Question: Can a mother be prosecuted for the death of her fetuses in the following scenario:

Mother pregnant with twins. Niether she nor the father wants the babies, so she lays down on the floor and allows father to jump on her until the fetuses die. We can prove that....

Father is charged with murder. Can she be charged as a party to the offense, notwithstanding 19.06(1)?

It would seem that you have to charge both. Under the facts given, you cannot charge the father with assault against mom. But if you don't charge mom,the father can claim he was only assaulting mom, not trying to harm the unborn children.

Your facts are incredibly eggregious and I don't think that the intent of the legislature was to prevent prosecutions in this situation. Wasn't the intent behind 19.06 to ensure that doctors or mothers would not be prosecuted for medical procedures??

I would try handling the case with three counts as a party to murder, as felony murder, and for injury to a child. You would seem to have a good argument that: as a party or under felony murder, she is not being prosecuted under Chapter 19. With those facts, your problem is not with a jury!!!

I think the mother is regrettably exempt from prosecution under the plain reading of the statute. She must engage in conduct to become a party to the crime and that same conduct is excused under Sec. 19.06 (1).

If you charge both then get poured out on her case, does that prohibit the Father's prosecution from going forward?

What about taking a shot at Jury Nullification? Is that a possibility here?

I agree that the statute was likely not designed to protect mom in circumstances like these, but I nevertheless think it does. Dad, I think, can be charged, but I don't see Mom as prosecutable even as a party.

Roe v. Wade was supposed to protect a woman's right to choose whether to end the life of her unborn child and legalize that decision so that she could seek out a safe, medical abortion. Seems ironic that the evolution of that legal theory has led us to debate whether we can prosecute a woman for having another person stomp the life out of twins. Kind of makes me wonder whether we should go back and reweigh the value attributed to the unborn child.

Original post: What about aggravated assault?

Addendum: I have been reminded since the original post here that Chapter 22 has a similar free pass provision for mom.

[This message was edited by Wes Mau on 11-05-04 at .]

[This message was edited by Wes Mau on 11-05-04 at .]

Perhaps I'm totally off base, but what are the possibilities of charging her under 22.04 by omission? Seems to me that she has "assumed care, custody, or control" of the child by her "act, words, or course of conduct" and is therefore under a duty to protect the children.

PC Sec. 22.12 excludes prosecution of the mother for Chapter 22 offenses.

quote:

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Originally posted by Ken Sparks:
PC Sec. 22.12 excludes prosecution of the mother for Chapter 22 offenses.

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I knew that, but i didn't find it at the end of the assault statute where I thought it was, so I figured I was remembering it wrong.