been made clear in the law.
“If that’s what the legislature intended, they need to tell us that,” he said.
Several justices asked questions of both sides throughout the argument, including Justice Monica Marquez, who questioned Grundy about whether extending the child abuse protection into the womb would put mothers at risk of criminal prosecution. She gave the example of an infant born with illegal drugs in its system.
“Should the mother be prosecuted for child abuse? It would seem so under your interpretation,” Marquez said to Grundy.
Grundy responded that mothers have unique constitutional protections, and said the state Supreme Court could make it clear in its opinion that mothers can’t be prosecuted in such circumstances.
Gruber said the criminal prosecution of pregnant women discourages at-risk and marginalized women from seeking help during their pregnancies.
“From a public health perspective, it’s not good,” she said. “If a mother is poor or on drugs or needs prenatal medicine, they aren’t going to seek help if they can be prosecuted.”
Bob Enyart, a spokesman for Colorado Right to Life, said Wednesday he’d be glad to see such prosecutions.
“That would be awesome,” he said. “If the mother does drugs and her baby is born with some kind of a terrible addiction to opioids or whatever, that is child abuse. We need to love our children and not treat them like disposable trash.”
Colorado Right to Life has long pushed to establish personhood for unborn babies, and the issue has been put to the state’s voters three times, most recently in 2014. Each time, the measure failed.
Even though those who kill unborn babies commit a felony under the state’s unlawful termination statute, Enyart said that law doesn’t go far enough.
“It’s as if, if you killed a man and you were charged with homicide and murder, but if you killed a woman you were charged with some kind of property crime,” he said. “You could intuitively see the insult, and the disgrace that is, to dehumanize a whole sector of our society.”
Lizzy Hinkley, reproductive rights policy counsel at the ACLU of Colorado, said the organization doesn’t have a stance on the issue in the Jones case — whether the person who injures a fetus can be charged with child abuse after the fetus is born if the infant continues to suffer lasting injuries — but said the ACLU strongly opposes personhood for fetuses.
“On the issue of personhood,” she said, “we are very firmly in the camp that there are no rights attached while in utero.”
The state Supreme Court will consider the issue a written opinion at some point in the coming months.