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State v. Deborah J.Z.5/26/1999
is a "human being" within the statutes for attempted first-degree homicide and first-degree reckless injury-is an issue of statutory construction. Statutory construction is a question of law that we review de novo. See State v. C.A.J., 148 Wis.2d 137, 139, 434 N.W.2d 800, 800 (Ct. App. 1988). The purpose of statutory interpretation is to discern the intent of the legislature, and, in doing so, our primary source will be the language of the statute itself. See State v. Eichman, 155 Wis.2d 552, 560, 455 N.W.2d 143, 146 (1990). We begin by reading the statute's language, and, if the language is unambiguous, we apply it to the facts at hand. See State v. Williams, 198 Wis.2d 516, 525, 544 N.W.2d 406, 410 (1996). When we are presented with a penal statute, the general rule is that such a statute should be strictly construed in favor of the accused. See State v. Wilson, 77 Wis.2d 15, 28, 252 N.W.2d 64, 70 (1977).
This appeal concerns the following statutes. First-degree intentional homicide is defined in § 940.01(1)(a), Stats., as "caus the death of another human being with intent to kill that person." And § 940.23(1)(a), Stats., provides that " hoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life" commits first-degree reckless injury. These sections both require that actions be taken against a "human being." "Human being" is defined in § 939.22(16), Stats., as "one who has been born alive." Therefore, the issue we need to address is whether the unborn child, M.M.Z., is a "human being" according to § 939.22(16).
Deborah's principal argument is that the legislature did not intend to include the actions of a pregnant woman vis-a-vis her unborn child under either statute because they apply only to one who causes death or injury to another human being who has been born alive. Any intent or indifference that she may have manifested by her continued dependence on, and abuse of, alcohol during her pregnancy was directed toward her own body and the unborn child she carried within her, not toward another human being.
Conversely, the State's position is that the plain language of the homicide and reckless injury statutes makes them applicable to Deborah. Under the State's interpretation, the definition of a human being does not specifically exclude an unborn child when the alleged perpetrator is the mother. As support, it argues that while Roe v. Wade, 410 U.S. 113, 158 (1973), states that an unborn child is not considered a human being, "there is still great wisdom, logic and common sense in the pre-Roe cases regarding the legal rights of fetuses." However, we need not delve into this strained argument, which asks us to resurrect the reasoning in cases overruled by the United States Supreme Court, because we agree with both parties that the plain language of both statutes ultimately determines the issue.
We pause briefly to note that our analysis of this case is not about the propriety or morality of Deborah's conduct while pregnant. Nor is it about her constitutional right to reproductive choice guaranteed in Roe. On the contrary, this appeal is one of statutory construction. Both parties assert that the statutes in question are unambiguous and clearly set forth the legislature's intent. We agree and, accordingly, proceed with considering the plain language of the statutes.
We determine that according to the plain language of the first-degree intentional homicide and first-degree reckless injury statutes, the legislature did not intend for these statutes to apply to actions directed against an unborn child. The legislature clearly intended to exclude an unborn child when it limited the definitio
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