Pa. Bill To Criminalize Fetal Homicide Is Close To Being Law Gov. Ridge Has Said He Expects To Sign It. The Maximum Penalty For First-degree Murder Would Be Life In Prison.

Posted: August 04, 1997

John Layser had expected to feel a sense of closure when a Berks County jury convicted his daughter's killer of first-degree murder after a 10-day trial in March 1995.

But while Jeffrey Clapsadl would spend the rest of his life in prison, Layser felt justice had not been served. His daughter was five months pregnant by Clapsadl, her ex-boyfriend, when he killed her with a shotgun blast to the head.

Clapsadl had told her not to have the baby. But Renee Layser, 19, had been eagerly awaiting motherhood. She read baby books and kept a little chest in her room with baby clothes and bottles. John Layser and his wife, Nancy, were planning a baby shower for their first grandchild.

Pennsylvania courts have long held that no criminal charges can be brought in the death of a fetus, but the Lebanon County family wanted recognition for that loss as well. So this year, they turned to State Sen. Edward W. Helfrick (R., Northumberland), whose antiabortion views are well-known.

As a result, a fetal homicide bill - which would make it a crime to kill or seriously injure an unborn child intentionally or recklessly - is now on the verge of becoming law. Many states have such laws.

The bill has passed the state House and Senate, although House members must accept the Senate version when they reconvene in September. Gov. Ridge has said he expects to sign it. The maximum sentence for a first-degree fetal murder charge would be life in prison.

Most states have laws or court orders permitting some kind of prosecution for the death of a fetus. The U.S. Supreme Court has not ruled on the fetal homicide question, but the laws have been upheld by several state high courts. An Illinois appellate court last month affirmed a first-degree murder conviction under a feticide statute there.

These laws vary widely in defining the stage of development at which prosecution is allowed.

Pennsylvania's law, which would allow prosecution at any stage of a fetus' development, would use the definition of ``unborn child'' in the Abortion Control Act: an individual organism from fertilization until live birth. The act - which set a 24-hour waiting period before a woman can obtain an abortion - was largely upheld in a 1992 landmark U.S. Supreme Court decision.

The feticide bill exempts abortions and termination of the fetus for health reasons. ``This is a bill for women who decide to carry the babies to term,'' said Todd Roup, an aide to Helfrick. A spokesperson for the governor called it a ``law-enforcement issue.''

But activists on both sides of the abortion debate are watching the legislation closely because of the law's implications for defining when life begins.

``It's an excellent idea,'' said Susan Gibbs, spokeswoman for the Archdiocese of Philadelphia. ``It recognizes that there are two lives. Sometimes in our culture, we don't recognize that there are two people there because we don't see that child.''

This interpretation has abortion-rights advocates worried. ``It basically creates an artificial conflict between the woman and the fetus she is carrying,'' said Liz Hrenda-Roberts, executive director of Planned Parenthood Pennsylvania Advocates. ``When a woman is pregnant, it is not as though there is another entity. The rights of the woman and the fetus mesh.''

In June, the Pennsylvania Coalition Against Domestic Violence issued a statement against the bill, saying it could decrease crime victims' rights by reducing the focus on the mother. The law also could increase pressure on domestic violence victims to testify for the prosecution or face contempt-of-court charges if they refuse, according to the statement.

That's a common scenario, because many fetal homicide cases stem from domestic violence, said Marlene Sanchez of the Family Violence Division in the Los Angeles District Attorney's Office. ``A lot of women don't want to testify, and that even goes to her losing the fetus,'' she said. Because Los Angeles County compels women to testify in all domestic violence cases, prosecuting crimes against a fetus has not increased this problem, she added. California's fetal-murder law, which allows prosecutors to seek the death penalty, was upheld by the state Supreme Court in 1994.

Fetal-murder laws are written to cover cases of intent: a man assaults his pregnant girlfriend to end her pregnancy, or a robber hits a pregnant woman in the stomach with brass knuckles, as happened last month in Los Angeles.

When the mother harms her fetus, legal and ethical waters grow murky. ``There's a real problem when you start saying that any homicide of any fetus is murder,'' Sanchez said. ``A lot of police agencies [want to charge] a woman who gave birth to a drug-addicted baby that died.'' Los Angeles does not prosecute those cases, and Pennsylvania's bill prohibits charging the mother for any crimes against the fetus.

The first feticide charges in Pennsylvania this century were brought in a 1978 Chester County case known as Baby Boy Brown. A South Coatesville man was charged with double homicide in the stabbing death of his pregnant wife and their unborn child. The fetus, in its ninth month of development, died as a result of knife stabs that penetrated the mother's abdomen.

Chester County Judge Leonard Sugerman ruled that the unborn baby was not a human being under Pennsylvania's crimes code and therefore could not be considered a murder victim.

Since that ruling - in which Sugerman traced common law from the 17th century to show a murder verdict could not be returned unless a fetus was born alive - there have been several other cases in Pennsylvania in which prosecutors tried without success to bring fetal homicide charges.

For John and Nancy Layser, who have since become grandparents, the law may finally bring some satisfaction. ``I think the fetus does have rights,'' he said. ``People who are expecting are so happy and so glad. In their mind, it's going to be a living person.''

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