The Murder of a Baby: A Statutory Commentary

By Sosamma Samuel-Burnett, J.D.
Founder, G.L.O.B.A.L Justice

The case of Dynel Lane of Longmont, CO, who attacked a pregnant woman and killed her 7 month old unborn child, is shocking on many levels. Not only is this a particularly grisly crime, but it raises several questions for how and to whom we apply the protection of the homicide laws. Most significantly, at what point does a baby receive protections against murder?

In this case, a pregnant woman went to Dynel Lane’s home to pick up baby items listed on Craig’s List. When she arrived, Dynel Lane attacked her abdomen, cut away the child that was in utero, and left the baby to die in a bath tub. In addition, Lane’s husband reportedly saw the baby and saw the baby breathing before its death.

At 7 months, there is no question that the child would be born premature, but there is also overwhelming medical support for the child’s viability at that stage of development. In addition, there is no indication that there were any issues with the baby’s health or ability to survive premature birth, barring traumatic circumstances. So, in this case, the baby was born, though forcibly, and would likely have survived but for the trauma inflicted by Lane.

Local news articles seem to indicate that despite these facts, a first degree murder charge would not likely apply in this case. They base this claim on the Colorado statute that states that the victim must be a human being “who had been born and was alive at the time of the homicidal act.” But there is no apparent clarity in the statute about what constitutes birth or life in terms of age, or in terms of the duration of the period between birth and life. As such, the application of the Colorado homicide laws, under this lens and given the ambiguity, hinges not on any necessary protections to the baby if the facts indicate murder, but on whether the baby was born and alive at the time of the act. This approach presents a dangerous application of the ambiguous statute and leaves babies vulnerable under homicide laws, even when the facts would support a murder charge.

In a first degree murder trial in Colorado, a jury would be instructed to consider the elements of the crime of murder in the first degree as follows:

  1. That the defendant,

  2. in the State of Colorado, at or about the date and place charged,

  3. after deliberation, and with intent

    • to cause the death of a person other than himself,

    • caused the death of __________________.

By these instructions and with these elements, the jury would need to review the facts of the case to determine deliberation and intent and to determine that the cause resulted in death to another person. Based on the facts of the Lane case, the jury could likely find deliberation and intent, and could likely also conclude that her actions are what caused the death of the baby. However, the ambiguity in the statute would leave questions about the status of the baby in utero and whether the baby once forcibly removed from the mother’s womb would constitute a “person” for a murder charge to apply.

That does not mean, however, that babies in utero should not be protected. Colorado has a range of fetal homicide provisions that specify sentencing for related crimes as follows:

Colo. Rev. Stat. §18-1.3-401 (13) specifies that a court shall sentence a defendant convicted of committing specified offenses against a pregnant woman, if the defendant knew or reasonably should have known that the victim was pregnant, to a term of at least the midpoint, but not more than twice the maximum, of the presumptive range for the punishment of the offense.

Colo. Rev. Stat. §18-1.3-501 (6) establishes that a court shall sentence a defendant convicted of assault in the third degree to a term of imprisonment of at least six months, but not longer than the maximum sentence authorized for the offense, if the victim of the assault was a pregnant woman and the defendant knew or should have known that the victim was pregnant.

Colo. Rev. Stat. §18-1.3-1201 defines aggravating factors in the sentence of death or life imprisonment. The law defines the intentional killing of a pregnant woman with the knowledge that she was pregnant as an aggravating factor.

These sections of the statutes indicate both a priority and a protection specifically for pregnant women and their unborn babies.

In addition, comparisons to other cases such as the Brady case are distinguishable. In the Brady case, Heather Surovik’s unborn child, Brady, was killed in a car accident in the 8th month of pregnancy. The driver who caused the accident pleaded guilty to vehicular assault and driving under the influence, but was not prosecuted for the death of the unborn child. However, in the Brady case, there was no intent to murder and there was no forced birth and later death. The death of Brady was the result of the vehicular assault resulting from the DUI, rather than the deliberated intended death by direct actions as in the Lane case.

So, from the facts that are known in Dynel Lane’s case, a jury may likely have sufficient facts to determine both intent and cause of death for a murder conviction, unless other defenses are presented. And, since Lane’s husband stated he saw the baby and saw the child take a breath, his statement confirms that the child was indeed “born” (was no longer within the mother’s womb) and the breathing indicates the baby was alive at the time of birth. Since the statute is vague on how long the duration needs to be between birth and death, the later death, even if moments later, is a significant factor in this case. If the baby was alive, would otherwise be viable, and would have survived, but for the trauma inflicted by Lane, and if a jury finds that Lane did in fact have the required intent, then this is an act of murder, not incidental to other criminal acts, and should be presented as such in the court of law.

Most importantly, regardless of the technicalities of legal proceedings and the ambiguities of statutory interpretation, the broader purposes of law should be noted. Laws not only define, instruct, and determine proceedings; they are in place to protect. There is nothing more important to protect than life. And when there is a criminal act that takes a life, that life should not be gauged solely by the age of a human, or whether they are in or outside of the womb, but by the potentials of that life that were extinguished by the criminal act.

The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.