[Senate Hearing 106-1067]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1067
PROTECTING OUR SILENT VICTIMS: THE UNBORN VICTIMS OF VIOLENCE ACT
=======================================================================
HEARING
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
S. 1673
__________
FEBRUARY 23, 2000
__________
Serial No. J-106-65
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 8
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 2
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
Smith, Hon. Bob, a U.S. Senator from the State of New Hampshire,
prepared statement............................................. 67
WITNESSES
Acheson, Eleanor D., Assistant Attorney General, Office of Policy
Development, U.S. Department of Justice, prepared statement.... 10
Bradley, Gerard V., Professor of Law, University of Notre Dame,
South Bend, IN................................................. 38
Croston, William, Charlotte, NC.................................. 29
Daly, Joseph P., Middletown, OH.................................. 31
Davidson, Michael, J., Lieutenant Colonel, U.S. Army Judge
Advocate, Fort McPherson, GA................................... 47
Fulcher, Juley, Public Policy Director, National Coalition
Against Domestic Violence, Washington, DC...................... 52
Graham, Hon. Lindsey O., a Representative in Congress from the
State of South Carolina........................................ 20
Pace, Shiwona, Little Rock, AR................................... 26
Weich, Ronald, Zuckerman, Spaeder, Goldstein, Taylor, and Kolker,
LLP, Washington, DC............................................ 42
APPENDIX
Proposed Legislation
Bill S. 1673..................................................... 59
Additional Submissions for the Record
Dempsey, Hon. Terry, Judge of the Fifth District of Minnesota,
prepared statement............................................. 67
Rubin, Peter J., Visiting Associate Professor of Law, Georgetown
University Law Center, prepared statement...................... 68
PROTECTING OUR SILENT VICTIMS: THE UNBORN VICTIMS OF VIOLENCE ACT
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WEDNESDAY, FEBRUARY 23, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators DeWine, Leahy, and Feinstein.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. Well, if we can begin, we are happy to
welcome you all here to the Judiciary Committee this morning to
consider the Unborn Victims of Violence Act, S. 1673. I welcome
you all here this morning to this very important hearing on
this very important legislation, the Unborn Victims of Violence
Act.
I want to begin by thanking my colleague, Senator DeWine,
for his leadership on this issue, and I appreciate that Senator
DeWine has a particular interest in this legislation because of
his own State of Ohio's history on this matter. But this is
clearly an issue that is or ought to be compelling to all of
us.
In my own home State of Utah, if a criminal assaults or
kills a woman who is pregnant and thereby causes death or
injury to the unborn child, the criminal faces the possibility
of being prosecuted for having taken or injured that unborn
life. Twenty-three additional States have similar laws on the
books. Eleven of these States recognize the unborn child as a
victim throughout the period of their prenatal development.
This is only proper. It seems to me this is only just.
But under existing Federal criminal statutes, if a criminal
assaults or kills a woman who is pregnant and thereby causes
death or injury to that unborn child, the criminal faces no
consequences in our Federal criminal justice system for taking
or injuring that unborn life. This is wrong and it is not
justified.
The bill we hear testimony on today simply seeks to address
this disparity in the law by making it a separate Federal
offense to kill or injure an unborn child during the commission
of certain already defined Federal crimes committed against the
unborn child's mother.
I cannot imagine why anyone would oppose this bill. The
only reason for opposition that I can suppose is that some in
the pro-choice movement believe that our bill draws attention
to the effort to dehumanize, desensitize, and depersonalize the
unborn child. Given the political and legal arguments of
abortion supporters, it may be difficult for them to concede an
unborn child is human and therefore a victim of a crime.
Nevertheless, it is not our intention to turn this into a
battle about abortion. In no way does this bill interfere with
the ability of a woman to have an abortion under current law.
It does not permit the prosecution for any abortion to which a
woman consents. It does not permit the prosecution of the woman
for any action, legal or illegal, in regard to her unborn
child. In my view, we should all be able to support this modest
effort to protect mothers and their unborn children.
I want to welcome our impressive group of witnesses to the
hearing this morning. In particular, I would like thank all of
those witnesses on our second panel. Their personal experiences
will do much, I think, to inform our debate on this
legislation.
Finally, before turning to our ranking member and then to
Senator DeWine, I feel it necessary just to comment briefly on
one aspect of the debate on this legislation. As I understand
it, at least during the House's consideration of this
legislation, one of the arguments of opponents was that this
bill would somehow weaken our efforts against domestic violence
by diverting the attention of the legal system away from
domestic violence or other violence against women and directing
the focus onto the unborn.
With all due respect, I find this argument truly
disingenuous. For more than 10 years now, I have worked on the
issue of domestic violence and violence against women, and led
the fight, along with Senator Biden, to enact landmark
legislation on this issue. I have fought year after year for
funding of programs to help women who are the victims of
violence and even publicly called attention to the fact that,
notwithstanding their rhetoric, this administration was not
doing enough to prosecute crimes under the Violence Against
Women Act. I do not accept the ridiculous argument that mothers
are going to be hurt or less protected by the strengthening of
laws to protect their unborn children.
Now, having said that, Senator Feinstein is here, so we
will turn to Senator Feinstein to make a statement on behalf of
the minority.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and
welcome back. I am delighted to have you back and look forward
to working with you in the future.
The Chairman. Thank you.
Senator Feinstein. Mr. Chairman, I was delighted by what
you said that this bill really has nothing to do with the right
of a woman to control her own reproductive system, but really
has to do with someone who assaults and/or murders a woman and
then also assaults and possibly kills her unborn child. It
might be useful for me to discuss a bit how California has
dealt with this issue and what might have been learned from
that experience.
In 1969, a man named Robert Keeler savagely and cowardly
attacked his divorced wife, Teresa, in Amador County. That is
about 100 miles from my home in San Francisco. Teresa Keeler
was 7 months pregnant. Vowing to kill her unborn child, Robert
Keeler stomped repeatedly on Teresa's stomach, fracturing the
head of the unborn child.
The California Supreme Court then ruled that Robert
Keeler's killing of Teresa's unborn child was not murder
because under State law murder was the unlawful killing of a
human being and a fetus was not a human being. Soon after,
rightly outraged at Keeler's escape from justice, the
California Legislature amended the California murder statute to
permit murder prosecutions for killing a fetus. That was 3
years before Roe v. Wade. It was also similar to what the
proposed bill does. It gives the fetus an independent status.
Both California law and the proposed bill, as I understand it,
permit a prosecutor to bring two counts against a defendant who
attacks a woman, killing her unborn child, one for assault and
one for murder.
Twenty-two years after Keeler attacked his ex-wife, a San
Diego resident named Maria Flores was cashing a check when a
stranger, Robert Davis, approached her, pulled a gun and
demanded money. Clutching her 20-month-old son, Flores refused
to hand over her money. Davis shot her in the chest.
While Flores survived the shooting, her almost 6-month-old
unborn child did not. He was stillborn. Under California's
murder statute, Davis was sentenced to life without possibility
of parole for murder of this unborn child. On appeal, however,
Davis raised the question of whether he could be convicted of
murdering a non-viable fetus. The California Supreme Court said
yes, specifically that the State murder statute, including
capital murder, protected any fetus progressing beyond the
embryonic stage of 7 to 8 weeks. This interpretation is again
similar to the proposed bill, except that the proposed bill
covers all prenatal stages rather than just the last 28 or 29
weeks. And the proposed bill explicitly prohibits the death
penalty for feticide, while California law does not.
The Davis decision was front-page news in California
because it was seen as deciding the moral issue of when life
begins. Anti-abortion activists, for example, applauded the
Davis decision, right or wrongly, as holding that embryos were
persons, thus contradicting Roe v. Wade.
One anti-abortion activist was quoted in the Los Angeles
Times as saying of the opinion, ``This is a victory of sorts
because it is giving the identity of humanity to an unborn
child.'' Another activist noted that the decision, ``points out
the absurdity of the position that mommy can kill the fetus,
but nobody else can.''
I don't wish to quarrel with the California Supreme Court's
decision in the Davis case. It was based on the court's
understanding of the intent of the California Legislature in
1970, 3 years before Roe v. Wade. Rather, I wish to suggest
that we in Congress can learn from the controversy surrounding
that decision. The lesson of Davis is clear: protect pregnant
women from criminals without injecting abortion politics into
the criminal code. And I think that is extraordinarily
important in this decision today.
It is unclear to me, frankly, how much this proposed bill
really does inject abortion politics into the criminal law. In
my view, at least at this time--and I hope to hear the
testimony; after all, a hearing is for the purpose of giving us
the opportunity to learn by hearing various witnesses. But I
would like to ask some of these witnesses whether an
alternative that would accomplish the same end as the Unborn
Victims of Violence Act but might be able to do so in a way
that would not erode the foundations of a woman's
constitutional right to choose might not be a better way of
going.
The alternative I would propose is simple, and that is to
enhance the sentence of any defendant who interrupts or
terminates a woman's pregnancy in the course of another Federal
crime. This alternative would keep those criminals who kill
pregnant women in jail for a long, long time. It also keeps the
focus on the woman, but it also makes the point that whether
one chooses to call an unborn child a fetus or whether you
choose to call it an unborn child, you also create an enhanced
penalty for that child as well.
In looking at this alternative, I am somewhat influenced by
how this issue has been treated by my own State of California.
Now, California was one of the first States to depart from the
old common law rule this country inherited from England that a
child had to be born alive for homicide laws to apply. So I
would be very interested in hearing the testimony.
Let me just point out one thing. A bill that I authored in
1994 which we base this on was the Hate Crimes Enhancement Act,
and this was passed into law. Senator Kennedy has legislation
to toughen that even more. But my legislation essentially
provided that if an individual committed a felony--and this, of
course, was either in pursuance of a federally protected right
or on federally protected land--and that person committed the
felony as a product of hate based on one's race, creed, or
color, then there was a bifurcated trial. And if you could
prove the felony, then you could also prove the hate and the
sentence was doubled. So this, in a sense, provides the
precedent for my thinking that the way to go is to provide an
enhanced sentence based on that earlier legislation.
I thank the Chair.
The Chairman. Well, thank you, Senator.
If we could first go to Senator Leahy, who may have an
opening statement, then we will turn to the author of the bill,
Senator DeWine.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. I do, Mr. Chairman, and I apologize for
being late. I had a doctor's appointment which went longer than
I thought, but I am always glad to be here with both of you.
I am so glad to see Ms. Acheson here. I know that this has
been a time of some stress for her and her family, and I am
glad that you could take this time. It means a lot to the
committee.
Acts of violence are abhorrent, but they are especially
disturbing when they are committed against pregnant women. When
a violent crime causes injury to a pregnant woman that results
in a miscarriage or other damage to the fetus, we all have the
same desire to ensure that our criminal justice system responds
decisively and firmly to exact appropriate punishment.
This is not an issue on which we will find any disagreement
among Members of Congress, no matter their party affiliation or
whether they are pro-choice or anti-abortion. Protecting
pregnant women and our families from violence is a serious and
compelling problem that deserves to be elevated above political
agendas or partisan politics.
Today, we are going to hear about a bill that proposes a
new Federal crime to punish conduct that violates a list of
over 60 existing Federal crimes that are already on the books
and causes the death of or bodily injury to a child who is in
utero. The terms ``a child who is in utero'' and ``unborn
child'' are defined in this proposal to be ``a member of the
species Homo sapiens at any stage of development.''
Now, through this proposal, we will be forced to revisit
the divisive political debate about when human life begins and
what is meant by these definitions, whether ``any stage of
development'' is intended to cover an unfertilized human egg,
or zygote, and how far away from viability the proposal is
designed to move the Federal definition of a ``person.''
Generally, our Federal and State criminal laws only
penalize conduct that affects a person already born alive. That
does not mean we cannot or should not go further. If a violent
crime against a pregnant woman causes her to miscarry or
otherwise injures the fetus, I would support additional
punishment.
Indeed, as Professor Peter Rubin states in his written
testimony for this hearing, this is one area in which both
sides of the debate about abortion might be able to find a
common ground in supporting a properly worded statute that
might give additional protection to women and families from
this unique class of injury. While no other Federal criminal
statute identifies the fetus as a distinct victim of crime,
this does not mean a fetus is left unprotected under our
criminal laws.
The Justice Department pointed out the obvious in a letter
dated September 9, 1999, to Chairman Hyde of the other body
that, ``Because the criminal conduct that would be addressed is
already the subject of Federal law, since any assault on the
unborn child cannot occur without an assault of the pregnant
woman, the bill would not provide for the prosecution of any
additional criminals.''
As Ronald Weich, a former prosecutor and special counsel to
the Sentencing Commission, notes in his testimony, defendants
whose violent attacks against pregnant women resulted in harm
to a fetus have been prosecuted, and thus it is very clear that
criminal liability may be imposed under current Federal law.
The Federal Sentencing Guidelines already provide a
sentencing enhancement of two levels--in other words, an
increased sentence--where the defendant knew or should have
known that the victim was a vulnerable victim, which is defined
as somebody who is unusually vulnerable due to age or physical
or mental condition. That provision has been used to cover
violent crimes against pregnant women. Mr. Weich describes
several cases in which a pregnant woman was treated as a
vulnerable victim, resulting in enhancements--that is, greater
sentences--in the applicable Guidelines sentencing ranges for
the defendants.
Now, there are a number of other ways we should consider to
protect pregnant women and their families that would enjoy
strong bipartisan support. It seems to me--and I don't think
necessarily this was the intent of the legislation, but the
bill has not been crafted to find that common ground. Nor do I
believe it is designed to provide effective means to prosecute
or prevent violence against pregnant women.
First, the bill unnecessarily injects the abortion debate
into our national struggle against violence toward women. The
Supreme Court in Roe v. Wade held that the word ``person'' as
used in the 14th Amendment does not include the unborn.
Second, the National Coalition Against Domestic Violence
has warned that a consequence of the bill is that battered
women who are financially or emotionally reliant on the
batterer may be less likely to seek appropriate medical
attention if doing so could result in the prosecution of the
batterer for an offense as serious as murder. We ought to
listen to these people who have this experience.
Finally, the bill ignores the problems of domestic
violence, sexual assault, and other forms of violence against
women, and, in fact, does not even mention violence against
women. It ignores the fact that an attack that harms a
pregnancy is inherently an attack against a woman.
Five years ago, we made great strides in the fight against
domestic violence by passing the bipartisan Violence Against
Women Act. Senators Biden and Hatch, in particular, both
contributed considerable effort in achieving this. The
Department of Justice has brought close to 200 Violence Against
Women Act and Violence Against Women Act-related indictments.
They have awarded over $700 million in grants to communities to
help combat violence against women. In fact, Vermont was the
first State in the country to apply for and receive funding
under it.
I will put my whole statement in the record, but what I
wish we would do is look at the fact that the Violence Against
Women Act needs reauthorization. If we really want to affect
violence against women, let's reauthorize that Act and keep
these programs working.
I will put my whole statement in the record, Mr. Chairman.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Leahy
Acts of violence against women are abhorrent but they are
especially disturbing when committed against pregnant women. When a
violent crime causes injury to a pregnant woman that results in a
miscarriage or other damage to the fetus, we all share the desire to
ensure that our criminal justice system responds decisively and firmly
to exact appropriate punishment. This is not an issue on which you will
find any disagreement among Members of Congress, no matter their party
affiliation or whether they are pro-choice or anti-abortion. Protecting
pregnant women and our families from violence is a serious and
compelling problem that deserves to be elevated above political agendas
and partisan politics.
Today we will hear about a bill that proposes a new federal crime
to punish conduct that violates a list of over 60 existing federal
crimes and ``causes the death of, or bodily injury to a child, who is
in utero.'' The terms ``a child, who is in utero'' and ``unborn child''
are defined in this proposal to be ``a member of the species homo
sapiens, at any stage of development.'' Through this proposal we will
be forced to revisit the divisive political debate about when human
life begins and what is meant by these definitions--whether ``any stage
of development'' is intended to cover an unfertilized human egg or a
zygote and how far away from viability the proposal is designed to move
the federal definition of person.
Generally, our federal and state criminal laws only penalize
conduct that affects a person already born alive. That does not mean we
can not or should not go further. If a violent crime against a pregnant
woman causes her to miscarry or otherwise injures the fetus, I would
support additional punishment. Indeed, as Professor Peter Rubin states
in his written testimony for this hearing, ``this is one area on which
both sides of the debate about abortion might be able to find common
ground in supporting a properly worded statute that might give
additional protection to women and their families from this unique
class of injury.''
While no other federal criminal statute identifies a fetus as a
distinct victim of crime, this does not mean a fetus is left
unprotected under our criminal laws. The Justice Department has pointed
out the obvious, in a letter dated September 9, 1999, to Chairman Hyde,
that ``[b]ecause the criminal conduct that would be addressed . . . is
already the subject of federal law (since any assault of an `unborn
child' cannot occur without an assault on the pregnant woman), [the
bill] would not provide for the prosecution of any additional
criminals.'' As Ronald Weich, a former prosecutor and Special Counsel
to the Sentencing Commission, notes in his testimony, defendants whose
violent attacks against pregnant women resulted in harm to a fetus have
been prosecuted, and thus ``it is very clear that criminal liability
may be imposed under current federal law.''
Moreover, the federal Sentencing Guidelines already provide a
sentencing enhancement of two levels where the defendant knew or should
have known that the victim was a ``vulnerable victim,'' which is
defined as someone who is unusually vulnerable due to age, physical or
mental condition. Guidelines Manual, Sec. 3A1.1(b)(1). This provision
has been used to cover violent crimes against pregnant women. Mr. Weich
describes several cases in which a pregnant woman was treated as a
vulnerable victim, resulting in enhancements and upward departures in
the applicable guideline sentencing ranges for the defendants.
Nevertheless, if there is any question about application of these
enhancements in violent crimes against pregnant women, we should
clarify that matter promptly.
There are a number of other ways we could consider to protect
pregnant women and their families that would enjoy strong bipartisan
support. Respectfully, it seems to me that this bill has not been
crafted to find that common ground, nor designed to provide any
effective means to prosecute or prevent violence against pregnant
women.
First, this bill unnecessarily injects the abortion debate into our
national struggle against violence towards women. The Supreme Court in
Roe v. Wade held that ``the word `person,' as used in the Fourteenth
Amendment, does not include the unborn.'' This bill purposely employs
terms designed to undermine a woman's right to choose by recognizing
for the first time in federal law the legal rights of a person as
applied to the earliest stages of development of a fetus, an embryo or
an egg.
Second, the National Coalition Against Domestic Violence has warned
that a consequence of the bill is that battered women, who are
financially or emotionally reliant on the batterer, may be less likely
to seek appropriate medical attention of doing so could result in the
prosecution of the batterer for an offense as serious as murder. We
should pay attention to the experts about the consequences of
legislative proposals, such as this one, particularly when the experts
say this bill could have devastating effects for victims of domestic
violence.
Finally, the bill ignores the problems of domestic violence, sexual
assault and other forms of violence against women and, in fact, does
not even mention violence against women. In short, this bill ignores
the reality that an attack that harms a pregnancy is inherently an
attack on a woman.
Congress has responded aggressively in the past to address the
problem of violence against women. Five years ago, Congress made great
strides in the fight against domestic violence by passing the
bipartisan Violence Against Women Act as a part of the 1994 Violent
Crime Control and Law Enforcement Act. Senator Biden and Senator Hatch,
in particular, both contributed considerable effort and leadership in
achieving the passage of VAWA, which marked a turning point in our
nation's effort to address domestic violence and sexual assault.
This landmark legislation created federal domestic violence
offenses with severe penalties to hold offenders accountable for their
destructive and criminal acts of violence. The Department of Justice
has brought close to 200 VAWA and VAWA-related indictments and awarded
over $700 million in VAWA grants to communities working hard to combat
violence against women and help deal with the pain and suffering that
exists when it occurs.
I am proud to say that Vermont was the first State in the country
to apply for and receive funding under VAWA, and I have seen the way in
which groups such as the Vermont Network Against Domestic Violence and
Sexual Assault have worked effectively to stem the violence against
women and children and help those who have suffered from it.
We need to discuss the reauthorization and improvement of grant
programs under the Violence Against Women Act. These programs are due
to expire at the end of this fiscal year. The expiring grant programs
that would be reauthorized and improved by VAWA II include the National
Domestic Abuse Hotline, the Civil Legal Assistance Grant Program, STOP
Grants, Grants to Encourage Arrest Policies, Rural Domestic Violence
and Child Abuse Enforcement Grants, National Stalker and Domestic
Violence Reduction grants, the Family Violence Prevention and Services
Grants, Grants for televised testimony for Victims of Child Abuse,
Child Abuse Training Programs for Judicial Personnel and Practitioners,
and the Court-appointed Special Advocate program for victims of Child
Abuse.
Reauthorizing VAWA, which is under attack, is not the subject of
the Committee's hearing today. For those of us who want to prevent
violence against women, including pregnant women and their families,
the failure of this Committee and the majority to consider
reauthorization of that important law and instead to focus on a measure
designed to be divisive is doubly unfortunate.
We know that violence against women pervades all areas of our
country. It makes no difference if you are from a big city or a rural
town; domestic violence and other violence against women can be found
anywhere. This is a serious issue. We owe this country a serious
response, not debate on ideological proposals that ignore effective
programs designed to help women crime victims and that potentially
undermine their constitutional rights.
The Chairman. Well, thank you, Senator Leahy. The Biden-
Hatch Violence Against Women Act will be brought up, and we are
going to do everything we can to pass it this year and
reauthorize it again this year.
Let's turn to the author of the legislation, Senator
DeWine.
STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, thank you very much. Let me
thank you for holding this very important hearing this morning
on the Unborn Victims of Violence Act.
I would like to thank our witnesses, Shiwona Pace, from
Arkansas; William Croston, from North Carolina; and Joseph
Daly, from my home State of Ohio. I want to thank them for
appearing here today and for providing their very personal
testimony on this very sad and important topic.
Tragically, Mr. Chairman, unborn babies, perhaps more than
we realize, are, in fact, the targets of violent acts. Right
now, Federal law currently only criminalizes crimes against
born humans. There are no separate Federal provisions in the
law to protect silent, unborn victims of violence.
Mr. Chairman, this is wrong. It is wrong that our Federal
Government does absolutely nothing to criminalize violent acts
against unborn children. It is wrong that our Federal
Government is letting people who willfully injure pregnant
women to get away with these violent acts, sometimes even
murder.
Today, our witnesses will give us horrible, graphic
examples of violence against innocent unborn children. In my
own home State of Ohio, an incident occurred in 1996 when
Airman Gregory Robbins, who was stationed at the time at
Wright-Patterson Air Force Base near Dayton, beat his 8-month-
pregnant wife in a fit of rage. Fortunately, Ms. Robbins
survived the violent assault. Tragically, however, her uterus
ruptured during the attack, causing the death of her baby, a
little baby whom she had named Jasmine.
Mr. Chairman, we must correct the Federal law to ensure
that criminals don't get away with violent acts without being
adequately punished. That is why we have introduced the Unborn
Victims of Violence Act. It would hold criminals liable for
causing harm or death to an unborn child during the commission
of certain violent, specified Federal crimes. In such cases,
the assailant could be charged with a second offense committed
against the unborn child. The single attack affecting both
victims would be treated as two separate crimes under the
Federal Code and also under the Uniform Code of Military
Justice.
Now, I know, Mr. Chairman, some people oppose this
legislation or have raised issues about this legislation based
on constitutional concerns. And I understand these, but I
believe they are unfounded. At least 24 States already have
criminalized harm to unborn victims. Another seven States
criminalize the unwanted termination of pregnancy. Eleven of
these States provide protection of the unborn child throughout
the period of in utero development.
Now, Mr. Chairman, despite this wide range of legislation,
no State supreme court has held that any of these statutes
violate our Constitution. In fact, the Supreme Court of
Minnesota specifically held that Roe v. Wade, ``does not grant
a unilateral third-party right to destroy a fetus.'' We will
today, Mr. Chairman, explore these constitutional issues, but I
am confident that our bill does not create any constitutional
problems.
Some have expressed the concern that this bill is an effort
to address the issue of abortion. Mr. Chairman, that is not the
case. In fact, we purposefully drafted this legislation very
narrowly to avoid this issue. For example, the bill does not
provide for prosecution for any abortion to which a woman
consented. It does not provide for the prosecution of a woman
for any action, legal or illegal, in regard to her unborn
child.
This legislation does not provide for prosecution for harm
caused to the mother or unborn child in the course of medical
treatment. Finally, the bill would not allow for the imposition
of the death penalty under this Act. Similar legislation in a
number of States has had little impact on abortion rights, and
neither will our bill.
Mr. Chairman, some people would like to side-step this
issue by maintaining the current system. Rather than
recognizing the unborn child as a victim, they would just as
soon enhance the penalty for harming the mother. But any of our
witnesses will tell you that their unborn children weren't just
part of the mother; they were a part of the whole family. And
they should be recognized by more than just Sentencing
Guidelines enhancements. They must be recognized, Mr. Chairman,
as what they truly are, victims of crime.
In closing, Mr. Chairman, let me say that I have been
fighting crime and fighting for children for more than a
quarter of a century, as have all of the members of this panel.
And I have learned a lot of lessons in that period of time. I
have learned that we must be ever-vigilant to protect our most
vulnerable victims in society, particularly those silent
victims who cannot speak for themselves. That is why I wrote
and am sponsoring the Unborn Victims of Violence Act to speak
on behalf of unborn children and on behalf of their families
who are, in fact, the true victims of violence.
Mr. Chairman, those who violently attack unborn babies are
criminals. We have an obligation as a society to these unborn
children and to their families to ensure that the Federal
penalty does, in fact, fit the crime.
I thank the Chair and I look forward to the testimony of
all the witnesses.
The Chairman. Well, thank you, Senator.
I am advised that Congressman Graham has been delayed and
will hopefully be arriving shortly after 11 a.m. So we are
going to proceed with our panels. Now, I have another
commitment and will therefore leave chairing the hearing in a
little while to Senator DeWine.
Before I leave, however, let me just say a special thanks
to the witnesses on panel three. I imagine it is not easy for
some or all of you to come here and share your tragic
experiences, but indeed you are performing a service and I want
to thank all of you for that. I plan on reading your testimony,
along with that of all the other witnesses. So I want to thank
Ms. Pace, Mr. Croston, and Mr. Daly.
Also, another one of today's witnesses, Ron Weich, is
familiar to all of us on the committee. He worked for Senator
Kennedy for several years. I want to congratulate you, Ron, and
your wife, Julie, on the birth of your first child, Sophie. So
we are happy to have you here as well.
We are also very pleased to have the Justice Department
represented by the Honorable Eleanor D. Acheson. We look
forward to taking your testimony, Ms. Acheson, and knowing what
the Justice Department's position is on this matter, and so we
will take your testimony at this time. And we will look forward
to having the Congressman from South Carolina brought up as
soon as he gets here.
STATEMENT OF ELEANOR D. ACHESON, ASSISTANT ATTORNEY GENERAL,
OFFICE OF POLICY DEVELOPMENT, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Ms. Acheson. Thank you, Mr. Chairman, and if it is
appropriate, when Congressman Graham arrives, I am happy to
suspend and have him proceed and then I can finish up. Whatever
suits the committee and his schedule.
I am pleased to be here this morning to present the
position of the Department of Justice on the proposed Unborn
Victims of Violence Act, S. 1673. S. 1673 would amend the
Criminal Code and the Uniform Code of Military Justice to make
it a separate Federal offense to cause death or bodily injury
to a child in utero in the course of committing any one of 68
enumerated Federal offenses. It would penalize harm to the
unborn at any stage of development, and would so on a strict
liability basis because the perpetrator does not have to know
or even suspect that the adult woman he harms is pregnant. The
punishment for this new offense is the same as if the
perpetrator had harmed the pregnant woman, except the death
penalty is not permitted.
Halting violence against all women, including pregnant
women, has been a top priority of this administration for the
past 7 years. In 1994, the administration, with the bipartisan
support of Congress and the support of the President, made the
Violence Against Women Act, VAWA, the law of the land.
VAWA for the first time created Federal domestic violence
offenses with strong penalties to supplement State and local
efforts to hold violent offenders accountable. To date, the
Justice Department has complemented State and local
prosecutions by filing over 200 VAWA and VAWA-related
indictments, and this number continues to grow.
In addition, the Department alone has awarded well over
$800 million through VAWA grant programs since 1994, directing
critical resources to communities' efforts to respond to
domestic violence, sexual assault, and stalking. These funds
have made a difference in women's lives and in how communities
respond to violence against women.
We agree with the sponsors of S. 1673 that the Federal
Government can and should play an important role in the
campaign to end violence against women. But S. 1673 is, in our
view, a flawed Federal response to such violence. It is also
one that has several troubling collateral consequences.
Our first concern is that this legislation reaches only
pregnant women, and then only if they happen already to be
protected or fall within the activities of one of the 68
enumerated Federal offenses listed in S. 1673. Because it
penalizes harm only to a subset of women, this legislation is a
less effective means of combatting violence against all women.
Second, the bill expressly provides that the defendant need
not know or have reason to know that the victim is pregnant.
The bill thus makes the potentially dramatic increase in
penalty turn on an element for which liability is strict. As a
consequence, for example, if a police officer uses a slight
amount of excessive force to subdue a female suspect without
knowing or having any reason to know or believe that the
individual was pregnant and the individual later miscarried,
the officer could be subject to mandatory life imprisonment
without possibility of parole, even though the maximum sentence
for which such use of force on a non-pregnant woman might be
ten years. This approach is an unwarranted departure from the
ordinary rule that punishment should correspond to culpability,
as evinced by the defendant's mental state.
We strongly object to this aspect of S. 1673 which strikes
us as sort of a Russian roulette because the person who harms a
woman may receive a dramatically increased sentence--in some
cases the sentence would be as little as a year--and because of
a pregnancy that the perpetrator did not know or have any
reason to believe or to be aware of. It could increase to life
imprisonment whenever the woman he harmed happens to be
pregnant and miscarried even if he had no way of knowing of the
pregnancy.
While strict liability-type enhancements are not unheard of
in American criminal law--the felony murder rule is one, for
example--criminal liability for such crimes is almost always
tied to culpability and is limited to the legal consequences
that the wrongdoer can reasonably foresee. That is why the
felony murder rule is limited to the subclass of felonies from
death may reasonably occur--arson, escape, murder, kidnapping,
burglary, to name a few.
S. 1673's new crime, by contrast, has no such limitation
and applies to a range of crimes for which harm to the unborn
is not necessarily foreseeable, such as damaging religious
property or animal enterprise terrorism. This infirmity might
be overlooked if the legislation's new crime required that an
offender know or have reason to suspect that the female victim
is pregnant.
But S. 1673 expressly disavows any such requirement. And by
automatically equating harm to the unborn with harm to the
pregnant woman, the legislation replaces judicial discretion in
sentencing with mandatory and substantial increases in
sentencing without regard to individual culpability.
In addition to having these broader policy defects, S. 1673
is also likely to be ineffective as a practical matter because
it cannot be used to prosecute any persons who are not already
subject to Federal prosecution, since a person violates S.
1673's new crime only if he or she first engages in conduct
that violates one of the 68 specifically enumerated Federal
crimes.
The legislation may also be counterproductive to Federal
efforts to stop domestic violence. S. 1673 does not require the
Government to first obtain a conviction, or for that matter
even prosecute an offender for harming the pregnant woman
before proceeding under the new crime created by the
legislation.
Because the penalties for harming the unborn under S. 1673
will often be greater than the penalties for harming the
pregnant woman, S. 1673 may actually reduce the number of
prosecutions brought for injury to the pregnant woman because
prosecutors are likely to devote most, if not all, of their
energies to securing convictions under S. 1673 due to its
higher potential sentences.
S. 1673 may also be unconstitutional in some of its
applications. The drafters were careful to recognize that
abortion-related conduct is constitutionally protected under
Roe v. Wade and Planned Parenthood v. Casey. The bill
accordingly prohibits prosecution for conduct relating to a
consensual abortion or an abortion where consent is implied by
law in a medical emergency.
Including the exception does not, however, remove all doubt
about the bill's constitutionality because the bill's exception
for abortion-related conduct does not on its face encompass
situations in which consent to an abortion may be implied by
law if, for example, the pregnant woman is incapacitated, even
though there is no medical emergency.
Most troubling, however, is the fact that S. 1673 may
gratuitously and, in our view, unnecessarily plunge the Federal
Government into one of the most difficult and complex issues of
religious and scientific consideration and into the midst of a
variety of State approaches to handling these issues. The
bill's identification of a fetus as a separate and distinct
victim of crime is unprecedented as a matter of Federal
statute. Moreover, such an approach is unnecessary for
legislation that would augment punishment of violence against
pregnant women.
Other more effective means of Federal intervention to stop
domestic violence and other violence against women currently
exist. If the progress of the last 5 years is any harbinger of
the potential for success, reauthorizing VAWA is a
straightforward and effective way to diminish violence against
women. Moreover, there are other available avenues that are
better tailored than S. 1673 to addressing the additional harm
a pregnant woman suffers when her fetus is injured.
We are willing to work with Congress to strengthen the
criminal provisions of VAWA and to develop alternative
legislation to strengthen punishment for intentional violence
against women whom the perpetrator knows or should know is
pregnant.
For all of these reasons, the administration strongly
opposes S. 1673, and the President's senior advisers would
recommend that he veto the bill were it presented to him.
Instead, we urge the Senate to support the reauthorization of
VAWA as a more direct and effective way to combat violence
against women and violence against the unborn.
Thank you for the opportunity to testify on the
legislation. I would be happy to answer any questions.
The Chairman. Well, thank you. I have to say as one of the
authors of the Violence Against Women Act, I am a little bit
disappointed by the Department's position. We received your
testimony just before the hearing today, but I had previously
reviewed the Department's letter to the House raising
objections to the counterpart House bill.
First, that response seems to suggest that the Department
might have some difficulty with a substantial increase in
sentences contemplated by our bill, but that some additional
punishment may be warranted. Can you explain that to me? Is,
``some,'' increase in punishment acceptable to you, but just
not a substantial increase?
Ms. Acheson. Mr. Chairman, if I may make two points, I
think that our basic concern with this legislation is that it
creates this independent right and implicates the issues that I
alluded to toward the end of my testimony, we believe,
unnecessarily.
The reason that we would favor a sentencing enhancement is
because we think the enhancement, or a bill that provided for
an enhancement could reasonably--and I know it could be worked
out--cover a multitude of circumstances and could provide a
sort of continuum of enhancement or substantial increases to
the sentence to respond to the individual facts of the
individual circumstances of the particular crime and the events
that occurred in connection with it.
What we would like to see is an enhancement that gave to a
judge--and whether this would come from a direction from the
Congress to the Sentencing Commission--but gave to the judge
the ability to make a determination over a scope of an
enhancement based on the facts addressing some of the issues
that we pointed out that are not addressed by the bill; namely,
was there an intent factor here. And that, it would seem to me,
would call for a very, very substantial--not just some, but a
substantial enhancement.
If there was no intent but there was knowledge or reason to
know that the woman who was the victim was pregnant, and what
were the circumstances on that, that might call for another
level. If, in fact, it was the police officer's scenario or
some other situation where something happened and the
individual who perpetrated the crime had no reason to know and
did not know that the individual was pregnant, it might be a
lower level.
But that is the approach that we would favor, something
that would give the sentencing judge, after he or she had heard
the trial, heard what was the basis of a plea agreement, to
make a judgment about what was called for in those
circumstances.
The Chairman. Well, the administration's views also note
that, ``Identification of a fetus as a separate and distinct
victim of crime is unprecedented as a matter of Federal
statute.'' I guess I would have to agree to that, since if it
were precedented we would not need to be passing new
legislation.
But let me also point out that it is not unprecedented
generally, as we all know, given the numerous State statutes
which protect the unborn as this bill does. Now, isn't that
true, Ms. Acheson?
Ms. Acheson. Mr. Chairman, I think that everybody who has
spoken has alluded to a State statute that does address this,
and we don't disagree with the fact that there are State
statutes that address this and they go at it in different ways.
The Chairman. Let me turn to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
We have seen some cases that were brought federally in
order to charge the defendant with the death penalty even in
States where the voters had rejected the death penalty. My
State, for example, does not have the death penalty, but cases
that could easily be brought under State law could also instead
be brought under Federal law, where one would have the death
penalty and the other would not. We saw a case recently like
that. Eventually, the U.S. attorney in a plea agreement decided
not to push for the death penalty in that case.
Now, I am concerned that the bill raises some questions on
federalizing crime, something that we all speak against and
then end up federalizing more crimes. For example, in Vermont
the common law ``born alive'' rule applies in cases involving
harm to a fetus.
If this bill were to become law, would we have situations
where pressure would be brought on Federal prosecutors to bring
cases federally so that the additional charge relating to
harming a fetus may be made rather than leaving the case to the
State prosecutors and courts?
Ms. Acheson. I think that is a substantial risk.
Senator Leahy. Now, on some hearings on the bill, I looked
back through the transcripts and the House encountered an
interesting hypothetical which is not out of the realm of
possibility.
Let's assume the law is in place. A protestor at an
abortion clinic pushes a pregnant woman. She falls down and as
a result of the assault she miscarries. Now, would the
protestor be criminally liable under this bill even if the
pregnant woman was entering the clinic for an abortion? I don't
know if you have an answer to that, but this was raised at the
House hearing and I am just curious.
Ms. Acheson. I mean, I am sure that if there are law
professors in the room, they are probably writing this one down
for their exam question.
Senator Leahy. And I don't mean to ask for an answer, but
you can see the----
Ms. Acheson. Well, I think it raises, you know, very tough
issues. Before you even get to the back end of the question,
there are issues implicated in the beginning of it, which is
let's assume she wasn't heading to the abortion clinic for an
abortion, but she was doing something else there and either
confronting the protestors or indeed with the protestors and
some kind of a melee broke out. I think there are tough
questions there, and there are very tough questions when you
add the back end of the hypothetical.
Senator Leahy. Well, let's address one that doesn't even
get into this particular hypothetical but is a very real issue.
The bill provides that a defendant may be convicted of the new
crime of harming a fetus even if he does not know the victim
was pregnant. Well, you have got a knowledge issue by itself,
but let's go a little bit further.
Can the defendant be charged with the separate offense of
causing death or bodily injury to a fetus if the pregnant
victim herself did not know she was pregnant until after the
assault?
Ms. Acheson. The way the bill is written, I think the
answer to that would probably be yes.
Senator Leahy. So you could have a case where both the one
committing the assault and the victim, neither one knowing the
victim was pregnant.
Ms. Acheson. It would appear that way.
Senator Leahy. Now, if Congress passes this bill and if it
is enacted, I think both supporters and opponents of the bill
would accept the fact that we know there are going to be
inevitable constitutional challenges, which kind of worries me
because there are things we could do to protect pregnant women
that would not have a constitutional problem, as I see it.
For example, do you see anything wrong constitutionally
with clarifying that the current sentencing enhancements for
vulnerable victims apply to pregnant women? In other words, if
we were to say that under the Sentencing Guidelines you could
have additional sentences if the harm was against a pregnant
woman, the same way we do with victims elsewhere, do you see
any constitutional problem with that?
Ms. Acheson. I don't.
Senator Leahy. So that if we were to do that instead of
this law, we would be able in all likelihood to escape any
constitutional issues?
Ms. Acheson. That is certainly the take I have on it at the
moment. It certainly seems to be very consistent with the other
kinds of enhancements that are in the whole Sentencing
Guidelines structure and it would seem to me it would be highly
defensible.
Senator Leahy. I raise these because I think that on this
committee, as I said earlier, whether you are Republican or
Democrat, or however you feel about abortion, I think one thing
that unites us all is our strong revulsion toward violence
against women, and we have all supported very strong penalties
for that.
Senator DeWine and I are both former prosecutors. I think
that we would be very united in our feeling about why such
people should be prosecuted. Where the difference will come, of
course, is what is the best thing to do about it.
Mr. Chairman, my time is up and I appreciate it.
Senator DeWine [presiding]. Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Ms. Acheson, I am leaning toward the thrust of some form of
legislation which provides an enhancement, and I was happy to
hear you say that your Department would support that. As I
understand it, you said that you thought that the judge should
be given latitude in determining the scope and determining
whether there was knowledge and intent. You did not necessarily
say that the Department felt there had to be both present.
Did I understand that correctly?
Ms. Acheson. Well, that is what I said, Senator Feinstein.
Let me say that the Sentencing Commission itself, it seems to
me, might well have views about how to structure this to make
such an approach consistent with the guidance to judges in
connection with other enhancement contexts.
You know, I was responding largely to Senator Hatch's
question which I thought went to are we saying there should
just be a little bit of an enhancement or more. And the point I
was trying to make is I think it ought to be consistent with
the way that our sentencing is done now under the whole
Sentencing Guidelines structure. And whether that means that
there is relatively prescriptive guidance given to judges,
judges ought to be able to, with the guidance from the Congress
or the Sentencing Commission, determine what the facts of the
particular case call for.
And we do not feel there should just be in all cases
necessarily just a little enhancement. In the situation that
Senator DeWine described and others like that, there ought to
be very significant enhancement. I mean, we all agree that
there are potentially in those kinds of cases horrific
circumstances.
Senator Feinstein. There is a big difference between the
man who assaults a woman with knowledge that she is pregnant
and the course of the assault kills the child and somebody
pushing a woman who is a week or 2 pregnant and she miscarries.
I mean, how could you accuse that individual of murder? I think
that would be very, very difficult.
And then it is even more difficult if you apply that test,
as you seem to suggest in your written remarks, to the police
officer who is trying to govern in a demonstration an unruly
crowd and pushes a woman and she falls and is newly pregnant
and miscarries. Then what does she do? I mean, does she bring a
charge of murder against the police officer, and how does that
sustain itself in terms of a trial? So I think there is such a
radical spectrum here that when you look at the law, again you
get into this question of viability and whether you really do
kill a child or you kill the embryo, and whether it is
advertent or inadvertent.
Let me ask just a couple of questions on transferred intent
because I think this is an interesting question. Under the
doctrine of transferred intent, a traditional rule of capital
punishment, if A shoots a gun at B trying to kill him and
accidentally kills C, a prosecutor can charge A with attempted
murder of B and murder of C. A's intent to kill B is
transferred to C. Similarly, a defendant's intent in attacking
a pregnant woman can be transferred to her fetus or unborn
child.
Why would you say that the doctrine of transferred intent
would not apply here?
Ms. Acheson. I would say that it doesn't apply here
certainly in the context--two answers. In the context where the
individual, the perpetrator, part or all of his or her
motivation is to injure the fetus or terminate the pregnancy,
there is no mistake. It is not a question of you are shooting
at A, but you hit B or anything like that. So in those
situations, it doesn't apply.
And in the situation where you don't know, it seems to me
that the doctrine of transferred intent implies--this
legislation sort of advances toward in its premise that you
have got two human beings, people who are protected by the law.
And it is easy to say, well, look at the doctrine of
transferred intent. You know, you were shooting at A, but you
hit B, and that is still murder.
That begs here one of the largest questions that is
presented by this legislation. The law does not take the
position, the Federal law doesn't and never has, that the fetus
is, in fact, B. And so it just sort of tees up the largest
question here, which is aren't we heading down the path to and
equating a fetus, as I read this bill, from the moment of
conception all the way through, to a person after birth.
And I guess what we are saying is you can sort of toss out
the doctrine of transferred intent, but it just throws you
right into the core issue here. Federal law has never done
that. In the Roe opinion itself, the Supreme Court cautioned
against going in that direction, and thought that there was no
need to do that in that case and thought that at least judges
shouldn't be doing it, which seems to me raises a question
about whether anybody at the Federal level needs to be doing it
and what I think we all agree should be accomplished, which is
people at various levels of culpability should be punished for
things, even if they didn't have knowledge about the loss or
injury to a fetus, and if they did have knowledge at various
stages can be achieved without getting into this huge and
difficult question.
Senator Feinstein. I think your testimony has been very
helpful at least to me this morning because the cases that I
think most of us are familiar with are really heinous cases. It
is where there is a mature pregnancy and a man beats a woman
and causes a death, as opposed to an unknown pregnancy, which
is a very real phenomenon, and an advertent restraint in a
legal form.
And some people would say, well, you are splitting hairs,
but I really don't think so. So I very much like your
suggestion or your view that the judge have authority to
determine scope and really examine the question of knowledge
and intent. So, again, to reiterate, we would very much like to
work with you on working out an enhancement piece in this area.
Ms. Acheson. We would be happy to do that. We would be glad
to do that.
Senator Feinstein. Thanks very much.
Senator DeWine. Ms. Acheson, thank you very much for your
testimony. We appreciate it very much.
Ms. Acheson. That is it?
Senator DeWine. You are done. Thank you.
Ms. Acheson. Thank you, Senator.
[The prepared statement of Ms. Acheson follows:]
Prepared Statement of Eleanor D. Acheson
Good morning. I appreciate the opportunity to appear before this
Committee to express the Justice Department's views regarding the
proposed Unborn Victims of Violence Act (S. 1673).
S. 1673 would amend the criminal code and the Uniform Code of
Military Justice to make it a separate federal offense to cause ``death
or bodily injury'' to a ``child in utero'' in the course of committing
any one of 68 enumerated federal offenses against a pregnant woman. The
new crime created by S. 1673 has an expansive reach. The bill does not
require that the perpetrator know, or even suspect, that the adult
woman he harms is pregnant. The punishment for this new offense is the
same as if the perpetrator had harmed the pregnant woman, except that
the death penalty is not permitted.
Halting violence against all women, including pregnant women, has
been a top priority of this Administration for the past seven years. In
1994, the Administration, with the bipartisan support of Congress and
the support of the President, made the Violence Against women Act
(VAWA) the law of the land. VAWA marked a critical turning point in the
national effort to address domestic violence, sexual assault, and
stalking. VAWA, for the first time, created federal domestic violence
offenses with strong penalties to supplement state and local efforts to
hold violent offenders accountable. To date, the Department of Justice
has complemented state and local prosecutions by filing over 200 VAWA
and VAWA-related indictments, and this number continues to grow. In
addition, the Department of Justice alone has awarded well over $800
million through VAWA grant programs since 1994, directing critical
resources to communities' efforts to respond to domestic violence,
sexual assault, and stalking. These funds have made a difference in
women's lives, and in how communities respond to violence against
women. Indeed, these funds have helped save the lives of many victims
of domestic violence.
While we agree with the sponsors of S. 1673 that the federal
government can and should play an important role in the campaign to end
violence against women, S. 1673 is, in our view, a flawed federal
response to the evils of such violence. It is, moreover, one that has
several troubling collateral consequences. The Administration
accordingly opposes this bill, and the President's senior advisors
would recommend that he veto it.
Our first concern is that S. 1673 reaches only pregnant women, and
then only if they happen already to be protected by one of the 68
enumerated federal offenses listed in S. 1673. Because it penalizes
harm only to a subset of women, S. 1673 is a less effective means of
combating violence against all women, and may have the side effect of
devaluing the gravity of violence done to women not falling under S.
1673's auspices.
Second, the bill expressly provides that the defendant need not
know or have reason to know that the victim is pregnant. The bill thus
makes a potentially dramatic increase in penalty turn on an element for
which liability is strict. As a consequence, for example, if a police
officer uses a slight amount of excessive force to subdue a female
suspect--without knowing or having any reason to believe that she was
pregnant--and she later miscarries, the officer could be subject to
mandatory life imprisonment without possibility of parole, even thought
the maximum sentence for such use of force on a non-pregnant woman
would be 10 years. This approach is an unwarranted departure from the
ordinary rule that punishment should correspond to culpability, as
evinced by the defendant's mental state.
We strongly object to this ``Russian roulette'' aspect of S. 1673,
which dramatically increases the penalty for harming a pregnant woman--
in some cases, from as little as a year in jail to life imprisonment--
based on the existence of an element, harm to the unborn, for which
liability is strict. To be sure, strict liability enhancements are not
unheard of in the American criminal law. The Federal felony-murder
rule, for example, increases the punishment for homicides committed in
the course of certain enumerated felonies.\1\ Similarly, American tort
law often holds a tortfeasor liable for injury no matter what the
special sensitivities of the injured party. But in both situations,
liability is usually tied to culpability and is limited to the legal
consequences the wrongdoer can reasonably foresee. That is why the
felony-murder rule is limited to the subclass of felonies from which a
death is reasonably likely to occur--arson, escape, murder, kidnapping,
burglary, to name a few. S. 1673's new crime, by contrast, has no such
limitations and applies to a range of crimes for which harm to the
unborn is not necessarily foreseeable, such as damaging religious
property \2\ or animal enterprise terrorism.\3\ This infirmity might be
cured on a case-by-case basis if the crime were defined to require that
an offender know, or have reason to suspect, that his female victim is
pregnant, but S. 1673 goes out of its way to expressly disavow any such
requirement. And by automatically and steadfastly equating harm to the
unborn with harm to the pregnant woman, S. 1673 replaces judicial
discretion in sentencing with mandatory and substantial increases in
sentencing without regard to individual culpability. In short, S.
1673's blunderbuss decoupling of punishment and culpability--combined
with its heavy, mandatory increases in sentences that leaves little
room for judicial discretion--is far too broad a brush to paint with in
this arena.
---------------------------------------------------------------------------
\1\ See 18 U.S.C. Sec. 1111 (listing among first-degree murder
``[e]very murder . . . committed in the perpetration of, or attempt to
perpetrate, any arson, escape, murder, kidnapping, treason, espionage,
sabotage, aggravated sexual abuse or sexual abuse, burglary, or
robbery'').
\2\ 18 U.S.C. Sec. 247.
\3\ 18 U.S.C. Sec. 43.
---------------------------------------------------------------------------
In addition to having these broader policy defects, S. 1673 is also
likely to be ineffective--if not counter-productive--as a practical
matter. S. 1673 may be ineffective because it cannot be used to
prosecute any persons who are not already subject to federal
prosecution. Because one element of S. 1673's new crime is that the
offender ``engage in conduct that violates'' one of 68 specifically
enumerated crimes. S. 1673 would not in any way expand the universe of
violent individuals subject to federal prosecution.
S. 1673 may also be counterproductive to federal efforts to stop
domestic violence. Because S. 1673 does not require that the government
first obtain a conviction for the underlying conduct against a pregnant
woman, S. 1673 may actually reduce the number of prosecutions brought
for injury to the pregnant woman. If, for example, a person ``forcibly
. . . intimidates'' a female postal worker during the first month of
her pregnancy, and she miscarries, a prosecutor would have two options
in prosecuting the aggressor (i) for violating 18 U.S.C. Sec. 111,
which carries a one-year maximum sentence; or (ii) for violating the
offense created by S. 1673, which would carry a maximum life sentence
because causing the miscarriage is treated as if the aggressor murdered
the pregnant woman, a federal officer. This is a substantial increase
in sentence as compared with the sentence that could otherwise be
imposed for injury to the woman who is not pregnant. A prosecutor faced
with this choice may therefore proceed solely under S. 1673's new
offense. Even if the prosecutor initiated a dual prosecution for both
crimes, the prosecution for injury to the ``unborn child'' is likely to
overshadow the prosecution for injury to the pregnant woman. in either
event, rather than reinforcing the federal government's commitment to
ending violence against women, this bill would downplay or ignore the
significance of the injury to the woman.
S. 1673 may also be unconstitutional in some of its applications.
The drafters of S. 1673 were careful to recognize that abortion-related
conduct is constitutionally protected.\4\ The bill accordingly
prohibits prosecution for conduct relating to a consensual abortion or
an abortion where consent ``is implied by law in a medical emergency.''
\5\ Without this exception, the bill would be plainly unconstitutional.
Including the exception does not, however, remove all doubt about the
bill's constitutionality. The bill's exception for abortion-related
conduct does not, on its face, encompass situations in which consent to
an abortion may be implied by law (if, for example, the pregnant woman
is incapacitated) even though there is no medical emergency. In this
situation, the bill may unduly infringe on the constitutionally
protected conduct.
---------------------------------------------------------------------------
\4\ See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v.
Casey, 505 U.S. 833 (1992).
\5\ The bill also prohibits prosecution of any persons for medical
treatment of the pregnant woman or her unborn child or any woman with
respect to her ``unborn child.''
---------------------------------------------------------------------------
Most troubling, however, is the fact that S. 1673 may be perceived
as gratuitously plunging the federal government into one of the most
difficult and complex issues of religious and scientific consideration
and into the midst of a variety of State approaches to handling these
issues. The bill's identification of a fetus as a separate and distinct
victim of crime is unprecedented as a matter of federal statute.
Moreover, such an approach is unnecessary for legislation that would
augment punishment of violence against pregnant women.
Other, more effective means of federal intervention to stop
domestic violence and other violence against women currently exist. If
the progress over the past 5 years in any harbinger of the potential
for success, reauthorizing VAWA is a straight-forward and effective way
to diminish violence against women. Moreover, there are other available
avenues that are better tailored than S. 1673 to addressing the
additional harm a pregnant woman suffers when her fetus is injured. We
are willing to work with Congress to strengthen the criminal provisions
of VAWA, and to develop alternative legislation to strengthen
punishment for intentional violence against women whom the perpetrator
knows or should know is pregnant. The availability of these better
tailored alternatives makes enactment of S. 1673 unnecessary, and even
more unwise as a policy matter.
For all of these reasons, the Administration strongly opposes S.
1673, and the President's senior advisors would recommend that he veto
the bill. Instead, we urge the Senate to support the reauthorization of
VAWA as a more direct and effective way to combat violence against
women and violence against the unborn.
Thank you for the opportunity to testify on this legislation.
Senator DeWine. I see that Congressman Graham is here.
Lindsey, welcome. Your timing is perfect. It is nice to see you
in person. We have seen you on TV a lot in the last couple of
weeks.
Representative Graham. No better looking in person.
Senator DeWine. Thank you for joining us. You may proceed.
STATEMENT OF HON. LINDSEY O. GRAHAM, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF SOUTH CAROLINA
Representative Graham. Thank you, Mr. Chairman. This is the
ultimate in political efficiency. You run a good ship here. I
just got off the plane.
Mr. Chairman, thank you very much for calling this hearing
on S. 1673, the Unborn Victims of Violence Act. I would also
like to commend you for taking the lead on this effort in the
Senate. I was greatly encouraged by the House passage. It was a
bipartisan vote. We had a few pro-choice and pro-life people
coming together on a piece of legislation and that is a great
thing. There is not much of that going on in America, so I am
very encouraged by that bipartisanship and people reaching
across the abortion argument to try to do something I think
most Americans would find appropriate.
Protecting the unborn certainly is not a new idea. About
half the States in this country have laws that criminalize
behavior that kills or injures an unborn child. And in recent
events, television coverage has shown us that this is not just
something to talk about; it actually happens. We are having
very prominent people shoot pregnant women, destroying
children, harming children.
I think you will have Ms. Pace who will testify. Has she
testified yet, Mr. Chairman?
Senator DeWine. She will be testifying.
Representative Graham. Please listen to her story. And when
you want to figure out which way to go, sentence enhancement or
having a separate offense, I would suggest to you that the 24
or 25 States in this area have got it right, that sentence
enhancement is the minority view of what to do with criminals.
What we are talking about, Mr. Chairman, are criminals. We
are not talking about a woman's right to choice. We are talking
about what does society do when somebody, through criminal
activity, harms or destroys an unborn child when the mother
decided to bring the child into the world. Half the States say
let's put that person in jail. That is what I say.
The Federal law is silent on this matter. This legislation
deals only with Federal criminal statutes. The only time you
could be prosecuted under the Unborn Victims of Violence Act is
if you commit a Federal offense against the mother. So we are
not expanding jurisdiction. We are trying to fill in a gap.
There are situations, because of the territory involved,
that are exclusively Federal. The status of the person is
exclusively Federal. Sometimes, State law doesn't apply. If a
Member of Congress was pregnant, this statute would apply
because it is a Federal offense to assault a Member of
Congress. So if you had a Member of Congress that was pregnant
and someone assaulted them and destroyed her unborn child, this
statute would allow two prosecutions, like 24 States do, when
the mother is the victim of assault and her unborn child is
also the victim of that assault.
Examples abound. The Arkansas case, I think you are going
to find very chilling. In that situation, the supposed
boyfriend hired people to go take the woman, who was in the
ninth month of pregnancy, and literally beat her for the
purpose of destroying her child. And they are facing murder
charges, and they should. Sentence enhancement would not
address justice in that case.
Their purpose was to take this woman, isolate her, and beat
her to the point that her child would be destroyed because the
man did not want to accept responsibility. Their intent was to
destroy the child, also to hurt the mother. I think justice
would demand that they stand before a court for two offenses,
destroying the unborn child and harming the mother. And adding
an additional punishment to the mother doesn't address the loss
that society has felt because that wasn't their desire. Their
desire was to kill that child because he did not want to take
responsibility.
So I totally reject the idea that adding an enhancement to
the offense against the mother is an appropriate response. I
think society's appropriate response is found in the majority
of statutes that exist at the State level which make it a
separate offense, and that is what we are trying to do here
today. We are trying to create a body of law that would apply
in Federal situations to address horrific events. In the event
that someone chooses, through their criminal misdeeds, to harm
a pregnant woman and harm or destroy her unborn child, they
should stand before the law for two events, not one.
The statute is well-drafted. It protects medical
professionals, it protects the woman's right to choose. In no
event can the woman herself be prosecuted. It only applies to
third-party criminals. And it is my hope and dream in this
country that we of the pro-life and pro-choice persuasion can
come together on a few issues, this being one, that the
criminal should go to jail for destroying or harming the unborn
after the mother decides to bring the child into the world.
And in terms of notice, when you assault women of child-
bearing years, you do so at your own risk. I think that is a
concept well-settled in law and is a good concept to have in
this bill. One thing is for sure: you don't have a problem if
you don't beat on pregnant women. And if you choose to beat on
somebody of child-bearing years and you didn't know they were
pregnant, the story goes like this: I can't be prosecuted, that
is silly. If I shoot at A and hit B, I am going to jail because
I hurt somebody. My intent was to hurt A; I just happened to
hurt B.
So if you set in motion violence or activity that results
in destroying a child or injuring an unborn child, under the
theory of transferred intent, which is one of the oldest
theories in law, under this statute and 24 other States like
it, you can go to jail. And, Mr. Chairman, I think you should.
Thank you very much for having me. Please listen closely to
what happened in Arkansas. Please listen closely or read
closely the events that have dominated our headlines about
women being assaulted and their children being hurt in the
womb. I think you will find that the appropriate course of
conduct is to mirror the dominant State law in this area, and
that is allowing separate offenses for the crime of destroying
the unborn child.
Thank you, Mr. Chairman.
Senator DeWine. Senator Feinstein.
Senator Feinstein. If you have a moment, Congressman, I
would like to ask you a question.
Representative Graham. I have got until 3 p.m.
Senator Feinstein. Let me ask you this question. My concern
deals with the bill that says you don't have to have knowledge
or intent.
Representative Graham. Yes, ma'am.
Senator Feinstein. All right. The woman, newly pregnant--
let's say she is assaulted. She miscarries. The assailant is
guilty of murder?
Representative Graham. It depends on the intent. Let me
give you an example.
Senator Feinstein. But you just said the bill does not--the
bill excludes having knowledge or intent, as I understand it.
Representative Graham. Yes, ma'am. Here is what would
happen. If you assault somebody that is in a weakened condition
and you push them and your intent is at a simple assault level
and it results in death, you set in motion the person's death,
but your intent was not to kill. You would be charged with
involuntary manslaughter. It would be the same here.
If you got in a shoving match with a pregnant woman and you
were guilty of a simple assault and it resulted in the death or
the destruction of her unborn child, you would be guilty of
involuntary manslaughter. The punishment would be the same as
if it happened to the mother herself.
Senator Feinstein. Even though neither she nor the
assailant knew she was pregnant?
Representative Graham. Yes, ma'am, and cases abound on this
issue. If I shoot at you and I hit somebody behind you, my
intent is not to hurt them, my intent is to hurt you. I am
guilty under the law for setting in motion criminal activity
that resulted in harm to somebody, even though I didn't know
that person was there or I didn't intend to hurt them. That is
a well-settled concept in constitutional law. In all these
States, that has been litigated a lot.
Senator Feinstein. Now, take a police officer in pursuit of
his or her duty who restrains an individual. Obviously, it is a
physical restraint, and the woman is newly pregnant and
miscarries. What is the judgment against the police officer?
Representative Graham. The first question would be did the
police officer exceed their lawful authority to use physical
force. If the answer is no, there is no prosecution because
there has been no crime. Police officers are allowed to use the
force necessary, given the conditions that confront them.
However, what about----
Senator Feinstein. Many times, there is controversy about
that.
Representative Graham. But the way you settle that
controversy is to have a jury or a prosecutor. What if the
belief of the prosecutor is that the police officer in question
used excessive force, unlawful force? Then the police officer
would be just like any other citizen. If the police officer was
charged with using unlawful force and the jury believes that
the police officer used unlawful force, they are responsible
for the consequences of that unlawful activity.
In the case of an excessive arrest, it would be involuntary
manslaughter because there is clearly no intent to kill, but
there is a clear stepping out of the role of the authority
given the police officer. And I think most Americans would say
that if a police officer uses excessive force against a
pregnant woman and her child is destroyed, the police officer
ought to be prosecuted for that destruction. At least I would
say that.
Senator Feinstein. Well, I think that is a broad, sweeping
statement about any circumstance that might occur, and we are
not identifying the circumstance, respectfully.
Representative Graham. Senator, here is the common theme:
the only time you can be prosecuted under the statute is if you
have done illegal activity toward the mother. If there is no
illegal activity, you are not subject to prosecution. And it
has to be a Federal event; it has to be a situation where
Federal law already applies against the mother. So somebody who
is lawfully engaging in law enforcement activity has no fear.
It is only the people that step out from the color of law that
have any worry, any time, anywhere, a police officer or
otherwise.
Senator Feinstein. Thank you very much.
Representative Graham. Thank you.
Senator DeWine. Congressman, let me just ask, if I could, a
couple of questions. I think your explanation and your answers
to my colleague from California have been very good.
Representative Graham. They were very good questions.
Senator DeWine. And they are very good questions, and you
have both gotten to, I think, the heart and core of what we are
going to be talking about and debating.
You know, you didn't use these terms, but a basic principle
of law is that we take our victims as we find them. And your
example of pushing someone and you did not know----
Representative Graham. They had an aneurism.
Senator DeWine [continuing]. They had an aneurism or they
had some problem. You are not charged with murder. What you are
charged with is some form, depending upon the statute and the
State, of manslaughter.
Representative Graham. Exactly, because your intent was not
to kill, but you created the death.
Senator DeWine. I think sometimes you have to point out the
obvious. There is a criminal intent there.
Representative Graham. Right.
Senator DeWine. Now, it may not have been to kill that
person, but there was a criminal intent. And if you didn't have
a criminal intent, which is one of the elements of every crime,
we wouldn't be in the courtroom. The grand jury wouldn't have
indicted or the prosecutor wouldn't have brought the case.
So we are not talking about a novel concept of law. We are
talking, as you have pointed out, about something that is well-
settled, going back long before the beginning of this country.
These are basic, basic doctrines that are not foreign to us at
all.
Representative Graham. Yes, Mr. Chairman.
Senator DeWine. So I think you have to have an intent. You
can't have a criminal charge without intent, and this is
analogous to taking your victim as you find your victim,
whatever your knowledge was. You didn't know that victim had an
aneurism, you didn't know that victim was pregnant.
Representative Graham. And it is simple. If you don't hurt
people, you have got nothing to worry about. Let me give you an
example in the military of why we need this statute.
Senator Feinstein. Before you do that, could I just add one
thing? Would you allow me?
Senator DeWine. Sure.
Senator Feinstein. What I don't understand is the law
specifically says that you do not require proof of intent or
you do not require proof of knowledge. It is specific.
Representative Graham. Yes, ma'am.
Senator Feinstein. So the argument then, well, you would
have to have proof of intent, particularly when you come--you
know, I grant you the case when the pregnancy is visible. I
mean, women are all different. The ability to miscarry, as one
who has--some women miscarry very easily.
Representative Graham. Yes, ma'am. Let me give you an
example about the----
Senator Feinstein. And you are putting the police officer
in huge jeopardy.
Representative Graham. No, ma'am, I don't think so. Let me
give you an example about how the word ``intent'' is used in
the law. Drunk driving. You don't have to intend to drunk-
drive; you just do it. If somebody is drunk-driving, runs a
stop sign and hits a woman going down the road and she is
pregnant, they are going to jail under this bill if Federal
jurisdiction applies. We don't worry about their intent because
most drunks are too drunk to form an intent.
Senator DeWine. If I could just interject, in your case,
Congressman, you do have to intend--there is always an intent.
You have to intend to drink. You know, you have to have some
intent to take some action. What the law we are talking about
is saying is that there is not a requirement for intent in
regard to the fetus, but there was an intent to do the initial
act that set in motion these consequences, just as when you
walk up to a person who has some physical problem that is not
apparent and you do something to them, you set that in motion.
You didn't know they had an impairment. You didn't know
they were going to die just because you pushed them like that,
but again you take your victims as you find them. I think we
can discuss whether this is the way to proceed, is this the
best way to do it. But I don't think that any of us can say
that this is a concept that is foreign to our law or foreign to
our basic set of values or our whole criminal law that has
developed over the last several hundred years.
Representative Graham. Yes, sir. Twenty-four States have
statutes very similar to this. Before my life in Congress, I
was a prosecutor in the military. I looked long and hard to
make sure it didn't overstep Roe v. Wade bounds, looked long
and hard to make sure it withstood the constitutional test that
had been levied against other statutes. The doctrine of
transferred intent has withstood scrutiny. The knowledge
element has certainly withstood scrutiny. All it says is that
if you bring in force motion to hurt someone of child-bearing
years, you do so at your risk.
And the bottom line about why I got involved is as a former
prosecutor in the military, Senator Feinstein, I found several
cases that were very disturbing. A gentleman, an Air Force
member, repeatedly assaulted his wife and on this particular
occasion just went berserk, took out a T-shirt--she was 7 or 8
months pregnant--and beat her within an inch of her life and
destroyed the child.
Under the military law that exists today, there is no
provision to prosecute that person for the death of the unborn
child. I think most Americans would believe that he should be
prosecuted in that case because the result of his activity
against the mother was destroying an innocent person.
There is a law in effect in this Nation that kind of speaks
a lot about what I am saying. Do you know that federally you
cannot execute a pregnant woman? I think the reason that law
exists is that whatever sins that the mother may have
committed, we do not want to take that innocent life by the
State. So we are going to wait until the pregnancy is over for
the execution, and I think that is analogous here.
We don't have to worry about the abortion debate. We should
all be able to agree that if a third-party criminal chooses to
destroy an unborn child brought into the world by the mother,
they should go to jail because they have done something
separate other than hurt the mother.
Thank you very much.
Senator DeWine. Congressman, one last question, if I could.
You debated this issue in the House of Representatives. It is
my understanding there was an alternative offered which had to
do with sentencing enhancements.
Representative Graham. Right.
Senator DeWine. Do you want to describe for us why you
think that was rejected in the House?
Representative Graham. Well, I think it was rejected
because the overwhelming majority of the States have rejected
that concept because the harm that you are going to--in the
Arkansas case, they had a specific set of plans. The plan was
to destroy the unborn child. They intended to beat the mother
for the effect of killing the child. I think most Americans
would believe that should be prosecuted separately because that
is truly what their criminal intent was, to hurt the mother and
kill the unborn child.
We have in this statute that the right of the woman to
decide issues about her own body is left unaffected. But in
terms of criminal law, if you can prove somebody destroyed the
unborn child as to criminals, as to third parties, this child
has status in the law subject to prosecution. And I think
justice would demand two prosecutions in Arkansas--a vicious
assault on the mother and the death of a 9-month-old, 7-pound
baby girl.
Senator DeWine. Congressman, thank you very much. We
appreciate your testimony. It has been very helpful.
I would ask our next panel to please come forward and I
will introduce you as you are coming up.
Shiwona Pace. We are very pleased to have her, from Little
Rock, AR. Last August, Ms. Pace was expecting when she was
physically attacked by several men who were hired to kill her
unborn child. Unfortunately, her baby did not survive the
attack. Four men have been charged with the assault against her
and the subsequent death of her unborn child under Arkansas'
new fetal homicide law. We thank you very much for coming
today.
Our next witness will be William Croston, who is from
Charlotte, NC. He is here representing his family. Many of us
have heard the story of Ruth and her unborn child's death at
the hand of Reginald Falice. Mr. Falice was convicted of the
murder of Ruth Croston under interstate domestic violence
provisions.
Joseph Daly is here from Middletown, in my home State of
Ohio. He was the husband of the late Suzanne Daly, who was 8\1/
2\ months pregnant when she and her unborn child were killed by
a reckless driver. Ohio law was changed to allow prosecution
for the death of an unborn child largely because of this
tragedy and largely because of the efforts of Mr. Daly.
We thank all of you for your willingness to be here today,
and I will start from left to right with Ms. Pace. You may
proceed. We have your written statement which we will make a
part of the record for all three of the witnesses, and we would
just ask you to proceed and tell this panel anything you wish.
Ms. Pace, thank you for coming.
PANEL CONSISTING OF SHIWONA PACE, LITTLE ROCK, AR; WILLIAM
CROSTON, CHARLOTTE, NC; AND JOSEPH P. DALY, MIDDLETOWN, OH
STATEMENT OF SHIWONA PACE
Ms. Pace. My name is Shiwona Pace and I reside in Little
Rock, AR, where I am currently pursuing a degree in psychology
at the University of Arkansas at Little Rock.
On the night of August 26, 1999, I became the victim of a
brutal assault that led to the death of my unborn daughter,
Heaven Lashay Pace. My reason for being here today is to share
my story with you in hopes that the tragedy that I endured can
somehow make a difference.
On January 6, 1999, I found out that I was 2 months
pregnant. Upon learning this, I told my then boyfriend that he
was going to be a father. His initial reaction was that however
I chose to proceed would be fine with him because he would be
there for me. After careful consideration, I decided that
although this pregnancy had occurred unexpectedly, I wanted to
keep my baby. When I informed him of my decision, his attitude
changed completely. He went from being that of a pleasant-
natured person to an irate and hostile one.
He told me that he would have nothing to do with me or the
baby because he had no desire to be a father. Naturally, I was
appalled. Immediately, I realized the possibility that my baby
would not have her father in her life, and although I wanted
very much for them to have a relationship, I did not want to
pressure him. Therefore, I discontinued all communication with
him because I knew that it would be in my best interest, as
well as the baby's, to avoid any type of stress throughout my
pregnancy.
Several months went by and Erik and I had no contact. In
June 1999, I had my second ultrasound which revealed that I was
going to have a baby girl. It was then that I decided to name
her Heaven. After leaving the doctor's office, I went to Erik's
place of employment to share the news with him. It had been
several months since we had spoken, but I still felt as though
he had the right to know what his first child was going to be.
He expressed to me that he had no interest in the sex of
the child and that he still had absolutely no desire to be a
father. However, he contacted me weeks later with somewhat of a
changed outlook, and from that point we began speaking on a
regular basis. Things still weren't the way they used to be
between us, but they were better.
On the night of August 26, 1999, one day before my due
date, my 5-year-old son and I accompanied Erik to his home at
9212 Monique Drive. It was there that I was assaulted by three
masked men. One of them dragged my son and Erik to a room in
the back of the house while the other two proceeded to beat me
and demand money.
I begged and pleaded for the life of my unborn child, but
they showed no mercy. In fact, one of them told me, ``f'' you,
your baby is dying tonight. I could hear my son in the
background crying and saying that he wanted his mommy, but I
couldn't do anything to comfort him. As I lay face down crying
and begging for them to stop, they continued to beat me. I was
choked, hit in the face with a gun, slapped, punched, and
kicked repeatedly in the stomach. One of them even put a gun in
my mouth and threatened to shoot. About 30 minutes afterwards,
the three fled and I was rushed by ambulance to the hospital,
where tests revealed that my baby, Heaven Lashay Pace, had died
as a result.
One week later, on September 2, 1999, Erik Bullock and the
three guys that attacked me were arrested and charged with
first-degree battery and capital murder. According to testimony
and confessions given by the three suspects, Erik had
apparently hired them to fake a robbery at his house and beat
me to the point that I would lose my baby because he didn't
want his current girlfriend to find out, and also because he
did not want children. One of the suspects stated that Erik had
also participated in the attack.
Today, the three suspects--Derrick Witherspoon, Lonnie
Beulah and Eric Beulah--all remain in jail. However, Erik
Bullock is free. After being charged with capital murder and
serving a mere 2 months in jail, Pulaski County Circuit Judge
John Plegge granted him a million-dollar bond and he was
released in early November.
Since this time, Erik has resumed his life as though
nothing has happened, but my life has changed dramatically. I
lost a part of me, a child that I desperately wanted and was
looking forward to having. And my son lost the baby sister that
he had always wanted. After 9 months of preparation and
excitement, I have nothing to show--cheated, robbed, and
forever heartbroken.
Although my story and my being here today can't change what
has happened, I am hoping that my testimony can change what
will happen. Criminals such as Erik Bullock who show a blatant
disregard for human life should be punished accordingly. The
loss of any potential life should never be in vain.
Thank you.
Senator DeWine. Ms. Pace, thank you very much.
[The prepared statement of Ms. Pace follows:]
Prepared Statement of Shiwona Pace
My name is Shiwona Pace, and I reside in Little Rock, Arkansas,
where I am currently pursuing a degree in physiological psychology at
the University of Arkansas at Little Rock. On the night of August 26,
1999, I became the victim of a brutal assault that led to the death of
my unborn daughter, Heaven Lashay Pace, and my reason for being here
today is to share my story with you in hopes that the tragedy I endured
can somehow make a difference.
On January 6, 1999, I found out that I was two months pregnant.
Upon learning this, I told my then boyfriend that he was going to be a
father. His initial reaction was that however I chose to proceed would
be fine with him; he would be there for me. After careful
consideration, I decided that although this pregnancy had occurred
unexpectedly, I wanted to keep my baby. When I informed him of my
decision, his attitude changed completely. He went from being that of a
pleasant-natured person to an irate and hostile one. He told me that he
would have nothing to do with me or the baby because he had no desire
to be a father. Naturally, I was appalled. Immediately, I realized the
possibility that my baby would not have her father in her life. And
although I wanted very much for them to have a relationship, I did not
want to pressure him; therefore, I discontinued all communication with
him, because I knew that it would be in my best interest--as well as
the baby's--to avoid any type of stress throughout my pregnancy.
Several months went by and Erik and I had no contact. In June of
1999, I had my second ultrasound, which revealed that I was having a
baby girl. It was then that I decided to name her Heaven. After leaving
the doctor's office, I went to Erik's place of employment to share the
news with him. It had been several months since we'd spoken, but I
still felt as though he had the right to know what his first child was
going to be. He expressed to me that he had no interest in the sex of
the child, and that he still had absolutely no desire to be a father.
However, he contacted me a few weeks later with somewhat of a changed
outlook, and from that point, we began speaking on a regular basis.
Things still weren't the way they used to be between us, but they were
better.
On the night of August 26, 1999 (one day before my due date), my
five-year-old son and I accompanied Erik to his home at 9212 Monique
Drive. It was there that I was assaulted by three masked men. One of
them drug my son and Erik to a room in the back of the house, while the
other two proceeded to beat me and demand money. I begged and pleaded
for the life of my unborn child but they showed me no mercy. In fact,
one of them told me, ``F**** you. Your baby is dying tonight.'' I could
hear my son in the background crying and saying that he wanted his
mommy, but there was nothing that I could do to comfort him. As I lay
face down crying and begging for them to stop, they continued to beat
me. I was choked, hit in the face with a gun, slapped, punched, and
kicked repeatedly in the stomach. One of them even put a gun in my
mouth and threatened to shoot.
After about thirty minutes, the three fled, and I was rushed by
ambulance to the hospital, where tests revealed that my baby, Heaven
Lashay Pace had died.
One week later, on September 2, 1999, Erik Bullock and the three
guys that attacked me were arrested and charged with first-degree
battery and capital murder. According to testimony and confessions
given by the three suspects, Erik had apparently hired them to fake a
robbery at his house, and beat me to the point that I would lose my
baby, because he didn't want his current girlfriend to find out about
my pregnancy. One of the suspects stated that Erik had also
participated in the attack.
Today the three suspects, Derrick Witherspoon, Lonnie Beulah, and
Eric Beulah, all remain in jail. However, Erik Bullock--the man that
orchestrated the plot--is free. After being charged with capital
murder, and serving a mere two months in jail, Pulaski County Circuit
Judge John Plegge granted him a $1,000,000,000 bond and released him in
early November.
Since this time, Erik has resumed his life as though nothing has
happened, but my life will never be the same. I lost a part of me--a
child that I was so looking forward to having. My son lost the baby
sister that he'd always wanted. After nine months of preparation and
excitement, I have nothing to show. Cheated, robbed and forever
heartbroken.
Although my being here today can't change what has happened, I am
hoping that my testimony can change what will happen. Criminals such as
Erik Bullock who show a blatant disregard for human life should be
punished accordingly. The loss of any potential life should never be in
vain.
Senator DeWine. Mr. Croston.
STATEMENT OF WILLIAM CROSTON
Mr. Croston. My name is William Croston. I am here today to
share with you my family's courtroom experience related to the
loss of an unborn child. I also wanted to make one other
comment about some of the discussions that have taken place
prior to my testimony here this morning.
I am not a legal person and I can't speak to you about what
people's intentions are or how this law affects or concerns
people have about the law as it relates to Roe v. Wade and all
the other things that have been discussed. What I can tell you
is that when people go into the courtroom, what they expect is
proper justice and judgment. And today, because you don't have
this law on the books, people are not getting that. So whatever
it takes for you to make this happen and get it right, we
really need to do that.
Let me start by telling you that on April 21, 1998, my
unborn niece was the victim of a violent crime when my sister,
her mother, was killed by a gentleman by the name of Reginald
Falice. Reginald Falice, who was a former boyfriend of my
sister's, drove from Atlanta, GA, to Charlotte, NC, with the
intention of murdering my sister. He came to my mother's home
where she was staying that morning and had an argument with my
sister, and while she was on her way to work one block from my
mother's home, he shot her approximately 6 times and then fled
to his hometown in Virginia. He was later caught by the police
and confessed to the crime. The important thing that you need
to understand here is that he was her former boyfriend. He knew
that she was carrying an unborn child. This is not a case where
he didn't know what he was doing.
The area that I would like to focus on with you in my
testimony is what happened when we went to court. Prior to the
beginning of the trial, with the jury not present--the jury was
not in the courtroom at the time--the judge made the statement
that he did not want the jury to know that Ruth Croston was
carrying an unborn child.
Now, let me make it clear I have no problems with the judge
because what I understand is that the judge was following the
law as it is written today. The problem obviously is that we
need to change the law. And I can tell you that there is a
great hurt on the part of myself and my other family members
when you lose a person like that. You know, part of the therapy
when you lose someone--and I know that everyone in here at some
time has lost somebody that is close to them--is that you can
cling to the experiences that you have had with that person.
You can remember the things that you have learned from that
person. You don't have that with a child that is unborn, a
person that you waiting to come into the world who never got
here.
Let me go back to the trial for a minute and make the point
I wanted to make here that I think we have to look at this in
the larger context of the fact that you have a defense team
that is trying to clean up the image of the criminal. And when
you drop a charge--or not really drop, but you don't even bring
a charge for harm to an unborn child, you are aiding the
defense and making this person look better.
Now, in my sister's case, that did not help Reginald
Falice, and the reason it didn't help him is because he had
confessed to the crime. The concern I have is that you probably
have now in the courtroom cases where the defense team is
preparing something that allows an individual like this to come
back out. And I think Shiwona offered that example to you just
a minute ago. What needs to happen is that these people need to
be held accountable for the crimes they commit.
So let me say this to you in closing. What we need to do is
look at the realities of the things that are going on in the
world today. Only 2 weeks ago, a young lady was found in North
Carolina who was pregnant dead. They don't know who did it. In
the fall of this year, a young woman by the name of Sharika
Adams was attacked allegedly by--and I say allegedly because it
has not gone to court yet--by one of the Carolina Panthers.
There are just too many of these type of cases that exist
today, and for me personally each time I hear about it, I have
to relive it. And so what I would say to you is work out all
the little gory details--again, I am not a legal person--figure
out what it takes to put the laws on the books that can prevent
these individuals today who are walking out of the courtrooms
after they commit crimes.
Thank you.
Senator DeWine. Thank you very much.
[The prepared statement of Mr. Croston follows:]
Prepared Statement of William Croston
My name is William Croston. I am one of Ruth Naomi Croston's
brothers. On April 21, 1998, my sister, Ruthie, and her unborn child
were murdered by Reginald Falice. As a result of the murder of Ruthie
and her unborn child our family had to go through a trial. The trial
was the process of giving Falice his day in court even though Reginald
Falice has confessed to the murder of Ruth Croston prior to the trial.
One major disappointing aspect of the trail was that Falice was NOT
charged with the murder of the unborn child that Ruth Croston was
carrying.
Under current law we simply choose to dismiss the life of the
unborn child. In fact, prior to the beginning of the trial the
Honorable Judge Graham C. Mullen indicated that he didn't want the jury
to know that Ruth Croston was carrying an unborn child. While I
understand that the intent here is to avoid jury sympathy for the
victim, the reality is that the current process dismisses the life of
the unborn child and the family's suffering associated with a very real
loss. The difficulty of accepting the loss of Ruth Croston and her
unborn child is greatly enhanced by the fact that the unborn child was
the child of Ruth Croston and Reginald Falice. Reginald Falice
knowingly murdered Ruth Croston and their unborn child. However, the
current law does not consider the unborn child a part of the
irresponsible actions committed by Reginald Falice.
Unfortunately the thoughts in the mind of some persons in today's
society have reached a point of no respect for the life and rights of
others. We need to update today's laws to conform to the reality of the
crimes committed in society today. Today's federal laws ignore and/or
dismiss crimes against the unborn child. Example: United States vs.
Reginald Falice. We need to update today's out-of-date laws to include
consequence for criminals who cause harm to unborn children through an
act of violence against the mother. The important factor to consider in
the case of United States vs. Reginald Falice, is that Reginald Falice
knew that Ruth Croston was carrying his unborn child. Why not bring
charges for violence to the unborn child?
In closing, the Committee should understand that our family will
forever be in mourning over the loss of Ruth Croston and our unborn
niece. Our grief will last a lifetime. The emotional effect of the
death of our niece resurfaces each time we hear about another
unnecessary act of violence against a pregnant woman. The impact of the
irresponsible actions of Reginald Falice will be with me and my family
for the rest of our lives. I hope that the Senate Judiciary Committee
will find the wisdom to bring the current law up-to-date with the
reality of the crime committed in society today. It is imperative that
we hold criminals responsible for their acts of violence against
pregnant woman and their unborn children.
Senator DeWine. Mr. Daly.
STATEMENT OF JOSEPH P. DALY
Mr. Daly. It is a bittersweet day for me as I sit before
you and give you my testimony. On one count, I am very proud
that I have changed the laws in Ohio to recognize unborn
children. On the other, I have to face the memories of great
pain and sadness. It has been 4\1/2\ years, but you have to
revisit it.
On an early August morning in 1995, I kissed my wife,
Suzanne, goodbye as she went out the door for her early-morning
commute to a preschool outside Cincinnati, where she worked as
a teacher. Suzanne was just 3 weeks away from delivering our
first child and within a few days of maternity leave. We had
waited almost 5 years to have our first child and waiting for
Suzanne to finish college and waiting for us to be financially
responsible. The nursery was ready, equipped with just about
everything we would need. Almost giddy with anticipation, our
future seemed very bright.
But in a split second, our bright future was snuffed out.
Suzanne and our unborn son, Austin, were killed by an
unlicensed 16-year-old driver that was driving a stolen car
that crossed the median and slammed head-on into her car. When
I heard this devastating news, I felt like that my life too was
over.
I learned on the day that my wife was buried that the
driver who had taken their lives could not be prosecuted for
taking two lives under Ohio State law. She was charged with
just one count of vehicular homicide. I was not only angry, but
insulted, insulted not for just me, but for Suzanne. Over and
over, I would replay the videotape of our sonogram showing my
healthy son almost ready to be born. No one could tell me that
this was not a human being. It was my son, our son, just days
away from meeting Suzanne and I, his parents.
After burying my wife and son, I knew I would face many
challenges. My first was to change Ohio's antiquated laws
regarding the unborn. I knew it wouldn't bring back my wife and
son, but it might change the life of others and changed the way
that Ohio viewed the unborn. With the help of my family,
friends, and thousands of Ohioans, we worked hard to raise
awareness and get Ohio's laws changed.
After many months of attending various committee meetings
in Columbus, just like I am doing now, giving proponent
testimony, my challenge ended in triumph. On June 6, 1999, then
Governor George Voinovich signed into law what many refer to as
the Daly bill. This new law permits prosecutors to charge
people who harm or kill unborn babies while committing a crime.
Since that time, I have been contacted by many heartbroken
couples who have asked me to help them begin similar campaigns
in their own States. They too were shocked to learn criminal
charges could not be filed when their unborn child's life was
terminated. Over the past few years, similar legislation has
been proposed and enacted at the State level, but not all
States have laws protecting pregnant women, nor does the
Federal Government. It is now time to deal with that at a
Federal level.
Over the years, this type of law has been tested and proven
constitutional in many States, including Ohio. Yet, many
States' civil law continues to conflict with criminal law.
Isn't it grossly inconsistent to construe a fetus as a person
for the purposes of civil liability while refusing to give it
similar classification within the criminal code?
This bill should be bipartisan, a common-sense piece of
legislation that protects a woman's right to carry her unborn
baby or child to term. It covers only wanted pregnancies and
the right to win a conviction for harm or death to an unborn
child only if it is proven that the defendant violated Federal
law with respect to the mother. It would be very hard to harm
or kill the unborn without harming or killing the mother,
wouldn't it? That is why we need two separate offenses.
The bill does not try to define when life begins, nor will
it have any impact on pro-choice or pro-life agendas because it
isn't about a woman's choice to prevent or abort a fetus. It is
about a woman's right not to have her unborn child's life
illegally terminated. Nowhere in the proposed bill does the
Federal Government have to take the responsibility in
determining when a fetus is viable or when an embryo becomes a
human being, or even how many rights should be given to the
unborn. All I want, all that my wife would have wanted is
recognition of the simple fact that every woman should have the
right to carry her baby to term, and in this instance every
child should have the legal right to be born. Any person who
violates those rights and kills an unborn child should
ultimately face the consequences of their actions.
If a woman has the constitutional right to prevent or abort
a pregnancy, she should have the same right to carry that baby
to term and hold responsible anyone who takes that right away.
In the circumstance when a woman and an unborn child can't
protect themselves, the government should. Isn't this why
legislation is enacted in the first place, to protect each and
every one of us to the guarantee of the right to life, liberty,
and the pursuit of happiness? I think my wife was violated of
all three of those rights.
To Suzanne and me, we wanted our unborn son from the very
moment we learned that she was pregnant, the very moment. To us
and everyone around us, we were expecting a child, an unborn
child at that time, that was wanted and had the right to be
born. Every woman has the right to experience the joy of
bearing the child she so desperately wants, no matter where she
may live or travel. That is not true right now. This Federal
legislation will go a long way in providing a woman the right
to greet her baby face to face.
In conclusion, my sincere hope is that this piece of
Federal legislation will also serve as a springboard for the
other 20-plus States that do not have any criminal laws
relating to unborn children to pass such laws. There is not a
human being on the Earth that was not at one time an unborn
child.
I thank you.
[The prepared statement of Mr. Daly follows:]
Prepared Statement of Joseph P. Daly
On a desperately hot day in August of 1995, I kissed my wife,
Suzanne, good-bye as she went out the door for her morning commute to a
preschool outside Cincinnati where she worked as a child care giver.
She was just three weeks away from delivering our first child and
within a few days of maternity leave. We had waited almost five years
to have our first child, waiting for Suzanne to finish college. The
nursery was ready, equipped with just about everything we'd need.
Almost giddy with anticipation, our future seemed bright.
But in a split second, our bright future was snuffed out. Suzanne
and our unborn son, Austin, were killed by an unlicensed 16-year-old
girl driving a stolen car that crossed the median and slammed head-on
into her car. When I heard this devastating news, I felt like my life,
too, was over.
I learned the day my wife was buried that the driver who had taken
their lives could not be prosecuted for taking two lives under Ohio
law. She was charged with just one count of vehicular homicide. I was
not only angry, but insulted! Over and over I'd replay the videotaped
sonogram, showing my healthy son, about ready to be born. No one could
tell me that this was not a human being. It was my son . . . just days
away from meeting his parents.
After burying my wife and son, I knew I'd face many challenges. My
first was to change Ohio's antiquated laws regarding the unborn. I knew
it wouldn't bring back my wife and son, but it may change the life of
others. With the help of family, friends and thousands of Ohioans, we
worked hard to raise awareness and get Ohio's law changed. After many
months of attending various committee meetings in Columbus, my first
challenge ended . . . in triumph. On June 6, 1996, then Governor George
Voinovich signed into law what many refer to as the ``Daly bill.'' This
new law permits prosecutors to charge people who harm or kill unborn
babies while committing a crime.
Since that time, I have been contacted by many heartbroken couples
and asked to help them begin similar campaigns in their states. They,
too, were shocked to learn criminal charges could not be filed when
their unborn child's life was illegally terminated. Over the past few
years, similar legislation has been proposed and enacted at the state
level. But now it's time to deal with this issue at the federal level.
Over the years, this type of law has been tested and proven
constitutional in Ohio and many other states. Yet, in many states civil
law continues to conflict with criminal law. It is grossly inconsistent
to construe a fetus as a ``person'' for the purpose of civil liability,
while refusing to give it a similar classification in the criminal
context.
This bill should be a bipartisan, common sense piece of legislation
that protects a woman's right to carry her unborn child to term. It
covers only wanted pregnancies and the right to win a conviction for
harm to an unborn child only if it is proven that the defendant
violated a federal law with respect to the mother. It does not try to
define when life begins nor will it have any real impact on the Pro
Choice or Pro Life agenda. Because it isn't about a woman's choice to
prevent or abort a fetus! It's about that woman's right not to have her
unborn child's life illegally terminated.
Nowhere in this proposed bill does the federal government have to
take the responsibility in determining when a fetus is viable or when
an embryo becomes a human being. Or even how many rights should be
given the unborn. All I want is recognition of the simple fact that
every woman should have the right to carry her baby to term; and in
this instance every child should have the right to be born. And any
person who violates those rights and kills an unborn child should
ultimately face the consequences of their actions.
If a woman has the constitutional right to prevent or abort a
pregnancy, she should have the same right to carry that child to term,
and hold responsible anyone who takes that right away. In a
circumstance when a woman and an unborn child can't protect themselves,
the government should. Isn't this why legislation is enacted in the
first place--to protect each and every one of us, to guarantee us the
right to life, liberty and the pursuit of happiness?
To Suzanne and me, we wanted our unborn son from the very moment we
learned that she was pregnant. We were expected Austin, our child, a
human being. To us, and everyone around us, we were expecting a child,
an unborn child that was wanted and had the right to be born.
Every woman has the right to experience the joy of bearing the
child she so desperately wants, no matter where she may live or travel.
This federal legislation will go a long way in providing a woman the
right to greet her baby face-to-face.
In conclusion, it is my sincere hope that this piece of federal
legislation will also serve as a springboard for the other twenty-plus
states that do not have any criminal laws relating to unborn children
to pass such laws.
Senator DeWine. Thank you very much, Mr. Daly.
Senator Feinstein.
Senator Feinstein. Well, let me just extend my deepest
sympathy to the three people that have just testified. You
know, there is no question that your stories are compelling,
that they are real, that they happened. You have, I think, a
lot of merit in what you say, and what is interesting to me is
that there is commonality here in that all of your unborn
children were almost at term, were capable of life outside the
womb.
The women assaulted, or in your case, Mr. Daly, hit by the
driver--the other driver wouldn't know she was pregnant, but
nonetheless your wife was pregnant. In both Mr. Croston's case
and Ms. Pace's case, there was both knowledge and intent that
they were effectively taking the life of a child that could be
sustained as life. So I think the point is made.
And I perhaps say this to you, Senator. I would like to see
some bill that could take that into consideration. Mr. Croston
said, I think, quite rightly, you know, his problem isn't to
know the intricacies of the law, it is to see that justice is
done. Of course, that should be our challenge as well.
On the other hand, I am still bothered by the unexpected--
and let me just go back to one thing--and that is somebody that
is newly pregnant, perhaps herself is acting in a criminal way,
as to how you remedy this. And I am struck by my discussion
with Congressman Graham because I can see an instance of
restraint of a woman who is restrained under whatever she may
be criminally culpable for. She may be drunk, but is visibly
restrained by a police officer even in a way that perhaps there
is proof of excessive restraint. That police officer is guilty
of murder.
Senator DeWine. Not murder.
Senator Feinstein. What would it be?
Senator DeWine. It would be manslaughter, I would assume.
Senator Feinstein. But the police officer doesn't even
know, and so this puts all accused or all defendants----
Senator DeWine. Take your victims as you find them.
Senator Feinstein. Well, I----
Senator DeWine. Well, no. It is a basic principle and it is
not a new principle, it is not a new concept.
Senator Feinstein. So you fully intend that to be the case
in your legislation?
Senator DeWine. Your example again? I want to make sure I
get it.
Senator Feinstein. My example is this, that let's say the
woman being restrained is culpable of a crime, or let's say she
is excessively drunk.
Senator DeWine. She has committed a crime, she has
committed a crime.
Senator Feinstein. Let's say she is excessively drunk and
in order to restrain her, there is excessive force used.
Senator DeWine. Well, Congressman Graham, I think, answered
that very well. He went through as a prosecutor what you would
have to determine when you looked at the case.
Senator Feinstein. He said to me if there were no excessive
force, he would not be guilty. But if there were, you know,
what is and what isn't?
Senator DeWine. You have to go into a fact determination of
whether there was excessive force. You wouldn't even get to any
of these questions unless there was excessive force and a jury
had determined that, or that had been determined in a court of
law. The threshold question is was there excess force used or
not, and determine excess force you would obviously have to
look at what the so-called victim was doing, what the person
who was being restrained was doing, and all the surrounding
circumstances.
But to carry it forward, if you determined the police
officer was not acting correctly and did use excessive force,
considering all the circumstances, and did, in fact, then
commit an assault against the person who was being restrained,
the intent that you would have to find under our bill would be
that there was an intent to commit the assault. That is what
the intent would be.
Senator Feinstein. The bill doesn't say that, though.
Senator DeWine. And if it turned out that she was pregnant
and she miscarried, then you are into a manslaughter issue at
that point. You are not into a murder case, you are into a
manslaughter case.
If I could just for a moment, since we are on that--and we
will just go back and forth; we don't have the clock on here.
Mr. Daly, in your tragedy the person who came across and killed
your wife and your unborn child, that person was guilty. That
person has an intent to do the act, but that person didn't
start out with the intent to kill your wife, but that person is
still guilty, right?
Mr. Daly. That is true.
Senator DeWine. That person is still guilty. And in your
case--and if any other witnesses want to respond--I get the
impression, and you pretty much stated it, that one of the
things that you feel as a victim that you need is the
recognition that it was a separate offense against your unborn
child.
In other words, you have been here and listened to this.
Some people are saying, well, we should just enhance the
penalty for killing your wife. And I get the impression that
that is not really what you want to see because that does not
recognize that individual, that child.
Mr. Daly. I agree.
Senator Feinstein. Before he answers, give me an
opportunity to state----
Senator DeWine. Well, I would like to see him answer first.
Senator Feinstein. I don't think you stated it correctly.
Senator DeWine. I didn't state what correctly?
Senator Feinstein. Well, I assume you are referring to my
comments about----
Senator DeWine. No, not yours.
Senator Feinstein [continuing]. Creating legislation that
would provide an enhancement, and that is not entirely what I
am talking about because what I am talking about is providing
an opportunity for a judge to make a judgment that two lives
were essentially lost. Therefore, the enhancement would relate
to the second life.
Senator DeWine. I was actually referring to our Department
of Justice witness' testimony, but I think your point is well
taken that you have a middle ground which does to some extent
recognize certainly that second life.
Mr. Daly, you can answer and any of the other witnesses can
answer.
Mr. Daly. It is a tiered program. I think that if there
were penalties in her situation, it would be a tiered
situation, but it would not apply. Vehicular homicide is
different than aggravated vehicular homicide. Because it was
aggravated at the time, she had the intent to kill. If she was
drunk, she might have the intent to kill. You can't get a
murder charge if there is no intent.
So in her example of using an officer and throwing her to
the ground not knowing, the officer didn't have any intent to
kill the baby, so he could never be charged with murder, as I
understand it. You were a prosecutor yourself, so isn't that
one of the stipulations of a murder that you have to have
intent, design, and some other items?
Senator DeWine. Sure, under murder, you would. Not on
manslaughter, but on murder you would.
Mr. Daly. Exactly, so I think there are--you know, my point
being that my wife and I wanted to have our baby. It was a
wanted pregnancy, it was a planned pregnancy. We wanted it from
the time that we found out about it. With technology today and
science today, you can find out if you are pregnant when you
are a day or two pregnant because of pregnancy tests that are
over-the-counter.
My wife and I wanted our baby at that moment. It would have
been just as unjust to take my son, Austin, at 4 weeks as it
would have been at 8\1/2\ months to us. It would not have
mattered, and I think that most mothers would agree.
In Ms. Feinstein's case, I ask if you have children--if you
had two children on a school bus and a drunk driver hit the
school bus and it exploded and killed everybody aboard, would
you want one charge and charge the driver with one count of
vehicular homicide or with two? If you were a mother, you would
want two, not one charge, two charges.
I have some pictures that I would like to share with you,
if I can, to the panel.
Senator DeWine. That would be fine. Do you want to pass
those out, Mr. Daly? They will pass them out for you.
Senator, anything else? We have one more panel.
Senator Feinstein. No.
Senator DeWine. I appreciate the three of you testifying. I
will take a look at the pictures, Mr. Daly.
Mr. Daly. I would just like to use the pictures as part of
my testimony.
Senator DeWine. Oh, sure, sure. Do you want to proceed? Go
ahead.
Mr. Daly. I will proceed. Do you have a copy of the
picture?
Senator Feinstein. Yes.
Mr. Daly. OK, let's take a look at it. The glossy photo
that you see--what do you see?
Senator Feinstein. An infant.
Mr. Daly. An infant, OK.
Senator Feinstein. And your wife.
Mr. Daly. Right. If you look at this, I want to tell you
that 99.9 percent of the American population will tell you that
this is a baby. No one would ever tell you that this is a
picture of an unborn person. This is a picture of my son,
Austin, the day that I buried him. I put him in my wife's arms,
in his mother's arms, to be buried. You can't bury a person
until they have been born.
Now, it is tragic that he died in the womb, but this is
proof that the unborn are people. If my wife knew that there
was a possibility, or any woman knew that there would be a
possibility--in Shiwona's case, if she knew that she would be
violated to the extent that she was, she could have gone to the
hospital and said I elect to have my baby be born right now.
She has that right, if she knew that.
If my wife knew that she was going to be in a tragic
accident and it could cause harm or death of her unborn child,
she could have easily given birth to my son and he would be
here right today, only 4\1/2\ years old, to say this is wrong,
I need to be recognized.
I gave you a picture of my wife when she was about 7\1/2\
months along, about 4 weeks prior to that. Not to be a bit
sarcastic, but I see two people, and I really do think that in
situations you don't harm her to the extent where the Federal
crime or the Federal law would come about or any advancement of
laws, but you harm this person to the extent of death or brain
damage or loss of limbs inside the womb. You have to recognize
this as a separate person in the law.
Senator DeWine. I appreciate all of your testimony very
much. I know it has been a difficult morning for you to come in
and testify, but your testimony is very important. We are glad
you made the sacrifice to come in. We extend to the three of
you our deepest sympathy for what you have gone through and
what I know you continue to go through. We thank you very much.
Mr. Daly. Thank you.
Senator DeWine. You have been very helpful.
I would ask now our third panel to come forward. As the
third panel comes forward, I will introduce our panel.
Professor Jerry Bradley is a constitutional law expert who
teaches at the Notre Dame School of Law. He is here to testify
about the constitutionality of the Unborn Victims of Violence
Act.
Lieutenant Colonel Davidson is an active-duty Army Judge
Advocate currently assigned to the 3rd U.S. Army at Fort
McPherson, Georgia. He has served both as a military trial
counsel and as a special U.S. attorney. He also has taught
military law as an adjunct professor at Arizona State
University of Law. He is testifying today as a military law
expert. We thank him, as well, for his contribution to the
panel.
Ron Weich is a partner in the law firm of Zuckerman,
Spaeder, Goldstein, Taylor and Kolker. He has worked as
Judiciary Committee counsel for both Senators Specter and
Kennedy, and has also been an attorney with the U.S. Sentencing
Commission and an assistant district attorney in New York.
Dr. Juley Fulcher is the Public Policy Director for the
National Coalition Against Domestic Violence. She has taught as
a visiting professor at the Georgetown University Law Center
Domestic Violence Clinic. She also has a Ph.D. in psychology
from Johns Hopkins University.
We will start with Professor Bradley, and we have your
written testimony, all of you, which we will make a part of the
record. You may proceed. We will have the clock on at 5
minutes, but we will be a little lenient if you need to go a
little bit beyond that. We appreciate all of you coming in.
Professor Bradley, would you like to start, please?
PANEL CONSISTING OF GERARD V. BRADLEY, PROFESSOR OF LAW,
UNIVERSITY OF NOTRE DAME, SOUTH BEND, IN; RONALD WEICH,
ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR, AND KOLKER, LLP,
WASHINGTON, DC; LT. COL. MICHAEL J. DAVIDSON, U.S. ARMY JUDGE
ADVOCATE, FORT McPHERSON, GA; AND JULEY FULCHER, PUBLIC POLICY
DIRECTOR, NATIONAL COALITION AGAINST DOMESTIC VIOLENCE,
WASHINGTON, DC
STATEMENT OF GERARD V. BRADLEY
Mr. Bradley. Thank you, Senator DeWine. I would like to
focus my remarks today on two points, transferred intent and
the relation of this Act to the constitutional liberty
articulated in Roe v. Wade.
Under the rubric of transferred intent, so far the
discussion today has really been talking about two different
things, and I wish in the first part of my remarks to amplify
the distinction which has more recently been drawn by Senator
DeWine and Representative Graham. Earlier in the day, we seemed
to be talking about, under the rubric of transferred intent,
something quite different, and that is the principle of
criminal law liability of taking one's victim as one finds him
or her.
We mentioned the case of the person with an aneurism who is
pushed to the ground. I wish to simply amplify what was said
earlier to make a particular point about fortuity or luck in
criminal responsibility. Take the same actor with exactly the
same intentions doing exactly the same thing to three different
people. Let's say they are women, and that act is a strong push
on the street.
The first person, steady of foot, may not fall at all.
Maybe no one will call 911. Perhaps there is an ``excuse me,
don't do it again.'' The second person falls and gets right
back up. The third time, exactly the same act, same intention;
the person falls and never gets up. Because of an aneurism, the
person hit the pavement and died. That third act will
constitute some act of homicide, not murder, to be sure, but
some form of reckless negligent homicide, perhaps called
manslaughter.
Now, this surely does introduce an element of chance or
luck into criminal responsibility. To use the language of the
Department of Justice witness, you could call it Russian
roulette. I think it is just, but it is certainly not a novel
concept or a concept novel or first introduced by this
legislation; it is a tried and true principle of the criminal
law.
But speaking of the Department of Justice testimony on the
matter of transferred intent, I don't think that the
Department's testimony, or at least that part of the
Department's testimony on page 3 of their submission concerning
transferred intent is accurate.
The Department says that the felony murder rule is limited
to the subclass of felonies from which a death is reasonably
likely to occur. And then the Department's witness goes on to
suggest that some of the predicate acts in this Act, Unborn
Victims of Violence, are not acts reasonably likely to result
in death. I don't know about that last point, but I think that
the account of transferred intent, and specifically as applied
or found in the felony murder rule, is quite mistaken.
First, I don't think it is true that even according to the
Department's testimony, the felonies which are typically
grounds for felony murder liability are acts that reasonably
likely occur in death. Take burglary, for instance. I don't
have the math and I don't have the numbers, but I don't think
burglary as such is reasonably likely to kill anybody. If you
divided the total number of burglaries reported in the United
States in a given year by the number of people killed in
burglaries, I don't know what that number would be, but my
educated guess is that that number, whatever it is, would be
after a decimal point; that is, to the right of a decimal
point.
And my guess is that the first number to the right of the
decimal would be zero; that is, somewhere less than 1 percent.
I don't think that is a definition of ``reasonably likely.'' So
therefore it is not typically the case that the felony
predicate acts which constitute liability for felony murder are
limited to acts which are likely to cause death.
Second, more theoretically, I don't think it is true that
felony murder liability has anything to do with acts which are
reasonably likely to cause death. I think that the underlying
notion of culpability is different, although it may seem
related.
I think the traditional idea behind felony murder liability
was that anyone who engages in or performs certain bad acts,
felonies, exhibits such an indifference to the interests of
other people, such a hostility to the common good, that it is
right to hold them liable for any consequences that ensue. I
think that is pretty much what Representative Graham was saying
about this Act. If you hurt a pregnant woman, you are liable
for the natural consequences of your act. And I think that
account of this Act is perfectly in harmony with traditional
notions of responsibility as we find them in the felony murder
rule.
Finally, I think the Department's account actually doesn't
work at all. If it were true that felony murder liability were
predicated upon committing acts reasonably likely to kill or
cause death, you wouldn't need a felony murder rule at all
because on that view, a person engages in the act which the
person knows is reasonably likely to kill. Well, that is
manslaughter; that is negligent homicide or reckless homicide.
That is not felony murder. So liability would occur under the
Department's view, but not liability for felony murder. It
would be some kind of criminally negligent homicide.
My second point, Roe v. Wade. Some people object to the Act
because somehow it is inconsistent with Roe v. Wade or its
progeny. The view seems to be that there is no significant
difference between this Act and a simple, flat declaration by
Congress that the unborn are persons. And that, the objection
continues, is inconsistent with Roe.
Well, the objection would be sound if it were the case that
Roe or some other Supreme Court case held that the unborn are
not persons, but the Supreme Court has never so held. The Roe
Court said explicitly that it need not resolve the difficult
question of when life begins. The Court said in Roe the
judiciary is not in a position to speculate as to the answer.
What the Court held in this regard was simply this, that
Texas, and by extension any other government body, including
this Congress, in the Court's words, could not override the
rights of the pregnant woman by adopting an answer to the
question of when life begins. But this Act makes it as clear as
is humanly possible that the rights of pregnant women are
preserved. No woman may be held liable under this Act.
This understanding of Roe was explicitly confirmed by the
Supreme Court in Webster, in 1989. The Supreme Court here,
reversing a holding of the Eighth Circuit, stated of its own
prior decisions, including Roe, that it meant those decisions
meant only that a State could not justify an abortion
regulation otherwise invalid under Roe on the grounds that life
began at conception. To put that in my own terms, so long as
the stated view of public authority that life begins at
conception does not interfere with the freedom, the privacy
right of women in Roe, there is no constitutional difficulty
with a State so stating.
Finally, if I may on Roe, if I may just for 30 seconds
longer, it is important to remember that Roe rests entirely
upon what the Court called a right of privacy. Its holding is
about leaving a pregnant woman unmolested in her privacy to
make a decision concerning her and her unborn child. That is
not the kind of thing that even sounds like it could command
retirement by this Congress from the whole question of when
life begins. So long as that privacy is respected, there is
nothing in Roe to disable the Congress or any other public
authority from stating to the rest of the world, stay away from
this unborn child. That is what this Act does.
Senator DeWine. Professor, thank you very much.
[The prepared statement of Mr. Bradley follows:]
Prepared Statement of Gerard V. Bradley
I am pleased to address the question of the constitutionality of
the Unborn Victims of Violence Act of 1999. [Hereafter, ``Act''.]
The first question about the constitutionality of the Act is not
whether it violates a right protected by the Constitution, including
the right articulated by the Supreme Court in Roe v. Wade. That would
be the first, and only interesting, question where a government of
general jurisdiction, like our state governments, passed a law like
this Act. About half the states have effectively done so, either by
separate enactment or by subsuming harm to the unborn within homicide
protections of murder or manslaughter. Courts throughout the country
have found these laws to be compatible with the right articulated in
Roe.
Our national government possesses extensive but not indefinite
powers, large but not unlimited jurisdiction. Ours is a national
government of specific and enumerated powers. It possesses no general
power to protect persons, including unborn persons, against private
violence. The closest the national government comes to such an
authority is the power conferred by the Fourteenth Amendment's
guarantee to all ``persons'' of the ``equal protection'' of state laws,
including state laws against assault and homicide. Upon an appropriate
finding of fact by Congress that some identifiable class of persons--
say, a racial or ethnic minority, or a particularly vulnerable and
politically powerless group, like the infirm or unborn--is, on a
widespread basis, unequally exposed to private violence by exclusion
from, or lax enforcement of, state homicide laws, direct federal
protection against such discrimination would be constitutional.
The first question is whether there is an enumerated power which
authorizes the protections accorded the unborn by the Act. With the
recent revival of judicially enforceable limits upon Congress's
commerce power--see U.S. v. Lopez--and the narrow reading of Congress's
``enforcement'' power under Section 5 of the Fourteenth Amendment in
City of Boerne v. Flores, one might expect some debate about the
enumerated bases for the Act. Not so. The Act does not engage recent
developments, and is subjected to no doubt of its constitutionality
because of them. For the Act does not extend Congress's reach; no
conduct whatsoever which is presently free of federal regulation will
be regulated if the Act becomes law. No conduct which was lawful is to
be unlawful; no conduct which was legal is to be illegal. The Act is
essentially a punishment enhancement provision.
The Act is perhaps best compared in this regard to the Racketeer
Influenced and Corrupt Organizations Act--RICO. RICO, too, relies upon
(what it expressly calls) ``predicate'' offenses--and then lists them,
as does the Act--in order to set up what, like the Act, is essentially
an enhanced punishment statute. The Act relies upon predicate acts for
its constitutional hook, one might say. If there is any question about
the constitutionality of its reach, then, it is a question of the
constitutionality of the ``predicate'' offense, and not about this Act.
(There is one question to be taken up concerning the
constitutionality of the reach of this Act, where federal authority is
predicated entirely upon the identity of an individual attacked. I
postpone it until later, for reasons that I believe will be more clear
then.)
The Act relies upon established criminal law principles of
transferred intent to affix the enhanced penalty to an already criminal
act. The basic idea is simple: a bad actor with the requisite malice
to, in the language of the bill, ``violate [ ] any of the provisions of
law listed in subsection (b),'' may be charged with an additional
violent offense, without evidence of malice towards or even knowledge
of, the baby in utero where the malefactor in fact causes harm to it.
This established principle is perhaps classically illustrated in felony
murder statutes, where the malice manifested in the commission of a
felony is transferred to what may be even an accidentally caused death.
So, for example, an arsonist who honestly believes the building he
torches is unoccupied is nonetheless indictable for felony murder if,
by chance, someone is inside, and is killed.
Nothing in the Act affects, much less unconstitutionally restricts,
the mother's right to terminate her pregnancy. (The current expression
of the constitutional standard is the ``undue burden'' test of Casey v.
Planned Parenthood.) I can scarcely imagine language more adequate to
the preservation of the right to abortion than that found in section
(c) of the Act. Not only is the mother and all those cooperating with
her in securing an abortion completely immunized against all potential
liability. No woman may be prosecuted under this Act ``with respect to
her unborn child.'' No woman engaged in predicate criminal conduct may
be prosecuted for harm to her child, even where she did not intend to
abort. So, a woman engaged in a hijacking or assault upon a federal
juror or in animal terrorism or in any covered activity and who, as a
result (of flight or some mishap) causes harm or death to her own
fetus, is beyond prosecution under this Act, even though she may be
liable for hijacking or assault upon a juror or animal terrorism. The
Act simply does not inhibit the woman's freedom to choose whether to
hear a child or not.
In fact, one of the state interests which might be said to be
promoted by the Act is precisely the liberty articulated in Roe. A
woman's freedom to carry a baby to term is inhibited or denied by
conduct which results in harm or death to her unborn child.
Someone might object that nevertheless the Act, in its protection
of what the Act calls ``unborn children'' to practically the same
extent as other persons is somehow inconsistent with Roe, or its
progeny. Is there no difference, the objection might hold, between this
Act and a flat Congressional declaration that the unborn are persons?
And is not that declaration inconsistent with Roe, or its progeny.
The answer to this challenge would very likely have to be yes if
the Supreme Court in Roe or some other case held that the unborn are
not persons. But the Court has never so held. The Roe court said that
it did not ``need [to] resolve the difficult question of when life
begins'' (410 U.S. at 159). The Court there said the ``the judiciary .
. . is not in a position to speculate as to the answer.'' (Id.) In no
general or broad way, moreover, did the Court hold that the states or
the Congress operated under a similar disability. All that the Court
held in this regard was that Texas (and thus any other governmental
body, including for argument sake, the Congress) ``could not override
the rights of the pregnant woman'' by adopting an answer to the
question of when life begins, that she could not be deprived of all
freedom of choice by the consequences of legislation regarding the
beginning of life. (See 410 U.S. at 162). But this Act does not affect,
much less ``override,'' the rights of any pregnant woman. The Roe court
opined that the unborn where not to be considered persons in the
``whole'' sense, an opinion consistent with treating the unborn as
persons for some purposes, like inheritance and tort injury, purposes
which the Roe court itself recognized as legitimate.
This understanding of Roe was explicitly confirmed by the Supreme
Court in the 1989 Webster decision. There the state of Missouri had
legislated that the ``life of each human being begins at conception,''
and the unborn children have protectable interests in life, health, and
wellbeing.'' The 8th Circuit Court of Appeals seems to have adopted the
view of Roe states as an ``objection'' here, that the state had, in
light of Roe, ``impermissible[y]'' adopted a ``theory of when life
begins.'' But the Supreme Court reversed this part of the 8th Circuit
holding, stating that its own prior decisions, including Roe, meant
``only that a state could not justify an abortion regulation otherwise
invalid under Roe v. Wade on the ground that it embodied the state's
view.'' (Emphasis added). Since this Act is in no way questionable
under Roe apart from the viewpoint issue, the matter is settled:
Congress is as free as was the state of Missouri to conclude, and to
enforce outside the parameters of Roe, its view that life begins at
conception. If there remains something anomalous about the situation,
it is an anomaly engendered by Roe, and not by this Act.
Now, the postponed question. What if federal jurisdiction is
predicated entirely upon the identity of a particular individual, say
the President or a cabinet officer or foreign dignitary? Is there a
satisfactory basis for enhanced punishment of a violator of, for
example, 18 U.S.C. 1751, one who attacks the President and, who as a
result of that felonious conduct, injures or kills her unborn child?
The answer must start with the recognition that, strictly speaking,
it is only the discharge of federal functions, and not persons just as
such, which grounds federal criminal jurisdiction, even in cases like
our example. Protection of federal officers and jurors and foreign
visitors of a certain rank is justified by virtue of the national
interest in protecting the functions which those persons perform, or
(to put it differently) the offices whose duties they discharge. These
functions are impeded by assaults upon the person of the various
officers, as well as by threats to them and even to their families. So
it would be constitutional to extend federal protection to the entire
families of at least certain federal officers, to insure that nothing
distracted them or caused them to be derelict in their duty. It seems a
reasonable judgment for Congress to make that there is a distinct,
punishable harm to the discharge of federally imposed duties where the
unborn child of a protectable person is harmed or destroyed. This would
seem exactly the reasoning behind 18 U.S.C. 115, which protects members
of the immediate family of a United States official or law enforcement
officer against assault, murder and kidnapping.
Senator DeWine. Mr. Weich.
STATEMENT OF RONALD WEICH
Mr. Weich. Thank you, Mr. Chairman, for inviting me to
testify today. Because I am going to testify in opposition to
the bill, I think that it would be inappropriate for me to
begin my testimony without acknowledging the very powerful
testimony that we heard from the previous panel.
Senator Hatch was very kind at the beginning of the hearing
to congratulate me on the birth of my first child recently, and
so recent events in my life have made me especially aware of
the special bond between parents and children, and made me
especially moved by the testimony that we heard. Nothing that I
am going to say today is intended to diminish the tragedy of
those witnesses or to disrespect them in any respect. I do,
however, think that S. 1673 is not the appropriate legislative
response to those tragedies.
I am testifying today about the criminal law and sentencing
implications of the bill, and I do so based on my knowledge of
the Sentencing Guidelines, my experience as a prosecutor, and
my research of Federal criminal cases in this area. Based on
those experiences, I have concluded that the bill is
unnecessary. Current Federal law is sufficient to convict and
punish criminals who harm fetuses. The bill adds nothing
meaningful to the charging arsenal of prosecutors or to the
sentencing options available to judges in these cases.
Let me break that down into two points; first of all, the
criminal liability of people who harm fetuses under Federal
law, and, second, the sentencing policy currently in Federal
law as it pertains to pregnant women.
Federal criminal law has been held to cover the murder of a
fetus. I cite in my written testimony United States v. Spencer,
a case arising from an Indian reservation. And as you know,
Senator, most violent crime is prosecuted in State courts. The
few Federal cases that there are largely take place on Federal
enclaves, such as Indian reservations or military bases.
In Spencer, the defendant assaulted and stabbed a pregnant
woman. The woman was successfully treated for her life-
threatening injuries, but her unborn fetus was born alive and
then died. And in that case, the Ninth Circuit upheld his
conviction for murder under 18 U.S.C. 1111, the Federal murder
statute. I am aware of no contrary holding. Section 1111, the
Federal murder statute, has been held to cover the murder of an
unborn fetus.
The other case that I located--and I think my research was
pretty complete in this regard--the only other Federal case in
which this issue has arisen is the Robbins case which
Lieutenant Colonel Davidson is going to talk about. I won't
preempt his testimony, except to say that in that case Airman
Robbins was convicted of the crime of killing his unborn child
through domestic abuse. His conviction has recently been
upheld, and he was prosecuted under the Assimilative Crimes
Act.
Senator DeWine, in your statement introducing this bill you
seemed to complain about the fact that it was necessary to
bootstrap Ohio State law into Federal court in order to reach
Airman Robbins' conduct. That bootstrapping is the operation of
the Assimilative Crimes Act. When Congress passed that law over
a century ago, in 1898, it intended to plug the gaps in Federal
law by assimilating State law when there is a violation of
State law in Federal territory, in that case a military base.
There is nothing insufficient about that, and indeed the
Robbins case shows that the Assimilative Crimes Act can reach
this conduct.
Senator DeWine. In those States that have the law.
Mr. Weich. That is correct.
Senator DeWine. I am familiar with assimilative law
because--well, I am. I dealt with it a lot.
Mr. Weich. Of course, from your previous experience.
I say in my written testimony that I believe that State law
is sufficient. This, of course, is not a new concept, the
question of fetal injury. Every single State has addressed the
issue of criminal liability for fetal injury. Not all of them
have passed statutes; many of them have. Some of them have
simply developed case law that makes the murder statute in
those States applicable to fetal murder. Many States have
determined that separate criminal liability should not apply
when the crime injures a non-viable fetus. And by enacting this
law, Congress would be, in effect, overruling those judgments
of those States.
As to sentencing policy, I cite in my testimony a number of
cases in which the Sentencing Guidelines have been held to
provide for enhanced punishment for people who injure fetuses.
And, of course, that does assume that the individual is
prosecuted for the assault on the woman, and that is inherently
the case. You cannot injure a fetus without injuring the woman.
So providing a sentencing enhancement ensures that the
individual is going to be punished for his heinous conduct.
It is my conclusion that the bill is unnecessary, but I go
further and suggest that it is detrimental. It is not only
unnecessary, but it is a counterproductive addition to the
criminal code.
First of all, I argue, Senator, that the bill is poorly
drafted in that it doesn't make clear whether the individual
needs to be convicted of the predicate offense before being
convicted of this offense. The wording of the statute is
unclear.
Second, as other witnesses have said, I find the statute to
be over-broad as to its definition of bodily injury, its reach
to the non-viable fetus, and to the fact that there is no
intent requirement.
Finally, I do unfortunately conclude that the bill would
have the effect of undermining the central holding in Roe v.
Wade that a first-trimester fetus, indeed a days-old embryo, is
entitled to separate legal status in Federal law. The
definition of ``unborn child'' in this bill says ``a member of
the species Homo sapiens at any stage of development.'' That is
2 days, and that has profound implications for reproductive
freedom in this country.
I don't disagree with Professor Bradley, or at least I
don't address his question as to whether the bill is itself
unconstitutional under Roe. I simply suggest that this bill is
part of an effort by the anti-abortion movement--casting, of
course, no aspersions on your intentions, but I do feel that
this is part of an ongoing battle to humanize fetuses,
marginalize women, and demonize abortion providers, and that is
a long-term effort to overturn Roe.
Senator DeWine. What do you really think? [Laughter.]
[The prepared statement of Mr. Weich follows:]
Prepared Statement of Ronald Weich
Mr. Chairman, members of the Committee: My name is Ronald Weich and
I am a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor
& Kolker, L.L.P. I am pleased to appear before you today to discuss the
criminal law and sentencing implications of S. 1673, the ``Unborn
Victims of Violence Act.''
I bring several qualifications to this task. From 1983 to 1987 I
worked as an Assistant District Attorney in New York, where I
prosecuted a wide array of criminal cases. Thereafter I served as
Special Counsel to the United States Sentencing Commission and
participated in drafting amendments to the federal sentencing
guidelines. I then served on the staff of two Senate committees,
including this Committee, where I assisted first Senator Specter and
then Senator Kennedy in the development of federal crime and sentencing
policy. I am now in private practice, but I continue to serve on the
advisory board of the Federal Sentencing Reporter, a scholarly journal
in which I have frequently published articles on sentencing law and
policy. I am also a member of the Criminal Justice Council of the
American Bar Association.*
---------------------------------------------------------------------------
* I wish to make clear that I am not testifying on behalf of the
American Bar Association or any other entity with which I am
affiliated. Nor am I testifying on behalf of any of my law or lobbying
clients. For example, it is a matter of public record that I have
represented Planned Parenthood Federation of America (PPFA) with
respect to pharmaceutical pricing issues, but I do not represent PPFA
at this hearing. The views I express herein are strictly my own.
---------------------------------------------------------------------------
After reviewing S. 1673 in light of my experience in the criminal
justice system, my knowledge of the federal sentencing guidelines and
an examination of relevant case law, I reach one basic conclusion: this
bill is unnecessary. Current federal law provides ample authority for
the punishment of criminals who hurt fetuses. S. 1673 adds nothing
meaningful to the charging arsenal of federal prosecutors or the
sentencing options available to federal judges.
Because the bill is unnecessary from a criminal law perspective, I
suspect that its purpose, instead, is to score rhetorical points in the
ongoing struggle over abortion rights. For reasons I will explain, I
strongly object to the use of the federal criminal code as a
battlefield in the abortion wars.
I will first describe why the bill is unnecessary in light of
current federal law and then explain why I believe it is an unwise
addition to federal law.
i. s. 1673 is unnecessary
Current federal law already provides sufficient authority to punish
the conduct that S. 1673 purports to punish.
A. Federal criminal liability
At the outset it should be understood that very few violent crimes
are prosecuted in the federal courts. Most street level violent crimes
are prosecuted under state law by state prosecutors in state courts.
Under our constitutional system, federal criminal jurisdiction only
exists if the crime implicates federal civil rights or interstate
commerce--which few violent crimes do--or if the crime occurs on a
federal enclave such as a federal office building, a military base or
an Indian reservation. Thus there are only a handful of federal murder
and assault prosecutions each year, and most of those involve Native
Americans or soldiers.
S. 1673 targets relatively rare conduct to begin with, namely
criminal assault on a fetus. And in the federal context, that rare
conduct is even more unusual. I researched federal case law and found
only two reported cases in recent years in which the victim of the
offense of conviction was a fetus. In one case, US v. Spencer, 839 F2d
1341 (9th Cir. 1988), the Native American defendant assaulted a
pregnant woman on an Indian reservation, kicking and stabbing her in
the abdomen. The woman was successfully treated for life-threatening
injuries, but her fetus was born alive and then died. The Ninth Circuit
upheld the defendant's conviction under the federal murder statute, 18
U.S.C. Sec. 1111. In the second case, United States v. Robbins, 52 M.J.
159 (1999), a soldier assaulted his wife and thereby terminated her
pregnancy. The defendant was prosecuted in a military court under the
Assimilative Crimes Act and was convicted of manslaughter. His
conviction was upheld by the Court of Appeals for the Armed Forces late
last year.
Thus, even without the help of S. 1673, these two federal
defendants were successfully prosecuted for killing fetuses. Each of
the two cases is important for a different reason. Spencer holds that
the federal murder statute already reaches the killing of a fetus.
Robbins stands for the proposition that even where federal law does not
reach the killing of a fetus, the Assimilative Crimes Act may be
employed by federal prosecutors (in that case military prosecutors) to
ensure federal criminal liability. Either way, a defendant who kills a
fetus gets punished.
I am aware of no contrary holdings. I am aware of no reported or
unreported case in which a defendant who has caused serious injury to a
fetus has escaped criminal liability because of a gap in federal law.
In the rare cases when fetal assaults occurs in a federal enclave, it
is very clear that criminal liability may be imposed under current
federal law.
The Assimilative Crimes Act, 18 U.S.C. Sec. 13, is especially
significant in this regard. When he introduced S. 1673, Senator DeWine
complained that in the Robbins case, military prosecutors had to
``bootstrap'' Ohio criminal law in order to hold the defendant liable
in federal court. There is nothing wrong or unusual about that
``bootstrapping''--that's the way Congress intended the Assimilative
Crimes Act to work. Congress passed that law to ensure that defendants
who commit crimes on a military base or an Indian reservation are held
responsible whether or not federal law reaches the conduct. Congress
knew that state criminal law is often more developed than federal
criminal law and so it adopted state criminal law through this process
of assimilation.
Reliance on the Assimilative Crimes Act raises the question of
whether state law is sufficient. It is. Every state has, either through
statute or common law, addressed the question of criminal liability for
fetal injury. These state laws and cases are comprehensively collected
in an Annotation entitled Homicide Based on Killing of Unborn Child, 64
A.L.R. 5th 671 (1998). As this A.L.R. Annotation demonstrates, the
issue of criminal liability for fetal injury is one that Anglo-American
law long ago addressed and resolved in a common sense way.
Of course not all states resolve the issue in the same way. Several
states, such as Georgia and Illinois, have enacted feticide statutes,
but in other states well-established case law extends the state's
murder statute to cover the situation where an assault on a pregnant
woman causes the death of a fetus. Many states adhere to the common law
doctrine that the fetus must have been viable in order to create
separate criminal liability for a fetal assault, and some states
require that the fetal assault cause the fetus to be born alive and
then die. These common law rules, developed over the course of
centuries and incorporated into federal law through the Assimilative
Crime Act, ensure appropriate criminal liability for defendants who
assault fetuses in federal enclaves.
B. Federal sentencing law
Analytically separate from the question of criminal liability is
the question of punishment. Here again, current federal law is
sufficient. There is no dispute that causing harm to a fetus during the
commission of a federal felony should generally result in enhanced
punishment, and courts have uniformly held that such enhancements are
available under the current sentencing guidelines.
For example, in both U.S. v. Peoples, 1997 U.S. App. LEXIS 27067
(9th Cir. 1997) and U.S. v. Winzer, 1998 U.S. App. LEXIS 29640 (9th
Cir. 1998), the court held that assaulting a pregnant women during a
bank robbery could lead to a two level enhancement (approximately a 25%
increase) under Sec. 2B1.1(b)(3)(A) of the Guidelines relating to
physical injury. In U.S. v. James, 139 F.3d 709 (9th Cir. 1998), the
court held that a pregnant woman may be treated as a ``vulnerable
victim'' under Sec. 3A1.1 of the Guidelines, again leading to a two
level sentencing enhancement for the defendant. In United States v.
Manuel, 1993 U.S. App. LEXIS 14946 (9th Cir. 1993), the court held that
the defendant's prior conviction for assaulting his pregnant wife
warranted an upward departure from the applicable guideline range for
his subsequent assault conviction. And in United States v. Thomas, 43
M.J. 550 (US Navy-Marine Corps Ct. of Crim. App. 1995), the military
justice system treated the murder victim's pregnancy as an aggravating
factor to be considered during the capital sentencing phase of a trial.
It is plainly unnecessary to create a new federal criminal offense
for injuring a fetus in the course of a federal crime when existing
federal sentencing policy already authorizes stiffer sentences for
defendants who cause that harm.
In sum, S. 1673 is unnecessary because federal case law and the
federal sentencing guidelines, building on well-established state
common law principles, already authorize serious punishment for the
harm that the bill seeks to address.
ii. s. 1673 is deterimental to the criminal justice system
To say that S. 1673 is unnecessary does not end the inquiry. As
members of the Judiciary Committee well know, the federal criminal code
is characterized by unfortunate redundancy, and one more criminal law
prohibiting what is elsewhere prohibited would barely add to the
thicket. But for three reasons, S. 1673 would not only constitute an
unnecessary addition to the Code, it would also be an undesirable
addition.
First, the bill has been drafted in a structurally unsound manner
and will lead to considerable confusion and litigation. To be convicted
under 18 U.S.C. Sec. 1841, the new criminal offense created by S. 1673,
a defendant must have ``engage[d] in conduct that violates'' one of the
existing federal crimes enumerated in Sec. 1841 (b). But must the
defendant be convicted of one of those other offenses before he may be
convicted of the separate offense under Sec. 1841? I think that is a
sound reading of the statutory text, but the language is unclear. There
is already considerable controversy and resource-draining litigation in
the federal courts over whether various title 18 provisions constitute
separate offenses requiring proof beyond a reasonable doubt or
sentencing enhancements requiring only proof by a preponderance of
evidence, see, e.g., Jones v. United States, 119 S. Ct. 1215 (1999). S.
1673 would add to this confusion if there were ever a prosecution under
the new criminal provision it establishes.
This problem could be addressed if, instead of creating a new
criminal offense, S. 1673 merely directed the Sentencing Commission to
either establish a new sentencing enhancement when the victim of the
crime is a pregnant woman, or make clear that a pregnant woman may be
considered a ``vulnerable victim'' under existing Sec. 3A1.1 of the
Sentencing Guidelines. As demonstrated above, the generic provision of
the guidelines already accomplish this result. But at least a
sentencing enhancement bill would not foster confusion and litigation.
Second, S. 1673 is overbroad. To begin with, it incorporated by
reference an unduly broad definition of ``bodily injury'' from 18
U.S.C. Sec. 1365. Whereas the common law rule applied to termination of
the pregnancy, S. 1673 would make it a violation of federal law to
cause ``physical pain'' to the fetus or ``any other injury to the
[fetus], no matter how temporary.'' 18 U.S.C. Sec. 1365 (g)(4). That
definition may make sense in the consumer safety context from which it
derives, but it is bizarre and extreme in the prenatal context of S.
1673. Further, S. 1673 applies to all fetuses, not merely those that
are viable, and applies to unintentional as well as intentional
conduct. The common law rule, evolved over centuries of Anglo-American
jurisprudence, is that an assault causing the death of a viable (or, in
the archaic phrase, ``quickened'') fetus gives rise to criminal
liability. In contract, the rule in S. 1673 is that an assault
unintentionally causing ``pain'' to a weeks-old fetus gives rise to
criminal liability.
Finally, the bill is objectionable because it is a transparently
rhetorical exercise in the perennial effort to undermine Roe v. Wade,
410 U.S. 113 (1973). since S. 1673 adds nothing meaningful to
substantive federal criminal law, its purpose is purely symbolic: to
bestow statutory personhood on fetuses, even those that are not viable.
that much is clear from section 1841 (d)(1) of the bill which defines
``child in utero'' to mean ``a member of the species homo sapiens, at
any stage of development, who is carried in the womb.'' (emphasis
added). Members of Congress who vote for this bill are voting to
repudiate the central holding of Roe by treating a first trimester
fetus as an independent human being for purposes of federal law.
It is no accident that the bill says nothing about injuries to
pregnant women; instead the newly created title is styled ``Protection
of Unborn Children.'' An assault on a fetus cannot occur without an
assault on the pregnant woman, but the bill is deliberately framed in
terms that ignore the woman. The bill does not create a new federal
offense for injuring the woman herself, only for injuring the fetus she
carries.
To be sure, there is an explicit exception to the criminal
penalties in the bill for ``conduct relating to an abortion'' but make
no mistake--this bill is just one more step in the anti-abortion
movement's methodical, rhetorical strategy to humanize fetuses,
marginalize women and demonize abortion providers. The extreme
overbreadth of S. 1673 flows directly from that strategy.
The validity of the constitutional protections established in Roe
v. Wade exceeds the scope of this testimony and is beyond my field of
expertise. But as someone who cares about the integrity of the criminal
law, I hate to see a skirmish in the abortion wars flare up
unnecessarily in the federal criminal code. The criminal justice system
is built on ancient principles such a proportionality of punishment and
the requirement that a wrongdoer have acted with intent to cause harm
(mens rea). S. 1673 ignores these principles and thereby corrodes
respect for the criminal law as a whole.
Because I believe S. 1673 to be both unnecessary and unwise, I urge
the Committee to reject it.
Senator DeWine. Mr. Davidson.
STATEMENT OF LT. COL. MICHAEL J. DAVIDSON
Lieutenant Colonel Davidson. Sir, first of all, I thank you
very much for letting me come today. And I have to preface my
remarks by saying that these are all my personal opinions and
don't reflect any position of the Department of the Army or any
other Federal agency.
I personally support this bill for a couple of reasons. I
am going to focus primarily on military law which is what I am
most familiar with. First of all, the Assimilative Crimes Act.
The Robbins case was the example from your jurisdiction of an
airman who beat his wife with such severity that she lost their
child.
The whole UCMJ was set up to provide a uniform system of
law to our service members. The way it works with the fetal
homicide situation is that doesn't exist. Soldiers don't pick
where they are assigned. If Airman Robbins had been assigned to
Germany, even if both he and his wife were Ohio citizens, the
fetal crime part of his misconduct would never have been
prosecuted in a military court martial because there is no UCMJ
provision for it and there is nothing to assimilate overseas.
Senator DeWine. Or he would have been in any other State
that didn't have that, or overseas.
Lieutenant Colonel Davidson. Yes, sir. About half the
States that have no fetal homicide statutes, a member of the
service could not be prosecuted for fetal homicide.
The example I gave in my written testimony of how absurd it
can get is Fort Campbell, KY. Fort Campbell, KY, actually sits
in Kentucky and Tennessee. If a soldier on the Tennessee side
assaults a woman and kills the fetus, he can be prosecuted in
military court martial for fetal homicide by assimilating
Tennessee law. But a few yards into the Kentucky side, the same
misconduct by the same parties can't be reached by the military
prosecutor. In terms of uniformity, I think this bill would
provide a uniform fetal homicide body of law for the military.
To touch base on the transferred intent part of this,
military law generally follows transferred intent as it is
developed in common law. In military law, there is no
requirement that you know the existence of a second victim, and
there is no release from your criminal responsibility because
the victim is particularly susceptible to harm, in the instance
of a pregnant woman. We follow what I guess is called the
eggshell, or something like that. You take your victim as you
find them. This bill is consistent with existing military law
on transferred intent.
One issue that I wanted to address a little bit that I
didn't address in my written testimony is the sentencing issue.
Unlike the Federal system, we have no sentencing guidelines. So
in terms of our existing sentencing scheme, I think this bill
would do a lot to address fetal homicide, and the hypothetical
I would give you is this. A soldier assaults a woman and kills
the fetus. He is charged with some form of assault under
article 128.
We have bifurcated trials. In the case-in-chief, the
prosecutor wants to bring in the fact that the woman was
pregnant. As the situation, I believe, happened to one of our
victims, the judge probably would not let that in in the case-
in-chief because it is not relevant to one of the elements the
prosecution has to prove. It is probably more prejudicial than
probative, at least on the guilt part of it. So in that part of
it, it would not come in.
And then we would go to the sentencing part, and at that
point the prosecutor would say, well, this is directly related
to the offense; it is an aggravating circumstance, and under
Court Martial Rule 1001 this should be admitted. The defense
counsel will then say, again, it is more prejudicial than
probative, it is uncharged misconduct--we differ from the
Federal Sentencing Guidelines in that respect--and it is light
years above what my client either was found guilty of or pled
guilty to, the assault charge. Here, you are talking
essentially about a second victim, a homicide, even if we are
not going to call it that, and it is infinitely more
prejudicial than probative and it will inflame the jury.
And I think a reasonable judge in those circumstances, in a
military courtroom, might exclude the evidence that the woman
was pregnant. And in that case and under that scenario, the
fact that the woman lost her fetus as a result of the assault
would never enter the courtroom at all. It would not be a
sentencing enhancement. It would not be a consideration for the
sentencing body. It would simply not be a factor at all in the
court martial.
But by making it a separate crime, and presumably it would
be charged as such, obviously the sentencing body would have to
know of this and it would be a consideration for the sentencing
body when it determines the appropriate sentence for this
person. So our sentencing scheme is radically different from
the Federal scheme, and while this bill may or may not have an
impact on the Federal sentencing because of vulnerable victims
and stuff like that, it certainly would have an impact on the
way we sentence and it would require the sentencing body to
know about the fetal homicide part of the misconduct.
I just want to touch on Senator Feinstein's reference to a
sentencing enhancement. There are some provisions where there
is a sentencing enhancement for the status of the victim; for
example, assault. Regular assault and battery is punished by 6
months in the military. If the victim is under 16, it is
punished by 2 years. So to that extent, there would be some
enhancement that you could put into something like article 28.
But for our premeditated murder statute, we break it down
into four things, but basically all four of them are punishable
by life and two of the four are punishable by death if it is
capital. In instances where they are non-capital, there is no
sentencing enhancement that you could give to that statute. He
either gets life or he gets something less than life, and it is
all up to the sentencing authority. There is no sentencing
enhancement that could be built into some of our statutory
punitive articles, such as the premeditated murder statute.
So, in sum, I think this bill would go a long way to
improving military justice which, as I pointed out earlier, is
a lot different from the Federal system.
Thank you very much.
Senator DeWine. Thank you very much.
[The prepared statement of Lt. Col. Davidson follows:]
Prepared Statement of Lt. Col. Michael J. Davidson
I have been asked to comment on the Unborn Victims of Violence Act
of 1999 (the Act), S. 1673, particularly as it affects military law. I
am an active duty Army Judge Advocate currently assigned to the Third
U.S. Army, Fort McPherson, Georgia and have previously served as a both
a military trial counsel (prosecutor) and as a Special Assistant U.S.
Attorney. I've taught military law as an adjunct professor at Arizona
State University School of Law. I possess a B.S. from the U.S. Military
Academy, a J.D. from the College of William & Mary, a LL.M. (Military
Law) from the Judge Advocate General's School and a LL.M. (Federal
Procurement Law) from George Washington University. Earlier I engaged
in research in this area while a LL.M. student at George Washington
University. The results of this research effort were published as an
article entitled ``Fetal Crime And Its Cognizability As A Criminal
Offense Under Military Law,'' in the July 1998 edition of The Army
Lawyer.
Any opinions that I may render are my own personal opinions and do
not reflect the position of the Department of the Army or any other
federal agency.
With respect to the proposed legislation I would like to make the
following points supportive of the Act. 1. The current ``born alive''
rule, followed by both military and federal courts, is a legal
anachronism whose rationale for existence is no longer valid. 2. The
Assimilative Crimes Act (ACA), which provides the military a vehicle
for prosecuting feticide by using state law, results in an inequitable
application of military law to members of the armed forces. This Act
will serve to correct that inequity. 3. This legislation does not
infringe on a woman's right to choose. 4. The legal principle of
transferred intent, upon which this Act relies, is well-established in
military law.
1. the born alive rule
Both military and federal courts follow the ``born alive'' rule,
which means that before a person can be prosecuted for misconduct that
results in the fetus' death, the fetus had to have survived for at
least a short period of time outside the womb. Historically, the
definition of what constituted being born alive varied by jurisdiction.
For example some states required that the baby survive for a period of
time after the umbilical cord was severed. The military rejected that
standard in 1954 in United States v. Gibson, a case involving an Air
Force nurse who strangled her baby shortly after birth. The evidence at
trial was unclear as to whether the accused had strangled her child
before or after she severed the umbilical cord. The current born alive
rule is based on English common law and is believed to have existed
since at least 1348. Despite the longevity of this rule the military
still struggles to fully develop a definition of that term. See United
States v. Nelson, 52 M.J. 516 (N.M. Ct. Crim. App. 1999) (review was
granted on February 2, 2000).
The rationale for the born alive rule was rooted in the difficulty
of proving the cause of a fetus' death, which was a byproduct of the
primitive level of medical knowledge in this area. Indeed, until the
late 1800's a physician could not conclusively establish the existence
of a pregnancy until the fetus moved in the womb (the quickening which
usually occurred around four months) and the fetus' health could not be
determined until birth.
Continued reliance on the born alive rule is problematic for two
reasons. First, modern medicine has advanced to such a point that the
basis for the rule simply no longer exists. Presently, medical
technology can diagnose the existence of a fetus early in the
pregnancy, certainly much earlier than the point of quickening.
Additionally, the fetus can be observed through the use of ultrasound
and fetoscopy; it can be operated on while still in the womb; and
physicians normally can determine the cause of a fetus' death.
The second reason that continued reliance on this rule of law
should be disfavored is that in practice it rewards the successful
attacker. An accused (military equivalent of a defendant) who beats a
pregnant woman cannot be prosecuted for killing the fetus if it dies
before it is born. The death of the fetus goes unpunished. In contrast,
the accused who beats the pregnant victim less severely, permitting the
fetus to be born alive, may be prosecuted for homicide under existing
military and federal homicide statutes if the child dies as a result of
the beating. In short, the born alive rule serves to reward the more
culpable actor for his heightened state of misconduct.
2. assimilative crimes act
The Assimilative Crimes Act (ACA), 18 U.S.C. 13, permits
prosecution of a member of the armed forces under Article 134, clause 3
(crimes and offenses not capital), UCMJ, for violating a state law
within an area of exclusive or concurrent federal jurisdiction (e.g. a
military base). The ACA permits use of the penal law of the local state
to fill in gaps in military/federal criminal law. Article 134 may not
be used to assimilate state law if another provision of the UCMJ or
other federal criminal statute has already defined an offense for that
specific misconduct. Fetal homicide is not specifically made punishable
under any punitive article of the UCMJ or provision of the federal
criminal code.
In 1996, for the first time, the military relied on the ACA to
assimilate a state feticide law in order to court-martial a member of
the armed forces. In United States v. Robbins, 52 M.J. 159 (1999), an
airman stationed at Wright-Patterson Air Force Base, Ohio, wrapped his
fist in a tee shirt and severely beat his wife, who was 34 weeks
pregnant. The beating occurred in government housing on base, an area
of exclusive federal jurisdiction. This was not the first such
incidence of spousal abuse. In addition to breaking his wife's nose and
giving her a black eye (her eye was swollen shut), Robbins punched her
with such force that he ``ruptured [his wife's] uterus and tore the
placenta from the uterine wall. The unborn baby, who was otherwise
healthy, was expelled into the mother's abdominal cavity and died
before birth.'' Id. at 160.
Eventually Robbins was charged under the UCMJ with two
specifications of assault in violation of Article 128; one count of
maiming, in violation of Article 124 because Robbins had ruptured his
wife's uterus; and with murder and manslaughter under Article 134
through the assimilation of Ohio law. The case was referred to a
general court-martial, which is the military's highest form of court-
martial. Pursuant to a pretrial agreement (plea bargain), Robbins pled
guilty to assault and battery on Mrs. Robbins and intentional
affliction of grievous bodily harm on her, in violation of Article 128;
and involuntary manslaughter by terminating his wife's pregnancy, in
violation of section 2303.04 of the Ohio Revised Code, as assimilated
into Article 134, by the Assimilative Crimes Act. The military judge
sentenced Robbins to a dishonorable discharge, confinement for eight
years, and reduction in rank to the lowest enlisted grade. On appeal,
the conviction, and the assimilation of Ohio's fetal homicide law, was
reviewed and upheld by both the Air Force Court of Criminal Appeals and
the U.S. Court of Appeals for the Armed Forces.
If enacted, this legislation will have the positive affect of
providing a uniform application of feticide law to members of the armed
forces. Under existing law, whether or not members of the armed forces
may be prosecuted for feticide will depend on where they are stationed.
If the military base is located in a state that has a fetal homicide
statute (e.g. Ohio), military prosecutors may rely on that law to
proceed against the servicemember at court-martial. If that particular
state has no such law, or if the servicemember is stationed overseas,
no feticide charge will result. Further, even among states with fetal
homicide laws, the standard for conviction varies. Some states make
feticide a crime if the fetus is viable, others if the fetus is
``quick,'' and still others protect the fetus at the point of
fertilization. Even if all states in which military bases are located
were to adopt feticide laws, the punishment used by the military would
vary by state. Under the ACA, unless the state law is closely related
to a punitive article of the UCMJ, the military also assimilates
portions of the state's punishment scheme.
To give an example of how absurd this inequitable situation can
become I would point to Fort Campbell. This Army base is located in
both Kentucky and Tennessee. Tennessee has feticide statues, but
Kentucky does not. Were a soldier to assault a pregnant woman and kill
her fetus on the Tennessee side of Fort Campbell he could be prosecuted
at a military court-martial, under Article 134, by assimilating
Tennessee law. However, if the same misconduct occurred only yards away
on the Kentucky side of the base, the military could not prosecute him
for committing the identical misconduct against the fetus.
3. a women's right to choose
The Act does not infringe on a women's right to choose to terminate
the pregnancy and does not conflict with Roe v. Wade. This proposed
legislation virtually immunizes the mother from prosecution for any
harm to the fetus and likewise protects those who are involved with the
consensual termination of the pregnancy. The Supreme Court in Roe
recognized the state's legitimate interest ``in protecting potential
life'' (410 U.S. at 154). This Act not only recognizes the governmental
right to protect the fetus from harm--in this case imposed by a third
party--but also serves to protect the woman's right to choose to bring
her wanted fetus to term.
A number of state courts have examined their fetal homicide laws in
light of Roe and the results of those examinations support the legality
of this Act. In People v. State, 872 P.2d 591 (Cal. 1994), the Supreme
Court of California opined that the Supreme Court's opinion in Roe v.
Wade only precluded a state from protecting a nonviable fetus in
instances where the interests of the fetus and mother conflict. As
noted above, this Act only contemplates applicability when the
interests of the government and mother coincide.
Similarly, in State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990),
the Supreme Court of Minnesota examined its unborn child homicide law
in the wake of Roe and its progeny. The court determined that the state
possessed a legitimate interest in protecting both the ``potentiality
of life'' at any stage of development and in protecting the woman's
right to determine the ultimate outcome of her pregnancy. ``The
interest of a criminal assailant in terminating a woman's pregnancy
does not outweigh the woman's right to continue the pregnancy.'' Id. at
322.
4. transferred intent
The Act provides that the military accused who engages in certain
misconduct against an expectant mother, which results in death or
injury to the unborn child, may also be separately prosecuted for the
death or injury to the fetus to the same extent as if the death or
injury had occurred to the expectant mother. This provision of the Act
is based on the legal principle of ``transferred intent,'' which is
well-established in military law.
The current version of the Manual for Courts-Martial, Part IV,
para. 43(c)(2)(b), which discusses Article 118, provides: ``When an
accused with a premeditated design attempted to unlawfully kill a
certain person, but, by mistake or inadvertence, killed another person,
the accused is still criminally responsible for a premeditated murder,
because the premeditated design to kill is transferred from the
intended victim to the actual victim.'' Further, in United States v.
Willis, 46 M.J. 258 (1997) the U.S. Court of Appeals for the Armed
Forces took the position that ``where there is . . . an intent to kill
and an act designed to bring about the desired killing, the defendant
is responsible for all natural and probable consequences of the act,
regardless of the intended victim.'' The military accused may be
convicted of premeditated murder of the second, unintended victim, even
in the ``absence of any ill-will, animosity, or intent to kill [the
second victim].'' United States v. Black, 11 C.M.R. 57, 59 (C.M.A.
1953).
Under the Act military prosecutors would not be required to prove
that the accused knew the victim-mother was pregnant at the time of the
accused's misconduct. This provision of the proposed legislation is
consistent with existing law. First, the doctrine of transferred intent
does not require knowledge that the second victim was present.
Additionally, military law has long followed the related eggshell or
thin skull rule; that is, you take your victims as you find them. See
United States v. Eddy, 26 C.M.R. 718, 725 (A.B.R. 1958).
A state court addressed this same issue in the infanticide context.
In People v. Hall, 557 N.Y.S.2d 879 (Sup. Ct. App. Div. 1990), the
defendant fired two shots at his intended victim, but missed and
instead struck a pregnant passerby, Brigette Garrett, who was 28 to 32
weeks pregnant and walking to a nearby restaurant. The fetus was
delivered by an emergency caesarean section, but died 36 hours later.
In upholding the defendant's manslaughter conviction the court noted:
``It is axiomatic that a perpetrator of illegal conduct takes his
victim as he finds them, so it is entirely irrelevant whether the
defendant actually knew or should have known that a pregnant woman was
in the vicinity and that her fetus could be wounded as a result of his
actions.'' Id. at 885.
In State v. Merrill, 450 N.W.2d 318 (Minn. 1990), the defendant
challenged his conviction for murdering the unborn child of a woman he
had also been convicted of murdering, arguing that ``it was unfair to
impose on a murderer of a woman an additional penalty for murder of her
unborn child when neither the assailant nor the pregnant woman may have
been aware of the pregnancy.'' Id. at 323. The unborn child in question
was a 27 to 28 day embryo. Rejecting that argument, the Minnesota
Supreme Court found that the doctrine of transferred intent applied.
Further, the court pointed out: ``The possibility that a female
homicide victim of childbearing age may be pregnant is a possibility
that an assaulter may not safely exclude.'' Id.
conclusion
In my personal opinion, I believe this legislation would have a
positive impact on military law by providing a uniform feticide law and
by eliminating reliance on the out-dated born alive rule. Further, the
Act does not interfere with a woman's right to choose, but instead
reinforces both that right and the government's interest in protecting
the potentiality of life. Finally, the Act's reliance on the principle
of transferred intent is consistent with existing military law.''
Senator DeWine. Ms. Fulcher.
STATEMENT OF JULEY FULCHER
Ms. Fulcher. Good afternoon, Mr. Chairman.
Senator DeWine. It is afternoon, isn't it?
Ms. Fulcher. It is.
Senator DeWine. Thank you.
Ms. Fulcher. As the Public Policy Director of the National
Coalition Against Domestic Violence, I would like to thank you
for the opportunity to address the concerns of battered women
who experience violence during their pregnancies.
The National Coalition Against Domestic Violence is a
nationwide network of approximately 2,000 domestic violence
shelters, programs, service providers, and individual members
who work on behalf of battered women and their children. And my
role here today is to advocate for increased safety of battered
women, which in turn will lead to healthier pregnancies and
births. Unfortunately, the Unborn Victims of Violence Act does
not provide the protection that battered women need to obtain
safety.
Historically, one of the major obstacles to eradicating
domestic violence from the lives of women has been the
unwillingness of the legal system to treat domestic violence as
a serious crime. The hard work of many dedicated domestic
violence advocates on the front lines has slowly brought about
a change in the way we treat the crime of domestic violence.
States began toughening their laws on domestic violence and
enforcing the existing laws that would address the issue in the
late 1980's, and in 1994, as you are well aware, Congress gave
an important boost to this trend by passing the Violence
Against Women Act and committing to a Federal investment in
prosecuting the crimes and protecting battered women and their
children. As a result, we have seen increased criminal
prosecutions of domestic violence nationwide both at the
Federal and the State level. And it is important that we
continue this trend and recognize domestic violence threats,
assaults, and murders as the serious crimes that they are.
According to a 1994 report from the Centers for Disease
Control and Prevention, at least 6 percent of all pregnant
women in this country are battered by the men in their lives.
As an attorney representing victims of domestic violence, I
have seen the effects of the violence firsthand. In my written
testimony, I described a client of mine from several years ago
who lost a pregnancy due to domestic violence. There was a
history of domestic violence in her case and she had sought
assistance of the legal system and service support system
several times.
While she was 8 months pregnant, her batterer lifted her up
in his arms, held her body horizontal to the ground, and then
slammed her body to the floor, causing her to miscarry. And no
matter how many times I hear stories like this one, stories
like the ones that we heard on the panel before, it never
ceases to sicken me what is happening.
I should note that in the case that I just described and in
others that I have worked on, it was clear, both by the
batterer's words and actions, that his intent was to cause
physical and emotional injury to the woman and establish
undeniably his power to control her. We as a society are right
to want to address this problem and to protect women from such
a fate. However, our response to the problem should be one that
truly protects the pregnant woman by early intervention before
such a tragedy occurs.
The Unborn Victims of Violence Act is not designed to
protect women. The goal of the Act is to create a new cause of
action on behalf of the unborn. The result is that a crime that
is committed against a pregnant woman is no longer about the
woman victimized by the violence. Instead, the focus will often
be switched to the impact that that crime had on the unborn
fetus, once again diverting the attention of the legal system
away from domestic violence and other crimes of violence
against women.
Moreover, the passage of the Unborn Victims of Violence Act
would set a dangerous precedent which could easily lead to
statutory changes down the line that could hurt battered women.
This bill would, for the first time, federally recognize that
the unborn fetus could be the victim of a crime. It would not
be a large intellectual leap to expand the notion of unborn
fetus as victim to other realms. In fact, some States have
already made that leap, and in those States women have been
prosecuted and convicted for acts that infringe on State-
recognized legal rights of a fetus.
While the Unborn Victims of Violence Act specifically
exempts the mother from prosecution for her own actions with
respect to the fetus, it is easy to imagine subsequent
legislation that would hold her responsible for injury to the
fetus, even for violence perpetrated on her by her batterer
under a failure to protect theory.
Moreover, a battered woman can be intimidated or pressured
by her batterer not to reveal the cause of her miscarriage, and
if she is financially or emotionally reliant on her batterer,
she may be less likely to seek appropriate medical assistance
if doing so could result in the prosecution of her batterer for
an offense as serious as murder. The long-term public health
implications of such a policy would be devastating for victims
of domestic violence and all women.
The harmful potential of this bill is unfortunately
balanced by little or no additional protections for battered
women and other women victimized by violence. The vast majority
of domestic violence threats, assaults, and murders, like other
crimes of violence, are prosecuted by the States. While
important Federal laws exist to prosecute interstate domestic
violence, interstate stalking, and interstate violation of a
protection order, these are stop-gap statutes which are
appropriately applied in a very small number of cases relative
to the incidence of domestic violence nationwide.
In fact, the Federal domestic violence criminal statutes
have been called into play only approximately 200 times in the
last 5 years. As the Unborn Victims of Violence Act would only
apply in Federal cases, the change in the law would do little,
if anything, to address the crime of domestic violence in our
country or other assaults on pregnant women.
I hope you agree with me that the crime of domestic
violence is a horrendous one, not only in terms of the physical
impact of the violence but also in terms of its emotional,
psychological, social, and economic toll upon its victims.
Certainly, there can be no doubt that a pregnancy lost due to
domestic violence greatly increases that toll on a battered
woman. We at the National Coalition Against Domestic Violence
wish to fully recognize and respond to that loss.
However, the more appropriate means of dealing with this
problem with respect to battered women is to provide
comprehensive health care, safety planning, and domestic
violence advocacy for victims. The solution would be to
maintain the focus of the criminal prosecution on the intended
victim of violence, the battered woman, and make an important,
affirmative step toward providing safety for her. If Congress
wishes to protect the pregnancy, the way to do that is by
protecting the woman.
Thank you.
[The prepared statement of Ms. Fulcher follows:]
Prepared Statement of Juley Fulcher
Good morning Mr. Chairman and Members of the Committee. My name is
Juley Fulcher and I am the Public Policy Director of the National
Coalition Against Domestic Violence. On behalf of the Coalition, I
thank you for the opportunity to address the concerns of battered women
who experience violence during their pregnancies. The National
Coalition Against Domestic Violence is a nationwide network of
approximately 2,000 domestic violence shelters, programs, and
individual members working on behalf of battered women and their
children. My role here today is to advocate for increased safety for
battered women, which in turn will lead to healthier pregnancies and
births. Unfortunately, the ``Unborn Victims of Violence Act'' does NOT
provide the protection that battered women need to obtain safety.
Historically, one of the major obstacles to eradicating domestic
violence as a serious crime. The hard work of dedicated domestic
violence advocates on the front lines has slowly brought about a change
in the way we treat the crime of domestic violence. States began
toughening laws on domestic violence and enforcing existing laws in the
late 1980s. In 1994, Congress gave an important boost to this trend by
passing the Violence Against Women Act and committing to a federal
investment in protecting battered women and their children. As a
result, we have seen increased criminal prosecutions of domestic
violence nationwide. It is important that we continue this trend and
recognize domestic violence threats, assaults, and murders as the
serious crimes that they are.
According to a 1994 report from the Centers for Disease Control and
Prevention, at least 6% of all pregnant women in this country are
battered by the men in their lives.\1\ As an attorney representing
victims of domestic violence, I have seen the effects of this violence
first hand. Several years ago, a client of mine lost a pregnancy due to
domestic violence. There was a history of domestic violence in her case
and she had sought assistance several times. While she was 8 months
pregnant, her batterer lifted her up in his arms and held her body
horizontal to the ground. He then slammed her body to the floor causing
her to miscarry. No matter how many stories like this I hear, it never
ceases to sicken me. I should note that in this case and others I have
worked on, it was clear by the batterer's words and actions that his
intent was to cause physical and emotional injury to the women and
establish undeniably his power to control her. We, as a society, are
right to want to address this problem and protect women from such a
fate. However, our response to the problem should be one that truly
protects the pregnant woman by early intervention before such a tragedy
occurs.
---------------------------------------------------------------------------
\1\ Centers for Disease Control and Prevention, The Atlanta Journal
and constitution, 1994.
---------------------------------------------------------------------------
The ``Unborn Victims of Violence Act'' is not designed to protect
women. The goal of the Act is to create a new cause of action on behalf
of the unborn. The result is that the crime committed against a
pregnant woman is no longer about the woman victimized by violence.
Instead the focus often will be switched to the impact of that crime on
the unborn fetus, once again diverting the attention of the legal
system away from domestic violence or other violence against women.
Moreover, passage of the ``Unborn Victims of Violence Act'' would
set a dangerous precedent which could easily lead to statutory changes
that could hurt battered women. This bill would, for the first time,
federally recognize that the unborn fetus could be the victim of a
crime. It would not be a large intellectual leap to expand the notion
of unborn fetus as victim to other realms. In fact, some states have
already made that leap and, in those states women have been prosecuted
and convicted for acts that infringe on state recognized legal right of
a fetus. While the ``Unborn Victims of Violence Act'' specifically
exempts the mother from prosecution for her own actions with respect to
the fetus, it is easy to imagine subsequent legislation that would hold
her responsible for injury to the fetus, even for the violence
perpetrated on her by her batterer under a ``failure to protect''
theory. Moreover, woman can be intimated or pressured by her batterer
not to reveal the cause of her miscarriage and, if she is fundamentally
or emotionally reliant on her batterer, may be less likely to seek
appropriate medical assistance if doing so could result in the
prosecution of her batterer for an offense as serious as murder. The
long-term public health implications of such a policy would be
devastating for victims of domestic violence and all women.
The harmful potential of this bill is, unfortunately, balanced by
little or no additional protections for battered women and other women
victimized by violence. The vast majority of domestic violence threats,
assaults and murders--like other crimes of violence--are prosecuted by
the states. While important federal laws exist to prosecute interstate
domestic violence,\2\ interstate stalking \3\ and interstate violation
of a protection order,\4\ these are stop-gap statues which are
appropriately applied in a very small number of cases relative to the
incidence of domestic violence nationwide. In fact, the federal
domestic violence criminal statues have been called into play less than
200 times in the last five years.\5\ As the ``Unborn Victims of
Violence Act'' should only apply in federal cases, the change in the
law would do little, if anything, to address the crime of domestic
violence in our country or other assaults on pregnant women.
---------------------------------------------------------------------------
\2\ 18 U.S.C. 2261(a).
\3\ 18 U.S.C. 2261A.
\4\ 18 U.S.C. 2262(a)(1).
\5\ See, E.G., Testimony of Bonnie J. Campbell, Director, Violence
Against Women Office, House Judiciary Subcommittee on rime, ``Violence
Against Women Act Oversight Hearing'' (Sep. 29, 1999), also noting that
the largest number of these federal domestic violence prosecutions were
brought under 18 U.S.C. 922(g)(8)--a statute that is not addressed by
the ``Unborn Victims of Violence Act.''
---------------------------------------------------------------------------
I hope you agree with me that the crime of domestic violence is a
horrendous one, not only in terms of the physical impact of the
violence, but also in terms of its emotional, psychological, social and
economic toll upon its victims. Certainly, there can be no doubt that a
pregnancy lost due to domestic violence greatly increases that toll on
a batter woman. We at the National Coalition Against Domestic Violence
wish to fully recognize and respond to that loss. However, the more
appropriate means of dealing with this problem with respect to battered
women is to provide comprehensive healthcare safety planning and
domestic violence advocacy for victims. This solution would maintain
the focus of any criminal prosecution on the intended victim of
violence--the battered woman--and make an important affirmative step
toward providing safety for her. If Congress wishes to protect the
pregnancy, the way to do that is by protecting the woman.
Senator DeWine. Ms. Fulcher, thank you very much for your
testimony. First, let me say in regard to the Violence Against
Women Act, this is an Act that I support. I have supported
funding of the Act and I look forward to working with the other
members of the committee to get it passed.
You have talked about domestic violence very eloquently.
This is something that I have been dealing with since the mid-
1970's when I was a county prosecuting attorney. So I certainly
understand what you are saying. I understand the need for
society to do more. We have made some progress, but we
certainly have a long, long way to go. So I agree, I guess,
with about 98 percent of your testimony, and I am sure every
member of the panel does, no matter what their opinion about
this bill is.
I guess where I disagree and where I suspect--I can't speak
for them, but I suspect many of the victims, particularly the
ones who have testified here today, probably disagree with you
is that this particular Act would divert attention away from
the woman. That is not the intention. I don't think that would
take place, I don't think that would happen. And so I guess I
just disagree with you on that particular point, but I
appreciate your testimony very much.
This panel has been very helpful, and what I would like to
do now--and we are running way over time and I appreciate this
panel's testimony. You are the ones who had to stay here and
wait throughout the entire morning, but I would just open it
up. If any of you would like to respond to any comments made by
any of the other members of the panel, I would be more than
happy to hear that at this point.
Professor Bradley, since you went first, I guess you have
the opportunity to respond.
Mr. Bradley. I have had a long time to think about it, I
suppose. Mr. Weich and I were both assistant prosecutors in
Manhattan to Robert Morgenthau, who is still the District
Attorney of New York County. But I don't have anything like his
experience with the Federal system, so I am hesitant to weigh
in and disagree with him on one point, but I am going to give
it a try.
He said that the additional count that the Act would set up
is unnecessary. It may be unnecessary from some perspectives.
Whether an additional count is always necessary to deter
certain misconduct, who is to say? But I do think, and my own
experience with him in a local prosecutor's office suggests to
me that wherever there are multiple victims, whether they are
multiple homicide victims or multiple victims of assault, four,
five, six people, it is just always the case that there is a
separate count for each victim.
Even if, in a given case, there is no apparent reason for
doing so other than the truth of the matter, which is that
there is an additional victim, if you have four, five, six
homicide victims, the defendant, if guilty, is going to go to
jail for a very, very long time. If you added a seventh victim,
if that were the case, they wouldn't go to jail for any longer,
nor at least in many cases would it make any difference to the
proof or to the likelihood of jury conviction. But it simply
seems to me to be the practice, and a proper one, that where,
in truth, there are five victims, there are five counts.
Mr. Weich. May I respond to that?
Senator DeWine. You certainly can.
Mr. Weich. Professor Bradley and I were colleagues in the
local system, but then I have since gone on to work more in the
Federal system. It is actual ly quite a different practice in
Federal court, and the most dramatic example of this--and it is
one that was raised in the House hearing on the companion
bill--is the Oklahoma City bombing.
In that case, there were not 168 counts of murder. The
counts were, of course, the destruction of a Federal building,
the use of an explosive. Those were Federal counts, and there
were Federal counts for the murder of Federal employees
because, of course, there were BATF and IRS agents in the
Federal building at the time. But the civilians in that
building did not have separate counts in the indictment. That
is just not the way Federal law works. I understand that there
is now a subsequent Oklahoma State prosecution where that is
happening, but in the Federal case there were not separate
counts.
Your bill, Senator DeWine, would create the anomaly that
there would be a count of conviction for the unborn child of
one of the pregnant, non-federal employees in the building, but
not for the woman herself. And I think that is strong evidence
of what Ms. Fulcher was saying, which is that this bill is
providing protections for the fetus that in Federal law are not
even available for the woman herself. This bill doesn't create
a new count, doesn't create new criminal liability for harming
the woman during the course of in that case the bombing of a
Federal building.
Senator DeWine. Anyone else? Any other comments?
[No response.]
Senator DeWine. Well, we appreciate your testimony very
much. We intend to take these comments into consideration and
we intend to move forward with this legislation. Thank you very
much.
[Whereupon, at 12:27 p.m., the committee was adjourned.]
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Additional Submissions for the Record
----------
Prepared Statement of Hon. Bob Smith, a U.S. Senator From the State of
New Hampshire
This bill establishes that if an unborn child is injured or killed
during a crime that is punishable under Federal law, the assailant may
be also charged with a second offense on behalf of the second victim,
the unborn child.
The companion bill to S. 1673, H.R. 2436, passed with a bipartisan
vote (56 Democrats) of 254-172. I am proud to support this bill, and I
am confident that S. 1673 will garner the same bi-partisan support when
it comes to a vote.
Twenty-four states already have laws that provide criminal
penalties for killing unborn children during at least some part of the
prenatal development time period. We should fill the gap in Federal law
by providing additional punishment for criminals who, while
perpetrating a Federal crime, injure or kill another innocent victim--
the unborn.
Those who oppose this bill are opposed to the very notion of
granting any form of personhood to the unborn child. However, our
nation already, in many cases, views the unborn as having separate
interests and separate rights from its mother. For instance, we already
have warnings on cigarette and alcohol labels about the harmful effects
of those products or unborn children. Our medical profession already
treats the unborn as patients, especially as technology increases fetal
viability. Our legal community already grants status and protection to
the unborn, particularly in child custody cases and protective orders,
and very often treats fetuses as individuals.
In addition, the Supreme Court has ruled that the government has an
``important legitimate interest in protecting the potentiality of human
life,'' and also that the government has legitimate interests in
protecting ``the life of the fetus that may become a child.''
Under the Freedom of Access to Clinic entrances Act (FACE), an
abortion protester who interferes with a pregnant woman by harming her
physically, and who subsequently kills the unborn child, can be
punished with life imprisonment--the same punishment as if the
protester has killed the woman herself.
Obviously, our country has already personified the unborn child in
many respects, and made it deserving of cultural, political and legal
protection. It is only logical that we extend this protection under
Federal law.
Nevertheless, this bill falls short in one crucial aspect: it does
not extend legal protection to unborn children who are ``unwanted.''
These ``undesirables'' are left to the devices of the abortionist's
scalpel. In other words, all the forementioned rights and privileges
that have been extended to unborn children from the states, from
prestigious professions, from Federal statutes, agencies and courts, do
not apply if the unborn child is not wanted. Where one late-term unborn
child would receive all the legal and medical protection due to any
American, another would lose its life at the hands of an abortionist,
all because the latter child was deemed to be inconvenient or imperfect
and therefore unworthy of life. This arbitrary and unjust standard goes
against the ideals that we should strive to uphold as Americans and as
citizens of a civilized society. It is time that we end this
schizophrenic and capricious standard and extend the legal right to
life to the most innocent and defenseless of us all, the unborn.
______
Prepared Statement of Hon. Terry Dempsey, Judge of the Fifth District
of Minnesota
My name is Terry Dempsey, and I want to thank you all for allowing
me to appear before this committee to address issues that I feel are
important.
As a member of the Minnesota House of Representatives, a similar
issue came to my attention, and I felt strongly that it merited a
legislative response. What gave rise to the issue was a tragic
automobile accident that involved an expectant mother who was operating
her vehicle on a normal driving day. Sometime before she could complete
her trip, her automobile was involved in a collision. Her car and one
being operated by a drunk driver collided. Although the mother wasn't
seriously inured, the collision did result in the death of her unborn
child. The mother was beyond her sixth month of pregnancy.
Our statutes at the time did not provide for any penalty for
someone causing such an injury--in this case the death of the fetus.
There was a strong outpouring of sentiment that such conduct should be
punishable under our criminal law. Albeit, that civil liability may
result, with insurance coverages and other factors coming into play,
that did not seem to be an adequate remedy.
Minnesota Statutes were amended by a bill I authored. At the outset
there was some discussion that the motives for the legislation was
something other than to attach criminal sanctions for such conduct, but
the bill passed and became law. There was not a lot of interest in the
new law until a case was brought in District Court in northern
Minnesota. That charge seemed to generate some questions about my
motive and those who voted for the legislation. Was it really wrongful
conduct warranting criminal prosecution, or was it a ruse to somehow
confer upon the unborn a standing that might lead to other legislation
or even court decisions of a similar nature. It even attracted one
major news network to come to Minnesota to do a short news story about
it on network TV. I was asked in an interview about why the legislation
was needed; others were similarly asked the same question. That was a
number of years ago. The law remains intact today. Those of us who
supported the legislation, and now even some of those who at one time
had reservations about the precedent that it might set, agree it wasn't
an attempt to erode the Roe v. Wade decision of a person's right to an
abortion, but was the right thing to do.
As a lawyer and a judge, I have not seen any attempt to use the law
for any purpose, except to punish those who break its provisions. Is it
an absolute deterrent to the crimes they address? I can't say. But I
can say with some degree of surety that for those who are affected by
the conduct which this Minnesota statute addressed, agree that it
closed a glitch in the law that had existed by making such conduct a
criminal offense. To defeat the proposal before you based on some fear
that this might be a slippery slope and used to ``confer'' or
``attribute'' rights to the unborn is contrary to the experience in
Minnesota. Our statutes do not deal with the right of abortion, nor do
they conflict with the U.S. Supreme Court decisions on abortion. In
truth and in fact, the legislation in Minnesota addresses the conduct
of a person as it affects the lives of others and hasn't been expanded
beyond that by our courts, nor have I seen any attempt that it be used
for other purposes.
As you consider the proposal before you, I hope you will look to
the Minnesota experience as a precedent. The legislation is similar,
and the reasons for passage are evident. The reason for opposing this
legislation I feel cannot be on the merits of the proposal, but rather
a feeling that there might be some side effects that some may attempt
to use this legislation for purpose beyond the sanctions attached to a
criminal act. I doubt that such attempts would be successful based upon
what has occurred in Minnesota. There is clearly a wrong to be
addressed by the bill you are considering.
That you again for letter me discuss my feelings and experiences
with you.
______
Prepared Statement of Peter J. Rubin, Visiting Associate Professor of
Law, Georgetown University Law Center*
---------------------------------------------------------------------------
* My testimony is provided in the public interest; I do not speak
on behalf of any client or organization.
---------------------------------------------------------------------------
I have been asked by members of the Committee to review and comment
upon S. 1673, which would create a separate federal criminal offense
where criminal conduct prohibited under a list of over sixty federal
statutes, in the words of the proposed law ``causes the death of, or
bodily injury . . . to, a child, who is in utero.'' I am honored to
have the opportunity to convey my views to the Committee.
Where an act of violence against a pregnant woman results in a
miscarriage, that act of violence has wrought a distinct and unique
harm in addition to the harm it would have done had the woman not been
pregnant. Similarly, injury to a baby that may result from unlawful
violence perpetrated upon its mother when it was a fetus in utero is
something from which government may properly seek to protect the woman
and the child.
Consequently, although many states adhere to the traditional rule
that the criminal law reaches only conduct against a person already
born alive, some states have enacted laws that penalize conduct against
a person already born alive, some states have enacted laws that
penalize conduct that may kill or, in some cases, injure, a fetus in
utero. One example is North Carolina's state statute which provides
that ``A person who in the commission of a felony causes injury to a
woman, knowing the woman to be pregnant, which injury results in a
miscarriage or stillbirth by the woman is guilty of a felony that is
one class higher than the felony committed.'' N.C. Gen. State. Sec. 14-
18.2.
If the members of Congress conclude that causing injury in this way
during the commission of a federal crime warrants additional
punishment, it, too, could adopt such a provision. Indeed, it seems as
though this is one area on which both sides of the debate about
abortion might be able to find common ground in supporting a properly
worded statute that might give additional protection to women and their
families from this unique class of injury.
As currently drafted, however, the proposed statute has several
distinct problems, some of which could give rise to constitutional
objection, and others of which would simply divide Americans, creating
an unnecessary conflict with America's legal and constitutional
tradition.
In both form and substance the proposed law differs critically from
many state laws. As written, the proposed law uses the phrase ``child,
who is in utero at the time the conduct takes place'' to describe the
fetus. This is not the ordinary way statutes refer to fetuses in utero.
Indeed, the proposed law appears to be unique in its use of this
formulation. The use of this language will likely subject S. 1673 to
legal challenge, and will likely render the proposed law ineffective in
preventing and punishing acts that harm or kill fetuses being carried
by pregnant women.
Because it uses this formulation, the proposed law would likely
result more in useless litigation about the statute's meaning than in
the prevention and punishment of conduct that results in fetal injury
or death. It's use of the phrase ``child, who is in utero'' may give a
defendant an argument that the statute is ambiguous, and that he lacked
the notice of what acts are criminal that is required by the Due
Process Clause of the Fifth Amendment.\1\ Does it mean the statute
applies only to the injury or death of a ``child,'' that is one who is
subsequently born, but who was injured in utero? This is a reasonable
reading of the statute: traditionally in the United States, legal
interests of the unborn have ordinarily been contingent upon subsequent
live birth.\2\ Does the language of the proposed statute refer instead
to a fetus past the point of viability? Does it refer to a single-cell
fertilized ova that has not yet implanted in the uterine wall? The
statute does not tell us.
---------------------------------------------------------------------------
\1\ See, e.g., Giaccio v. Pennsylvania, 382 U.S. 399, 402-403
(1966).
\2\ See, e.g., Roe v. Wade, 410 U.S. 113, 161 (1973) (describing
legal treatment of the unborn).
---------------------------------------------------------------------------
Even if the law is not held inapplicable because of
unconstitutional vagueness, the Supreme Court has articulated a
doctrine known as the doctrine of ``lenity.'' \3\ Rooted in part in
separation of powers concerns, this doctrine means that an ambiguous
federal criminal statute must be construed by courts in the way most
favorable to the defendant, lest an individual be criminally punished
for conduct that Congress did not intend to criminalize.\4\ At best,
the phrase ``child, who is in utero'' is ambiguous here, and a
defendant is likely to be able to avoid prosecution for whatever
conduct it is that the drafters of this law intend to criminalize.
---------------------------------------------------------------------------
\3\ See, e.g., United States v. Bass, 404 U.S. 336, 347 (1971).
\4\ See id. at 347-349.
---------------------------------------------------------------------------
There is a deeper problem with the proposed statute as well. In
addressing violence that may cause injury or death of a fetus, the bill
treats the fetus solely as a separate victim of certain federal crimes.
This approach is different from that taken by some states that have
enacted criminal laws addressing fetal injury or death in that it fails
to focus at all on the woman who is the victim of the violence that may
injure or kill the fetus.
It would be far easier to reach common ground with an approach that
takes account of place of the pregnant woman when acts of violence
against her lead to fetal injury or death. Indeed, the approach taken
by the current statute may lead to some unintended results, and is not
consistent with the treatment of the fetus in the American legal
tradition. The statute does not just increase the penalty for unlawful
violence against a pregnant woman that results in the death of or
injury to a fetus. Rather it includes fetuses within the universe of
persons who may be protected from injury or death resulting from
violations of other federal criminal laws.
Further, the statute does not draw any distinctions based on
gestational age. An action that results in a miscarriage, at literally
any stage of pregnancy, is to be treated as though it had resulted in
the death of a grown woman, the woman who suffered the miscarriage,
subjecting the perpetrator to penalties up to life imprisonment. Nor is
the law limited to perpetrators who knew, or even to those who should
have known, that the woman they injured was pregnant. Indeed, a
defendant may be imprisoned for life under this law for unintentionally
causing a woman to miscarry even if that woman herself was not aware
she was pregnant! The provisions of the bill with regard to intent thus
depart from the traditional rule that criminal punishment should
correspond to the knowledge and intent of the defendant.
Many state laws address fetal injury and death only in certain
circumstances, and, reflecting the unique nature of the developing
fetus, many provide some penalty that is different from the penalty
that would have applied had the defendant killed or injured a person
who was already born. They tend also to take account of the fetus's
stage of development. Thus, for example, Mississippi law punishes as
manslaughter violence to a pregnant woman that results in the death of
a ``quick'' fetus: ``The willful killing of an unborn quick child, by
an injury to the mother of such child, which would be murder if it
resulted in the death of the mother, shall be manslaughter.'' Miss.
Code. Ann. Sec. 97-3-37.
State feticide laws often do not treat even the intentional killing
of a fetus through violence perpetrated upon the pregnant woman as
murder equivalent to the murder of a person who has been born. Some,
like North Carolina, enhance the penalty for the underlying criminal
conduct. Others, like Mississippi, treat even intentional feticide only
as manslaughter.
The proposed law by contrast treats violence that causes injury or
death to a fetus as equivalent to violence causing injury or death to a
person who has been born. The bill says that whenever causing death or
injury to a person in violation of a listed law would subject an
individual to a particular punishment, he shall be subject to the same
punishment if he causes death or injury to a fetus. This is true
regardless of fetal development.
Whatever its rhetorical force, the proposed law would lead to some
unusual, and probably unintended, results. To give just one example,
under the Freedom of Access to Clinic Entrances Act (``FACE''), 18
U.S.C. Sec. 248, one of the statutes listed in S. 1673, if an
individual who is engaged in obstructing access to an abortion clinic
knocks a pregnant woman to the ground during a demonstration, he is
liable to imprisonment for up to one year. If he causes her ``bodily
injury'' when he knocks her down, he would be subject under FACE to a
ten-year term of imprisonment. Under the proposed law, however, if the
woman miscarried as a result of being knocked down, the defendant would
be subject to life imprisonment, the same as if his action had caused
the death of a woman herself.
In addition to being far more practical, it would be far easier to
reach common ground on this issue with adoption of a statute similar to
those state statutes providing for enhanced punishments that I have
described. For in addition to the practical consequences, the use of a
statutory framework that seeks to achieve its result through treating
all fetuses at all stages of development as persons distinct from the
women who carry them unnecessarily places federal statutory law on the
path toward turning the pregnant woman into the adversary rather than
the protector of the fetus she carries. For although this law contains
exceptions for abortion, for medical treatment of the woman or the
fetus, and for the woman's own conduct--exceptions that are both wise
and constitutionally required--if the fetus were truly a ``person,''
there would be no principled reason to include such exceptions. Yet of
course a law that did not contain them would be shocking to most
Americans and both obviously and facially unconstitutional.\5\
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\5\ I should not that, as currently drafted, the exception for
abortion contained in the proposed statute is constitutionally
inadequate. The proposed law provides that prosecution is not permitted
``for conduct relating to an abortion for which the consent of the
pregnant woman has been obtained or for which such consent is implied
by law in a medical emergency.'' This exception--which covers implied
consent only in the context of medical emergency--does not cover
abortions that have been ordered by courts because they are in the best
interests of women, including minors, who are not capable of consenting
on their own behalf. Such abortions are sometimes lawfully ordered.
Indeed, the Constitution requires pregnant minors to be able to avoid
parental involvement in their abortion decisions by obtaining a
judicial determination either that they are mature enough themselves to
consent to the abortion, or that, if they are not mature enough to
consent, the abortion is in their best interests. See Akron v. Akron
Center for Reproductive Health, 462 U.S. 416, 441 n. 31 (1983);
Bellotti v. Baird (Bellotti II), 443 U.S. 622, 643-644 (1979)
(plurality opinion of Powell, J.).
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Finally, then, in failing to take account of the woman, the
proposed statute also sets federal law apart from the American legal
and constitutional tradition with respect to the treatment of the
fetus. As the Supreme Court has described, ``the unborn have never been
recognized in the law as persons in the whole sense.'' \6\ At common
law, the destruction of a fetus in utero was not recognized as homicide
unless the victim was born alive. \7\ And, of course, the Supreme Court
has held that fetuses are not persons within the meaning of the
Fourteenth Amendment. \8\ This is a position with which even as staunch
as opponent of Roe v. Wade as Justice Antonin Scalia agrees. \9\
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\6\ Roe v. Wade, 410 U.S.C. 113, 162 (1973).
\7\ See Commonwealth v. Cass, 467 N.E. 2d 1324, 1328 (Mass. 1984)
(describing the common law).
\8\ Roe, 410 U.S. at 157.
\9\ See Webster v. Reproductive Health Services, 492 U.S. 490, 535
(Scalia, J., concurring in part and concurring in judgment) (stating
that the legality of a abortion is ``a political issue'' that should be
decided by the states, a position dependent upon an implicit conclusion
that fetuses are not ``persons'' within the meaning of the Fourteenth
Amendment).
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In addition, therefore, to the practical and political
considerations that counsel in favor of an alternative approach, the
proposed law would also unnecessarily set federal statutory law on a
conceptual collision course with the Supreme Court's abortion
decisions. Whatever one may think of those decisions, all unnecessary
conflict about them would not contribute to the important work of
healing where possible the country's division over abortion.