Definition of Murder - Exceptions

CALIFORNIA PENAL CODE SECTION 187

  1.  

  1. This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

  1. The act was solicited, aided, abetted, or consented to by the mother of the fetus.

http://caselaw.lp.findlaw.com/cacodes/pen/187-199.html

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Slide 21 of 49


Most notable among the exceptions to the California murder law is section b.3., which allows the "mother of the fetus" to consent to the "death of the fetus". However, none of these exceptions to murder correspond to the exceptions listed under justifiable homicide (see below). The fetus is no in way attempting to commit a felony against the mother, but is doing what all fetuses do, including what you did as a fetus.

The terminology in the exceptions is bizarre, since the term "mother" implies relationship. How can a woman be the mother of a non-person (a fetus)? Doesn't the "death of the fetus" imply that it was alive? The law results in some rather unusual implications...

Full Text of Section 187

CALIFORNIA PENAL CODE
SECTION 187-199


187.
  1. Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
  2. This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:
    1. The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.
    2. The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.
    3. The act was solicited, aided, abetted, or consented to by the mother of the fetus.
  3. Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.1

Full Text of Section 197

CALIFORNIA PENAL CODE
SECTION 187-199
  1. Homicide is also justifiable when committed by any person in any of the following cases: 

  1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,

  2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,

  3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,

  4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.1

References Top of page

  1. CA Codes (pen:187-199)

http://godandscience.org/abortion/sld021.html
Last Modified June 14, 2008

 

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