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Feticide in California - A Proposed Statutory Scheme

NCJ Number
University of California Davis Law Review Volume: 12 Issue: 2 Dated: (Summer 1979) Pages: 723-742
J P Nahra
Date Published
20 pages
The California law proscribing nonconsensual feticide is defective in both application and theory, and the State should enact a separate statute that properly recognizes the unique status of the human fetus and proscribes a sufficiently wide range of criminal conduct.
The California legislature formulated its version of a fetal protection statute in 1970 by explicitly designating the fetus as a potential victim of murder, but excluding consensual abortion from the law's scope. Furthermore, California appellate courts have interpreted the word fetus to include only a viable fetus capable of independent existence. Consequently, a gap exists between protection afforded through the 1970 murder statute and the relatively innocuous abortion law. Because nonconsensual killing of a fetus is not included in the manslaughter statute, no prohibitions exist against intentional fetal killing accompanied by the mental element associated with voluntary manslaughter. Some judicial opinions suggest that the criminal abortion statute might be used to close the manslaughter gap, but it is doubtful that the statute in fact covers nonconsensual fetal killings. Finally, murder and feticide clash conceptually in the 1970 law because the fetus' status as a person or nonperson is unclear and the viability test creates problems of arbitrariness. An independent feticide statute confined to nonconsensual conduct would alleviate these problems by encompassing intentional killing of a fetus without consent and nonintentional killing of a fetus accompanied by intentional injury to or killing of the mother. A feasible structure of implementing the policy of determinate sentencing would be to assign one set of three possible sentences for intentional feticide and another for nonintentional feticide. The paper includes 77 footnotes.


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