[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

                              ----------                              

                    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

                              ----------                              


                      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.
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    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.''
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    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.