The Catholic Bishops of North Dakota have expressed the view that the Preborn Child Protection Act should contain legal immunity for the mother of the child, terming her the “second victim.”

This position is completely contrary to the law of child abuse in every other instance, indicating that the Catholic Bishops of North Dakota lamentably have absorbed and become spokesmen for the widespread societal discrimination against the unborn.

The Hawa Mohamed case.

On April 4, 2002, a Cass County jury convicted Hawa Mohamed of intentionally burning her four-year-old son on the buttocks and thighs with a hot iron. The burns were not extremely severe or life-threatening. Six weeks later Judge Lawrence Leclerc sentenced Mohamed to eight years in the state penitentiary followed by ten years of registration as a child offender. The North Dakota Supreme Court summarily upheld the verdict and sentence. State v. Mohamed, 2002 ND 198.

The statute in question provides that a parent or other custodian of a child is guilty of a Class C felony for willfully inflicting bodily injury upon the child. N.D.C.C. 14-09-22. If the victim is under six years of age, the offense, as in Mohamed’s case, becomes a Class B felony.

State v. McKnight.

On January 27, 2003, the South Carolina Supreme Court upheld a conviction for homicide by child abuse against Regina McKnight for taking cocaine during her pregnancy and giving birth to a stillborn child.  McKnight was sentenced to twenty years in prison with eight suspended, to serve twelve. State v. McKnight, ____ S.E.2d _____ (S.C. 2003).

Medical testimony indicated that the cause of death was intrauterine cocaine exposure, which caused the baby’s heart to fail. Under South Carolina law, homicide by child abuse requires a victim under the age of eleven and a perpetrator “manifesting an extreme indifference to human life.” This mental state, the court held, is characterized by “a deliberate act culminating in death.”

Discussion

As the Mohamed case indicates, the law is typically more protective of infants because of their heightened vulnerability. Because Mohamed’s child was under the age of six, the offense rose from a Class C to a Class B felony. Similarly, sexual imposition statutes provide for a more severe penalty where the victim is younger. To harmonize with this principle, the protection accorded the unborn, the most vulnerable of all, should be correspondingly greater, not lesser, than that accorded to born children or to adults. Thus, a Class AA felony for intentionally destroying an unborn child is altogether fitting and in harmony with the overall structure of laws protecting infants from harm at the hand of their adult custodians.

The Mohamed and McKnight cases vividly demonstrate society’s solicitude for the welfare of infant children, in one case a four-year-old boy and in the other an unborn child of 34-37 weeks gestation. If the line of discrimination between the born and the unborn is to be broken down, the perpetrator who intentionally kills her own infant by the hand of a cold-blooded hired assassin has earned an equal or proportionally greater penalty, both because of the magnified helplessness of the victim and the hideous and deliberate means of extermination chosen.

A prosecutor may decide in a particular case that there are mitigating circumstances militating against prosecution of the mother of an aborted child, but as in the Mohamed and McKnight cases, society is also entitled fully to prosecute and thus deter the deliberate and willful infliction of bodily harm upon innocent and helpless children.

Any other position perpetuates the existing societal discrimination against the unborn child. By countenancing a continuation of that discrimination, the Catholic Bishops of North Dakota are relegating the unborn child to the second-class citizenship notoriously associated with the institution of slavery.

Until crimes against unborn children are weighed in the same scales of justice as those against the born, this discrimination will not end, but will instead endure for another 30 years.

If it is a Class B felony willfully to inflict bodily injury on a child under the age of six, then surely it is consistent to denounce the deliberate and premeditated killing of a preborn child as a Class AA felony offense. Similarly, if a deliberate act culminating in death is sufficient to convict a mother for indirectly and perhaps unintentionally killing her unborn child, then surely a deliberate act directly and intentionally causing that death may be even more severely punished. If we recognize the humanity of the unborn as equivalent to that of the born, this reasoning is unassailable.

— Peter B. Crary, Attorney at Law