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Defense-of-fetus theory allowed in manslaughter case; mother's conviction overturned.

A pregnant woman may use deadly force to protect a fetus from an attack, even if she does not believe her own life is at risk, a Michigan appeals court has ruled. The ruling extended the "defense of others" theory to a fetus.

Judge Patrick Meter wrote that "an individual may indeed defend a fetus from such an assault and may even use deadly force if she honestly and reasonably believes the fetus to be in danger of imminent death or great bodily harm." (People v. Kurr, No. 228016, 2002 WL 31236434 (Mich. Ct. App. Oct. 4, 2002).)

"This ruling is significant because, at least in Michigan, it's the first case that has addressed this exact question--whether the defense of others can be applied to a fetus," said Gail Rodwan of the state appellate defender's office in Detroit, who represented the defendant, Jaclyn Louise Kurr. Rodwan said she was unaware of any similar rulings in other states.

Kurr killed her boyfriend, Antonio Pena, after he allegedly punched her twice in the stomach. She told police that she informed him she was pregnant, and when he tried to hit her again, she stabbed him out of fear that he would harm the fetus. Before trial, Kalamazoo County Circuit Judge Richard Lamb granted her motion to present testimony and argue a "defense of others" theory. Kurr presented evidence that Pena had abused her before, that she received positive pregnancy-test results while in police custody, and that she suffered a miscarriage soon thereafter.

At the end of the trial, Lamb did not instruct the jury on the defense-of-others theory, contrary to his earlier ruling. He reasoned that for the theory to apply, "there had `to be a living human being, existing independent of [the defendant].'" Because the fetus was not viable at the time Pena assaulted Kurr, it did not constitute an "other." The jury convicted Kurr of voluntary manslaughter, and she was sentenced to 5 to 20 years in prison.

The three-judge panel of the appeals court unanimously disagreed, based on a 1998 state law that punishes people who harm or kill fetuses under certain circumstances. "[T]he legislature did not distinguish between fetuses that are viable, or capable of surviving outside the womb, and those that are nonviable," Meter wrote. "Because the act reflects a public policy to protect even an embryo from unlawful assaultive or negligent conduct, we conclude that the defense-of-others concept does extend to the protection of a nonviable fetus from an assault against the mother."

Because the defense-of-others theory could apply in Kurr's case, the trial court's failure to give a jury instruction deprived the defendant of her constitutional right to present a defense, the appeals court concluded. It reversed Kurr's conviction and remanded the case for a new trial.

"Although she certainly was in fear for herself, the real focus of her concern was for the unborn child," said her lawyer. "And a jury, if allowed to consider only self-defense--which it was--could reasonably say that she, from two punches in the stomach, wasn't reasonably in fear for her own life or her own well-being. But if the jury could focus separately on the fetus," Rodwan concluded, "it might say, `But she was afraid for the fetus.'"

The court noted that this protection does not extend to embryos existing outside a woman's body, such as those frozen and stored for future use. It also stressed that the defense-of-others theory applies only when a person acts to prevent "unlawful" harm against another. Therefore, the ruling does not apply to abortion clinics.

"We emphasize that our decision today is a narrow one," Meter wrote. "We are obviously aware of the raging debate occurring in this country regarding the point at which a fetus becomes a person entitled to all the protections of the state and federal constitutions. This issue, however, is not raised by the parties, is not pertinent to the resolution of [this] case, and does not drive our ruling today."

At press time, the state had appealed to the Michigan Supreme Court.
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Title Annotation:Michigan
Author:Jurand, Sara Hoffman
Date:Jan 1, 2003
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