Monday, January 25, 2010

The Seventh Degree

Ross Douthat tries to square the circle between the dueling positions of "abortion is murder" and "but I don't want anyone to go to jail."
Nobody involved would go to jail, he said, as "it is possible to believe that abortion is murder and also believe it is a completely unique form of murder. Abortion would be, you know, if you have first-degree murder, second and third degree...it's like seventh-degree murder or something."

Kevin Drum calls this "about as good an excuse for not jailing abortionists as I've heard." Maybe, but that still doesn't make it very good.

First of all, it's worth noting that once you get beyond second-degree murder, for the most part (not everywhere), we stop calling the act "murder" and begin giving it other names. Like "voluntary" or "involuntary manslaughter". Below that, there's "negligent homicide". And all of these ever-lower degrees of "murder" still carry with them prison sentences.

Second, it's worth exploring why we have various degrees of homicide charges at all. Generally, it has to do with the state of mind of the perpetrator. We punish people who intend to kill more than those whose act was unintentional but reckless, which in turn carries more punishment than the person whose state of mind was merely negligent. We also provide some diminution when the actor's consciousness is blurred, due to some sort of provocation or temporary insanity, as well as outright acquittal where the action was justified (self-defense) or excusable (insanity).

What is unclear is why, if abortion is a species of murder, it falls under any of the exceptions that typically counsel even a reduced sentence (let alone an outright excuse). It's clearly premeditated. There is no immediate provocation. There isn't a self-defense claim (Douthat grants a life-exemption for abortion). The best argument I've heard, and I use the descriptor loosely, is one based off the idea that women are being per se irrational when they seek an abortion -- in other words, flat misogyny. We could say that abortion is entirely of its own kind, but that raises the question of why, if abortion rests so uncomfortably with our widely established and agreed upon intuitions of what murder means, it be considered a relative of murder at all? Either you buy into the framework or you don't -- you don't get to borrow the normative punch of the term "murder" without actually having to live with the consequences of labeling something that way.

16 comments:

PG said...

The best argument I've heard, and I use the descriptor loosely, is one based off the idea that women are being per se irrational when they seek an abortion -- in other words, flat misogyny.

I've dealt with one of those Tom Coburn types who say "I favor the death penalty for abortionists and other people who take life." They get nasty when challenged on the fundamental moral illogic of jailing the person who is hired to commit a homicide, but not the person who does the hiring.

When it was illegal in the U.S. and UK in the late 1800s and early 1900s, abortion was not classified among the homicide crimes. Instead, criminal codes put it in the same grouping as bigamy, sodomy, prostitution and the like: crimes against morality.

People who were found to have been performing abortions were not charged nor penalized as though they were committing homicide. By the 1940s and '50s (i.e. the period before New York and California liberalized their abortion laws), penalties solely for the crime of abortion usually were the loss of a medical license for physicians (those who performed abortions without a medical license were charged with that crime, not just with abortion), up to $1000 in fines and up to three years in prison -- hardly the penalties one would expect if the intentional deaths of multiple fetuses were treated like homicides, much less murders.

Indeed, abortionists generally were prosecuted only when they caused injury to the patient and she or her family brought it to the attention of law enforcement. Until such an injury, corrupt police often were aware of an abortionist's practice and would be paid off, just as pimps and brothel owners could pay off the police to ignore their business until something brought it to public attention. So far as punishing competent abortionists like murderers goes, I think the only nations that did so for all abortions were ones in which abortion was seen as treason against a government mandate for population increase (e.g. in Nazi Germany).

England's earliest anti-abortion laws drew the "quickening" distinction to determine when a fetus became a person, so an abortion after quickening was a homicide and could be punished with the death penalty, but abortion prior to that was no crime at all. The reform of that law removed the quickening distinction and criminalized all abortions, but also removed the death penalty-for-homicide, and moved abortion into the "crimes against morality" category.

PG said...

Come to think of it, I realized Douthat's problem: he wants abortion to be illegal so the law can express its disapproval and so abortion will be less common. He doesn't really consider abortion a homicide crime any more than the legislators of the early 1900s did; he considers it a crime against morality. However, he doesn't want there to be the significantly serious penalties for abortion that would actually deter women from obtaining them. So he's stuck saying ridiculous things like "7th degree murder."

Grant said...

Many states do, in fact, have a third degree murder. Minnesota is one of them. Wikipedia suggests that third degree murder is very common in state codes. http://en.wikipedia.org/wiki/Murder (Pennsylvania's scheme, the most common, includes 3rd degree murder).

Although neither you nor the piece you linked to included a link to Douthat's original article, he was presumably advocating for a change in the law. So he's free to come up with new categories for offenses beyond what we currently have.

Presumably, people who perform or receive abortions don't think they're killing "real" people. I know of no criminal statute that addresses the specific situation where a person intentionally destroys something that they don't count as a person, but the law (hypothetically) does.

It's easy to see why this situation doesn't fit neatly on the spectrum of mens rea we learned in crim. There was intent to do the action, but not intent to kill. But there was no negligence or recklessness or anything. It just doesn't fit on the spectrum. So you need a new category for it. Trying to fit abortion into an existing homicide statute is "squaring the circle" at least as much as counting abortion as murder but not wanting the sentence to include jail time.

Now, obviously, you'd want to restrict this new category to just abortions, otherwise anyone would just say "oh I didn't think members of my rival gang counted as people." But we know that there is legitimate widespread disagreement about fetuses, so we might penalize it less than other degrees of homicide.

Plus, the law can recognize the desperate situations that many women who obtain abortions are in, and factor that into the sentence.

I think the real inconsistency with the "I don't want anyone to go to jail" claim is that we allow jail sentences even for misdemeanors. But that's a whole separate issue.

Grant said...

PG- I was clicking around the laws of New York after reading your comment, and I saw that their penal code has a section, Article 125, called "Homicide, Abortion, and Related Offenses."

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

It considers abortion a class E or D felony, depending upon whether the mother was injured, and carries a maximum of 4 or 7 years in prison.

Obviously, this law isn't enforced these days. But still, I've had an argument along these lines with David before. Why is it relevant what abortion was classified with 100 years ago? The majority of pro-lifers are not trying to classify abortion as a sexual morality issue these days. I'm not sure it's relevant to Douthat's argument that his great-great-grandfather probably wouldn't have seen things the same way that he does.

Especially given the way states like New York changed their categorization to move abortion towards homicide, I don't see why think this historical discussion isn't just trivia.

joe said...

I don't think you can get to "seventh degree murder or something" (on principled grounds) without conceding that a fetus falls short of full personhood. But maybe that's how Douthat sees it, and maybe it's not that uncommon. It seems to me (and this is based on limited personal observation; I'm sure it's not categorically the case) that at least some people do enter a period of mourning after a miscarriage that's more than disappointment at a missed opportunity to have a child but less than the grief of parents who lose a live-born child.

True social conservatives don't have to get into the personhood debate at all. They can just say it's immoral because it's immoral, like same-sex marriage, and should be illegal. Of course, ditching the murder rhetoric would probably undermine their cause because then it's hard to make a rational argument why it's immoral. (I think the absence of that kind of argument is why we see gay rights gaining ground while the abortion debate is more or less deadlocked.)

But abortion opponents who don't like either of those approaches can just point to pragmatism, say they're mostly concerned with reducing the number of abortions, not with punishment. Since locking people up is a tougher sell politically, they may just settle for a ban backed by a hefty fine or something. That's the sausage-making that shapes policy. Some may claim that there's still a slippery slope, but others might say it's sticky ;)

PG said...

Grant,

(1) Although neither you nor the piece you linked to included a link to Douthat's original article, he was presumably advocating for a change in the law.

What "original article" do you have in mind? The piece David linked is Mark Oppenheimer discussing Douthat and asking him questions, including about his preferred abortion policy: "Maybe [Douthat] will write that column one day. And maybe he'll write another one reflecting what he said when I asked what he'd do about abortion if he made the laws."

Read carefully instead of implying that David is trying to hide the ball here.

(2) Presumably, people who perform or receive abortions don't think they're killing "real" people.

And a member of the Aryan Nation/Christian Identity group who murders an African American doesn't think he's killing a "real" person either; he thinks he's killing a soulless mud creature, an animal that is not a person. This doesn't mean we have a different murder category for his act; it just means we can penalize him additionally for committing a hate crime.

People's beliefs about the legal personhood of various humans are irrelevant to their prosecution. What matters with mens rea is the intent to kill the deceased, not your subjective beliefs about the moral or legal status of the deceased. Women who obtain abortions and physicians who provide them have the intent to remove the fetus and the knowledge that this will kill the fetus. (Even the principle of double-effect won't get you past any abortion that involves crushing the fetus's skull or otherwise removing it in a way that kills it before it's even out of the uterus.)

(3) Obviously, this law isn't enforced these days.

I don't know why you think the NY statute you cited is not enforced nowadays. It is enforced today, because it prohibits only abortions that are done without a woman's consent, or that are outside the first 24 weeks of pregnancy and not to preserve the mother's life.

As for why the pre-Roe treatment of abortion is relevant, it's because when pro-lifers are asked about how their view of fetal personhood would affect women who kill fetuses, they line up to say that abortion statutes were never enforced against the women obtaining the abortions, only against the providers of the abortions. To which I say, Duh, and the providers weren't prosecuted as though the fetus were a legal person either, because at that time the law did not consider the fetus a person and criminalized abortion as immoral, not as a form of homicide.

joe,

Since locking people up is a tougher sell politically

Locking abortion-seeking women up is a tough sell politically. Tom Coburn, Fred Thompson and many other prominent Republicans will tell you loudly and repeatedly that locking up abortion providers is a splendid idea. Which is why the federal Partial-Birth Abortion Ban Act has no penalties for the woman who wanted to get an abortion and who consented to this method, but says the physician who provides the abortion can be imprisoned for up to 2 years.

Grant said...

Sorry guys, I was hasty in reading the linked article and the NY statute. I threw the comment up in a hurry during a break from school work that I felt guilty for taking, and I was trying to quickly post something that required more due diligence than I gave it. That was a mistake, and I apologize.

I still think it's worth noting that a non-consensual abortion is linked with homicide in the NY statutes. There's some illogic to the idea that killing a fetus should be grouped with murder if the woman doesn't consent, but not if she does.

More on point, please remember that Douthat is arguing for a change in the law. I don't think it would be unreasonable for the law to partly legitimate disagreements about fetal personhood by mitigating abortion sentences on that account. That doesn't mean the law has legitimate disagreements about whether African Americans are persons. The law can just declare some disagreements somewhat legitimate, at least legitimate enough to mitigate sentences, and others not. The fact that the law does not now do this is no argument that it shouldn't.

Law can include allowances for differences in conscience. I don't have a cite for this (I have to leave soon to get in line for a free lunch or I'd try to find one), but I think that conscientious objection can get you out of military service in some countries, while saying "I don't want to, that sure would be inconvenient and reduce my expected income" won't cut it.

PG said...

I still think it's worth noting that a non-consensual abortion is linked with homicide in the NY statutes. There's some illogic to the idea that killing a fetus should be grouped with murder if the woman doesn't consent, but not if she does.

I think you still need to read the statute more closely.

NY Penal Code § 125.00 "Homicide defined. Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree."

This law defines homicide to include causing the death of a fetus only for fetuses that are more than 24 weeks old, which is the point at which the fetus has a more-than-marginal chance of surviving outside the uterus. I think this is a reasonable cutoff, since the goal of abortion as a right of bodily integrity is the immediate ending of the pregnancy, not the death of the fetus. If it were possible to transfer live fetuses to incubators without harm to the life or health of the pregnant woman, I would be on board with requiring that procedure for women who wished to end their pregnancies.

So still not seeing where the statute is illogical.

The law can just declare some disagreements somewhat legitimate, at least legitimate enough to mitigate sentences, and others not. The fact that the law does not now do this is no argument that it shouldn't.

A conscience exemption from a military draft is not at all comparable to the kind of compromise you're describing for abortion. A draft is an invasion of individual liberty, done for the purpose of securing the nation as a whole. Those who can prove that participation in the war would violate their conscience can be exempted from combat service, but may be required to provide some other service (e.g. as staff in a military hospital to treat the wounded). Those who can't prove it have to submit to the military draft or be prosecuted. The law doesn't provide for those who tried and failed a conscience claim to receive a lesser penalty than those who simply didn't feel like spending some time in Saigon. If there's a jury trial, a jury may recommend a lesser sentence on that basis, but it's not in the statute. Similarly, juries may well recommend short or suspended sentences for women who seek abortions because the jury finds this homicide to be less horrible than other kinds. (Just as juries have semi-nullified homicide penalties in cases of euthanasia, due to jury sympathy with the defendant -- this doesn't change the statute in question.)

There is no draft of people to perform abortions. The right to an abortion is only a right to seek one without criminal penalty; if the pro-life movement succeeds in harassing all abortion providers out of business, then abortions will be unobtainable regardless of what the Supreme Court says. We are so tender of the consciences of people who object not only to abortion but to women's control of their reproduction, that many states and the federal government already provide conscience exemptions for health care workers who refuse to provide contraception.

The law doesn't recognize "legitimate disagreements" on what constitutes a legal person because the criminal law doesn't exist to be a debate referee. It exists to draw bright lines. In New York, the bright line is at 24 week of gestation: from then on, the killing of that human is homicide unless done to save the life of another. Prior to 24 weeks, it is not homicide, although if done without consent it's a particularly heinous species of assault.

Grant said...

My point about the NY statute is only that abortion is linked with homicide. But I'm not looking at 125.00, which defines homicide. I'm looking at the statutes that define felony abortion. (I assumed when I copy and pasted the URL that it would take you to the page I was viewing, but it just took you to the index.)

Article 125 is called "Homicide, Abortion and Related Offenses". 125.40 and 125.45 say that abortions are felonies unless justified under 125.05. 125.05 says that an abortion is justified when it occurs before the twenty four week cutoff with the consent of the mother . Presumably, an "abortive act" done without the consent of the mother would not be justified under 125.05; thus it would be a felony abortion under 125.40 or 125.45. The crime of unjustified abortion is grouped with "homicide and related offenses" in the statutory scheme. It's not grouped into Title M, which covers "Crimes Against Public Health and Morals."

The only thing that strikes me as illogical is calling it a homicide if the mother wants the baby, but a desirable outcome if she doesn't. But that's really neither here nor there.

I just threw in the conscientious objector point as a reference to the law recognizing issues of conscience. It's obviously not a good metaphor for abortion. I didn't mean the part about inconvenience being no excuse for draft dodging to draw any parallel to mother seeking abortions beyond what I stated: I just meant it to illustrate that the law is treating people differently based solely upon their conscience, rather than any other reasons people might have for preferring a different course of action.

I guess I'll agree to disagree with you that the criminal law can never, in principle draw out a little exception to recognize a legitimate difference of opinion about what's a person. It seems to me obvious that it could, maybe because I think our legal system is positivist, so we can basically change the law however we want. The observation that the criminal law exists to draw bright line rules (not sure I agree--discretionary sentencing comes to mind as a counterpoint, but I'll stipulate to it) does not tell us where to draw the line. Our societal mores tell us that, and where the mores are mixed there generally should be some kind of compromise.

One might think that an important function of the criminal law is to express societal outrage towards those who behave impermissibly. Presumably, society's aggregate outrage is less when close to half of the population thinks the defendant acted in a permissible, or perhaps even desirable, fashion. We might also take into account the desperate situation that many of these would-be mothers face, and decide it's usually not as reprehensible to abort a baby as it is to stab someone to death. The fact that you can't see the person as you kill them at least makes it seem less depraved.

It seems pretty clear to me that we could codify a reduced sentence to reflect a relative lack of societal outrage, as well as questionable gains in deterrence or incapacitation (do we really want to take these women off the streets?).

I think there's a plausible argument that, if outlawed, abortion would represent a special case in the criminal law. If so, we might as well treat it as a special case. I haven't really considered whether I think no prison sentence would be the best answer, but it seems very plausible to me that sentences for any crime of abortion should heavily mitigated from the sentences for homicide generally.

joe said...

Locking abortion-seeking women up is a tough sell politically. Tom Coburn, Fred Thompson and many other prominent Republicans will tell you loudly and repeatedly that locking up abortion providers is a splendid idea. Which is why the federal Partial-Birth Abortion Ban Act has no penalties for the woman who wanted to get an abortion and who consented to this method, but says the physician who provides the abortion can be imprisoned for up to 2 years.


Three things, in descending order of importance:

1) 2 years is still maximum is pretty low for a supposed category of murder. If abortion carries the same moral weight as premeditated murder than the operating doctor should be regarded as a paid hitman. So, as I said, this tells us that many people who say "abortion is murder" are not being intellectually honest or are willing to compromise in crafting legislation.

2) Not every Republican (or pro-life Democrat) is Tom Coburn or Fred Thompson, or comes from Tennessee or Oklahoma. If they were, again, you'd see more than two years in the PBAB.

3) I am well aware of all of this, but drawing out that particular distinction was not the point of my post, just as it was not the point of David's.

PG said...

My point about the NY statute is only that abortion is linked with homicide. But I'm not looking at 125.00, which defines homicide.

If you looked at it, you might understand why abortion is "linked" with homicide: because abortion of a 24+ week old fetus is considered homicide. Once you already have abortion in there, it doesn't make sense to put abortion of a pre-24-weeks fetus w/o consent of the mother in another section. Also, I don't know why you would consider such an assault -- which is what causing the death of the fetus without the mother's consent would necessarily entail -- to be merely a crime against public health/ morality. That's a crime against an individual: the mother.

The reason statutes that criminalized abortion of a non-viable fetus with the woman's consent, were classified as crimes against public health and morality, is that they were not crimes against any individual. The non-viable fetus is not a legal person. The consenting woman hasn't been assaulted. (Look at the early history of the law's treatment of medical malpractice -- it was once treated as a tort of battery rather than negligence, and physicians who administer treatment against a patient's will can still be charged with battery.)

The only thing that strikes me as illogical is calling it a homicide if the mother wants the baby, but a desirable outcome if she doesn't.

Of course, the law doesn't do that. It's homicide regardless of whether the mother wants the fetus so long as the fetus is 24+ weeks old and not a threat to the mother's life. You would get this if you actually read the statutory definition of homicide instead of focusing on some other part of the law.

The past and current laws are not illogical, and you've made no case for them being so. What you do seem to be advocating is that the law be illogical in the future, with "the law treating people differently based solely upon their conscience." How would that play out with an abortion recipient? Would a prosecutor quiz the defendant's friends and family about whether she had ever referred to the aborted fetus as a baby, thus indicating that in her conscience, she knew she was committing murder?

I guess I'll agree to disagree with you that the criminal law can never, in principle draw out a little exception to recognize a legitimate difference of opinion about what's a person.

I think it's incredibly weakening of the law to say, "Well, you don't think a fetus is a person, but you do, so we'll split the baby, ha ha, and call it seventh degree murder." Where juries have gone easy on euthanizers, for example, it's not because the deceased's status as a person was in any question; it's because the jury was sympathetic to the defendant's claim that the deceased wanted to die. Or to go outside the literal euthanasia context to "let die" cases, Michael Schiavo did not make his argument on the claim that his wife was now less than fully human, or that her continued existence was inconvenient: he staked it entirely on wishes he claimed she had expressed before becoming incapacitated.

PG said...

One might think that an important function of the criminal law is to express societal outrage towards those who behave impermissibly.

That's exactly what crimes classified as being against public morality -- bestiality, etc. -- are for. When society can't find a person who has been victimized, but thinks the action is wrong and should be punished. That is not what homicide crimes are about. Homicide, assault, battery: these have people who are victims. And the modern abortion prohibitionist movement has pegged itself to the position that fetuses are people who are victims of homicide.

I haven't really considered whether I think no prison sentence would be the best answer, but it seems very plausible to me that sentences for any crime of abortion should heavily mitigated from the sentences for homicide generally.

Then you're not with the abortion prohibitionist movement, which is quite enthused about imprisoning and even executing abortion providers. They publicly declare abortionists to be murderers and guilty of homicide. But there is no principled reason, if you consider abortion to be homicide, not to treat as part of the crime the woman who hired the killer of the fetus she was carrying.

There is only a political reason: it's easier to paint the abortionist -- the medical professional whom women seek out and pay and often thank for the risks taken to provide this service -- as the murderous villain, than to get the public to agree to imprison women for obtaining an abortion.

If abortion carries the same moral weight as premeditated murder than the operating doctor should be regarded as a paid hitman.

But the PBAB doesn't classify the abortion as a species of homicide. That would be pretty ridiculous, since it's based on the particular method used, not on the age of the fetus.

I am well aware of all of this, but drawing out that particular distinction was not the point of my post, just as it was not the point of David's.

David adverts to the distinction in noting the attempt to distinguish between the provider and recipient of the abortion on the ground that the woman is too irrational to know what she's doing -- but the abortionist isn't, and therefore should be held responsible.

joe said...

Well, David only actually mentioned the women, not the providers, but okay. I guess you were only trying to educate me.

Grant said...

What you do seem to be advocating is that the law be illogical in the future, with "the law treating people differently based solely upon their conscience”

I think it's incredibly weakening of the law to say, "Well, you don't think a fetus is a person, but you do, so we'll split the baby, ha ha, and call it seventh degree murder.”


My starting premise is that the law should reflect the values of the society that it governs. In a society where everyone is very modest and shy, a flirtatious wink might seem like sexual assault. That’s fine, let them legislate about it. Maybe not the best example, but bear with me.

Criminal law exists because people don’t like certain events, and we put in to a social pool to make sure they don’t happen. Things we all hate, like murder, get huge sentences. Things we only dislike a little bit, or maybe just in the general sense, like speeding, get small penalties. On some rare things like abortion, it’s harder to agree on.

I think that restricting the window in which abortion is legal and providing a smaller penalty than what we give to homicide for people who perform or receive abortions within the newly restricted period would reflect our aggregate feelings about as well as the current law. Since I lean pro life, I’d be in favor of some such restrictions.

You’re right that the law isn’t a referee, but I think should be a fairly accurate scoreboard. When we have a situation like abortion where people on both sides of the debates are scoring a lot of points in public opinion, the score is close and an action is given a lesser penalty, or not criminalized. If abortion were to be criminalized tomorrow, the score would still be close. So we shouldn’t have a huge penalty.

I think you are also right that the law should not recognize deviant personal morals as a reason to mitigate the sentence. But I think it should be acceptable for the law to recognize that our society’s values aren’t always uniform or clear. I think when society can’t decide an issue, it’s not weakness for the law to be rather un-emphatic about it. Abortion isn’t a new issue, and it doesn’t look like it’s going to go away soon. It's been divided just about dead evenly for a long, long time.

So many people in our society emphatically agree with people who get and give abortions that this kind of thing should be legal that I don’t think it’s weakening for the law to implicitly admit uncertainty by imposing a lesser sentence. I think it is simply being honest, and better serving the community.

Nobody can be sure whether or how much of a person a fetus is at any given point. So I just think it’s silly to act like we’re certain that BAMO! on this day it’s a full-fledged person. I’d prefer a graduated system. Aborting a viable fetus is homicide, but aborting one two days before viability has to be a bad act too, and should be punishable. But the morning after pill is fine. Along the way it seems uncertain—I don’t have any specific recommendations, but a graduated program seems best, with lesser penalties the earlier we go into the pregnancy to reflect our collective uncertainty about the issue.

PG you are a warrior. I'm too plumb tuckered out to keep on about the more tangential stuff, but I might have a response or two left in me about the main points. I'll just mention that I never saw the distinction between crimes with victims and victimless crimes as being important. I think the outrage function is important for both types of crimes: it's just easier for everyone to agree to be outraged when there is a victim. But for example, as far as I can tell the distinction between, say, vanilla murder and premeditated murder is that the latter pisses us off more. I certainly don't think they're more dangerous than people who can't control their temper except by shooting guns. It just seems more depraved and icky, so people want to come down hard on it.

joe said...

Tangent to Grant's post but I'm not going to pass up the chance to talk utility: Homicide recidivism rates are quite low (perhaps because it nets enough prison time for most offenders to age past their criminal prime, but let that go). So it may make sense to treat someone who plans out a murder as more likely to do it again, because they're more likely to kill than people with extreme anger management issues.

PG said...

My starting premise is that the law should reflect the values of the society that it governs. In a society where everyone is very modest and shy, a flirtatious wink might seem like sexual assault. That’s fine, let them legislate about it. Maybe not the best example, but bear with me.

OK, we're clearly arguing from such wholly different views of the law, that there's not much point in trying to discuss any further. I've explained at length that NY law considers a fetus to be a person at the point of viability, which can be reasonably drawn at 24 weeks based on technological inability to mimic a uterus that will allow the fetus's lungs to develop. (In the absence of such technology, a fetus cannot survive without sufficient lung development to circulate oxygen in its body; we can put it in an oxygen chamber, but we can't make the body use it.) The law is not trying to designate fetuses as quasi-persons; it's saying that prior to 24 weeks it's not a person and killing it is only an offense against the woman carrying it, but after it is a person against whom homicide is committed.

That a flirtatious wink may "seem" like sexual assault is irrelevant. We began using the term sexual assault (instead of rape) to make clear that what was being done to the victims of rape was a form of assault, and that in no other form of assault do we ask whether the alleged victim had previously engaged in boxing and wrestling and thus must have been OK with getting punched in the stomach, or whether the victim's attire indicated he was "asking for it." To construe a flirtatious wink as sexual assault misses the entire point of the term.

I'll just mention that I never saw the distinction between crimes with victims and victimless crimes as being important.

Then why are you arguing about homicide at all? If in your view, it's irrelevant whether someone actually died, "seventh-degree murder" has no more significance than "seventh-degree social outrageousness."