Estimated reading time: 15 minutes.

So, let’s get some facts on the table and try to think well about this tragic story.

Fact #1: Marshae Jones, the mother, was the aggressor in this fight, not the shooter.

Marshae Jones. Photograph: Reuters

You certainly wouldn’t know this from the headlines, but virtually every news story agrees on the fact that Jones, with three of her friends, attacked Ebony Jemison while she was on a lunch break at work with three of her friends. Jones seems to have initiated the fight because she was jealous about Jemison’s interaction with Jones’s boyfriend. All three of them worked at the same place, Jones suspected something was going on, and convinced three of her friends to accompany her to initiate a fight with Jemison.

Fact #2: Marshae Jones knew she was 5 months pregnant when she attacked Ebony Jemison.

This isn’t a case where a mother didn’t know that she was pregnant and then had a miscarriage. She was late into her 2nd trimester, and yet initiated a serious physical confrontation with another woman and three of her friends.

Fact #3: Ebony Jemison fired a warning shot in self-defense, and the bullet ricocheted off the ground and hit Jones.

Jemison wasn’t trying to hit Jones. She claims that she was afraid, (and it seems, reasonably so) and fired a warning shot at the ground hoping it would get Jones and her friends to back off. In a horrible and very unlikely coincidence, that bullet hit the ground and then ricocheted and hit Jones in the stomach.

Fact #4: The baby could have died even if a gun wasn’t involved.

As soon as Jones got into a four vs. four violent fight, she was putting her baby at risk. If someone had punched or kicked Jones in the stomach her baby could have died. This is something that people generally know, and it is reasonable to assume that Jones knew this as well. She knew that she was pregnant, and she knew that getting into a physical fight could very plausibly result in her being punched or kicked in the stomach, and her baby was in mortal peril as a result.

Fact #5: Jones was charged with “manslaughter” because she initiated the violent situation which caused the death of the fetus, not because of Alabama’s recent “heartbeat bill.”

As we explained in our post, Heartbeat Laws: What You Need to Know, these laws aren’t going into effect immediately. The Alabama law isn’t effective until November 2019. But even after November, the law still likely won’t matter; pro-choice groups will sue and the courts will grant them an injunction blocking the law because it’s in direct violation of Roe v. Wade and Casey v. Planned Parenthood. So Alabama’s heartbeat bill is not the reason that Marshae Jones was charged with a crime.

Alabama legal code states that a person commits the crime of manslaughter if:

(1) He recklessly causes the death of another person, or

(2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2 ;  except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.

Source: Alabama Code Title 13A. Criminal Code § 13A-6-3

Would “child endangerment” be a more applicable crime to charge Jones with? Maybe. They also could have arguably gone with “criminally negligent homicide” which is defined in Alabama Code as a crime that a person commits “if he or she causes the death of another person by criminal negligence.” I’m not sure which charge is the most appropriate in this situation. But based on the above definition of manslaughter, that charge doesn’t sound totally crazy to me. If Jones had held her newborn in front of her while attacking someone and in the process the newborn died, I would think that a manslaughter charge should at least be considered.

The Washington Post quoted a lawyer who disagreed with the charge. Let’s consider his perspective:

Richard Jaffe, a criminal defense attorney in Birmingham, said he was shocked Jones was charged with manslaughter, which in Alabama can apply to someone who negligently causes another person’s death after ignoring a known risk.

“No one expects to be shot or wants to be. To charge this person is astonishing to me,” Jaffe told The Washington Post on Thursday. “She is probably going through enough grief as it is.”

Yes, but consider the thought experiment where Jones attacks someone while holding a newborn. Jones wouldn’t expect to be shot in that case either, assuming that she didn’t know that the victim had a gun. But that doesn’t mean that the victim didn’t have the right to defend themselves, and it doesn’t mean that the attacker wasn’t liable for getting into a physical altercation with someone in spite of being five months pregnant.

Jaffe’s final comment seems like a better argument to me. I’ve heard of people who are criminally liable in a case of their child dying being let off with a light sentence because their grief is being weighed in. Perhaps that is the best, most merciful way for our society to handle horrific cases like this. But even if that’s the case, it does not mean that the charge of manslaughter is necessarily outrageous.

Contested fact: Was Jones already walking away when the gun was fired?

This is a critical point, and where different stories dispute each other. Here is Jemison’s account of what transpired in chronological order:

According to Jemison, she, Jones, and the baby’s father worked together at a warehouse in Royal Oaks at the time of the shooting. She said that Jones would often get suspicious when the baby’s father — who was a supervisor — would talk to new female employees in the warehouse.

Jemison, who was a temp at the warehouse, said that she talked to the man only in the capacity of her work and that Jones had never confronted her directly about it.

But, Jemison said, on the day of the shooting she and three of her friends went to the Dollar General store during their lunch break when she saw Jones with four of her friends approaching her outside the store.

An altercation broke out, and Jemison claimed that Jones grabbed her hair.

Jemison said she then fired a single shot from her gun toward the ground that was intended to be a “warning shot” because “there was too much going on and just too many bodies.”

“My shot wasn’t to hurt anybody,” Jemison said. “It was just to get everybody to leave.”

Jemison said that after she fired the shot, everybody left in their respective cars. She said she only found out that she had struck Jones and killed her unborn baby when a detective showed up at her house after the shooting. (emphasis mine)

Marshae’s mother tells a very different story:

Patrice Jones, however, denied that account.

“She (Jemison) had three people in the car with her. When Marshae saw the gun, she walked away and that’s when she was shot,” she said. “He (Reid) said Marshae threw the first lick.”

She said someone has cell phone video of the entire incident. “They were fighting fair,’’ she said, until Jemison pulled a gun. “She could have killed both of them.’’ (emphasis mine)

I believe so much comes down to who is telling the truth here. If Jones was in the process of attacking Jemison or continuing to act aggressively at Jemison, then it seems that Jemison was well in her right to act in self-defense. It’s really hard to tell without seeing the video which story is more accurate. If Jones was already walking away and then Jemison fired a warning shot, then it would be unjustified.

For what it’s worth, these two stories don’t seem equally plausible to me. I believe Jemison’s story is more plausible. Here’s why:

1: Jones’s mom said that there is a cell phone video of the entire incident. Jemison was arrested and charged with manslaughter after the incident, and a grand jury declined to indict her, dropping the charges. If Jones’s mom is correct that there was cell phone video of this entire fight, wouldn’t the grand jury have seen that video? I would think so, based on this:

“This case has not been processed any differently than any other felony case,’’ Bessemer Cutoff Chief Assistant District Attorney Valerie Hicks Powe said Thursday. “The grand jury was presented all of the available facts.” (emphasis added)

If the grand jury saw the video, and if they then dropped the charged against Jemison, then perhaps that’s partially because the video showed that Jones was not walking away when the gun was fired.

2: Jones’s mom said that Jemison was in her car with her three friends when she fired the gun. In fact I saw people commenting that this shows that Jemison was at fault, because if they were all in the car, they could have just driven away. But Jones’s mom also said that Jones and Jemison were in the process of “fighting fair” until Jemison pulled the gun. So unless Jemison pulled the gun, and then Jones backed off, and then Jemison and all of her friends got in a car, and then Jones turned around, unless all of those things happened in that order, Patrice Jones’ story contradicts itself.

3: The local police lieutenant seems to agree with Jemison’s story:

“The investigation showed that the only true victim in this was the unborn baby,’’ Pleasant Grove police Lt. Danny Reid told AL.com at the time of Jemison’s arrest. “It was the mother of the child who initiated and continued the fight which resulted in the death of her own unborn baby.” (emphasis mine)

Fact 6: Abortion advocacy groups are exploiting this story and accusing Alabama of racism

Notice how all of these quotes from the Washington Post story mention the violent aggressor’s race:

“This is another example of how Alabama is moving to criminalize pregnancy,” Randall Marshall, executive director of the American Civil Liberties Union of Alabama, said in a statement. “Indeed, Alabama is one of the most dangerous places in the country for a black woman trying to carry her pregnancy to term, and this prosecution is just one more attack on the basic human rights and dignity of black women in our state.”

Amanda Reyes, the executive director of the Yellowhammer Fund, part of a nationwide umbrella advocacy group, said Alabama “has proven yet again that the moment a person becomes pregnant their sole responsibility is to produce a live, healthy baby and that it considers any action a pregnant person takes that might impede in that live birth to be a criminal act.’’

She continued: “Tomorrow, it will be another black woman, maybe for having a drink while pregnant. And after that, another, for not obtaining adequate prenatal care,” Reyes said in a statement, AL.com reported.

NARAL Pro-Choice America President Ilyse Hogue said on Twitter: “This what 2019 looks like for a pregnant woman of color without means in a red state. This is now.” (emphasis mine)

Here’s another quote from The Hill’s story:

Shaunna Thomas, co-founder and executive director of women’s rights advocacy group Ultraviolet, called the charges “part of a larger pattern of how our criminal justice system permits and furthers violence and abuse against Black women.” (emphasis added)

This is just gross. This is a story about a black pregnant woman attacking another black woman. She got charged because she knowingly put her baby at risk, and the baby indeed died.

Notice the trick that Amanda Reyes also uses in her quote, unless she is super confused about philosophical distinctions. Read the quote again:

Alabama “has proven yet again that the moment a person becomes pregnant their sole responsibility is to produce a live, healthy baby. . .

No, this is about duty not to harm, not duty to help. Alabama isn’t saying that Jones didn’t adequately help her child. They’re saying that by her reckless action she failed in her duty not to harm her child.

Fact 7: News headlines were super dishonest about this story. 

Notice something from all of these actual news headlines – You can’t tell from them that the mother was the aggressor in the fight, or that the shooter fired in self-defense!

• Al.com: ‘It’s not fair’: Marshae Jones faces 20 years in prison in unborn child’s shooting death
• Buzzfeed: A Pregnant Woman Was Shot, Then Charged For Her Fetus’s Death. The Woman Who Shot Her Says “Sorry.”
• Washington Post: A pregnant woman was shot in the stomach. She was charged in the death of the fetus
• CBS Evening News: Pregnant woman shot in stomach indicted over unborn baby’s death
• Rolling Stone: Alabama Pregnant Woman Shot in Stomach, Charged With Manslaughter
• South China Morning Post: Pregnant US woman Marshae Jones was shot in the stomach. Now she’s charged in death of her unborn baby and her shooter is free
• Rondalnews: Marshae Jones charged in fetal death, her shooter goes free
• Oxygen: Woman Who Had Miscarriage After Being Shot In The Stomach Is Charged With Manslaughter For Her Unborn Baby’s Death
• Metro: Mum arrested for manslaughter when she had miscarriage after being shot
• Relevant Magazine: Marshae Jones Didn’t Shoot the Gun That Killed Her Unborn Baby. Why Is She Going to Jail?
• The Guardian: Alabama: pregnant woman shot in stomach is charged in fetus’s death
• USA Today: Alabama woman charged in fetus’ death after she was shot and lost her pregnancy

I could keep going, but I think you get the point. Journalism is important, and headlines like this cause people to take the real investigative journalists less seriously.

Evaluating a Pro-Life Group’s Alternative Take

New Wave Feminists, a pro-life group with staff members whom I’ve been friendly with (I want the pro-life movement to be a more diverse place) posted an interesting take on this story on Facebook. I appreciate their out-of-the-box thinking, but in this case I disagree, and want to explain why in order to try to help bring clarity to the situation. Here’s their original post in full:

Charging her with manslaughter for an altercation where she never imagined her child would be killed is ludicrous. And conflating it with abortion where a decision is *intentionally* made to end the life of a child, is spin at its finest. make no mistake, this story is getting so much coverage right now because there’s a larger agenda at play.

My heart breaks for both this mother and that innocent child.

***I want to update this post to add a little thought experiment to show the sexism of this particular case:

Imagine for a second that a group of couples gets together for a party. Kids are present, and so is alcohol. One of the men finds out that another man from the group has been sleeping with his wife. He’s understandably irate and attacks The second man, starting an altercation. The second man the. pulls out a gun and shoots at the first man in “self-defense” but he accidentally kills the first man’s child instead. Would the first man be charged with a homicide? I find that highly unlikely.

Negligence? Possibly. Child endangerment? Sure. But I doubt it would count as manslaughter.

So, here’s the common ground. I agree that “conflating this story with abortion” would be a bad analogy. Those are very different situations. I haven’t seen any pro-life people doing that, but I’m willing to bet that NWF has, and were rightly countering that argument.

And of course we agree that our hearts should go out to both the mother and child. Regardless of what you think of the mother’s actions, she lost a baby, and we should sympathize with her.

However I strongly disagree that this case proves that sexism is taking place. (Just like I don’t see it as proof of racism either.) I don’t think NWF’s thought experiment is analogous in a few important ways:

1: In their story alcohol was involved. That would definitely affect culpability, because it would be less clear what the attacker knew or should be expected to know. I haven’t seen anything to indicate that Jones was drunk. If she was, she was already putting her unborn child at risk, which would be another difference between NWF’s story and what actually happened.

2: In their story there are just kids around when the fight happens. While I think the attacker would still be more culpable for a child getting hurt in that case because he really shouldn’t be starting physical attacks around children, it’s still less predictable that a child would get shot in that case. There wasn’t merely a child “around” when the actual fight happened. It’s more like Jones was holding a baby while attacking someone.

Based on reading NWF’s original post and their comments in the thread, I’m guessing that an important disagreement between us is whether or not a woman has an extra level of moral obligation to not initiate physical fights while pregnant. My current view is that she does have that extra obligation. I think that I similarly have an extra obligation to not drive recklessly when my kids are in the car. That doesn’t mean that it would be okay for me to drive recklessly when I’m alone, but it does mean that it would be extra wrong for me to do so if I’m endangering my own kids as well as myself and others who are on the road.

Sexism and racism are very serious problems that are still prevalent in our culture. We need to be really careful when we use these terms that we’re using them correctly, because otherwise those terms will start to lose their meaning in our society.

I hope this helps you to think clearly about this case, at least based on the facts as we have them right now. What do you think? Should Jones have been charged with anything? Should she be let go because of her grief? Let me know your thoughts in the comments below.

Please tweet this article!

• Tweet: Bringing Some Clarity to the Shooting of Marshae Jones Story
• Tweet: Here are some critical facts about the Marshae Jones shooting case in Alabama, as well as some arguments for how to think well about this case.
• Tweet: Marshae Jones, the mother, was the aggressor in this fight, not the shooter.
• Tweet: Marshae Jones knew she was 5 months pregnant when she attacked Ebony Jemison.
• Tweet: Marshae Jones’ baby could have died even if a gun wasn’t involved.
• Tweet: Jones was charged with “manslaughter” because she initiated the violent situation which caused the death of the fetus, not because of Alabama’s recent “heartbeat bill.”

The post “Bringing Some Clarity to the Shooting of Marshae Jones Story” originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.”

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