[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
UNBORN VICTIMS OF VIOLENCE ACT OF 2003 OR LACI AND CONNER'S LAW
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
H.R. 1997
__________
JULY 8, 2003
__________
Serial No. 39
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Crystal M. Roberts, Chief Counsel
Paul B. Taylor, Counsel
D. Michael Hurst, Jr., Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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JULY 8, 2003
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
The Honorable Melissa A. Hart, a Representative in Congress From
the State of Pennsylvania...................................... 5
The Honorable Steve King, a Representative in Congress From the
State of Iowa.................................................. 8
The Honorable Tom Feeney, a Representative in Congress From the
State of Florida............................................... 9
WITNESSES
Mrs. Tracy Marciniak, Mother of Victim, Mosinee, Wisconsin
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Ms. Juley Fulcher, Director of Public Policy, National Coalition
Against Domestic Violence
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Ms. Serrin M. Foster, President, Feminists for Life of America
Oral Testimony................................................. 19
Prepared Statement............................................. 22
Professor Gerard V. Bradley, University of Notre Dame School of
Law
Oral Testimony................................................. 24
Prepared Statement............................................. 26
APPENDIX
Material Submitted for the Hearing Record
Letter from Laci Peterson's family submitted by Representative
Hart........................................................... 44
Documents submitted by Chairman Chabot........................... 46
Response submitted by Representative King to Representative
Nadler's Opening Statement..................................... 60
UNBORN VICTIMS OF VIOLENCE ACT OF 2003 OR LACI AND CONNER'S LAW
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TUESDAY, JULY 8, 2003
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 2:05 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
This is the Subcommittee on the Constitution. This
afternoon the Subcommittee convenes to consider H.R. 1997, the
``Unborn Victims of Violence Act of 2003'' or ``Laci and
Conner's Law.''
I want to first thank Congresswoman Hart for her leadership
on this issue. When Congresswoman Hart and I reintroduced this
bill in May, it received increased attention because of the
welcome support from Laci Peterson's family. It is important to
remember, however, that there are many other similarly
disturbing cases across the country which have occurred over
time.
Unfortunately, violence against women and their unborn
children is a far too common occurrence in our society. In
fact, recent studies in Maryland, North Carolina, New York
City, and Illinois indicate that homicide is the leading cause
of death of pregnant women in those areas of the country. Yet
there remains a gaping hole in Federal law which would allow an
unborn child to be killed or injured during the commission of a
violent Federal crime without any legal consequences
whatsoever. A remedy to this deficiency is desperately needed
now more than ever.
The Unborn Victims of Violence Act was designed to address
this current inadequacy in Federal law by providing that an
individual who injures or kills an unborn child during the
commission of certain predefined violent Federal crimes may be
punished for a separate offense. This legislation is vitally
important to expectant mothers and their families, serving as a
deterrent to anyone who thinks that they can injure or kill an
unborn child with minimal consequences.
This legislation is also important to a broad majority of
Americans. A recent poll conducted by Newsweek and Princeton
Survey Research Associates notes that 84 percent of Americans
believe that prosecutors should be able to bring a homicide
charge on behalf of an unborn child killed in the womb. Mothers
and fathers, brothers and sisters, sons and daughters all
across our Nation are asking an important question: Why does
the Federal Government refuse to recognize the loss of a
valuable life when a criminal takes a woman's unborn child away
from her?
Contrary to allegations made by opponents of the bill, the
Unborn Victims of Violence Act has nothing to do with abortion.
In fact, 28 States have had fetal homicide laws on the books,
some for over 30 years now, and all of those challenged have
been upheld as constitutional, coexisting with current abortion
laws.
The Unborn Victims of Violence Act will help ensure just
punishment for criminals like Gregory Robbins, an airman at
Wright-Patterson Air Force Base in Ohio, just up the road from
my district in Dayton, Ohio, who wrapped his fist in a T-shirt
to reduce the chance that he would inflict visible bruises and
beat his 8-months pregnant wife in the face and abdomen,
killing their unborn child. Military prosecutors were able to
charge Robbins for the death of the unborn child by
assimilating Ohio's fetal homicide law through the Uniform Code
of Military Justice. Had Mr. Robbins beaten his wife just
across the Ohio River in Kentucky, for example, a State which
has no fetal homicide law, he would have received no additional
punishment for killing this child.
In the 107th Congress, this Subcommittee heard the
testimony of William Croston regarding the tragic loss of his
sister, Ruth. On April 28, 1998, Ruth Croston and her unborn
child were shot and killed by her husband, Reginald Anthony
Falice, as she sat at a red light in Charlotte, North Carolina.
Falice was convicted by a Federal jury for interstate domestic
violence and using a firearm in the commission of a violent
crime, but because Federal law does not currently recognize the
unborn as victims, he received no additional punishment for
killing the near-term infant.
Mr. Croston's words best speak to the pain experienced by
his family. Let me read from his testimony: ``Our family will
forever be mourning the loss of Ruth Croston and our unborn
niece. Our grief will last a lifetime. The emotional effects of
the death of our niece resurface each time we hear about
another unnecessary act of violence against a pregnant women.''
By enacting the Unborn Victims of Violence Act, Congress
will ensure that criminals who commit violent acts against
pregnant women are justly punished for injuring or killing
unborn children, as well as they are punished if they harm or
inflict harm on a pregnant women, while affirmatively
acknowledging to grieving family members that their deceased
loved ones are recognized under the law.
Let me make one final observation. I hope everyone here
will be able to put politics aside and recognize that this is
an important women's rights issue. We should all be able to
agree that--regardless of our positions on abortion--that women
should have the right to see a criminal who injures or kills
their unborn child brought to justice.
I know that Laci and Conner's family feel that way, and I
know that most Americans agree. But without the Unborn Victims
of Violence Act, Federal crimes against these innocent victims
will continue to go unpunished and the rights of women and
their unborn children will continue to be violated.
Mr. Chabot. I now yield to the gentleman from New York, Mr.
Nadler, the Ranking Member, for his opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
We are here again to consider the Unborn Victims of
Violence Act, which has for several years unnecessarily mired
what should be a laudable and uncontroversial effort to punish
truly heinous crimes in the emotionally charged and legally
suspect back allies of the abortion debate. This is
regrettable, Mr. Chairman, because real people are suffering
real harm, and this Committee has played abortion politics
instead of acting to punish truly barbaric crimes.
For those of us who are pro-choice, the right to choose
extends not just to a woman's right to have an abortion but to
a woman's right to carry her pregnancy to term and deliver a
healthy baby in safety. That is why we supported the Violence
Against Women Act, that is why we support programs to provide
proper prenatal care and nutrition to all women, that is why we
support proper health and nutritional services after a live
birth, and that is why we support other initiatives like the
Family and Medical Leave Act.
Life does not begin at conception and end at birth. We have
an obligation to these children and their parents. Let there be
no mistake: Using physical violence against a woman to prevent
her from having a child she wants is just as much an assault on
the right to choose as is the use of violence against women who
exercised their constitutional right to choose to end their
pregnancies.
A woman, and only a woman, has the right to decide when and
whether to bring a child into the world, not an abusive
partner, not a fanatic, certainly not her Congressman. My
colleagues should understand that we are talking not just about
viable healthy fetuses who are ready to be born in this bill,
as was the case in the grotesque crime committed against
today's witness. That is not what the bill says. The bill says,
``in any stage of development.'' Page 4, line 24. I think that
means any stage, including violence to embryos, violence to
zygotes, violence to blastocysts. And I do not apologize to my
colleagues on this Committee who have in the past taken offense
at the use of the correct medical terms for the subject matter
we are discussing.
The defendant need not be aware that the women is pregnant
or have any intent to harm a fetus. That is on page 3, lines 3
to 9. We should have no illusions about the purpose of this
bill, that it is, despite the Chairman's denial, yet another
battle in a war of symbols in the abortion debate in which
opponents of a woman's constitutional right to choose attempt
to establish that fetuses from the earliest moments of
conception are persons with the same rights as the adult women
who are carrying them.
The implication is that anyone who does not share the
metaphysical slant of the radical anti-choice movement, that a
one-celled zygote is a person on exactly the same basis and
with the same rights as a child or an adult, must secretly
favor infanticide. This bill, by making the destruction of a
fetus or even of a zygote a crime against a fetus, without any
reference to the terrible harm suffered by the pregnant woman,
speaks volumes about that view.
Recognizing an embryo or a zygote as a legal person is at
odds with the holdings of the Supreme Court in Roe v. Wade. The
Court clearly said, ``The unborn have never been recognized in
the whole sense'' and concluded that person as used in the
four--and there is a quote again--that, ``person as used in the
14th amendment of the Constitution does not include the
unborn.''
The rhetoric used by proponents of this bill urging that
the law must recognize the fetus as a victim, as a separate
victim, is a direct assault on that holding in Roe. Rather than
debate the abortion issue yet again, we should pass
Representative Lofgren's legislation that provides for the same
severe penalties, for the same terrible crimes as does the bill
before us without getting into the thorny issue of whether an
embryo at 30 days gestation is a person.
The Lofgren bill provides for two separate crimes, one
conviction for the assault and murder of the women and the new
crime involving injury to the fetus or termination of the
pregnancy. The major difference is that the Lofgren bill gives
recognition to and imposes serious penalties for the additional
and truly grotesque crime against the woman. It recognizes and
punishes a separate crime. It does not get into the question of
a separate person.
Regrettably, the majority is so intent on pursuing the
abortion issue that Representative Lofgren's legislation on
which this Committee and the whole House have voted in the past
was not even made part of this hearing, which it seriously
should be.
If we are serious about this problem, we have effective
remedies at our disposal. If we want to play abortion politics,
we have the bill on our agenda today. Violence against a
pregnant woman is, first and foremost, a criminal act of
violence against a woman that deserves strong preventative
measures and stiff punishment.
According to the Journal of the American Medical
Association, homicides during pregnancy and in the year
following birth represent a largely preventable source of
premature mortality among young women in the United States,
devastating children, family, and communities. While in the
United States homicide is the leading killer of young women,
pregnant or not, homicides of pregnant women occurred with much
greater frequency than did homicides against all women.
Mr. Chairman, it is a disgrace that while these preventable
crimes continue to occur Congress fiddles with largely symbolic
legislation, rather than take affirmative steps to deal with
the problem. Why, for example, did the Republican majority fall
$209 million short of President Clinton's request for full
funding of the Violence Against Women Act? Why, now that the
Republicans control both Houses of Congress and the White
House, are we still shortchanging funding for the Violence
Against Women Act? It appears that many of the Members who have
signed on to this bill are the same ones who voted to divert
funds from protecting women from violence to protecting stock
dividends from taxation.
No one who listened to the testimony this Subcommittee has
received in the past and will hear today could have been left
unmoved by the murders and assaults against women who wanted
nothing more than to bear a child. This legislation is named
for one such woman, and we will hear from another victim today.
We owe it to these women and to those who are closest to them
to ensure that early intervention is available and that States
and localities receive the full resources of the Violence
Against Women Act to prevent violence against women by
intervening before the violence escalates to that level. We owe
it to these victims to enact strong penalties, ones which are
not constitutionally suspect for these heinous crimes.
Let's not cloud that issue. Let's not fail to enact strong
penalties that will stand the constitutional test before the
courts by plunging a legitimate law enforcement effort into the
murky waters of the abortion debate.
Finally, this bill opens the door to prosecuting women or
restraining them physically for the sake of a fetus. Some
courts have already experimented with that approach.
The last time we had occasion to consider this bill, the
Supreme Court had just struck down a practice in the then
sponsor's home State of South Carolina in which a hospital
would give the results of a pregnant woman's blood test to
local law enforcement for the purpose of initiating legal
action against those women if they used improper drugs.
Once we recognize a zygote, one cell, as this bill would
do, as having the same legal status as the pregnant woman, it
would logically follow that her liberty could be restricted in
order to protect the zygote and the fetus. The whole purpose of
Roe and of the Supreme Court holdings in these cases was to
protect the liberty interests of the woman. This bill would
undermine it.
Mr. Chairman, we should deal with the Lofgren bill that
would protect these women, make it a separate crime, recognize
a separate crime, and impose the same penalties as the bill
before us would do without getting into the abortion debate,
which is wholly unnecessary for this purpose but is the real
purpose of this bill.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentlelady from Pennsylvania is recognized, and I want
to thank her for her leadership on this bill. She is the
principal sponsor of this particular piece of legislation.
Melissa Hart.
Ms. Hart. Thank you. I also thank you for holding this
hearing and for those who are here to testify on this issue
today.
When a woman chooses to have a child and then someone
violently takes that child away from her, I believe there must
be accountability. This is especially important because that
unborn child is often the motivator, the motivating factor
behind the attack on the pregnant woman.
A Maryland study showed that homicide was the leading cause
of death for pregnant women in the State, as the Chairman
referred to earlier. According to the Maryland State Department
of Health, there were 247 pregnancy-associated deaths between
the years of 1993 and 1998; 50 of these were homicides.
This study confirms a trend across the Nation, where
similar studies in New York and Illinois as well as others have
shown homicide as a leading cause of death for pregnant women.
In Cook County, Illinois, 26 percent of the 95 deaths of
pregnant women recorded between 1986 and 1989 were homicides.
In New York, 25 percent of the 293 deaths among pregnant
women between 1987 and 1991 were also homicides.
The tragic theme here is that pregnant women have become
targets of what is clearly an extreme pattern of domestic
violence.
In my home State of Pennsylvania, we are one of 28 States
with a fetal homicide law. I was a lead sponsor of this bill
when I served as a State Senator. Just 2 months ago, that law
was used to convict a woman who had kicked a pregnant woman in
the stomach, killing the child. The attacker had dragged the
victim to the ground by her hair, punching and kicking her
repeatedly.
Forensic pathologists ruled that that unborn child died
because of a blow to the victim's abdomen, to the mother's
abdomen. Without this type of legislation, that attack would
merely have been tried as an assault or a battery against that
mother with little or no jail time for the assailant. Instead,
because Pennsylvania has a fetal homicide law, the attacker
faces 20 to 40 years for violently taking the life of the
unborn child.
I and the other sponsors of this bill hope to extend this
necessary and commonsense remedy to Federal law, and I am
honored that Sharon Rocha, the mother of Laci Peterson and the
grandmother of Conner, has chosen to back this initiative. In
fact, Laci Peterson's family wrote to me requesting that this
bill be named after Laci and her unborn son, Conner: ``Knowing
that the perpetrators who murder pregnant women will pay the
price not only for the loss of the mother but for the baby as
well will help bring justice for these victims.'' I pause
because it is important to note that there is more than one
victim. ``And hopefully, also,'' she adds ``that it will act as
a deterrent to those who would consider such heinous acts.''
I have met with Sharon Rocha, and she supports this
legislation specifically and specifically opposes the one-
victim solution. It is clear why she supports this
legislation--because it recognizes that there are two victims
in these crimes.
Her family certainly bears the burden, as do the families
of others who have faced such tragedy. As she noted in a
letter, which she asked me to submit for the record today,
``please understand how adoption of such a single victim
proposal would be a painful blow to those who, like me, are
left to grieve after a two-victim crime because Congress would
be saying that Conner and other innocent victims like him are
not really victims, that they never really existed at all. But
Conner did exist. He was loved. And we anxiously awaited
meeting him. His room was decorated and waiting for his
arrival. My daughter, Laci, wanted desperately to be a mother.
His life was violently taken from him, as was Laci's, but
before they ever even saw him.
Mr. Chairman, I submit Sharon Rocha's letter.
Mr. Chabot. Without objection, it will be included in the
record.
Ms. Hart. Thank you very much, Mr. Chairman.
[The information referred to follows in the Appendix]
Ms. Hart. Laci and Conner's Law will ensure that anyone who
commits such brutal acts of domestic violence, regardless of
whether they do so on Federal property, will face the
possibility of serious jail time for their crimes.
I yield back, Mr. Chairman.
Mr. Chabot. Thank you very much.
The gentleman from Virginia is recognized if he should like
to make an opening statement.
Mr. Scott. Thank you, Mr. Chairman.
I won't make an opening statement, but I would want to, I
guess, inquire generally to the witnesses whether or not the
purpose of the bill could be achieved if the bill provided
additional punishment for criminal attacks when the victim is a
pregnant woman? I think that kind of bill could pass without
much problem. You won't get into the constitutional issues of
the abortion issue or evidentiary issues. And with that, Mr.
Chairman, I would inquire why this legislation is in the
Constitution Subcommittee and not the Crime Subcommittee if it
purports to be a crime bill.
Mr. Chabot. This was directed from the top, from the Chair
of the overall Committee to this Committee. I think it is an
appropriate Committee for it to be in.
Mr. Nadler. Mr. Chairman, can I comment on that?
I think it is properly in front of this Committee since it
obviously raises major constitutional claims against the
questions given and will face a constitutional attack if
adopted, given the holding of the Supreme Court in the Roe v.
Wade case in which it said we have never recognized a fetus as
a person under the meaning of the 14th amendment.
I think certainly as--and given the holding of the Court as
reaffirmed in subsequent cases as to the right of women for
privacy to have abortions if they wish in the first trimester,
subject to some regulation in the second trimester, and the
right of a State to prohibit it if it wishes in the third
trimester, as applied to--if this bill were to pass as applied
within the first two trimesters, there would be a serious
constitutional question on whether the bill is constitutional.
So I think this is--because it does seem to go exactly
against the holding of the Supreme Court in Roe v. Wade. It
does raise the question of why go this route, whereas the
Lofgren bill would accomplish exactly the same purpose,
except--that is of punishing the crime, of recognizing it as a
separate crime, of giving the strong penalty, up to life
imprisonment for the crime--without getting into that
constitutional question.
But because of that constitutional question, I think it is
properly--and I think the Republican leadership ought to be
commended for recognizing that they are raising, unnecessarily,
a major constitutional question with this bill in assigning it
to the Constitution Subcommittee.
Mr. Chabot. There clearly is and can always be a
constitutional challenge to something of this nature.
I would note that it has been challenged in States that
have enacted this legislation. It has always been upheld as an
appropriate piece of legislation for those States and not
unconstitutional. I fully expect that that would occur in this
particular instance.
Our goal is to protect the mother of the child and to
protect the unborn child as well, and therefore, it should be a
much stronger penalty, and it should be an additional penalty
if one harms not only the woman who is carrying the unborn
child but also the unborn child, him or herself.
Mr. Nadler. Of course, that is the heart of the debate. No
one disagrees that we ought to have a much stronger penalty,
and it ought to be a penalty for harming the fetus, in addition
to the penalty for harming the child. The question, as I said
in my opening remarks, is not recognition of a separate crime
or recognition of a higher penalty up to life imprisonment, as
the Lofgren bill provides, which we would all support. The
question is, rather, the different question of recognition of a
separate victim, of a separate person, of the fetus as a
person. That is the real debate here.
It has nothing to do with the penalty. It has nothing to do
with the recognition of a separate crime. It has nothing to do
with the crimes in current law being too small because we all
agree that it should be made up to life imprisonment. The
question is simply a part of the abortion debate that the one
bill that is before the Committee would recognize the fetus as
a separate person; the Lofgren bill would not get into that
question. That is the only thing that we are a disagreeing on.
And, frankly, to use the heart-rending victims for one-
sided purposes, because their purposes will be served by
recognizing the separate crime and by enhancing the penalties
or by making it a separate penalty, which both bills would do,
I don't see why we have to subject them and really distort the
debate by making this sound as if it isn't. The debate is
really about should we increase the penalties; should we
recognize the separate crime? We all agree on those questions.
The question is, should we recognize the fetus as a separate
person?
Mr. Chabot. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized.
Mr. King. Thank you, Mr. Chairman, and I especially want to
thank you, and also Ms. Hart, for bringing this before us
today.
This is an important piece, and the timing of it is
something that I think is going to be helpful, that the country
can look at these issues and be able to better frame the
reality of the policy that we have and the policy that we have
before us.
With regard to the question of whether this should be
before the Constitution Subcommittee, judging from some of the
recent decisions of our Supreme Court, this might be a very
busy Committee indeed if we are to examine some of these things
that might be considered unconstitutional by our current makeup
of the Supreme Court.
Be that as it may, the Unborn Victims of Violence Act of
2003 or the Laci and Conner's Law would recognize that when a
criminal commits a Federal crime against a pregnant woman and
injures or kills her unborn child, he has claimed two victims.
I firmly believe that if a pregnant woman is murdered, there
are two victims. We must recognize the value of the life of the
unborn child by holding the murderer responsible for crimes
against both the mother and the child.
To ignore the death of an unborn child is to let the
perpetrator literally get away with murder. Whether or not a
pregnant female has a moral right to choose, no one else has
that right, and taking that life is murder.
Mr. Chairman, I categorically disagree with the position
taken in his opening remarks by the gentleman from New York,
and I would ask unanimous consent to revise and extend my
remarks, which will be include a full rebuttal of those
remarks.
With that, Mr. Chairman, I would yield back the balance of
my time. Thank you.
Mr. Chabot. Thank you.
The gentleman from Florida, Mr. Feeney, is recognized for
an opening statement.
Mr. Feeney. Well, thank you. I will be brief. And I respect
my good colleague from Iowa, but I actually want to associate
myself with a very small part of the comments of the gentleman
from New York because I think he is exactly right. But the
question here today is whether or not there is one victim or
two.
Ultimately, though, the gentleman from New York falls back
on the precedent in Roe, and I think that Congressman King from
Iowa is correct. This Supreme Court just invited us last week
to reexamine virtually every precedent they have been involved
in.
In the very first paragraph in the Lawrence case, they
actually take up and reconsider the Court's holding 17 years
ago in the Bowers case and the Texas sodomy law strike-down;
and I do believe that fundamentally the constitutional
integrity of some of the arguments that this Supreme Court is
making in its cases are not founded in the basis of the
Constitution. So I think the Constitution Subcommittee is the
right place to hear this.
I think that the gentleman from New York is right, that
their question is whether there is one victim or two. I think
it is anybody's guess on any given day what five or six members
of this Court will do with our United States Constitution.
I yield back.
Mr. Chabot. Thank you.
At this time, we will introduce our panel here this
afternoon. We have really an excellent panel.
Our first witness will be Tracy Marciniak. She currently
lives in Wisconsin with her husband, Jeff, and two young
children. Mrs. Marciniak also has a daughter currently
attending college. Mrs. Marciniak is a full-time mother and
wife and survived a violent crime in February 1992. That tragic
event, which she will be sharing with us today, has led her to
be a full-time fighter for unborn victims of violence. And we
thank you for being here.
Next, we will hear from Juley Fulcher, who is currently the
Public Policy Director for the National Coalition Against
Domestic Violence. Ms. Fulcher previously served as Legislative
Consultant for NOW, Legal Defense and Education Fund; and she
was a Woman's Law and Public Policy Fellow at the Georgetown
University Law Center Sex Discrimination Clinic.
She is a former litigator and 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 and has been a part-time faculty member in
the Psychology Department at Towson University for more than 10
years. And we welcome you here this afternoon.
Following Ms. Fulcher, we will hear from Serrin M. Foster,
President of Feminists for Life. Feminists for Life is a
nonpartisan grassroots organization that seeks equality for all
human beings and champions the needs of women. They oppose all
forms of violence against women and children and are a member
of the National Task Force to End Sexual and Domestic Violence
Against Women. Ms. Foster has been an outspoken advocate,
appearing on numerous television programs, before the national
presidential conventions of both major political parties, and
throughout many colleges and universities.
Prior to her work at Feminists for Life, Ms. Foster served
as Director of Development for the National Alliance for the
Mentally Ill in Arlington, Virginia, assisting those suffering
from a no-fault brain disease. Ms. Foster also formerly worked
at St. Jude Children's Research Hospital and is a graduate of
Old Dominion University in Norfolk, Virginia. We welcome you
here this afternoon.
And our final witness today will be Professor Gerard
Bradley of the University of Notre Dame Law School in Indiana.
Professor Bradley specializes in constitutional law as well as
law and religion issues on which he has written numerous
articles and publications.
Before joining the faculty of Notre Dame, Professor Bradley
taught at the University of Illinois from 1983 to 1992. He also
previously served as an Assistant District Attorney for the New
York County District Attorney's Office. Professor Bradley
earned his B.A. from Cornell University in 1976, and his J.D.
from Cornell Law School in 1980. We welcome you here this
afternoon, Professor Bradley.
We want to thank all of you for coming. Before we get to
the testimonies, I just would ask that you try to keep it
within the 5-minute rule. We will give a little leeway on that
if necessary. But, as much as possible, we would ask you to try
to do that.
We have a lighting system there. When the yellow light
comes on, that means that you have a minute to wrap-up. The red
light means your time is up, but--so try to keep it within that
as much as possible.
Mr. Chabot. We will begin with Mrs. Marciniak.
STATEMENT OF TRACY MARCINIAK, MOTHER OF VICTIM
Mrs. Marciniak. Mr. Chairman and honorable Members of the
Subcommittee, my name is Tracy Marciniak. I thank you for the
opportunity to appear before you today to tell you my story and
to explain to you how it is related to the Unborn Victims of
Violence Act.
I respectfully ask the Members of the Subcommittee to
examine the photograph that you see before you. In this photo I
am holding the body of my son, Zachariah Nathaniel. Often, when
people see the photo for the first time, it takes a moment for
them to realize that Zachariah is not peacefully sleeping.
Zachariah was dead in this photo.
This photo was taken at Zachariah's funeral. I carried
Zachariah in my womb for almost 9 full months. He was killed in
my womb only 5 days before delivery date. The first time I ever
held him in my arms, he was already dead. This photo shows the
second time I held him, which was the last time.
There is no way that I can really tell you about the pain I
feel when I visit my son's gravesite in Milwaukee and at other
times thinking of all that I have missed with him. But that
pain was greater because the man who killed Zachariah got away
with murder.
Mr. Chairman, I ask you and the other Members of the
Committee to look at this photo and ask yourselves, does it
show one victim or two? If you look at this photo and you see
two victims, a dead baby and a grieving mother who survived a
brutal assault, then you should support the Unborn Victims of
Violence Act.
I know that some lawmakers and some groups insist that
there is no such thing as an unborn victim and that the crimes
like this only have a single victim. But this is callous, and
it is wrong. Please don't tell me that my son was not a real
victim of a real crime. We were both victims, but only I
survived.
Zachariah's delivery date was to be February 13th, 1992,
but on the night of February 8th my own husband brutally
assaulted me in my home in Milwaukee. He held me against a
couch, by my hair. He knew I very much wanted my son. He
punched me very hard twice in the abdomen. Then he refused to
call for help, and he prevented me from calling.
After about 15 minutes of screaming in pain that I needed
help, he finally went to a bar. From there, he called for help.
Zachariah and I were rushed by ambulance to the hospital where
Zachariah was delivered by emergency cesarian section. My son
was dead. The physician said he had bled to death inside me
because of blunt force trauma.
My own injuries were life-threatening. I nearly died. I
spent 3 weeks in the hospital. During this time, I was
struggling to survive.
The legal authorities came and spoke to my sister. They
told her something that she found incredible. They told her
that, in the eyes of Wisconsin law, nobody had died on the
night of February 8th.
Later, this information was passed on the me. I was told
that, in the eyes of the law, no murder had occurred. I was
devastated. My life already seemed destroyed by the loss of my
son, but there was so much additional pain because the law was
blind to what had really happened. The law, which I had been
raised to believe in was based on justice, was telling me that
Zachariah had not really been murdered.
It took over 3 years for this case to go to trial. The
State prosecuted my attacker for first-degree reckless injury
and false imprisonment, and he was convicted of these counts.
They also prosecuted him under a 1955 abortion law, but they
failed to win a conviction on the abortion count because the
law required that they prove a specific intent to destroy the
life of my unborn child.
I do not fault the State authorities or the jurors. They
did not have the right legal tools for this type of case. The
law simply failed to recognize what anybody who looks at the
photo should be able to see, that Zachariah was robbed of his
life.
Before his trial, my attacker said on TV that he would
never have hit me if he had thought that he could be charged
with the killing of his child.
My family and I looked for someone who would help us reform
the law so that no such injustice would occur in our State in
the future. We found only one group, and that was Wisconsin
Right to Life. They never asked me my opinion on abortion or
any other issue. They simply worked with me and with other
surviving family members of unborn victims to reform the law.
It took years. Again and again, I told my story to State
lawmakers, and I pleaded with them, as I plead with you today:
correct the injustice in our criminal justice system. Finally,
on June 16th, 1998, Governor Tommy Thompson signed a fetal
homicide law. Under this law, an unborn child is recognized as
a legal crime victim just like any other member of the human
race.
Mr. Chairman, I understand very well that the Unborn
Victims of Violence Act would only apply to Federal crimes and
Federal jurisdiction. Therefore, even if the bill had been in
force on the day that I was attacked, it would not have applied
to Zachariah. But you very well know that there have been in
the past cases like ours that did occur in Federal
jurisdictions and during Federal crimes, and you know that
tragically such cases are bound to occur in the future.
I do not want to think of any surviving mother being told
what I was told, that she did not really lose a baby, that
nobody really died. I say no surviving mother, father, or
grandparent should ever again be told that their murdered loved
one never even existed in the eyes of the law.
So I think that you should really look at these cases for
illustrations of types of pain and injustice that result when
unborn victims of violence are not recognized by the law. This
has been called the Laci and Conner's bill, and it is. But it
is also the Tracy and Zachariah bill, and it is also Shiwona
and Heaven's bill, and it is a bill for every unborn victim and
surviving family member.
I am encouraged that more and more States are enacting
unborn victims laws. I have been told that 28 States now
recognize the unborn child as a crime victim, at least in some
circumstances. Fifteen of these laws cover the killing of an
unborn child at any point of his or her development in the
womb. Texas just enacted a strong law. These laws are all
listed on the web site www.nrlc.org, and the photograph you see
today is also posted there.
In Wisconsin, the Wisconsin law has been in effect for 5
years now, and it has not had any effect on legal abortions.
Opponents of the bill should stop trying to turn it into an
abortion issue. It is not.
I have read Congressman Lofgren's proposal, which she calls
the Motherhood Protection Act. There is only one victim in that
bill, the pregnant woman. So if you vote for that bill, you are
really saying all over again to me, we are sorry, but nobody
really died that night. There is no dead baby in this picture.
More importantly, you would be saying to all of the future
mothers, fathers, and grandparents who lose their unborn
children in future Federal crimes, you didn't lose a baby.
Please don't tell me that my son was not a crime victim.
If you really think that nobody died that night, if you
really think there is no dead baby in this picture, then vote
for the Lofgren amendment or Lofgren bill. But please remember
Zachariah's name and face when do you so.
Thank you.
Mr. Chabot. Thank you very much.
[The prepared statement of Mrs. Marciniak follows:]
Prepared Statement of Tracy Marciniak
Mr. Chairman and honorable members of the subcommittee: My name is
Tracy Marciniak. I thank you for this opportunity to appear before you
today to tell you my story and to explain how it is related to the
Unborn Victims of Violence Act (H.R. 1997).
I respectfully ask that the members of the subcommittee examine the
photograph that you see before you. In this photo, I am holding the
body of my son, Zachariah Nathanial.
Often, when people see this photo for the first time, it takes a
moment for them to realize that Zachariah is not peacefully sleeping.
Zachariah was dead in this photograph. This photo was taken at
Zachariah's funeral.
I carried Zachariah in my womb for almost nine full months. He was
killed in my womb, only five days from his delivery date. The first
time I ever held him in my arms, he was already dead. This photo shows
the second time I held him, which was the last time.
There is no way that I can really tell you about the pain I feel
when I visit my son's grave site in Milwaukee, and at other times,
thinking of all that we missed together. But that pain was greater
because the man who killed Zachariah got away with murder.
one victim, or two?
Mr. Chairman, I ask you and the other members of the committee to
look at this photograph and ask yourselves: Does it show one victim, or
two?
If you look at this photo and see two victims--a dead baby and a
grieving mother who survived a brutal assault--then you should support
the Unborn Victims of Violence Act.
I know that some lawmakers and some groups insist that there is no
such thing as an unborn victim, and that crimes like this only have a
single victim--but that is callous and it is wrong. Please don't tell
me that my son was not a real victim of a real crime. We were both
victims, but only I survived.
Zachariah's delivery date was to be February 13, 1992. But on the
night of February 8, my own husband brutally attacked me at my home in
Milwaukee. He held me against a couch by my hair. He knew that I very
much wanted my son. He punched me very hard twice in the abdomen. Then
he refused to call for help, and prevented me from calling.
After about 15 minutes of my screaming in pain that I needed help,
he finally went to a bar and from there called for help. I and
Zachariah were rushed by ambulance to the hospital, where Zachariah was
delivered by emergency Caesarean section. My son was dead. The
physicians said he had bled to death inside me because of blunt-force
trauma.
My own injuries were life-threatening. I nearly died. I spent three
weeks in the hospital.
During the time I was struggling to survive, the legal authorities
came and they spoke to my sister. They told her something that she
found incredible. They told her that in the eyes of Wisconsin law,
nobody had died on the night of February 8.
Later, this information was passed on to me. I was told that in the
eyes of the law, no murder had occurred. I was devastated.
My life already seemed destroyed by the loss of my son. But there
was so much additional pain because the law was blind to what had
really happened. The law, which I had been raised to believe was based
on justice, was telling me that Zachariah had not really been murdered.
It took over three years for this case to go to trial. The state
prosecuted my attacker for first-degree reckless injury, and for false
imprisonment, and he was convicted of those counts. They also
prosecuted him under a 1955 abortion law. But they failed to win a
conviction on the abortion count, because that law required that they
prove a specific intent to destroy the life of my unborn child. I do
not fault the state authorities or the jurors--they simply did not have
the right legal tool for this type of case. The law simply failed to
recognize what anybody who looks at the photo should be able to see--
that Zachariah was robbed of his life.
reform of wisconsin law
Before his trial, my attacker said on a TV program that he would
never have hit me if he had thought he could be charged with killing an
unborn baby.
My family and I looked for somebody who would help us reform the
law so that no such injustice would occur in our state in the future.
We found only one group that was willing to help: Wisconsin Right to
Life. They never asked me my opinion on abortion or on any other issue.
They simply worked with me, and with other surviving family members of
unborn victims, to reform the law.
It took years. Again and again, I told my story to state lawmakers
and I pleaded with them, as I now plead with you, to correct this
injustice in our criminal justice system.
Finally, on June 16, 1998, Governor Tommy Thompson signed the fetal
homicide law. This means that it will never again be necessary for
state authorities in Wisconsin to tell a grieving mother, who has lost
her baby, that nobody really died. Under this law, an unborn child is
recognized as a legal crime victim, just like any other member of the
human race.
Of course, the state still has to prove everything beyond a
reasonable doubt, to a jury, which is as it should be. But when this
bill was under consideration in the legislature, it was actually shown
to some of the former jury members in our case, and they said if that
had been the law at the time I was attacked, they would have had no
problem convicting my attacker under it.
Mr. Chairman, we surviving family members of unborn victims of
violence are not asking for revenge. We are begging for justice--
justice like we were brought up to believe in and trust in. Justice
means that the penalty must fit the crime, but that is only part of
it--justice also requires that the law must recognize the true nature
of a crime.
Please hear me on this: On the night of February 8, 1992, there
were two victims. I was nearly killed--but I survived. Little Zachariah
died.
why federal bill is needed
Mr. Chairman, I understand very well that the Unborn Victims of
Violence Act would apply only to federal crimes and federal
jurisdictions. Therefore, even if this bill had been in force on the
day I was attacked, it would not have applied to Zachariah.
But you know very well that there have been in the past cases like
ours that did occur in federal jurisdictions and during federal crimes.
And you know that tragically, such cases are bound to occur in the
future. I do not want to think of any surviving mother being told what
I was told--that she did not really lose a baby, that nobody really
died. I say, no surviving mother, father, or grandparent should ever
again be told that their murdered loved one never even existed in the
eyes of the law.
So, I think that you really should look at these state cases for
illustrations of the type of pain and injustice that results when
unborn victims of violence are not recognized in the law. This has been
called Laci and Conner's bill, and it is, but it is also Tracy and
Zachariah's bill, and it is also Shiwona and Heaven's bill, and it is a
bill for every unborn victim and surviving family member.
I am encouraged that more and more states are enacting unborn
victims laws. I've been told that 28 states now recognize the unborn
child as a crime victim at least in some circumstances, and 15 of those
laws cover the killing of the unborn child at any point in his or her
development in the womb. Texas just enacted a strong law. These laws
are all listed at the website www.nrlc.org. The photograph that you
have before you today is also posted at that website.
I am also encouraged by recent national polls that show that more
and more people ``get it.'' A scientific Newsweek poll released June 1
asked people whether someone who ``kills a fetus still in the womb''
should face a homicide charge for that act--either throughout
pregnancy, or from the point of ``viability,'' or not at all. Fifty-six
percent (56%) said throughout pregnancy, and another 28% said at
viability, for a total of 84%. Only 9% said there should be no such
thing as a fetal homicide charge.
Also in May, a national Fox News poll found that 84% favored a
double-homicide charge in the Peterson murder case in California, while
only 7% favored a single homicide charge.
no effect on abortion
The Wisconsin law has been in effect for five years now and it has
had no effect on legal abortion. Legal abortion is specifically
exempted under that law. The bill that you are considering also has a
specific exemption for abortion. Opponents of the bill should stop
trying to turn it into an abortion issue.
It really boils down to the question that I asked you earlier. Does
the photograph show one victim, or two?
Some lawmakers say that criminals who attack pregnant women should
be punished more severely, but that the law must never recognize
someone's unborn child as a legal victim. For example, I have read
Congresswoman Lofgren's proposal, which she calls the ``Motherhood
Protection Act.'' There is only one victim in that bill--the pregnant
woman. So if you vote for that bill, you are really saying all over
again to me, ``We're sorry, but nobody really died that night. There is
no dead baby in the picture. You were the only victim.''
More importantly, you would be saying to all of the future mothers,
fathers, and grandparents, who lose their unborn children in future
federal crimes, ``You didn't really lose a baby.''
Please don't tell us that. Please don't tell me that my son was not
a real murder victim.
If you really think that nobody died that night, if you really
think there is no dead baby in the picture, then vote for the Lofgren
bill. But please remember Zachariah's name and face when you decide.
Mr. Chabot. Ms. Fulcher.
STATEMENT OF JULEY FULCHER, DIRECTOR OF PUBLIC POLICY, NATIONAL
COALITION AGAINST DOMESTIC VIOLENCE
Ms. Fulcher. Good afternoon, Mr. Chairman and Members of
the Subcommittee. On behalf of the National Coalition Against
Domestic Violence I thank you for the opportunity to address
the concerns of battered women who experience violence during
their pregnancies. NCADV 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 from the lives of women has been the
unwillingness of the legal system to treat domestic violence as
a serious crime. In 1994 and 2000, Congress passed the Violence
Against Women Act and committed to a Federal investment in
protecting battered women and their children. It is important
that we continue this trend and recognize domestic violence
threats, assaults, and murders as the serious crimes that they
are.
Four to 8 percent of all pregnant women in this country are
battered by the men in their lives. Studies now indicate that
homicide is the number one killer of pregnant women, yet
physicians do not usually screen for signs of domestic
violence, even though instances are more common than routinely
screened for medical problems.
As an attorney representing victims of domestic violence, I
have seen the effects of this violence firsthand. Several years
ago a client of mine lost a pregnancy due to domestic violence.
No matter how many stories like this I hear, it never ceases to
sicken me.
I should note that, in the cases 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 woman and
establish undeniably his power to control her. We 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 and
prevention and not a reaction to a specific set of
circumstances after the fact.
The Unborn Victims of Violence Act is not designed to
protect women and does not help victims of domestic violence.
The goal is to create a new cause of action on behalf of the
unborn and further a specific political agenda. The result is
that the crime committed against a pregnant woman is no longer
about the woman victimized by violence. Instead, the focus will
be shifted to the impact of that crime on the unborn embryo or
fetus, once again diverting the attention of the legal system
away from domestic violence and other forms of violence against
women.
Moreover, passage of the bill 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 embryo or 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 upon these State-recognized rights.
While the Unborn Victims of Violence Act specifically
exempts the mother from prosecution, 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.
The long-term public health implications of such a policy would
be devastating for victims of violence and all women.
The harmful potential of this bill is 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 are prosecuted by the State. As
this bill would apply only in Federal cases, the change would
do little if anything to address the crime of domestic violence
in our country against pregnant women.
Since the original Violence Against Women Act was passed in
1994, we have seen a 49 percent decrease in intimate partner
violence. Unfortunately, the fiscal year 2003 appropriations
for the Violence Against Women Act programming fell more than
$100 million short of the authorized amounts.
Last year, changes to the way the Victims of Crime Act
funds were distributed resulted in the loss of more than $30
million to programs serving victims of domestic violence,
sexual assault, child abuse, and other crimes. Moreover,
funding for programs critical to the sustained safety of
battered women, such as transitional housing, received no
funding at all. Entities that currently work on the front lines
to end domestic violence are experiencing large cuts in
funding.
If the United States Congress is serious about protecting
women from domestic violence, whether they are pregnant or not,
you must fully fund these programs that have already made so
much difference in the lives of victims nationwide. Certainly
there can be no doubt that a pregnancy lost due to domestic
violence greatly increases that toll on a battered woman. We at
NCADV 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. This solution would maintain the
focus of any criminal prosecution on the intended victim of the
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.
Mr. Chabot. Thank you.
[The prepared statement of Ms. Fulcher follows:]
Prepared Statement of Juley Fulcher, Esq.
Good afternoon Mr. Chairman and Members of the Subcommittee. My
name is Juley Fulcher and I am the Public Policy Director of the
National Coalition Against Domestic Violence (NCADV). 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'' (H.R. 1997) 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 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 \1\ and 2000,\2\
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.
---------------------------------------------------------------------------
\1\ Public Law 103-322 [H.R. 3355]; September 13, 1994.
\2\ Public Law 106-386 [H.R. 3244]; October 28, 2000.
---------------------------------------------------------------------------
One-third of all female murder victims are killed by an intimate
partner.\3\ According to a summary of recent studies, 4% to 8% of all
pregnant women in this country are battered by the men in their lives
\4\ with the highest rates of violence being experienced by pregnant
adolescents.\5\ Studies now indicate that homicide is the number one
killer of pregnant women.\6\ Women who experience abuse are more likely
to delay prenatal care \7\ and are at a substantially increased risk of
domestic violence.\8\ Yet physicians do not usually screen for signs of
domestic violence even though instances are more common than routinely
screened for gestational diabetes or preeclampsia.\9\ 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 woman 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 and
prevention and not a reaction to a specific set of circumstances after
the fact, however horrible and sad.
---------------------------------------------------------------------------
\3\ Bureau of Justice, Bureau of Justice Statistics, Homicide
Trends from 1976-1999, (2001).
\4\ Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M.,
Goodwin, Mary M., Saltzman, Linda E., and Marks, James S., ``Violence
and Reproductive Health: Current Knowledge and Future Research
Directions,'' Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
\5\ Wiemann, Constance M., Agurcia, Carloyn A., Berenson, Abbey B.,
Volk, Robert, J. & Rickert, Vaughn I., ``Pregnant Adolescents:
Experiences and Behaviors Associated with Physical Assault by an
Intimate Partner,'' Maternal and Child Health Journal, Vol. 4, No. 2,
2000.
\6\ Horon, I. and Cheng D. ``Enhancing surveillance for Pregnancy-
Associated Mortality--Maryland, 1993-1998.'' Journal of American
Medical Association, Vol. 285, No. 11, pg. 1457. March 21, 2001. Study
examines the most common cause of death for pregnant women between the
years of 1993 to 1998.
\7\ Parker, B. et al. ``Physical and Emotional Abuse in Pregnancy:
A Comparison of Adult and Teenage Women''. Nursing Research, Vol. 42,
No. 3, pg. 173-7. 1993
\8\ Russo, Nancy Felipe and Jean Denious, Understanding the
Relationship of Violence Against Women to Unwanted Pregnancy and its
Resolution, (1999). In Beckman, Linda J. and S. Marie Harvey, eds. The
new civil war. The psychology, culture, an politic of abortion.
Washington DC, The American Psychological Association, pg. 211-234.
\9\ Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M.,
Goodwin, Mary M., Saltzman, Linda E., and Marks, James S., ``Violence
and Reproductive Health: Current Knowledge and Future Research
Directions,'' Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
---------------------------------------------------------------------------
The ``Unborn Victims of Violence Act'' is not designed to protect
women and does not help victims of domestic violence. The goal of the
Act is to create a new cause of action on behalf of the unborn and
further a specific political agenda. 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 shifted to the
impact of that crime on the unborn embryo or fetus, once again
diverting the attention of the legal system away from domestic violence
or other forms of 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 embryo or fetus could be the victim
of a crime. It would not be a large intellectual leap to expand the
notion of the unborn fetus as a victim in 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 the
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 state. While there are important federal laws to prosecute
interstate domestic violence,\10\ interstate stalking \11\ and
interstate violation of a protection order,\12\ 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 130 times between 1994 and 2000.\13\ 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.
---------------------------------------------------------------------------
\10\ 18 U.S.C. 2261(a).
\11\ 18 U.S.C. 2261A.
\12\ 18 U.S.C. 2262(a)(1).
\13\ This number reflects actual indictments under 18 U.S.C. 2261,
2261A and 2262 through November, 2000. It does not include the largest
category of federal domestic violence prosecutions, those brought under
18 U.S.C. 922(g)(8)--a statute that is not addressed by the ``Unborn
Victims of Violence Act.''
---------------------------------------------------------------------------
Federal programming already exists that positively impacts the
lives of hundreds of thousands of battered women and their children.
Since the original Violence Against Women Act was passed in 1994, we
have seen a 49% decrease in intimate partner violence.\14\
Unfortunately, available services still do not come close to meeting
the needs of victims. In a recent NCADV survey, as many as two-thirds
of the victims seeking assistance at domestic violence shelters and
programs were turned away last year due to lack of space. Since the
passage of the Violence Against Women Act of 2000, the fiscal year 2003
appropriations for Violence Against Women Act programming fell more
than 100 million dollars short of the authorized amounts. Last year,
changes in the way Victims of Crime Act (VOCA) funds were distributed
resulted in the loss of more than $30 million to programs serving
victims of domestic violence, sexual assault, child abuse and other
crimes. In Indiana, 1,185 women and children were turned away this year
due to the lack of funding. Michigan has been forced to make cuts of 5%
to 10% in direct assistance to victims because of the reduction in VOCA
funding. Ohio programs have lost over $2 million dollars in funding and
California is struggling to keep its 120 domestic violence programs
open. Moreover, funding for programs critical to the sustained safety
of battered women such as transitional housing received no funding at
all. Women and their unborn children can be helped substantially more
by other programs. The cost of intimate partner violence exceeds $5.8
billion dollars in this country each year, not including the cost of
the criminal justice process,\15\ yet entities that currently work on
the front lines to end domestic violence are experiencing large cuts in
funding. If the United States Congress is serious about protecting
women from domestic violence, whether they are pregnant or not, you
must fully fund these programs that have already made so much of a
difference in the lives of victims nationwide.
---------------------------------------------------------------------------
\14\ ``Intimate Partner Violence, 1993-2001,'' Callie Marie
Rennison, Bureau of Justice Statistics Crime Data Brief, U.S.
Department of Justice, Office of Justice Programs, February, 2003.
\15\ National Center for Injury and Prevention and Control. Costs
of Intimate Partner Violence Against Women in the United States.
Atlanta (GA): Centers for Disease Control and Prevention. 2003.
---------------------------------------------------------------------------
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 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.
Mr. Chabot. Ms. Foster, you are recognized for the purpose
of making a statement. Thank you.
STATEMENT OF SERRIN M. FOSTER, PRESIDENT, FEMINISTS FOR LIFE OF
AMERICA
Ms. Foster. Thank you.
Good afternoon, Mr. Chairman and Members of the
Subcommittee. My name is Serrin Foster, and I am the President
of Feminists for Life of America. Feminists for Life is an
education and advocacy organization that continues the work of
the early American feminists who worked both for the rights of
women and legal protection for the unborn.
Feminists for Life is a member of the National Task Force
to End Sexual and Domestic Violence Against Women. As a proud
advocate of the Violence Against Women Act, we applaud the
universal support by Members of Congress for VAWA--and might I
add--for your work at the National Coalition Against Domestic
Violence. We can all be proud that statistics show that
violence against women has decreased since VAWA was enacted,
but there is much work to be done.
Feminists for Life has a track record of getting beyond
deadlock on polarizing issues by addressing the root causes of
problems that women face. One of the ways we do this is by
listening to women and then prioritizing what women really
want.
Today I am pleased to speak from that perspective about an
urgent question. What is the appropriate response to a woman
who has lost her child due to an assault that she survived?
What is the appropriate response to survivors when an assault
takes the lives of both a pregnant woman and the child she
carries?
The victims are speaking loudly and clearly on this issue,
and we need to listen. According to a 2-year study by the
Center for the Advancement of Women, reducing violence against
women is the number one priority of women. Women who are
pregnant are at particular risk of being targeted for violence.
In fact, recent studies by two different State health
departments have shown that a leading cause of maternal
mortality is not complications during pregnancy or childbirth;
rather, it is homicide. We are hearing more and more horrible
stories via mainstream media of pregnant women who are
assaulted by those who do not want them to carry a child to
term.
A doctor was videotaped as he tried to poison his pregnant
fiance. Another doctor attacked his girlfriend's abdomen with a
needle. A number of women have tried to kill the unborn child
of another woman who was involved with the same man. Unwilling
fathers have hired thugs to intentionally kill the unborn
child.
For every story we hear, there are countless more that go
untold. Such is the story of Marion Syversen, a board member of
Feminists for Life, who lost her unborn child when her abusive
father threw here down a flight of stairs when she was
pregnant.
Women and their families who have survived such unthinkable
violence are unequivocal: Justice demands recognition of and
remedy for both their assault and the killing of their unborn
child.
The gruesome and well-publicized case of Laci Peterson and
her unborn baby, Conner, prompted Americans to examine their
own convictions on this issue. According to a Newsweek/
Princeton Survey Research Associates poll, 84 percent of
Americans believe that prosecutors should be able to bring a
homicide charge on behalf of a fetus killed in the womb.
Feminists for Life and our partners in the Women Deserve
Better Campaign support the Unborn Victims of Violence Act
because it would provide justice for the victims of Federal
crimes of violence.
Congresswoman Lofgren has introduced an alternative called
the Motherhood Protection Act of 2003. Instead of recognizing a
woman's unborn child as an additional victim, it would,
``provide additional punishment for certain crimes against
women when the crimes cause an interruption in the normal
course of their pregnancies.''
We are not here to discuss an interruption. That implies
something temporary, as if it were possible for the victim's
pregnancy to start back up again. And dare we ask, mother of
whom? Motherhood is neither protected nor honored through the
proposed Motherhood Protection Act. Instead, it tells grieving
mothers that their lost children don't count.
Ten days ago in the Bronx, a 54-year-old man allegedly
kicked and punched his 24-year-old girlfriend in the abdomen.
Julie Harris was 9 months pregnant at the time. She went
through labor only to deliver stillborn twins. The Motherhood
Protection Act, which some people call the single victim
substitute, would only recognize one of three victims.
The family of the California murder victims, Laci and
Conner Peterson, as Congresswoman Hart just entered into
testimony, is explicitly urging Congress to pass the Unborn
Victims of Violence Act, also known as Laci and Conner's Law,
and not the single victim substitute which Sharon Rocha, Laci's
mother and Conner's grandmother, called, ``a step away from
justice.''
The Unborn Victims of Violence Act would also avoid
multiplying the pain of survivors of horrendous Federal crimes
of violence such as the bombing in Oklahoma City or the
terrorist attacks of September 11th.
After years of trying to have a child, Carrie and Michael
Lenz, Jr., were overjoyed to learn that she was carrying their
son, whom they named Michael Lenz, III. Carrying a copy of the
sonogram, Carrie went to work early that morning to show
coworkers the first photo of baby Michael. She and Michael were
killed, along with three other pregnant women and their unborn
children, when the Alfred P. Murrah Federal Building exploded
on April 19th, 1995. This father's agony was multiplied later
when he saw the memorial named only his wife, not his son as
victims.
Ms. Foster. In the eyes of the Federal Government, there
was no second victim for this father to mourn. If the legal
system does not recognize the loss of an unborn child, it
becomes an unwitting agent of the perpetrator who robbed the
survivors of the child and the life they would have had
together.
Women have a right to have children. On this we agree. But
when a woman has this right taken away from her due to violence
that kills the fetus in her womb, she needs and deserves the
support of those on both sides of the abortion debate, those
who support women's rights. It is also worthwhile to note that
outside the context of abortion, unborn children are often
recognized as persons who warrant the law's protection.
Some have questioned whether it is reasonable to apply this
law if the perpetrator is unaware that the woman is pregnant,
especially if she is in the earliest stages of gestation.
Neither the Unborn Victims of Violence Act nor the Motherhood
Protection Act makes the distinction about the age of the
fetus. But would anyone seriously suggest, especially those who
advocate a right of privacy, that it is the woman's
responsibility to disclose her pregnancy to a potential
attacker or murderer?
In 1990, the Supreme Court of Minnesota answered that
question in State v. Merrill. A man who killed a woman was
responsible for two deaths even though the woman was just 28
days pregnant. The court said, ``the possibility that a female
homicide victim of child bearing age may be pregnant is a
possibility that an assaulter may not safely exclude.''
We cannot tell grieving mothers like Tracy Marciniak, who
testified here today, that Zachariah did not count, and we
mourn with you for him. We cannot tell Julie Harris, the mother
of twins, that there was only one victim when there were three.
And we cannot tell the families of Laci and Conner, Carrie and
Michael, III that there was only one loss to mourn.
The Motherhood Protection Act would deny these victims the
recognition and justice they deserve. The women have spoken.
Women want the justice promised by the Unborn Victims of
Violence Act, and we are asking our federally elected officials
to honestly answer the question in the case of Laci Peterson
and baby Conner, in the case of Tracy Marciniak and baby
Zachariah, was there one victim or were there two? Thank you.
[The prepared statement of Ms. Foster follows:]
Prepared Statement of Serrin M. Foster
Good afternoon, Mr. Chairman and Members of the Subcommittee. My
name is Serrin Foster and I am the President of Feminists for Life of
America. Feminists for Life is an education and advocacy organization
that continues the work of the early American feminists who championed
both the rights of women and legal protection for the unborn.
Feminists for Life is a member of the National Task Force to End
Sexual and Domestic Violence Against Women. As a proud advocate of the
Violence Against Women Act, we applaud the universal support by Members
of Congress for VAWA. I thank the Members of Congress here who have
supported VAWA. We can all be proud that statistics show violence
against women has decreased since VAWA was enacted. But there is much
more work to be done.
Feminists for Life has a track record of getting beyond deadlock on
polarizing issues by addressing the root causes of the problems women
face. One of the ways we do this is by listening to women and then
prioritizing what women really want. Today I am pleased to speak from
that perspective about an urgent question: What is the appropriate
response to a woman who has lost her unborn child due to an assault
that she survived? What is the appropriate response to survivors when
an assault takes the lives of both a pregnant women and the child she
carries?
Sarah Norton, an early American feminist who was the first woman to
seek admission to Cornell University, asked this question more than a
century ago. Speaking of the then-common situation in which an
unwilling father attempted to kill an unborn child, she asked, ``Had
the scheme been successful in destroying only the life aimed at, what
could have been the man's crime--and what should be his punishment if,
as accessory to one murder he commits two?'' (Woodhull and Claflin's
Weekly, November 19, 1870)
Today's victims are speaking loudly and clearly on this issue. We
need to listen.
According to a recent two-year study by the Center for the
Advancement of Women, run by Faye Wattleton, former president of the
Planned Parenthood Federation of America, reducing violence against
women is the number one priority of women. Women who are pregnant are
at particular risk of being targeted for violence. In fact, recent
studies by two different state health departments have shown that a
leading cause of maternal mortality is not complications during
pregnancy or childbirth--rather, it's homicide. For example, according
to the Journal of the American Medical Association, a Maryland study
concluded that, ``A pregnant or recently pregnant woman is more likely
to be a victim of homicide than to die of any other cause.''
We are hearing more and more horrible stories via mainstream media
of pregnant women who are assaulted by those who do not want them to
carry a child to term.
A doctor was videotaped as he tried to poison his
pregnant fiancee.
Another doctor attacked his girlfriend's abdomen with
a needle.
A number of women have tried to kill the unborn child
of another woman who is involved with the same man.
Unwilling fathers have hired thugs to intentionally
kill the unborn child.
For every story we hear, there are countless more that go untold,
such as the story of Marion Syversen, a board member of Feminists for
Life, who lost her unborn child when her abusive father threw her down
a flight of stairs when she was pregnant.
Women who have survived such unthinkable violence are unequivocal:
justice demands recognition of and remedy for both their assault and
the killing of their unborn baby. The Unborn Victims of Violence Act
would support justice for women who lose children as the result of a
federal crime of violence.
Many women do not survive such crimes, and their grieving survivors
are equally unequivocal: justice demands recognition of and remedy for
the killing of both victims, the woman and her unborn child or
children.
The gruesome and well-publicized case of Laci Peterson and her
unborn baby, Conner, prompted Americans to examine their own
convictions on this issue. The American people, too, were unequivocal.
They recognize and mourn the loss of both mother and child. According
to a Newsweek/Princeton Survey Research Associates poll released June
1, 2003, 84% of Americans believe that prosecutors should be able to
bring a homicide charge on behalf of a fetus killed in the womb. This
figure includes 56% who believe such a charge should apply at any point
during pregnancy, and another 28% who would apply it after the baby is
``viable,'' i.e., of sufficient lung development to survive outside the
mother. Only 9% believe that a homicide charge should never be allowed
for a fetus.
Feminists for Life and our partners in the Women Deserve Better
campaign support the Unborn Victims of Violence Act because it would
provide justice for the victims of federal crimes of violence. As
victims, survivors, and the American people clearly demand, the Unborn
Victims of Violence Act would recognize an unborn child as a legal
victim when he or she is injured or killed during the commission of a
federal crime of violence.
Congresswoman Lofgren has introduced an alternative to the Unborn
Victims of Violence Act, called the Motherhood Protection Act of 2003.
Instead of recognizing a woman's unborn child as an additional victim,
it would ``provide additional punishment for certain crimes against
women when the crimes cause an interruption in the normal course of
their pregnancies.''
An ``interruption?'' That implies something temporary, as if it
were possible for the victim's pregnancy to start back up again. Dare
we ask: mother of whom? Motherhood is neither protected nor honored
through the proposed Motherhood Protection Act. Instead, it tells
grieving mothers that their lost children don't count. It ignores these
mothers' cries for recognition of their loss and for justice. It is a
step backward in efforts to reduce violence against women.
Ten days ago in the Bronx, a 54-year-old man allegedly kicked and
punched his 24-year-old girlfriend in the abdomen. Julie Harris was
nine months pregnant at the time. She went through labor only to
deliver stillborn twins. The Motherhood Protection Act, which some call
the single victim substitute, would only recognize one of these three
victims.
The family of California murder victims Laci and Conner Peterson is
explicitly urging Congress to pass the Unborn Victims of Violence Act,
also known as Laci and Conner's Law--not the single-victim substitute.
Sharon Rocha, Laci's mother and Conner's grandmother, concluded a
letter to Senators DeWine, Hatch, and Graham and Congresswoman Hart:
I hope that every legislator will clearly understand that
adoption of such a single-victim amendment would be a painful
blow to those, like me, who are left alive after a two-victim
crime, because Congress would be saying that Conner and other
innocent unborn victims like him are not really victims--
indeed, that they never really existed at all. But our grandson
did live. He had a name, he was loved, and his life was
violently taken from him before he ever saw the sun.
The application of a single-victim law, such as the [Lofgren]
amendment, would be even more offensive in the many cases that
involved mothers who themselves survive criminal attacks, but
who lose their babies in those crimes. I don't understand how
any legislator can vote to force prosecutors to tell such a
grieving mother that she didn't really lose a baby--when she
knows to the depths of her soul that she did. A legislator who
votes for the single-victim amendment, however well motivated,
votes to add insult to injury.
The advocates of the single-victim amendment seem to think that
the only thing that matters is how severe a sentence can be
meted out--but they are wrong. It matters even more that the
true nature of the crime be recognized, so that the
punishment--which should indeed be severe--will fit the true
nature of the crime. This is a question not only of severity,
but also of justice. The single-victim proposal would be a step
away from justice, not toward it. For example, if Congresswoman
Lofgren's legal philosophy was currently the law in California,
there would be no second homicide charge for the murder of
Conner.
The Unborn Victims of Violence Act would also avoid multiplying the
pain of survivors of horrendous federal crimes of violence such as the
bombing in Oklahoma City or the terrorist attacks of September 11,
2001.
After years of trying to have a child, Carrie and Michael Lenz, Jr.
were overjoyed to learn that she was carrying their son, whom they
named Michael Lenz III. Carrying a copy of the sonogram, Carrie went to
work early the next morning to show coworkers the first photo of baby
Michael. She and Michael were killed, along with three other pregnant
women and their unborn children, when the Alfred P. Murrah Federal
Building exploded on April 19, 1995. This father's agony was multiplied
later when he saw that the memorial named only his wife, not his son,
as a victim. In the eyes of the federal government, there was no second
victim. Timothy McVeigh was never held accountable for killing Michael
Lenz's namesake.
If the legal system does not recognize the loss of the unborn
child, it becomes an unwitting agent of the perpetrator who robbed the
survivors of the child and the life they would have had together.
Women have a right to have children. When a woman has this right
taken away from her due to violence that kills the fetus in her womb,
she needs and deserves the support of all those who champion women's
rights, including those who support legalized abortion. Columbia Law
School Professor Michael Dorf, who is pro-choice, agrees: ``Certainly
pro-choice activists would oppose government-mandated sterilization.
For similar reasons, they should support punishing feticide.''
It is also worthwhile to note that outside the context of abortion,
unborn children are often recognized as persons who warrant the law's
protection. Most states, for example, allow recovery in one form or
another for prenatal injuries. Roughly half the states criminalize
fetal homicide. Unborn children have long been recognized as persons
for purposes of inheritance, and a child unborn at the time of his or
her father's wrongful death has been held to be among the children for
whose benefit a wrongful death action may be brought. Federal law
similarly recognizes the unborn child as a human subject deserving
protection from harmful research.
Some have questioned whether it is reasonable to apply this law if
the perpetrator is unaware that a woman is pregnant, especially if she
is in the earliest stages of pregnancy.
Neither the Unborn Victims of Violence Act nor the Motherhood
Protection Act makes a distinction about the age of the fetus. But
would anyone seriously suggest--especially those who advocate a right
to privacy--that it is a woman's responsibility to disclose her
pregnancy to a potential attacker or murderer?
In 1990, the Supreme Court of Minnesota answered that question. In
State v. Merrill, a man who killed a woman was responsible for two
deaths, even though the woman was just 28 days pregnant. The court
said: ``The possibility that a female homicide victim of child-bearing
age may be pregnant is a possibility that an assaulter may not safely
exclude.''
Knowing this may serve as a deterrent to future attacks on women of
childbearing age.
We cannot tell grieving mothers like Tracy Marciniak, who testified
here today, that her son Zachariah didn't count. We cannot tell Julie
Harris, mother of twins, that there was only one victim when there were
three. We cannot tell the families of Laci and Conner, or Carrie and
Michael III, that they have only one loss to mourn. The Motherhood
Protection Act would deny these victims the recognition and justice
they deserve.
Women have spoken. Women want the justice promised by the Unborn
Victims of Violence Act.
We are asking our elected Representatives to honestly answer the
question in the case of Laci Peterson and baby Conner, was there one
victim or two?
Those who support the single-victim substitute would deny women
justice.
On behalf of women and families who have lost a child through
violence, a father who has lost both his wife and child through
terrorism, and Laci and Conner's family, I urge unanimous support for
this bill, not the single-victim substitute.
Mr. Chabot. Thank you very much. Professor Bradley.
STATEMENT OF PROFESSOR GERARD V. BRADLEY, UNIVERSITY OF NOTRE
DAME SCHOOL OF LAW
Mr. Bradley. Mr. Chairman and Members of the Subcommittee,
thank you for the opportunity to address the constitutionality
of the Unborn Victims of Violence Act of 2003. The
constitutional questions about the act seem to me are two.
First, is it within Congress' enumerated powers, and second, if
it is within Congress' enumerated powers, does the act
nevertheless run afoul of Roe v. Wade and cases following it
concerning women's reproductive liberty.
To answer the first question, there might really seem to be
a question. Of course, under our Constitution, Congress has no
general police power to prohibit private violence. You say a
job assignment reserved for the States--a job assignment which
the Supreme Court has emphasized in several cases over the last
few years in the so-called new federalism cases exemplified by
U.S. v. Lopez. I think there really is no question. As to the
first question, Congress surely does have enumerated powers
sufficient to sustain this act, and that is basically because
this act does not extend Congress' regulatory reach. No act
which is presently lawful is made unlawful by this act. It is
this act relies on what might be called predicate offenses--
that is, offenses found elsewhere in the Federal criminal
code--and adds to them an additional count and therefore
enhanced punishment. The act says whoever engages in conduct
that violates any of the listed provisions is guilty of the
offense of assaulting the unborn child. So it is to be compared
in this regard to the RICO statute, which is different in some
respects, but nevertheless, RICO does not extend Congress'
reach over primary conduct of individuals.
The second question, I think the leading question, the
constitutional question about this act, has to do with Roe v.
Wade, the cases following it, and women's reproductive rights.
I remind you that nothing in this act affects, much less
unconstitutionally restricts a woman's right to terminate her
pregnancy. The current expression of the constitutional
standard is the undue burden test of Casey v. Planned
Parenthood, affirmed by the Court 3 years ago in Stenberg v.
Carhart. I refer the Committee Members to what I call the safe
harbor provision of section (c) of the act. This is an air
tight immunity thrown up around the pregnant woman and her
unborn child by this act. Simply put, no woman may be
prosecuted under this act with respect to her unborn child.
This is all that Roe requires. It does not require more.
Now some say that it does require something; this act
requires something inconsistent with Roe. I take this to be Mr.
Nadler's position. He says it is inconsistent with Roe and,
therefore, should be opposed on constitutional grounds. I
disagree. Mr. Nadler said, in his opening remarks, that the Roe
court said, and this is correct, that the unborn have not been
recognized as persons in a whole sense. Well, maybe not, but
this act refers to or pertains to part of legal protections
that are afforded to persons. It refers to that part of
personhood, one might say, which has to do with the right to be
free of intentional assault or killing. Mr. Nadler rightly says
that the court in Roe said, and I paraphrase, that the 14th
amendment could not be read to establish or understood to
include the unborn as, you might say constitutional persons.
That is true as far as it goes, but this act is not an exercise
of Congress' power under the 14th amendment. I think it would
be section 5 if it were. So simply put, this is not an attempt
by Congress to establish constitutional personhood. Congress is
not here trying to say that the unborn are persons for purposes
of the 14th amendment.
Now besides those two objections one might say in a more
general sense that there is an opposition between Roe and this
act because this act is tantamount to recognizing the unborn as
persons in some ordinary legal sense. Well, that seems to me
the case; that is to say, the arguments. But again, I disagree
with Mr. Nadler. The Roe court did not itself say that the
unborn are not persons. The Roe court said on the other hand,
the judiciary, including the Supreme Court, is not in a
position to speculate as to the answer to the question of when
life begins. In any event, I think the key case here is not Roe
but the Webster decision of 1989, where the Supreme Court was
confronted with an act, in that case an act by the State of
Missouri, which said that the life of each person began at
conception. Some people thought and argued in the court below
in that case that this adopted a theory of when life begins and
that doing so was contrary to Roe v. Wade. But the Supreme
Court said no. The Supreme Court in Webster said of its own Roe
decision that Roe meant only that a State could not justify an
abortion regulation, otherwise invalid under Roe v. Wade, on
the ground that life began at conception. But there, as here,
there is nothing otherwise invalid about this act under Roe v.
Wade. See again the safe harbor provision of subsection (c). So
Congress, under Roe, Webster, and for that matter, Casey v.
Planned Parenthood, is as free as was the State of Missouri in
the late 1980's to conclude that outside the parameters of Roe,
therefore outside the parameters of a woman's right to
terminate her pregnancy, there are two victims, that the unborn
are persons with at least a right to be free of assault and
intentional killing.
Now, final word about this act's treatment of assaults upon
pregnant woman. I speak here in ordinary legal terms and as a
former prosecutor from Manhattan, and I refer or compare this
bill to the leading alternative, Representative Lofgren's
version, which of course adds a count, enhanced punishment, but
still retains the notion of there being one victim in the case
of assault upon a pregnant woman. I surely agree with the
central notion of Representative Lofgren's approach that a
mother suffers grievously with the injury or death of her
child, born or unborn. This loss is particularly acute where a
child is killed by a criminal act, but the criminal law does
not generally treat crimes, injuries, assaults against children
as any kind of aggravation of an accompanying crime against a
parent.
Think of the case where a single violent act, such as
planting a bomb or starting a fire, kills an entire family. In
such cases, for each victim is a separate count, complete unto
itself, for the injury or death of the particular person who is
the subject of that count. My observation here is not that the
alternative version proposed by Representative Lofgren is
unconstitutional. I don't think it is unconstitutional. But it
seems to me that this act's approach--separate victims,
separate counts, and thus additional punishment--is not only
constitutional but also more in line of the normal operation of
criminal law principles than the alternative.
Thank you again to Members of the Committee.
[The prepared statement of Mr. Bradley follows:]
Prepared Statement of Gerard V. Bradley
I am grateful to the Subcommittee for this opportunity to address
the constitutionality of the Unborn Victims of Violence Act of 2003,
also known as ``Laci and Conner's Law.'' [Hereafter, ``Act''.]
The first question about the constitutionality of the Act is not
whether it violates any right protected by the Constitution, including
the right articulated by the Supreme Court in Roe v. Wade. That would
be the first question were we talking about a bill in a state
legislature. The first question when looking at proposed federal
legislation is whether some power enumerated in the Constitution
authorizes Congress to act. The national government possesses no
general police power to prohibit private violence. That is, basically,
a job for the states. Especially in light of 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 doubt Congress's power to protect unborn children
from private violence.
There is no question. The Act does not engage these recent
developments. There is no doubt of its constitutionality lurking in the
so-called ``new federalism,'' as found (for example) in the Violence
Against Women Act case, U. S. v. Morrison.
Why is there no question about Congress's affirmative power to pass
the Act? Because the Act does not extend Congress's reach; no primary
conduct 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 in this regard is comparable to the Racketeer Influenced
and Corrupt Organizations Act--RICO. RICO relies upon (what it
expressly calls) ``predicate'' offenses--and then lists them, as does
the Act--in order to set up what 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.
The Act relies upon established criminal law principles of
transferred intent to add a new offense 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.
Some persons might object to this feature of the Act, saying it
unfairly penalizes a criminal for the possibly unforeseeable effects of
his acts. I grant that in some cases an assailant charged under this
Act might not know that his victim is pregnant. But I deny that it is
unfair to treat this assailant as the Act would. Our hypothetical
assailant is treated like all other criminals, who are obliged to take
their victims as they find them.
The classic expression of this common feature of criminal liability
is the ``egg-shell skull'' rule. Consider A and B, who knock C and D,
respectively, over the head with a glass. C is a veteran boxer, and is
scarcely dazed. A is thus guilty of, at most, misdemeanor assault and
gets a conditional discharge. D has a plate in his head due to an old
sports injury, and dies from a brain hemorrhage. B is guilty of
homicide, probably manslaughter, and goes to jail for a long time.
This established principle also illustrated in felony murder
statutes, where the malice manifested in the commission of a felony is
transferred to what may even be 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.
The leading constitutional question about the Act is undoubtedly
about Roe v. Wade and its progeny. But nothing in the Act affects, much
less unconstitutionally restricts, a woman's right to terminate her
pregnancy. (The current expression of the constitutional standard is
the ``undue burden'' test of Casey v. Planned Parenthood, affirmed by
the Court in Stenberg v. Carhart.) 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 are 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 bear a child or not.
Someone might object that the Act, because it protects a child in
utero 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?
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 ``could not override the rights of
the pregnant woman by adopting an answer to the question of when life
begins.'' (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 were not to be considered persons in the
``whole'' sense, an opinion consistent with treating the unborn as
persons for some purposes, like inheritance, tort injury, and (here)
third party assaults.
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 stated as an ``objection'' here, that the state had, in
light of Roe, ``impermissibl[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 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.
A final word about this Act's treatment of assaults upon pregnant
women, in comparison with the leading alternative: enhanced punishment
for (what would remain) a single count of assault. I surely agree with
the central notion of the alternative (a notion entirely consistent
with this Act), that a mother suffers grievously with the injury or
death of her child. This loss is particularly acute where the child is
killed by a criminal act. But the criminal law does not generally treat
crimes against children as aggravations of an accompanying crime
against a parent. (Think of the case where a single violent act, such
as planting a bomb or starting a fire, kills an entire family.) For
each victim, a distinct count, complete unto itself, for the injury or
death of that particular individual is the norm.
The facts to which this Act would apply are these: a woman carries
a child in utero, and does not seek an abortion. For all the world can
see, she considers that child her baby, to be treated as such by
everyone: her doctors, her family, the law. Upon that child's death she
suffers, too, of course, but does she suffer more, or differently, than
the woman who loses a newborn to a crime? A toddler? Who is to say? Is
there any general answer?
My point is not that a simple enhancement of punishment is
unconstitutional. But I do think this Act's approach--separate victims,
separate counts, and thus additional punishment--is much more in line
with the normal operation of criminal law principles than is the
leading alternative.
Mr. Chabot. Thank you very much. And panel Members will now
have an opportunity to question the witnesses for 5 minutes,
and I will start with myself. Let me first of all begin by
clearing up the record a bit. Ms. Fulcher, you had stated that
fiscal year 2003 appropriations fell more than 100 million
short of what was authorized for that year. But you failed to
mention that funding for the Violence Against Women Act was
actually boosted by more than 110 million from fiscal year 2001
to 2002 for a total of $517.22 million. That is actually a 25
percent increase in that 1 year alone and an increase when you
consider the budget as it currently is, pretty substantial
increase. And the claim that we are not adequately funding the
Violence Against Women Act and related programs I think is very
misleading and a mischaracterization of the facts, but let me
get on with the questions.
Mrs. Marciniak----
Ms. Fulcher. Mr. Chairman, may I address that comment?
Mr. Chabot. When I ask you a question you can.
Thank you, Ms. Marciniak, for being here and courageously
telling us your very tragic story. Let me first of all say, at
least as one Member, there is no question in my mind that in
that photo over there, there are two victims and two very
tragic victims, no question about that. You stated in your
testimony that your attacker said on a TV program that had he
thought he could be charged with the killing of an unborn baby
that he never would have beaten you. Based on this testimony,
do you think the Unborn Victims of Violence Act could serve as
a deterrent to individuals who might attack a pregnant woman,
and why do you think that?
Mrs. Marciniak. I think so because if you look at the other
laws, if you look at a drunk driver, if they know they can get
punished for that crime, they are going to think twice. If an
attacker of a pregnant woman knows that they can get prosecuted
for harming or killing that woman's child, they are going to
think twice before they do it.
Mr. Chabot. And your husband actually stated that.
Mrs. Marciniak. And he stated that if he knew that there
was a law that could have prosecuted and convicted him for
murdering his own son, he wouldn't have done it, and that was
on national TV.
Mr. Chabot. Ms. Fulcher, in your testimony you criticize
H.R. 1997 because it is, ``not designed to protect women.'' You
heard Ms. Marciniak's testimony that her husband has said that
he would not have attacked her had he known he could be
prosecuted for injury or death of their unborn baby. Is it
still your contention that the Unborn Victims of Violence Act
will not deter violence against pregnant women? Yes or no.
Ms. Fulcher. The reality is----
Mr. Chabot. Did you say yes?
Ms. Fulcher. I am trying to answer the question. We have
plenty of laws on the books that allow us to prosecute a
batterer for his crimes. They still continue to do that. Yes,
we need to hold perpetrators completely accountable. This is
one of many attempts to try to do that, and there are other
ways that could do it more effectively.
Mr. Chabot. On that same note, you also said that by
recognizing the unborn child as the victim of a crime in
addition to the child's mother, ``the focus often will be
shifted 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.'' If that is
your position, do you also believe that protecting born
children from violence diverts attention away from the violence
that might be committed against their mothers?
Ms. Fulcher. No, but the particular bill in question only
addresses the violence against the unborn. In fact, it does not
recognize two victims, but only one.
Mr. Chabot. Well, right now if somebody harmed a mother and
her child, there would be two separate crimes, no question
about that. In this particular instance, we are saying that
there ought to be a separate charge and a separate penalty for
harming the unborn child as well.
Ms. Foster and Professor Bradley, let me ask you a
question. Do you think that strengthening protections for
children born or unborn will erode current statutes protecting
women from violent crime? And we will start with you, Ms.
Foster.
Ms. Foster. I need a booster seat, too. I don't see any
problem with the Unborn Victims of Violence Act in this regard,
no. I think that it is--we shouldn't be concerned about doing
all things in every bill, and I do not think that protecting
women is at odds with punishing a perpetrator. I think they are
both laudable goals. And this bill, why we support it--and the
Women Deserve Better Task Force as well as Feminists for Life--
is because we recognize the fact that knowing that a woman may
be pregnant may be a deterrent to a perpetrator who may attack
a woman of child bearing age. We agree with that and support
that. And of course, we also want programs that prevent and
support and help women and batterers to get over the problems
that they have in terms of anger management. We don't see these
things as mutually exclusive.
Mr. Chabot. Thank you. Professor Bradley?
Mr. Bradley. My answer is no. It won't divert the
protections of pregnant woman. Indeed, it will enhance them to
the extent that it gives prosecutors another weapon in the
arsenal against domestic violence and assault upon pregnant
women.
Mr. Chabot. Thank you. My time has expired. Gentleman from
New York is recognized for 5 minutes.
Mr. Nadler. Ms. Fulcher, would you answer the question that
the Chairman didn't permit you to answer?
Ms. Fulcher. Yes. I would be happy to. As I am sure this
Subcommittee knows, the Violence Against Women's Act of 1994
was reauthorized in 2000 by an overwhelming majority of the
House and Senate because everyone recognized how powerful and
effective it had been. We greatly increased the amounts of
money that were authorized because of that, and that is the
reason why we saw an increase in funding in the years you
mentioned. But the reality is that we are still turning away as
many as two-thirds of the women who are seeking assistance in
trying to leave a violent relationship. And in my mind, no,
there is not enough being done by the United States Congress.
So I think at a minimum, we need to be fully funding the
amounts of money that were authorized overwhelmingly by
Congress, and we should be going a step further to make sure
that no woman has to be turned away from services that she
needs.
Mr. Nadler. The budget is still greatly inadequate. If we
were serious about addressing this, we would increase that
budget, fully fund the act?
Ms. Fulcher. Absolutely.
Mr. Nadler. Next question, first Ms. Fulcher, then Ms.
Marciniak. Ms. Marciniak stated that this bill would be a
deterrent if her husband knew that he could be prosecuted for
damaging the fetus or killing the fetus and he would not have
done it. Ms. Fulcher, assuming the truth of that, which I do,
would the Lofgren bill be just as much a deterrent?
Ms. Fulcher. Absolutely. The penalties are the same, and as
a matter of fact, the Lofgren bill goes a step further by not
just recognizing the unborn as a victim but by recognizing the
unity of the two as a victim in the State in which they were a
victim.
Mr. Nadler. Mrs. Marciniak, do you think--why do you
disagree, or do you, that the Lofgren bill would also be a
deterrent at least to the same extent?
Mrs. Marciniak. The Lofgren bill only recognizes one
victim. There are two victims.
Mr. Nadler. That is a different question. In terms of
someone worried about if I caused the--if I damaged the fetus
of my pregnant wife, I might be prosecuted beyond the point
than if I just hit her and she weren't pregnant. Why would
there be any psychological deterrent less or more for that guy?
Mrs. Marciniak. I am not exactly understanding what you are
asking in that.
Mr. Nadler. Never mind. Professor Bradley, I was very
struck by your remarks that this bill does not in any way
establish a person, does not in way establish that a fetus is a
separate person, does not undermine the--does not go against
the comments of Roe v. Wade, et cetera, et cetera. I am struck
by the fact that every single other person who has testified,
my colleagues on this side of the aisle, Ms. Foster, say
exactly the opposite, that the whole purpose of this bill is to
establish that the fetus which was killed, it is a separate
crime, it is a separate person. Do you agree with them or not?
And if you agree with them, how does this not, again forgetting
the question of penalties, if the main difference between this
bill and the Lofgren bill is that this establishes the fetus as
a crime against a separate person, how does this not establish
the fetus as a separate person and thereby undermine the
various precedents that the Supreme Court used in Roe v. Wade
itself?
Mr. Bradley. I agree with the panelists and, I think,
rather disagree with what you said.
Mr. Nadler. The question is how can you both be right?
Mr. Bradley. We can both be right, but I think you are
wrong. I didn't say that this bill doesn't establish at least
in some sense, the ordinary legal personality of the unborn.
What I did say, and I do believe, that it is not an attempt by
Congress to establish on constitutional grounds for purposes of
the 14th amendment that these are, for lack of a more precise
term, constitutional persons within the meaning of the 14th
amendment. Now Roe says something about that. Maybe it is
obscure at points, but surely Roe talks about that prospect.
But I take it that is not at issue here. Here, in a limited
way, Congress is exercising a kind of ordinary police power
with regard to Federal jurisdiction and that power is
sufficient to recognize the unborn as persons, at least for the
limited purpose of protecting their lives.
Mr. Nadler. Without any impact on the question of the--
their being persons under the 14th amendment?
Mr. Bradley. Yes.
Mr. Nadler. I am glad to hear that, and I hope that goes
into the record because I think that is the real purpose of the
bill. Let me ask Ms. Foster; you take issue with the use of the
phrase ``interruption in the normal course of pregnancy'' in
the Lofgren bill. The sentence goes on to say, ``resulting in
prenatal injury (including termination of the pregnancy).'' The
bill before the Committee uses the term ``death of or bodily
injury to a child who is in utero.''
What besides prenatal injury or miscarriage do you think
ought to be covered? Would you urge the gentlewoman from
California to add whatever else that is to her bill as well?
Ms. Foster. I think what our problem with this bill is that
it doesn't recognize the loss. The use of the word
``interruption,'' I think, was carefully chosen and most people
understand.
Mr. Nadler. Excuse me, but that is not what you said.
Interruption in the normal course of pregnancy resulting in
prenatal injury, including termination of the pregnancy. So we
are not talking about a temporary interruption, as you implied
in your statement, as you stated in your statement. We are
talking about an interruption resulting in prenatal injury,
including termination of the pregnancy, which seems to me to be
the equivalent of the phrase in the other bill, the main bill,
the one before us, death or bodily injury to a child who is in
utero. Do you see any difference in those phrases or was that
just verbiage?
Mr. Chabot. The gentleman's time has expired, but you can
answer the question.
Ms. Foster. I recognize that a pregnancy can be terminated
by a miscarriage, by abortion, by this kind of violence and
also by live birth. So there is a lot of different ways a
pregnancy can end, one of them a very happy way with a happy,
healthy, live child. I think what is missing here is answering
the question that women are asking, will you recognize the loss
of my son or daughter, and that is what I am here today to
advocate.
Mr. Chabot. The gentlelady from Pennsylvania, Ms. Hart, is
recognized for 5 minutes.
Ms. Hart. Thank you, Mr. Chairman. And actually before I
get into my questions on that point I want to add something
that neither the Lofgren language nor Mr. Nadler seem to
recognize, a movement that really has been prevalent in both
the Federal Congress and on State legislatures over the last 15
years, which is to make sure that you are recognizing victims
of crimes. It is victims' rights. That is part of what this
bill is all about, that a family has a grave loss and that is a
big, big part of this. Unfortunately, the other language does
not recognize that family's loss, and that is what this is
really all about.
I would like to start with a question. Ms. Marciniak, thank
you for coming again and helping to illustrate the terrible
loss that you and your family suffers and for the rest of your
life. You stated in your testimony that your attacker had
mentioned this on TV, that if he thought he would be charged
with that killing--you already answered the question that the
Chairman had asked, that he said he wouldn't have hit you.
Mrs. Marciniak. Correct.
Ms. Hart. Do you think he was motivated by something that
was different than other people who would attack a pregnant
woman? Was there something unique that motivated him?
Mrs. Marciniak. No.
Ms. Hart. You think the act we are considering would be a
deterrent to others?
Mrs. Marciniak. Oh, yes.
Ms. Hart. I would like to go on, I think, to Professor
Bradley. Opponents of the bill argue and also Ms. Fulcher today
argue that recognizing the crime against the unborn child
creates a whole range of dangerous legal consequences. Ms.
Fulcher stated that the legislation holding a woman responsible
for injuries inflicted on her unborn child is possible if this
bill would pass. Others have argued that suit could be brought
on behalf of the fetus to seek Federal benefits for civil
rights claims.
Do you know of any State that has this type of legislation
in place where an unborn victim law resulted in any such
extensions of the law, and do you believe that there is a
possibility of this kind of a consequence?
Mr. Bradley. I don't think there is a possibility because
of this law. Now whether Congress has the power and if it does,
whether it wants to use it to create a civil rights action on
behalf of the unborn child survivors is a question I haven't
thought about, but it may well have the power to do so and,
perhaps, it should. But nothing in this law leads logically to
that, and certainly no court would infer from this law a cause
of action. It seems to me that this law does not compel any
particular unfortunate result if you do think those are
unfortunate results.
Ms. Hart. Also regarding that issue, we specifically state
in our language that this would not apply to a woman's action
upon herself. Is that something that a court would be likely to
misconstrue?
Mr. Bradley. I can't imagine how. Courts have proven
themselves willful at times, perhaps in the last few weeks
especially. But I can't imagine language more clear and direct
to the purpose to throw a complete immunity around a pregnant
woman with regard to all of her acts concerning that unborn
child. I can't imagine language more clear and direct.
Ms. Hart. Thank you. Ms. Fulcher, I want to thank you for
your work against domestic violence. In my 10 years as a State
Senator and here, I have been working with different groups and
working obviously to obtain funding with different programs in
my district to help victims and to help make sure we fund the
programs that help prevent domestic violence as well. You
stated in your testimony that as a result of the passage of the
Violence Against Women Act we have seen an increased number of
criminal prosecutions of domestic violence nationwide. And I
think that is fantastic, and we have seen it in our region as
well when we look at the numbers. Would you--from some of your
statements, it seems that you may think that this act may harm
that or reverse this trend and end up decreasing prosecutions
for domestic violence. Am I reading something in your
testimony?
Ms. Fulcher. I think you are reading something into it. I
am not saying that it would end up decreasing the prosecutions
for domestic violence necessarily, but that it is not doing
anything to provide added safety for victims to prevent these
crimes from happening to them.
Ms. Hart. It isn't actually--you know every law cannot do
everything. We have a number of opportunities here in the
Congress to help do those things. And one of them is a bill,
and a lot of my other colleagues have sponsored that is
sponsored by--the main sponsor is Rob Simmons from Connecticut
and deals with VOCA, the Victims of Crime Act, which was one of
those laws passed in the Nation's awakening really to facing
the fact that we have victims who are not being attended to and
are suffering during the time that the prosecutions are going
on and later. I have supported Representative Simmons' bill.
And for those of you who are not familiar with it, it would
increase funding for victims of domestic violence and programs
to help prevent it as well by removing the cap for all the
money that comes in for crime victims that go back to the crime
victims because unfortunately some of that money ends up going
back to the general fund. So that is a way for us to do that.
This bill is focused on a different issue, and I am concerned
that if we can approach your concern from a different way,
which we are doing and will continue to do, why would you
oppose the bill?
Mr. Chabot. The gentlelady's time has expired, but you can
answer the question.
Ms. Fulcher. The reason for our opposition is our concern
about how this particular piece of legislation may end up
harming women and possibly also harming their pregnancies
because of their possible reduced willingness to seek
appropriate medical attention under these violent circumstances
because they don't want their batterer to have to face a charge
of murder.
Ms. Hart. Mr. Chairman, if I may.
Mr. Chabot. Ask unanimous consent for an additional 1
minute.
Ms. Hart. Thank you, Mr. Chairman. I understand that
concern. I have worked with volunteers who, you know, man our
24-hour phone lines and things back home for battered women. It
is true that a lot of women continue to fear. But more and
more, they have opportunities to get out, whether they are
financially able to support themselves or not. And it seems to
me that that really takes us backward, and it would keep women
in a situation that they really should get out of for both them
and their children. And I understand the fear and the concern,
but I think we need to find a better way to address it and
certainly not by ignoring the fact that a child has been lost.
Mr. Chabot. Thank you. The gentleman from Virginia, Mr.
Scott, is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, there is
general agreement that crimes against pregnant women are more
heinous than crimes against others. This bill is here before
the Constitution Subcommittee for obvious reasons as we have
heard. So, Professor Bradley, I just want to ask you a couple
of questions and maybe kind of technical. You noted that
because it is a Federal criminal statute, we have limited
jurisdiction, particularly highlighted by the Lopez decision,
and that there is a list of Federal crimes that are predicates
to any action under this bill. Let me ask the first question,
there is no provision for mens rea. There is no specific intent
to harm the fetus, not even the requirement that you knew that
the woman was pregnant?
Mr. Bradley. That is right.
Mr. Scott. Separate crimes generally require separate mens
rea. How would this fair under attack on that point?
Mr. Bradley. It is unusual for a criminal statute not to
have a particular set of mind attached to it knowingly,
wittingly, recklessly, but it is not unknown although it is
unusual, and this operates in a way that several types of
statutes do operate. Felony murder is one example or, as the
saying goes, you take your victim as you find him or her. And
my answer--I guess I would incorporate in my answer the comment
I made earlier, I think it was by Ms. Marciniak, quoting a
Minnesota court, saying to the effect, look, a person who
assaults a woman of child bearing age just runs the risk that
she is pregnant and will have to bear the consequences of
injury to an unborn child if she is. That strikes me as correct
and not unfair to the defendant in that case. It is an unusual
circumstance, but not unknown.
Mr. Scott. Well, let me see how this would work when you
string all the statutes together, one is section 242, which is
the color of State law statute. If a police officer were
illegally arresting someone who subsequently had a miscarriage
and he didn't know she was pregnant and didn't intend to harm
the fetus and the fetus died, is he looking at murder?
Mr. Bradley. Not really. First, that person, I guess the
police officer in your example, would have to commit another
Federal crime.
Mr. Scott. Violation of section 242?
Mr. Bradley. You have to commit another offense, which
would be defined elsewhere in title 18.
Mr. Scott. Violation of title 18, section 242 depriving any
person of Federal, legal, or constitutional rights. And
subsequently or during the illegal arrest, there is a
miscarriage. Is the police officer looking at a murder rap?
Mr. Bradley. Well, no, if it is a miscarriage--the
officer's act would have had to cause the death of that child.
If it caused the miscarriage, there could be liability for
homicide. I am not sure if it would be murder.
Mr. Scott. The way the bill reads, you are guilty of the
same punishment provided under Federal law for that conduct had
that injury or death occurred to the unborn child's mother,
that is death. So you would be looking at a homicide.
Mr. Bradley. Right. I think that is correct.
Mr. Scott. The police officer would be looking at a
homicide. There is also provisions in here for drug dealers. If
a person is involved in a major drug conspiracy, that is part
of a drug conspiracy, which means you don't have to be the
kingpin but just part of it, if the drugs cause a miscarriage,
you are looking at a murder rap?
Mr. Bradley. I think that is correct also.
Mr. Scott. How does double jeopardy work on this? If you
lose the original charge, can you come back for the crime
against the fetus?
Mr. Bradley. Basically, you would have to charge both
offenses at the same time.
Mr. Scott. Is that in the bill?
Mr. Bradley. That is not in the bill, but I think that
would be the normal operation of double jeopardy principles. If
it is a single act, whether selling drugs or a police officer
brutalizing a pregnant women, you have to bring one indictment,
all of the charges that arise from that act----
Mr. Scott. If you have an explosion, do you have to bring
everybody in the same indictment?
Mr. Bradley. At least generally, yes. If you have one
criminal act, planting one bomb or causing one explosion, you
have to bring everybody into that indictment who is killed as a
result of that act, yes.
Mr. Scott. So if you leave somebody out you can't come back
later?
Mr. Bradley. Typically not.
Mr. Scott. And you can't have a Federal charge and a State
charge like they are doing in Oklahoma?
Mr. Bradley. Well, you could do that because double
jeopardy doesn't bind the different sovereignties, as they say.
The Federal Government and the States can operate independently
of each other and, I guess, often do. And one going first
doesn't have any effect upon the liberty of the other
jurisdiction to go second. Whether the State goes first or
second doesn't matter either.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. Feeney. Thank you, Mr. Chairman. I would like to direct
a question or two to Mr. Bradley and maybe he can correct me
where I am wrong. And first I want to welcome him back as well
as the other panelists. You will have to understand it has been
20 years since I have been out of law school. I spent 3 years
answering law professors' questions and turnabout eventually is
fair play, but I have a lot of catching up to do. And I guess
the first thing I want to do is thank you for your
jurisdictional argument where the predicate for Federal
jurisdiction is laid upon other Federal offenses. I think the
gentleman, Mr. Scott, who is a good friend and able lawyer, may
have some ideas about which offenses ought to be excluded and
some additional ones that may want to be included. But more to
the point about the fact, we are the Constitutional
Subcommittee. I think some of the questions here raised are the
perceived offenses against the alter of the Roe decision. I
want to know whether you read the recent Lawrence decision by
the United States Supreme Court.
Mr. Bradley. Yes.
Mr. Feeney. Maybe you can correct me on where my analysis
is wrong about where we may be heading based on their approach
toward stare decisis. With respect to the underlying law in
Texas, I thought it was a silly law, as Justice Thomas said. I
would have voted to either eradicate the offense altogether or
diminish the penalties. But nonetheless the question is who
makes law. And under the Bradley decision--let us start so we
understand where I am going here. In Griswold, the Supreme
Court under some penumbra discovered a right that was later
applied in the Roe case to say that the woman had the right to
terminate pregnancy under certain conditions, viability, et
cetera. In the Bowers case in 1986, the United States Supreme
Court reviewing history, reviewing common law, basically said
there was nothing in the Constitution that guaranteed the right
to engage in certain private behavior known as sodomy and,
therefore, States could do what they liked. In the Lawrence
case, as I recently understand it and, I think, this is very
important of where we may be going here and some of the
concerns of the minority opponents on stare decisis. But the
question there was the same as in Bowers, does a State have the
right to prescribe certain private behavior? What the Court
said is forget about Bowers. That was 17 years ago. What it
basically said and it flatly stated that the Bowers decision
was wrongly decided, so they threw out their own precedent. In
fact, they cited as a reason to throw out the Bowers case the
fact that some 25 States had under the democratic process
actually changed the law to stay up with cultural norms and
customs and basically either permitted the type of behavior,
sodomy, or at least released or lowered the activity. So the
fact that democracy was functioning full well did not stop the
Court from creating a constitutional right to a behavior that
was not a constitutional right 17 years ago.
Moreover, a very interesting twist, they actually cited,
remember their own precedent in Bowers, as I understand it and
I want you to correct me, their own precedent in Bowers is not
enough to stand on, but they cited a precedent in the European
Court of Human Rights as a good reason to throw out at least 17
years worth of jurisprudence on whether States have the
authority and the power to outlaw this behavior. Well,
Congresswoman Hart has suggested that there is a growing
democratic movement in States and Congress to recognize that
there may be more victims of specific crimes than just the ones
that are laid out in our statutes. And what this bill does is
to suggest effectively that Laci and Conner are more than one
person. Now, even if the Roe decision doesn't recognize--
neither does it, as you say--it doesn't say that there are two
persons, but it doesn't say there may not be two persons. And I
guess it is possible under the jurisprudential legerdemain that
the Lawrence court engaged it to suggest that culture, watching
the Laci Peterson case, watching some of the horrific tragedies
that one of our good witnesses described today, maybe our
culture will catch up and suggest that Laci and Conner were two
people and not one. Maybe you can tell me where my legal
understanding is wrong about all this.
Mr. Bradley. I think you get an A or at least an A minus in
this exam, but it seems to me that you know clearly in Lawrence
v. Texas, the Supreme Court majority at least was gauging or
gearing its own reasoning to an emerging cultural consensus
and, as you correctly point out, involving not only American
legal culture but European legal culture. So be that as it may,
it would seem there is reason to think that there is now an
emerging cultural consensus, partly based upon the notoriety of
Laci and Conner, I guess partly based upon the evidence at
these hearings, that there really are two victims in the kind
of violent acts we are talking about. There is an emerging
cultural consensus of the general type that the Court in
Lawrence took quite a lot of notice of.
Mr. Chabot. The gentleman's time has expired. The gentleman
from California, Mr. Schiff, is recognized for 5 minutes.
Mr. Schiff. I thank the Chairman for yielding. And I want
to start at the outset with a comment, which is really more
about the practices in the House than about this Subcommittee,
and our Chairman does an extraordinarily fine job. I wish we
got to the point in the House regardless of who was in the
majority and minority that we had an equal number of witnesses
on both sides of the issue. To the degree that any of these
issues help inform the Members' minds, I think it would be
useful for us to have the issue equally portrayed. And
Professor, I am going to put you in a little different position
but one you should be used to from your academic environment,
and that is I would like you to speak for the opposition from a
legal point of view and that is if you were a constitutional
scholar appearing on the other side of the issue on the
Committee today, what is the most powerful argument you can
make against this bill?
Mr. Bradley. The one that Mr. Nadler made.
Mr. Schiff. Tell me how you would fashion it.
Mr. Bradley. I would fashion it pretty much the way he did;
that is to say, if you look at Roe and take away from it a
moderate understanding, you would have a sense that the spirit
of Roe or perhaps the meaning of Roe is that the unborn are not
persons and Congress or States are powerless to make them
persons. That is one reading of Roe. It is not the reading that
I myself think is the better one, and I have disagreed with Mr.
Nadler's representations of Roe, but I think it is a plausible
view of Roe although I would stress that the Court very
studiously asserts over and over we are not saying finally who
or what is a person. We are just saying that women get to do
what they want when they are pregnant. But I think a decisive
counterargument to Mr. Nadler's argument is the Webster case.
Mr. Schiff. Before we get to that, because you are a better
advocate for both sides than that, what is--what would you
point to as further support of that reading of Roe?
Mr. Bradley. Well, clearly the result in Roe is anomalous
if you take the view of the unborn persons. You don't put in
the charge of other persons, in this case walking around women,
the fate or the life or death of any other person.
Mr. Schiff. Are there any other subsequent Supreme Court
precedents that indicate that you would take that view of Roe
even in the context where you are not talking about a woman
deciding to terminate her pregnancy but rather a third person
committing a crime?
Mr. Bradley. I don't think so. I think that Roe has to do
with the pregnant woman context. I don't know an argument
based----
Mr. Schiff. If we had Larry Tribe here on the other side
what would he say?
Mr. Bradley. Larry Tribe would say that he probably
disagrees with his honorable colleague from Notre Dame but that
the better reading of Roe is more or less as Mr. Nadler
describes it and that Webster should be disregarded as
incorrect, poorly reasoned or in any event to be disregarded.
Mr. Schiff. Let me ask you then a less constitutional
question, a more practical question, and that is what is the
disadvantage, if there is a legitimate constitutional question
here, what is the disadvantage from a practical criminal law
standpoint of beefing up the penalty to the same point
effectively where the sentences would be the same? Doesn't that
avoid the constitutional question? Isn't it generally desirable
from both a congressional and a Supreme Court position to avoid
the unnecessary constitutional questions when you have a remedy
that will accomplish the same objective?
Mr. Bradley. I think it is probably generally desirable
though in certain cases I would hope that Congress would (in a
certain sense) provoke a confrontation with the Court if it
thought the Court were on the wrong track regarding the
Constitution, and Congress would be trying to help the Court
correct its wrong course. But generally, sure, conflict
avoidance is the preferred route. But in this case I myself
don't think there is a constitutional question. There are 28 or
so of these laws in the States. Many have been tested up to the
State's highest courts. I don't think there have been any
holding these laws as unconstitutional. So I don't think in
this case even a risk averse Member of Congress would be
running much risk of a confrontation with the courts.
Mr. Schiff. Ms. Fulcher, if I could ask you to play the
same devil's advocate role. It seems to me the most compelling
argument in favor of this idea would be not in the case where
the mother is murdered as well, but rather where the mother is
only injured and the fetus is terminated. How do you accomplish
the same level of penalties in that kind of a circumstance,
same deterrent factor? In my view, if someone is going to kill
a pregnant woman, realizing they are murdering the woman, the
fact that they are murdering a second fetus at the same time is
not much of an additional disincentive. If they are going to
commit murder, they are going to commit murder. But it seems to
me different if you are talking about an assault that has the
effect of terminating the life of the fetus as well.
Mr. Chabot. The gentleman's time has expired, but the
gentleman can answer the question, or gentlelady.
Ms. Fulcher. I would say that if your goal is to either
prevent through deterrence or to provide accountability, that
doing so is about penalties and what ultimately happens to the
perpetrator. This is one of a number of different proposals
that have been put forth that would do that.
Mr. Schiff. Mr. Chairman, may I ask a brief question on
that?
Mr. Chabot. Yes.
Mr. Schiff. How do you achieve the same deterrent impact if
an assault, for example, might carry 1 to 5 years, whereas a
murder charge could carry up to life? Wouldn't it be ironic if
you change the penalty--how would you change the penalty, I
guess is the question, so that you have a much greater
deterrent impact in the case of a pregnant woman where you have
a miscarriage?
Ms. Fulcher. Well, I think there is good precedent and law
for enhanced penalties depending on who the victim is and what
the circumstances of the crime are, and there could be a means
of enhancing the penalties if that would occur in this
situation.
Mr. Schiff. So you could have a statute that says that an
assault maybe carries 1 to 5 years but an assault that has the
effect of terminating a pregnancy would carry up to life?
Ms. Fulcher. Sure.
Mr. Chabot. The gentleman from New York by unanimous
consent is given the opportunity to ask one additional
question.
Mr. Nadler. Thank you, Mr. Chairman. The question is for
Professor Bradley. I want to put you in the hot seat now, and I
appreciate your remarks about my constitutional views but going
back to what we were discussing about the question of
personhood and the question of the Supreme Court saying that--
well, Supreme Court certainly did not say that a fetus is a
person within the meaning of the 14th amendment.
Mr. Bradley. That is correct.
Mr. Nadler. My fear and the real reason for a lot of the
opposition to this bill is that some of us can see precisely a
development a few years down the road in which a future Supreme
Court says the following: The passage by Congress of the Unborn
Victims of Violence Act and the signature by the President and
the similar passage of similar acts in X number of State
legislatures and signed by X number of Governors shows the
developing societal consensus that a fetus is a person within
the meaning of the 14th amendment, and we so hold, and
therefore, abortion is murder. It is not status quo ante before
the Roe v. Wade. States can't decide to allow abortions, and to
allow an abortion you need a constitutional amendment. Now you
are saying, as I understand it, that that is not a likely
outcome or a danger of this bill.
I would ask you the following: Do you think that this bill
in fact could in any way lead to such a thing or promote such a
thing? And secondly, would you object, would you see any reason
to object? Would you see the bill weaker in any way in terms of
its professed objective if an amendment were to be included
saying that this bill has no bearing or has no comment or
doesn't have any relationship to the question of whether a
fetus is a person under the meaning of the 14th amendment?
Mr. Bradley. I think that is what it does say, and section
(c) does say this has nothing to do with abortion whatsoever.
Mr. Nadler. So if it were made more specific and said that
this implies no personhood for purposes of the 14th amendment,
you would think it would not weaken the bill and you would have
no objection?
Mr. Bradley. I think that is what it does say.
Mr. Nadler. Thank you.
Mr. Chabot. Gentleman's time has expired. In fairness,
since I recognized the gentleman for one last question, let me
ask one last question as well by unanimous consent, and I will
just direct mine to Mrs. Marciniak. Again looking over at that
photograph over there, you are trying to convince this
Committee, and I think you are probably the one in this room
that has felt this tragedy most directly and most profoundly. I
will give you one last shot. Why do you think it is important
that we recognize that there are two separate victims in that
photograph, and what difference has it made in the lives that
we see in that picture?
Mrs. Marciniak. Look at the picture and tell me how many
people you see there? There is two, my son Zachariah who gave
his life, and there is me, and I almost gave mine. The reason I
survived I feel is to right the injustices that are going on.
Wisconsin didn't have a law. If you think the pain of losing a
child at the time is the worst you could ever feel, by having
the law that you believe tell you that he wasn't a victim was
worse. The pain that I feel today and I will for the rest of my
life is tripled because of that, because the law told me my son
didn't exist.
I took care of my son while he was inside of me. We waited
for him. We decorated his nursery. We named him before he was
born. We have the right for justice, and that is what we are
begging for you to do. Stop letting these unborn victims die in
vain.
Mr. Chabot. Thank you very much.
Mr. Nadler. Mr. Chairman.
Mr. Chabot. Mr. Nadler.
Mr. Nadler. Could you give us some idea as to the
scheduling of this bill? The hearing I assume is basically
over.
Mr. Chabot. The hearing is going to be concluded.
Mr. Nadler. Do you anticipate a Subcommittee and a full
Committee markup? Do you anticipate that we will have floor
action before the August recess?
Mr. Chabot. We will have to consult with the Chairman of
the overall Committee, and we will certainly let the minority
side know what our thinking is. At this time, we don't have a
date set.
Mr. Nadler. I ask for unanimous consent, Mr. Chairman, that
all Members have 5 legislative days to revise and extend their
remarks and submit additional materials for the record.
Mr. Chabot. Without objection. If there is no further
business to come before the Committee, we are adjourned.
[Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
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Documents Submitted by Chrairman Steve Chabot
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State Unborn Victims LawsState Homicide Laws That Recognize Unborn
VictimsNational Right to Life CommitteeJune 23, 2003
[latest version always posted at http://www.nrlc.org/Unborn--
victims/Statehomicidelaws092302.html]
FULL-COVERAGE UNBORN VICTIM STATES (15)
(States With Homicide Laws That Recognize Unborn Children as
Victims
Throughout the Period of Pre-natal Development)
Arizona: The killing of an ``unborn child'' at any stage of pre-
natal development is manslaughter. Ariz. Rev. Stat. Sec. 13-1103 (A)(5)
(West 1989 & Supp. 1998). Also to be read with Ariz. Rev. Stat. Sec.
13-702(c)(10).
Idaho: Murder is defined as the killing of a ``human embryo or
fetus'' under certain conditions. The law provides that manslaughter
includes the unlawful killing of a human embryo or fetus without
malice. The law provides that a person commits aggravated battery when,
in committing battery upon the person of a pregnant female, that person
causes great bodily harm, permanent disability or permanent
disfigurement to an embryo or fetus. Idaho Sess. Law Chap. 330
(SB1344)(2002).
Illinois: The killing of an ``unborn child'' at any stage of pre-
natal development is intentional homicide, voluntary manslaughter, or
involuntary manslaughter or reckless homicide. Ill. Comp. Stat. ch.
720, Sec. Sec. 5/9-1.2, 5/9-2.1, 5/9-3.2 (1993). Ill. Rev. Stat. ch.
720 Sec. 5/12-3.1. A person commits battery of an unborn child if he
intentionally or knowingly without legal justification and by any means
causes bodily harm to an unborn child. Read with Ill. Rev. Stat. ch.
720 Sec. 5/12-4.4.
Louisiana: The killing of an ``unborn child'' is first degree
feticide, second degree feticide, or third degree feticide. La. Rev.
Stat. Ann. Sec. Sec. 14:32.5 - 14.32.8, read with Sec. Sec. 14:2(1),
(7), (11) (West 1997).
Michigan: The killing of an ``unborn quick child'' is manslaughter
under Mich. Stat. Ann. Sec. 28.555. The Supreme Court of Michigan
interpreted this statute to apply to only those unborn children who are
viable. Larkin v. Cahalan, 208 N.W.2d 176 (Mich. 1973). However, a
separate Michigan law, effective Jan. 1, 1999, provides felony
penalties for actions that intentionally, or in wanton or willful
disregard for consequences, cause a ``miscarriage or stillbirth,'' or
cause ``aggravated physical injury to an embryo or fetus.''(M.C.L.
756.90)
Minnesota: The killing of an ``unborn child'' at any stage of pre-
natal development is murder (first, second, or third degree) or
manslaughter, (first or second degree). It is also a felony to cause
the death of an ``unborn child'' during the commission of a felony.
Minn. Stat. Ann. Sec. Sec. 609.266, 609.2661- 609.2665, 609.268(1)
(West 1987). The death of an ``unborn child'' through operation of a
motor vehicle is criminal vehicular operation. Minn. Stat. Ann.
Sec. 609.21 (West 1999).
Missouri: The killing of an ``unborn child'' at any stage of pre-
natal development is involuntary manslaughter or first degree murder.
Mo. Ann. Stat. Sec. Sec. 1.205, 565.024, 565.020 (Vernon Supp. 1999),
State v. Knapp, 843 S.W.2d 345 (Mo. 1992), State v. Holcomb, 956 S.W.2d
286 (Mo. App. W.D. 1997).
Nebraska: The killing of an ``unborn child'' at any stage of pre-
natal development is murder in the first degree, second degree, or
manslaughter. Neb. Rev. Stat. Sec. 28-391 to Sec. 28-394. (2002)
North Dakota: The killing of an ``unborn child'' at any stage of
pre-natal development is murder, felony murder, manslaughter, or
negligent homicide. N.D. Cent. Code Sec. Sec. 12.1-17.1-01 to 12.1-
17.1-04 (1997).
Ohio: At any stage of pre-natal development, if an ``unborn member
of the species homo sapiens, who is or was carried in the womb of
another'' is killed, it is aggravated murder, murder, voluntary
manslaughter, involuntary manslaughter, negligent homicide, aggravated
vehicular homicide, and vehicular homicide. Ohio Rev. Code Ann.
Sec. Sec. 2903.01 to 2903.07, 2903.09 (Anderson 1996 & Supp. 1998).
Pennsylvania: An individual commits criminal homicide in the first,
second, or third-degree, or voluntary manslaughter of an ``unborn
child'' if the individual intentionally, knowingly, recklessly or
negligently causes the death of an unborn child. 18 Pa. Cons. Stat.
Ann. Sec. Sec. 2601 to 2609 (1998) ``Unborn child'' and ``fetus.''
Each term shall mean an individual organism of the species Homo sapiens
from fertilization until live birth.''
South Dakota: The killing of an ``unborn child'' at any stage of
pre-natal development is fetal homicide, manslaughter, or vehicular
homicide. S.D. Codified Laws Ann. Sec. 22-16-1, 22-16-1.1, 22-16-15(5),
22-16-20, and 22-16-41, read with Sec. Sec. 22-1-2(31), 22-1-2(50A)
(Supp. 1997).
Texas: Under a law signed June 20, 2003, and effective September 1,
2003, the protections of the entire criminal code extend to ``an unborn
child at every stage of gestation from fertilization until birth.'' The
law does not apply to ``conduct committed by the mother of the unborn
child'' or to ``a lawful medical procedure performed by a physican or
other licensed health care provider with the requisite consent.'' (SB
319, Prenatal Protection Act)
Utah: The killing of an ``unborn child'' at any stage of pre-natal
development is treated as any other homicide. Utah Code Ann. Sec. 76-
5-201 et seq. (Supp. 1998)and UT SB 178 (2002).
Wisconsin: The killing of an ``unborn child'' at any stage of pre-
natal development is first-degree intentional homicide, first-degree
reckless homicide, second-degree intentional homicide, second-degree
reckless homicide, homicide by negligent handling of dangerous weapon,
explosives or fire, homicide by intoxicated use of vehicle or firearm,
or homicide by negligent operation of vehicle. Wis. Stat. Ann.
Sec. Sec. 939.75, 939.24, 939.25, 940.01, 940.02, 940.05, 940.06,
940.08, 940.09, 940.10 (West 1998).
PARTIAL-COVERAGE UNBORN VICTIM STATES (13)
(States with Homicide Laws That Recognize Unborn Children as
Victims,But only During Part of the Period of Pre-natal Development)
NOTE: These laws are gravely deficient because they do not recognize
unborn children as victims during certain periods of their pre-natal
development. Nevertheless, they are described here for informational
purposes.
Arkansas: The killing of an ``unborn child'' of twelve weeks or
greater gestation is capital murder, murder in the first degree, murder
in the second degree, manslaughter, or negligent homicide. Ark. Stat.
Ann. Sec. 5-1-102(13)(b)(i)(a), read with Ark. Stat. Ann. Sec. Sec.
5-10-101 to 5-10-105. (A separate Arkansas law makes it a battery to
cause injury to a woman during a Class A misdemeanor to cause her to
undergo a miscarriage or stillbirth, or to cause injury under
conditions manifesting extreme indifference to human life and that
results in a miscarriage or stillbirth. Ark. Stat. Ann. Sec. 5-13-201
(a)(5)(a)).
California: The killing of an unborn child after the embryonic
stage is murder. Cal. Pen. Code Sec. 187(a) (West 1999)
Florida: The killing of an ``unborn quick child'' is manslaughter,
a felony of the second degree. Fla. Stat. Ann. Sec. 782.09 (West
1999). The killing of an unborn child after viability is vehicular
homicide. Fla. Stat. Ann. Sec. 782.071 (West 1999).
Georgia: The killing of an ``unborn child'' after quickening is
feticide, vehicular feticide, or feticide by vessel. Ga. Code Ann.
Sec. 16-5-80 (1996); Sec. 40-6-393.1 (1997); and Sec. 52-7-12.3
(1997).
Indiana: The killing of ``a fetus that has attained viability'' is
murder, voluntary manslaughter, or involuntary manslaughter. Indiana
Code 35-42-1-1, 35-42-1-3, 35-42-1-4.
Massachusetts: The killing of an unborn child after viability is
vehicular homicide. Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984).
The killing of an unborn child after viability is involuntary
manslaughter. Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989).
Mississippi: The killing of an ``unborn quick child'' is
manslaughter. Miss. Code Ann. Sec. 97-3-37 (1994).
Nevada: The killing of an ``unborn quick child'' is manslaughter.
Nev. Rev. Stat. Sec. 200.210 (1997).
Oklahoma: The killing of an ``unborn quick child'' is manslaughter.
Okla. Stat. Ann. tit. 21, Sec. 713 (West 1983). The killing of an
unborn child after viability is homicide. Hughes v. State, 868 P.2d 730
(Okla. Crim. App. 1994).
Rhode Island: The killing of an ``unborn quick child'' is
manslaughter. The statute defines ``quick child'' to mean a viable
child. R.I. Gen. Laws Sec. 11-23-5 (1994).
South Carolina: The killing of an unborn child after viability is
homicide. State v. Horne, 319 S.E.2d 703 (S.C. 1984); State v. Ard, 505
S.E.2d 328 (S.C. 1998).
Tennessee: The killing of an unborn child after viability is first-
degree murder, second-degree murder, voluntary manslaughter, vehicular
homicide, and reckless homicide. Tenn. Code Ann. Sec. 39-13-201, 39-13-
202, 39-13-210, 39-13-211, 39-13-213, 39-13-214, 39-13-215 (1997 &
Supp. 1998).
Washington: The killing of an ``unborn quick child'' is
manslaughter. Wash. Rev. Code Ann. Sec. 9A.32.060(1)(b) (West Supp.
1999).
CONFLICTING STATUTES
New York: Under New York statutory law, the killing of an ``unborn
child'' after twenty-four weeks of pregnancy is homicide. N.Y. Pen. Law
Sec. 125.00 (McKinney 1998). But under a separate statutory provision,
a ``person'' that is the victim of a homicide is statutorily defined as
a ``human being who has been born and is alive.'' N.Y. Pen. Law Sec.
125.05 (McKinney 1998). See People v. Joseph, 130 Misc. 2d 377, 496
N.Y.S.2d 328 (County Court 1985); In re Gloria C., 124 Misc.2d 313, 476
N.Y.S.2d 991 (N.Y. Fam. Ct. 1984); People v. Vercelletto, 514 N.Y.S.2d
177 (Co. Ct. 1987).
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Resposnse Submitted by Representative Steve King
I would like to respond to the opening statement made by the
Ranking Member from New York, Mr. Nadler and refute some of his
unfounded accusations.
Several of my colleagues, including Ranking Member Nadler in his
opening statement, take exception with the fact that this bill would
consider a fetus, embryo, or zygote as a person and a victim of a
crime. This bill uses the term 'child in utero' and defines it as ``a
member of the species homo sapiens, at any stage of development, who is
carried in the womb.'' (H.R. 1997, page 4, lines 21-25) They claim that
this definition gives an unborn child status as a person and is
therefore at odds with the Supreme Court decision in Roe v. Wade, that
this bill is just an attempt to undermine a woman's 'right to choose',
and that the use of this definition will lead to further legislation
infringing on women's constitutional protections. However, it appears
that none of these dire consequences were of concern to Mr. Nadler, Mr.
Conyers, Mr. Scott, or Mr. Watt when they voted for The Innocent Child
Protection Act of 2000 on July 25, 2000. (Congressional Record - House,
July 25, 2000, page H6841) That bill contained the term 'child in
utero' and defined that term using the exact same language with which
it is defined in the resolution before us now. What has changed?
Opponents who say The Unborn Victims of Violence Act violates the
principles set forth in Roe are simply wrong. We are not mired in the
``back alleys of the abortion debate'' as Mr. Nadler contends. We are
not ``playing abortion politics.'' We are protecting the unborn
children that women have chosen to bring into this world. The Act
itself specifically exempts any conduct relating to an abortion, both
by medical professionals and the mother herself.
In his opening statement, Mr. Nadler says that in its decision in
Roe ``[t]he Court clearly said: the unborn have never been recognized
in the whole sense, and concluded that 'person', as used in the
Fourteenth Amendment of the Constitution, does not include the
unborn.'' (internal quotations omitted) What he fails to add is that
The Court also explicitly stated that it was not resolving ``the
difficult question of when life begins.'' (410 U.S. at 159) The court
may have said that unborn children are not persons in the whole sense,
but there is nothing in Roe that prohibits Congress from recognizing
the lives of unborn children outside of the context of a woman's right
to an abortion as specifically defined in that case. In fact, fifteen
states already have laws that would protect unborn children throughout
the entire period of prenatal development and another thirteen
recognize unborn children as victims during part of their prenatal
development. Unborn children are routinely recognized as persons for
the purposes of inheritance and tort injury, and there is no reason why
they cannot be recognized as persons in this context as well.
Mr. Nadler and company claim that this is just the first step in a
path that would eventually lead to banning abortion. That could not be
further from the truth. This act would exempt a pregnant woman from any
harm to her own unborn child as a result of her own actions. This in no
way infringes on a woman's freedom. While I would not object to making
abortion illegal once again, and I would support limitations on the
behavior of a woman when that behavior infringes on her child's
unalienable right to life, these areas are simply not at issue in this
bill.
The Roe decision was based on a woman's right to privacy,
preventing the state from interfering with her right to make personal
reproductive decisions. Thugs and batterers have no such right. Mr.
Nadler and my other colleagues opposing this bill tout a woman's 'right
to choose' an abortion, but women also have the right to choose to have
a child. While they claim to support this proposition, they would deny
that a child a woman has chosen to carry is a person. Once a woman has
chosen to have a child, no one can take this right away from her, and
the federal law should reflect this, punishing those who take the life
of an unborn, but nonetheless loved and valued, member of a family.
I am unsure how the Innocent Child Protection Act that many of my
colleagues--including the gentleman from New York--supported, can be
devoid of the same evil intentions and catastrophic outcomes as have
been attributed to the Unborn Victims of Violence Act. Perhaps it is
because the former bill aligned with the ideological priorities of
those who sit across the aisle more conveniently than the latter.
Whatever the reason for this discrepancy, such doomsday predictions are
as unfounded in this case as they would have been in July, 2000. We
will not execute a pregnant woman, regardless of the heinousness of her
crime, because we know that her ``fetus'' is a unique human being with
the full rights of personhood. The current bill is about protecting
innocent 'children in utero' as well--children who have no less need
for protection from harm than do the unborn children of women convicted
of crimes and sentenced to death.
Mr. Nadler further contends that this bill ignores the ``truly
grotesque crime against the woman'' carrying the child. Once again,
this is not true. We already have numerous laws punishing assault,
battery, and murder. This bill would augment these crimes, which
already exist to protect women, by also making the same behavior
criminal with respect to the unborn child.
Mr. Nadler appears to be more concerned with protecting the
criminals who would commit these crimes than the unborn children
injured and killed by them. He correctly points out that an attacker
would not even need to know that a woman was pregnant to be punished
under this law. However, the settled legal principle of transferred
intent makes it unnecessary that an attacker know of the child's
existence to be punished. If a person commits a crime with the intent
to injure Victim A, but instead injures Victim B, that person's intent
to injure A is transferred to B, and the person is held responsible for
B's injuries. Any person who attacks a pregnant woman with an intent to
injure her is therefore responsible for the injuries to her unborn
child. Would Mr. Nadler really require a woman to tell her attacker she
is pregnant if she wants to protect her child? This would be a
preposterous imposition and would violate a woman's freedom and privacy
more than anything in the bill we are considering today.
Mr. Nadler has challenged the commitment of those who support this
bill to protecting women. He asks why we are ``short-changing funding
for the Violence Against Women Act.'' He knows as well as any other
member of this committee that the appropriations process is about the
distribution of limited funds. Tough choices must be made. The fact
that a majority of the House has not seen fit to appropriate the full
amount requested for this program does not mean we are ignoring the
issue of violence against women or choosing to fight symbolic battles
rather than helping women. In fact, this bill would be an additional
deterrent to anyone considering committing violence against a woman,
and has the added benefit of not requiring additional appropriations.
This bill contributes to the prevention of and punishment for violence
against women.
Mr. Nadler has also asserted that ``homicide is the leading killer
of young women, pregnant or not. . . .'' This is false. While homicide
is a leading killer of young women, accidents are the leading cause of
death for young women ages twenty to thirty-four. Homicide is the
second most frequent cause of death for women ages twenty to twenty-
four and the fifth-leading cause of death for women ages twenty-five to
thirty-four. The homicide rate for pregnant women is greater than the
homicide rate for all women. (source: NOW website) While I do not
dispute the fact that this is a serious problem, this issue is too
important to let rhetorical flourish take precedence over truth.
Mr. Nadler and others have accused those of us who support this
bill of ``playing abortion politics'' and fighting a ``battle in a war
of symbols.'' We are not playing politics. This is not symbolic. This
is about the real goal of protecting unborn children from violence
committed against them and their mothers. This is about punishing those
who would injure or take the life of a child whom a woman has chosen to
bring into this world.
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