Can One Injure an Unborn Child?

By Courtney Butler

In People v. Lage, the Colorado Court of Appeals was faced with one of the hottest topics in the current legal world: When is an unborn child injured in the womb considered a “person” or “child”?  Defendant, speeding to evade a police officer, swerved into oncoming traffic and caused a head-on collision.  The driver of the other vehicle was eight and one-half months pregnant.  Although delivered alive through an emergency cesarean section, the infant died approximately one hour later due to the blunt force trauma from the collision.

Charged with seven counts arising out of the child’s death or injury, the Defendant argued that, when the injuries were inflicted, the unborn child was not a “person” or “child” under the applicable statutes.  The trial court agreed, dismissing all charges relating to the unborn child.  The Colorado Court of Appeals reversed in part and affirmed in part.

The Defendant was charged with three homicide counts: extreme indifference first degree murder (C.R.S. § 18-3-102(1)(d)), reckless vehicular homicide (C.R.S. § 18-3-106(1)(a)), and driving under the influence vehicular homicide (C.R.S. § 18-3-106(1)(b)(I)).  The Colorado homicide statute defines “person” as “a human being who had been born and was alive at the time of the homicidal act.”  C.R.S. § 18-3-102(2).  The Court of Appeals employed a statutory construction analysis, ultimately agreeing with the trial court that the statute was clear and unambiguous.  Because the child was not born at the time of the homicidal act, the child was not a “person” under the statute, and the Defendant could not be charged with homicide for the death of the child.

The Defendant was also charged with four “non-homicide” offenses.  First, the Court of Appeals rejected the trial court’s use of the in pari materia doctrine in relation to those offenses, deciding instead that that the General Assembly did not intend for the definition of “person” in C.R.S. § 18-3-101(2) to apply to non-homicide offenses.

The Court of Appeals then analyzed each of the four non-homicide counts.  First, it reversed the trial court’s dismissal of the counts of reckless vehicular eluding resulting in death (C.R.S. § 18-9-116.5) and careless driving resulting in death (C.R.S. § 42-4-1402).  Looking at the plain meaning of those statutes, the Court of Appeals determined that a child who was unborn at the time of the offense, was then born alive, and later died because of the offense could be a “victim” under those statutes.  The Court ultimately reversed the trial court’s dismissal of those two counts because the Defendant’s underlying offense was completed prior to the birth and later resulted in the death of the child.

Finally, the Court of Appeals considered the counts of reckless child abuse resulting in death (C.R.S. § 18-6-401(1)(a), § (7)(a)(I)) and under the influence vehicular assault (C.R.S. § 18-3-205(1)(b)(1)). Reversing the trial court, the Court of Appeals held that a child unborn at the time of injury, but who was later born and survived, could be a victim under those statutes.  The Court first looked to the current statutory definitions of “person” and “child.”  It determined that the definitions generally applicable to all statutes were not applicable here and that the general and legal definitions of the terms offered no guidance. Thus, the Court was forced to revert to the common law “born alive” doctrine, which allows prosecution of a perpetrator when a child is born alive and then dies from prenatal injuries.  Although Colorado has abolished common law crimes, the Court still noted that the common law can aid in construing the Criminal Code.  Combining that analysis with a look to the civil law context, where a child injured in the womb who died after a live birth was deemed a “person” under the wrongful death statute, the Court ultimately concluded that the terms “child” in C.R.S. § 18-6-402(1)(a) and § (7)(a)(I) and “person” in C.R.S. § 18-3-205(1)(b)(I) included a fetus injured in the womb who was then born alive and later died from the prenatal injuries.