How section 609.2672 is organized

The statute uses two numbered clauses joined by “or.” The State may charge one theory, both in separate counts, or both as alternatives when procedural rules allow. But a conviction must rest on proof of every element of a legally submitted theory beyond a reasonable doubt. Courts cannot treat the clauses as a collection of interchangeable facts.

Clause (1): intent to cause fear for the unborn child

The first clause requires an act done with intent to cause fear in a pregnant woman of immediate bodily harm or death to the unborn child. Its focus is the accused person’s purpose and the immediacy and object of the feared harm. Actual injury is not an element. The text also does not require the unborn child to be later born alive under this clause.

Clause (2): intentional infliction or attempted infliction of bodily harm

The second clause requires intentionally inflicting or attempting to inflict bodily harm on an unborn child who is subsequently born alive. An attempt can be completed without actual bodily harm, but the State must still prove the intentional conduct and the live-birth element. When actual harm is alleged, causation and medical proof become central.

Who qualifies as an unborn child?

Minn. Stat. § 609.266 (2026) defines an unborn child as “the unborn offspring of a human being conceived, but not yet born.” The definition has no minimum gestational age or viability requirement. It also states that “whoever” does not include the pregnant woman, excluding her from liability under this series of statutes.

The reproductive-health-care exception

Minn. Stat. § 609.269 (2026) excludes reproductive health care offered, arranged, or furnished to terminate a pregnancy with the pregnant individual’s consent or the consent of an authorized representative. In a medical emergency, consent is not required when it cannot be obtained. Section 609.2672 concerns unlawful third-party conduct, not qualifying reproductive care.

Why the charging language and jury instructions matter

A legally sufficient complaint should do more than cite section 609.2672. It should allege facts identifying clause (1), clause (2), or both. Under clause (1), the State should identify the act, the intended fear, why the threatened harm was immediate, and why the object of that fear was the unborn child. Under clause (2), it should identify the act said to inflict harm or the substantial step said to constitute an attempt, as well as subsequent live birth. That detail gives the accused notice of what must be defended and allows the court to test probable cause against the correct elements.

The distinction remains important at trial. An instruction that permits conviction merely because the woman feared for herself would dilute clause (1). An instruction that omits live birth from clause (2) would remove an express element. And an attempt instruction must require more than preparation or an angry statement; the jury must evaluate the conduct the State claims moved the alleged offense toward completion. If both theories are submitted, the verdict form and unanimity analysis should prevent jurors from combining different facts that do not establish either clause on its own.

Proof of one clause does not automatically prove the other

A person could act with an intent to frighten while having no intent to inflict bodily harm. Conversely, an alleged act intended to inflict harm may occur without an accompanying purpose to create fear. The legislature wrote those mental states separately. Evidence that the pregnant woman was frightened can support an inference under clause (1), but it does not establish attempted bodily harm. Medical evidence of a child’s condition can support clause (2), but it does not establish that the accused meant to cause fear. Keeping the theories separate is ordinary element-by-element criminal defense, not a technical escape from the statute.

Clause (1): intent to cause fear of immediate harm or death to the unborn child

The first theory is not simply an ordinary threat or a generalized argument involving a pregnant woman. The State must prove an act, a specific intent to cause fear, a pregnant recipient, immediacy, and that the feared bodily harm or death concerns the unborn child.

The crime focuses on the accused person’s intent

The prosecution need not prove that the woman experienced the intended fear exactly as the accused hoped. Her reaction is relevant circumstantial evidence, but it is not a substitute for proving intent. A calm response does not automatically defeat the count, and a frightened response does not automatically prove what the accused intended.

The feared harm must be immediate

A conditional statement about a remote future event may fall outside the clause if it does not convey immediate harm. “Immediate” is evaluated in context, including distance, access, the words used, physical movement, weapon display, prior conduct, and the ability to act. The difference between an ugly remark and an immediate assault can be intensely factual.

The object of the fear is specifically the unborn child

Clause (1) says bodily harm or death “to the unborn child.” An act intended to make the pregnant woman fear harm only to herself may support another assault charge, but it does not necessarily prove this clause. Prosecutors may rely on words, gestures toward the abdomen, a displayed object, prior messages, or surrounding conduct to identify the intended object of fear.

Words and acts must be assessed in full context

Statements can be misunderstood when extracted from a longer exchange. Sarcasm, quotation, hyperbole, self-protective commands, or a warning about someone else’s conduct may carry a different meaning from a threat. Obtain the complete recording or message thread, not a paraphrase in a report. Timing, punctuation, preceding remarks, and follow-up conduct can change the inference.

Knowledge of pregnancy can be a major factual issue

Because clause (1) requires a purpose to cause fear concerning the unborn child, evidence that the accused did not know of the pregnancy may directly undermine the State’s intent theory. Knowledge may be proven circumstantially through conversations, visible pregnancy, appointments, photographs, shared plans, or targeted words. The defense should test each claimed source rather than concede knowledge based on hindsight.

Clause (2): intentionally inflicting or attempting to inflict bodily harm

The second theory is directed at bodily harm to the unborn child, not merely fear. It uses “intentionally,” includes both completed and attempted harm, and requires that the child be subsequently born alive. Each term has independent work to do.

What is bodily harm?

Under Minn. Stat. § 609.02, subd. 7 (2026), bodily harm means physical pain or injury, illness, or impairment of physical condition. This is lower than the substantial-bodily-harm threshold for second degree and the great-bodily-harm threshold for first degree. Even so, the State must prove an actual qualifying condition when it alleges completed infliction.

An attempt does not require completed bodily harm

The statute expressly includes an attempt to inflict bodily harm. A criminal attempt ordinarily requires intent to commit the crime and an act that goes beyond mere preparation and constitutes a substantial step toward the offense. Mere angry thought, preparation, or ambiguous movement is not necessarily enough. The charging theory should identify the act said to constitute the attempt.

The child must subsequently be born alive

Live birth is an express element of clause (2), including when the State alleges an attempt. If the child is not subsequently born alive, the clause does not fit its own wording. Medical records may address respiration, heartbeat, cord pulsation, movement, resuscitation, and clinicians’ observations. The issue is statutory, not a judgment about the seriousness of the loss.

Actual bodily harm requires causation

When the State alleges completed harm, it must connect the accused’s intentional act to the child’s condition. Timing alone is not enough. Congenital conditions, placental disease, infection, medication, maternal illness, labor complications, delivery injury, and neonatal events may supply alternative explanations. A qualified expert should identify the biological mechanism and address the complete record.

Medical labels do not decide the legal element

“Fetal distress,” “bruising,” “preterm labor,” or “low oxygen” can describe clinical observations without resolving intent or causation. Some findings are transient, nonspecific, or precautionary. The defense should obtain source fetal monitoring, imaging, laboratory data, placental pathology, delivery records, and newborn records rather than rely on a discharge-summary label.

Intent under Minnesota assault law

Minnesota appellate law distinguishes an intent-to-cause-fear assault from an assault based on the intentional infliction of harm. That distinction is especially useful here because section 609.2672 places its two theories in separate clauses.

State v. Fleck: specific intent and general intent are different

In State v. Fleck, 810 N.W.2d 303, 309–12 (Minn. 2012), the Minnesota Supreme Court explained that assault-fear is a specific-intent offense, while ordinary assault-harm is a general-intent offense. The court described assault-fear as requiring “an additional special mental element.” Section 609.2672 is more tailored than the general assault definition, so its exact text still controls, but Fleck shows why the two theories must not be blended.

Intent is commonly proven with circumstantial evidence

Prosecutors may rely on words, movements, prior communications, the character of the act, concealment, flight, apology, or later explanations. The defense may point to equally reasonable context: accident, a protective act, a different target, a lack of pregnancy knowledge, a nonthreatening purpose, or an incomplete recording. The relevant question is the accused person’s state of mind at the time.

Voluntary intoxication has a limited and theory-dependent role

Fleck held that voluntary intoxication may be considered for the specific intent required by assault-fear but not to negate the general intent of ordinary assault-harm. The application to a charge under section 609.2672 depends on the clause and its wording. Intoxication is not a blanket defense, and evidence that a person drank or used a substance does not automatically support an instruction.

Motive is evidence, not an element

The State does not have to prove a motive unless a particular charge makes it an element. But motive evidence can influence the inference of intent. Relationship conflict, pregnancy decisions, finances, paternity disputes, custody concerns, and prior communications may be presented. Counsel should distinguish admissible evidence from stereotype, speculation, or unfair character evidence.

Evidence that commonly determines the charge

Because the offense is a misdemeanor, evidence preservation can be neglected. That is a mistake. Phone data disappears, surveillance systems overwrite files, and memories change. The same disciplined collection used in a felony case may be necessary to resolve the accusation accurately.

Complete communications

Preserve full text threads, direct messages, call logs, voicemails, emails, and social-media content with metadata when available. A single screenshot may omit the condition, prior statement, response, or timestamp that reveals meaning. Determine who controlled each account and whether messages were deleted, edited, forwarded, or attributed to the wrong person.

Video, audio, and physical context

Obtain 911 audio, dispatch records, body-camera footage, squad video, residential and business surveillance, doorbell footage, and photographs. Measure distances and identify barriers, lighting, exits, and witness positions. Under clause (1), context bears on immediacy and intent; under clause (2), it can show whether the alleged movement was intentional and whether an attempt progressed beyond preparation.

Medical records for a completed-harm allegation

Request prenatal records, ultrasound images, fetal-monitoring data, emergency records, imaging, laboratory results, placental pathology, delivery notes, cord gases, newborn assessments, and follow-up records. Establish the child’s baseline before the event and the full chronology after it. Ask the expert to separate documented injury from risk, precaution, and unrelated diagnosis.

Witness interviews

Interview witnesses separately and promptly. Determine what each person personally saw and heard rather than what was later discussed. Compare statements with timestamps, location data, video, and physical evidence. A witness’s conclusion that someone “threatened the baby” is less useful than the exact words, gestures, distance, and sequence.

Police interviews

Review the entire recording, not the report summary. Questions may supply facts the accused did not know, conflate the two clauses, or treat a denial as inconsistent because officers misunderstood the timeline. Suppression may be available when constitutional safeguards were violated, and evidentiary rules govern whether portions of a statement are admitted.

Common defense issues

A viable defense should track the charged clause. An argument that defeats the fear theory may not answer an attempted-harm allegation, and a medical causation dispute may be irrelevant if the State charged only fear.

No specific intent to cause fear for the unborn child

Clause (1) requires a purpose to cause fear of immediate harm or death to the unborn child. The accused may have intended to leave, retrieve property, warn, protect, argue, or express anger without that specific purpose. A generalized inference of hostility is not the same as proof of the required intent.

The alleged harm was not immediate

Remote, conditional, or speculative future harm may not satisfy immediacy. Distance, lack of means, intervening conditions, and the actual words matter. The prosecution cannot remove a condition from a statement and then describe the remainder as an immediate assault.

No intentional infliction or substantial step

Under clause (2), an accidental movement is not intentional infliction. For attempt, preparation is not enough; the State must identify conduct constituting a substantial step toward intentionally harming the unborn child. Ambiguous gestures should be assessed against every reasonable explanation.

No bodily harm or no causation

A completed-harm theory fails if the State cannot prove bodily harm to the child or cannot causally connect it to the accused. A temporal association, precautionary monitoring, maternal injury, or concern about possible fetal effects does not necessarily prove actual bodily harm.

No subsequent live birth under clause (2)

The live-birth requirement cannot be omitted because the accusation is emotionally serious. The clause the legislature enacted controls. If the evidence does not satisfy it, the State must rely on another applicable offense and prove that offense’s elements.

Self-defense, defense of another, and innocent conduct

Justified force may apply when Minnesota’s requirements are satisfied. The analysis concerns actual and reasonable belief, immediacy, proportionality, aggression, and any governing retreat rule. Conduct that looks threatening in a short video may be a defensive response when the preceding encounter is restored.

Constitutional and evidentiary challenges

Unlawful searches, custodial interrogation violations, involuntary statements, unreliable identifications, hearsay, improper character evidence, and unsupported expert opinions can all affect admissibility. A misdemeanor designation does not reduce the State’s burden or the accused’s constitutional protections.

How third degree differs from related offenses

The title can cause confusion with ordinary third-degree assault, which is a felony under a different statute. Section 609.2672 is expressly a misdemeanor and has its own unborn-child-specific elements.

First- and second-degree assault of an unborn child

First degree requires great bodily harm and subsequent live birth, with a 15-year maximum. Second degree requires substantial bodily harm and subsequent live birth, with a five-year maximum. Third degree uses fear, bodily harm, or attempt and carries misdemeanor punishment.

Ordinary assault and domestic assault

The same incident may lead to a fifth-degree assault or domestic-assault charge involving the pregnant woman. The State must prove each count’s elements. A domestic relationship can trigger no-contact, firearm, enhancement, and collateral-consequence rules not created by section 609.2672 itself.

Other convictions are not categorically barred

Minn. Stat. § 609.2691 (2026) says conviction under sections 609.2661 through 609.268 does not bar conviction or punishment for another crime committed as part of the same conduct. Courts still must apply element, included-offense, same-behavioral-incident, and sentencing law to the actual counts.

Jail, fines, probation, and collateral consequences

Section 609.2672 labels the offense a misdemeanor without stating a separate maximum. Under Minn. Stat. § 609.03(3) (2026), a misdemeanor with no otherwise fixed punishment carries up to 90 days in jail, a $1,000 fine, or both. Courts may also impose probation, conditions, restitution when authorized, and the standard surcharge.

Minimum-fine statute

Minn. Stat. § 609.101, subds. 2 and 5 (2026) lists section 609.2672 among offenses generally subject to a fine of at least 30 percent of the authorized maximum. The statute permits reduction to at least $50 for qualifying indigence or hardship and permits community work service in lieu of a fine. Counsel should address ability to pay and the exact sentencing statute.

No felony Sentencing Guidelines grid

Because section 609.2672 is a misdemeanor, Minnesota’s felony sentencing grid does not assign it a severity level. The district court exercises misdemeanor sentencing authority within statutory limits, informed by the offense, record, public safety, mitigation, restitution, and applicable local practices.

Consequences beyond jail

A conviction can affect employment, licensing, housing, immigration, family court, and reputation. If the conduct also qualifies as a domestic-violence-related offense under other law, later charges and firearm rights may be affected. Immigration analysis should come from qualified immigration counsel before a plea.

No-contact and pretrial conditions

Courts may impose no-contact, geographic, firearm, monitoring, or chemical-use conditions while a case is pending. Violations can produce a new charge or revocation even when the underlying accusation is disputed. Changes should be requested through court rather than handled informally.

What happens in a Minnesota misdemeanor case?

A case may begin by citation, summons, or arrest. At the first appearance or arraignment, the court addresses the charge, plea, counsel, and conditions. Counsel can request discovery, investigate, file motions, negotiate, and prepare for trial. The State retains the burden throughout.

Discovery and motions

Discovery can include reports, recordings, photographs, statements, digital evidence, medical material in the State’s possession, expert disclosures, and exculpatory evidence. Motions may challenge searches, statements, identification, expert testimony, hearsay, or the legal sufficiency of the charge. Some defenses require timely notice.

Negotiation is not an admission

Lawyers routinely discuss dismissal, amendment, diversion where available, continuance for dismissal, or a negotiated sentence while preparing for trial. The strength of intent proof, medical evidence, witness reliability, prior record, and the client’s objectives affect resolution. No one should plead guilty merely because the offense is “only” a misdemeanor.

Trial and unanimity

The court must instruct the jury on the charged theory or theories. When alternative acts are materially distinct, counsel should analyze whether the verdict form and unanimity instruction protect the right to a unanimous verdict. The State cannot prove part of clause (1) and part of clause (2) and call the combination a completed offense.

Frequently asked questions about third-degree assault of an unborn child

1. Is third-degree assault of an unborn child a felony?

No. Section 609.2672 expressly makes it a misdemeanor. The maximum is 90 days in jail and a $1,000 fine because the section does not provide another punishment.

2. What are the two theories?

Clause (1) is an act intended to cause a pregnant woman fear of immediate bodily harm or death to the unborn child. Clause (2) is intentionally inflicting or attempting to inflict bodily harm on an unborn child who is later born alive.

3. Does the State have to prove actual injury?

Not under the fear theory, and not when clause (2) is charged as an attempt. Actual bodily harm and causation are required when the State alleges completed infliction of harm.

4. Must the child be born alive?

Clause (2) expressly requires subsequent live birth. Clause (1) does not include that wording. The complaint and instructions must identify the applicable clause.

5. Does the fetus have to be viable?

No. Minnesota’s definition applies from conception until birth without a viability threshold. The State still must prove pregnancy and every element of the charged clause.

6. What is bodily harm?

Bodily harm means physical pain or injury, illness, or impairment of physical condition. It is a lower injury category than substantial or great bodily harm, but it still requires proof when completed harm is charged.

7. Does the woman actually have to be afraid under clause (1)?

The focus is the accused person’s intent to cause fear. The woman’s reaction is relevant evidence but not the element itself. The State must prove the specific intent from words, actions, and context.

8. What does “immediate” mean?

It distinguishes an impending harm from a remote or conditional future possibility. Distance, means, physical movement, words, prior conduct, and surrounding circumstances bear on whether the intended fear concerned immediate harm.

9. Must the accused know about the pregnancy?

Under clause (1), lack of pregnancy knowledge can directly undermine an alleged intent to cause fear for the unborn child. Under clause (2), the mental-state analysis follows the exact “intentionally” language and the evidence. The issue should be litigated, not presumed.

10. Can an accidental act be third-degree assault?

Accident may defeat the required intent. Clause (1) requires specific intent to cause fear, and clause (2) requires intentional infliction or an intentional attempt. The State must prove more than an unfortunate result.

11. Can self-defense apply?

Yes, when Minnesota’s justification requirements are satisfied. The analysis includes actual and reasonable belief, immediacy, proportionality, aggression, and any applicable retreat rule. The full encounter should be preserved.

12. Can there be other charges from the same incident?

Yes. Ordinary assault, domestic assault, threats, or other offenses may be charged. Each count has separate elements, and included-offense and sentencing rules must be applied to the final convictions.

13. Is there a mandatory minimum fine?

Section 609.101 generally calls for at least 30 percent of the authorized maximum for listed assault offenses, including section 609.2672. The court may reduce the amount to at least $50 for qualifying indigence or hardship and may allow community work service.

14. Will the case appear on a background check?

Charges and convictions can appear in public records and commercial background reports. Dismissal does not automatically erase every record. Expungement eligibility depends on the disposition, timing, and current law.

15. Should someone accused of this offense speak to police?

A person may remain silent and request counsel. Statements about pregnancy knowledge, intent, context, or the alleged act can decide which clause is charged. A lawyer can review the evidence before advising whether communication is useful.