Questions raised in Ohio gunpoint abortion case

[October 22, 2010]  COLUMBUS, Ohio (AP) -- A case is unfolding in Ohio that sounds like a hypothetical dreamed up by a law school professor.

The facts of the case: A man is accused of trying to force his pregnant girlfriend at gunpoint to get an abortion. The question: Can he be charged with attempted murder of her unborn child?

In what may be a precedent-setting case, prosecutors have leveled such a charge against Dominic Holt-Reid under a 1996 Ohio fetal homicide law that says a person can be found guilty of murder for causing the unlawful termination of a pregnancy.

Police say Holt-Reid, 27, pulled a gun Oct. 6 on his three-months-pregnant girlfriend, Yolanda Burgess, and forced her to drive to an abortion clinic. Burgess, 26, did not go through with the procedure; she managed to slip a note to a clinic employee, who called police.

Ohio's law and ones similar to it in dozens of other states have been routinely used to win convictions in auto accidents in which a pregnant woman died, and instances in which a mother-to-be was attacked physically.

But legal experts said they are hard-pressed to find a case similar to Holt-Reid's, and they are split over whether the prosecution is likely to succeed.

"It would be highly unlikely that anyone could reasonably think there would be a completed act here, as he would have had to convince someone at the clinic to then complete the abortion," said Lisa Smith, a professor at Brooklyn Law School.

But Michael Benza, a criminal law professor at Case Western Reserve University, said that on the face of it, the facts are against Holt-Reid. "The law for attempt is taking overt steps toward the completion of a crime," Benza said. "He certainly took steps toward the charge of unlawful termination of pregnancy."

"It's creative, but I don't know that it's necessarily far-fetched," said Richard Kling, clinical law professor at Chicago-Kent College of Law.

Franklin County prosecutor Ron O'Brien, who brought the case, said he is confident the evidence backs up the charge.

"He at gunpoint abducted her, at gunpoint got in the car with her, at gunpoint forced her to drive the car to the abortion clinic, at gunpoint threatened her, 'Go in there and carry it out,'" O'Brien said.

Holt-Reid, a full-time college student and father of six, including a 5-year-old with Burgess, pleaded not guilty and was jailed on $350,000 bail. Court records did not list an attorney for him Thursday.

At least 38 states have fetal homicide laws increasing penalties for crimes against pregnant women, according to the National Conference of State Legislatures. The question of whether homicide charges can be brought in connection with the death of a fetus is well-settled across the country.

[Associated Press; By ANDREW WELSH-HUGGINS]

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