State v. Ashley
| Decision Date | 30 October 1997 |
| Docket Number | Nos. 87719,87750,s. 87719 |
| Citation | 701 So.2d 338 |
| Parties | 22 Fla. L. Weekly S682 STATE of Florida, Petitioner, v. Kawana M. ASHLEY, Respondent. Kawana M. ASHLEY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Bernie McCabe, State Attorney; C. Marie King, Assistant State Attorney and Douglas R. Ellis, Assistant State Attorney, Sixth Judicial Circuit, Clearwater, for Petitioner.
Bruce Johnson, Public Defender, Sixth Judicial Circuit, Clearwater, and Priscilla J. Smith, New York City, for Respondent.
Andrew H. Kayton, Miami, for amicus curiae American Civil Liberties Union Foundation of Florida, Inc.
Lenora M. Lapidus of Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for amicus curiae ACLU Cooperating Counsel.
Louise Melling, New York City, for amicus curiae Reproductive Freedom Project American Civil Liberties Union Foundation.
We have for review State v. Ashley, 670 So.2d 1087 (Fla.App. 2d DCA 1996), wherein the district court certified the following questions:
1. May an expectant mother be criminally charged with the death of her born alive child resulting from self-inflicted injuries during the third trimester of pregnancy?
2. If so, may she be charged with manslaughter or third-degree murder, the underlying predicate felony being abortion or attempted abortion?
Ashley, 670 So.2d at 1093. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the first question in the negative as explained below, and this renders the second question moot. We quash Ashley in part.
Although Kawana Ashley, an unwed teenager, was in the third trimester of pregnancy (she was twenty-five or twenty-six weeks pregnant), she had told no one. Her three-year-old son was being raised by her grandmother, Rosa, with whom Ashley lived, and Rosa had told Ashley that she would not care for another child if Ashley were to become pregnant again. On March 27, 1994, Ashley obtained a gun and shot herself. She was rushed to the hospital, underwent surgery, and survived. The fetus, which had been struck on the wrist by the bullet, was removed during surgery and died fifteen days later due to immaturity. 1
As a result of the death of the fetus, the State Attorney charged the teenager with alternative counts of murder 2 and manslaughter, 3 with the underlying felony for the murder charge being criminal abortion. 4 The trial court dismissed the murder charge but allowed the manslaughter charge to stand. The State appealed and Ashley cross-appealed. The district court affirmed, certifying the above questions.
The State argues that Ashley was properly charged with both murder and manslaughter, reasoning thusly: Ashley violated the criminal abortion statute, section 390.001, Florida Statutes (1993), by performing a third-trimester abortion on herself with a .22 caliber firearm without certification of necessity by two physicians; because the fetus died as a result of the uncertified procedure, the teenager committed third-degree murder under section 782.04, Florida Statutes (1993); and further, because the fetus was born alive, Ashley committed manslaughter under section 782.07, Florida Statutes (1993). We disagree.
At common law, while a third party could be held criminally liable for causing injury or death to a fetus, the pregnant woman could not be:
At common law an operation on the body of a woman quick with child, with intent thereby to cause her miscarriage, was an indictable offense, but it was not an offense in her to so treat her own body, or to assent to such treatment from another; and the aid she might give to the offender in the physical performance of the operation did not make her an accomplice in his crime. The practical assistance she might thus give to the perpetrator did not involve her in the perpetration of his crime. It was in truth a crime which, in the nature of things, she could not commit.
State v. Carey, 76 Conn. 342, 56 A. 632, 636 (1904). Courts differentiated between those actions taken upon oneself and those taken by a third party:
Ordinarily, a man may injure his own body by his own hand or the hand of an agent, without himself violating the criminal law. And the person who injures his body with such assent may commit a crime of which the injured party is not guilty. A murderer cannot justify himself by proving the assent of his victim. Noninterference with a man's control of his person is not extended to the disposition of his life; but taking his own life is a thing distinct from the crime of murder. If a man in a moment of weakness should assent to the opening of a vein by another for the purpose of taking his life, and, when in the immediate expectation of death, make a statement of the facts attending the assault, it would hardly be claimed, upon trial of his assailant for felonious killing, that the dying declaration must be received with all the infirmities attending the testimony of an accomplice in the crime. This distinction between a man's injuring his own body himself, or through assent to such injury from another, and the crime that may be committed by another in inflicting such injury, has been strongly drawn in crimes akin to the one under discussion.
Ultimately, immunity from prosecution for the pregnant woman was grounded in the "wisdom of experience":
While it may seem illogical to hold that a pregnant woman who solicits the commission of an abortion and willingly submits to its commission upon her own person is not an accomplice in the commission of the crime, yet many courts in the United States have adopted this rule, asserting that public policy demands its application and that its exception from the general rule is justified by the wisdom of experience.
Basoff v. State, 208 Md. 643, 119 A.2d 917, 923 (1956). The woman was viewed as the victim of the crime. See, e.g., Richmond v. Commonwealth, 370 S.W.2d 399, 400 (Ky.1963) (). 5 The criminal laws were intended to protect, not punish her. See, e.g., Gaines v. Wolcott, 119 Ga.App. 313, 167 S.E.2d 366, 370 (1969) (). 6
The common law that was in effect on July 4, 1776, continues to be the law of Florida to the extent that it is consistent with the constitutions and statutory laws of the United States and Florida:
2.01 Common law and certain statutes declared in force.--The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
§ 2.01, Fla. Stat. (1993). Even where the legislature acts in a particular area, the common law remains in effect in that area unless the statute specifically says otherwise:
The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.
Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla.1990) (emphasis added) (citations omitted).
In the present case, none of the statutes under which Ashley was charged "unequivocally" state that they alter the common law doctrine conferring immunity on the pregnant woman. See §§ 390.001, 782.04, 782.07, Fla. Stat. (1993). In fact, none even hint at such a change. Id. Nor are any of the statutes so repugnant to the common law that the two cannot coexist. 7 Accordingly, we conclude that the legislature did not abrogate the common law doctrine of immunity for the pregnant woman.
The State's reading of the present statutes has other flaws. First, the concept of a self-induced abortion via .22 caliber bullet is dubious in itself and is highly questionable as a procedure intended to be regulated by section 390.001. 8 Second, prosecution for third-degree murder based on the unenumerated felony of criminal abortion is an oxymoron--i.e., the third-degree murder statute requires an accidental killing, 9 while the criminal abortion statute requires an intentional termination of pregnancy. 10 ' 11 Under the State Attorney's scenario, a woman could be charged with, and face imprisonment for, an "accidental intentional" crime--whatever that phrase might mean. And third, to allow prosecution for manslaughter would require that this Court extend the "born alive" doctrine 12 in a manner that has been rejected by every other court to consider it. 13
Based on the foregoing, we answer the first certified question in the negative as explained herein, and this renders the second question moot. Under the current statutory scheme, the State Attorney for Pinellas County cannot prosecute the teenager in the present case, Kawana Ashley, for either murder or manslaughter. Sections 782.04 and 782.07 contain no indication whatsoever that the legislature intended to modify the common law principles adopted in section 2.01 by eliminating the immunity of the pregnant woman.
We reached a similar result in Johnson v. State, 602 So.2d 1288 (Fla.1992), wherein we held that a pregnant woman cannot be held criminally liable for passing cocaine in utero to her fetus. The relevant statutory section, we concluded, contained no indication of legislative intent to prosecute the woman. 14 Medical science prescribes rehabilitation, not imprisonment, for the offender:
[Various] considerations have led the American Medical Association Board of Trustees to oppose criminal sanctions for harmful behavior by a pregnant woman toward her fetus and to advocate that pregnant [offenders] be provided with rehabilitative treatment appropriate to...
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