POLL: Should the murderer of a pregnant women be charged with 2 murders?

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Sir Belisarius' legal comments are well taken. It's sort of splitting hairs to say "well, he killed the mother, but he didn't kill the baby. That happened as a result of the mother dying." What nonsense. Arguments about the viability of the fetus notwithstanding, he must have known that if he killed the mother it would kill the fetus / baby too.

I'm pretty sure also that abortions are not permitted in most jurisdictions at the 8 month mark, right? So the involvement of the pro-life / pro choice crowd, while understandable, seems a little bit moot to me.

Going back to whether or not he knew that is actions were going to cause the death of the baby, I'll use an analogy -- if I cut the brakes on someone's car, and he dies in a fiery crash, I can't say "all I did was cut the brakes; I didn't know it would kill him!"

Well, maybe if I have a good enough lawyer I could use that as a defense , but it still makes no rational sense to me. I say forget the arguments on whether the fetus was a person or not and convict him on murder one for the mom and manslaughter on the baby -- with any luck, he spends the rest of his life in jail, with a big, lonely, non-KY jelly using cellmate.

 

Ah, I get it now. It's because of case law. If this case has a certain legal outcome, then this is a new precedent which may be applied to a whole different issue. And in this way be abused to incriminate people who actually legally abort a child and not murder anyone.

Anglo-Saxon Law is weird.

 

Side comment: Disagreed. Anglo-Saxon law is not that bad. Apart from that it's good to realise it's not all about customs, precedents etc - in fact common here means 'common to all', 'universal' rather than 'custom law' or a rule of tradition (contrary to once numerous particular local laws). Common law has evolved from the law used by royal courts in England - the law of Norman kings, royal justice (or laws of the kingdom for protoroundheads ). So it's origins aren't so much far from other European laws - it's only the judicial practice that makes the difference. Well, it's indeed all about judicial practice - in my humble opinion much better than politicians messing things up every few years.

In Polish system for example it would be nearly impossible to charge the guy with two murders in this case and completely impossible for that charge to succeed. Which sucks.

I believe the influence of Roman Law makes some systems view the foetus as a part of woman's body until separated therefore not legally existing until then (nasciturus concept excepted). Hence one murder.

[ April 24, 2003, 01:17: Message edited by: chevalier ]

 

No, No, No, No Chevalier.

I spoke of Anglo-Saxon Law which is weird. But you're right, in Commonwealth countries and in the UK, it works pretty well,

Our Continental law is actually named "common" law too, but we don't use this name anymore. Because we delevoped it in a different way. And it's not only the judical practice that makes the difference, they missed the whole 19th enlightment stuff. That's why they got a death penalty and don't even have minimal rights for children. They put 8-year olds into jail.

Concerning Lawmaking-process: Instead of politicians, they got a mix between judges,politicans and jurors messing things up. It makes a joke out of the reasoning from case to case system, when every pressure group tries to get a gain from any court rouling. That's thrice as bad.

Yes, I am aware that you're a catholic.

If you have this opinion, then change the law in your country.

That's partly correct, partly not. Roman law states, that an unborn child shall be treated as born, if it's born. That's the point on which Belisarius viability is based on. Roman law on the other hand say's nothing about abortion, because making abortion illegal, has only begun in the mid of the 19th to become a trend. Besides, nor does old common law from the middle-ages on till 18th. They saw it in the same way.

[ April 24, 2003, 09:22: Message edited by: Yago ]

 

Damn, I've just lost the whole reply. No, I'm not going to re-write it in full, so don't fear...

I'll be brief:

Primo nasciturus is about the property rights of the potential subject. In fact it's nothing to do with the foetus. Though there's no obstacle to extend protection from property to other rights. (But other than that you just agree with me though with an opposite intention )

Secundo in Roman law nothing is a separate item that's not yet been separated from the main item even if that is to happen soon and in normal course of events. This is seen in every aspect of Roman law - and thus in the blurry and indirect ways of history it influences continental European laws up to this day. That's why I doubt any continental European court would send the guy to his rightful place in gaol for two murders but only for one (although he'd get a few bonus years).

Tertio yes, I'm going to do everything possible to change this sorry sick abomination known as law here. If only I have the possibility that is. Hah, if I finally prove myself to be no good at anything I'll become a politician.

Quarto parliament's bill is supreme source of law in common law but apart from law that is not in touch with justice served in courts it only really affects penal law (US), copyrights and several politics-related things AFAIK.

Quinto common law in continental countries is much more like customs that aren't meaningless even in court's judiciation though it's nothing offical. As I have already said, Anglo-Saxon common law is not really that way.

Sexto what does that 'Yes, I'm aware that you're a Catholic' mean? I can't see what you could be referring to.

[ April 24, 2003, 14:10: Message edited by: chevalier ]

 

Nothing actually, except that I meant, yes I know that you're against legalizing abortion and I think that you perceive a foetus as living after insemination. Which is a plausible view and i did not intend other things with the word.

Wich obviously shaped my mind too and I'm quite happy with the state of things.

Yes, but our civil-codes have been developed and still include common-law rules. But the "separation" between anglo-saxon common law and contiental common law began way earlier. But both base on the mediaeval common law, mainly developed in northern-italy.

Belisarius is exactly using the roman rule concerning the "civil" (continental) rights of an unborn -> That is, What is the percentage chance of the fetus living outside the womb in an incubator -> Primo nasciturus is about the property rights of the potential subject. If the child would have lived outside the womb = potential subject.

There's no obstacle to extend protection from property to other rights -> Americans obviously did it.

Thats weird about their law -> Politicans, pressure groups, common Law, Judges, Juries, interpretation of the constitution -> mixed to an awfull mess -> Being against a ban of ASSAULT weapons, because they could take away my weapon for hunting.

[ April 24, 2003, 15:47: Message edited by: Yago ]

 

Whoa. Whoa. Wait a minute. No where did Darkwolf say anything about the baby dying because the mother was killed. You guys are assuming a lot, especially since the person with the motive was more than likely motivated to kill both of them. And if we're talking an 8 month old fetus.... An 8 month old fetus can live a long time outside of it's mothers' womb before requiring medical attention. And if it's left in the womb, it can last even longer. In fact, the very act of pulling the baby out of the womb could be considered as an attempt to kill it. When I was due to have my twins, they were *hoping* that I would go until 8 months before I had them.
I'm not going to get into the issue of whether the fetus was a child yet or not because... I think my opinion's a little jaded on the point. I was irreversibly bonded with my children when I was less than six months pregnant, and I can't imagine anyone saying that a baby in the womb at that age is not a baby. But if the father killed them, then he was attempting to kill them both, that much is fairly obvious.

 

Dragon's Jewel, I wasn't accusing Darkwolf if illogic, I just know that the argument can and will be made that while he may have intended to kill her, he either a)didn't mean for the infant to die (??) or b) didn't consider, as the law may not, what was in her belly at the time to be a human or a person.

I know how you feel about your kids, though. I have three little girls, and I love them to bits -- I have a hard time getting people who have no problem killing a baby in utero but 2 months later, killing that organism would be murder (yes, I know I'm oversimplifying, no need to flame, I fully recognize that the pro choice movement has a right to their opinions too, just saying that I don't relate to them.)

 

I just don't think that he should have only one charge of murder levied against him simply because HE didn't think that he was killing a human being. And someone who would kill their unborn child and then say that they were just trying to kill the mother..... Well, the person's half-cocked anyway. And I'd like to hear his motives for killing his wife; many times, in cases such as this, the mother is killed because the child is unwanted. So what happens then, when the murder is to get rid of the fetus before it becomes a child, so to speak? Such things happen more often than people would like to admit, I'm afraid.

 

Two Murders. The baby was past the 24 week 'can survive outside the womb' stage. So the killer killed the mother leading to the death of the unborn baby. If he/she hadn't killed the mother the baby wouldn't have died so it was a direct consequence of his/her actions. And you can't tell me they didn't know she was pregnant. It starts to show at around 4 months

 

If you really want to be true to the question, it depends on the laws in the U.S., or the state in the U.S. Someone mentioned that it depends on viablity. I don't really know.

Now, if the law says the child had to be born and it wasn't, I guess it's one count of murder. If he, for whatever insane reason, took the child out of the womb, making it a 'born' child, then I guess it would be two counts. If the law says that eight months is murder, then two counts.

Whatever it may be, it makes me sick and very angry that anyone could do that.

 

The Cali murder statute. Notice in the statute fetus =!= human being. However, notice b(3). The statute is internally consistent, however, I think when you look at it in a wider context it isn't particularly consistent. When you ask: why are you defining murder that way? A better way of achieving the identical result is to make the killing of a fetus an aggravating factor which if the woman was killed would then allow the death penalty. Of course, that won't address the circumstance of attempted murder, assault, etc which results in the death of the fetus but not the mother. Anyways, without further ado:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199

 

Sorry, friend, but you are a bit confused. Anglo-Saxon common law didn't have to separate from the continental one. Simply what you view as continental common law is the law of customs - which is translated as common law, but using another meaning. However, local customs for France, Germany or Spain for example can't have developed in Northern Italy - that's where the concept begins to fall. Each of feudal countries had loads of special districts and different local traditions - including law and judication. Common law is 1) Law of all - like common language, contrary to elven, goble or draconic 2) Local customs - contrary to the king's unified standards

What is called common law in Italy is received Roman Law - basically Roman law extended by interpretation, adjustment and analogy by the followers of Accursius or Bartolus de Saxoferrato (glossatores and postglossatores/commentatores). And it developed continously despite the fall of Western Empire, so mediaeval dates stand only for periodisation. The same role Roman law played in Germany, Roman Law being seen as the law of German Emperors as succeeding Western Rome (Holy Roman Empire of German Nation). Curiously it was used as auxilliary law until 1900 when BGB civil code was introduced in whole Germany (however BGB is the most Romanistic of all codes that be, so one could argue here ).

As for the origins of Anglo-Saxon common law being different, I'm not going to repeat my posts from above.

Well, this being said I believe it's time to stop or open another thread or we'll have some local law applied to us

 

Let's hope the master is forgiving once more

Yes, and that's called common law "das gemeine Recht". And this influenced heavely the common law of England. Because the English used (like all other Eurpeans) to study in Northern-Italy too. And the Ausrian (= the former law of parts of Poland) law-book is still called "common-law". -> ABGB -> Allgemeines Bürgerliches Gesetzbuch -> (All)gemeines = common law.

What you call "the law of customs" would be the "Partikulares Recht" = Law of local traditions/customs.

Sidenote: Even the character that Mel Gibson plays in "Braveheart" claims to have been in Italy, where he has learnt latin.

 

ABGB has been in use since 1811, hehe. And it still serves well. It's not as hallowed as Code Napoleon or even the German BGB however.

Gemeines recht is just Roman law with several additions introduced by German Emperors (1st Reich, until 1806) and it's own judicial practice. Common because used as auxiliary in all those hundreds of tiny little countries.

As for Italian law influencing Anglo-Saxon Common Law... Not much of that. Of course Italian jurisprudence has major unique penal procedure acheviements that have influenced all legal systems in touch, but still Brits didn't have to leave their cozy island to learn Roman law... And well, until 18/19th century Roman law was the only law taught in British universities - that's why many lawyers didn't have education on university level - just practicing in inns as applicants.