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State v. Deborah J.Z.5/26/1999
n of a "human being" to include only "one who has been born alive." See § 939.22(16), Stats.
For example, in ninety-one different sections of the Wisconsin Statutes the legislature has specifically included the words "unborn child." See, e.g., chs. 48, 940, and § 940.195, Stats. This illustrates that the legislature is in the practice of considering and protecting the rights of unborn children in this state. Particularly noteworthy is the fact that other subsections within the very sections with which Deborah is charged contain protections for an unborn child. See §§ 940.01(1)(b), 940.23(1)(b), Stats. If a statute contains a given provision, "the omission of such provision from a similar statute concerning a related subject is significant in showing that a different intention existed." Kimberly-Clark Corp. v. Public Serv. Comm'n, 110 Wis.2d 455, 463, 329 N.W.2d 143, 147 (1983) (quoted source omitted). When the legislature in one subsection of a statute specifically criminalizes death or injury to unborn child victims, but in another subsection uses the general designation of "human being" victims, we conclude that the legislative intent is manifest-an unborn child is not to be included in the definition of "human being." On the contrary, the legislature has purposefully designed certain subsections to protect the interests of unborn children.
Moreover, we reject the State's contention that a "human being" can be an unborn child where the alleged perpetrator is the mother. There is no support for this argument in the statutory language. We are obligated to avoid construing a statute in a manner that produces absurd results. See Jungbluth v. Hometown, Inc., 201 Wis.2d 320, 327, 548 N.W.2d 519, 522 (1996). In this case, it would be absurd to conclude that a "human being" can be an unborn child if the perpetrator is the mother, where the definition of "human being" includes only persons who have been born alive.
Additionally, in State ex rel. Angela M.W. v. Kruzicki, 209 Wis.2d 112, 137-38, 561 N.W.2d 729, 740 (1997), the supreme court held that because the legislature did not intend to include an unborn child within the definition of "child," CHIPS (child in need of protection or services) jurisdiction could not be exercised to protect an unborn child even in the case of prenatal drug use. There, the court determined that the legislature intended "child" to mean "a human being born alive" for purposes of a CHIPS proceeding. See id. at 127-28, 561 N.W.2d at 736. The court reasoned that because the legislature specifically provides for the protection of an unborn child in some statutes, this "demonstrates the ease and clarity with which the legislature may, if it so chooses, apply a statute to the unborn." Id. at 132, 561 N.W.2d at 738. We likewise determine that the legislature thoughtfully chose the wording of its definition of "human being" and, in doing so, did not choose to include an unborn child.
Even though Deborah's actions were egregious, we decline the State's overture to give the statute such a broad construction. Under such a construction, a woman could risk criminal charges for any perceived self-destructive behavior during her pregnancy that may result in injuries to her unborn child. Any reckless or dangerous conduct, such as smoking heavily or abusing legal medications, could become criminal behavior because the actions were taken while the woman was pregnant. "Taken to its extreme, prohibitions during pregnancy could also include the failure to act, such as the failure to secure adequate prenatal medical care, and overzealous behavior, such as excessive exercising or dieting." Hillman v. Georgia, 503 S.E.2d 610, 613 (Ga. Ct. App. 1998).
Additio
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