For most folks, Christmas – or any other holiday – is a holiday where talking politics at the family gathering is taboo. In a way, my family is no different. My father and I, however, inevitably find a way to skirt the rules and sample the forbidden fruit every holiday. Thus, I arrived three hours early for Christmas dinner this year – far enough in advance to avoid a general conflagration, but not so far in advance as to leave a pile of cold coals.
I expected to talk about the election lawsuits and national affairs. My father, however, wanted to talk about the case of Chelsea Cheyenne Becker.
Ms. Becker is now 26, and, on September 10, 2019, she gave birth to a stillborn child at a California hospital. When her family members informed police that she might have used drugs while pregnant, the Kings County coroner conducted a forensic autopsy and concluded that the child’s death was due to “toxic level of methamphetamine” in the baby’s system. Police subsequently arrested her, and the Kings County District Attorney filed murder charges against her for overdosing a late-term viable fetus. She has been awaiting trial in jail for the past ten months because her bond is $5 million.
My father’s first question was regarding her charges. Does the state have a chance at proving that she is guilty of murder? My answer was immediately yes. While the state usually needs to prove specific intent to kill to support a murder charge, English common law historically recognized an exception to this general rule: depraved heart murder. Under the depraved heart murder exception, the state can carry its burden of proving intent by showing that a person willfully committed a dangerous and/or reckless act with wanton indifference to its perils and consequences.
The statute under which California charged Ms. Becker mirrors the common law. It requires the state to prove that she acted with malice aforethought. In murder prosecutions, malice aforethought has historically been satisfied when the state can prove that someone acts with extremely reckless disregard for human life. You would be hard pressed to find a jury that would not conclude that taking meth while pregnant is not acting with extreme disregard for human life.
Thus, legally speaking, Ms. Becker is likely guilty of murdering her unborn child.
California’s attorney general, however, took a different view and filed an amicus brief in support of Ms. Becker’s attempt to dismiss the charges against her. The brief primarily advances statutory interpretation arguments, but the main thrust of its arguments on the merits is that the statute does not allow the murder prosecution of a woman for her actions or omissions that might result in the loss of her pregnancy. It closes with a stark warning that allowing the state to charge Ms. Becker with murder would result in potential criminal liability for a whole host of decisions that women make during their pregnancies – smoking, improper diet, failing to wear a seat belt, exercise decisions, etc.
The attorney general’s position is a hardline one that was sure to draw the ire of the pro-life movement. His arguments advance the absolute contentions that characterize the abortion debate and sound in an argument for a woman’s absolute immunity for any decisions regarding her pregnancy. His brief also ends with the fearmongering that characterizes most opposition to pro-life restrictions. In other words, I read his brief as arguing in defense of accidental, self-help abortion
I frankly find California’s position to be laughable at this point. If mercy exists for Ms. Becker under the historical traditions of the common law, it would come in the form of a diminished capacity defense as the result of her drug use. Diminished capacity defenses allow a defendant to plead that her mental powers were severely reduced and affected her actions to the point where it would be impossible to say that she consciously made an intentional choice, thus potentially enabling her to mitigate her conviction to the less harsh offense of manslaughter. California, however, abolished diminished capacity defenses in 1982 by ballot initiative because of the Twinkie defense. Thus, its law shows no mercy to Ms. Becker.
At the same time, the attorney general’s fearmongering reflects either a willful ignorance or a complete misunderstanding of malice aforethought. The state cannot impose criminal liability on someone under a recklessness theory unless it can prove extremely reckless disregard for human life. His warnings about smoking, improper diet, failing to wear a seat belt, and exercise fall far short of the extremely reckless disregard standard.
As my father pointed out when I explained the legal situation to him, Ms. Becker is sick – a hostage who has lost control of her will to what appears to be a drug addiction. She did take the life of another human being, and the law should punish her for that.
In this case, however, the law’s formality does not match human reality. Unless Ms. Becker’s lawyer makes a long shot run at jury nullification and miraculously succeeds, she will be convicted of murder. She will then spend most, if not all, of her remaining days in prison regardless of how “rehabilitated” she becomes – a life wasted by the bondage of drugs and harsh formality of the law.
Hardened perhaps, I leaned forward on my parents’ couch and coaxed my father out of the legal world for a second. What about that child’s soul, I asked? If we are all conceived in sin and birthed in iniquity as Psalm 51:5 states, did Ms. Becker send her child’s soul straight to eternal torment? If so, how could I feel sympathy for Ms. Becker if she damned her own child’s immortal soul?
I don’t know if I was continuing the conversation so much as seeking answers that I didn’t have for myself. Defending folks like Ms. Becker is my life’s calling. Feeling sympathy, or the spiritual concern that my father does as a minister, for them is a measure of grace that I have yet to obtain.
My father paused. While we are all conceived and born with a fallen moral nature, we retain a free will. In other words, we are not unalterably predestined for salvation or damnation. God’s government and God’s law judges us for our choices, not our accident of conception. Ms. Becker’s stillborn child did not have the capacity to choose, and a just and loving God could not condemn it to eternal torment for the accident of conception.
I, however, was unsatisfied. Where does the line of a sufficiently developed will get drawn for a child, I queried? We don’t know. We can only speculate. The truth is that only God can judge that line, and our faith is that, because He is just and good, His judgements will be justified and correct.
I don’t know everything I left my parent’s house with after gorging on Mom’s home cooking, but I did leave with sympathy and a concern for Ms. Becker. She committed a horrible sin – murder – and human law will likely be impervious to a painful reality of life. God’s grace, however, is more than capable of redeeming her. For one, I pray that she finds it.