The Challenge of Proving Fetal Homicide in the Cleveland Kidnapping Case

This was one of the first questions I had when the news reported the charges that were brought against Ariel Castro . . . what about the charges of homicide because of the 5 miscarried pregnancies Michelle Knight suffered? 

If the man accused of imprisoning three women for a decade inside his Cleveland home is convicted of the charges filed against him, it seems unlikely he will ever be released from prison. This week, prosecutors charged Ariel Castro with four counts of kidnapping and three counts of rape. Under Ohio law, each felony charge leveled against him carries a sentence of 3 to 11 years. He’s now being held on $8 million bond.

Some may be wondering why Castro wasn’t also charged with homicide. One of his victims, Michelle Knight, reportedly told investigators she became pregnant five times while in captivity and that Castro beat and starved her each  time until she miscarried. According to the National Conference of State Legislatures, Ohio is one of at least 38 states whose homicide statute applies to the killing of unborn fetuses and one of at least 23 states that apply this statute to the earliest stages of pregnancy.

Building a fetal homicide case against Castro could be very difficult, although a local television station in Cleveland has reported that prosecutors are considering it. Proving such a case, according to Katherine Hunt Federle, a criminal law professor at the University of Ohio, typically requires expert medical testimony based on physical examinations of the woman who miscarried and the fetus itself. Prosecutors would have to first prove that the pregnancies occurred and then that Castro’s action caused them to end in miscarriage.

“There is generally a rule that you have to have some evidence that a homicide was committed, so the mere testimony of the women may not be sufficient,” says Federle. “If you think about people who have been kidnapped or placed under stress, depending on what’s happened to them, their psychological states may be poor. Repeated interviews might enable a defense lawyer down the road to suggest that these women may have not have actually recalled this information, that it was suggested to them. Everybody wants to be careful about this because their key witnesses are these three women.” So far, no detailed information has been publicly released detailing Knight’s ordeal or when her alleged pregnancies might have occurred, but any evidence that might have existed at the time may be long gone.

The first prosecution under Ohio’s fetal homicide statute was in 1996, when Gregory Robbins beat his wife, who was 8 months pregnant, causing the death of her unborn child. Outside Ohio, several high-profile criminal cases have led to the enactment of state fetal homicide laws. In North Carolina, lawmakers passed a fetal homicide law following the death of Jenna Nielsen, who was 8 months pregnant when she was stabbed outside a convenient store near Raleigh in 2007. She and her unborn son both died. In Kentucky, lawmakers passed a fetal homicide law following the death of Veronica Jane Thornsbury and her unborn child. Thornsbury was in labor and on her way to the hospital in a car when a truck struck the vehicle.

After widespread news coverage of the Laci Peterson case in California, in which Scott Peterson was eventually convicted of murdering his wife Laci and her unborn child, Congress passed the Unborn Victims of Violence Act of 2004. The federal law, signed by George W. Bush, made it a federal offense to kill or injure a child in utero during the commission of another federally prosecutable violent crime. Pro-choice advocates opposed the law over concerns that its definition of the unborn as ”a member of the species homo sapiens, at any stage of development, who is carried in the womb” might be used to try to overturn laws protecting abortion rights.

As for Castro, if the existing case against him holds up in court, his fate will probably not hinge on whether he’s charged with killing unborn fetuses. “It may not matter in the long run because I suspect their goal of incarceration can be easily satisfied if they can prove beyond a reasonable doubt that kidnapped these three women and held them in captivity and raped them. If he is convicted and receives the maximum sentences, he’s not going anywhere,” says Federle. “Given the amount of attention and publicity this case has had…it’s unlikely there would be a generously lenient sentence.”

Is Your Car Being Tracked by a License-Plate Scanner?

We recently came back from a wonderful visit with my hubby Don's sister Diane and her husband Bob in Maryland.  To say we had a wonderful time would be an understatement. It was perfect! And being out on the water was just fantastic, too. We miss having a coastline in Arizona.

Still,it is nice to be home.

One thing I noticed that got me thinking is how Big Brother has the ability of keeping track of our movement. This occurred while we were in Maryland.

If you drive through Maryland, the state may be using an automated reader to photograph your license plate — and storing your movements away for future use. Maryland is not alone. ACLU offices in 38 states are looking into how the government is using license-plate readers across the country — and what it is doing with the data. The ACLU is already calling the license-plate readers “the next big thing in government tracking.”

There are some uses of automatic license-plate readers that most people would agree are relatively unobjectionable — looking for cars that fled crime scenes or have been stolen, for example. The real problem is that when the government stores that information, it is not trying to solve an ongoing crime — it is building a database. These databases can quickly fill up with all sorts of details about how people lead their lives. By piecing together the locations of a particular license plate over time, the government may be able to determine if someone goes to church, synagogue or mosque regularly; whether they go to meetings of a particular political group; whether they participate in protests; or even if they are having an affair.

It’s hard to know how widespread the technology is, but to give one example, Los Angeles County alone is using hundreds of license-plate readers. According to LA Weekly, which got its numbers in part through public-records requests, Los Angeles police have recorded more than 160 million data points about the movements of millions of drivers.

It would be troubling enough if the license-plate data stayed instate, but it doesn’t. Maryland, for example, shares its records with a “fusion center” — an antiterrorism office that is run jointly by federal, state and local governments. That means that the federal government can combine data from different states and track people’s movements across the entire country.

The federal government is also using license-plate readers. The U.S. Drug Enforcement Administration, which has been trying to get permission to use the readers in Utah, stated publicly that it is already operating scanners along drug-trafficking corridors in Texas and California. The federal government is also making money available to states to acquire license-plate readers. The ACLU of Massachusetts has filed a federal Freedom of Information Act request to learn more about how the federal government is using and funding license-plate readers.

But are scanners a violation of privacy? There used to be general agreement that activities like driving, which occur on public streets, are not private — and that people have no right to complain when their movements are being tracked. But the rise of highly invasive technology and databases is changing that. As one federal appeals court put it in an influential ruling involving the police planting GPS devices on people’s cars, these high-tech instruments allow the government to put together a “mosaic” of how people live their lives — a massive privacy violation.

Bottom line: license-plate reading should not be done in secret. The public has a right to know what kind of monitoring the government is doing, and there should be a public discussion of the appropriate trade-offs between law enforcement and privacy rights. If the ACLU offices get the information they want about how the federal and state governments are using license-plate readers, that discussion can begin.