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§ 940.01, Intentional Homicide — definitions – “human being” – fetus

State v. Deborah J.Z., 228 Wis.2d 468, 596 N.W.2d 490 (Ct. App. 1999), affirmed by equally divided vote, 225 Wis.2d 33, 590 N.W.2d 711 (1999)
For Deborah J.Z.: Sally Hoelzel

Holding: An unborn child is not a “human being” under the controlling definition in § 939.22(16), and the defendant therefore can’t be charged with attempting to kill and injure her fetus by excessive drinking during her pregnancy. “Simply put, to be convicted of attempted first-degree intentional homicide and first-degree reckless injury, Deborah must attempt to kill or injure someone who has been born alive. This is not what Deborah was charged with doing. The decision whether to include an unborn child in the definition of a ‘human being’ is a policy issue best addressed by our legislature. We read § 939.22(16), STATS., to have definitively answered this question; the legislature clearly intended to exclude an unborn child by defining a ‘human being’ as one who has been born alive.”

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