Just need a chance to vent

[StarOfAfrica2]

Ok, here's the story.  Sometime back a local woman was convicted of Manslaughter in the death of her baby.  She's a Meth addict, and continually used during her pregnancy, knowing full well what it could do.  The baby was born alive, had severe problems, and died as a result of damage caused by the Meth while it was still a fetus, AND from breastfeeding after birth (still using Meth).  

Fast forward to a month or so ago, the appeals reach the state's SC.  

Fast forward to this week.  The Hawaii SC overturned her conviction, on the basis that Hawaii has no law regarding the legal status of a fetus, and since a fetus is not recognized as a "person" under state law, she could not be charged with its death.  Furthermore, by extrapolation, no pregnant mother can be prosecuted for harmful prenatal conduct in this state.

Somebody needs their damn heads examined.  I mean really.  But oh, it gets better.  Just imagine the potentials for this.  I came up with quite a few on my own, but then this morning I read the editorial page of the local paper (normally about as liberal as you can get, and at the end they return to form) and they managed to make my personal concerns over this ruling look like nothing.

THE state Supreme Court's reversal of the manslaughter conviction of a woman for her newborn son's death resulting from her addiction to crystal methamphetamine clarifies the state's law regarding prenatal misconduct. However, it opens other issues, including misconduct by another person against a pregnant woman resulting in the post-birth death of the child she was carrying.
Without dissent, the high court overturned the conviction of 32-year-old Tayshea Aiwohi of Kaneohe for the death of her son two days after his birth four years ago. She admitted to smoking crystal meth in the days leading up to the birth and said she breast-fed the baby several times. Aiwohi pleaded no contest to the manslaughter offense, including a sentence of 10-year probation, on the condition that she be permitted to appeal the case.

According to Hawaii's penal code, manslaughter is committed if a person "recklessly causes the death of another person." A person is defined as "a human being who has been born and is alive." Thus, Aiwohi's smoking of "ice" during her pregnancy was not a crime; the court did not address whether breast-feeding contributed to the baby's death.

Courts in most states have similarly rejected prosecution of a mother for prenatal conduct causing harm or death to her subsequently born child, although the U.S. Supreme Court last year refused to consider overturning the murder conviction of a South Carolina cocaine addict for the stillbirth of her son.

At the same time, most states allow prosecution of a person for violence against a pregnant woman resulting in the death of her child after birth. Thirty-four states have "fetal homicide" laws allowing prosecution of a person for causing the death of a fetus. Most infamously, Scott Peterson faces the death penalty in California for his conviction of two counts of murder for the deaths of his wife, Laci, and their unborn child. Hawaii has no such law.

In a footnote to the Hawaii court's opinion, Justice Paula Nakayama wrote that "the logical implication" from the Aiwohi ruling is that a person who attacks a pregnant woman, causing the child's death after birth, "also cannot be prosecuted (for the child's death) under the manslaughter statute, inasmuch as the Legislature has not included fetuses within the definition of the term 'person.'"

Nakayama suggests that the Legislature assess what "may be significant policy implications and social ramifications surrounding the present issue."

If Hawaii legislators follow the advice, they will be entering a controversial area. While it seems inconsistent to draw distinctions between a person's conduct toward a pregnant woman and the conduct of the pregnant woman herself, or between conduct resulting in stillbirth and that resulting in post-birth death, the distinctions are central to the issue of abortion rights. Tread carefully.

I'm not even going to start on the abortion issue, but they just HAD to end it that way.  Here I thought they had gotten some SENSE over there, and they are concerned lawmakers will OVERREACT AND TREAD ON ABORTION RIGHTS ISSUES?????  WTF IS "ABORTION RIGHTS"????  I didnt see the right to have an abortion in the Bill of Rights.  Never mind, shutting up.  I just needed someplace to vent before I start punching stuff.

[Seagoon]

SOA,

While I sincerely sympathize with your frustration over this decision, I am forced to admit that the Hawaii SC decision was logically consistent with the presumptions we as a society have regarding pre-born children. In fact, its not the Hawaiian decision, but the decision in the Peterson trial that is horribly inconsistent.

If the life of a child can be legally taken by his mother, or someone in her employ, at any point prior to his birth merely because she chooses to do so, then how on earth can we prosecute for manslaughter if the same mother "unintentionally" takes the life of that same child? It would be roughly equivalent to charging troops with manslaughter if their weapon accidently discharged and caused the death of an enemy combatant.

If I may legally intentionally kill my child in the womb (or as he is born) then it is legally inconsistent to say that it is illegal to unintentionally kill the same child. This is because the child under Hawaiian law has no rights whatsoever prior to the successful completion of his birth. He is not a person, technically he has fewer legal protections than an eagle's egg.

So frustrating as it is, this is the price of our presuppositions.

[fartwinkle]

Originally posted by Seagoon
SOA,

While I sincerely sympathize with your frustration over this decision, I am forced to admit that the Hawaii SC decision was logically consistent with the presumptions we as a society have regarding pre-born children. In fact, its not the Hawaiian decision, but the decision in the Peterson trial that is horribly inconsistent.

If the life of a child can be legally taken by his mother, or someone in her employ, at any point prior to his birth merely because she chooses to do so, then how on earth can we prosecute for manslaughter if the same mother "unintentionally" takes the life of that same child? It would be roughly equivalent to charging troops with manslaughter if their weapon accidently discharged and caused the death of an enemy combatant.

If I may legally intentionally kill my child in the womb (or as he is born) then it is legally inconsistent to say that it is illegal to unintentionally kill the same child. This is because the child under Hawaiian law has no rights whatsoever prior to the successful completion of his birth. He is not a person, technically he has fewer legal protections than an eagle's egg.

So frustrating as it is, this is the price of our presuppositions.

Then explain what happends when say someone shoots a pregnant woman and either the fetus , mother and or both die.
It's called a double homicide and you can be convicted of double murder.

At the very least she needs her tubes tied.

[capt. apathy]

as much as it sucks, it seems a reasonable decision.

if their is no law making it a crime how can you have a valid conviction on a charge that isn't a crime?

now they just need to fix the problem and pass the appropriate law so the next one doesn't get away with it.

BTW- I can't be the only one who has noticed that it's only called a fetus (or a zygote [sp?] in Europe I guess) when someone wants to get away with killing it.  when it's birth is eagerly anticipated, when she feels it kick or when a woman mis-carries  it's always a baby.  only the unwanted ones are fetus's.

[StarOfAfrica2]

Like the prosecutors, I focus on the 2 days that baby was born and alive, fulfilling the state's reqiurements.  She admitted breast feeding that baby with Meth in her system.  She plead no contest to the original charges.  She knew exactly what she did.  And then she had the gall to claim that the damage was prenatal, and that her own child was "not a person" before his birth.  

Legally maybe.  Does it take a rocket scientist to realize how wrong that is, regardless of legality?

[midnight Target]

Originally posted by StarOfAfrica2
Like the prosecutors, I focus on the 2 days that baby was born and alive, fulfilling the state's reqiurements.  She admitted breast feeding that baby with Meth in her system.  She plead no contest to the original charges.  She knew exactly what she did.  And then she had the gall to claim that the damage was prenatal, and that her own child was "not a person" before his birth.  

Legally maybe.  Does it take a rocket scientist to realize how wrong that is, regardless of legality?

And here all this time I thought "activist judges" were bad. Seems to me they ruled on the law. Now you want them to go beyond it cause "it's right". Can't have it both ways.

[Seagoon]

Howdy FW,

Originally posted by fartwinkle
Then explain what happends when say someone shoots a pregnant woman and either the fetus , mother and or both die.
It's called a double homicide and you can be convicted of double murder.

At the very least she needs her tubes tied.

I made the comment that the Peterson decision (which was hotly contested by groups like NOW because of its implications) was inconsistent with current law.

Logically speaking, if Lacey could have legally ended the life of her child prior to its birth or paid someone else to do it precisely because it is not yet a person and has no rights under the law, then it is impossible for Scott Peterson to have murdered his pre-born child. It is impossible to murder a non-person.

The problem is that as a society we want it both ways, we want it to be a person when an evil sociopath like Scott Peterson kills it, and we want it to be a non-person when its mother makes the "choice" to kill it. We don't want a hard and fast definition of personhood, but a maleable one that arbitrarily shifts according to our desires.

Personally, I strongly believe that they are all persons, endowed by their creator with the right to life at conception, and that intentionally ending that life is violation of the 6th commandment. The law of the USA agrees with me at certain points (as in the Peterson decision) and disagrees at even more.

Frankly we are legally all over the map because we have no desire to be ruled by an absolute standard. So the "right" to life belongs only to those able to seize it for themselves, and it can be lost by those same individuals when they no longer have the strength to safeguard it. Which is of course, the law of the jungle.

How proud we must be that we've managed to finally get "back to (fallen) nature" after so many centuries of enduring irritations like religious ethics and civilization.

[midnight Target]

Originally posted by Seagoon
Logically speaking, if Lacey could have legally ended the life of her child prior to its birth or paid someone else to do it precisely because it is not yet a person and has no rights under the law, then it is impossible for Scott Peterson to have murdered his pre-born child. It is impossible to murder a non-person.

If you take a sledge hammer to your own car it is not a crime... but if Scott Peterson did it to your car... well.

[Sandman]

Nevermind that Peterson was screwed. No cause of death and no murder weapon.


Please... continue.

[Seagoon]

Hi MT,

Originally posted by midnight Target
If you take a sledge hammer to your own car it is not a crime... but if Scott Peterson did it to your car... well.

Where to begin...

First, a car is an inanimate object, it has no rights of its own. You as its owner have rights regarding the car. If I destroy your car, I have committed a crime against you, not the car.

Scott Peterson's double conviction however did not rest on the theory that he had destroyed someone else's property. It rested on the idea that he had committed two crimes against two people. First he had illegally taken the life of his wife, a crime against her, and second that he had illegally taken the life of his child, a crime against him. If the child had legally been considered "the property" of Lacey, it would have been two crimes against Lacey, one of murder and another lesser included charge.

In the double murder conviction, Scott's child was considered a person and thus endowed with the right not have his life taken. In the Hawaiian case, the appeals court decided that the child was a non-person and thus had no more rights than any other inanimate object. The legal "right" to abortion rests on this presupposition that pre-born children are, like your car, objects without rights of their own. Therefore, they cannot be "murdered" by Lacey, Scott, you, me, or anyone else. That is why NARAL and other Abortion defense groups are so incensed by the Peterson decision and "Fetal Homicide" bills. The last thing they want is the acknowledgment that a pre-born child has rights of their own.

- SEAGOON

[fartwinkle]

Originally posted by Seagoon
Howdy FW,

 

I made the comment that the Peterson decision (which was hotly contested by groups like NOW because of its implications) was inconsistent with current law.

Logically speaking, if Lacey could have legally ended the life of her child prior to its birth or paid someone else to do it precisely because it is not yet a person and has no rights under the law, then it is impossible for Scott Peterson to have murdered his pre-born child. It is impossible to murder a non-person.

The problem is that as a society we want it both ways, we want it to be a person when an evil sociopath like Scott Peterson kills it, and we want it to be a non-person when its mother makes the "choice" to kill it. We don't want a hard and fast definition of personhood, but a maleable one that arbitrarily shifts according to our desires.

Personally, I strongly believe that they are all persons, endowed by their creator with the right to life at conception, and that intentionally ending that life is violation of the 6th commandment. The law of the USA agrees with me at certain points (as in the Peterson decision) and disagrees at even more.

Frankly we are legally all over the map because we have no desire to be ruled by an absolute standard. So the "right" to life belongs only to those able to seize it for themselves, and it can be lost by those same individuals when they no longer have the strength to safeguard it. Which is of course, the law of the jungle.

How proud we must be that we've managed to finally get "back to (fallen) nature" after so many centuries of enduring irritations like religious ethics and civilization.

Kinda the way I see it too seagoon a life is a life unborn or born its still a life.
But you know all the feminist"im pissed cause i was born without a noodle"
skanks want to right to lay on there back and part there legs like the red sea
and then if they get knocked up its a big OOPPS!

I dont want no babies so please help me mutilate my unborn child so I can
go along with my life.

Some of the laws in America are more two faced tha old GW himself.

[midnight Target]

OK, bad example... except Scott's child was 8 months along. Completely viable outside the womb.

[nirvana]

COnsidering it was born alive, it is murder in my opinion.  However, the fetus issue is what the debate about abortion is about.  Are they or are they not humans?  Not trying to troll just pointing it out, until they settle whether a fetus is a human or not, it's gonna be a random decision.

[StarOfAfrica2]

Originally posted by midnight Target
And here all this time I thought "activist judges" were bad. Seems to me they ruled on the law. Now you want them to go beyond it cause "it's right". Can't have it both ways.

I dont want it both ways.  I want it the right way.  The entire argument rested on 2 points.  

#1  When the poisoning happened.  Before birth, after birth, or both.

#2  The legal status of the fetus/baby as a person at those different times.

The defense argues, and the SC reversal of the charges hinges, on the premise that the meth poisoning occured BEFORE birth, and that a fetus has no status as a "person", therefore she cannot be charged with Manslaughter.

Fair enough.  I dont like it, but it's legal.

The woman admits, however, to breastfeeding the baby after it was born.  It obviously didnt exhibit any extreme problems at birth, because they sent both the mother and baby home, and the baby died a day later, 2 days after being born.  She also admits to using meth during the last week of her pregnancy, and after giving birth, during the 2 days the baby was alive and she was breastfeeding him.  She didnt argue this at the start, she plead no contest to the charges.  Only on appeal did she begin to contest this, saying that the baby received its poison during her pregnancy, or at least the fatal amounts of it, thus making her immune to charges.  The prosecutors beleive, and so do I, that because the baby was born, sent home from the hospital as healthy, and died at home, that the woman poisoned her baby through her breastmilk AFTER birth, thus making the baby a "person" when it received the fatal dose of Meth.  Obvioulsy her lawyer was convincing to the SC, but then they dont believe that prosecuting the mother in drug cases that result in the death of a child is constructive.

[Vulcan]

In NZ you can only legally have an abortion in the first 3 months of pregnancy. I think thats a fair approach.

After that I think the fetus would be considered a legal "entity", with rights. Thus after 3 months if the mother did anything to endanger the fetus's life, or anyone else did, then they would legally be responsible for their actions.

In that 3 month period is a grey area.

However, to get an abortion a woman must consult with her GP, and also consult with someone at abortion centre (possibly a shrink) to ensure she is making the right decision, and is aware of it. This is not to put woman off, but ensures that woman aren't being pressured into something they don't want to do, nor are likely to suffer from guilt afterwards. Basically to help her make a proper - not impulsive - decision. This can also be used in cases where a child is clearly not going to be viable. For example, in NZ the mother in this case might have been recommended to have an abortion because of her addiction.

Because of the consultation process if a mother is likely to want an abortion there is a very clear "history" or paper trail of intent. Thus, should a baby die in that first 3 months by non-natural means, ie someone assaulting a pregnant woman, if there was no intent to abort it should be a clear case of manslaughter or murder. I say manslaughter because it could be possible to assault a woman 3 months pregnant without knowing shes pregnant.

I think in the case above the doctors should have recommended an abortion. Its most likely the child could not have been born without severe problems, even if the woman had come off her addiction I'm sure the withdrawal effects on her body would have caused harm if not miscarriage (highly likely if she tried to get off the meth). That to me points the finger less at her and more at the medical professionals that should have pointed her in the right path.