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Murder of unborn child

Explaining the Aaron Fitzpatrick verdict

Friday's guilty verdict for Aaron Fitzpatrick – the 22-year-old South Philadelphia man a Philadelphia jury found shot and killed his girlfriend, Tiffany Gillespie, 24, after she told him she was pregnant with his child -- confused some readers.

Not the first-degree murder verdict for killing Gillespie. Readers and the jury seemed to have no problem accepting Fitzpatrick's confession to homicide detectives, his DNA on the .38-caliber revolver that fired the shot that killed Gillespie and her blood on his clothing. Gillespie was sentenced to life in prison without parole.

It was that second verdict for the murder of an unborn child – Gillespie's five-month-old fetus, which died shortly after Gillespie was shot in the head – that threw some readers. Why aren't women who obtain abortions and those involved in the procedure charged with murder as well?

Hard as it might be to believe, the apparent inconsistency and confusion comes from the Pennsylvania legislature, which in 1997 enacted the Crimes Against the Unborn Child Act. The act expanded the state's definitions of the various degrees of murder, voluntary manslaughter and aggravated assault to include the unborn, defined in the law as "an individual organism of the species homo sapiens from fertilization until live birth."

That was not the case before 1997 because a fetus, or unborn child, is not considered a person under the law. The 1997 law stopped short, however, of the goal of some anti-abortion groups: giving fetuses the Constitutional rights of living people.

Philadelphia Assistant District Attorney Joanne Pescatore acknowledged the confusion the 1997 law causes. Unlike Pennsylvania's Abortion Control Act, which regulates when an abortion may be legally performed based on the gestational age of the fetus, the 1997 does not recognize fetal viability; prosecutors may file criminal charges involving the death of any fetus at any age and at any time – there is no statute of limitations.

But the Unborn Child act exempts from prosecution women, medical providers and others who perform legal abortions in Pennsylvania, a perhaps-reluctant legislative nod to the fact that the U.S. Supreme Court had already affirmed the Constitutionality of the state abortion control law in 1997.

The jury did get one thing wrong. It found Fitzpatrick guilty of first-degree murder -– a premeditated, malicious killing -- of Gillespie but of the lesser crime of third-degree murder – an unpremeditated but still malicious killing -- for the death of her unborn child, which turned out not to be his after all. Legally, Pescatore said, the premeditated malicious killing of a pregnant woman equals the premeditated malicious killing of her unborn child; the degree of murder should have been the same.

Inconsistent laws often have trouble on appeal. Inconsistent jury verdicts are legally acceptable.