In Michigan, unborn fetuses or embryos receive a substantial amount of legal protection in the prosecution of crimes. The Michigan Legislature passed and the governor signed into law Public Act 238 and Public Act 211 of 1998 (the Fetal Protection Act) which creates substantial civil and criminal penalties for criminal or grossly negligent acts committed against a pregnant woman that cause a miscarriage, stillbirth or harm to the embryo or fetus. A person convicted of these criminal penalties against a fetus or embryo faces substantial fines and lengthy imprisonment.
The intentional and wilful killing of a fetus (“quick child”) or assaulting the pregnant woman with the intent to kill the fetus has always been illegal in Michigan. “The wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.” MCL 750.322. In addition, “[a]ny person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child or of such mother be thereby produced, be guilty of manslaughter.” MCL 750.323. Any person convicted of manslaughter shall be guilty of a felony punishable by a fine up to $7,500.00 or up to 15 years in prison, or both. MCL 750.321.
However, the following crimes and penalties apply under the Fetal Protection Act if the unborn child is injured or killed.
INTENTIONAL ASSAULT AGAINST PREGNANT WOMAN CAUSING DEATH OR BODILY HARM TO UNBORN CHILD
IF a person intentionally commits ANY of the following crimes against a pregnant woman:
- Assault and battery. MCL 750.81(1).
- Domestic assault (e.g. assaulting a spouse, former spouse, individual who he or she had a dating relationship, a person with whom he or she had a child in common, or a former resident of your household). MCL 750.81(2).
- Assault and infliction of serious injury, or “aggravated assault”. MCL 750.81a.
- Felonious assault, or assault with a dangerous weapon. MCL 750.82.
- Assault with intent to commit murder. MCL 750.83.
- Assault with intent to do great bodily harm less than murder. MCL 750.84(1)(a).
- Assault by strangulation. MCL 750.84(1)(b).
- Assault with intent to maim. MCL 750.86.
- Assault with intent to commit felony not otherwise specified. MCL 750.87.
- Assault with intent to rob and steal being unarmed. MCL 750.88.
- Assault with intent to rob and steal being armed. MCL 750.89.
THEN the person is guilty of a felony punishable by imprisonment for life or any term of years if ALL of the following apply:
- “The person INTENDED to cause a miscarriage or stillbirth by that individual or death or great bodily harm to the embryo or fetus, or acted in wanton or willful disregard of the likelihood that the natural tendency of the person’s conduct is to cause a miscarriage or stillbirth or death or great bodily harm to the embryo or fetus.” MCL 750.90a(a).
- “The person’s conduct resulted in a miscarriage or stillbirth by that individual or death to the embryo or fetus.” MCL 750.90a(b).
However, IF the person did NOT intend to cause a miscarriage or stillbirth by that individual or death or great bodily harm to the embryo or fetus, or did NOT act in wanton or willful disregard of the likelihood that the natural tendency of the person’s conduct is to cause a miscarriage or stillbirth or death or great bodily harm to the embryo or fetus when committing the assaultive behavior, THEN the following crimes apply:
- “If the conduct results in a miscarriage or stillbirth by that individual, or death to the embryo or fetus, a felony punishable by imprisonment for not more than 15 years or a fine of not more than $7,500.00, or both.” MCL 750.90b(a).
- “If the conduct results in great bodily harm to the embryo or fetus, a felony punishable by imprisonment for not more than 10 years or a fine of not more than $5,000.00, or both.” MCL 750.90b(b).
- “If the conduct results in serious or aggravated physical injury to the embryo or fetus, a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.” MCL 750.90b(c).
- “If the conduct results in physical injury to the embryo or fetus, a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 750.90b(d).
GROSS NEGLIGENCE AGAINST PREGNANT WOMAN CAUSING DEATH OR BODILY HARM TO UNBORN CHILD
A person who commits a grossly negligent act against a pregnant individual is guilty of a crime as follows:
- “If the act results in a miscarriage or stillbirth by that individual or death to the embryo or fetus, a felony punishable by imprisonment for not more than 15 years or a fine of not more than $7,500.00, or both.” MCL 750.90c(a).
- “If the act results in great bodily harm to the embryo or fetus, a felony punishable by imprisonment for not more than 5 years or a fine of not more than $2,500.00, or both.” MCL 750.90c(b).
- “If the act results in serious or aggravated physical injury to the embryo or fetus, a misdemeanor punishable by imprisonment for not more than 6 months or a fine of not more than $500.00, or both.” MCL 750.90c(c).
- “If the act results in physical injury to the embryo or fetus, a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 750.90c(d).
OPERATING WHILE INTOXICATED INVOLVING ACCIDENT WITH PREGNANT WOMAN CAUSING DEATH OR BODILY HARM TO UNBORN CHILD
If a person intentionally commits any of the following crimes:
- Operating While Intoxicated (MCL 257.625(1)) – operating a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state, and ANY of the following:
- (a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.
- (b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine or, beginning 5 years after the state treasurer publishes a certification under subsection (28), the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
- (c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
- Operating While Visibly Impaired (MCL 257.625(3)) – operating a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state when, due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance, the person’s ability to operate the vehicle is visibly impaired.
AND becomes involved in an accident with a pregnant individual is guilty of a felony punishable as follows if ANY of the following apply:
- “If the person’s conduct causes a miscarriage or stillbirth by that individual or death to the embryo or fetus, imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both.” MCL 750.90d(a).
- “If the person’s conduct causes great bodily harm or serious or aggravated injury to the embryo or fetus, imprisonment for not more than 5 years or a fine of not less than $1,000.00 or more than $5,000.00, or both.” MCL 750.90d(b).
CONDUCT AS PROXIMATE CAUSE OF ACCIDENT INVOLVING PREGNANT WOMAN CAUSING DEATH OR BODILY HARM TO UNBORN CHILD
“If a person operates a motor vehicle in a careless or reckless manner, but not willfully or wantonly, that is the proximate cause of an accident involving a pregnant individual and the accident results in a miscarriage or stillbirth by that individual or death to the embryo or fetus, the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.” MCL 750.90e.
EXCEPTIONS TO CRIMINAL LIABILITY UNDER THE FETAL PROTECTION ACT
Criminal liability under the Fetal Protection Act doesn’t apply to any of the following:
- “An act committed by the pregnant individual.” MCL 750.90f(1)(a).
- “A medical procedure performed by a physician or other licensed medical professional within the scope of his or her practice and with the pregnant individual’s consent or the consent of an individual who may lawfully provide consent on her behalf or without consent as necessitated by a medical emergency.” MCL 750.90f(1)(b).
- “The lawful dispensation, administration, or prescription of medication.” MCL 750.90f(1)(c).
FETUSES ARE CONSIDERED VICTIMS UNDER MICHIGAN LAW
In People v Ambrose, 317 Mich App 556, 565; 895 NW2d 198 (2016), the Michigan Court of Appeals upheld scoring offense variable 9 for the number of victims endangered by the felonious assault by including the fetus in the pregnant victim’s body.
Michigan has an indeterminate sentencing scheme, meaning that offenders are usually sentenced to a prison term that has a minimum and maximum term of years. Someone who is convicted of committing acts of terrorism might receive a sentence of twenty years to forty years in prison from the judge. The twenty-year minimum sentence is the earliest opportunity that the offender may be released on supervision by the parole board. The forty-year maximum is the “tail” that the offender could serve if they were unable to be released on parole.
For the trial court to determine the appropriate minimum sentence, it must calculate the range under Michigan’s sentencing guidelines scheme. This is done by referring to a chart that requires the court to score points for certain prior record variables (up to 75 points) and certain offense variables (up to 100 points). Prior record variables are aggravated by the existence of a prior criminal or juvenile record, while offense variables are aggravated by factors such as the use of a weapon, acting as the leader in a group, intent to kill, sadism, or the existence of death or bodily injuries. As an example, when considering the offender’s prior record and certain facts related to the conviction, the sentence guidelines may recommend that the minimum term should be somewhere between 81 months and 135 months. The trial court can select a minimum term from that range (unless there is some kind of legal basis to exceed or deviate below those guidelines).
One of the offense variable factors that the court must consider when scoring sentencing guidelines is the number of victims involved. According to MCL 777.39, “[o]ffense variable 9 is number of victims. Score offense variable 9 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:”
- “(a) Multiple deaths occurred….. 100 points.”
- “(b) There were 10 or more victims who were placed in danger of physical injury or death, or 20 or more victims who were placed in danger of property loss….. 25 points.”
- “(c) There were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss….. 10 points.”
- “(d) There were fewer than 2 victims who were placed in danger of physical injury or death, or fewer than 4 victims who were placed in danger of property loss….. 0 points.”
In People v Ambrose, the defendant pled guilty to feloniously assaulting his pregnant girlfriend, including wrestling her out of her wheelchair, threatening her with a knife, punching her in the abdomen, and holding her head under water. At sentencing, the trial court concluded that OV 9 was properly scored at 10 points because two to nine victims had been placed at risk of bodily injury or loss of life. The Michigan Court of Appeals agreed:
“In this case, the trial court identified conduct by defendant that placed the fetus at risk of bodily injury or loss of life, not only as an indirect result of the risk of death or harm to the victim-mother but also as a direct result of blows to the victim-mother’s abdominal area. Under the circumstances of this case, and without declaring the fetus in this case to be a person under the law, we conclude that the trial court did not err by counting the fetus as a victim for purposes of scoring OV 9.” 317 Mich at 564-565.
THE BOTTOM LINE
Michigan’s Fetal Protection Act creates criminal liability where the individual charged may not have any knowledge or reason to know that the victim was pregnant. For example, assaulting a woman where she escapes with minor injuries but her unborn child is killed can result in up to 15 years in prison, even when the defendant had no knowledge, intent or willfulness to harm or kill an unborn child. When the stake are this high, you need a skilled criminal defense lawyer on your side that will assert any and all available defenses and hold the prosecutor to proving guilt beyond a reasonable doubt. You cannot afford to settle for anything less.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
