Correction Appended: May 9, 2013
If the man accused of imprisoning three women for a decade inside his Cleveland home is convicted of the charges filed against him, it seems unlikely he will ever be released from prison. This week, prosecutors charged Ariel Castro with four counts of kidnapping and three counts of rape. Under Ohio law, each felony charge leveled against him carries a sentence of three to 11 years. He’s now being held on $8 million bond.
Some may be wondering why Castro wasn’t also charged with homicide. One of his victims, Michelle Knight, reportedly told investigators she became pregnant five times while in captivity and that Castro beat and starved her each time until she miscarried. According to the National Conference of State Legislatures, Ohio is one of at least 38 states whose homicide statute applies to the killing of unborn fetuses and one of at least 23 states that apply this statute to the earliest stages of pregnancy.
Building a fetal-homicide case against Castro could be very difficult, although Cuyahoga County prosecutor Tim McGinty said Thursday that his office is considering it, which could mean seeking the death penalty. Proving such a case, according to Katherine Hunt Federle, a criminal-law professor at Ohio State University, typically requires expert medical testimony based on physical examinations of the woman who miscarried and the fetus itself. Prosecutors would have to first prove that the pregnancies occurred and then that Castro’s action caused them to end in miscarriage.
“There is generally a rule that you have to have some evidence that a homicide was committed, so the mere testimony of the women may not be sufficient,” says Federle. “If you think about people who have been kidnapped or placed under stress, depending on what’s happened to them, their psychological states may be poor. Repeated interviews might enable a defense lawyer down the road to suggest that these women may not have actually recalled this information, that it was suggested to them. Everybody wants to be careful about this because their key witnesses are these three women.” So far, no detailed information has been publicly released detailing Knight’s ordeal or when her alleged pregnancies might have occurred, but any evidence that might have existed at the time may be long gone.
The first prosecution under Ohio’s fetal-homicide statute was in 1996, when Gregory Robbins beat his wife, who was eight months pregnant, causing the death of her unborn child. Outside Ohio, several high-profile criminal cases have led to the enactment of state fetal-homicide laws. In North Carolina, lawmakers passed a fetal-homicide law following the death of Jenna Nielsen, who was eight months pregnant when she was stabbed outside a convenience store near Raleigh in 2007. She and her unborn son both died. In Kentucky, lawmakers passed a fetal-homicide law following the death of Veronica Jane Thornsbury and her unborn child. Thornsbury was in labor and on her way to the hospital in a car when a truck struck the vehicle.
After widespread news coverage of the Laci Peterson case in California, in which Scott Peterson was eventually convicted of murdering his wife Laci and her unborn child, Congress passed the Unborn Victims of Violence Act of 2004. The law, signed by George W. Bush, made it a federal offense to kill or injure a child in utero during the commission of another federally prosecutable violent crime. Pro-choice advocates opposed the law over concerns that its definition of the unborn as ”a member of the species homo sapiens, at any stage of development, who is carried in the womb” might be used to try to overturn laws protecting abortion rights.
As for Castro, if the existing case against him holds up in court, his chances of freedom will probably not hinge on whether he’s charged with killing unborn fetuses. “It may not matter in the long run because I suspect their goal of incarceration can be easily satisfied if they can prove beyond a reasonable doubt that he kidnapped these three women and held them in captivity and raped them. If he is convicted and receives the maximum sentences, he’s not going anywhere,” says Federle. “Given the amount of attention and publicity this case has had … it’s unlikely there would be a generously lenient sentence.”
Correction: A previous version of this article misidentified Katherine Hunt Federle’s employer. She is a law professor at Ohio State University, not the University of Ohio.