The murder case prosecutors hope to bring against accused Cleveland abductor Ariel Castro, who police say induced several miscarriages by beating and starving one young woman, will be complicated by a lack of physical evidence and medical records, legal experts say.
The case consequently could hinge on whether Castro's three victims, whom he is accused of holding captive for nearly a decade, take the stand and testify that victim Michelle Knight was pregnant and miscarried, according to Thaddeus Hoffmeister, a law professor at the University of Dayton in Ohio.
"Their testimony will be crucial. You will need them to testify and that is going to be challenging based on how they were treated and kept for such a long time," Hoffmeister said.
"They have got to testify that A, they were pregnant and B, that this guy's actions caused the termination of that pregnancy."
Knight, 32, told police that Castro caused her to have at least five miscarriages after he kidnapped her in 2002 and kept her in a dungeon-like home in a low-income neighborhood of Cleveland.
Castro, 52, is accused of kidnapping and raping the three women over a period of around a decade.
Ohio is one of 38 states to have a fetal homicide law on the books, according to the National Conference of State Legislatures. The law in Ohio makes it a crime to murder a person "who is or was carried in the womb of another."
The state's fetal homicide law was used in 2011 against Dominic Holt-Reid who tried to force his girlfriend to get an abortion at gunpoint in Ohio. Holt-Reid pleaded guilty to an attempted murder charge and is serving 13 years in prison.
The most high-profile fetal homicide trial in the United States occurred in 2004, when Scott Peterson was convicted of murdering his pregnant wife and unborn son and sentenced to death in California.
On Thursday, Cuyahoga County Prosecutor Timothy McGinty, who has jurisdiction over all felony cases for Cleveland, said he intends to seek aggravated murder charges against Castro once the case is formally transferred to his office. Aggravated murder charges could carry the death penalty.
BUILDING A CASE WITHOUT MEDICAL RECORDS
Unlike the Holt-Reid and Peterson cases and most other fetal homicide cases, the one that prosecutors will attempt to build against Castro will be without prenatal care and medical records showing the woman was pregnant and miscarried, said Hoffmeister.
"Prosecutors don't need a body to prosecute you, but a corpse helps," Hoffmeister said. "Arguably, you could say that this person was never pregnant. It's just her word that she says that she was pregnant."
Ric Simmons, a law professor at Ohio State University, said if the three victims take the stand and corroborate their accounts of the miscarriages, prosecutors "will not have a problem proving" a murder case against Castro.
"Frankly, I think it could fly. It seems like they have the witnesses they need to establish this. The legal requirements for murder are set out here so I am not surprised they are doing this," Simmons said.
Knight, along with Amanda Berry and Gina DeJesus and a 6-year-old girl, escaped on Monday from Castro's house. Police said Castro used ropes and chains to hold the women captive initially, then allowed them more freedom within the house. The women were repeatedly raped and beaten, police said.
Berry, 27, disappeared in 2003, the day before her 17th birthday. DeJesus, 23, vanished in 2004.
Dr Bill Manion, who has provided expert medical testimony in a number of criminal cases throughout the United States, said it will be difficult to prove the victims had a miscarriage unless there was an injury to the cervix that caused a scar.
"They have to see if there was any trauma to the cervix," he said.
During a typical miscarriage, a women loses some blood as the fetus is expelled and the uterus contracts, Manion said. In young women, bone marrow then replaces the lost blood very quickly, he added, leaving no signs of miscarriage.
Investigators will also likely be searching for any fetal remains such as tissue or bones on the property, Manion added.
"If the fetus was not old enough to have bones, they may not find anything," he said.
Another key factor in determining the outcome of the case against Castro, if it goes to trial, will be the state of mind of the women when they take the stand, according to Hoffmeister.
Given the horrible circumstances that the women reportedly endured, the defense will need to treat them with "kid gloves" if they take the stand, he said.
Defense attorneys may want to stress the fact that the victims "were treated arguably sometimes like POWs (prisoners of war), if not worse, which may impact their ability to remember things," Hoffmeister said. "You would want to do that very delicately."