This won't add any clarity to the often incoherent abortion debate:
Danielle Brookshire Steinberger already had her infant's safety seat in the car when she was hit head-on by another vehicle on New Year's Eve 2007.
If baby Drew had died in his car seat instead of in his mother's womb, his death could have been a crime.
Indiana law doesn't consider an unborn child a person, so causing its death isn't a crime. It's a loophole in the law Danielle and Dustin Steinberger of Campbellstown, Ohio, are working to change through legislation to be considered this week in the Indiana General Assembly.
Senate Bill 71, sponsored by state Sen. Allen Paul, R-Richmond, would add termination of pregnancy to the law that makes it a Class C felony to cause the death of another person by driving while intoxicated by alcohol or controlled substances.
Termination of pregnancy would also be added to the law covering reckless homicide, but excludes abortions performed in compliance with Indiana law.
So if you drive drunk and cause an accident killing an unborn child, you will be arrested and charged with a Class C felony. But if you call that same unborn child a fetus and kill it by abortion, you will have the state's blessing. That makes no legal, moral or philosophical sense whatsoever.
Comments
I think this highlights why, in criminal proceedings, it's important to focus on the criminal act instead of the damage arising out of it. Leave questions of damages to civil actions.
The criminal law is intended to discourage crime and rehabilitate criminals. Theoretically (and under the Indiana Constitution), it's not about retribution. The drunk driver doesn't have malice toward the unborn or toward anyone in particular. He is recklessly indifferent to the well-being of other people generally. I think it's that reckless indifference we should focus on when we set the penalty, not the specific consequences of a particular incident - since that's largely a matter of luck.
"I think it
I'm not a huge fan of hate crimes legislation because I like my laws more generalized, but I think the logic of focusing on the action as opposed to the consequences argues for penalizing hate crimes.
In the drunk driving case, there is indifference to the victim. In the hate crime case, there is particularized malice. That said, if I was going to create hate crimes legislation, I'd structure it to focus on the intent of the perpetrator and ignore whether it actually caused fear or damaged a protected class member.
But, if you applied my logic all the way through, it would probably require a lot of reworking of the criminal code. There are a lot of enhancements based on the actual damage caused.
Focusing on intent rather than the actual consequences would help meet one goal of the law, which you succintly describe as "to discourage crime and rehabilitate criminals." But another function of the law is to make me feel safe -- and you and our neighbor and, therefore, society in general. Doesn't setting penalties based on the actual damage help foster that sense of living in a civilized community? If someone gets a fine for running a stop sign and hitting my car, a year in jail for stealing my car, and 20 years for wounding me with a gun while stealing my car, that creates a sense of proportion and enforces the notion that the law takes me and mine as seriously as I do.
Our founding fathers didn't consider an unborn child a person either. Under Common Law existing at the time of the adoption of the U.S. Constitution, "natural personhood" was considered to begin at natural birth and end with the cessation of the heartbeat. Abortions existed then; it's my understanding the framers of the constitution didn't consider extending the rights of "personage" to an unborn person.
AJ