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Bob stomps on Alice's pregnant stomach, thereby causing the latter to miscarry. Did the former individual commit murder if the latter survived the assault?

Alice shoots Bob's pregnant stomach, thereby killing their unborn baby, and then shoots their head, killing them. Or perhaps the first shot simply killed the pregnant mother along with their baby. Did Alice commit one murder or two?

What are the attackers in each case guilty of? Crimes against one person or two?

Inspired by this question: Is an illegal abortion a Malum in Se offense or a Malum Prohibitum offense?

TylerDurden
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2 Answers2

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See Criminal Code, s. 223:

223 (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not

(a) it has breathed;

(b) it has an independent circulation; or

(c) the navel string is severed.

(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

For the act to be homicide of the child, the child needs to exist in a living state outside of the body of its mother. The act that is considered homicide can occur before the child leaves the mother's body, though.

The homicide would be categorized as murder if

  • the death of the child was intended or
  • the accused intended to inflict bodily harm to the child knowing that death was likely and the accused was reckless as to whether death ensued.

The homicide would be categorized as manslaughter if the risk of bodily harm to the child was reasonably foreseeable. See e.g. R. v. Prince, [1986] 2 S.C.R. 480 (beware: disturbing facts).

If the child does not ever exist alive outside the body of the mother, it is not a homicide of the child. See discussion in R. v. Drummond (1996), 112 C.C.C. (3d) 481, paras. 39-50 (Ont. Prov. Div.) (beware: disturbing facts).

Jen
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and

The crimes in question are statutorily defined (we don't have common law crimes), and this one is a state-defined crime. In Washington, this is first degree manslaughter, and not murder, because

(1) A person is guilty of manslaughter in the first degree when... (b) He or she intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child.

Abortion performed by a physician is lawful in Washington. Bob may have committed one crime w.r.t. the fetus depending on how far it has developed, and separately committed murder or assault of the mother, depending on whether the adult victim is dead or just injured. Manslaughter does not require the specific intent to kill, it just requires the intent to do something unlawful (such as beating the mother). There is, incidentally, an analogous treatment of fetal assault, which is second degree assault, that

A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree... (b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child

user6726
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