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DENVER -- Chris Watts is facing 9 felony charges in the alleged killing of his pregnant wife and two little girls but it's the charge involving the unborn child that's causing debate.
Watts is facing unlawful termination of a pregnancy, a class two felony because his wife was pregnant when she died.
Shanann Watts was 15 weeks pregnant and had posted a picture of the ultrasound on Facebook. Family members say she planned to name the baby boy Niko.
Stories about the case have received a lot of comments asking how Colorado's law applies in this case; others wanted the unborn baby to be recognized. People have asked is why Watts isn’t being investigated for murder charges in the death of his and his wife Shanann’s unborn child.
There are 38 states that have fetal homicide laws on the books, according to the National Conference of State Legislatures, though Colorado is not one of them. However, Colorado does have several criminal statutes that apply specifically to crimes committed against pregnant women.
Perhaps chief among them is the state’s “unlawful termination of a pregnancy” statute, which is a class 3 felony.
"The killer wasn't trying to kill the pregnancy, the killer was trying to kill the mother and the child so to equate a child with a pregnancy, those are two different things," said Bob Enyart, a spokesperson with Colorado Right to Life.
Enyart has been pushing for a fetal homicide statute and asked the legislature to adopt a single sentence bill that he believes would recognize unborn victims of crime.
The most high-profile case in which “unlawful termination of a pregnancy” was used was in the trial of Dynel Lane, who was convicted on the charge as well as attempted murder and other charges in 2016 after she cut the fetus from a Longmont woman’s womb a year earlier. In that case, the mother lived but the baby died. It was at 34 weeks of gestation when the incident happened.
Stan Garnett was the Boulder County District Attorney at the time and oversaw prosecution of Lane. Now an attorney with Denver-based Brownstein Hyatt Farber Schreck, Garnett is one of the top experts on how Colorado deals with deaths involving unborn children.
He talked about the statute in an interview with Denver7, discussing how it could be used in the Watts case and explaining why it would be difficult for Weld County prosecutors to file a murder charge related to the unborn child in the case.
“Under both Colorado statute as it’s interpreted by the Colorado Supreme Court and Colorado case law, unless a child is born alive and is then killed after living independently from the mother, it’s virtually impossible to bring a homicide charge,” Garnett said.
Garnett went on to explain the facts a prosecutor would consider when making that decision.
“Colorado requires that the child live outside of the mother’s womb independently and then be killed as a result of something that occurs then," said Garnett.
After Lane was arrested in the case, some state lawmakers tried to pass a law that would have classified the killing of a fetus as a homicide in certain cases, but the bill failed, mostly over concerns that it infringed on women’s reproductive rights. Lane was convicted in the fetal abduction case and sentenced to more than 100 years in prison.
Garnett said that the emotion surrounding such bills and the politicization of the issue has made it difficult for lawmakers to agree. He himself says he doesn’t think a fetal homicide law is necessary in Colorado. State voters handily defeated a “personhood” measure that made the 2014 ballot 65 percent to 35 percent.
“In my view, we don’t need a fetal homicide issue. In fact, the statutes we have work pretty well,” he said. “The issue, of course, is these statutes implicate issues around a woman’s right for reproductive freedom. And trying to fashion a statute that will deal with what we all believe needs a criminal penalty without impacting the constitutional right to choose is very difficult and very emotional.”
Garnett said he thinks the unlawful termination of a pregnancy law “does a pretty good job of threading the needle.”
He said that while reviewing evidence in the Lane case, he received at least 5,000 emails from all over the country about the case and potential charging decisions.