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Court split on dismissing murder, attempted feticide charges

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In a case of first impression involving a mother who ingested rat poison in an attempt to kill herself and her unborn child, one Indiana Court of Appeals judge felt that if the feticide statute is applied to women’s prenatal conduct, it might lead to a “slippery slope” in which a full range of a woman’s conduct while pregnant could fall under the feticide statute.

Bei Bei Shuai got pregnant during an affair with a married man, and when he ended their relationship, she decided to ingest rat poison to kill herself and her 33-week-old fetus. Both she and the fetus originally survived, but the baby had to be delivered by emergency C-section and died days later. The coroner concluded that A.S. died of “intracerebral hemorrhage due to maternal Coumadin ingestion.” Coumadin is a variant of an ingredient found in rat poison.

The state charged Shuai with felony murder and Class B felony attempted feticide. Shuai’s request for bail was denied, as was her motion to dismiss. Whether or not the murder and feticide statutes can be applied to a woman in this situation is one of first impression.

The appellate court unanimously agreed in Bei Bei Shuai v. State of Indiana, No. 49A02-1106-CR-486, that the trial court erred in denying Shuai’s request for bail. While evidence was presented to show she ingested rat poison with the intent to kill herself and her child, Shuai also presented evidence to support alternate explanations for the hemorrhage that led to A.S.’s death. The COA remanded for a determination of bail.

The judges split with regards to dismissing the charges against Shuai. The charging information said Shuai, on Dec. 23, 2010, knowingly killed her fetus that had attained viability when she ingested the rat poison and caused A.S. to be born in distress and subsequently die. Shuai claimed A.S. didn’t die on Dec. 23 because she was born alive and died on Jan. 3. When she died, she was no longer a fetus and now a human being.

The state argued that even though A.S.’s birth changed her from a “viable fetus” to a “human being,” it was Shuai’s actions that caused her death and the date she took the rat poison doesn’t matter.

The majority held that the charging information isn’t defective and that the feticide is not ambiguous as applied here. The plain language of the statute encompasses Shuai’s alleged actions and she doesn’t have immunity from prosecution.

Judge Patricia Riley dissented because she believed the charges should be dismissed. The facts show that on Dec. 23, Shuai didn’t kill a viable fetus, and the state didn’t provide evidence that Shuai did anything to endanger A.S. after her birth. She disagreed with the state’s contention that the categories of “viable fetus” and “another human being” as defined in the murder statute, can be used interchangeably with the focus on Shuai’s actions, not A.S.’s legal status.

“By arguing that A.S.’s legal status as a viable fetus and as a human being are interchangeable, the State disregards legislative reality and impermissibly attempts to enlarge the murder statute,” she wrote. “In light of Indiana's long-standing statutory and case law history, I conclude that it was never the intention of the legislature that the feticide statute should be used to criminalize prenatal conduct of a pregnant woman. Rather, the statute should only be applied to third-party conduct which endangers or harms a non-viable fetus.”


 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

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