concurring in part and dissenting in part.
The majority holds a Colorado statute precludes charging a defendant with homicide for causing death of an unborn child — regardless of whether death occurs in the womb or after birth as a result of fetal injuries. I agree with this holding, which is compelled by the legislature’s definition of a “person” as “a human being who had been born and was alive at the time of the homicidal act.” § 18-3-101(2), C.R.S.2008 (emphases added).
The thornier issue is whether a legislature that plainly excluded the unborn from protection of homicide laws intended a different result under child abuse and other criminal statutes penalizing killing or injuring persons. I agree with the majority that the homicide statute’s restrictive definition of person does not literally apply to these other statutes. But, unlike the majority, I believe more general legislative intent can be gleaned from this definition. Because the legislature defined “persons” in the homicide statute expressly to exclude the unborn, and because all criminal laws must be strictly construed, we should not adopt a broader construction in interpreting related statutes.
There are three alternatives for whether criminal laws protect the unborn from fetal deaths or injuries: (1) the unborn are always protected; (2) the unborn are protected only if later born alive; and (3) the unborn are *145never protected. The prevailing legislative trend is to grant full protection to the unborn, perhaps depending on viability at the time of the criminal act. Federally, Congress responded to a notorious California murder of a pregnant woman by passing the Unborn Victims of Violence Act, 18 U.S.C. § 1841. And the large majority of states — at least forty by one recent count — have enacted laws protecting the unborn from a third party’s criminal acts. See Marka B. Fleming, Feticide Laws: Contemporary Legal Applications and Constitutional Inquiries, 29 Pace L.Rev. 43, 51-52 & n. 44 (2008) (citing state statutes).
The majority adopts the second, “born alive” alternative. This doctrine, like most common law, traces back to pre-Revolution-ary England. There, while killing within the womb was not homicide, leading English authorities “disagree[d] as to whether a child born alive but who die[d] as a result of an injury sustained in útero [could be] a homicide victim.” Williams v. State, 77 Md.App. 411, 550 A.2d 722, 723-26 (1988), af'd, 316 Md. 677, 561 A.2d 216 (1989).
This “born alive” doctrine was widely adopted by American courts lacking specific legislative definition of a “person.” See, e.g., Keeler v. Superior Couri, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, 620-24 (1970). The Model Penal Code codifies it by defining a “human being” as “a person who has been born and is alive.” MPC § 210.0(1) (1980). Notably, Colorado’s homicide code is much more restrictive by adding that the person must have been born and alive “at the time of the homicidal act,” § 18-3-101(2).
Even courts adhering to a born alive rule call it “an outdated anachronism often producing anomalous results.” State v. Lamy, 969 A.2d 451, 460 (N.H.2009) (collecting cases). And most such courts, for policy reasons divorced from statutory text, do not apply the rule to children killed or injured by prenatal criminal acts committed by mothers rather than third parties. Kilmon v. State, 394 Md. 168, 905 A.2d 306, 314 n. 3 (2006) (collecting cases). After noting these doctrinal inconsistencies, one state court of last resort has rejected the doctrine entirely and held that all criminal charges require the victim to have been born and alive at the time of the defendant’s conduct. State v. Aiwohi, 109 Hawai'i 115, 123 P.3d 1210, 1214-25 (2005).
I would not hesitate to extend the full protections of Colorado criminal laws to unborn victims if our legislature, like Congress and most other states, so provided. See Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207 (2006) (rejecting challenges to such a statute). Even absent legislative guidance, and despite the doctrinal problems, I could join the majority in adopting a born alive doctrine. As the majority ably explains, Colorado’s non-homicide statutes could be read to criminalize or raise criminal penalties for fetal injuries as long as a child is later born alive.
The Colorado legislature, however, not only has not expressly extended criminal law protections to the unborn but also has excluded unborn victims from homicide laws— even where they are later born alive before dying. Such a restrictive definition of protected persons is far narrower than the common law doctrine, not to mention the expanded protections in more recent state and federal legislation. We are not empowered to fill legislative gaps in criminal laws. In Colorado, as the majority recognizes, “[c]om-mon-law crimes are abolished and no conduct shall constitute an offense unless it is described as an offense” by the legislature. § 18-1-104(3), C.R.S.2008.
There is no indication the legislature intended for crimes other than homicide to cover unborn victims expressly excluded from homicide laws. Nor is there any apparent reason the legislature would have intended such an odd dichotomy. I therefore would apply the interpretive doctrine of in pari materia (literally, “in the same matter”) under which statutes “deal[ing] with the same subject should be construed harmoniously, to avoid absurdities.” Martinez v. People, 69 P.3d 1029, 1033 (Colo.2003).
The definition of “person” in Colorado homicide statutes, as applied (or not) to the unborn, deals with the “same subject” as the undefined references to persons in other statutes criminalizing wrongful acts resulting *146in death. The homicide statutes expressly defining “person” therefore should be read in pari materia with those other criminal statutes. Cf. People v. Low, 732 P.2d 622, 629 n. 10 (Colo.1987) (insanity and impaired mental condition defenses, though passed at different times and in different statutes, “concern the same subject matter” and “must be construed in pari materia to carry out the intent of the General Assembly” because “both statutes embody principles of criminal responsibility”).
The need to restrict criminal liability to areas not expressly covered by legislation is buttressed by the doctrine that “[cjriminal statutes are strictly construed in favor of an accused.” Frazier v. People, 90 P.3d 807, 814 (Colo.2004). This rule of lenity serves only to resolve, not create, statutory ambiguity. People v. Swain, 959 P.2d 426, 431 (Colo.1998). Read in the entirety of the Criminal Code, however, Colorado statutes outside the homicide context are ambiguous regarding coverage of the unborn.
This is an area that cries out for new legislation. Our General Assembly, unlike Congress and most state legislatures, has precluded homicide prosecutions for killing the unborn without specifically addressing if and how other criminal laws might apply. I would take the one rule that is clear from Colorado criminal law — that the unborn can never be homicide victims — and apply it to similar criminal laws that are anything but clear. Accordingly, given the current state of Colorado laws, I would affirm the district court order dismissing counts based on the death of or injuries to a child who was unborn at the time of the criminal acts.