Why Might the Cleveland Kidnapper Get Charged With Murder?

Niraj Chokshi

The government is wading into the murky waters of what constitutes a human life.

The prosecutor in the Cleveland kidnappings case said on Thursday that he plans to pursue murder charges against Ariel Castro—the now-infamous abductor of at least three women—“for each act of aggravated murder he committed by terminating pregnancies,” according to reports. Implicit in the charges is a question central to the abortion debate: Do fetuses count as persons? But, thanks to the way Ohio law is worded, there’s enough nuance that a conviction wouldn’t set any new abortion precedents, says Ohio State University criminal law professor Douglas A. Berman.

“As long as we don’t let the advocates take over the debate, we should be able to sort this out without any profound consequences to any other area of the law,” he said.

The reason is that the law the prosecutor is relying on is specific to this exact crime—one in which someone forces the “termination” of a woman’s pregnancy while in the process of committing any of a host of crimes, including rape and kidnapping. Here’s the part of the Ohio code that deals with the charge of “aggravated murder” (emphasis added):

2903.01 Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

That the justice system is set up to capture the nuances of the Ohio law doesn’t mean that abortion advocates on both sides will ignore the case, Berman says. To abortion opponents, it may represent an opportunity to underscore their belief that fetuses are living and abortion is murder whether it's at the hands of Castro or a physician. Supporters of abortion rights may feel the need to preempt such attacks, underscoring the differences between a medical procedure done at the behest of the mother and an assault on their pregnancy done without their consent.

“I suspect abortion policy advocates on both sides are likely to overestimate the potential significance of this case, but they’re not at all irrational for worrying that this case could end up moving the needle in their policy debate,” Berman said.

In fact, there’s some precedent: at least 38 states have laws—some like Ohio’s—against fetal homicide, according to the National Conference of State Legislatures. In 2011, two proposed bills in Mississippi and Georgia threatened to ensnare women who miscarried, too. But proponents of personhood, the movement to classify fetuses as living, say such claims are specious and most such bills are aimed at intentionally killing fetuses—through abortion or drug use in some cases.

The Ohio case may provide fodder in the debate, but as far as the legality goes, it's unlikely to set any new precedents.