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Attorney: SD Law May Allow Murder Charge Against Woman Who Aborts Pregnancy, But Conviction Unlikely

Attorney Jay Davis weighs in on an issue that eager reader and commenter Bearcreekbat has frequently raised in our discussion of South Dakota’s new abortion ban: does South Dakota law now make it possible to charge a woman who aborts her pregnancy in South Dakota with first-degree murder? Davis says inconsistency in South Dakota law now makes such charging possible, but the chances for conviction are thin:

Our fetal homicide statute (SDCL 22-16-1.1) applies when someone caused the death of an unborn child, but specifically excludes abortion, whether legal or illegal. This law would apply to the man who violently beats a pregnant woman, causing her to lose her baby.

Our “trigger law” (SDCL 22-17-5.1) makes it a Class 6 felony to prescribe medication, or to use a surgical instrument, that causes an abortion, unless the abortion is necessary to save the pregnant woman’s life. This law is clearly aimed at the doctor or medical provider, not necessarily the pregnant woman who desires the abortion.

Legally, we could argue that the more specific “trigger law” controls the situation, rather than the more general law, which is the murder statute.

Under South Dakota law (SDCL 22-16-4), the premeditated killing of another human being, including an unborn child, is classed as first-degree murder.

Therefore, a zealous prosecutor could charge the woman who procures an abortion, which is not necessary to save her life, with first-degree murder. Whether the prosecutor could obtain a conviction is another question.

My instinct is that it would be hard to get a conviction [Jay Davis, “A Legal Point Worth Considering: Could a Woman Who Obtains an Abortion Be Charged with First-Degree Murder?South Dakota Standard, 2022.07.27].

I respect Davis’s instincts about how a murder trial might play out against a woman who aborted her pregnancy, but I’ll continue to lean harder on the argument I offered in May. As Davis notes, the trigger law that banned abortion in South Dakota the day the Alito Court overturned Roe v. Wade, addresses a specific instance, the termination of a pregnancy. Had the 2005 Legislature that crafted the trigger law intended to make abortion first-degree murder, a Class A felony punishable by death, it would not have drafted 2005 House Bill 1249 to write a new section into law deeming abortion a Class 6 felony, the mildest felony classification in South Dakota law. The 2005 Legislature would have left that section out, stuck with the five sections that would repeal legal authorization for abortion, and let abortion, the killing of an unborn child, default to first-degree murder.

2005 House Bill 1249 in its original form did call for punishing abortion as a Class 1 felony. That’s still a step down from the Class A, B, and C felonies that can bring life sentences, but even a 50-year/$50K punishment for abortion struck legislators as too much, and in its first hearing, before House State Affairs, HB 1249 was amended by its sponsor, Rep. Joel Dykstra, to reduce the penalty to Class 6 felony, with a maximum penalty of two years and $4K fine.

If any overzealous prosecutor hauls a woman before a South Dakota judge on a murder charge, her counsel should argue that murder is the wrong charge: the history of the trigger law makes clear the Legislature’s intent not to treat abortion as murder. The Legislature sought to ban abortion but still treat it as a far lesser offense. If any prosecutors to make a murder charge stick against a women who obtains an abortion in South Dakota, they’ll need to lobby Rep. Jon Hansen and other woman-hating legislators to repeal Section 6 of the trigger law, now enacted as SDCL 22-17-5.1, to remove the exception for abortion and treat that consensual medical procedure the same as shooting a pregnant woman in the gut.

25 Comments

  1. larry kurtz 2022-07-28 08:57

    The last woman of child bearing age to leave South Dakota please turn out the lights after you flush the toilet.

  2. sx123 2022-07-28 09:58

    Can these charges still apply if woman/girl crosses state border for procedure?

    How about woman/girl crosses border, has procedure, and then never returns to SD? Will they be hauled back to SD for trial?

    Unless written in stone that women/girls won’t be charged, I’d be nervous about even ‘hard to get conviction’

  3. bearcreekbat 2022-07-28 10:11

    I fully appreciate the optimistic thought that “the chances for conviction are thin” in a 1st degree murder charge based on an unauthorized abortion. As our friend Bob Newland has frequently observed and argued, “jury nullification” is certainly something a juror can do. Any juror may lie during voir dire and promise to enforce the law as instructed by a judge, but then disagree with the law and vote to acquit despite overwhelming evidence of guilt from the prosecution. And it would only take one juror to break his or her oath and vote against conviction to create a hung jury. Since an acquittal takes a unanimous vote, however, it seems doubtful that a defendant could be fortunate enough to end up with 12 jurors that would vote to nullify the 1st degree murder law even though they recognized that the prosecution had proved all the required elements beyond a reasonable doubt.

    And I tend to agree with Newland’s frequently expressed viewpoint that jury nullification should be considered a constitutional right, yet, to the best of my knowledge current criminal law disagrees. Under existing law defense counsel and the defendant are prohibited from even mentioning the term, let alone arguing for nullification based on the statute’s unfairness. Thus, any honest juror that expressed his or her belief in a right to nullify a criminal statute would likely be stricken by the Judge from the jury for cause. Thus, as noted above, to obtain the hung jury based on jury nullification a defendant would need one or more jurors to lie during voir dire, which is certainly a possibility.

    Finally, it should be noted that once a jury hangs, the judge will declare a mistrial. Unfortunately this does not implicate the double jeopardy protection, thus the prosecutor may start over with a brand new trial and try again for the conviction of the same defendant or defendants. That could get expensive and painful to any woman or medical provider charged with 1st degree murder for participating (obtaining or committing the abortion or aiding, abetting, or advising the commission of the abortion) in an unauthorized abortion. Thus, it seems that the “thin chances” for conviction, to the extent it is likely or even possible, is really not much of a panacea after all.

    To the extent the homicide laws cover unauthorized abortions, this is simply a terrible law that ought to be immediately repealed or amended.

  4. bearcreekbat 2022-07-28 11:07

    Cory’s analysis is also optimistic, but would rely on a difficult legal theory As I understand Cory’s argument, he contends the adoption of South Dakota’s trigger law creating the class 6 felony has either implicitly amended or repealed parts of South Dakota’s homicide statutes. A similar theory was adopted to find an implicit repeal of a manslaughter law in a 1957 Idaho case, State v. Davidson,78 Idaho 553 (Idaho 1957),

    https://casetext.com/case/state-v-davidson-119

    It is definitely worth trying to convince the South Dakota Supreme Court that such an implicit repeal occurred if a defendant is charged and convicted of 1st degree murder for an unauthorized abortion, especially if the jury sentences the defendant to death rather than only mandatory life in prison.

    There are a couple problems, however, with this theory.

    First as Jay Davis points out, if the new trigger law “is clearly aimed at the doctor or medical provider, not necessarily the pregnant woman who desires the abortion,” then that leaves the woman to be punished with another statute, namely one of the homicide statutes. If the trigger law doesn’t even address the woman’s conduct in obtaining an unauthorized abortion, then it wouldn’t repeal another criminal statute that does address her conduct, such as the 1st degree murder statute.

    Next, repeal by implication is disfavored and if two statutes can be reconciled by the courts then there is no repeal by implication. And as I pointed out in previous posts, a legislature can imposed two different punishments fort the same single act if it intends to address two distinct wrongs. Here, the court could conclude that killing an unborn child is a seperate and distinct wrong, from assisting a woman with an abortion.

    Implicit repeal, also referred to as repeal by implication, occurs when a legislative act conflicts with an existing law but the legislature did not explicitly repeal the existing law. While the later act supersedes the existing ones, effectively repealing it, courts generally disfavor construing legislative acts to implicitly repeal existing laws. As the California Supreme Court in Penziner v. West American Finance Co. explained, “[t]he presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon.” The court continued in requiring that, to find implicit repeal, “the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.”

    https://www.law.cornell.edu/wex/repeal#:~:text=Implicit%20repeal%2C%20also%20referred%20to,explicitly%20repeal%20the%20existing%20law.

    Next, the trigger statute was apparently enacted in 2005. I am unsure when the “unborn child” language was incorporated into the murder statutes, but if this language was added in a similar time period that would weigh against finding that the legislature’s 2005 trigger law implicitly intended to repeal that contemporary portion of the 1st degree murder laws adopted at or near the same time. Perhaps the fetal homicide state at SDCL 22-16-1.1 arguably implicitly repealed the 1st degree murder charge for an abortion, but that too is not all that clear. If it did, then at least this could reduce the to a Class 2 felony, which is only punishable by life in prison rather than by the death sentence.

  5. bearcreekbat 2022-07-28 12:28

    sx123, asks “Can these charges still apply if woman/girl crosses state border for procedure?” Normally in homicide cases the state where the homicide took place has exclusive jurisdiction, so under that rule it would seem that SD could not charge the woman/girl with homicide.

    South Dakota, however, has a statute that also could create legal issues. ,SDCL 22-3-9 reads:

    Any person who, while out of the state, causes, aids, advises, or encourages another person to injure any person or property in this state by means of any act or neglect which is a crime in this state, is liable to punishment under the laws of this state.

    This statute’s applicability would depend on how the South Dakota Supreme Court interpreted “person or property in this state.” If the Court ruled that the injury had to be inflicted within the borders of South Dakota, this statute probably would not apply. But if the Court ruled that it didn’t matter where the injury was inflicted so long as it happened to an “unborn child” that was from South Dakota, then all bets are off.

  6. Cory Allen Heidelberger Post author | 2022-07-28 13:52

    I appreciate BCB’s great caution in letting any optimism prevent us from recognizing any real danger women might face under South Dakota’s at best inconsistent and at worst tyrannical laws. I really appreciate the point BCB makes about how the apparent focus of the trigger law on the abortion provider and not on the pregnant women may leave women open to the default setting of charging them with first-degree murder.

    However, women may be “protected”—at least from first-degree murder/Class A felony charges—by SDCL 22-16-1.1 (and forgive me, BCB, if we’re replowing ground we’ve already covered), which defines fetal homicide, sets a penalty, and excludes abortion. Here’s the full text of SDCL 22-16-1.1:

    Homicide is fetal homicide if the person knew, or reasonably should have known, that a woman bearing an unborn child was pregnant and caused the death of the unborn child without lawful justification and if the person:
    (1) Intended to cause the death of or do serious bodily injury to the pregnant woman or the unborn child; or
    (2) Knew that the acts taken would cause death or serious bodily injury to the pregnant woman or her unborn child; or
    (3) If perpetrated without any design to effect death by a person engaged in the commission of any felony.
    Fetal homicide is a Class B felony.
    This section does not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.

    I know, this may still be sloppily written law open to interpretation. But I would contend that once again, the Legislature indicated its clear intent to treat abortion, lawful or unlawful, as something other than homicide. This statute makes clear that the Legislature intends that we view assaulting a woman and terminating her pregnancy against her will as a more grave act than assisting a woman in her expressed desire to terminate her pregnancy. This statute even says fetal homicide isn’t quite as bad as homicide of a person outside the womb: fetal homicide is only a Class B felony, not Class A, not a capital offense.

    When the plain language of the statutes do not make clear what the court must do, we must look at the big picture the statutes and their Legislative history create. The 2005 trigger law plus the fetal homicide law (written in 1995) indicate that even now in Gilead, South Dakota law does not view abortion, a medical procedure to which a woman consents to terminate her pregnancy, as murder. Neither the erstwhile pregnant woman nor any doctor, nurse, pharmacist, or other person whom she authorizes to help her terminate that pregnancy, should be charged with murder.

  7. bearcreekbat 2022-07-28 15:29

    In my view, Cory’s point about the fetal homicide statute at SDCL 22-16-1.1 is the strongest legal argument that the 1st degree murder statute’s Class A felony (mandatory life or death sentece) for terminating a pregnancy from the has been implicitly repealed or superceded with a Class B felony (life sentence). Sidestepping the plain language of a statute by resort to legislative history is normally limited to situatiuons where the plain language of a statute is ambiguous, or where implimentation of the plain language leads to an absurd result. See, e.g, Food Marketing Institute v. Argus Leader Media, 18-481 (SCOTUS 06/24/2019)

    In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. . . . Where, as here, that
    examination yields a clear answer, judges must stop. Even those of us who sometimes consult legislative history will never allow it to be used to “muddy” the meaning of “clear statutory language.”

    https://www.supremecourt.gov/opinions/18pdf/18-481_5426.pdf

    Meanwhile, I have to be away from both internet and cell phone service until late Sunday or Monday, but am anxious to discuss these issues further with anyone interested.

  8. Cory Allen Heidelberger Post author | 2022-07-28 18:14

    Dang—we’ll miss your input, BCB.

    The language of each statute seems clear, but we can’t read just one statute and stop, as Justice Gorsuch’s 2019 opinion above appears to command. We have to read all of the relevant statutes, and that reading reveals language that conflicts with itself. (Justice Gorsuch refers to the “structure” of the law, which I hope includes looking at how each statute fits into the complete structure of South Dakota criminal law.) That’s why I’m making such a big deal out of Legislative history. I don’t want to sidestep plain language of statute; I want to untangle the apparent contradictions into a coherent picture of what the Legislature meant for us to do, which punishment the Legislature expected us to apply.

    And since we’re talking about saving women from facing the death penalty for exercising what ought to be a basic human right, we’re called upon to take as carefully comprehensive of a view as possible.

    If I need to invoke an absurd result to escape Justice Gorsuch’s early stop, then I’ll point to the fetal homicide law, which says consensual abortion, lawful or unlawful, is not a Class B felony for anyone involved, then to the 2005 trigger law, which only clearly says the provider/practitioner is to be punished with a Class 6 felony and specifies no penalty at all for the pregnant women consenting to the abortion, and then to first-degree murder statutes, which say killing an unborn child is a capital offense for whoever does it (and still doesn’t clearly implicate the consenting woman unless maybe she takes the mifepristone or—shame on us for forcing her into this dread situation—resorts to the coathanger to perform her own abortion). It strikes me as absurd—and I hope it will so strike the court as well—that performing an abortion is not fetal homicide, is barely a felony, but is also grounds for the death penalty.

    (I still need to grapple with BCB’s contention that we can prosecute a person on multiple charges for a single act. I’m not sure yet how to respond to that point. Perhaps I can trick BCB into devilishly advocating against his own point for me?)

    I will also admit my political/rhetorical bias in making this point. I’ve staked a lot on my argument that when conservatives campaign on the slogan, “Abortion Is Murder!” they don’t really mean it. Frighteningly, some Republicans are showing that they do mean it and are willing to charge women with murder for abortion (or at least create that fear as an additional chilling effect). However, in South Dakota, every time the legislature has had the opportunity to categorize abortion as a Class A felony, they have backed away. They explicitly exempted consensual abortion from the fetal homicide law (which itself only goes to Class B, which further establishes that the South Dakota Legislature recognizes some difference between killing a fetus and killing a real live human being). They set the penalty in the 2005 trigger law for performing an abortion—terminating a fetus with the mother’s consent—as the least felony, Class 6. Even in its most draconian practical pronouncement against abortion, the trigger law, the Legislature has declined to effectively treat abortion as murder.

    Legislators have written every law on this topic to shield women from charges of murder. That intent and the resulting language disprove Republicans’ common slogan, but more importantly, that intent and language should prevent any overzealous prosecutor from filing charges based on a slogan and not on the law.

  9. Jenny 2022-07-28 18:58

    I’m sure there will be an underground railroad to MN to get poor pregnant SD women without means to the abortion doctors they need.
    In the meantime, leave these poor women alone you radical SD nuts and stay out of MN if you come here causing trouble for these women. Our AG Keith Ellison and Governor Tim Walz will make sure all women are protected.

    Stand up for Women’s Rights and Freedom…..Vote Blue in November

  10. Jake 2022-07-28 21:09

    Oh Lord, when do we become a “person” to you? When sperm enters egg, or when You deliver us from the womb?

  11. bearcreekbat 2022-08-02 01:20

    After some more thought this weekend I have changed my opinion about Cory’s argument that the trigger statute (SDCL 22-17.5.1) or the fetal homicide statute (SDCL 22-16-1.1) somehow implicitly repealed the term “unborn child” from the 1st degree murder statute (SDCL 22-1-4). Instead, it appears both the trigger statute and the fetal homicide statute simply created additional crimes that could be charged along with 1st degree murder for the killing of a fertilized egg, blastocyt, zygote, embyro, or fetus (i.e an “unborn child” as defined by South dakota statute). Thus, unfortunately Cory’s implicit repeal arguments seems to be entirely misplaced.

    There are only two ways to kill a fertilized egg, blastocyt, zygote, embyro, or fetus: Category 1 – with the consent of the female carrying the fertilized egg, blastocyt, zygote, embyro, or fetus by an abortion; or Category 2 – without the consent of the female carrying the fertilized egg, blastocyt, zygote, embyro, or fetus by inflicting some sort of assault on the female’s body that causes an involuntary miscarriage.

    South Dakota’s 1st degree murder statute (SDCL 22-16-4) covers both categories in all cases where the act causing the abortion or miscarriage was not lawful and classifies the crime as a Class A felony. Under Roe states like South Dakota had authority to regulate and in certain cases out law abortions during the 2nd and 3rd trimesters, thus, an pre- Roe repeal unlawful abortion would constitute 1st degree murder under SDCL 22-1-4.

    And for killings in Category 2 of 1st degree murder there is no element requiring proof that the defendant knew the female was pregnant for a 1st degree murder conviction.

    The fetal homicide statute (SDCL 22-16-1.1) covers only Category 2 killings resulting from unlawful and nonconsensual assaults on the female’s body that cause an involuntary miscarriage, making such a crime a Class B felony. In constrast to 1st degree murder, the fetal homicide statute does require proof that of the additional element that the defendant knew the female was pregnant, which distinguishes it from 1st degree murder and thus makes it a seperate and distinct offence.

    The trigger law statute (SDCL 22-17-5.1) does not require proof of the element of killing a fertilized egg, blastocyt, zygote, embyro, or fetus. Instead, that statute requires only proof that the defendant “administers to any pregnant female or who prescribes or procures for any pregnant female any medicine, drug, or substance or uses or employs any instrument or other means with [the] intent thereby to procure an abortion.” Thus, this too is a seperate and distinct crime that can be charged along with 1st degree murder.

    Since all three statutory crimes have at least one different or additional element from the other statutory crimes, it seems clear that a defendant can be convicted of more than one crime for each killing of a fertilized egg, blastocyt, zygote, embyro, or fetus without authority of law. For Category 1 offenses a defendant can be convicted of 1st degree murder (a Class A felony) and of violating the trigger statute (a Class 6 felony), and be sentenced to multiple punishments based on each statute. And for Category 2 offenses a defendant can be convicted of 1st degree murder (a Class A felony) and of fetal homicide (a Class B felony), and be sentenced to multiple punishments based on each statute.

    This is usually referred to as the so-called Blockburger test of whether there are different or additional elements from the SCOTUS case Blockburger v. United States:

    Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

    https://www.law.cornell.edu/supremecourt/text/284/299

    The South Dakota Supreme Court applies applies this seperate elements test:

    . . . These are two separate crimes, containing separate elements, albeit presumably arising from the same conduct by Weaver. “Established double jeopardy jurisprudence confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.”

    https://law.justia.com/cases/south-dakota/supreme-court/2002/976.html

  12. mike from iowa 2022-08-02 08:49

    Is boxing/mixed martial arts legal in South Duhkota? Are pregnant women banned from either pursuit? A solid punch/kick to the tummy can cause a miscarriage, am I right?

  13. bearcreekbat 2022-08-02 10:56

    mfi, while your questions reasonably might be considered facetious, they do raise serious additional questions. First, it appears that none of the 3 above statutes probably criminalize a woman that knowingly engages in boxing/martial arts in an effort to cause her own miscarriage. 1st degree murder wouldn’t apply because engaging in boxing/martial arts is not an unlawful act. Neither the fetal homicide statute nor the trigger law statute appear to cover conduct by the pregnant woman, thus neither would seem to apply.

    Next, however, South Dakota’s abuse and neglect (A&N) statutes could result in a different outcome, as they do criminalize most intentional or negligent conduct by any adult that can result in harm to a “child.” While these A&N statutes do not explicitly include the term “unborn child” in the text of the statutes, it seems entirely possible the a South Dakota court could interpret the term “child” to include “unborn child.” That said, I have not found any state cases ruling one way or another on this issue, but there is one reported 2014 federal case that has ruled South Dakota abuse and neglect statutes do not protect an “unborn child.”

    ABERDEEN, S.D. (AP) — A child abuse case against a South Dakota woman has been thrown out after a federal judge ruled that abuse and neglect laws don’t apply to unborn children.

    The Aberdeen American News reports the judge granted the dismissal in favor of 26-year-old Marissa Sitting Dog following recommendations from a federal magistrate.

    The McIntosh woman had been charged with federal felony child abuse after authorities accused her of consuming alcohol and using marijuana while she was pregnant. Her child was born in 2013.

    Records show a physician told investigators he was relatively certain that Sitting Dog’s child had fetal alcohol syndrome judging by the child’s facial deformities.

    The magistrate wrote unborn children aren’t included in South Dakota’s definition of “minor” under the statute that defines the offense of child abuse.

    https://www.argusleader.com/story/news/2014/10/02/judge-abuse-laws-apply-unborn-children/16606655/

    This decision would not be binding on a state court, but would seem to constitute some authority against a criminal prosecution for child abuse of the pregnant lady hypothetical you present. Thus, unless a state court rejected the reasoning of this federal decision, it doesn’t appear that a pregnant woman could be charged with a crime for engaging in boxing/martial arts even if she intended to cause her own miscarriage.

  14. mike from iowa 2022-08-02 11:36

    BCB, I am/was entirely serious. Maybe, just maybe, we will get some finality on how much government intrujsion into women’s rights magats are prepared to go to save every fetus. The very fetuses who are forced to be born, but won’t be supported after birth by these same monsters.

    I think all of the posters here appreciate your in depth knowledge of state and federal laws. Voice of reason, too.

  15. Cory Allen Heidelberger Post author | 2022-08-02 13:19

    I worry that part of the problem here could be that we are rational people trying to figure out the exact meaning of statutes written and approved by some irrational legislators who sometimes do not attend to details.

    BCB, has any South Dakota prosecutor taken the route you lay out and charged any suspect with both fetal homicide and first-degree murder for the killing of a single fetus?

  16. bearcreekbat 2022-08-02 14:40

    Cory, I found a news story that suggests an man was charged in 2021 with both crimes, but can’t say for sure:

    https://www.dakotanewsnow.com/video/2022/07/25/knoxville-man-arrested-after-either-striking-or-dragging-pregnant-woman-with-car-killing-unborn-child-kpd-says/

    The reporter seems to say the man was charged with fetal homicide and 1st degree felony murder, but the news blurb is pretty short so I may have misunderstood it. The story doesn’t say exactly where the killing took place so I am only assuming it was in South Dakota because it was reported by “dakotanewsnow,” which appears to be a Sioux Falls source.

    Another case was reported indicating a man was charged with 3 counts of 1st degree murder in 2021 in Milbank, SD, for the killing of a husband, wife, and unborn child, which seems to confirm that the “fetal homicide” statute did not replace or implicitly repeal the 1st degree murder statute.:

    https://www.dakotanewsnow.com/2021/12/17/milbank-man-charged-with-killing-2-adults-unborn-child/

  17. Donald Pay 2022-08-02 15:01

    Legal question: can a fetus sue? Let’s say there’s a question about certain chemicals affecting fetal life, or affecting life after the fetal stage (ie., a born-first fetus, otherwise called an “infant”). Can a fetus sue under citizen suit provisions of the Clean Water Act to ensure appropriate standards and regulation of these chemicals? Can the mother initiate the suit on behalf of her fetus?

  18. jerry 2022-08-02 15:08

    The fetus is not a corporation…or is it? Now if the fetus incorporates with an investor or investors, then all bets are off. What happens if the fetus comes from a sperm bank? What liability would a paid surrogate have if something goes wrong? Should that be disclosed when hired to be a surrogate?

  19. Cory Allen Heidelberger Post author | 2022-08-02 15:18

    That Knoxville story is Tennessee (KSFY runs various filler stories from the national wire).

    The Milbank story: interesting: two dead adults, one dead fetus, but indicted on six counts, three for first-degree murder, three for second-degree murder. It appears the second-degree counts are alternatives for the jury, depending on what they conclude from the evidence. The prosecutor can bring both charges, but the jury can only apply one or the other; am I reading that right?

    The Milbank charges are under 22-16-4 and 22-16-7. There’s no mention of 22-16-1.1, fetal homicide.

  20. bearcreekbat 2022-08-02 15:21

    Donald, I am unsure about a lawsuit under the Clean Water Act, but the SD Supreme Court recently issued and advisory opinion holding that “a cause of action exists in South Dakota for the wrongful death of a nonviable unborn child.” This was based on allegations that a pregnant woman ate contaminated food that caused a miscarriage. This certainly would seem to imply that an unborn child would be entitled to legal protection from contaminated water. Just as a child can only sue through a guardian ad litem, if an unborn child has the right to seek relief in court it would also presumably have to do the same, such as suing through its mother.

    https://ujs.sd.gov/Supreme_Court/opiniondetail.aspx?ID=818

  21. bearcreekbat 2022-08-02 15:28

    Cory, thanks for clarifying the KSFY story.

    On the 1st and 2nd degree murder charges, you are right that a defendant can only be convicted on one or the other since by statute 2nd degree murder is a lessor included offense to 1st degree murder (SDCL 22-16-20.1). Interestingly, the legislature did not make fetal homicide a lesser included offence to any other murder or homicide charge, again suggesting that a conviction and sentencing under each statute remains a real legal possiblity.

  22. mike from iowa 2022-08-02 15:39

    If magats are so worried about every fetus, why don’t they commandeer each fetus at 6 weeks and nurture them in an incubator at Fox News so tbey will be brainwashed already when they learn to speak?

  23. mike from iowa 2022-08-02 15:47

    Knoxville Police Department – TN
    July 25 at 1:46 PM ·
    Payton McCarty, 26, Indicted for Felony Murder, Other Charges

    ——-

    Payton McCarty, 26 of Knoxville, was taken into custody today after he was indicted by a Knox County Grand Jury last week for felony murder, vehicular homicide, aggravated assault and attempted kidnapping.

    On June 16, 2022 at around 2:45 a.m., Knoxville Police Department officers responded to the 100 block of Atlantic Avenue, where a pregnant 27-year-old woman was found in the laying in the road with life-threatening injuries. The woman was transported to the UT Medical Center, where the victim’s unborn child died.

    The investigation revealed that the victim and McCarty, the father of the unborn child, were involved in a domestic dispute of some kind when McCarty either struck or dragged the victim with his car and then fled the scene. At the time of the incident, the fetus had developed to the point that it was considered viable absent of exigent circumstances by medical professionals. The victim, meanwhile, remains hospitalized and is continuing to receive extensive treatment for the injuries she sustained in the assault.

  24. mike from iowa 2022-08-02 15:52

    Here is another case with a fetal homicide charge tossed in….

    By Julia Huffman, Dustin Vogt and Andrew McMunn
    Published: Jul. 28, 2022 at 12:04 PM CDT
    LOUISVILLE, Ky. (WAVE/Gray News) – A Kentucky man is facing murder charges after a pregnant woman was shot and killed Sunday night.

    Calls came in around 9 p.m. to respond to a location in Louisville for a report of a shooting, according to officials with the Louisville Metro Police Department.

    Once there, officers found 20-year-old Darriona Jones shot. She was taken to a hospital where she later died, WAVE reported.

    Officials confirmed on Monday that Jones was pregnant.

    Police arrested 21-year-old Devin Minor and charged him with murder, fetal homicide and intimidating a participant in the legal process.

    Minor appeared in court Tuesday where a judge placed his bond at $1 million full cash. His next court date is scheduled on Aug. 3.

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