UPDATE: Dynel Lane will not face murder charges in the death of Michelle Wilkins' unborn child. Instead, she has been accused of eight felonies, including unlawful termination of a pregnancy, attempted first-degree murder, and both first- and second-degree assault.
Will Dynel Lane be charged with murder for the death of a seven-month fetus that authorities say she cut from a pregnant woman's womb? That may depend on the results of an upcoming autopsy.
District attorney Stan Garnett said at a press conference on Thursday that his office will be considering whether the baby was ever alive.
"Under Colorado law, essentially, there's no way murder charges can be brought if it's not established that the fetus lived as a child outside the body of the mother for some period of time," Garnett said.
How long "is not terribly clear," he said: "The Supreme Court and the Court of Appeals will get to tell us that eventually."
In 2013, lawmakers rejected a Republican-backed bill that would have allowed homicide charges to be brought against anyone who committed a crime that caused the death of "an unborn member of the species homo sapiens." One of the backers of the bill was Heather Surovik, a Longmont mother who was hit by a drunk driver when she was pregnant. Surovik's unborn son, whom she'd already named Brady, didn't survive.
Democrats called the Republican-backed bill "a Trojan horse for personhood," and it failed along party lines. Democrats then introduced their own bill aimed at addressing crimes against pregnant women. House Bill 1154 passed into law, creating several degrees of a crime called "unlawful termination of pregnancy." For example, the law says that "a person commits unlawful termination of pregnancy in the first degree if, with the intent to terminate unlawfully the pregnancy of a woman, the person unlawfully terminates the woman's pregnancy."
If the woman survives, unlawful termination of pregnancy in the first degree is a class 3 felony. If the woman dies, it is a class 2 felony. By comparison, first-degree murder is a class 1 felony and carries a minimum sentence of life in prison without parole.
Heather Surovik speaks at a press conference in 2013 as her mother holds a photo of Surovik's unborn son Brady.
Surovik didn't think the Democrats' bill went far enough, and she led a campaign for a constitutional amendment that would have treated unborn babies the same as children and adults in the Colorado criminal code. Amendment 67 would have allowed a person suspected of killing a fetus to be charged with homicide. It was backed by the pro-life group Personhood USA.
Opponents of Amendment 67 said the measure could have been used to ban abortion in Colorado, a claim supporters didn't deny. The amendment, which supporters nicknamed "the Brady Amendment," failed in November 2014 with 65 percent of voters rejecting it.
Now, Personhood USA is speaking out about the Lane case. "It’s so tragic," says spokeswoman Jennifer Mason. After hearing Garnett's comments about the charges, she says, "the first thing we thought of was the Brady Amendment." Had it passed, Mason believes there would have been no question about the charges the DA could bring against Lane.
"It leaves us to wonder how many times will things like this happen before there's real justice for pregnant women," she says, adding that the case encourages her group and its supporters to try again. "Otherwise, criminals get away with murder."
Lane, 34, is accused of attacking 26-year-old Michelle Wilkins, who was seven months pregnant, and cutting the fetus from her womb. Wilkins had gone to Lane's Longmont home in response to a Craigslist ad for baby clothes, according to an arrest affidavit for Lane.
Lane was arrested when she showed up at the hospital in Longmont with the baby, claiming to have had a miscarriage, the affidavit says. That's the same story she allegedly told her husband, who told police that he came home to find his wife covered in blood and the baby in an upstairs bathtub. According to the affidavit, "He rubbed the baby slightly, then rolled it over to hear and see it take a gasping breath."
Lane's husband drove her and her the baby to the hospital, the affidavit says. Meanwhile, police responded to a 911 call from Wilkins, who was found bleeding in a basement bedroom. Wilkins was taken to the hospital and is expected to recover, but her baby did not survive. According to the affidavit, hospital staff told police that the seven-month fetus would have been viable.
Lane was arrested on suspicion of attempted first-degree murder, first-degree assault and child abuse resulting in death.
But she hasn't been formally charged with any crime. Garnett said he expects his office will file charges next week, after the autopsy is performed.
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"It's really important that we get it right," he said on Thursday.
Below, read House Bill 1154, the Democrat-backed measure that was signed into law in 2013.