Split Colorado Supreme Court says child abuse can’t happen in the womb
In a split decision, the Colorado Supreme Court ruled Monday that those who injure unborn babies can’t be prosecuted for child abuse, even if the infant is born and survives an in utero attack with lifelong injuries.
In the 4-3 decision, the majority of justices found that the state’s child abuse law is unclear as to whether child abuse can happen in the womb. Because of that ambiguity, the court followed a last-resort approach that obligated them to rule in favor of the defense and found that Andre Jones, 38, of Fountain, who was convicted of shooting his pregnant wife in the stomach — killing her and causing lasting injuries to her unborn daughter — cannot be convicted of child abuse, even though the girl still suffers from debilitating neurological damage.
The ruling is another step in a years-long and nuanced debate about whether fetuses ought to be recognized as persons under state law — a hot-button topic with wide-ranging implications stretching from abortion to the criminal prosecution of pregnant women.
Practically, the court’s ruling will likely stop the prosecution of suspects who injure unborn children on child abuse charges if the child survives the attack. But the decision also leaves open the possibility that fetuses can be considered persons under Colorado law and puts it in the hands of state lawmakers to clarify whether unborn babies should be protected under the state’s child abuse statutes, said Aya Gruber, a professor of law at the University of Colorado Boulder.
“It’s kind of wild that they’re saying, ‘It’s not clear to us on the face of it that the word ‘person’ doesn’t really mean ‘person or fetus,’ she said. “In other words, they’re saying it is a completely plausible facial meaning of the word ‘person’ to include ‘fetus.’ That part of it all seems like a pretty big blow to the anti-personhood [movement] and maybe a symbolic victory for the personhood movement.”
The majority of justices could not determine whether lawmakers intended to protect unborn fetuses under the child abuse statute by using the statute’s plain language or through other legal methods, including considering common law doctrine that says child abuse prosecutions are permissible if a child injured in utero is born alive, according to the 31-page majority opinion supported by Justices William Hood, Monica Marquez, Richard Gabriel and Melissa Hart.
“We are particularly concerned that adopting the ‘born alive’ doctrine to define a criminal element would usurp the role of the legislature,” Hood wrote. “Therefore, we decline the temptation to make law, no matter how sympathetic the alleged victim.”
But in a 29-page dissent, Chief Justice Nathan Coats and Justices Brian Boatright and Carlos Samour call the majority’s opinion a “policy decision” that goes beyond the court’s role and does, in fact, usurp the role of the legislature.
They argue that lawmakers’ ambiguity in the child abuse statute was intentional, and lawmakers’ subsequent refusal to clarify the language — despite a decade-old appeal from the courts to do so — shows legislators wanted to allow for the criminal prosecution of suspects who injure unborn babies when those babies are born and live with lasting injuries.
“In the simplest of terms, the majority does in two paragraphs what the legislature has declined to do for over ten years: it redefines the definition of ‘child’ in the child abuse statute,” Boatright wrote in the dissent.
He argued that the court did not need to follow its last-resort decision making method — which defaults the judgment in favor of the defendant — because the legislature’s intent can be understood from the lack of action and through common sense.
“As a result of Jones’ actions, this child stands as an independent victim, separate and apart from her mother,” he wrote. “She will suffer for her entire life because of the defendant’s actions. Surely the legislature did not intend to disregard her as a victim.”
Jones was convicted of killing his estranged wife, Lakeisha Jones, 32, in 2013. Prosecutors said he broke into her apartment, waited for her to come home and shot her in the belly as she unlocked her door.
On Monday, the court overturned Jones’ conviction for first-degree murder in the case and ordered that he be granted a new trial after finding that his right to a public trial was violated when the judge excluded his parents from the courtroom during the testimony of two witnesses.
Jones cannot be retried on the child abuse charge.
A spokesman for Attorney General Phil Weiser, whose office brought the appeal to the state’s highest court, was not immediately available for comment Monday.
The American Civil Liberties Union of Colorado was unavailable for comment and Colorado Right to Life did not return a request for comment.