This is a partial transcript from "On the Record," January 17, 2005, that has been edited for clarity.
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GRETA VAN SUSTEREN, HOST: National outrage over a heinous crime in Michigan: A pregnant teen and her boyfriend hit her stomach with a baseball bat and now the fetus is dead. The girl was let off the hook but the boy is charged, charged as a juvenile and released into his parents' custody tonight.
There are also questions about the boy's mother, who allegedly helped bury the fetus in their backyard.
Joining us from Detroit is Macomb County prosecutor Eric Smith, welcome Eric.
Greta, thank you for having me.
VAN SUSTEREN: All right, Eric, what are the allegations of the crime that you're charging? What are the facts?
ERIC SMITH, MACOMB COUNTY PROSECUTOR: Well, essentially it's as you reported that these two 16-year-olds, the girl became pregnant and they decided to try and terminate this pregnancy through the use of a baseball bat and these assaults occurred over a three-week time frame, approximately one a day. There was the young man assaulting the young woman.
VAN SUSTEREN: And what is the actual charge?
SMITH: Essentially it's assaulting a pregnant woman causing a miscarriage.
VAN SUSTEREN: We at least also read that maybe — when I say "maybe" I say it very cautiously — that the mother of one of them may have at least attempted to dispose of the fetus, any information about that?
SMITH: Well, that's correct. The mother of the young man was involved in the burying of the fetus. After the miscarriage occurred, the young lady told her mom. The mom called the young man's mother and the young man's mother took the fetus and buried it in their backyard.
VAN SUSTEREN: What is the risk that this young man faces? He's charged as a juvenile, not as an adult but what's the penalty?
SMITH: Well, the actual statute is a 15-year felony but, as you know, because he's charged in Juvenile Court, he's 16. He's subject to Juvenile Court supervision until his 21st birthday. So, that ranges anywhere from just counseling to counseling and probation to education to actual incarceration in the youth system.
VAN SUSTEREN: What would you propose happen here? I mean you're in the driver's seat on this. You're the prosecutor. Will there be some sort of plea agreement? What would you like to see happen in this case?
SMITH: Well, we just think that the actions in this case were so bad that not charging this young man was never an option and, as a matter of fact, Greta, every time I'm on a show about this my phone rings off the hook with questions, not about why are we charging him but why not charge her as well?
VAN SUSTEREN: What's the answer to that? That's a good question. I mean if she sort of consented to be assaulted why isn't she charged?
SMITH: Well that's really the interesting point here is I guess the short answer is because we can't. The law in this state, the only law that we're able to proceed under specifically states that its provisions do not apply to acts that are committed by the pregnant individual.
VAN SUSTEREN: Can you assault a fetus or are you assaulting the girl, the young woman, whatever?
SMITH: Yes, essentially it's assaulting a pregnant woman causing the death of a fetus or embryo. And, in this case, because the unborn child was not viable it's still an embryo, so that's the only case, this is the only statute we can proceed under. So, I guess the bottom line is the statute is created in such a way and we can only enforce it as we can.
VAN SUSTEREN: All right, Macomb County prosecutor Eric Smith thanks for joining us, Eric.
SMITH: My pleasure.
VAN SUSTEREN: Now let's get the other side from Miranda Massie who represents the boy. Miranda joins us from Detroit. Miranda, if the young girl or young woman if she consented to be assaulted, is that assault?
MIRANDA MASSIE, CLIENT CHARGED IN "BAT ABORTION": It's not an assault. Consent and assault are mutually exclusive in Michigan, as in most states. Here's the real question here though, Greta. What this case represents is a harbinger of things to come.
These kids were totally desperate. They tried a number of desperate methods to create a miscarriage. They got incorrect advice from official hotlines about the law and about the medical consequences of a safe legal abortion.
These kids didn't have access to smart, compassionate sex ed. There are parental notification laws in Michigan. They didn't feel they could go to their parents. They completely panicked. There are gag orders on clinics in Michigan and there's no funding for abortions in Michigan.
What this all adds up to is the right wing is attacking abortion rights, rolling back the clock and trying to take us back to the barbaric days of back alley abortions and kitchen table abortions before 1973 in Roe v. Wade.
That's what my mom said when she heard about this case. It reminds here of situations her friends faced a generation ago. They're trying to roll back the clock and we've got to stop them or next year it will be grown women, not just kids.
VAN SUSTEREN: As a separate from that sort of the whole abortion debate in this country which you just laid out but I'm curious about whether you can legally assault someone who agrees to it. I mean the assault isn't against the fetus. The fetus can't agree one way or another but she can agree or not agree. Can you legally assault someone who says assault me?
MASSIE: Absolutely not. There are two things they have to show here and they can't show either one. They have to show that the young woman was assaulted. Because she consented, as they concede, there is no assault. It's black letter law in Michigan. It's perfectly clear. It's unambiguous. No assault when you have consent.
VAN SUSTEREN: All right you got 20 seconds for the other. You got 20 and then I got to go.
MASSIE: OK. The last thing I want to say is that this is a gentle, loving boy. The only thing that would ever drive two people to engage in such a desperate attempt and they didn't succeed in causing a miscarriage, is total and absolute panic and terror. We need smart and compassionate policies.
VAN SUSTEREN: All right. With that, I've got to go. Miranda, thank you as well as thank you to Eric Smith who joined us a moment ago. Thank you both.
Log onto gretawire.com tomorrow and take part in our poll on this horrific story. Does the charge fit the crime?
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