Killing A Woman to Kidnap Her Fetus: Why This Is An Especially Appalling Murder

By SHERRY F. COLB
Wednesday, Dec. 29, 2004

Two weeks ago, Kansas resident Lisa Montgomery reportedly cut open a pregnant woman's womb and stole her baby. The baby's mother died of her injuries, and Montgomery was arrested a few days later.

Charged with kidnapping resulting in death, the alleged perpetrator could face execution. The crime is shocking and cruel and leaves many feeling that capital punishment is as appropriate as it could ever be.

But other than the brutality of the crime, what accounts for the widely shared intuition that what Montgomery did constitutes an especially heinous act, worthy of the most severe penalty available?

The Background Facts: A Brutal Assault and Kidnapping

The name of the victim in this case was Bobbie Jo Stinnett. Stinnett lived in Kansas and was eight months pregnant when she met Montgomery. Though the two women were strangers, Montgomery had procured an invitation to her victim's home by feigning interest in a dog whom Stinnett had advertised on an Internet message board.

Once Montgomery arrived at the pregnant woman's home, she savagely attacked Stinnett, a month shy of her due date, cut her open, and kidnapped the baby girl from inside her. Stinnett's mother found her daughter lying in a pool of her own blood, barely breathing, her baby gone.

Unlike the unborn child of Laci Peterson, another pregnant murder victim whose case has lately been in the news, Bobbie Jo Stinnett's baby survived. In fact, the woman charged with murdering Stinnett intended for the baby to survive and become her own child. Shortly after the kidnapping, Montgomery was showing off the newborn as hers at a Kansas restaurant. Yet this fact does not seem to mitigate our perception of the severity of her crime. Indeed, it appears only to make it worse. Why?

Why Is Montgomery's Crime Worse?

One answer lies in Montgomery's motive for killing her victim.

A killer's reason for deciding to take another's life is extremely important in determining her level of culpability. Consider, for example, self-defense, a form of justifiable homicide. Such a killing is not a crime at all. The law has long recognized that each of us has the basic right to defend ourselves from being harmed by another person.

Other killers are considered blameworthy, but not quite as blameworthy as a murderer. For example, a person who kills in a state of legitimate rage caused by provocative behavior on the part of the victim of the killing, is -- in many jurisdictions -- guilty of manslaughter, rather than murder.

Though there are flaws in the manslaughter defense, it reflects the sense in which we understand a person's lashing out at someone who has provoked him. Though still wrongful and reprehensible, a killing in the course of reasonable extreme anger is a lesser species of evil than murder. That is because the victim has -- in some way -- acted to harm the killer first, and the self-protective impulse that animates self-defense law provides some mitigation for an otherwise inexcusable crime as well.

And finally, there are even moral gradations of murder.

What Makes Some Murders Worse Than Others?

Murder itself is wrong because the murderer decides to end the life of another person without that other person's having posed a threat to the murderer's life or even acted in a manner that might mitigate some of the blame. For no good reason, or for reasons having to do only with the murderer's own desires, she ends the life of another. Such an act denies the inherent worth of every life and uses another's life as a means to one's own objectives.

Now consider Montgomery's crime against Stinnett. The victim posed no threat to the perpetrator's life. Furthermore, Stinnett did nothing to Montgomery that would have justified rage. Indeed, Montgomery did not choose to kill Stinnett because of a personal grievance against her victim, or even a petty or foolish disagreement with her.

Instead, Montgomery chose Stinnett because she was pregnant with a child that Montgomery wanted to take. The killer killed, in other words, purely to gain access to the child who was living inside the victim's body.

Montgomery's actions thus represent the extreme of regarding another person as a mere means of serving one's own interests. Montgomery treated her victim as a vessel carrying loot that she could plunder. Not simply a means to the killer's own objectives, the victim here became a container. The killing was accordingly an absolute assault on Stinnett's personhood.

A Case that Provokes Comparable Outrage: Killing the Fetus, But Not the Mother

In criminal law, I teach Keeler v. Superior Court, a California Supreme Court case involving a man who beat his pregnant ex-wife's abdomen with the intention of killing the fetus inside her. This case, too, attracts a great deal of outrage when students read it each year. Though the woman in that case survived, and the child died, the assault on the victim's intrinsic dignity was quite similar to that committed against Bobbie Jo Stinnett.

In both attacks, the perpetrator's actions derived from a view of the woman as a living incubator. In Keeler, the ex-husband attacked the incubator to kill the baby inside, as though the mother's physical being were incidental and irrelevant.

In the Montgomery case, by contrast, the killer cut open the living incubator, killing her in the process, because she wanted to have the baby who rested inside. When the victim's mother came home to find her own daughter dying, the anguish of losing her beloved child could only have been compounded by the killer's apparent indifference to the independent existence and value of the woman whom she attacked.

A Woman's Life Is an End Unto Itself

As is reflected in debates about abortion, a pregnant woman is in a condition that distinguishes her from all other people -- men and women alike -- who are not pregnant. She holds a second life within her body.

That distinction places special burdens upon the pregnant woman's shoulders and renders her vulnerable to outside harms in a unique way. She cannot expose herself to danger without risking her baby's life at the same time. But to see her as a resource to be mined -- instead of as a precious being who holds within her a second precious being -- is to rob her of dignity.

Lisa Montgomery's crime is thus an outrage in several respects. In addition to killing a human being, and thereby also depriving a baby of her mother before the two had finished the journey of pregnancy together, the killer here treated her victim as a thing instead of a living creature. For that, she may well have forfeited her own entitlement to the mercy that a jury might otherwise have accorded her.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her earlier columns, including many on criminal law and procedure issues, may be found in the archive of her work on this site.

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