How Minnesota Statutes section 609.268 works

The statute does not describe one offense with two possible results. It has two subdivisions with different elements. A charging document should identify the subdivision, the alleged predicate crime, the result, and the conduct claimed to cause it. Those details control probable cause, discovery, expert preparation, plea analysis, jury instructions, and sentencing.

The common core

Both subdivisions require the commission of a qualifying crime and proof that the accused caused a prohibited result to 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.” It also excludes the pregnant woman from “whoever.” Neither subdivision states a viability threshold.

The results are different

Subdivision 1 requires death of the unborn child. Subdivision 2 requires great or substantial bodily harm and subsequent live birth. The medical record therefore determines not only causation but which statute can apply. A prenatal death, a live birth with injury, and a live birth followed by death present different legal questions.

The predicate lists are different

Each subdivision begins with felonies generally, excludes specific felony ranges, and then adds selected nonfelony statutes. The death subdivision includes fifth-degree assault and domestic assault among its listed predicates. The injury subdivision does not. Counsel should never assume that a crime qualifies for both subdivisions merely because it qualifies for one.

No separate intent-to-kill or intent-to-injure phrase appears

The text requires commission of the predicate crime and causation of the specified result. It does not add an express element that the accused intended the unborn child’s death or qualifying injury. The State must still prove the mental state and every other element of the predicate offense, plus the causal connection required by section 609.268. The precise jury instructions should follow the charged predicate and result.

Reproductive-health-care exception

Minn. Stat. § 609.269 (2026) excludes qualifying reproductive health care furnished to terminate a pregnancy with consent, subject to the statute’s medical-emergency provision. Section 609.268 targets unlawful third-party criminal conduct, not qualifying reproductive care or the pregnant person’s own conduct.

Subdivision 1: death of an unborn child during a qualifying crime

The State must prove that the accused committed a qualifying predicate offense and, in its commission, caused the unborn child’s death. The offense is a felony carrying up to 15 years in prison and a $30,000 fine.

Qualifying felonies and excluded felony groups

Subdivision 1 starts with “a felony,” but excludes violations of sections 609.185 through 609.2114, 609.221 through 609.2231, and 609.2661 through 609.2665. Broadly, those ranges encompass homicide and criminal-vehicular offenses, serious assault statutes, and unborn-child homicide statutes. The exclusions reduce overlap with crimes that already address death, vehicular conduct, assault results, or unborn-child homicide.

Six listed nonfelony predicates

The death offense also applies during a violation of section 609.224 (fifth-degree assault), section 609.2242 (domestic assault), section 609.23 (mistreatment of persons confined), section 609.231 (mistreatment of residents or patients), section 609.2325 (criminal abuse of a vulnerable adult), or section 609.233 (criminal neglect of a vulnerable adult).

The underlying crime must be proven, not merely alleged

If the State selects fifth-degree assault as the predicate, it must prove the charged assault theory. If it selects burglary, controlled-substance crime, or another felony, it must prove that felony’s elements. A dismissal, acquittal, legally defective instruction, or insufficient proof of the predicate can undermine the section 609.268 count even when a tragic death is undisputed.

Death must occur while the child is unborn

The defined victim under subdivision 1 is an unborn child. When a child is born alive and later dies, ordinary homicide law and other statutes may become relevant. The timing and signs of live birth are therefore legal facts, not merely wording choices in a medical summary.

Subdivision 2: great or substantial bodily harm and subsequent live birth

The injury offense requires a qualifying predicate crime, great or substantial bodily harm to the unborn child, causation, and subsequent live birth. It is a felony carrying up to 10 years in prison and a $20,000 fine.

Great bodily harm

Under Minn. Stat. § 609.02, subd. 8 (2026), great bodily harm includes injury creating a high probability of death, serious permanent disfigurement, permanent or protracted loss or impairment of a bodily member or organ, or other serious bodily harm. A possibility that the injury could have become worse is not the same as proof that the actual injury met the standard.

Substantial bodily harm

Subdivision 7a defines substantial bodily harm as temporary but substantial disfigurement, temporary but substantial loss or impairment of a bodily member or organ, or fracture of a bodily member. Medical conclusions should identify the particular statutory category and the facts supporting it. Hospitalization alone does not automatically decide the degree of harm.

Subsequent live birth is an element

The child must later be born alive. Live birth does not establish the degree of injury, and injury does not establish live birth. Records may address respiration, heartbeat, cord pulsation, movement, resuscitation, Apgar assessments, and treating clinicians’ observations. The State must prove both live birth and qualifying harm.

Qualifying felonies and exclusions

Subdivision 2 generally includes felonies but excludes sections 609.2112 through 609.2114, 609.221 through 609.2231, and 609.267 through 609.2672. Those exclusions cover criminal vehicular operation, specified assault felonies, and unborn-child assault statutes. The exact offense date and statute version matter when a predicate has been amended or renumbered.

Four listed nonfelony predicates

The injury subdivision separately includes violations of sections 609.23, 609.231, 609.2325, and 609.233. It does not list fifth-degree assault or domestic assault as standalone nonfelony predicates. If an assault or domestic-assault charge is elevated to a felony under its own enhancement provisions, counsel must analyze whether the felony qualifies despite the subdivision’s listed exclusions.

How to litigate the predicate offense

The predicate is not background information. It is an essential part of the section 609.268 prosecution. Defense counsel should build an element chart for the selected crime, identify the alleged act and mental state, and test whether the proof matches the offense version in effect on the incident date.

Identify the exact subdivision and enhancement facts

A felony may depend on value, prior convictions, victim status, use of a weapon, location, relationship, or another circumstance. The complaint should specify those facts. Prior-conviction enhancements may require certified records and identity proof; value offenses may require admissible valuation evidence; status-based offenses require proof that the person or place fits the statute.

The predicate must be connected to the result

The phrase “in the commission of” requires more than proving that the accused committed some unrelated offense during the same general period. The State should identify the conduct within the predicate crime that allegedly caused the death or harm and explain the temporal and causal connection. An offense wholly complete and disconnected from a later medical event presents a different issue from one continuous incident.

Aiding-and-abetting allegations add another layer

If the accused did not personally perform the act causing injury or death, prosecutors may allege accomplice liability under Minn. Stat. § 609.05 (2026). The State must prove the required knowing and intentional assistance for the predicate crime and a legally sufficient basis for liability on the resulting offense. Mere presence, passive association, or after-the-fact knowledge is not automatically aiding and abetting.

Withdrawal and timing

A person who learns of a crime only after it occurs is not liable as an accomplice merely for failing to report it. Minnesota law also has a statutory withdrawal rule requiring abandonment and reasonable effort to prevent the crime before it occurs. The timing of messages, transport, assistance, and any effort to stop the conduct can be decisive.

Criminal causation and State v. Gatson

The State must prove that the accused’s conduct was a substantial causal factor in the prohibited result. It need not always prove that the conduct was the sole cause. But it must do more than show sequence, suspicion, or a medical possibility.

An official Minnesota Supreme Court opinion involving prenatal trauma

In State v. Gatson, 801 N.W.2d 134, 146 (Minn. 2011), the court stated that the State must prove the defendant’s acts were a “substantial causal factor” leading to death. The case involved an assault on a pregnant woman, placental abruption, premature live birth, life-support treatment, and the child’s later death. Gatson was not a prosecution under section 609.268, but its causation analysis is directly instructive.

Medical intervention is not automatically a superseding cause

Gatson held that removing life support did not break causation because medical intervention was a foreseeable consequence of the injuries attributed to the assault. The lesson is not that medical treatment can never matter. It is that an intervening event must be analyzed carefully; a foreseeable effort to treat an injury generally differs from a truly independent sole cause.

Alternative and contributing causes

Pregnancy loss, premature birth, and neonatal injury can involve placental disease, infection, hypertension, congenital conditions, genetic disorders, medication, substance exposure, cord events, spontaneous labor, delivery complications, or treatment complications. A contributing condition does not automatically defeat criminal causation, but it may create reasonable doubt if the State cannot reliably connect the accused’s conduct to the required result.

Timing is evidence, not a medical opinion

A condition appearing after an alleged crime may support the State’s theory, but “after” does not mean “because of.” Experts should identify the biological mechanism, expected findings, timing, and alternatives. A statement that an outcome is “consistent with” trauma often means trauma is possible, not that it is the proven cause in the individual case.

Cause of death and manner of death are different

Medical examiners and treating doctors may use cause and manner in technical ways. A medical cause describes the disease or injury process; manner classifications organize deaths for medicolegal purposes. Neither label decides whether the accused committed the predicate crime or whether all criminal elements are proven beyond a reasonable doubt.

Evidence and expert work that should begin early

These cases can produce thousands of pages of medical records plus a separate criminal investigation. A useful defense chronology integrates both rather than assigning them to isolated teams.

Build the crime timeline

Collect 911 calls, dispatch records, body-camera footage, squad video, surveillance, doorbell video, photographs, physical evidence, emergency-service records, and witness accounts. For a property, drug, abuse, neglect, or assault predicate, obtain the records unique to that offense. Map who did what, when, and with what claimed intent.

Build the prenatal baseline

Obtain prenatal visits, early and later ultrasound images, fetal growth data, maternal diagnoses, prior bleeding or contractions, cervical measurements, infection testing, genetic screening, medication records, substance history, and earlier fetal monitoring. The baseline shows whether the condition was new, chronic, progressive, or unrelated to the alleged crime.

Preserve source medical material

Request native fetal-monitoring files, imaging files, laboratory results, placental pathology slides or blocks, autopsy material where applicable, operative notes, anesthesia records, nursing flowsheets, cord gases, neonatal data, and follow-up evaluations. A discharge summary is a starting point, not the complete evidentiary record.

Choose experts by issue

Maternal-fetal medicine may address pregnancy management and abruption; placental pathology may address tissue findings; neonatology may address the newborn course; pediatric neurology or radiology may address injury; forensic pathology may address death; toxicology, genetics, or infectious disease may address alternatives; biomechanics may evaluate force. One expert should not be asked to exceed the expert’s actual field.

Audit expert assumptions

An opinion can be methodologically sound yet wrong because it assumes disputed facts. Give experts original video, complete medical history, and accurate timelines. Identify which facts come from witnesses, police summaries, or copied chart entries. Cross-examination should expose assumptions that the jury, not the expert, must decide.

Build a pretrial proof matrix

A section 609.268 case benefits from a written matrix with a separate row for every proposition the State must establish. For the predicate offense, identify the statute version, subdivision, classification, enhancement facts, mental state, and evidence. Then ask whether the predicate appears in an excluded statutory range. For the result offense, identify subdivision 1 or 2, the alleged causal act, the exact medical result, the child’s status at the relevant time, and the expert who will connect the act to the result. The matrix should also identify the evidence supporting and contradicting each proposition.

This exercise often reveals a gap hidden by broad charging language. A complaint may identify a felony but not the act within that felony said to cause the loss. A medical expert may assume an assault occurred without knowing that identity or self-defense is disputed. A police investigator may describe “injury” without distinguishing bodily harm from substantial or great bodily harm. And a prosecutor may cite the death subdivision’s predicate list while charging injury. Requiring each witness and exhibit to do defined work prevents seriousness from substituting for proof.

Align the verdict form with the proof

If more than one predicate or result theory is submitted, counsel should examine unanimity and notice. Jurors should not be permitted to combine different unproven predicates or disagree about whether the charged result was death, great bodily harm, or substantial bodily harm. Special verdict questions are not appropriate in every case, but clear elements and a theory-specific record are essential for a lawful verdict and meaningful appellate review.

Defense issues under section 609.268

The defense may challenge the predicate, causation, the result, identity, accomplice liability, or admissibility. Several issues can coexist without being inconsistent.

No qualifying predicate crime

The accused may not have committed the alleged offense, an enhancement may be unproven, or the felony may fall within the subdivision’s exclusions. A nonfelony offense not specifically listed cannot be converted into a predicate through seriousness or analogy.

No causal connection

The death or injury may result from an independent medical condition, pregnancy complication, delivery event, or treatment issue. The defense can also show that the prosecution cannot identify a reliable mechanism or timing. Reasonable doubt does not require the defense to prove one exclusive alternative cause.

The result does not fit the charged subdivision

Subdivision 1 requires death of an unborn child. Subdivision 2 requires subsequent live birth and great or substantial bodily harm. Disputes about live birth, injury degree, or whether the death occurred before or after birth can determine which statutes are legally available.

No great or substantial bodily harm

For subdivision 2, a minor or transient condition may amount only to bodily harm. A risk that did not materialize, precautionary admission, or medical concern is not automatically substantial or great bodily harm. The jury must apply the statutory definitions to the child’s actual injury.

No accomplice liability

Presence, friendship, flight, or assistance after the crime does not by itself prove intentional aid before or during the offense. The defense should separate conduct occurring before completion from conduct occurring later and analyze whether the accused knew of and intended to further the predicate.

Justification or other defense to the predicate

Self-defense, defense of another, authorization, mistake, lack of intent, or another defense may defeat the underlying crime depending on its elements. If the predicate fails, the derivative section 609.268 theory generally fails with it.

Suppression and expert-admissibility challenges

Unlawful searches, custodial-interrogation violations, involuntary statements, unreliable identification, hearsay, and improper character evidence may affect the criminal proof. Expert opinions require adequate facts, reliable methods, and a proper fit to the issue. Legal conclusions should not substitute for medical or scientific analysis.

Other convictions, multiple victims, and overlap

Minn. Stat. § 609.2691 (2026) states that prosecution for or conviction under sections 609.2661 through 609.268 does not bar conviction of or punishment for another crime committed as part of the same conduct. Prosecutors commonly charge the predicate offense and the section 609.268 offense together.

The statute does not eliminate all multiple-conviction rules

Courts must still consider included offenses, statutory definitions, double-jeopardy principles, the same-behavioral-incident statute, and authorized consecutive sentencing. Section 609.2691 is important, but it should not be paraphrased as permission for any combination of convictions or sentences without analysis.

Crimes against the pregnant woman

An incident may produce a count involving the mother and a count involving the unborn child. Separate alleged victims can affect sentencing and multiple-conviction questions. Each count nevertheless requires independent proof, and injury to the mother does not prove injury or death of the unborn child.

Charging alternatives

Depending on intent, result, and predicate, prosecutors may consider unborn-child homicide, unborn-child assault, criminal vehicular operation involving an unborn child, or ordinary homicide if a child is born alive and later dies. The legislature’s exclusions help route conduct among those statutes. The defense should compare elements rather than assume the most serious title fits.

Penalties and Minnesota Sentencing Guidelines

The death and injury offenses have different statutory maximums and Guidelines ranks. A maximum is not the presumptive sentence. The applicable Guidelines grid uses the offense’s severity level and the person’s criminal-history score, subject to lawful departure rules.

Death offense: 15-year maximum and severity level 9

Subdivision 1 authorizes up to 15 years and a $30,000 fine. The current Minnesota Sentencing Guidelines offense-severity reference ranks death of an unborn child in commission of a crime at severity level 9.

Injury offense: 10-year maximum and severity level 4

Subdivision 2 authorizes up to 10 years and a $20,000 fine. The current Guidelines rank injury of an unborn child in commission of a crime at severity level 4. The difference between the statutory maximum and the lower severity rank illustrates why counsel must separate maximum exposure from the presumptive sentence.

The predicate conviction and criminal history

If both the predicate and section 609.268 counts result in convictions, sentencing requires analysis of the same conduct, separate victims, permissive or mandatory consecutive rules, and criminal-history sequencing. A worksheet should be audited for offense dates, custody status, prior decay, out-of-state equivalency, and correct scoring.

Departures

An upward departure requires a legally recognized aggravating circumstance and proper factfinding or admission. A downward departure requires a substantial and compelling basis under the governing law. Facts that define the offense should not simply be counted twice unless the conduct was significantly more serious than the typical offense in a legally valid respect.

Collateral consequences

A felony can affect firearm rights, employment, licensing, housing, immigration, family proceedings, and public records. Domestic circumstances may add no-contact and firearm restrictions. Immigration-safe resolution requires advice from qualified immigration counsel before a plea, not after sentencing.

Frequently asked questions about injury or death during commission of a crime

1. What is the maximum penalty when an unborn child dies?

Subdivision 1 allows up to 15 years in prison and a $30,000 fine. The current Guidelines rank the offense at severity level 9. The presumptive sentence depends on criminal history and the applicable Guidelines.

2. What is the maximum penalty for injury?

Subdivision 2 allows up to 10 years in prison and a $20,000 fine. The current Guidelines rank the offense at severity level 4, and the presumptive disposition and duration depend on criminal history.

3. Does every felony qualify as a predicate?

No. Each subdivision excludes specified groups of felonies. The exclusion lists differ, so counsel must compare the exact predicate statute and subdivision to the charged result.

4. Can a misdemeanor be the predicate?

Only specifically listed nonfelony offenses. The death subdivision lists six statutes, including fifth-degree assault and domestic assault. The injury subdivision lists four mistreatment, abuse, and neglect statutes and does not separately list those two assault misdemeanors.

5. Must the State prove intent to kill?

Section 609.268 does not state a separate intent-to-kill element. The State must prove the predicate offense and its mental state, the required result, and causation. A different unborn-child homicide charge may require a different intent.

6. What causation standard applies?

Minnesota criminal causation asks whether the accused’s acts were a substantial causal factor in the result. Other contributing causes do not automatically defeat liability, but an independent superseding cause or an unproven medical theory can create reasonable doubt.

7. Does medical treatment break causation?

Not automatically. Gatson held that foreseeable medical intervention, including removal of life support on its facts, did not supersede injuries caused by the assault. The individual treatment and causal chain still require analysis.

8. Must the child be born alive for the injury offense?

Yes. Subdivision 2 expressly requires subsequent live birth. It also requires great or substantial bodily harm, which must be proven separately.

9. Is live birth required for the death offense?

No. Subdivision 1 concerns death of an unborn child. A child born alive who later dies presents potential ordinary homicide and causation questions rather than simply satisfying the unborn-child-death wording.

10. Is fetal viability required?

No. The statutory definition applies from conception until birth. Gestational age may still be critical to medical causation, the nature of injury, and the reliability of conclusions.

11. Can the State charge the predicate offense separately?

Yes. Section 609.2691 preserves other convictions and punishment for crimes committed in the same conduct. Included-offense, same-incident, multiple-victim, and sentencing rules still require careful application.

12. What experts may be needed?

Maternal-fetal medicine, placental pathology, neonatology, pediatric neurology, radiology, genetics, infectious disease, toxicology, forensic pathology, or biomechanics may be relevant. The expert should match the disputed mechanism.

13. What evidence should be preserved?

Preserve incident video, 911 audio, body-camera footage, digital communications, physical evidence, and predicate-offense records. Obtain complete prenatal, fetal-monitoring, imaging, placental, delivery, neonatal, autopsy, and follow-up material as applicable.

14. Can an accomplice be charged?

Potentially, if the State proves the required knowing and intentional assistance and a lawful basis for liability on the resulting offense. Mere presence, association, or assistance only after completion is not automatically enough.

15. Should someone under investigation speak with police?

A person may remain silent and request counsel. Statements can establish the predicate’s mental state, alleged participation, pregnancy knowledge, or the sequence bearing on causation. Counsel can review the evidence before advising whether communication is beneficial.