# Legal question on Peterson case: killing a fetus is murder? **URL:** \ **Category:** Factual Questions\ **Created:** [April 21, 2003, 2:04pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033 "2003-04-21T14:04:27Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [April 21, 2003, 2:04pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/1 "2003-04-21T14:04:27Z")
This is a legal question. Please don’t turn it into an abortion debate. Scott Peterson is being charged with a double homicide, or so I understand. How, legally, is a late-term abortion differentiated from a murder as in the Peterson case? Is it because Peterson is not an MD? If he had been an MD, would he be charged with only one murder? Does it involve the mother’s consent? Is it murder if the mother hasn’t consented? In any case, how is killing the fetus differentiated legally from, say, destroying a kidney? ---
**Author:** ![tiny\_ham](https://avatars.discourse-cdn.com/v4/letter/t/a183cd/32.png) [@tiny\_ham](https://boards.straightdope.com/u/tiny_ham)\ **Post date:** [April 21, 2003, 2:10pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/2 "2003-04-21T14:10:54Z")
I think it’s a case of the mother not consenting. The mother, as far as we know, had no desire to abort her fetus, and essentially, the abortion was FORCED on her. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 21, 2003, 2:11pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/3 "2003-04-21T14:11:12Z")
This whole thing varies by state. I think that in CA, if the fetus is viable, it can be murder. Laci and Scott’s fetus was close to 8 months. Very viable. Someone else can chime in with the circumstances in which an 8 month fetus could be legally aborted in CA if the life of the mother was not at risk. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [April 21, 2003, 2:13pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/4 "2003-04-21T14:13:00Z")
> [@](#): > > \*Originally posted by jarbabyj \* > \*\*I think it’s a case of the mother not consenting. The mother, as far as we know, had no desire to abort her fetus, and essentially, the abortion was FORCED on her. \*\* Again, why is it murder if the fetus is merely an organ? ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [April 21, 2003, 2:19pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/5 "2003-04-21T14:19:45Z")
Libertarian: Because the State of California’s legislature defined it that way. The laws go on legal definitions, not popular definitions. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [April 21, 2003, 2:37pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/6 "2003-04-21T14:37:43Z")
> [@](#): > > [187.](http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199) (a) **Murder is the unlawful killing of a human being, or a fetus, with malice aforethought**. > (b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply: > (1) The act complied with the Therapeutic Abortion Act, Article 2 > (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code. > (2) The act was committed by a holder of a physician’s and surgeon’s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. > (3) The act was solicited, aided, abetted, or consented to by the mother of the fetus. > © Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law. As **Monty** said, it’s murder because the Ca. legislature defined it as murder. More particularly, that a mother can have a legal abortion does not mean that someone else can make that decision for her. ---
**Author:** ![tiny\_ham](https://avatars.discourse-cdn.com/v4/letter/t/a183cd/32.png) [@tiny\_ham](https://boards.straightdope.com/u/tiny_ham)\ **Post date:** [April 21, 2003, 2:46pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/7 "2003-04-21T14:46:10Z")
I also think it’s a crime to remove someone’s organs without their consent, lib. I don’t want someone taking my kidney or lungs without my say so. But probably because this particular “organ” is a viable human being with organs of its own, the law classifies the particular crime of fetal destruction without the mother’s consent as murder. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [April 21, 2003, 3:04pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/8 "2003-04-21T15:04:48Z")
> [@](#): > > 1. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. > (b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply: > (1) The act complied with the Therapeutic Abortion Act, Article 2 > (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code. > (2) The act was committed by a holder of a physician’s and surgeon’s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. > (3) The act was solicited, aided, abetted, or consented to by the mother of the fetus. > © Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law. That’s what I was looking for. Thanks. > [@](#): > > I also think it’s a crime to remove someone’s organs without their consent, lib. Sure. But I was asking about the specific crime of murder. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 21, 2003, 3:32pm UTC](https://boards.straightdope.com/t/legal-question-on-peterson-case-killing-a-fetus-is-murder/170033/9 "2003-04-21T15:32:10Z")
The Supreme Court of Canada considered a similar case in [R. v. Prince](http://www.lexum.umontreal.ca/csc-scc/en/pub/1986/vol2/html/1986scr2_0480.html), [1986] 2 S.C.R. 480. The accused stabbed a pregnant woman. She gave birth and the child died shortly thereafter. The police charged the accused with assualt causing bodily harm in relation to the mother, and manslaughter in relation to the child. The accused was convicted of the assault charge, and then argued a variant of double jeopardy, saying that the conviction on assault was all that was available. The Crown’s case appeared to be that the blow to the fetus in utero was the cause of death, post-birth (and may even have triggered the premature birth). The Supreme Court held that there were two offences against two different victims, and the manslaughter charge could proceed. The key point though, was likely that the child was born alive and thus became a “human being” for the purposes of the _Criminal Code._