Prosecutors in Mecklenburg County may be the first in the State to seek an indictment for the unlawful killing of an unborn child under a recently enacted statute. The State of North Carolina versus Mark Anthony Cox arises out of a set of facts that may avail itself to the application of “The Unborn Victims of Violence Act/Ethen’s Law.” To view the full text of the law, see http://www.ncga.state.nc.us/Sessions/2011/Bills/House/PDF/H215v6.pdf.
In recent weeks, the Charlotte Observer reported that prosecutors charged Cox with the murder of Danielle Watson just over one month after Ethen’s Law went into effect on December 1, 2011. Cox and Watson were coworkers at the Flying Biscuit Café in South Charlotte, and Watson was eight weeks pregnant at the time of her death. At Cox’s first court appearance at the Mecklenburg County Courthouse, the District Attorney’s Office indicated that it will seek a separate indictment for the death of Watson’s unborn child under “The Unborn Victims of Violence Act/Ethen’s Law.”
The purpose of Ethen’s Law is to create a criminal offense for violent acts committed against a pregnant woman and violent acts that cause death or injury to an unborn child. The law provides the State with the ability to charge a defendant with two separate offenses for the same violent act(s). In other words, the State may charge a defendant with both a crime against an expectant mother and a crime against her unborn child.
The idea for this law gained momentum in 2007 after 22-year old Jenna Nielson was tragically and violently murdered in Raleigh, North Carolina. At the time of Jenna’s death, she was eight months pregnant with her unborn son, whom she was planning to name Ethen, according to the family’s website, www.justice4jenna.org.
While North Carolina is not the first state to enact such a law, the Mark Anthony Cox case would be the first application, on a local level, of a law that separately criminalizes violent acts to unborn children in this manner. For several reasons, North Carolina’s statute is likely to raise contentious issues as prosecutors argue for its application, defense attorneys argue against its application, and the court attempts to interpret the language of the statute.
One provision that may come to light as the media covers the first case to apply the statute, which according to prosecutors will be the Mark Anthony Cox case, relates to defining an unborn child. The statute provides, “[a]s used in this Article only,” an unborn child is defined as a “member of the species homo sapiens, at any stage of development, who is carried in the womb.” This definition contrasts with that of North Carolina’s abortion laws, which distinguish between the life of fetus before and after 20 weeks. To view North Carolina’s abortion laws, see http://www.ncga.state.nc.us/enactedlegislation/statutes/pdf/byarticle/chapter_14/article_11.pdf.
Another statutory provision that may invite media attention is that knowledge of a woman’s pregnancy is not a required element of the crime. The State need not prove the defendant knew or should have known the woman was pregnant. Nor must the State prove the defendant intended harm to the unborn child.
Although these legal questions may be left unanswered for some time, the first application of the statute is sure to spark some controversy and scholarly debate. For the Charlotte Observer’s most recent news story on the Mark Anthony Cox case, visit http://www.charlotteobserver.com/local/ and search “Mark Anthony Cox.”