Hypothetical: Man raped, wife and child stabbed, rapist becomes pregnant, faces death penalty

I’ve conjured a horrible, horrible scenario, in the hopes of drawing out some moral and/or legal analysis.

Details of the hypothetical case

Let’s pretend John Doe is married with a young daughter. He is very religious and very active with the pro-life movement. Mary Moe is a psychopath who has been stalking John. At about 10:15PM on the night of August 27, Ms. Moe breaks into the Doe house. Armed with a military knife, she takes the child as a hostage and forces the wife to tie John up. Then she takes the wife and child out of Mr. Doe’s sight. A few minutes later she returns to the bedroom and says the wife and child have been “locked in the closet”. She proceeds to rape Mr. Doe, unprotected. She then stabs him in the scrotum.

At 1:00AM on August 28, a neighbor calls 9-1-1 to report a woman leaving the Doe house brandishing what appears to be a knife. At 1:05AM police arrive on scene and find Mr. Doe tied to his bed, gagged and bleeding but still conscious. They find the wife and child gagged and unconscious in a closet with multiple stab wounds. All are evacuated to a hospital. Mr. Doe quickly recovers but is rendered impotent. Mrs. Doe will remain in critical condition for days before making a miraculous recovery. The daughter never wakes up and will die of her injuries.

Mr. Doe names Mary Moe to authorities and she is arrested at 8:00AM August 28 while leaving a corner store. Her purchase - pregnancy test kits - was confiscated. Mr. Doe identifies her that afternoon. Ms. Moe tells her handlers that she missed her period and thinks she might be pregnant. She is administered a daily pregnancy test.

The police search Ms. Moe’s house and find evidence of stalking - multiple photographs of Mr. Doe, newspaper clippings related to him - and printed materials relating vasectomy procedures and male reproductive anatomy. They also find supplies of mifeprisone and misoprostol (under someone else’s name).

Ms. Moe is arraigned on Monday the 31st on charges of burglary, attempted murder, rape, malicious castration, and murder (the daughter died that morning). Ms. Moe is assigned a public defender.

On Tuesday the 1st the police break into Ms. Moe’s electronic devices. They discover extensive evidence of stalking - digital photographs of Mr. Doe & his house, calendar entries mentioning Mr. Doe, etc. They discover that she controls an online persona who is very actively pro-choice. One post in particular, dated August 25, reads, “wouldn’t it be funny if a woman raped pro-lifer and aborted his baby”.

The prosecutor and detective interview Mr. Doe at the hospital that evening. Mrs. Doe had just been moved from critical to stable condition, but she was not available to interview. Among other things, Mr. Doe shares concern that his rapist might become pregnant with his child, and that he wants to seek custody of that child.

On Thursday, September 3, Ms. Moe’s pregnancy test comes back positive. She immediately asks for an abortion. The jail - a public institution - seeks advice of counsel in handling this request due to the nature of her charges (including one count of rape, one count of malicious castration). Counsel for the jail visits the prosecutor’s office to discuss the case.

Meanwhile the jail, Ms. Moe, and her attorney agree to let a physician examine her that afternoon. The physician certifies the pregnancy but finds no medical grounds to justify an immediate abortion. She also orders that the jail unshackle Ms. Moe due to her pregnant state.

On Friday, September 4, the jail denies Ms. Moe’s request for an abortion. They note the lack of medical necessity and cite 1) preservation of evidence - prosecution wants a paternity test to help prove their case beyond a reasonable doubt, 2) their opinion that an abortion could constitute additional harm to the victim, and 3) the “penological interests” of deterring similar crimes. The public defender goes before the judge to object. In doing so both sides reject an invasive paternity test, and the judge ultimately agrees with the prosecution and jail. Trial is set for October 15, and the question regarding abortion would be postponed until after the criminal trial.

After this order, Ms. Moe obtained assistance from private counsel regarding the abortion business.

An appeal of this ruling is filed September 10 in federal court on Eighth Amendment “cruel and unusual punishment” grounds. It was turned down as premature.


The defendant is Ms. Mary Moe, accused of breaking into the Doe house, attempting to murder Mrs. Doe, raping and castrating Mr. Doe, and murdering their young daughter. Her criminal trial is held on October 15 and 16 with the verdict handed down today, the 19th. Prosecution presents a very strong case based on the theory that the defendant conspired to rape Mr. Doe, become pregnant with his child, and then abort the fetus. At the time of the trial Ms. Moe was seven weeks pregnant and prosecutors presented a positive paternity test proving that Mr. Doe was the father.

The jury rejects the insanity defense, returning a guilty verdict on all five felony counts: burglary, attempted murder, rape, malicious castration, and murder. An appeal on the merits of her criminal conviction is seen as unrealistic. Sentencing is scheduled for early November.

The state is authorized by law to seek the death penalty. They would prefer to let Ms. Moe carry the baby to term and let the Does take custody of the child, then administer a lethal injection. The state does not want to grant the abortion but is willing to compromise on the penalty.

Victims Mr. & Mrs John Doe, whose daughter was murdered and who were both forcibly sterilized as a result of Ms. Moe’s actions, did not learn that Ms. Moe was carrying John’s child until the trial, and are now preparing a civil motion for custody of the unborn child. They are staunch pro-lifers and would consider the abortion of that child to be another murder, but do not support the death penalty even in this case.

Ms. Moe seeks an immediate abortion and a light penalty. She argues that her right to privacy covers her choice to abort her pregnancy, and that being forced to bring the child to term is a “cruel and unusual punishment”. Also that the death penalty is a cruel and unusual punishment.

Hopefully I didn’t botch any details. Please remember that this is all hypothetical. Regarding morality and legality, what is your opinion on this scenario?

~Max

I’d say let the baby be born, then have the rapist serve a prison sentence. No execution or abortion.

OK. That’s pretty much what I envisioned as the state’s position.

ETA: ninja’d, originally I believe the post read “and then execute”.

~Max

Yeah I re-read the hypothetical and realized execution wasn’t mandated, so I changed my comment.

Still, pretty close to the state’s position.

~Max

Even if a death sentence against Ms. Moe is handed down, the reality is that, in the U.S., death sentences undergo a lengthy appeals process as a matter of course. If Ms. Moe were to ever be executed, it would be many, many years after she had either given birth or had an abortion.

I am anti-death penalty on moral grounds so, if I had the power to decree an outcome it would life in prison without parole for the rapist/murderer.

The status of the fetus is bit more uncertain. Despite the fact there is still time for abortion I am, despite being pro-choice, uncomfortable with an abortion in this case. The rapist-murderer has already lost personal autonomy due to her actions in ending a life. Prisoners do not have privacy, it’s one of the things they lose when they’re convicted. Prisoners are generally only provided with medical care that is medically necessary and I see nothing that would indicate an abortion is medically necessary in this case. Pregnancy is a natural biological function, not a punishment. I’d probably rule that she’s stuck with having the baby unless some health problem develops in the meanwhile. At least one family (the Does) have expressed interest in raising the child as one of their own. When the baby is born I would appoint a lawyer for the infant and send it to family court to decide the best interests of the child. Most likely, it will end up with the Doe family.

Back in the day, at least in the English justice system, “pleading your belly” was in fact a thing - they wouldn’t execute a pregnant woman. Seems like in theory you could wait for the child to be born and then execute her, but in fact as far as I know this wasn’t done. This was back in the day when “steal goods worth more than a shilling” was a death penalty offence, so I think the fatherhood of the child in this hypothetical is a bit of a red herring - the precedent is that pregnancy is a defense against execution.

The existence of abortion in the modern world does add an extra complication, but as @kenobi_65 says, it’s in practise irrelevant. In fact, for a serious case like multiple murder and rape, is it really likely that even the initial trial would be completely finished before the baby was born?

Only the daughter was murdered, the husband and wife recovered (albeit unable to procreate any more).

I would say that the state is unwilling to execute a pregnant woman under any circumstances. If they do push for execution, it will be either after they lose the abortion fight, or after birth and change of custody.

ETA: I had written the sentencing date as early November, but perhaps that could be pushed back more to allow some time for the question of abortion.

~Max

This, too, though I suppose we’re fighting the OP’s hypothetical. It’d be pretty rare in the modern U.S. justice system for a captial murder trial to be conducted this rapidly.

Admittedly, it is really fast. I was thinking, I have to make it quick since she’s pregnant and wants the abortion. If it makes it more realistic, let her plead no contest/guilty (in hope of a speedy trial and reduced sentence).

~Max

Okay, lot of different issues here. And as always, I am not a lawyer.

  1. Can the state force Mary Moe to have an abortion? No. As far as I know, there are no circumstances in which the state can force a woman to have an abortion over her stated objections or even in the absence of her stated agreement.

  2. Can the state carry out an execution of a pregnant woman? No. I don’t know the laws of all fifty states. But my understanding is that pregnancy is seen as an automatic stay on executions. A pregnant woman under sentence of death is not executed until her pregnancy is completed.

  3. Can a prisoner have an abortion while in custody? Maybe. My understanding is that there is no legal exemption to a woman’s constitutional right to have an abortion based on incarceration. But reports suggest that many states place practical obstacles in the path of a pregnant prisoner having an abortion.

  4. Can John Doe file for custody of the child? Yes. Doe is the biological father even if the child was conceived without his consent.

  5. Can Mary Moe sue John Doe for child support if she retains custody? Maybe. I couldn’t find a specific precedent to a male victim being required to pay child support after being forcibly raped. But I did find precedents of underage male victims of statutory rape being required to pay child support if their female rapists became pregnant.

Switching over to legal analysis, I think the courts will say, inmates still have the right to abortion unless the prison can supply a valid penological concern. For example, see Doe v. Arpaio, 150 P.3d 1258 (2007).

The denial of medically necessary treatment is considered contrary to the Eigth Amendment, Estelle v. Gamble* 429 U.S. 97 (1976). Legally speaking, I don’t think it follows that medical necessity is a prerequisite for exercising other constitutional rights, or that other constitutional rights are given up in the absence of medical necessity.

Whether these are at all relevant to your moral position, I couldn’t say.

~Max

That’s an angle I didn’t even think about. I mean, I can’t think of any moral justification for making a bona fide rape victim pay child support after denying custody of the child. I would imagine that, if M. M. retains custody of the unborn child, that would be followed by either abortion or the state taking the child away after birth (to a relative or to become a ward of the state). I can not fathom a scenario where M. M. gets less than twenty years in prison, or where the state allows the child to live in prison until the age of majority.

~Max

I agree there’s no possibility of the state allowing Moe to raise a child in prison. But your scenario mentioned both an execution and a “light penalty” so I figured I’d address the possibility of Moe having custody of the child outside of the prison.

Yeah, let’s say she gets at least 20 years. That’s like the bare minimum for first degree murder without aggrevating factors, which were present in this scenario, and that’s only one of five felony charges she was convicted of.

~Max

I don’t think rapists should get custody of a child that is a product of rape.

Okay. But even then child support is still an issue. Let’s say Mary Moe spends the rest of her life in prison. And her sister, Megan Moe, gets custody of little Baby Moe. Megan can sue for child support just as Mary could have.

The law seems to be heading in that direction but it’s not a settled issue yet.

According to this USA Today article, only 30 states permit the termination of custody rights for rapists who conceive, while others just place restrictions on them.