Provides that either a person or an unborn child in any stage of gestation may be the victim of an assault or homicide; also states situations when it does not constitute an assault on an unborn child such as during the course of an otherwise lawful abortion, during normal medical treatment or by the pregnant woman; defines "person" to include any human being who is born and is alive or an unborn child at any stage of gestation.
TITLE OF BILL: An act to amend the penal law, in relation to the unborn victims of violence act
PURPOSE: To provide the tools necessary to bring justice to those who commit acts of violence against mothers and their unborn children.
SUMMARY: Section 1 outlines the legislative intent.
Section 2 gives this bill the short title: "unborn victims of violence act"
Section 3 adds a new section (120.75) to the Penal Law to make a new definition of "person" applicable to the sections addressing assault in the third degree, assault in the second degree, assault in the first degree, vehicular assault in the second degree, vehicular assault in the first degree, gang assault in the second degree, gang assault in the first degree, and aggravated assault upon a person less than eleven years old. The new definition adds an unborn child at any stage of gestation.
Section 3 also adds a new section (120.80) that, for purposes of Article 120 of the Penal Law, exempts from prosecution individuals performing consensual and justifiable abortions, individuals treating the mother or child medically, and mothers (other than mothers performing self abortions).
Section 4 redefines "homicide" in section 125.00 of the Penal Law to include conduct which causes death to an unborn child at any stage of gestation, to include murder in the first degree, murder in the second degree, vehicular manslaughter in the first degree, and vehicular manslaughter in the second degree.
Section 4 also states for purposes of Article 125.00 of the Penal Law, an exemption from prosecution for individuals performing consensual and justifiable abortions, individuals treating the mother or child medically, and mothers (other than mothers performing self abortions).
Section 5 amends the definition provided by section 125.05 of the Penal Law for "person," when referring to the victim of a homicide, an unborn child at any stage of gestation.
Section 6 This act shall take effect on the first of November next succeeding the date on which it shall have become law.
JUSTIFICATION: The Pregnancy Mortality Surveillance System at the Centers for Disease Control and Prevention found that the pregnancy-associated homicide ratio was 1.7 per 100,000 live births in the United States between 1991 and 1999. Twenty percent of the deaths of pregnant women are caused by homicide making it the leading cause of death among pregnant women outside medical complications.
When murderers knowingly attack pregnant women, they knowingly target more than the mother's life.
The Article of the New York Penal Law that deals with homicide, abortion, and related offenses currently defines "person" as a human being who has been born alive and "homicide" as causing the death of a person or unborn child with which a female has been pregnant for more than twenty-four weeks.
These two definitions have left it impossible for prosecutors and the courts to use the full extent of the law to punish those who viciously and knowingly take the life of an unborn child and/or its mother.
This bill empowers New York's prosecutors to seek justice for those who deliberately attack mothers and murder their unborn children by changing the definitions of "person" and "homicide" to include unborn children at any stage of gestation.
As is outlined in the bill's first section, the intent of this legislation is to close the loophole for killers of unborn children. It is not the intent of this legislation to stifle a woman's right to a consensual abortion or to medical treatment. As such, the bill specifically provides protections for mothers consenting to an abortion and to doctors who treat pregnant women.
If we are to claim that we have a justice system that is truly just, it's paramount that New York State joins the thirty-one states that are now providing protections and justice for pregnant women and their unborn children who are victims of violence.
By enacting this legislation we send a clear message to perpetrators of violence against pregnant women and unborn children that we are serious about protecting New York's mothers.
LEGISLATIVE HISTORY: S.4897 of 2010 - Referred to Codes S.4897 of 2009 - Referred to Codes S.3117 of 2008 - Referred to Codes S.3117 of 2007 - Referred to Codes S.2515A of 2006 - Referred to Codes S.2515 of 2005 - Referred to Codes S.403 of 2004 - Referred to Codes S.403 of 2003 - Passed Senate S.57B of 2002 - Passed Senate
FISCAL IMPLICATIONS: None to the state.
EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 4347 2011-2012 Regular Sessions IN SENATE March 30, 2011 ___________Introduced by Sens. RITCHIE, BALL, DIAZ, FARLEY, GOLDEN, JOHNSON, LANZA, LARKIN, LIBOUS, LITTLE, MAZIARZ, YOUNG, ZELDIN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to the unborn victims of violence act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative intent. The legislature hereby finds and declares that a significant loophole exists in state law, denying protection to pregnant women and certain children. Currently, an offen- der may not be held criminally responsible for the harm caused to a child unless that child has first been born alive. Therefore, an assai- lant who shoots a woman who is seven months pregnant, and kills both the woman and her child, may only be charged with the homicide of the mother since the infant is not considered a legal victim of the crime. New York state policy lags behind most states in this area of crime victims' protection. Thirty-one states now provide protection and justice for pregnant women and their unborn children who are victims of violence. The legislature further finds and declares that current statistics demonstrate that domestic abuse and violence against women increases during pregnancy. It is estimated that one in five women will be abused during pregnancy. A study in the Journal of the American Medical Asso- ciation found that in the state of Maryland, a pregnant woman is more likely to be a victim of a homicide than to die of any other cause. Thus, rather than pregnancy being a peaceful time of preparation and the growth of a healthy child, for many women it can be a time of violence, grief and loss. Compounding this tragedy is the loophole in current law, which denies effective protection and remedy to women and their children. When aEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04168-01-1 S. 4347 2
woman makes a conscious choice to keep her baby and has the choice viol- ently taken away from her by a violent perpetrator, justice demands that someone be punished for that crime. Indeed, mothers will bury their baby's body and mark the grave for their child for the rest of their lives, but New York law tells them their loved one never existed. The legislature does not intend this act to apply to any abortion to which a woman has consented, to any act of the mother herself or to any form of medical treatment. The legislature finds that the current legal right to abortion does not protect and does not confer on an assailant, a third-party unilateral right to destroy an unborn child. The legislature recognizes that a federal "unborn victims of violence" law was enacted in 2004, yet believes the law to be limited in applying only to unborn children injured or killed during the course of specified federal crimes of violence. It is the intent of the legislature that the affirmative right of a pregnant woman to carry her child to term be protected, and that perpe- trators of crimes against pregnant women and their unborn children be held accountable for their crimes. S 2. Short title. This act shall be known as and may be cited as the "unborn victims of violence act". S 3. The penal law is amended by adding two new sections 120.75 and 120.80 to read as follows: S 120.75 ASSAULT AND RELATED OFFENSES; DEFINITION. THE FOLLOWING DEFINITION IS APPLICABLE TO SECTIONS 120.00, 120.03, 120.04, 120.05, 120.06, 120.07, 120.10 AND 120.12 OF THIS ARTICLE: "PERSON," WHEN REFERRING TO THE VICTIM OF ANY ASSAULT, AGGRAVATED ASSAULT OR VEHICULAR ASSAULT, MEANS A HUMAN BEING WHO HAS BEEN BORN AND IS ALIVE, OR AN UNBORN CHILD AT ANY STAGE OF GESTATION. S 120.80 ASSAULT AND RELATED OFFENSES; DEFINED. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSECUTION: 1. OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT FOR WHICH THE CONSENT OF THE PREGNANT WOMAN HAS BEEN OBTAINED; 2. OF ANY PERSON FOR ANY MEDICAL TREATMENT OF THE PREGNANT WOMAN OR HER UNBORN CHILD; OR 3. OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS TITLE. S 4. Section 125.00 of the penal law is amended to read as follows: S 125.00 Homicide defined. 1. Homicide means conduct which causes the death of a person or an unborn child
[with which a female has been pregnant for more than twen- ty-four weeks]AT ANY STAGE OF GESTATION under circumstances constitut- ing murder IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, manslaught- er in the first degree, manslaughter in the second degree, VEHICULAR MANSLAUGHTER IN THE FIRST DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE OR criminally negligent homicide, abortion in the first degree or self-abortion in the first degree. 2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSE- CUTION: (A) OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT FOR WHICH THE CONSENT OF THE PREGNANT WOMAN OR A PERSON AUTHORIZED BY LAW TO ACT ON HER BEHALF, HAS BEEN OBTAINED OR FOR WHICH SUCH CONSENT IS IMPLIED BY LAW; (B) OF ANY PERSON FOR ANY MEDICAL TREATMENT OF A PREGNANT WOMAN OR HER UNBORN CHILD; OR (C) OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS ARTICLE.S. 4347 3
S 5. Subdivision 1 of section 125.05 of the penal law is amended to read as follows: 1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive OR AN UNBORN CHILD AT ANY STAGE OF GESTATION. S 6. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.