Massachusetts has no fetal homicide statute. It never passed one. Yet a Holyoke man has just been sentenced to 18 to 20 years in state prison for involuntary manslaughter in the death of a child who was never born. The victim was eight months along in his mother’s womb when a stray round from a gunfight on Sargeant Street passed through the side of a PVTA bus and struck her. She survived. He did not, and his family named him Ezekiel.
People ask whether killing an unborn child is a crime in Massachusetts, and the answer is that it depends on one word and one fact. The word is “person,” which the Supreme Judicial Court decided four decades ago includes a viable fetus. The fact is viability. This piece explains the Holyoke case, the two decisions that make the charge possible, where the line is drawn, and why the man who was convicted was the only one of three shooters whose case has been tried.
What happened on Sargeant Street
According to the Hampden District Attorney’s office, on October 4, 2023, Johnluis Sanchez, then 30, and Alejandro Ramos, 25, both of Holyoke, waited outside a market on Sargeant Street for Kermith Alvarez-Vargas, 31, also of Holyoke. When Alvarez-Vargas came out, Sanchez attacked him with a firearm. Alvarez-Vargas was armed too and fired back, and the three men exchanged gunfire on the street.
A PVTA bus was passing. One round went through it and hit Saszkiana “Selena” Santana, 32, of Holyoke, a passenger who was about eight months pregnant. The gunshot killed her unborn son.
A Hampden County jury convicted Sanchez of involuntary manslaughter, illegal carrying of a firearm, and illegal carrying of a loaded firearm. The sentence: 18 to 20 years on the manslaughter, four to five years concurrent on the firearm count, and two and a half years in the house of correction on the loaded-firearm count, to run after the firearm sentence. At sentencing Santana told the court: “I pray Ezekiel’s name becomes a reason to choose life, to put the gun down, to walk away, and think about the people who will suffer long after the moment has passed.”
District Attorney Anthony Gulluni said the case “presented many challenges that our team, led by ADA Matthew Green, surmounted.” Sanchez was the first of the three to stand trial. Alvarez-Vargas is scheduled for trial on November 4, 2026. The status of the case against Ramos was not stated in the announcement. Both are presumed innocent.
Why the charge exists without a statute
Roughly three dozen states have statutes making the killing of a fetus a separate crime. Congress passed one for federal offenses in 2004, 18 U.S.C. § 1841, which is how a federal grand jury charged Matthew Farwell with the death of Sandra Birchmore’s unborn child. Massachusetts is not among the states. Its homicide statute, G.L. c. 265, § 13, says only that “whoever commits manslaughter” shall be punished by up to twenty years in state prison, and leaves “manslaughter” to the common law.
The Supreme Judicial Court filled the gap in two steps.
The first was Commonwealth v. Cass, 392 Mass. 799 (1984). A driver struck a pedestrian who was eight and a half months pregnant; the fetus died in the womb. The question was whether a viable fetus is a “person” under the vehicular homicide statute. The court said yes: “An offspring of human parents cannot reasonably be considered to be other than a human being, and therefore a person, first within, and then in normal course outside, the womb.” It relied on its own 1975 decision in Mone v. Greyhound Lines, which had held a viable fetus is a person under the wrongful death statute, finding “neither reason nor logic in choosing live birth over viability.” Because the ruling was new, the court applied it only prospectively; Cass himself was not convicted.
The second was Commonwealth v. Lawrence, 404 Mass. 378 (1989). Frank Lawrence murdered a sixteen-year-old girl in Stoughton who was carrying a 27-week-old fetus. A jury convicted him of first-degree murder of the girl and involuntary manslaughter of the fetus. On appeal he argued a fetus is not a human being for purposes of common-law homicide. The court rejected the argument and affirmed both convictions. His lawyer on that appeal was Kevin Reddington, who thirty-seven years later would defend Lindsay Clancy.
Together the two cases establish that in Massachusetts a viable fetus is a person who can be the victim of murder or manslaughter, and that the “born alive” rule of the old common law, which required a child to draw breath before its death could be a homicide, is gone.
Where the line is
Viability. The cases turn on whether the fetus could have survived outside the womb, which medicine generally places at around 24 weeks. A fetus at 27 weeks (Lawrence) or eight months (Cass, Sanchez) is well past it. Causing the death of a pre-viable fetus is not homicide in Massachusetts, though it can be charged in other ways, including as an assault on the mother.
The prosecution has to prove viability and causation as elements, usually through the medical examiner and the treating physicians. That is part of what the district attorney meant by “many challenges.” A bullet that passes through a bus and a woman before reaching a fetus produces a causation record that a defense lawyer will test line by line.
Why manslaughter and not murder
Because nobody was aiming at the bus. Involuntary manslaughter in Massachusetts is an unintentional killing caused by wanton or reckless conduct, the standard the SJC set in Commonwealth v. Welansky, 316 Mass. 383 (1944), the Cocoanut Grove fire case. Exchanging gunfire on a city street as a bus goes by is the textbook example. The Commonwealth did not have to prove Sanchez meant to kill anyone, only that he chose conduct that carried a high risk of death and disregarded it.
The 18-to-20-year sentence is at the top of the statutory range for manslaughter. It reflects the evidence that Sanchez started the confrontation, the firearm convictions, and a victim impact statement that the district attorney quoted in full.
What comes next
Alvarez-Vargas’s trial on November 4 will raise a question Sanchez’s did not. He was the man attacked. If he fired back in self-defense, the question for the jury will be whether returning fire on a public street where a bus was passing was itself wanton or reckless conduct, regardless of who started it. Massachusetts law on self-defense requires a reasonable belief in the need to use force and no reasonable means of retreat, and it does not license recklessness toward bystanders. How the Hampden DA charges and argues that case will say more about the reach of the fetal-homicide doctrine than the Sanchez verdict did.
Is killing an unborn child a crime in Massachusetts?
Yes, if the fetus was viable. Massachusetts has no fetal homicide statute, but the Supreme Judicial Court held in Cass (1984) and Lawrence (1989) that a viable fetus is a person for purposes of homicide law.
What does viable mean?
Able to survive outside the womb, generally placed at about 24 weeks. The Holyoke victim was about eight months along.
Can you be charged with murder of a fetus in Massachusetts?
Yes, in principle. Frank Lawrence was indicted for murder of a fetus in 1986 and the SJC upheld the theory, though the jury convicted him of involuntary manslaughter on that count.
What sentence did the Holyoke shooter get?
18 to 20 years in state prison for involuntary manslaughter, plus concurrent and consecutive sentences on two firearm counts. Twenty years is the statutory maximum for manslaughter.
What about the other shooters?
Kermith Alvarez-Vargas is scheduled for trial on November 4, 2026. The status of Alejandro Ramos’s case was not stated in the DA’s announcement. Both are presumed innocent.
Case facts, sentences and quotations from the Hampden District Attorney’s announcement as published by the Fall River Reporter and New Bedford Guide, September 20 and 21, 2026; the office’s own web page could not be retrieved. Commonwealth v. Cass, Commonwealth v. Lawrence, Mone v. Greyhound Lines and Commonwealth v. Welansky read on CourtListener. G.L. c. 265, § 13 read at malegislature.gov; 18 U.S.C. § 1841 at the Legal Information Institute. The count of states with fetal homicide statutes is approximate. The co-defendants are presumed innocent. General information about Massachusetts law, not legal advice.