Cleveland police at the crime scene. Photograph: David Duprey/AP
prosecutors will face a struggle against the Cleveland kidnapping suspect in relation to any miscarriages suffered by the three women he allegedly held captive for a decade, legal experts said on Friday.
If Ariel Castro is handed a death sentence for "aggravated murder", he would become the first person in the US to be put on death row under the country's proliferating and controversial fetal homicide laws. The provisions extend legal rights to unborn babies, in some cases – including Ohio – as early as conception.
The prosecutor for Cuyahoga County, that covers Cleveland, against Castro, who is being held on $8m bail having been accused of kidnapping three young women for nine to 11 years each. Timothy McGinty said there would be a count for "each act of aggravated murders he committed by terminating pregnancies".
The women escaped from Castro's house in the west side of Cleveland on Monday. Michelle Knight had been missing since 2002, Amanda Berry since 2003 and Gina DeJesus since 2004.
Castro has been charged with kidnapping and raping the three women, as well as kidnapping a six-year-old girl born to Berry in captivity. He was confirmed as the father on Friday. Castro will now go before a grand jury, at which point prosecutors say they will press the more serious death penalty charges relating to the multiple miscarriages that took place within the house. that have some form of fetal homicide law on their statute books. In Ohio's case, protection for the fetus against violent attack has been incorporated into the state's general criminal laws since 1996, with the fetus being defined as a legal entity right from conception.
– which carries the death penalty – if they are proved to have "purposely, and with prior calculation and design, caused … the unlawful termination of another's pregnancy". That could be applied to a miscarriage by any of the three women at any stage of pre-natal development – the law states that murder charges can be brought if an "unborn member of the species homo sapiens, who is or was carried in the womb of another" is killed.
Fetal homicide laws are controversial because they are seen by pro-abortion campaigners as a back-door attempt by anti-abortionists to overturn Roe v Wade, the US supreme court judgment that set a constitutional right to a medical termination before the fetus reaches the age of viability. Delivering that ruling, the court defined a "person" as beginning at birth.
Richard Dieter, the director of the Death Penalty Information Center, said that were Castro put on death row for "aggravated murder" of a fetus, the verdict would almost certainly be open to constitutional challenge. "There is no one on death row for fetal homicide, and it raises some fundamental questions about whether a person has been killed. It may be in Ohio statute, but that doesn't make it constitutional."
Legal experts say that a decision to enhance Castro's prosecution into a capital case would pose both the prosecution and defense with large challenges. Katherine Federle, a law professor at Ohio State University, said that the prosecution would have to prove that Castro not only intended to terminate the pregnancies but also that his actions were to blame for the miscarriages – which might be hard to do where incidents occurred several years ago.
"We don't know what evidence the FBI and police have managed to assemble, so it's difficult to assess the case they will bring. But it could be quite a challenge for them to prove that the defendant was the cause of the terminations," Federle said.
Michael Benza, a law professor at Case Western Reserve University in Cleveland, who has defended several death penalty cases, said Castro's legal team would also face daunting hurdles. "In this case there is certain to be huge sympathy for these three young women – they have been a regular part of the public discussion in Cleveland for the past 10 years. So it's going to be hard to get the jury to go past that and pay attention just to what's happening in the courtroom."
McGinty's announcement that prosecutors may seek the death penalty is not an idle threat. Ohio has one of the highest rates of execution outside the south.
Last year, Ohio executed three prisoners, more than any other state outside Texas, Arizona and Oklahoma and equal to Florida. Since the reintroduction of the death penalty in the modern era in 1976, Ohio has put to death 51 prisoners; it has the seventh largest death row in the country, with 147 inmates.
Fetal homicide was incorporated into the state's homicide laws in 1996. The first case prosecuted under the law was that of Gregory Robbins, a member of the US air force who battered his wife causing her to lose her unborn baby.