RALEIGH, N.C. – In the minds of Jennifer Nielsen’s family and friends, two people were killed when the young mother – eight months pregnant – was found dead more than a week ago behind a South Raleigh convenience store.

Obituaries that appeared last week in The Raleigh News & Observer and The Salt Lake Tribune in Utah mourned the loss of Nielsen and her unborn child, Ethen Asdyn, who was due July 8.

“If the baby had been inside of her for one or two months, then I think there may be questions about it as a developing fetus,” a family friend, Paul Grynick of Utah said this week. “But at eight months it’s a baby living inside of its mother. It’s alive.”

Nielsen was buried Saturday in Salt Lake City. Her killer remains at large. But if that person is arrested and brought to trial, prosecutors won’t be able to charge the suspect with the murder of her unborn child.

That’s because North Carolina, unlike more than half the states in the nation, does not have a fetal homicide law. Prosecutors are also restricted by a 1989 state Supreme Court ruling that says killing a fetus by harming the mother does not amount to murder. It is only murder, the court’s ruled, if the child survives the attack, but then later dies of injuries.

“I don’t think there’s anything we can do,” Wake County District Attorney Colon Willoughby said Thursday. “I try to carry out the law as it is written. The policies are decided by the Legislature.”

Restricted by that state Supreme Court ruling, North Carolina prosecutors can’t treat cases like the Nielsen killing as a double homicide. But if her killer is caught and brought to trial, the death of her unborn son may allow prosecutors to seek the ultimate punishment: the death penalty. Citing the aggravating circumstances section of North Carolina’s capital punishment statute, prosecutors could argue the killing of a young mother and unborn baby was especially heinous or cruel.

Willoughby would not say if his office would seek the death penalty.

when the Nielsen case goes to trial.

“I don’t think it would be appropriate for me to comment about that, particularly not knowing the facts or circumstances surrounding the case and with an ongoing investigation,” he said.

The narrow limits of North Carolina case law on the unlawful death of an unborn child are illustrated by a 2005 shooting in Sanford. Maria Reyes, seven months pregnant, was shot in the chest by her boyfriend, Hector Donovan Salcedo. Doctors did not think Reyes would survive, so they saved her baby girl with emergency surgery. Reyes survived, but her baby lived only five days and Salcedo was charged with first degree murder – a scenario that matches the state Supreme Court ruling. Salcedo eventually pled guilty to involuntary manslaughter for the baby’s death.

Had Nielsen survived, but miscarried, prosecutors could have pushed for enhanced penalties against her attacker. That’s because North Carolina law allows a charge to be elevated to the next highest level of offense when a defendant has committed a crime – such as kidnapping, robbery or assault – against a pregnant woman that leads to the miscarriage or stillbirth of her unborn child.

But if Nielsen’s killer is brought to trial, this provision is useless. The person responsible for her death is expected to be charged with first-degree murder, the highest classification of felony with a top penalty of a life sentence without parole unless the prosecutor decides to seek the death penalty.

“That’s the highest classification we have,” Willoughby said. “You can’t get any higher than that.”

The prosecutor faces the same limitations with the slaying of Michelle Young in early November. Young, the 29-year-old married mother of a toddler girl was also pregnant when her body was found in the bedroom of the two-story brick home she shared in a quiet subdivision with her husband, Jason. Young was brutally beaten, according to autopsy reports. Like Nielsen, her killer remains at large.


Such a prosecution charging a suspect with two murders – one for the mother and one for the baby she was carrying – is not without precedent in other states. In 2005, a California judge sentenced Scott Peterson to death for the murders of his wife Laci and her unborn son.

California is one 31 states with fetal homicide statutes. In addition, the federal Unborn Victims Violence Act of 2004 recognizes an unborn child at any stage of development as a legal victim, but is limited to federal statutes. This would include acts of terrorism, crimes committed on federal property and crimes committed by the military.

North Carolina is one of 15 states that either don’t have such statutes or case law or have a conflict between statutes and state law.


The issue of fetal homicide is ensnarled in the contentious politics of abortion and the accompanying debate about when life begins.

In North Carolina, abortion politics have scuttled past efforts to pass a fetal homicide law, Willoughby said. That includes two bills introduced in 2003 that did not get to a vote in either chamber of the General Assembly. Both bills were filed in the aftermath of the throat-slashing and dismemberment that year of April Greer, a pregnant Burlington woman.

Legislators sponsoring a similar bill this session also expect it to falter.

Without such legislation, Nielsen’s killer can’t be prosecuted for two murders.

“I don’t think there’s any way we can do that,” Willoughby said.

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(The Raleigh News & Observer news researcher Lamara Williams Hackett contributed to this report.)

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(c) 2007, The News & Observer (Raleigh, N.C.).

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Distributed by McClatchy-Tribune Information Services.

AP-NY-06-23-07 1814EDT