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72–611 2001

S. HRG. 106–1067

PROTECTING OUR SILENT VICTIMS: THE UNBORN

VICTIMS OF VIOLENCE ACT

HEARING

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON

S. 1673

FEBRUARY 23, 2000

Serial No. J–106–65

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 8

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 2

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

Smith, Hon. Bob, a U.S. Senator from the State of New Hampshire, prepared

statement .............................................................................................................. 67

WITNESSES

Acheson, Eleanor D., Assistant Attorney General, Office of Policy Development, U.S. Department of Justice, prepared statement ................................... 10

Bradley, Gerard V., Professor of Law, University of Notre Dame, South Bend,

IN ........................................................................................................................... 38

Croston, William, Charlotte, NC ............................................................................ 29

Daly, Joseph P., Middletown, OH .......................................................................... 31

Davidson, Michael, J., Lieutenant Colonel, U.S. Army Judge Advocate, Fort

McPherson, GA ..................................................................................................... 47

Fulcher, Juley, Public Policy Director, National Coalition Against Domestic

Violence, Washington, DC ................................................................................... 52

Graham, Hon. Lindsey O., a Representative in Congress from the State

of South Carolina ................................................................................................. 20

Pace, Shiwona, Little Rock, AR .............................................................................. 26

Weich, Ronald, Zuckerman, Spaeder, Goldstein, Taylor, and Kolker, LLP,

Washington, DC ................................................................................................... 42

APPENDIX

PROPOSED LEGISLATION

Bill S. 1673 ............................................................................................................... 59

ADDITIONAL SUBMISSIONS FOR THE RECORD

Dempsey, Hon. Terry, Judge of the Fifth District of Minnesota, prepared

statement .............................................................................................................. 67

Rubin, Peter J., Visiting Associate Professor of Law, Georgetown University

Law Center, prepared statement ........................................................................ 68

(1)

PROTECTING OUR SILENT VICTIMS: THE

UNBORN VICTIMS OF VIOLENCE ACT

WEDNESDAY, FEBRUARY 23, 2000

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 10:04 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators DeWine, Leahy, and Feinstein.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

The CHAIRMAN. Well, if we can begin, we are happy to welcome

you all here to the Judiciary Committee this morning to consider

the Unborn Victims of Violence Act, S. 1673. I welcome you all here

this morning to this very important hearing on this very important

legislation, the Unborn Victims of Violence Act.

I want to begin by thanking my colleague, Senator DeWine, for

his leadership on this issue, and I appreciate that Senator DeWine

has a particular interest in this legislation because of his own State

of Ohio’s history on this matter. But this is clearly an issue that

is or ought to be compelling to all of us.

In my own home State of Utah, if a criminal assaults or kills a

woman who is pregnant and thereby causes death or injury to the

unborn child, the criminal faces the possibility of being prosecuted

for having taken or injured that unborn life. Twenty-three additional States have similar laws on the books. Eleven of these States

recognize the unborn child as a victim throughout the period of

their prenatal development. This is only proper. It seems to me this

is only just.

But under existing Federal criminal statutes, if a criminal assaults or kills a woman who is pregnant and thereby causes death

or injury to that unborn child, the criminal faces no consequences

in our Federal criminal justice system for taking or injuring that

unborn life. This is wrong and it is not justified.

The bill we hear testimony on today simply seeks to address this

disparity in the law by making it a separate Federal offense to kill

or injure an unborn child during the commission of certain already

defined Federal crimes committed against the unborn child’s mother.

I cannot imagine why anyone would oppose this bill. The only

reason for opposition that I can suppose is that some in the prochoice movement believe that our bill draws attention to the effort

2

to dehumanize, desensitize, and depersonalize the unborn child.

Given the political and legal arguments of abortion supporters, it

may be difficult for them to concede an unborn child is human and

therefore a victim of a crime.

Nevertheless, it is not our intention to turn this into a battle

about abortion. In no way does this bill interfere with the ability

of a woman to have an abortion under current law. It does not permit the prosecution for any abortion to which a woman consents.

It does not permit the prosecution of the woman for any action,

legal or illegal, in regard to her unborn child. In my view, we

should all be able to support this modest effort to protect mothers

and their unborn children.

I want to welcome our impressive group of witnesses to the hearing this morning. In particular, I would like thank all of those witnesses on our second panel. Their personal experiences will do

much, I think, to inform our debate on this legislation.

Finally, before turning to our ranking member and then to Senator DeWine, I feel it necessary just to comment briefly on one aspect of the debate on this legislation. As I understand it, at least

during the House’s consideration of this legislation, one of the arguments of opponents was that this bill would somehow weaken

our efforts against domestic violence by diverting the attention of

the legal system away from domestic violence or other violence

against women and directing the focus onto the unborn.

With all due respect, I find this argument truly disingenuous.

For more than 10 years now, I have worked on the issue of domestic violence and violence against women, and led the fight, along

with Senator Biden, to enact landmark legislation on this issue. I

have fought year after year for funding of programs to help women

who are the victims of violence and even publicly called attention

to the fact that, notwithstanding their rhetoric, this administration

was not doing enough to prosecute crimes under the Violence

Against Women Act. I do not accept the ridiculous argument that

mothers are going to be hurt or less protected by the strengthening

of laws to protect their unborn children.

Now, having said that, Senator Feinstein is here, so we will turn

to Senator Feinstein to make a statement on behalf of the minority.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you very much, Mr. Chairman, and

welcome back. I am delighted to have you back and look forward

to working with you in the future.

The CHAIRMAN. Thank you.

Senator FEINSTEIN. Mr. Chairman, I was delighted by what you

said that this bill really has nothing to do with the right of a

woman to control her own reproductive system, but really has to

do with someone who assaults and/or murders a woman and then

also assaults and possibly kills her unborn child. It might be useful

for me to discuss a bit how California has dealt with this issue and

what might have been learned from that experience.

In 1969, a man named Robert Keeler savagely and cowardly attacked his divorced wife, Teresa, in Amador County. That is about

100 miles from my home in San Francisco. Teresa Keeler was 7

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months pregnant. Vowing to kill her unborn child, Robert Keeler

stomped repeatedly on Teresa’s stomach, fracturing the head of the

unborn child.

The California Supreme Court then ruled that Robert Keeler’s

killing of Teresa’s unborn child was not murder because under

State law murder was the unlawful killing of a human being and

a fetus was not a human being. Soon after, rightly outraged at

Keeler’s escape from justice, the California Legislature amended

the California murder statute to permit murder prosecutions for

killing a fetus. That was 3 years before Roe v. Wade. It was also

similar to what the proposed bill does. It gives the fetus an independent status. Both California law and the proposed bill, as I understand it, permit a prosecutor to bring two counts against a defendant who attacks a woman, killing her unborn child, one for assault and one for murder.

Twenty-two years after Keeler attacked his ex-wife, a San Diego

resident named Maria Flores was cashing a check when a stranger,

Robert Davis, approached her, pulled a gun and demanded money.

Clutching her 20-month-old son, Flores refused to hand over her

money. Davis shot her in the chest.

While Flores survived the shooting, her almost 6-month-old unborn child did not. He was stillborn. Under California’s murder

statute, Davis was sentenced to life without possibility of parole for

murder of this unborn child. On appeal, however, Davis raised the

question of whether he could be convicted of murdering a non-viable fetus. The California Supreme Court said yes, specifically that

the State murder statute, including capital murder, protected any

fetus progressing beyond the embryonic stage of 7 to 8 weeks. This

interpretation is again similar to the proposed bill, except that the

proposed bill covers all prenatal stages rather than just the last 28

or 29 weeks. And the proposed bill explicitly prohibits the death

penalty for feticide, while California law does not.

The Davis decision was front-page news in California because it

was seen as deciding the moral issue of when life begins. Anti-abortion activists, for example, applauded the Davis decision, right or

wrongly, as holding that embryos were persons, thus contradicting

Roe v. Wade.

One anti-abortion activist was quoted in the Los Angeles Times

as saying of the opinion, ‘‘This is a victory of sorts because it is giving the identity of humanity to an unborn child.’’ Another activist

noted that the decision, ‘‘points out the absurdity of the position

that mommy can kill the fetus, but nobody else can.’’

I don’t wish to quarrel with the California Supreme Court’s decision in the Davis case. It was based on the court’s understanding

of the intent of the California Legislature in 1970, 3 years before

Roe v. Wade. Rather, I wish to suggest that we in Congress can

learn from the controversy surrounding that decision. The lesson of

Davis is clear: protect pregnant women from criminals without injecting abortion politics into the criminal code. And I think that is

extraordinarily important in this decision today.

It is unclear to me, frankly, how much this proposed bill really

does inject abortion politics into the criminal law. In my view, at

least at this time—and I hope to hear the testimony; after all, a

hearing is for the purpose of giving us the opportunity to learn by

4

hearing various witnesses. But I would like to ask some of these

witnesses whether an alternative that would accomplish the same

end as the Unborn Victims of Violence Act but might be able to do

so in a way that would not erode the foundations of a woman’s constitutional right to choose might not be a better way of going.

The alternative I would propose is simple, and that is to enhance

the sentence of any defendant who interrupts or terminates a woman’s pregnancy in the course of another Federal crime. This alternative would keep those criminals who kill pregnant women in jail

for a long, long time. It also keeps the focus on the woman, but it

also makes the point that whether one chooses to call an unborn

child a fetus or whether you choose to call it an unborn child, you

also create an enhanced penalty for that child as well.

In looking at this alternative, I am somewhat influenced by how

this issue has been treated by my own State of California. Now,

California was one of the first States to depart from the old common law rule this country inherited from England that a child had

to be born alive for homicide laws to apply. So I would be very interested in hearing the testimony.

Let me just point out one thing. A bill that I authored in 1994

which we base this on was the Hate Crimes Enhancement Act, and

this was passed into law. Senator Kennedy has legislation to toughen that even more. But my legislation essentially provided that if

an individual committed a felony—and this, of course, was either

in pursuance of a federally protected right or on federally protected

land—and that person committed the felony as a product of hate

based on one’s race, creed, or color, then there was a bifurcated

trial. And if you could prove the felony, then you could also prove

the hate and the sentence was doubled. So this, in a sense, provides the precedent for my thinking that the way to go is to provide

an enhanced sentence based on that earlier legislation.

I thank the Chair.

The CHAIRMAN. Well, thank you, Senator.

If we could first go to Senator Leahy, who may have an opening

statement, then we will turn to the author of the bill, Senator

DeWine.

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

Senator LEAHY. I do, Mr. Chairman, and I apologize for being

late. I had a doctor’s appointment which went longer than I

thought, but I am always glad to be here with both of you.

I am so glad to see Ms. Acheson here. I know that this has been

a time of some stress for her and her family, and I am glad that

you could take this time. It means a lot to the committee.

Acts of violence are abhorrent, but they are especially disturbing

when they are committed against pregnant women. When a violent

crime causes injury to a pregnant woman that results in a miscarriage or other damage to the fetus, we all have the same desire

to ensure that our criminal justice system responds decisively and

firmly to exact appropriate punishment.

This is not an issue on which we will find any disagreement

among Members of Congress, no matter their party affiliation or

whether they are pro-choice or anti-abortion. Protecting pregnant

5

women and our families from violence is a serious and compelling

problem that deserves to be elevated above political agendas or

partisan politics.

Today, we are going to hear about a bill that proposes a new

Federal crime to punish conduct that violates a list of over 60 existing Federal crimes that are already on the books and causes the

death of or bodily injury to a child who is in utero. The terms ‘‘a

child who is in utero’’ and ‘‘unborn child’’ are defined in this proposal to be ‘‘a member of the species Homo sapiens at any stage

of development.’’

Now, through this proposal, we will be forced to revisit the divisive political debate about when human life begins and what is

meant by these definitions, whether ‘‘any stage of development’’ is

intended to cover an unfertilized human egg, or zygote, and how

far away from viability the proposal is designed to move the Federal definition of a ‘‘person.’’

Generally, our Federal and State criminal laws only penalize

conduct that affects a person already born alive. That does not

mean we cannot or should not go further. If a violent crime against

a pregnant woman causes her to miscarry or otherwise injures the

fetus, I would support additional punishment.

Indeed, as Professor Peter Rubin states in his written testimony

for this hearing, this is one area in which both sides of the debate

about abortion might be able to find a common ground in supporting a properly worded statute that might give additional protection to women and families from this unique class of injury.

While no other Federal criminal statute identifies the fetus as a

distinct victim of crime, this does not mean a fetus is left unprotected under our criminal laws.

The Justice Department pointed out the obvious in a letter dated

September 9, 1999, to Chairman Hyde of the other body that, ‘‘Because the criminal conduct that would be addressed is already the

subject of Federal law, since any assault on the unborn child cannot occur without an assault of the pregnant woman, the bill would

not provide for the prosecution of any additional criminals.’’

As Ronald Weich, a former prosecutor and special counsel to the

Sentencing Commission, notes in his testimony, defendants whose

violent attacks against pregnant women resulted in harm to a fetus

have been prosecuted, and thus it is very clear that criminal liability may be imposed under current Federal law.

The Federal Sentencing Guidelines already provide a sentencing

enhancement of two levels—in other words, an increased sentence—where the defendant knew or should have known that the

victim was a vulnerable victim, which is defined as somebody who

is unusually vulnerable due to age or physical or mental condition.

That provision has been used to cover violent crimes against pregnant women. Mr. Weich describes several cases in which a pregnant woman was treated as a vulnerable victim, resulting in enhancements—that is, greater sentences—in the applicable Guidelines sentencing ranges for the defendants.

Now, there are a number of other ways we should consider to

protect pregnant women and their families that would enjoy strong

bipartisan support. It seems to me—and I don’t think necessarily

this was the intent of the legislation, but the bill has not been

6

crafted to find that common ground. Nor do I believe it is designed

to provide effective means to prosecute or prevent violence against

pregnant women.

First, the bill unnecessarily injects the abortion debate into our

national struggle against violence toward women. The Supreme

Court in Roe v. Wade held that the word ‘‘person’’ as used in the

14th Amendment does not include the unborn.

Second, the National Coalition Against Domestic Violence has

warned that a consequence of the bill is that battered women who

are financially or emotionally reliant on the batterer may be less

likely to seek appropriate medical attention if doing so could result

in the prosecution of the batterer for an offense as serious as murder. We ought to listen to these people who have this experience.

Finally, the bill ignores the problems of domestic violence, sexual

assault, and other forms of violence against women, and, in fact,

does not even mention violence against women. It ignores the fact

that an attack that harms a pregnancy is inherently an attack

against a woman.

Five years ago, we made great strides in the fight against domestic violence by passing the bipartisan Violence Against Women Act.

Senators Biden and Hatch, in particular, both contributed considerable effort in achieving this. The Department of Justice has

brought close to 200 Violence Against Women Act and Violence

Against Women Act-related indictments. They have awarded over

$700 million in grants to communities to help combat violence

against women. In fact, Vermont was the first State in the country

to apply for and receive funding under it.

I will put my whole statement in the record, but what I wish we

would do is look at the fact that the Violence Against Women Act

needs reauthorization. If we really want to affect violence against

women, let’s reauthorize that Act and keep these programs working.

I will put my whole statement in the record, Mr. Chairman.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR LEAHY

Acts of violence against women are abhorrent but they are especially disturbing

when committed against pregnant women. When a violent crime causes injury to

a pregnant woman that results in a miscarriage or other damage to the fetus, we

all share the desire to ensure that our criminal justice system responds decisively

and firmly to exact appropriate punishment. This is not an issue on which you will

find any disagreement among Members of Congress, no matter their party affiliation

or whether they are pro-choice or anti-abortion. Protecting pregnant women and our

families from violence is a serious and compelling problem that deserves to be elevated above political agendas and partisan politics.

Today we will hear about a bill that proposes a new federal crime to punish conduct that violates a list of over 60 existing federal crimes and ‘‘causes the death of,

or bodily injury to a child, who is in utero.’’ The terms ‘‘a child, who is in utero’’ and ‘‘unborn child’’ are defined in this proposal to be ‘‘a member of the species homo

sapiens, at any stage of development.’’ Through this proposal we will be forced to

revisit the divisive political debate about when human life begins and what is meant

by these definitions—whether ‘‘any stage of development’’ is intended to cover an

unfertilized human egg or a zygote and how far away from viability the proposal

is designed to move the federal definition of person.

Generally, our federal and state criminal laws only penalize conduct that affects

a person already born alive. That does not mean we can not or should not go further. If a violent crime against a pregnant woman causes her to miscarry or otherwise injures the fetus, I would support additional punishment. Indeed, as Professor

Peter Rubin states in his written testimony for this hearing, ‘‘this is one area on

7

which both sides of the debate about abortion might be able to find common ground

in supporting a properly worded statute that might give additional protection to

women and their families from this unique class of injury.’’ While no other federal criminal statute identifies a fetus as a distinct victim of

crime, this does not mean a fetus is left unprotected under our criminal laws. The

Justice Department has pointed out the obvious, in a letter dated September 9,

1999, to Chairman Hyde, that ‘‘[b]ecause the criminal conduct that would be addressed . . . is already the subject of federal law (since any assault of an ‘unborn

child’ cannot occur without an assault on the pregnant woman), [the bill] would not

provide for the prosecution of any additional criminals.’’ As Ronald Weich, a former

prosecutor and Special Counsel to the Sentencing Commission, notes in his testimony, defendants whose violent attacks against pregnant women resulted in harm

to a fetus have been prosecuted, and thus ‘‘it is very clear that criminal liability may

be imposed under current federal law.’’ Moreover, the federal Sentencing Guidelines already provide a sentencing enhancement of two levels where the defendant knew or should have known that the

victim was a ‘‘vulnerable victim,’’ which is defined as someone who is unusually vulnerable due to age, physical or mental condition. Guidelines Manual, § 3A1.1(b)(1).

This provision has been used to cover violent crimes against pregnant women. Mr.

Weich describes several cases in which a pregnant woman was treated as a vulnerable victim, resulting in enhancements and upward departures in the applicable

guideline sentencing ranges for the defendants. Nevertheless, if there is any question about application of these enhancements in violent crimes against pregnant

women, we should clarify that matter promptly.

There are a number of other ways we could consider to protect pregnant women

and their families that would enjoy strong bipartisan support. Respectfully, it seems

to me that this bill has not been crafted to find that common ground, nor designed

to provide any effective means to prosecute or prevent violence against pregnant

women. First, this bill unnecessarily injects the abortion debate into our national struggle

against violence towards women. The Supreme Court in Roe v. Wade held that ‘‘the

word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.’’ This bill purposely employs terms designed to undermine a woman’s right to choose

by recognizing for the first time in federal law the legal rights of a person as applied

to the earliest stages of development of a fetus, an embryo or an egg.

Second, the National Coalition Against Domestic Violence has warned that a consequence of the bill is that battered women, who are financially or emotionally reliant on the batterer, may be less likely to seek appropriate medical attention of

doing so could result in the prosecution of the batterer for an offense as serious as

murder. We should pay attention to the experts about the consequences of legislative proposals, such as this one, particularly when the experts say this bill could

have devastating effects for victims of domestic violence.

Finally, the bill ignores the problems of domestic violence, sexual assault and

other forms of violence against women and, in fact, does not even mention violence

against women. In short, this bill ignores the reality that an attack that harms a

pregnancy is inherently an attack on a woman.

Congress has responded aggressively in the past to address the problem of violence against women. Five years ago, Congress made great strides in the fight

against domestic violence by passing the bipartisan Violence Against Women Act as

a part of the 1994 Violent Crime Control and Law Enforcement Act. Senator Biden

and Senator Hatch, in particular, both contributed considerable effort and leadership in achieving the passage of VAWA, which marked a turning point in our nation’s effort to address domestic violence and sexual assault.

This landmark legislation created federal domestic violence offenses with severe

penalties to hold offenders accountable for their destructive and criminal acts of violence. The Department of Justice has brought close to 200 VAWA and VAWA-related indictments and awarded over $700 million in VAWA grants to communities

working hard to combat violence against women and help deal with the pain and

suffering that exists when it occurs.

I am proud to say that Vermont was the first State in the country to apply for

and receive funding under VAWA, and I have seen the way in which groups such

as the Vermont Network Against Domestic Violence and Sexual Assault have

worked effectively to stem the violence against women and children and help those

who have suffered from it.

We need to discuss the reauthorization and improvement of grant programs under

the Violence Against Women Act. These programs are due to expire at the end of

this fiscal year. The expiring grant programs that would be reauthorized and improved by VAWA II include the National Domestic Abuse Hotline, the Civil Legal

8

Assistance Grant Program, STOP Grants, Grants to Encourage Arrest Policies,

Rural Domestic Violence and Child Abuse Enforcement Grants, National Stalker

and Domestic Violence Reduction grants, the Family Violence Prevention and Services Grants, Grants for televised testimony for Victims of Child Abuse, Child Abuse

Training Programs for Judicial Personnel and Practitioners, and the Court-appointed Special Advocate program for victims of Child Abuse.

Reauthorizing VAWA, which is under attack, is not the subject of the Committee’s

hearing today. For those of us who want to prevent violence against women, including pregnant women and their families, the failure of this Committee and the majority to consider reauthorization of that important law and instead to focus on a measure designed to be divisive is doubly unfortunate.

We know that violence against women pervades all areas of our country. It makes

no difference if you are from a big city or a rural town; domestic violence and other

violence against women can be found anywhere. This is a serious issue. We owe this

country a serious response, not debate on ideological proposals that ignore effective

programs designed to help women crime victims and that potentially undermine

their constitutional rights.

The CHAIRMAN. Well, thank you, Senator Leahy. The BidenHatch Violence Against Women Act will be brought up, and we are

going to do everything we can to pass it this year and reauthorize

it again this year.

Let’s turn to the author of the legislation, Senator DeWine.

STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM

THE STATE OF OHIO

Senator DEWINE. Mr. Chairman, thank you very much. Let me

thank you for holding this very important hearing this morning on

the Unborn Victims of Violence Act.

I would like to thank our witnesses, Shiwona Pace, from Arkansas; William Croston, from North Carolina; and Joseph Daly, from

my home State of Ohio. I want to thank them for appearing here

today and for providing their very personal testimony on this very

sad and important topic.

Tragically, Mr. Chairman, unborn babies, perhaps more than we

realize, are, in fact, the targets of violent acts. Right now, Federal

law currently only criminalizes crimes against born humans. There

are no separate Federal provisions in the law to protect silent, unborn victims of violence.

Mr. Chairman, this is wrong. It is wrong that our Federal Government does absolutely nothing to criminalize violent acts against

unborn children. It is wrong that our Federal Government is letting people who willfully injure pregnant women to get away with

these violent acts, sometimes even murder.

Today, our witnesses will give us horrible, graphic examples of

violence against innocent unborn children. In my own home State

of Ohio, an incident occurred in 1996 when Airman Gregory Robbins, who was stationed at the time at Wright-Patterson Air Force

Base near Dayton, beat his 8-month-pregnant wife in a fit of rage.

Fortunately, Ms. Robbins survived the violent assault. Tragically,

however, her uterus ruptured during the attack, causing the death

of her baby, a little baby whom she had named Jasmine.

Mr. Chairman, we must correct the Federal law to ensure that

criminals don’t get away with violent acts without being adequately

punished. That is why we have introduced the Unborn Victims of

Violence Act. It would hold criminals liable for causing harm or

death to an unborn child during the commission of certain violent,

specified Federal crimes. In such cases, the assailant could be

9

charged with a second offense committed against the unborn child.

The single attack affecting both victims would be treated as two

separate crimes under the Federal Code and also under the Uniform Code of Military Justice.

Now, I know, Mr. Chairman, some people oppose this legislation

or have raised issues about this legislation based on constitutional

concerns. And I understand these, but I believe they are unfounded. At least 24 States already have criminalized harm to unborn victims. Another seven States criminalize the unwanted termination of pregnancy. Eleven of these States provide protection of

the unborn child throughout the period of in utero development.

Now, Mr. Chairman, despite this wide range of legislation, no

State supreme court has held that any of these statutes violate our

Constitution. In fact, the Supreme Court of Minnesota specifically

held that Roe v. Wade, ‘‘does not grant a unilateral third-party

right to destroy a fetus.’’ We will today, Mr. Chairman, explore

these constitutional issues, but I am confident that our bill does

not create any constitutional problems.

Some have expressed the concern that this bill is an effort to address the issue of abortion. Mr. Chairman, that is not the case. In

fact, we purposefully drafted this legislation very narrowly to avoid

this issue. For example, the bill does not provide for prosecution for

any abortion to which a woman consented. It does not provide for

the prosecution of a woman for any action, legal or illegal, in regard to her unborn child.

This legislation does not provide for prosecution for harm caused

to the mother or unborn child in the course of medical treatment.

Finally, the bill would not allow for the imposition of the death

penalty under this Act. Similar legislation in a number of States

has had little impact on abortion rights, and neither will our bill.

Mr. Chairman, some people would like to side-step this issue by

maintaining the current system. Rather than recognizing the unborn child as a victim, they would just as soon enhance the penalty

for harming the mother. But any of our witnesses will tell you that

their unborn children weren’t just part of the mother; they were a

part of the whole family. And they should be recognized by more

than just Sentencing Guidelines enhancements. They must be recognized, Mr. Chairman, as what they truly are, victims of crime.

In closing, Mr. Chairman, let me say that I have been fighting

crime and fighting for children for more than a quarter of a century, as have all of the members of this panel. And I have learned

a lot of lessons in that period of time. I have learned that we must

be ever-vigilant to protect our most vulnerable victims in society,

particularly those silent victims who cannot speak for themselves.

That is why I wrote and am sponsoring the Unborn Victims of Violence Act to speak on behalf of unborn children and on behalf of

their families who are, in fact, the true victims of violence.

Mr. Chairman, those who violently attack unborn babies are

criminals. We have an obligation as a society to these unborn children and to their families to ensure that the Federal penalty does,

in fact, fit the crime.

I thank the Chair and I look forward to the testimony of all the

witnesses.

The CHAIRMAN. Well, thank you, Senator.

10

I am advised that Congressman Graham has been delayed and

will hopefully be arriving shortly after 11 a.m. So we are going to

proceed with our panels. Now, I have another commitment and will

therefore leave chairing the hearing in a little while to Senator

DeWine.

Before I leave, however, let me just say a special thanks to the

witnesses on panel three. I imagine it is not easy for some or all

of you to come here and share your tragic experiences, but indeed

you are performing a service and I want to thank all of you for

that. I plan on reading your testimony, along with that of all the

other witnesses. So I want to thank Ms. Pace, Mr. Croston, and Mr.

Daly.

Also, another one of today’s witnesses, Ron Weich, is familiar to

all of us on the committee. He worked for Senator Kennedy for several years. I want to congratulate you, Ron, and your wife, Julie,

on the birth of your first child, Sophie. So we are happy to have

you here as well.

We are also very pleased to have the Justice Department represented by the Honorable Eleanor D. Acheson. We look forward to

taking your testimony, Ms. Acheson, and knowing what the Justice

Department’s position is on this matter, and so we will take your

testimony at this time. And we will look forward to having the

Congressman from South Carolina brought up as soon as he gets

here.

STATEMENT OF ELEANOR D. ACHESON, ASSISTANT ATTORNEY

GENERAL, OFFICE OF POLICY DEVELOPMENT, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

Ms. ACHESON. Thank you, Mr. Chairman, and if it is appropriate,

when Congressman Graham arrives, I am happy to suspend and

have him proceed and then I can finish up. Whatever suits the

committee and his schedule.

I am pleased to be here this morning to present the position of

the Department of Justice on the proposed Unborn Victims of Violence Act, S. 1673. S. 1673 would amend the Criminal Code and

the Uniform Code of Military Justice to make it a separate Federal

offense to cause death or bodily injury to a child in utero in the

course of committing any one of 68 enumerated Federal offenses.

It would penalize harm to the unborn at any stage of development,

and would so on a strict liability basis because the perpetrator does

not have to know or even suspect that the adult woman he harms

is pregnant. The punishment for this new offense is the same as

if the perpetrator had harmed the pregnant woman, except the

death penalty is not permitted.

Halting violence against all women, including pregnant women,

has been a top priority of this administration for the past 7 years.

In 1994, the administration, with the bipartisan support of Congress and the support of the President, made the Violence Against

Women Act, VAWA, the law of the land.

VAWA for the first time created Federal domestic violence offenses with strong penalties to supplement State and local efforts

to hold violent offenders accountable. To date, the Justice Department has complemented State and local prosecutions by filing over

11

200 VAWA and VAWA-related indictments, and this number continues to grow.

In addition, the Department alone has awarded well over $800

million through VAWA grant programs since 1994, directing critical resources to communities’ efforts to respond to domestic violence, sexual assault, and stalking. These funds have made a difference in women’s lives and in how communities respond to violence against women.

We agree with the sponsors of S. 1673 that the Federal Government can and should play an important role in the campaign to

end violence against women. But S. 1673 is, in our view, a flawed

Federal response to such violence. It is also one that has several

troubling collateral consequences.

Our first concern is that this legislation reaches only pregnant

women, and then only if they happen already to be protected or fall

within the activities of one of the 68 enumerated Federal offenses

listed in S. 1673. Because it penalizes harm only to a subset of

women, this legislation is a less effective means of combatting violence against all women.

Second, the bill expressly provides that the defendant need not

know or have reason to know that the victim is pregnant. The bill

thus makes the potentially dramatic increase in penalty turn on an

element for which liability is strict. As a consequence, for example,

if a police officer uses a slight amount of excessive force to subdue

a female suspect without knowing or having any reason to know

or believe that the individual was pregnant and the individual

later miscarried, the officer could be subject to mandatory life imprisonment without possibility of parole, even though the maximum sentence for which such use of force on a non-pregnant

woman might be ten years. This approach is an unwarranted departure from the ordinary rule that punishment should correspond

to culpability, as evinced by the defendant’s mental state.

We strongly object to this aspect of S. 1673 which strikes us as

sort of a Russian roulette because the person who harms a woman

may receive a dramatically increased sentence—in some cases the

sentence would be as little as a year—and because of a pregnancy

that the perpetrator did not know or have any reason to believe or

to be aware of. It could increase to life imprisonment whenever the

woman he harmed happens to be pregnant and miscarried even if

he had no way of knowing of the pregnancy.

While strict liability-type enhancements are not unheard of in

American criminal law—the felony murder rule is one, for example—criminal liability for such crimes is almost always tied to culpability and is limited to the legal consequences that the wrongdoer can reasonably foresee. That is why the felony murder rule is

limited to the subclass of felonies from death may reasonably

occur—arson, escape, murder, kidnapping, burglary, to name a few.

S. 1673’s new crime, by contrast, has no such limitation and applies to a range of crimes for which harm to the unborn is not necessarily foreseeable, such as damaging religious property or animal

enterprise terrorism. This infirmity might be overlooked if the legislation’s new crime required that an offender know or have reason

to suspect that the female victim is pregnant.

12

But S. 1673 expressly disavows any such requirement. And by

automatically equating harm to the unborn with harm to the pregnant woman, the legislation replaces judicial discretion in sentencing with mandatory and substantial increases in sentencing

without regard to individual culpability.

In addition to having these broader policy defects, S. 1673 is also

likely to be ineffective as a practical matter because it cannot be

used to prosecute any persons who are not already subject to Federal prosecution, since a person violates S. 1673’s new crime only

if he or she first engages in conduct that violates one of the 68 specifically enumerated Federal crimes.

The legislation may also be counterproductive to Federal efforts

to stop domestic violence. S. 1673 does not require the Government

to first obtain a conviction, or for that matter even prosecute an offender for harming the pregnant woman before proceeding under

the new crime created by the legislation.

Because the penalties for harming the unborn under S. 1673 will

often be greater than the penalties for harming the pregnant

woman, S. 1673 may actually reduce the number of prosecutions

brought for injury to the pregnant woman because prosecutors are

likely to devote most, if not all, of their energies to securing convictions under S. 1673 due to its higher potential sentences.

S. 1673 may also be unconstitutional in some of its applications.

The drafters were careful to recognize that abortion-related conduct

is constitutionally protected under Roe v. Wade and Planned Parenthood v. Casey. The bill accordingly prohibits prosecution for conduct relating to a consensual abortion or an abortion where consent

is implied by law in a medical emergency.

Including the exception does not, however, remove all doubt

about the bill’s constitutionality because the bill’s exception for

abortion-related conduct does not on its face encompass situations

in which consent to an abortion may be implied by law if, for example, the pregnant woman is incapacitated, even though there is no

medical emergency.

Most troubling, however, is the fact that S. 1673 may gratuitously and, in our view, unnecessarily plunge the Federal Government into one of the most difficult and complex issues of religious

and scientific consideration and into the midst of a variety of State

approaches to handling these issues. The bill’s identification of a

fetus as a separate and distinct victim of crime is unprecedented

as a matter of Federal statute. Moreover, such an approach is unnecessary for legislation that would augment punishment of violence against pregnant women.

Other more effective means of Federal intervention to stop domestic violence and other violence against women currently exist.

If the progress of the last 5 years is any harbinger of the potential

for success, reauthorizing VAWA is a straightforward and effective

way to diminish violence against women. Moreover, there are other

available avenues that are better tailored than S. 1673 to addressing the additional harm a pregnant woman suffers when her fetus

is injured.

We are willing to work with Congress to strengthen the criminal

provisions of VAWA and to develop alternative legislation to

13

strengthen punishment for intentional violence against women

whom the perpetrator knows or should know is pregnant.

For all of these reasons, the administration strongly opposes S.

1673, and the President’s senior advisers would recommend that he

veto the bill were it presented to him. Instead, we urge the Senate

to support the reauthorization of VAWA as a more direct and effective way to combat violence against women and violence against

the unborn.

Thank you for the opportunity to testify on the legislation. I

would be happy to answer any questions.

The CHAIRMAN. Well, thank you. I have to say as one of the authors of the Violence Against Women Act, I am a little bit disappointed by the Department’s position. We received your testimony just before the hearing today, but I had previously reviewed

the Department’s letter to the House raising objections to the counterpart House bill.

First, that response seems to suggest that the Department might

have some difficulty with a substantial increase in sentences contemplated by our bill, but that some additional punishment may be

warranted. Can you explain that to me? Is, ‘‘some,’’ increase in

punishment acceptable to you, but just not a substantial increase?

Ms. ACHESON. Mr. Chairman, if I may make two points, I think

that our basic concern with this legislation is that it creates this

independent right and implicates the issues that I alluded to toward the end of my testimony, we believe, unnecessarily.

The reason that we would favor a sentencing enhancement is because we think the enhancement, or a bill that provided for an enhancement could reasonably—and I know it could be worked out—

cover a multitude of circumstances and could provide a sort of continuum of enhancement or substantial increases to the sentence to

respond to the individual facts of the individual circumstances of

the particular crime and the events that occurred in connection

with it.

What we would like to see is an enhancement that gave to a

judge—and whether this would come from a direction from the

Congress to the Sentencing Commission—but gave to the judge the

ability to make a determination over a scope of an enhancement

based on the facts addressing some of the issues that we pointed

out that are not addressed by the bill; namely, was there an intent

factor here. And that, it would seem to me, would call for a very,

very substantial—not just some, but a substantial enhancement.

If there was no intent but there was knowledge or reason to

know that the woman who was the victim was pregnant, and what

were the circumstances on that, that might call for another level.

If, in fact, it was the police officer’s scenario or some other situation where something happened and the individual who perpetrated the crime had no reason to know and did not know that

the individual was pregnant, it might be a lower level.

But that is the approach that we would favor, something that

would give the sentencing judge, after he or she had heard the

trial, heard what was the basis of a plea agreement, to make a

judgment about what was called for in those circumstances.

The CHAIRMAN. Well, the administration’s views also note that,

‘‘Identification of a fetus as a separate and distinct victim of crime

14

is unprecedented as a matter of Federal statute.’’ I guess I would

have to agree to that, since if it were precedented we would not

need to be passing new legislation.

But let me also point out that it is not unprecedented generally,

as we all know, given the numerous State statutes which protect

the unborn as this bill does. Now, isn’t that true, Ms. Acheson?

Ms. ACHESON. Mr. Chairman, I think that everybody who has

spoken has alluded to a State statute that does address this, and

we don’t disagree with the fact that there are State statutes that

address this and they go at it in different ways.

The CHAIRMAN. Let me turn to Senator Leahy.

Senator LEAHY. Thank you, Mr. Chairman.

We have seen some cases that were brought federally in order to

charge the defendant with the death penalty even in States where

the voters had rejected the death penalty. My State, for example,

does not have the death penalty, but cases that could easily be

brought under State law could also instead be brought under Federal law, where one would have the death penalty and the other

would not. We saw a case recently like that. Eventually, the U.S.

attorney in a plea agreement decided not to push for the death penalty in that case.

Now, I am concerned that the bill raises some questions on federalizing crime, something that we all speak against and then end

up federalizing more crimes. For example, in Vermont the common

law ‘‘born alive’’ rule applies in cases involving harm to a fetus.

If this bill were to become law, would we have situations where

pressure would be brought on Federal prosecutors to bring cases

federally so that the additional charge relating to harming a fetus

may be made rather than leaving the case to the State prosecutors

and courts?

Ms. ACHESON. I think that is a substantial risk.

Senator LEAHY. Now, on some hearings on the bill, I looked back

through the transcripts and the House encountered an interesting

hypothetical which is not out of the realm of possibility.

Let’s assume the law is in place. A protestor at an abortion clinic

pushes a pregnant woman. She falls down and as a result of the

assault she miscarries. Now, would the protestor be criminally liable under this bill even if the pregnant woman was entering the

clinic for an abortion? I don’t know if you have an answer to that,

but this was raised at the House hearing and I am just curious.

Ms. ACHESON. I mean, I am sure that if there are law professors

in the room, they are probably writing this one down for their

exam question.

Senator LEAHY. And I don’t mean to ask for an answer, but you

can see the—— Ms. ACHESON. Well, I think it raises, you know, very tough

issues. Before you even get to the back end of the question, there

are issues implicated in the beginning of it, which is let’s assume

she wasn’t heading to the abortion clinic for an abortion, but she

was doing something else there and either confronting the

protestors or indeed with the protestors and some kind of a melee

broke out. I think there are tough questions there, and there are

very tough questions when you add the back end of the hypothetical.

15

Senator LEAHY. Well, let’s address one that doesn’t even get into

this particular hypothetical but is a very real issue. The bill provides that a defendant may be convicted of the new crime of harming a fetus even if he does not know the victim was pregnant. Well,

you have got a knowledge issue by itself, but let’s go a little bit further.

Can the defendant be charged with the separate offense of causing death or bodily injury to a fetus if the pregnant victim herself

did not know she was pregnant until after the assault?

Ms. ACHESON. The way the bill is written, I think the answer to

that would probably be yes.

Senator LEAHY. So you could have a case where both the one

committing the assault and the victim, neither one knowing the

victim was pregnant.

Ms. ACHESON. It would appear that way.

Senator LEAHY. Now, if Congress passes this bill and if it is enacted, I think both supporters and opponents of the bill would accept the fact that we know there are going to be inevitable constitutional challenges, which kind of worries me because there are

things we could do to protect pregnant women that would not have

a constitutional problem, as I see it.

For example, do you see anything wrong constitutionally with

clarifying that the current sentencing enhancements for vulnerable

victims apply to pregnant women? In other words, if we were to say

that under the Sentencing Guidelines you could have additional

sentences if the harm was against a pregnant woman, the same

way we do with victims elsewhere, do you see any constitutional

problem with that?

Ms. ACHESON. I don’t.

Senator LEAHY. So that if we were to do that instead of this law,

we would be able in all likelihood to escape any constitutional

issues?

Ms. ACHESON. That is certainly the take I have on it at the moment. It certainly seems to be very consistent with the other kinds

of enhancements that are in the whole Sentencing Guidelines

structure and it would seem to me it would be highly defensible.

Senator LEAHY. I raise these because I think that on this committee, as I said earlier, whether you are Republican or Democrat,

or however you feel about abortion, I think one thing that unites

us all is our strong revulsion toward violence against women, and

we have all supported very strong penalties for that.

Senator DeWine and I are both former prosecutors. I think that

we would be very united in our feeling about why such people

should be prosecuted. Where the difference will come, of course, is

what is the best thing to do about it.

Mr. Chairman, my time is up and I appreciate it.

Senator DEWINE [presiding]. Senator Feinstein.

Senator FEINSTEIN. Thank you very much, Mr. Chairman.

Ms. Acheson, I am leaning toward the thrust of some form of legislation which provides an enhancement, and I was happy to hear

you say that your Department would support that. As I understand

it, you said that you thought that the judge should be given latitude in determining the scope and determining whether there was

16

knowledge and intent. You did not necessarily say that the Department felt there had to be both present.

Did I understand that correctly?

Ms. ACHESON. Well, that is what I said, Senator Feinstein. Let

me say that the Sentencing Commission itself, it seems to me,

might well have views about how to structure this to make such

an approach consistent with the guidance to judges in connection

with other enhancement contexts.

You know, I was responding largely to Senator Hatch’s question

which I thought went to are we saying there should just be a little

bit of an enhancement or more. And the point I was trying to make

is I think it ought to be consistent with the way that our sentencing is done now under the whole Sentencing Guidelines structure. And whether that means that there is relatively prescriptive

guidance given to judges, judges ought to be able to, with the guidance from the Congress or the Sentencing Commission, determine

what the facts of the particular case call for.

And we do not feel there should just be in all cases necessarily

just a little enhancement. In the situation that Senator DeWine described and others like that, there ought to be very significant enhancement. I mean, we all agree that there are potentially in those

kinds of cases horrific circumstances.

Senator FEINSTEIN. There is a big difference between the man

who assaults a woman with knowledge that she is pregnant and

the course of the assault kills the child and somebody pushing a

woman who is a week or 2 pregnant and she miscarries. I mean,

how could you accuse that individual of murder? I think that would

be very, very difficult.

And then it is even more difficult if you apply that test, as you

seem to suggest in your written remarks, to the police officer who

is trying to govern in a demonstration an unruly crowd and pushes

a woman and she falls and is newly pregnant and miscarries. Then

what does she do? I mean, does she bring a charge of murder

against the police officer, and how does that sustain itself in terms

of a trial? So I think there is such a radical spectrum here that

when you look at the law, again you get into this question of viability and whether you really do kill a child or you kill the embryo,

and whether it is advertent or inadvertent.

Let me ask just a couple of questions on transferred intent because I think this is an interesting question. Under the doctrine of

transferred intent, a traditional rule of capital punishment, if A

shoots a gun at B trying to kill him and accidentally kills C, a prosecutor can charge A with attempted murder of B and murder of C.

A’s intent to kill B is transferred to C. Similarly, a defendant’s intent in attacking a pregnant woman can be transferred to her fetus

or unborn child.

Why would you say that the doctrine of transferred intent would

not apply here?

Ms. ACHESON. I would say that it doesn’t apply here certainly in

the context—two answers. In the context where the individual, the

perpetrator, part or all of his or her motivation is to injure the

fetus or terminate the pregnancy, there is no mistake. It is not a

question of you are shooting at A, but you hit B or anything like

that. So in those situations, it doesn’t apply.

17

And in the situation where you don’t know, it seems to me that

the doctrine of transferred intent implies—this legislation sort of

advances toward in its premise that you have got two human

beings, people who are protected by the law. And it is easy to say,

well, look at the doctrine of transferred intent. You know, you were

shooting at A, but you hit B, and that is still murder.

That begs here one of the largest questions that is presented by

this legislation. The law does not take the position, the Federal law

doesn’t and never has, that the fetus is, in fact, B. And so it just

sort of tees up the largest question here, which is aren’t we heading down the path to and equating a fetus, as I read this bill, from

the moment of conception all the way through, to a person after

birth.

And I guess what we are saying is you can sort of toss out the

doctrine of transferred intent, but it just throws you right into the

core issue here. Federal law has never done that. In the Roe opinion itself, the Supreme Court cautioned against going in that direction, and thought that there was no need to do that in that case

and thought that at least judges shouldn’t be doing it, which seems

to me raises a question about whether anybody at the Federal level

needs to be doing it and what I think we all agree should be accomplished, which is people at various levels of culpability should be

punished for things, even if they didn’t have knowledge about the

loss or injury to a fetus, and if they did have knowledge at various

stages can be achieved without getting into this huge and difficult

question.

Senator FEINSTEIN. I think your testimony has been very helpful

at least to me this morning because the cases that I think most of

us are familiar with are really heinous cases. It is where there is

a mature pregnancy and a man beats a woman and causes a death,

as opposed to an unknown pregnancy, which is a very real phenomenon, and an advertent restraint in a legal form.

And some people would say, well, you are splitting hairs, but I

really don’t think so. So I very much like your suggestion or your

view that the judge have authority to determine scope and really

examine the question of knowledge and intent. So, again, to reiterate, we would very much like to work with you on working out

an enhancement piece in this area.

Ms. ACHESON. We would be happy to do that. We would be glad

to do that.

Senator FEINSTEIN. Thanks very much.

Senator DEWINE. Ms. Acheson, thank you very much for your

testimony. We appreciate it very much.

Ms. ACHESON. That is it?

Senator DEWINE. You are done. Thank you.

Ms. ACHESON. Thank you, Senator.

[The prepared statement of Ms. Acheson follows:]

PREPARED STATEMENT OF ELEANOR D. ACHESON

Good morning. I appreciate the opportunity to appear before this Committee to

express the Justice Department’s views regarding the proposed Unborn Victims of

Violence Act (S. 1673).

S. 1673 would amend the criminal code and the Uniform Code of Military Justice

to make it a separate federal offense to cause ‘‘death or bodily injury’’ to a ‘‘child

in utero’’ in the course of committing any one of 68 enumerated federal offenses

18

1See 18 U.S.C. § 1111 (listing among first-degree murder ‘‘[e]very murder . . . committed in

the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason,

espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery’’). 2 18 U.S.C. § 247. 3 18 U.S.C. § 43.

against a pregnant woman. The new crime created by S. 1673 has an expansive

reach. The bill does not require that the perpetrator know, or even suspect, that the

adult woman he harms is pregnant. The punishment for this new offense is the

same as if the perpetrator had harmed the pregnant woman, except that the death

penalty is not permitted.

Halting violence against all women, including pregnant women, has been a top

priority of this Administration for the past seven years. In 1994, the Administration,

with the bipartisan support of Congress and the support of the President, made the

Violence Against women Act (VAWA) the law of the land. VAWA marked a critical

turning point in the national effort to address domestic violence, sexual assault, and

stalking. VAWA, for the first time, created federal domestic violence offenses with

strong penalties to supplement state and local efforts to hold violent offenders accountable. To date, the Department of Justice has complemented state and local

prosecutions by filing over 200 VAWA and VAWA-related indictments, and this

number continues to grow. In addition, the Department of Justice alone has awarded well over $800 million through VAWA grant programs since 1994, directing critical resources to communities’ efforts to respond to domestic violence, sexual assault,

and stalking. These funds have made a difference in women’s lives, and in how communities respond to violence against women. Indeed, these funds have helped save

the lives of many victims of domestic violence.

While we agree with the sponsors of S. 1673 that the federal government can and

should play an important role in the campaign to end violence against women, S.

1673 is, in our view, a flawed federal response to the evils of such violence. It is,

moreover, one that has several troubling collateral consequences. The Administration accordingly opposes this bill, and the President’s senior advisors would recommend that he veto it.

Our first concern is that S. 1673 reaches only pregnant women, and then only if

they happen already to be protected by one of the 68 enumerated federal offenses

listed in S. 1673. Because it penalizes harm only to a subset of women, S. 1673 is

a less effective means of combating violence against all women, and may have the

side effect of devaluing the gravity of violence done to women not falling under S.

1673’s auspices.

Second, the bill expressly provides that the defendant need not know or have reason to know that the victim is pregnant. The bill thus makes a potentially dramatic

increase in penalty turn on an element for which liability is strict. As a consequence, for example, if a police officer uses a slight amount of excessive force to

subdue a female suspect—without knowing or having any reason to believe that she

was pregnant—and she later miscarries, the officer could be subject to mandatory

life imprisonment without possibility of parole, even thought the maximum sentence

for such use of force on a non-pregnant woman would be 10 years. This approach

is an unwarranted departure from the ordinary rule that punishment should correspond to culpability, as evinced by the defendant’s mental state.

We strongly object to this ‘‘Russian roulette’’ aspect of S. 1673, which dramatically

increases the penalty for harming a pregnant woman—in some cases, from as little

as a year in jail to life imprisonment—based on the existence of an element, harm

to the unborn, for which liability is strict. To be sure, strict liability enhancements

are not unheard of in the American criminal law. The Federal felony-murder rule,

for example, increases the punishment for homicides committed in the course of certain enumerated felonies.1 Similarly, American tort law often holds a tortfeasor liable for injury no matter what the special sensitivities of the injured party. But in

both situations, liability is usually tied to culpability and is limited to the legal consequences the wrongdoer can reasonably foresee. That is why the felony-murder rule

is limited to the subclass of felonies from which a death is reasonably likely to

occur—arson, escape, murder, kidnapping, burglary, to name a few. S. 1673’s new

crime, by contrast, has no such limitations and applies to a range of crimes for

which harm to the unborn is not necessarily foreseeable, such as damaging religious

property 2 or animal enterprise terrorism.3 This infirmity might be cured on a caseby-case basis if the crime were defined to require that an offender know, or have

reason to suspect, that his female victim is pregnant, but S. 1673 goes out of its

way to expressly disavow any such requirement. And by automatically and steadfastly equating harm to the unborn with harm to the pregnant woman, S. 1673 replaces judicial discretion in sentencing with mandatory and substantial increases in

19

4See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992). 5The bill also prohibits prosecution of any persons for medical treatment of the pregnant

woman or her unborn child or any woman with respect to her ‘‘unborn child.’’

sentencing without regard to individual culpability. In short, S. 1673’s blunderbuss

decoupling of punishment and culpability—combined with its heavy, mandatory increases in sentences that leaves little room for judicial discretion—is far too broad

a brush to paint with in this arena.

In addition to having these broader policy defects, S. 1673 is also likely to be ineffective—if not counter-productive—as a practical matter. S. 1673 may be ineffective

because it cannot be used to prosecute any persons who are not already subject to

federal prosecution. Because one element of S. 1673’s new crime is that the offender

‘‘engage in conduct that violates’’ one of 68 specifically enumerated crimes. S. 1673

would not in any way expand the universe of violent individuals subject to federal

prosecution.

S. 1673 may also be counterproductive to federal efforts to stop domestic violence.

Because S. 1673 does not require that the government first obtain a conviction for

the underlying conduct against a pregnant woman, S. 1673 may actually reduce the

number of prosecutions brought for injury to the pregnant woman. If, for example,

a person ‘‘forcibly . . . intimidates’’ a female postal worker during the first month

of her pregnancy, and she miscarries, a prosecutor would have two options in prosecuting the aggressor (i) for violating 18 U.S.C. § 111, which carries a one-year maximum sentence; or (ii) for violating the offense created by S. 1673, which would

carry a maximum life sentence because causing the miscarriage is treated as if the

aggressor murdered the pregnant woman, a federal officer. This is a substantial increase in sentence as compared with the sentence that could otherwise be imposed

for injury to the woman who is not pregnant. A prosecutor faced with this choice

may therefore proceed solely under S. 1673’s new offense. Even if the prosecutor initiated a dual prosecution for both crimes, the prosecution for injury to the ‘‘unborn

child’’ is likely to overshadow the prosecution for injury to the pregnant woman. in

either event, rather than reinforcing the federal government’s commitment to ending violence against women, this bill would downplay or ignore the significance of

the injury to the woman.

S. 1673 may also be unconstitutional in some of its applications. The drafters of

S. 1673 were careful to recognize that abortion-related conduct is constitutionally

protected.4 The bill accordingly prohibits prosecution for conduct relating to a consensual abortion or an abortion where consent ‘‘is implied by law in a medical emergency.’’ 5 Without this exception, the bill would be plainly unconstitutional. Including the exception does not, however, remove all doubt about the bill’s constitutionality. The bill’s exception for abortion-related conduct does not, on its face, encompass situations in which consent to an abortion may be implied by law (if, for

example, the pregnant woman is incapacitated) even though there is no medical

emergency. In this situation, the bill may unduly infringe on the constitutionally

protected conduct.

Most troubling, however, is the fact that S. 1673 may be perceived as gratuitously

plunging the federal government into one of the most difficult and complex issues

of religious and scientific consideration and into the midst of a variety of State approaches to handling these issues. The bill’s identification of a fetus as a separate

and distinct victim of crime is unprecedented as a matter of federal statute. Moreover, such an approach is unnecessary for legislation that would augment punishment of violence against pregnant women.

Other, more effective means of federal intervention to stop domestic violence and

other violence against women currently exist. If the progress over the past 5 years

in any harbinger of the potential for success, reauthorizing VAWA is a straight-forward and effective way to diminish violence against women. Moreover, there are

other available avenues that are better tailored than S. 1673 to addressing the additional harm a pregnant woman suffers when her fetus is injured. We are willing

to work with Congress to strengthen the criminal provisions of VAWA, and to develop alternative legislation to strengthen punishment for intentional violence

against women whom the perpetrator knows or should know is pregnant. The availability of these better tailored alternatives makes enactment of S. 1673 unnecessary,

and even more unwise as a policy matter.

For all of these reasons, the Administration strongly opposes S. 1673, and the

President’s senior advisors would recommend that he veto the bill. Instead, we urge

the Senate to support the reauthorization of VAWA as a more direct and effective

way to combat violence against women and violence against the unborn.

Thank you for the opportunity to testify on this legislation.

20

Senator DEWINE. I see that Congressman Graham is here.

Lindsey, welcome. Your timing is perfect. It is nice to see you in

person. We have seen you on TV a lot in the last couple of weeks.

Representative GRAHAM. No better looking in person.

Senator DEWINE. Thank you for joining us. You may proceed.

STATEMENT OF HON. LINDSEY O. GRAHAM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA

Representative GRAHAM. Thank you, Mr. Chairman. This is the

ultimate in political efficiency. You run a good ship here. I just got

off the plane.

Mr. Chairman, thank you very much for calling this hearing on

S. 1673, the Unborn Victims of Violence Act. I would also like to

commend you for taking the lead on this effort in the Senate. I was

greatly encouraged by the House passage. It was a bipartisan vote.

We had a few pro-choice and pro-life people coming together on a

piece of legislation and that is a great thing. There is not much of

that going on in America, so I am very encouraged by that bipartisanship and people reaching across the abortion argument to try to

do something I think most Americans would find appropriate.

Protecting the unborn certainly is not a new idea. About half the

States in this country have laws that criminalize behavior that

kills or injures an unborn child. And in recent events, television

coverage has shown us that this is not just something to talk

about; it actually happens. We are having very prominent people

shoot pregnant women, destroying children, harming children.

I think you will have Ms. Pace who will testify. Has she testified

yet, Mr. Chairman?

Senator DEWINE. She will be testifying.

Representative GRAHAM. Please listen to her story. And when

you want to figure out which way to go, sentence enhancement or

having a separate offense, I would suggest to you that the 24 or

25 States in this area have got it right, that sentence enhancement

is the minority view of what to do with criminals.

What we are talking about, Mr. Chairman, are criminals. We are

not talking about a woman’s right to choice. We are talking about

what does society do when somebody, through criminal activity,

harms or destroys an unborn child when the mother decided to

bring the child into the world. Half the States say let’s put that

person in jail. That is what I say.

The Federal law is silent on this matter. This legislation deals

only with Federal criminal statutes. The only time you could be

prosecuted under the Unborn Victims of Violence Act is if you commit a Federal offense against the mother. So we are not expanding

jurisdiction. We are trying to fill in a gap.

There are situations, because of the territory involved, that are

exclusively Federal. The status of the person is exclusively Federal.

Sometimes, State law doesn’t apply. If a Member of Congress was

pregnant, this statute would apply because it is a Federal offense

to assault a Member of Congress. So if you had a Member of Congress that was pregnant and someone assaulted them and destroyed her unborn child, this statute would allow two prosecutions, like 24 States do, when the mother is the victim of assault

and her unborn child is also the victim of that assault.

21

Examples abound. The Arkansas case, I think you are going to

find very chilling. In that situation, the supposed boyfriend hired

people to go take the woman, who was in the ninth month of pregnancy, and literally beat her for the purpose of destroying her

child. And they are facing murder charges, and they should. Sentence enhancement would not address justice in that case.

Their purpose was to take this woman, isolate her, and beat her

to the point that her child would be destroyed because the man did

not want to accept responsibility. Their intent was to destroy the

child, also to hurt the mother. I think justice would demand that

they stand before a court for two offenses, destroying the unborn

child and harming the mother. And adding an additional punishment to the mother doesn’t address the loss that society has felt

because that wasn’t their desire. Their desire was to kill that child

because he did not want to take responsibility.

So I totally reject the idea that adding an enhancement to the

offense against the mother is an appropriate response. I think society’s appropriate response is found in the majority of statutes that

exist at the State level which make it a separate offense, and that

is what we are trying to do here today. We are trying to create a

body of law that would apply in Federal situations to address horrific events. In the event that someone chooses, through their

criminal misdeeds, to harm a pregnant woman and harm or destroy her unborn child, they should stand before the law for two

events, not one.

The statute is well-drafted. It protects medical professionals, it

protects the woman’s right to choose. In no event can the woman

herself be prosecuted. It only applies to third-party criminals. And

it is my hope and dream in this country that we of the pro-life and

pro-choice persuasion can come together on a few issues, this being

one, that the criminal should go to jail for destroying or harming

the unborn after the mother decides to bring the child into the

world.

And in terms of notice, when you assault women of child-bearing

years, you do so at your own risk. I think that is a concept wellsettled in law and is a good concept to have in this bill. One thing

is for sure: you don’t have a problem if you don’t beat on pregnant

women. And if you choose to beat on somebody of child-bearing

years and you didn’t know they were pregnant, the story goes like

this: I can’t be prosecuted, that is silly. If I shoot at A and hit B,

I am going to jail because I hurt somebody. My intent was to hurt

A; I just happened to hurt B.

So if you set in motion violence or activity that results in destroying a child or injuring an unborn child, under the theory of

transferred intent, which is one of the oldest theories in law, under

this statute and 24 other States like it, you can go to jail. And, Mr.

Chairman, I think you should.

Thank you very much for having me. Please listen closely to

what happened in Arkansas. Please listen closely or read closely

the events that have dominated our headlines about women being

assaulted and their children being hurt in the womb. I think you

will find that the appropriate course of conduct is to mirror the

dominant State law in this area, and that is allowing separate offenses for the crime of destroying the unborn child.

22

Thank you, Mr. Chairman.

Senator DEWINE. Senator Feinstein.

Senator FEINSTEIN. If you have a moment, Congressman, I would

like to ask you a question.

Representative GRAHAM. I have got until 3 p.m.

Senator FEINSTEIN. Let me ask you this question. My concern

deals with the bill that says you don’t have to have knowledge or

intent.

Representative GRAHAM. Yes, ma’am.

Senator FEINSTEIN. All right. The woman, newly pregnant—let’s

say she is assaulted. She miscarries. The assailant is guilty of murder?

Representative GRAHAM. It depends on the intent. Let me give

you an example.

Senator FEINSTEIN. But you just said the bill does not—the bill

excludes having knowledge or intent, as I understand it.

Representative GRAHAM. Yes, ma’am. Here is what would happen. If you assault somebody that is in a weakened condition and

you push them and your intent is at a simple assault level and it

results in death, you set in motion the person’s death, but your intent was not to kill. You would be charged with involuntary manslaughter. It would be the same here.

If you got in a shoving match with a pregnant woman and you

were guilty of a simple assault and it resulted in the death or the

destruction of her unborn child, you would be guilty of involuntary

manslaughter. The punishment would be the same as if it happened to the mother herself.

Senator FEINSTEIN. Even though neither she nor the assailant

knew she was pregnant?

Representative GRAHAM. Yes, ma’am, and cases abound on this

issue. If I shoot at you and I hit somebody behind you, my intent

is not to hurt them, my intent is to hurt you. I am guilty under

the law for setting in motion criminal activity that resulted in

harm to somebody, even though I didn’t know that person was

there or I didn’t intend to hurt them. That is a well-settled concept

in constitutional law. In all these States, that has been litigated a

lot.

Senator FEINSTEIN. Now, take a police officer in pursuit of his or

her duty who restrains an individual. Obviously, it is a physical restraint, and the woman is newly pregnant and miscarries. What is

the judgment against the police officer?

Representative GRAHAM. The first question would be did the police officer exceed their lawful authority to use physical force. If the

answer is no, there is no prosecution because there has been no

crime. Police officers are allowed to use the force necessary, given

the conditions that confront them. However, what about—— Senator FEINSTEIN. Many times, there is controversy about that.

Representative GRAHAM. But the way you settle that controversy

is to have a jury or a prosecutor. What if the belief of the prosecutor is that the police officer in question used excessive force, unlawful force? Then the police officer would be just like any other

citizen. If the police officer was charged with using unlawful force

and the jury believes that the police officer used unlawful force,

they are responsible for the consequences of that unlawful activity.

23

In the case of an excessive arrest, it would be involuntary manslaughter because there is clearly no intent to kill, but there is a

clear stepping out of the role of the authority given the police officer. And I think most Americans would say that if a police officer

uses excessive force against a pregnant woman and her child is destroyed, the police officer ought to be prosecuted for that destruction. At least I would say that.

Senator FEINSTEIN. Well, I think that is a broad, sweeping statement about any circumstance that might occur, and we are not

identifying the circumstance, respectfully.

Representative GRAHAM. Senator, here is the common theme: the

only time you can be prosecuted under the statute is if you have

done illegal activity toward the mother. If there is no illegal activity, you are not subject to prosecution. And it has to be a Federal

event; it has to be a situation where Federal law already applies

against the mother. So somebody who is lawfully engaging in law

enforcement activity has no fear. It is only the people that step out

from the color of law that have any worry, any time, anywhere, a

police officer or otherwise.

Senator FEINSTEIN. Thank you very much.

Representative GRAHAM. Thank you.

Senator DEWINE. Congressman, let me just ask, if I could, a couple of questions. I think your explanation and your answers to my

colleague from California have been very good.

Representative GRAHAM. They were very good questions.

Senator DEWINE. And they are very good questions, and you

have both gotten to, I think, the heart and core of what we are

going to be talking about and debating.

You know, you didn’t use these terms, but a basic principle of

law is that we take our victims as we find them. And your example

of pushing someone and you did not know——

Representative GRAHAM. They had an aneurism.

Senator DEWINE [continuing]. They had an aneurism or they had

some problem. You are not charged with murder. What you are

charged with is some form, depending upon the statute and the

State, of manslaughter.

Representative GRAHAM. Exactly, because your intent was not to

kill, but you created the death.

Senator DEWINE. I think sometimes you have to point out the obvious. There is a criminal intent there.

Representative GRAHAM. Right.

Senator DEWINE. Now, it may not have been to kill that person,

but there was a criminal intent. And if you didn’t have a criminal

intent, which is one of the elements of every crime, we wouldn’t be

in the courtroom. The grand jury wouldn’t have indicted or the

prosecutor wouldn’t have brought the case.

So we are not talking about a novel concept of law. We are talking, as you have pointed out, about something that is well-settled,

going back long before the beginning of this country. These are

basic, basic doctrines that are not foreign to us at all.

Representative GRAHAM. Yes, Mr. Chairman.

Senator DEWINE. So I think you have to have an intent. You

can’t have a criminal charge without intent, and this is analogous

to taking your victim as you find your victim, whatever your knowlVerDate 11-MAY-2000 05:51 Sep 19, 2001 Jkt 072611 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 E:\HR\OC\B611.XXX pfrm01 PsN: B611
24

edge was. You didn’t know that victim had an aneurism, you didn’t

know that victim was pregnant.

Representative GRAHAM. And it is simple. If you don’t hurt people, you have got nothing to worry about. Let me give you an example in the military of why we need this statute.

Senator FEINSTEIN. Before you do that, could I just add one

thing? Would you allow me?

Senator DEWINE. Sure.

Senator FEINSTEIN. What I don’t understand is the law specifically says that you do not require proof of intent or you do not require proof of knowledge. It is specific.

Representative GRAHAM. Yes, ma’am.

Senator FEINSTEIN. So the argument then, well, you would have

to have proof of intent, particularly when you come—you know, I

grant you the case when the pregnancy is visible. I mean, women

are all different. The ability to miscarry, as one who has—some

women miscarry very easily.

Representative GRAHAM. Yes, ma’am. Let me give you an example about the——

Senator FEINSTEIN. And you are putting the police officer in huge

jeopardy.

Representative GRAHAM. No, ma’am, I don’t think so. Let me give

you an example about how the word ‘‘intent’’ is used in the law.

Drunk driving. You don’t have to intend to drunk-drive; you just

do it. If somebody is drunk-driving, runs a stop sign and hits a

woman going down the road and she is pregnant, they are going

to jail under this bill if Federal jurisdiction applies. We don’t worry

about their intent because most drunks are too drunk to form an

intent.

Senator DEWINE. If I could just interject, in your case, Congressman, you do have to intend—there is always an intent. You have

to intend to drink. You know, you have to have some intent to take

some action. What the law we are talking about is saying is that

there is not a requirement for intent in regard to the fetus, but

there was an intent to do the initial act that set in motion these

consequences, just as when you walk up to a person who has some

physical problem that is not apparent and you do something to

them, you set that in motion.

You didn’t know they had an impairment. You didn’t know they

were going to die just because you pushed them like that, but again

you take your victims as you find them. I think we can discuss

whether this is the way to proceed, is this the best way to do it.

But I don’t think that any of us can say that this is a concept that

is foreign to our law or foreign to our basic set of values or our

whole criminal law that has developed over the last several hundred years.

Representative GRAHAM. Yes, sir. Twenty-four States have statutes very similar to this. Before my life in Congress, I was a prosecutor in the military. I looked long and hard to make sure it didn’t

overstep Roe v. Wade bounds, looked long and hard to make sure

it withstood the constitutional test that had been levied against

other statutes. The doctrine of transferred intent has withstood

scrutiny. The knowledge element has certainly withstood scrutiny.

25

All it says is that if you bring in force motion to hurt someone of

child-bearing years, you do so at your risk.

And the bottom line about why I got involved is as a former prosecutor in the military, Senator Feinstein, I found several cases that

were very disturbing. A gentleman, an Air Force member, repeatedly assaulted his wife and on this particular occasion just went

berserk, took out a T-shirt—she was 7 or 8 months pregnant—and

beat her within an inch of her life and destroyed the child.

Under the military law that exists today, there is no provision

to prosecute that person for the death of the unborn child. I think

most Americans would believe that he should be prosecuted in that

case because the result of his activity against the mother was destroying an innocent person.

There is a law in effect in this Nation that kind of speaks a lot

about what I am saying. Do you know that federally you cannot

execute a pregnant woman? I think the reason that law exists is

that whatever sins that the mother may have committed, we do not

want to take that innocent life by the State. So we are going to

wait until the pregnancy is over for the execution, and I think that

is analogous here.

We don’t have to worry about the abortion debate. We should all

be able to agree that if a third-party criminal chooses to destroy

an unborn child brought into the world by the mother, they should

go to jail because they have done something separate other than

hurt the mother.

Thank you very much.

Senator DEWINE. Congressman, one last question, if I could. You

debated this issue in the House of Representatives. It is my understanding there was an alternative offered which had to do with

sentencing enhancements.

Representative GRAHAM. Right.

Senator DEWINE. Do you want to describe for us why you think

that was rejected in the House?

Representative GRAHAM. Well, I think it was rejected because the

overwhelming majority of the States have rejected that concept because the harm that you are going to—in the Arkansas case, they

had a specific set of plans. The plan was to destroy the unborn

child. They intended to beat the mother for the effect of killing the

child. I think most Americans would believe that should be prosecuted separately because that is truly what their criminal intent

was, to hurt the mother and kill the unborn child.

We have in this statute that the right of the woman to decide

issues about her own body is left unaffected. But in terms of criminal law, if you can prove somebody destroyed the unborn child as

to criminals, as to third parties, this child has status in the law

subject to prosecution. And I think justice would demand two prosecutions in Arkansas—a vicious assault on the mother and the

death of a 9-month-old, 7-pound baby girl.

Senator DEWINE. Congressman, thank you very much. We appreciate your testimony. It has been very helpful.

I would ask our next panel to please come forward and I will introduce you as you are coming up.

Shiwona Pace. We are very pleased to have her, from Little Rock,

AR. Last August, Ms. Pace was expecting when she was physically

26

attacked by several men who were hired to kill her unborn child.

Unfortunately, her baby did not survive the attack. Four men have

been charged with the assault against her and the subsequent

death of her unborn child under Arkansas’ new fetal homicide law.

We thank you very much for coming today.

Our next witness will be William Croston, who is from Charlotte,

NC. He is here representing his family. Many of us have heard the

story of Ruth and her unborn child’s death at the hand of Reginald

Falice. Mr. Falice was convicted of the murder of Ruth Croston

under interstate domestic violence provisions.

Joseph Daly is here from Middletown, in my home State of Ohio.

He was the husband of the late Suzanne Daly, who was 81⁄2

months pregnant when she and her unborn child were killed by a

reckless driver. Ohio law was changed to allow prosecution for the

death of an unborn child largely because of this tragedy and largely

because of the efforts of Mr. Daly.

We thank all of you for your willingness to be here today, and

I will start from left to right with Ms. Pace. You may proceed. We

have your written statement which we will make a part of the

record for all three of the witnesses, and we would just ask you to

proceed and tell this panel anything you wish.

Ms. Pace, thank you for coming.

PANEL CONSISTING OF SHIWONA PACE, LITTLE ROCK, AR;

WILLIAM CROSTON, CHARLOTTE, NC; AND JOSEPH P. DALY,

MIDDLETOWN, OH

STATEMENT OF SHIWONA PACE

Ms. PACE. My name is Shiwona Pace and I reside in Little Rock,

AR, where I am currently pursuing a degree in psychology at the

University of Arkansas at Little Rock.

On the night of August 26, 1999, I became the victim of a brutal

assault that led to the death of my unborn daughter, Heaven

Lashay Pace. My reason for being here today is to share my story

with you in hopes that the tragedy that I endured can somehow

make a difference.

On January 6, 1999, I found out that I was 2 months pregnant.

Upon learning this, I told my then boyfriend that he was going to

be a father. His initial reaction was that however I chose to proceed would be fine with him because he would be there for me.

After careful consideration, I decided that although this pregnancy

had occurred unexpectedly, I wanted to keep my baby. When I informed him of my decision, his attitude changed completely. He

went from being that of a pleasant-natured person to an irate and

hostile one.

He told me that he would have nothing to do with me or the

baby because he had no desire to be a father. Naturally, I was appalled. Immediately, I realized the possibility that my baby would

not have her father in her life, and although I wanted very much

for them to have a relationship, I did not want to pressure him.

Therefore, I discontinued all communication with him because I

knew that it would be in my best interest, as well as the baby’s,

to avoid any type of stress throughout my pregnancy.

27

Several months went by and Erik and I had no contact. In June

1999, I had my second ultrasound which revealed that I was going

to have a baby girl. It was then that I decided to name her Heaven.

After leaving the doctor’s office, I went to Erik’s place of employment to share the news with him. It had been several months since

we had spoken, but I still felt as though he had the right to know

what his first child was going to be.

He expressed to me that he had no interest in the sex of the

child and that he still had absolutely no desire to be a father. However, he contacted me weeks later with somewhat of a changed outlook, and from that point we began speaking on a regular basis.

Things still weren’t the way they used to be between us, but they

were better.

On the night of August 26, 1999, one day before my due date,

my 5-year-old son and I accompanied Erik to his home at 9212

Monique Drive. It was there that I was assaulted by three masked

men. One of them dragged my son and Erik to a room in the back

of the house while the other two proceeded to beat me and demand

money.

I begged and pleaded for the life of my unborn child, but they

showed no mercy. In fact, one of them told me, ‘‘f’’ you, your baby

is dying tonight. I could hear my son in the background crying and

saying that he wanted his mommy, but I couldn’t do anything to

comfort him. As I lay face down crying and begging for them to

stop, they continued to beat me. I was choked, hit in the face with

a gun, slapped, punched, and kicked repeatedly in the stomach.

One of them even put a gun in my mouth and threatened to shoot.

About 30 minutes afterwards, the three fled and I was rushed by

ambulance to the hospital, where tests revealed that my baby,

Heaven Lashay Pace, had died as a result.

One week later, on September 2, 1999, Erik Bullock and the

three guys that attacked me were arrested and charged with firstdegree battery and capital murder. According to testimony and confessions given by the three suspects, Erik had apparently hired

them to fake a robbery at his house and beat me to the point that

I would lose my baby because he didn’t want his current girlfriend

to find out, and also because he did not want children. One of the

suspects stated that Erik had also participated in the attack.

Today, the three suspects—Derrick Witherspoon, Lonnie Beulah

and Eric Beulah—all remain in jail. However, Erik Bullock is free.

After being charged with capital murder and serving a mere 2

months in jail, Pulaski County Circuit Judge John Plegge granted

him a million-dollar bond and he was released in early November.

Since this time, Erik has resumed his life as though nothing has

happened, but my life has changed dramatically. I lost a part of

me, a child that I desperately wanted and was looking forward to

having. And my son lost the baby sister that he had always wanted. After 9 months of preparation and excitement, I have nothing

to show—cheated, robbed, and forever heartbroken.

Although my story and my being here today can’t change what

has happened, I am hoping that my testimony can change what

will happen. Criminals such as Erik Bullock who show a blatant

disregard for human life should be punished accordingly. The loss

of any potential life should never be in vain.

28

Thank you.

Senator DEWINE. Ms. Pace, thank you very much.

[The prepared statement of Ms. Pace follows:]

PREPARED STATEMENT OF SHIWONA PACE

My name is Shiwona Pace, and I reside in Little Rock, Arkansas, where I am currently pursuing a degree in physiological psychology at the University of Arkansas

at Little Rock. On the night of August 26, 1999, I became the victim of a brutal

assault that led to the death of my unborn daughter, Heaven Lashay Pace, and my

reason for being here today is to share my story with you in hopes that the tragedy

I endured can somehow make a difference.

On January 6, 1999, I found out that I was two months pregnant. Upon learning

this, I told my then boyfriend that he was going to be a father. His initial reaction

was that however I chose to proceed would be fine with him; he would be there for

me. After careful consideration, I decided that although this pregnancy had occurred

unexpectedly, I wanted to keep my baby. When I informed him of my decision, his

attitude changed completely. He went from being that of a pleasant-natured person

to an irate and hostile one. He told me that he would have nothing to do with me

or the baby because he had no desire to be a father. Naturally, I was appalled. Immediately, I realized the possibility that my baby would not have her father in her

life. And although I wanted very much for them to have a relationship, I did not

want to pressure him; therefore, I discontinued all communication with him, because I knew that it would be in my best interest—as well as the baby’s—to avoid

any type of stress throughout my pregnancy.

Several months went by and Erik and I had no contact. In June of 1999, I had

my second ultrasound, which revealed that I was having a baby girl. It was then

that I decided to name her Heaven. After leaving the doctor’s office, I went to Erik’s

place of employment to share the news with him. It had been several months since

we’d spoken, but I still felt as though he had the right to know what his first child

was going to be. He expressed to me that he had no interest in the sex of the child,

and that he still had absolutely no desire to be a father. However, he contacted me

a few weeks later with somewhat of a changed outlook, and from that point, we

began speaking on a regular basis. Things still weren’t the way they used to be between us, but they were better.

On the night of August 26, 1999 (one day before my due date), my five-year-old

son and I accompanied Erik to his home at 9212 Monique Drive. It was there that

I was assaulted by three masked men. One of them drug my son and Erik to a room

in the back of the house, while the other two proceeded to beat me and demand

money. I begged and pleaded for the life of my unborn child but they showed me

no mercy. In fact, one of them told me, ‘‘F**** you. Your baby is dying tonight.’’

I could hear my son in the background crying and saying that he wanted his

mommy, but there was nothing that I could do to comfort him. As I lay face down

crying and begging for them to stop, they continued to beat me. I was choked, hit

in the face with a gun, slapped, punched, and kicked repeatedly in the stomach. One

of them even put a gun in my mouth and threatened to shoot.

After about thirty minutes, the three fled, and I was rushed by ambulance to the

hospital, where tests revealed that my baby, Heaven Lashay Pace had died.

One week later, on September 2, 1999, Erik Bullock and the three guys that attacked me were arrested and charged with first-degree battery and capital murder.

According to testimony and confessions given by the three suspects, Erik had apparently hired them to fake a robbery at his house, and beat me to the point that I

would lose my baby, because he didn’t want his current girlfriend to find out about

my pregnancy. One of the suspects stated that Erik had also participated in the attack.

Today the three suspects, Derrick Witherspoon, Lonnie Beulah, and Eric Beulah,

all remain in jail. However, Erik Bullock—the man that orchestrated the plot—is

free. After being charged with capital murder, and serving a mere two months in

jail, Pulaski County Circuit Judge John Plegge granted him a $1,000,000,000 bond

and released him in early November.

Since this time, Erik has resumed his life as though nothing has happened, but

my life will never be the same. I lost a part of me—a child that I was so looking

forward to having. My son lost the baby sister that he’d always wanted. After nine

months of preparation and excitement, I have nothing to show. Cheated, robbed and

forever heartbroken.

Although my being here today can’t change what has happened, I am hoping that

my testimony can change what will happen. Criminals such as Erik Bullock who

29

show a blatant disregard for human life should be punished accordingly. The loss

of any potential life should never be in vain.

Senator DEWINE. Mr. Croston.

STATEMENT OF WILLIAM CROSTON

Mr. CROSTON. My name is William Croston. I am here today to

share with you my family’s courtroom experience related to the loss

of an unborn child. I also wanted to make one other comment about

some of the discussions that have taken place prior to my testimony here this morning.

I am not a legal person and I can’t speak to you about what people’s intentions are or how this law affects or concerns people have

about the law as it relates to Roe v. Wade and all the other things

that have been discussed. What I can tell you is that when people

go into the courtroom, what they expect is proper justice and judgment. And today, because you don’t have this law on the books,

people are not getting that. So whatever it takes for you to make

this happen and get it right, we really need to do that.

Let me start by telling you that on April 21, 1998, my unborn

niece was the victim of a violent crime when my sister, her mother,

was killed by a gentleman by the name of Reginald Falice. Reginald Falice, who was a former boyfriend of my sister’s, drove from

Atlanta, GA, to Charlotte, NC, with the intention of murdering my

sister. He came to my mother’s home where she was staying that

morning and had an argument with my sister, and while she was

on her way to work one block from my mother’s home, he shot her

approximately 6 times and then fled to his hometown in Virginia.

He was later caught by the police and confessed to the crime. The

important thing that you need to understand here is that he was

her former boyfriend. He knew that she was carrying an unborn

child. This is not a case where he didn’t know what he was doing.

The area that I would like to focus on with you in my testimony

is what happened when we went to court. Prior to the beginning

of the trial, with the jury not present—the jury was not in the

courtroom at the time—the judge made the statement that he did

not want the jury to know that Ruth Croston was carrying an unborn child.

Now, let me make it clear I have no problems with the judge because what I understand is that the judge was following the law

as it is written today. The problem obviously is that we need to

change the law. And I can tell you that there is a great hurt on

the part of myself and my other family members when you lose a

person like that. You know, part of the therapy when you lose

someone—and I know that everyone in here at some time has lost

somebody that is close to them—is that you can cling to the experiences that you have had with that person. You can remember the

things that you have learned from that person. You don’t have that

with a child that is unborn, a person that you waiting to come into

the world who never got here.

Let me go back to the trial for a minute and make the point I

wanted to make here that I think we have to look at this in the

larger context of the fact that you have a defense team that is trying to clean up the image of the criminal. And when you drop a

charge—or not really drop, but you don’t even bring a charge for

30

harm to an unborn child, you are aiding the defense and making

this person look better.

Now, in my sister’s case, that did not help Reginald Falice, and

the reason it didn’t help him is because he had confessed to the

crime. The concern I have is that you probably have now in the

courtroom cases where the defense team is preparing something

that allows an individual like this to come back out. And I think

Shiwona offered that example to you just a minute ago. What

needs to happen is that these people need to be held accountable

for the crimes they commit.

So let me say this to you in closing. What we need to do is look

at the realities of the things that are going on in the world today.

Only 2 weeks ago, a young lady was found in North Carolina who

was pregnant dead. They don’t know who did it. In the fall of this

year, a young woman by the name of Sharika Adams was attacked

allegedly by—and I say allegedly because it has not gone to court

yet—by one of the Carolina Panthers.

There are just too many of these type of cases that exist today,

and for me personally each time I hear about it, I have to relive

it. And so what I would say to you is work out all the little gory

details—again, I am not a legal person—figure out what it takes

to put the laws on the books that can prevent these individuals

today who are walking out of the courtrooms after they commit

crimes.

Thank you.

Senator DEWINE. Thank you very much.

[The prepared statement of Mr. Croston follows:]

PREPARED STATEMENT OF WILLIAM CROSTON

My name is William Croston. I am one of Ruth Naomi Croston’s brothers. On

April 21, 1998, my sister, Ruthie, and her unborn child were murdered by Reginald

Falice. As a result of the murder of Ruthie and her unborn child our family had

to go through a trial. The trial was the process of giving Falice his day in court even

though Reginald Falice has confessed to the murder of Ruth Croston prior to the

trial. One major disappointing aspect of the trail was that Falice was NOT charged

with the murder of the unborn child that Ruth Croston was carrying.

Under current law we simply choose to dismiss the life of the unborn child. In

fact, prior to the beginning of the trial the Honorable Judge Graham C. Mullen indicated that he didn’t want the jury to know that Ruth Croston was carrying an unborn child. While I understand that the intent here is to avoid jury sympathy for

the victim, the reality is that the current process dismisses the life of the unborn

child and the family’s suffering associated with a very real loss. The difficulty of accepting the loss of Ruth Croston and her unborn child is greatly enhanced by the

fact that the unborn child was the child of Ruth Croston and Reginald Falice. Reginald Falice knowingly murdered Ruth Croston and their unborn child. However, the

current law does not consider the unborn child a part of the irresponsible actions

committed by Reginald Falice.

Unfortunately the thoughts in the mind of some persons in today’s society have

reached a point of no respect for the life and rights of others. We need to update

today’s laws to conform to the reality of the crimes committed in society today. Today’s federal laws ignore and/or dismiss crimes against the unborn child. Example:

United States vs. Reginald Falice. We need to update today’s out-of-date laws to include consequence for criminals who cause harm to unborn children through an act

of violence against the mother. The important factor to consider in the case of

United States vs. Reginald Falice, is that Reginald Falice knew that Ruth Croston

was carrying his unborn child. Why not bring charges for violence to the unborn

child?

In closing, the Committee should understand that our family will forever be in

mourning over the loss of Ruth Croston and our unborn niece. Our grief will last

a lifetime. The emotional effect of the death of our niece resurfaces each time we

31

hear about another unnecessary act of violence against a pregnant woman. The impact of the irresponsible actions of Reginald Falice will be with me and my family

for the rest of our lives. I hope that the Senate Judiciary Committee will find the

wisdom to bring the current law up-to-date with the reality of the crime committed

in society today. It is imperative that we hold criminals responsible for their acts

of violence against pregnant woman and their unborn children.

Senator DEWINE. Mr. Daly.

STATEMENT OF JOSEPH P. DALY

Mr. DALY. It is a bittersweet day for me as I sit before you and

give you my testimony. On one count, I am very proud that I have

changed the laws in Ohio to recognize unborn children. On the

other, I have to face the memories of great pain and sadness. It has

been 41⁄2 years, but you have to revisit it.

On an early August morning in 1995, I kissed my wife, Suzanne,

goodbye as she went out the door for her early-morning commute

to a preschool outside Cincinnati, where she worked as a teacher.

Suzanne was just 3 weeks away from delivering our first child and

within a few days of maternity leave. We had waited almost 5

years to have our first child and waiting for Suzanne to finish college and waiting for us to be financially responsible. The nursery

was ready, equipped with just about everything we would need. Almost giddy with anticipation, our future seemed very bright.

But in a split second, our bright future was snuffed out. Suzanne

and our unborn son, Austin, were killed by an unlicensed 16-yearold driver that was driving a stolen car that crossed the median

and slammed head-on into her car. When I heard this devastating

news, I felt like that my life too was over.

I learned on the day that my wife was buried that the driver who

had taken their lives could not be prosecuted for taking two lives

under Ohio State law. She was charged with just one count of vehicular homicide. I was not only angry, but insulted, insulted not

for just me, but for Suzanne. Over and over, I would replay the videotape of our sonogram showing my healthy son almost ready to be

born. No one could tell me that this was not a human being. It was

my son, our son, just days away from meeting Suzanne and I, his

parents.

After burying my wife and son, I knew I would face many challenges. My first was to change Ohio’s antiquated laws regarding

the unborn. I knew it wouldn’t bring back my wife and son, but it

might change the life of others and changed the way that Ohio

viewed the unborn. With the help of my family, friends, and thousands of Ohioans, we worked hard to raise awareness and get

Ohio’s laws changed.

After many months of attending various committee meetings in

Columbus, just like I am doing now, giving proponent testimony,

my challenge ended in triumph. On June 6, 1999, then Governor

George Voinovich signed into law what many refer to as the Daly

bill. This new law permits prosecutors to charge people who harm

or kill unborn babies while committing a crime.

Since that time, I have been contacted by many heartbroken couples who have asked me to help them begin similar campaigns in

their own States. They too were shocked to learn criminal charges

could not be filed when their unborn child’s life was terminated.

32

Over the past few years, similar legislation has been proposed and

enacted at the State level, but not all States have laws protecting

pregnant women, nor does the Federal Government. It is now time

to deal with that at a Federal level.

Over the years, this type of law has been tested and proven constitutional in many States, including Ohio. Yet, many States’ civil

law continues to conflict with criminal law. Isn’t it grossly inconsistent to construe a fetus as a person for the purposes of civil liability while refusing to give it similar classification within the

criminal code?

This bill should be bipartisan, a common-sense piece of legislation that protects a woman’s right to carry her unborn baby or

child to term. It covers only wanted pregnancies and the right to

win a conviction for harm or death to an unborn child only if it is

proven that the defendant violated Federal law with respect to the

mother. It would be very hard to harm or kill the unborn without

harming or killing the mother, wouldn’t it? That is why we need

two separate offenses.

The bill does not try to define when life begins, nor will it have

any impact on pro-choice or pro-life agendas because it isn’t about

a woman’s choice to prevent or abort a fetus. It is about a woman’s

right not to have her unborn child’s life illegally terminated. Nowhere in the proposed bill does the Federal Government have to

take the responsibility in determining when a fetus is viable or

when an embryo becomes a human being, or even how many rights

should be given to the unborn. All I want, all that my wife would

have wanted is recognition of the simple fact that every woman

should have the right to carry her baby to term, and in this instance every child should have the legal right to be born. Any person who violates those rights and kills an unborn child should ultimately face the consequences of their actions.

If a woman has the constitutional right to prevent or abort a

pregnancy, she should have the same right to carry that baby to

term and hold responsible anyone who takes that right away. In

the circumstance when a woman and an unborn child can’t protect

themselves, the government should. Isn’t this why legislation is enacted in the first place, to protect each and every one of us to the

guarantee of the right to life, liberty, and the pursuit of happiness?

I think my wife was violated of all three of those rights.

To Suzanne and me, we wanted our unborn son from the very

moment we learned that she was pregnant, the very moment. To

us and everyone around us, we were expecting a child, an unborn

child at that time, that was wanted and had the right to be born.

Every woman has the right to experience the joy of bearing the

child she so desperately wants, no matter where she may live or

travel. That is not true right now. This Federal legislation will go

a long way in providing a woman the right to greet her baby face

to face.

In conclusion, my sincere hope is that this piece of Federal legislation will also serve as a springboard for the other 20-plus States

that do not have any criminal laws relating to unborn children to

pass such laws. There is not a human being on the Earth that was

not at one time an unborn child.

I thank you.

33

[The prepared statement of Mr. Daly follows:]

PREPARED STATEMENT OF JOSEPH P. DALY

On a desperately hot day in August of 1995, I kissed my wife, Suzanne, good-bye

as she went out the door for her morning commute to a preschool outside Cincinnati

where she worked as a child care giver. She was just three weeks away from delivering our first child and within a few days of maternity leave. We had waited almost

five years to have our first child, waiting for Suzanne to finish college. The nursery

was ready, equipped with just about everything we’d need. Almost giddy with anticipation, our future seemed bright.

But in a split second, our bright future was snuffed out. Suzanne and our unborn

son, Austin, were killed by an unlicensed 16-year-old girl driving a stolen car that

crossed the median and slammed head-on into her car. When I heard this devastating news, I felt like my life, too, was over.

I learned the day my wife was buried that the driver who had taken their lives

could not be prosecuted for taking two lives under Ohio law. She was charged with

just one count of vehicular homicide. I was not only angry, but insulted! Over and

over I’d replay the videotaped sonogram, showing my healthy son, about ready to

be born. No one could tell me that this was not a human being. It was my son . . .

just days away from meeting his parents.

After burying my wife and son, I knew I’d face many challenges. My first was to

change Ohio’s antiquated laws regarding the unborn. I knew it wouldn’t bring back

my wife and son, but it may change the life of others. With the help of family,

friends and thousands of Ohioans, we worked hard to raise awareness and get

Ohio’s law changed. After many months of attending various committee meetings

in Columbus, my first challenge ended . . . in triumph. On June 6, 1996, then Governor George Voinovich signed into law what many refer to as the ‘‘Daly bill.’’ This

new law permits prosecutors to charge people who harm or kill unborn babies while

committing a crime.

Since that time, I have been contacted by many heartbroken couples and asked

to help them begin similar campaigns in their states. They, too, were shocked to

learn criminal charges could not be filed when their unborn child’s life was illegally

terminated. Over the past few years, similar legislation has been proposed and enacted at the state level. But now it’s time to deal with this issue at the federal level.

Over the years, this type of law has been tested and proven constitutional in Ohio

and many other states. Yet, in many states civil law continues to conflict with criminal law. It is grossly inconsistent to construe a fetus as a ‘‘person’’ for the purpose

of civil liability, while refusing to give it a similar classification in the criminal context.

This bill should be a bipartisan, common sense piece of legislation that protects

a woman’s right to carry her unborn child to term. It covers only wanted pregnancies and the right to win a conviction for harm to an unborn child only if it is

proven that the defendant violated a federal law with respect to the mother. It does

not try to define when life begins nor will it have any real impact on the Pro Choice

or Pro Life agenda. Because it isn’t about a woman’s choice to prevent or abort a

fetus! It’s about that woman’s right not to have her unborn child’s life illegally terminated.

Nowhere in this proposed bill does the federal government have to take the responsibility in determining when a fetus is viable or when an embryo becomes a

human being. Or even how many rights should be given the unborn. All I want is

recognition of the simple fact that every woman should have the right to carry her

baby to term; and in this instance every child should have the right to be born. And

any person who violates those rights and kills an unborn child should ultimately

face the consequences of their actions.

If a woman has the constitutional right to prevent or abort a pregnancy, she

should have the same right to carry that child to term, and hold responsible anyone

who takes that right away. In a circumstance when a woman and an unborn child

can’t protect themselves, the government should. Isn’t this why legislation is enacted in the first place—to protect each and every one of us, to guarantee us the

right to life, liberty and the pursuit of happiness?

To Suzanne and me, we wanted our unborn son from the very moment we learned

that she was pregnant. We were expected Austin, our child, a human being. To us,

and everyone around us, we were expecting a child, an unborn child that was wanted and had the right to be born.

Every woman has the right to experience the joy of bearing the child she so desperately wants, no matter where she may live or travel. This federal legislation will

go a long way in providing a woman the right to greet her baby face-to-face.

34

In conclusion, it is my sincere hope that this piece of federal legislation will also

serve as a springboard for the other twenty-plus states that do not have any criminal laws relating to unborn children to pass such laws.

Senator DEWINE. Thank you very much, Mr. Daly.

Senator Feinstein.

Senator FEINSTEIN. Well, let me just extend my deepest sympathy to the three people that have just testified. You know, there

is no question that your stories are compelling, that they are real,

that they happened. You have, I think, a lot of merit in what you

say, and what is interesting to me is that there is commonality

here in that all of your unborn children were almost at term, were

capable of life outside the womb.

The women assaulted, or in your case, Mr. Daly, hit by the driver—the other driver wouldn’t know she was pregnant, but nonetheless your wife was pregnant. In both Mr. Croston’s case and Ms.

Pace’s case, there was both knowledge and intent that they were

effectively taking the life of a child that could be sustained as life.

So I think the point is made.

And I perhaps say this to you, Senator. I would like to see some

bill that could take that into consideration. Mr. Croston said, I

think, quite rightly, you know, his problem isn’t to know the intricacies of the law, it is to see that justice is done. Of course, that

should be our challenge as well.

On the other hand, I am still bothered by the unexpected—and

let me just go back to one thing—and that is somebody that is

newly pregnant, perhaps herself is acting in a criminal way, as to

how you remedy this. And I am struck by my discussion with Congressman Graham because I can see an instance of restraint of a

woman who is restrained under whatever she may be criminally

culpable for. She may be drunk, but is visibly restrained by a police

officer even in a way that perhaps there is proof of excessive restraint. That police officer is guilty of murder.

Senator DEWINE. Not murder.

Senator FEINSTEIN. What would it be?

Senator DEWINE. It would be manslaughter, I would assume.

Senator FEINSTEIN. But the police officer doesn’t even know, and

so this puts all accused or all defendants——

Senator DEWINE. Take your victims as you find them.

Senator FEINSTEIN. Well, I——

Senator DEWINE. Well, no. It is a basic principle and it is not a

new principle, it is not a new concept.

SENATOR FEINSTEIN. So you fully intend that to be the case in

your legislation?

Senator DEWINE. Your example again? I want to make sure I get

it.

Senator FEINSTEIN. My example is this, that let’s say the woman

being restrained is culpable of a crime, or let’s say she is excessively drunk.

Senator DEWINE. She has committed a crime, she has committed

a crime.

Senator FEINSTEIN. Let’s say she is excessively drunk and in

order to restrain her, there is excessive force used.

35

Senator DEWINE. Well, Congressman Graham, I think, answered

that very well. He went through as a prosecutor what you would

have to determine when you looked at the case.

Senator FEINSTEIN. He said to me if there were no excessive

force, he would not be guilty. But if there were, you know, what

is and what isn’t?

Senator DEWINE. You have to go into a fact determination of

whether there was excessive force. You wouldn’t even get to any of

these questions unless there was excessive force and a jury had determined that, or that had been determined in a court of law. The

threshold question is was there excess force used or not, and determine excess force you would obviously have to look at what the socalled victim was doing, what the person who was being restrained

was doing, and all the surrounding circumstances.

But to carry it forward, if you determined the police officer was

not acting correctly and did use excessive force, considering all the

circumstances, and did, in fact, then commit an assault against the

person who was being restrained, the intent that you would have

to find under our bill would be that there was an intent to commit

the assault. That is what the intent would be.

Senator FEINSTEIN. The bill doesn’t say that, though.

Senator DEWINE. And if it turned out that she was pregnant and

she miscarried, then you are into a manslaughter issue at that

point. You are not into a murder case, you are into a manslaughter

case.

If I could just for a moment, since we are on that—and we will

just go back and forth; we don’t have the clock on here. Mr. Daly,

in your tragedy the person who came across and killed your wife

and your unborn child, that person was guilty. That person has an

intent to do the act, but that person didn’t start out with the intent

to kill your wife, but that person is still guilty, right?

Mr. DALY. That is true.

Senator DEWINE. That person is still guilty. And in your case—

and if any other witnesses want to respond—I get the impression,

and you pretty much stated it, that one of the things that you feel

as a victim that you need is the recognition that it was a separate

offense against your unborn child.

In other words, you have been here and listened to this. Some

people are saying, well, we should just enhance the penalty for killing your wife. And I get the impression that that is not really what

you want to see because that does not recognize that individual,

that child.

Mr. DALY. I agree.

Senator FEINSTEIN. Before he answers, give me an opportunity to

state—— Senator DEWINE. Well, I would like to see him answer first.

Senator FEINSTEIN. I don’t think you stated it correctly.

Senator DEWINE. I didn’t state what correctly?

Senator FEINSTEIN. Well, I assume you are referring to my comments about——

Senator DEWINE. No, not yours.

Senator FEINSTEIN [continuing]. Creating legislation that would

provide an enhancement, and that is not entirely what I am talking about because what I am talking about is providing an opporVerDate 11-MAY-2000 05:51 Sep 19, 2001 Jkt 072611 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 E:\HR\OC\B611.XXX pfrm01 PsN: B611
36

tunity for a judge to make a judgment that two lives were essentially lost. Therefore, the enhancement would relate to the second

life.

Senator DEWINE. I was actually referring to our Department of

Justice witness’ testimony, but I think your point is well taken that

you have a middle ground which does to some extent recognize certainly that second life.

Mr. Daly, you can answer and any of the other witnesses can answer.

Mr. DALY. It is a tiered program. I think that if there were penalties in her situation, it would be a tiered situation, but it would

not apply. Vehicular homicide is different than aggravated vehicular homicide. Because it was aggravated at the time, she had the

intent to kill. If she was drunk, she might have the intent to kill.

You can’t get a murder charge if there is no intent.

So in her example of using an officer and throwing her to the

ground not knowing, the officer didn’t have any intent to kill the

baby, so he could never be charged with murder, as I understand

it. You were a prosecutor yourself, so isn’t that one of the stipulations of a murder that you have to have intent, design, and some

other items?

Senator DEWINE. Sure, under murder, you would. Not on manslaughter, but on murder you would.

Mr. DALY. Exactly, so I think there are—you know, my point

being that my wife and I wanted to have our baby. It was a wanted

pregnancy, it was a planned pregnancy. We wanted it from the

time that we found out about it. With technology today and science

today, you can find out if you are pregnant when you are a day or

two pregnant because of pregnancy tests that are over-the-counter.

My wife and I wanted our baby at that moment. It would have

been just as unjust to take my son, Austin, at 4 weeks as it would

have been at 81⁄2 months to us. It would not have mattered, and

I think that most mothers would agree.

In Ms. Feinstein’s case, I ask if you have children—if you had

two children on a school bus and a drunk driver hit the school bus

and it exploded and killed everybody aboard, would you want one

charge and charge the driver with one count of vehicular homicide

or with two? If you were a mother, you would want two, not one

charge, two charges.

I have some pictures that I would like to share with you, if I can,

to the panel.

Senator DEWINE. That would be fine. Do you want to pass those

out, Mr. Daly? They will pass them out for you.

Senator, anything else? We have one more panel.

Senator FEINSTEIN. No.

Senator DEWINE. I appreciate the three of you testifying. I will

take a look at the pictures, Mr. Daly.

Mr. DALY. I would just like to use the pictures as part of my testimony.

Senator DEWINE. Oh, sure, sure. Do you want to proceed? Go

ahead.

Mr. DALY. I will proceed. Do you have a copy of the picture?

Senator FEINSTEIN. Yes.

37

Mr. DALY. OK, let’s take a look at it. The glossy photo that you

see—what do you see?

Senator FEINSTEIN. An infant.

Mr. DALY. An infant, OK.

Senator FEINSTEIN. And your wife.

Mr. DALY. Right. If you look at this, I want to tell you that 99.9

percent of the American population will tell you that this is a baby.

No one would ever tell you that this is a picture of an unborn person. This is a picture of my son, Austin, the day that I buried him.

I put him in my wife’s arms, in his mother’s arms, to be buried.

You can’t bury a person until they have been born.

Now, it is tragic that he died in the womb, but this is proof that

the unborn are people. If my wife knew that there was a possibility, or any woman knew that there would be a possibility—in

Shiwona’s case, if she knew that she would be violated to the extent that she was, she could have gone to the hospital and said I

elect to have my baby be born right now. She has that right, if she

knew that.

If my wife knew that she was going to be in a tragic accident and

it could cause harm or death of her unborn child, she could have

easily given birth to my son and he would be here right today, only

41⁄2 years old, to say this is wrong, I need to be recognized.

I gave you a picture of my wife when she was about 71⁄2 months

along, about 4 weeks prior to that. Not to be a bit sarcastic, but

I see two people, and I really do think that in situations you don’t

harm her to the extent where the Federal crime or the Federal law

would come about or any advancement of laws, but you harm this

person to the extent of death or brain damage or loss of limbs inside the womb. You have to recognize this as a separate person in

the law.

Senator DEWINE. I appreciate all of your testimony very much.

I know it has been a difficult morning for you to come in and testify, but your testimony is very important. We are glad you made

the sacrifice to come in. We extend to the three of you our deepest

sympathy for what you have gone through and what I know you

continue to go through. We thank you very much.

Mr. DALY. Thank you.

Senator DEWINE. You have been very helpful.

I would ask now our third panel to come forward. As the third

panel comes forward, I will introduce our panel.

Professor Jerry Bradley is a constitutional law expert who teaches at the Notre Dame School of Law. He is here to testify about

the constitutionality of the Unborn Victims of Violence Act.

Lieutenant Colonel Davidson is an active-duty Army Judge Advocate currently assigned to the 3rd U.S. Army at Fort McPherson,

Georgia. He has served both as a military trial counsel and as a

special U.S. attorney. He also has taught military law as an adjunct professor at Arizona State University of Law. He is testifying

today as a military law expert. We thank him, as well, for his contribution to the panel.

Ron Weich is a partner in the law firm of Zuckerman, Spaeder,

Goldstein, Taylor and Kolker. He has worked as Judiciary Committee counsel for both Senators Specter and Kennedy, and has

38

also been an attorney with the U.S. Sentencing Commission and an

assistant district attorney in New York.

Dr. Juley Fulcher is the Public Policy Director for the National

Coalition Against Domestic Violence. She has taught as a visiting

professor at the Georgetown University Law Center Domestic Violence Clinic. She also has a Ph.D. in psychology from Johns Hopkins University.

We will start with Professor Bradley, and we have your written

testimony, all of you, which we will make a part of the record. You

may proceed. We will have the clock on at 5 minutes, but we will

be a little lenient if you need to go a little bit beyond that. We appreciate all of you coming in.

Professor Bradley, would you like to start, please?

PANEL CONSISTING OF GERARD V. BRADLEY, PROFESSOR OF

LAW, UNIVERSITY OF NOTRE DAME, SOUTH BEND, IN; RONALD WEICH, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR,

AND KOLKER, LLP, WASHINGTON, DC; LT. COL. MICHAEL J.

DAVIDSON, U.S. ARMY JUDGE ADVOCATE, FORT McPHERSON, GA; AND JULEY FULCHER, PUBLIC POLICY DIRECTOR,

NATIONAL COALITION AGAINST DOMESTIC VIOLENCE,

WASHINGTON, DC

STATEMENT OF GERARD V. BRADLEY

Mr. BRADLEY. Thank you, Senator DeWine. I would like to focus

my remarks today on two points, transferred intent and the relation of this Act to the constitutional liberty articulated in Roe v.

Wade.

Under the rubric of transferred intent, so far the discussion

today has really been talking about two different things, and I wish

in the first part of my remarks to amplify the distinction which has

more recently been drawn by Senator DeWine and Representative

Graham. Earlier in the day, we seemed to be talking about, under

the rubric of transferred intent, something quite different, and that

is the principle of criminal law liability of taking one’s victim as

one finds him or her.

We mentioned the case of the person with an aneurism who is

pushed to the ground. I wish to simply amplify what was said earlier to make a particular point about fortuity or luck in criminal

responsibility. Take the same actor with exactly the same intentions doing exactly the same thing to three different people. Let’s

say they are women, and that act is a strong push on the street.

The first person, steady of foot, may not fall at all. Maybe no one

will call 911. Perhaps there is an ‘‘excuse me, don’t do it again.’’

The second person falls and gets right back up. The third time, exactly the same act, same intention; the person falls and never gets

up. Because of an aneurism, the person hit the pavement and died.

That third act will constitute some act of homicide, not murder, to

be sure, but some form of reckless negligent homicide, perhaps

called manslaughter.

Now, this surely does introduce an element of chance or luck into

criminal responsibility. To use the language of the Department of

Justice witness, you could call it Russian roulette. I think it is just,

but it is certainly not a novel concept or a concept novel or first

39

introduced by this legislation; it is a tried and true principle of the

criminal law.

But speaking of the Department of Justice testimony on the matter of transferred intent, I don’t think that the Department’s testimony, or at least that part of the Department’s testimony on page

3 of their submission concerning transferred intent is accurate.

The Department says that the felony murder rule is limited to

the subclass of felonies from which a death is reasonably likely to

occur. And then the Department’s witness goes on to suggest that

some of the predicate acts in this Act, Unborn Victims of Violence,

are not acts reasonably likely to result in death. I don’t know about

that last point, but I think that the account of transferred intent,

and specifically as applied or found in the felony murder rule, is

quite mistaken.

First, I don’t think it is true that even according to the Department’s testimony, the felonies which are typically grounds for felony murder liability are acts that reasonably likely occur in death.

Take burglary, for instance. I don’t have the math and I don’t have

the numbers, but I don’t think burglary as such is reasonably likely

to kill anybody. If you divided the total number of burglaries reported in the United States in a given year by the number of people killed in burglaries, I don’t know what that number would be,

but my educated guess is that that number, whatever it is, would

be after a decimal point; that is, to the right of a decimal point.

And my guess is that the first number to the right of the decimal

would be zero; that is, somewhere less than 1 percent. I don’t think

that is a definition of ‘‘reasonably likely.’’ So therefore it is not typically the case that the felony predicate acts which constitute liability for felony murder are limited to acts which are likely to cause

death.

Second, more theoretically, I don’t think it is true that felony

murder liability has anything to do with acts which are reasonably

likely to cause death. I think that the underlying notion of culpability is different, although it may seem related.

I think the traditional idea behind felony murder liability was

that anyone who engages in or performs certain bad acts, felonies,

exhibits such an indifference to the interests of other people, such

a hostility to the common good, that it is right to hold them liable

for any consequences that ensue. I think that is pretty much what

Representative Graham was saying about this Act. If you hurt a

pregnant woman, you are liable for the natural consequences of

your act. And I think that account of this Act is perfectly in harmony with traditional notions of responsibility as we find them in

the felony murder rule.

Finally, I think the Department’s account actually doesn’t work

at all. If it were true that felony murder liability were predicated

upon committing acts reasonably likely to kill or cause death, you

wouldn’t need a felony murder rule at all because on that view, a

person engages in the act which the person knows is reasonably

likely to kill. Well, that is manslaughter; that is negligent homicide

or reckless homicide. That is not felony murder. So liability would

occur under the Department’s view, but not liability for felony murder. It would be some kind of criminally negligent homicide.

40

My second point, Roe v. Wade. Some people object to the Act because somehow it is inconsistent with Roe v. Wade or its progeny.

The view seems to be that there is no significant difference between this Act and a simple, flat declaration by Congress that the

unborn are persons. And that, the objection continues, is inconsistent with Roe.

Well, the objection would be sound if it were the case that Roe

or some other Supreme Court case held that the unborn are not

persons, but the Supreme Court has never so held. The Roe Court

said explicitly that it need not resolve the difficult question of when

life begins. The Court said in Roe the judiciary is not in a position

to speculate as to the answer.

What the Court held in this regard was simply this, that Texas,

and by extension any other government body, including this Congress, in the Court’s words, could not override the rights of the

pregnant woman by adopting an answer to the question of when

life begins. But this Act makes it as clear as is humanly possible

that the rights of pregnant women are preserved. No woman may

be held liable under this Act.

This understanding of Roe was explicitly confirmed by the Supreme Court in Webster, in 1989. The Supreme Court here, reversing a holding of the Eighth Circuit, stated of its own prior decisions, including Roe, that it meant those decisions meant only that

a State could not justify an abortion regulation otherwise invalid

under Roe on the grounds that life began at conception. To put that

in my own terms, so long as the stated view of public authority

that life begins at conception does not interfere with the freedom,

the privacy right of women in Roe, there is no constitutional difficulty with a State so stating.

Finally, if I may on Roe, if I may just for 30 seconds longer, it

is important to remember that Roe rests entirely upon what the

Court called a right of privacy. Its holding is about leaving a pregnant woman unmolested in her privacy to make a decision concerning her and her unborn child. That is not the kind of thing that

even sounds like it could command retirement by this Congress

from the whole question of when life begins. So long as that privacy

is respected, there is nothing in Roe to disable the Congress or any

other public authority from stating to the rest of the world, stay

away from this unborn child. That is what this Act does.

Senator DEWINE. Professor, thank you very much.

[The prepared statement of Mr. Bradley follows:]

PREPARED STATEMENT OF GERARD V. BRADLEY

I am pleased to address the question of the constitutionality of the Unborn Victims of Violence Act of 1999. [Hereafter, ‘‘Act’’.]

The first question about the constitutionality of the Act is not whether it violates

a right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade. That would be the first, and only interesting, question

where a government of general jurisdiction, like our state governments, passed a

law like this Act. About half the states have effectively done so, either by separate

enactment or by subsuming harm to the unborn within homicide protections of murder or manslaughter. Courts throughout the country have found these laws to be

compatible with the right articulated in Roe.

Our national government possesses extensive but not indefinite powers, large but

not unlimited jurisdiction. Ours is a national government of specific and enumerated

powers. It possesses no general power to protect persons, including unborn persons,

against private violence. The closest the national government comes to such an auVerDate 11-MAY-2000 05:51 Sep 19, 2001 Jkt 072611 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 E:\HR\OC\B611.XXX pfrm01 PsN: B611
41

thority is the power conferred by the Fourteenth Amendment’s guarantee to all ‘‘persons’’ of the ‘‘equal protection’’ of state laws, including state laws against assault

and homicide. Upon an appropriate finding of fact by Congress that some identifiable class of persons—say, a racial or ethnic minority, or a particularly vulnerable

and politically powerless group, like the infirm or unborn—is, on a widespread

basis, unequally exposed to private violence by exclusion from, or lax enforcement

of, state homicide laws, direct federal protection against such discrimination would

be constitutional.

The first question is whether there is an enumerated power which authorizes the

protections accorded the unborn by the Act. With the recent revival of judicially enforceable limits upon Congress’s commerce power—see U.S. v. Lopez—and the narrow reading of Congress’s ‘‘enforcement’’ power under Section 5 of the Fourteenth

Amendment in City of Boerne v. Flores, one might expect some debate about the

enumerated bases for the Act. Not so. The Act does not engage recent developments,

and is subjected to no doubt of its constitutionality because of them. For the Act

does not extend Congress’s reach; no conduct whatsoever which is presently free of

federal regulation will be regulated if the Act becomes law. No conduct which was

lawful is to be unlawful; no conduct which was legal is to be illegal. The Act is essentially a punishment enhancement provision.

The Act is perhaps best compared in this regard to the Racketeer Influenced and

Corrupt Organizations Act—RICO. RICO, too, relies upon (what it expressly calls) ‘‘predicate’’ offenses—and then lists them, as does the Act—in order to set up what,

like the Act, is essentially an enhanced punishment statute. The Act relies upon

predicate acts for its constitutional hook, one might say. If there is any question

about the constitutionality of its reach, then, it is a question of the constitutionality

of the ‘‘predicate’’ offense, and not about this Act.

(There is one question to be taken up concerning the constitutionality of the reach

of this Act, where federal authority is predicated entirely upon the identity of an

individual attacked. I postpone it until later, for reasons that I believe will be more

clear then.)

The Act relies upon established criminal law principles of transferred intent to

affix the enhanced penalty to an already criminal act. The basic idea is simple: a

bad actor with the requisite malice to, in the language of the bill, ‘‘violate [ ] any

of the provisions of law listed in subsection (b),’’ may be charged with an additional

violent offense, without evidence of malice towards or even knowledge of, the baby

in utero where the malefactor in fact causes harm to it. This established principle

is perhaps classically illustrated in felony murder statutes, where the malice manifested in the commission of a felony is transferred to what may be even an accidentally caused death. So, for example, an arsonist who honestly believes the building

he torches is unoccupied is nonetheless indictable for felony murder if, by chance,

someone is inside, and is killed.

Nothing in the Act affects, much less unconstitutionally restricts, the mother’s

right to terminate her pregnancy. (The current expression of the constitutional

standard is the ‘‘undue burden’’ test of Casey v. Planned Parenthood.) I can scarcely

imagine language more adequate to the preservation of the right to abortion than

that found in section (c) of the Act. Not only is the mother and all those cooperating

with her in securing an abortion completely immunized against all potential liability. No woman may be prosecuted under this Act ‘‘with respect to her unborn child.’’

No woman engaged in predicate criminal conduct may be prosecuted for harm to

her child, even where she did not intend to abort. So, a woman engaged in a hijacking or assault upon a federal juror or in animal terrorism or in any covered activity

and who, as a result (of flight or some mishap) causes harm or death to her own

fetus, is beyond prosecution under this Act, even though she may be liable for hijacking or assault upon a juror or animal terrorism. The Act simply does not inhibit

the woman’s freedom to choose whether to hear a child or not.

In fact, one of the state interests which might be said to be promoted by the Act

is precisely the liberty articulated in Roe. A woman’s freedom to carry a baby to

term is inhibited or denied by conduct which results in harm or death to her unborn

child.

Someone might object that nevertheless the Act, in its protection of what the Act

calls ‘‘unborn children’’ to practically the same extent as other persons is somehow

inconsistent with Roe, or its progeny. Is there no difference, the objection might

hold, between this Act and a flat Congressional declaration that the unborn are persons? And is not that declaration inconsistent with Roe, or its progeny.

The answer to this challenge would very likely have to be yes if the Supreme

Court in Roe or some other case held that the unborn are not persons. But the Court

has never so held. The Roe court said that it did not ‘‘need [to] resolve the difficult

question of when life begins’’ (410 U.S. at 159). The Court there said the ‘‘the judiciVerDate 11-MAY-2000 05:51 Sep 19, 2001 Jkt 072611 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 E:\HR\OC\B611.XXX pfrm01 PsN: B611
42

ary . . . is not in a position to speculate as to the answer.’’ (Id.) In no general or

broad way, moreover, did the Court hold that the states or the Congress operated

under a similar disability. All that the Court held in this regard was that Texas

(and thus any other governmental body, including for argument sake, the Congress)

‘‘could not override the rights of the pregnant woman’’ by adopting an answer to the

question of when life begins, that she could not be deprived of all freedom of choice

by the consequences of legislation regarding the beginning of life. (See 410 U.S. at

162). But this Act does not affect, much less ‘‘override,’’ the rights of any pregnant

woman. The Roe court opined that the unborn where not to be considered persons

in the ‘‘whole’’ sense, an opinion consistent with treating the unborn as persons for

some purposes, like inheritance and tort injury, purposes which the Roe court itself

recognized as legitimate.

This understanding of Roe was explicitly confirmed by the Supreme Court in the

1989 Webster decision. There the state of Missouri had legislated that the ‘‘life of

each human being begins at conception,’’ and the unborn children have protectable

interests in life, health, and wellbeing.’’ The 8th Circuit Court of Appeals seems to

have adopted the view of Roe states as an ‘‘objection’’ here, that the state had, in

light of Roe, ‘‘impermissible[y]’’ adopted a ‘‘theory of when life begins.’’ But the Supreme Court reversed this part of the 8th Circuit holding, stating that its own prior

decisions, including Roe, meant ‘‘only that a state could not justify an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the

state’s view.’’ (Emphasis added). Since this Act is in no way questionable under Roe

apart from the viewpoint issue, the matter is settled: Congress is as free as was the

state of Missouri to conclude, and to enforce outside the parameters of Roe, its view

that life begins at conception. If there remains something anomalous about the situation, it is an anomaly engendered by Roe, and not by this Act.

Now, the postponed question. What if federal jurisdiction is predicated entirely

upon the identity of a particular individual, say the President or a cabinet officer

or foreign dignitary? Is there a satisfactory basis for enhanced punishment of a violator of, for example, 18 U.S.C. 1751, one who attacks the President and, who as

a result of that felonious conduct, injures or kills her unborn child?

The answer must start with the recognition that, strictly speaking, it is only the

discharge of federal functions, and not persons just as such, which grounds federal

criminal jurisdiction, even in cases like our example. Protection of federal officers

and jurors and foreign visitors of a certain rank is justified by virtue of the national

interest in protecting the functions which those persons perform, or (to put it differently) the offices whose duties they discharge. These functions are impeded by

assaults upon the person of the various officers, as well as by threats to them and

even to their families. So it would be constitutional to extend federal protection to

the entire families of at least certain federal officers, to insure that nothing distracted them or caused them to be derelict in their duty. It seems a reasonable judgment for Congress to make that there is a distinct, punishable harm to the discharge of federally imposed duties where the unborn child of a protectable person

is harmed or destroyed. This would seem exactly the reasoning behind 18 U.S.C.

115, which protects members of the immediate family of a United States official or

law enforcement officer against assault, murder and kidnapping.

Senator DEWINE. Mr. Weich.

STATEMENT OF RONALD WEICH

Mr. WEICH. Thank you, Mr. Chairman, for inviting me to testify

today. Because I am going to testify in opposition to the bill, I

think that it would be inappropriate for me to begin my testimony

without acknowledging the very powerful testimony that we heard

from the previous panel.

Senator Hatch was very kind at the beginning of the hearing to

congratulate me on the birth of my first child recently, and so recent events in my life have made me especially aware of the special

bond between parents and children, and made me especially moved

by the testimony that we heard. Nothing that I am going to say

today is intended to diminish the tragedy of those witnesses or to

disrespect them in any respect. I do, however, think that S. 1673

is not the appropriate legislative response to those tragedies.

43

I am testifying today about the criminal law and sentencing implications of the bill, and I do so based on my knowledge of the

Sentencing Guidelines, my experience as a prosecutor, and my research of Federal criminal cases in this area. Based on those experiences, I have concluded that the bill is unnecessary. Current Federal law is sufficient to convict and punish criminals who harm

fetuses. The bill adds nothing meaningful to the charging arsenal

of prosecutors or to the sentencing options available to judges in

these cases.

Let me break that down into two points; first of all, the criminal

liability of people who harm fetuses under Federal law, and, second, the sentencing policy currently in Federal law as it pertains

to pregnant women.

Federal criminal law has been held to cover the murder of a

fetus. I cite in my written testimony United States v. Spencer, a

case arising from an Indian reservation. And as you know, Senator,

most violent crime is prosecuted in State courts. The few Federal

cases that there are largely take place on Federal enclaves, such

as Indian reservations or military bases.

In Spencer, the defendant assaulted and stabbed a pregnant

woman. The woman was successfully treated for her life-threatening injuries, but her unborn fetus was born alive and then died.

And in that case, the Ninth Circuit upheld his conviction for murder under 18 U.S.C. 1111, the Federal murder statute. I am aware

of no contrary holding. Section 1111, the Federal murder statute,

has been held to cover the murder of an unborn fetus.

The other case that I located—and I think my research was pretty complete in this regard—the only other Federal case in which

this issue has arisen is the Robbins case which Lieutenant Colonel

Davidson is going to talk about. I won’t preempt his testimony, except to say that in that case Airman Robbins was convicted of the

crime of killing his unborn child through domestic abuse. His conviction has recently been upheld, and he was prosecuted under the

Assimilative Crimes Act.

Senator DeWine, in your statement introducing this bill you

seemed to complain about the fact that it was necessary to bootstrap Ohio State law into Federal court in order to reach Airman

Robbins’ conduct. That bootstrapping is the operation of the Assimilative Crimes Act. When Congress passed that law over a century ago, in 1898, it intended to plug the gaps in Federal law by

assimilating State law when there is a violation of State law in

Federal territory, in that case a military base. There is nothing insufficient about that, and indeed the Robbins case shows that the

Assimilative Crimes Act can reach this conduct.

Senator DEWINE. In those States that have the law.

Mr. WEICH. That is correct.

Senator DEWINE. I am familiar with assimilative law because— well, I am. I dealt with it a lot.

Mr. WEICH. Of course, from your previous experience.

I say in my written testimony that I believe that State law is sufficient. This, of course, is not a new concept, the question of fetal

injury. Every single State has addressed the issue of criminal liability for fetal injury. Not all of them have passed statutes; many

of them have. Some of them have simply developed case law that

44

makes the murder statute in those States applicable to fetal murder. Many States have determined that separate criminal liability

should not apply when the crime injures a non-viable fetus. And by

enacting this law, Congress would be, in effect, overruling those

judgments of those States.

As to sentencing policy, I cite in my testimony a number of cases

in which the Sentencing Guidelines have been held to provide for

enhanced punishment for people who injure fetuses. And, of course,

that does assume that the individual is prosecuted for the assault

on the woman, and that is inherently the case. You cannot injure

a fetus without injuring the woman. So providing a sentencing enhancement ensures that the individual is going to be punished for

his heinous conduct.

It is my conclusion that the bill is unnecessary, but I go further

and suggest that it is detrimental. It is not only unnecessary, but

it is a counterproductive addition to the criminal code.

First of all, I argue, Senator, that the bill is poorly drafted in

that it doesn’t make clear whether the individual needs to be convicted of the predicate offense before being convicted of this offense.

The wording of the statute is unclear.

Second, as other witnesses have said, I find the statute to be

over-broad as to its definition of bodily injury, its reach to the nonviable fetus, and to the fact that there is no intent requirement.

Finally, I do unfortunately conclude that the bill would have the

effect of undermining the central holding in Roe v. Wade that a

first-trimester fetus, indeed a days-old embryo, is entitled to separate legal status in Federal law. The definition of ‘‘unborn child’’

in this bill says ‘‘a member of the species Homo sapiens at any

stage of development.’’ That is 2 days, and that has profound implications for reproductive freedom in this country.

I don’t disagree with Professor Bradley, or at least I don’t address his question as to whether the bill is itself unconstitutional

under Roe. I simply suggest that this bill is part of an effort by the

anti-abortion movement—casting, of course, no aspersions on your

intentions, but I do feel that this is part of an ongoing battle to humanize fetuses, marginalize women, and demonize abortion providers, and that is a long-term effort to overturn Roe.

Senator DEWINE. What do you really think? [Laughter.]

[The prepared statement of Mr. Weich follows:]

PREPARED STATEMENT OF RONALD WEICH

Mr. Chairman, members of the Committee: My name is Ronald Weich and I am

a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker, L.L.P.

I am pleased to appear before you today to discuss the criminal law and sentencing

implications of S. 1673, the ‘‘Unborn Victims of Violence Act.’’

I bring several qualifications to this task. From 1983 to 1987 I worked as an Assistant District Attorney in New York, where I prosecuted a wide array of criminal

cases. Thereafter I served as Special Counsel to the United States Sentencing Commission and participated in drafting amendments to the federal sentencing guidelines. I then served on the staff of two Senate committees, including this Committee,

where I assisted first Senator Specter and then Senator Kennedy in the development of federal crime and sentencing policy. I am now in private practice, but I continue to serve on the advisory board of the Federal Sentencing Reporter, a scholarly

journal in which I have frequently published articles on sentencing law and policy.

45

* I wish to make clear that I am not testifying on behalf of the American Bar Association or

any other entity with which I am affiliated. Nor am I testifying on behalf of any of my law or

lobbying clients. For example, it is a matter of public record that I have represented Planned

Parenthood Federation of America (PPFA) with respect to pharmaceutical pricing issues, but I

do not represent PPFA at this hearing. The views I express herein are strictly my own.

I am also a member of the Criminal Justice Council of the American Bar Association.*

After reviewing S. 1673 in light of my experience in the criminal justice system,

my knowledge of the federal sentencing guidelines and an examination of relevant

case law, I reach one basic conclusion: this bill is unnecessary. Current federal law

provides ample authority for the punishment of criminals who hurt fetuses. S. 1673

adds nothing meaningful to the charging arsenal of federal prosecutors or the sentencing options available to federal judges.

Because the bill is unnecessary from a criminal law perspective, I suspect that

its purpose, instead, is to score rhetorical points in the ongoing struggle over abortion rights. For reasons I will explain, I strongly object to the use of the federal

criminal code as a battlefield in the abortion wars.

I will first describe why the bill is unnecessary in light of current federal law and

then explain why I believe it is an unwise addition to federal law.

I. S. 1673 IS UNNECESSARY

Current federal law already provides sufficient authority to punish the conduct

that S. 1673 purports to punish.

A. Federal criminal liability

At the outset it should be understood that very few violent crimes are prosecuted

in the federal courts. Most street level violent crimes are prosecuted under state law

by state prosecutors in state courts. Under our constitutional system, federal criminal jurisdiction only exists if the crime implicates federal civil rights or interstate

commerce—which few violent crimes do—or if the crime occurs on a federal enclave

such as a federal office building, a military base or an Indian reservation. Thus

there are only a handful of federal murder and assault prosecutions each year, and

most of those involve Native Americans or soldiers.

S. 1673 targets relatively rare conduct to begin with, namely criminal assault on

a fetus. And in the federal context, that rare conduct is even more unusual. I researched federal case law and found only two reported cases in recent years in

which the victim of the offense of conviction was a fetus. In one case, US v. Spencer,

839 F2d 1341 (9th Cir. 1988), the Native American defendant assaulted a pregnant

woman on an Indian reservation, kicking and stabbing her in the abdomen. The

woman was successfully treated for life-threatening injuries, but her fetus was born

alive and then died. The Ninth Circuit upheld the defendant’s conviction under the

federal murder statute, 18 U.S.C. § 1111. In the second case, United States v. Robbins, 52 M.J. 159 (1999), a soldier assaulted his wife and thereby terminated her

pregnancy. The defendant was prosecuted in a military court under the Assimilative

Crimes Act and was convicted of manslaughter. His conviction was upheld by the

Court of Appeals for the Armed Forces late last year.

Thus, even without the help of S. 1673, these two federal defendants were successfully prosecuted for killing fetuses. Each of the two cases is important for a different reason. Spencer holds that the federal murder statute already reaches the

killing of a fetus. Robbins stands for the proposition that even where federal law

does not reach the killing of a fetus, the Assimilative Crimes Act may be employed

by federal prosecutors (in that case military prosecutors) to ensure federal criminal

liability. Either way, a defendant who kills a fetus gets punished.

I am aware of no contrary holdings. I am aware of no reported or unreported case

in which a defendant who has caused serious injury to a fetus has escaped criminal

liability because of a gap in federal law. In the rare cases when fetal assaults occurs

in a federal enclave, it is very clear that criminal liability may be imposed under

current federal law.

The Assimilative Crimes Act, 18 U.S.C. § 13, is especially significant in this regard. When he introduced S. 1673, Senator DeWine complained that in the Robbins

case, military prosecutors had to ‘‘bootstrap’’ Ohio criminal law in order to hold the

defendant liable in federal court. There is nothing wrong or unusual about that

‘‘bootstrapping’’—that’s the way Congress intended the Assimilative Crimes Act to

work. Congress passed that law to ensure that defendants who commit crimes on

a military base or an Indian reservation are held responsible whether or not federal

law reaches the conduct. Congress knew that state criminal law is often more develVerDate 11-MAY-2000 05:51 Sep 19, 2001 Jkt 072611 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 E:\HR\OC\B611.XXX pfrm01 PsN: B611
46

oped than federal criminal law and so it adopted state criminal law through this

process of assimilation.

Reliance on the Assimilative Crimes Act raises the question of whether state law

is sufficient. It is. Every state has, either through statute or common law, addressed

the question of criminal liability for fetal injury. These state laws and cases are

comprehensively collected in an Annotation entitled Homicide Based on Killing of

Unborn Child, 64 A.L.R. 5th 671 (1998). As this A.L.R. Annotation demonstrates,

the issue of criminal liability for fetal injury is one that Anglo-American law long

ago addressed and resolved in a common sense way.

Of course not all states resolve the issue in the same way. Several states, such

as Georgia and Illinois, have enacted feticide statutes, but in other states well-established case law extends the state’s murder statute to cover the situation where

an assault on a pregnant woman causes the death of a fetus. Many states adhere

to the common law doctrine that the fetus must have been viable in order to create

separate criminal liability for a fetal assault, and some states require that the fetal

assault cause the fetus to be born alive and then die. These common law rules, developed over the course of centuries and incorporated into federal law through the

Assimilative Crime Act, ensure appropriate criminal liability for defendants who assault fetuses in federal enclaves.

B. Federal sentencing law

Analytically separate from the question of criminal liability is the question of punishment. Here again, current federal law is sufficient. There is no dispute that causing harm to a fetus during the commission of a federal felony should generally result in enhanced punishment, and courts have uniformly held that such enhancements are available under the current sentencing guidelines.

For example, in both U.S. v. Peoples, 1997 U.S. App. LEXIS 27067 (9th Cir. 1997)

and U.S. v. Winzer, 1998 U.S. App. LEXIS 29640 (9th Cir. 1998), the court held that

assaulting a pregnant women during a bank robbery could lead to a two level enhancement (approximately a 25% increase) under § 2B1.1(b)(3)(A) of the Guidelines

relating to physical injury. In U.S. v. James, 139 F.3d 709 (9th Cir. 1998), the court

held that a pregnant woman may be treated as a ‘‘vulnerable victim’’ under § 3A1.1

of the Guidelines, again leading to a two level sentencing enhancement for the defendant. In United States v. Manuel, 1993 U.S. App. LEXIS 14946 (9th Cir. 1993),

the court held that the defendant’s prior conviction for assaulting his pregnant wife

warranted an upward departure from the applicable guideline range for his subsequent assault conviction. And in United States v. Thomas, 43 M.J. 550 (US NavyMarine Corps Ct. of Crim. App. 1995), the military justice system treated the murder victim’s pregnancy as an aggravating factor to be considered during the capital

sentencing phase of a trial.

It is plainly unnecessary to create a new federal criminal offense for injuring a

fetus in the course of a federal crime when existing federal sentencing policy already

authorizes stiffer sentences for defendants who cause that harm.

In sum, S. 1673 is unnecessary because federal case law and the federal sentencing guidelines, building on well-established state common law principles, already authorize serious punishment for the harm that the bill seeks to address.

II. S. 1673 IS DETERIMENTAL TO THE CRIMINAL JUSTICE SYSTEM

To say that S. 1673 is unnecessary does not end the inquiry. As members of the

Judiciary Committee well know, the federal criminal code is characterized by unfortunate redundancy, and one more criminal law prohibiting what is elsewhere prohibited would barely add to the thicket. But for three reasons, S. 1673 would not

only constitute an unnecessary addition to the Code, it would also be an undesirable

addition.

First, the bill has been drafted in a structurally unsound manner and will lead

to considerable confusion and litigation. To be convicted under 18 U.S.C. § 1841, the

new criminal offense created by S. 1673, a defendant must have ‘‘engage[d] in conduct that violates’’ one of the existing federal crimes enumerated in § 1841 (b). But

must the defendant be convicted of one of those other offenses before he may be convicted of the separate offense under § 1841? I think that is a sound reading of the

statutory text, but the language is unclear. There is already considerable controversy and resource-draining litigation in the federal courts over whether various

title 18 provisions constitute separate offenses requiring proof beyond a reasonable

doubt or sentencing enhancements requiring only proof by a preponderance of evidence, see, e.g., Jones v. United States, 119 S. Ct. 1215 (1999). S. 1673 would add

to this confusion if there were ever a prosecution under the new criminal provision

it establishes.

47

This problem could be addressed if, instead of creating a new criminal offense, S.

1673 merely directed the Sentencing Commission to either establish a new sentencing enhancement when the victim of the crime is a pregnant woman, or make

clear that a pregnant woman may be considered a ‘‘vulnerable victim’’ under existing § 3A1.1 of the Sentencing Guidelines. As demonstrated above, the generic provision of the guidelines already accomplish this result. But at least a sentencing enhancement bill would not foster confusion and litigation.

Second, S. 1673 is overbroad. To begin with, it incorporated by reference an unduly broad definition of ‘‘bodily injury’’ from 18 U.S.C. § 1365. Whereas the common

law rule applied to termination of the pregnancy, S. 1673 would make it a violation

of federal law to cause ‘‘physical pain’’ to the fetus or ‘‘any other injury to the [fetus],

no matter how temporary.’’ 18 U.S.C. § 1365 (g)(4). That definition may make sense

in the consumer safety context from which it derives, but it is bizarre and extreme

in the prenatal context of S. 1673. Further, S. 1673 applies to all fetuses, not merely

those that are viable, and applies to unintentional as well as intentional conduct.

The common law rule, evolved over centuries of Anglo-American jurisprudence, is

that an assault causing the death of a viable (or, in the archaic phrase, ‘‘quickened’’)

fetus gives rise to criminal liability. In contract, the rule in S. 1673 is that an assault unintentionally causing ‘‘pain’’ to a weeks-old fetus gives rise to criminal liability.

Finally, the bill is objectionable because it is a transparently rhetorical exercise

in the perennial effort to undermine Roe v. Wade, 410 U.S. 113 (1973). since S. 1673

adds nothing meaningful to substantive federal criminal law, its purpose is purely

symbolic: to bestow statutory personhood on fetuses, even those that are not viable.

that much is clear from section 1841 (d)(1) of the bill which defines ‘‘child in utero’’

to mean ‘‘a member of the species homo sapiens, at any stage of development, who

is carried in the womb.’’ (emphasis added). Members of Congress who vote for this

bill are voting to repudiate the central holding of Roe by treating a first trimester

fetus as an independent human being for purposes of federal law.

It is no accident that the bill says nothing about injuries to pregnant women; instead the newly created title is styled ‘‘Protection of Unborn Children.’’ An assault

on a fetus cannot occur without an assault on the pregnant woman, but the bill is

deliberately framed in terms that ignore the woman. The bill does not create a new

federal offense for injuring the woman herself, only for injuring the fetus she carries.

To be sure, there is an explicit exception to the criminal penalties in the bill for

‘‘conduct relating to an abortion’’ but make no mistake—this bill is just one more

step in the anti-abortion movement’s methodical, rhetorical strategy to humanize

fetuses, marginalize women and demonize abortion providers. The extreme overbreadth of S. 1673 flows directly from that strategy.

The validity of the constitutional protections established in Roe v. Wade exceeds

the scope of this testimony and is beyond my field of expertise. But as someone who

cares about the integrity of the criminal law, I hate to see a skirmish in the abortion

wars flare up unnecessarily in the federal criminal code. The criminal justice system

is built on ancient principles such a proportionality of punishment and the requirement that a wrongdoer have acted with intent to cause harm (mens rea). S. 1673

ignores these principles and thereby corrodes respect for the criminal law as a

whole.

Because I believe S. 1673 to be both unnecessary and unwise, I urge the Committee to reject it.

Senator DEWINE. Mr. Davidson.

STATEMENT OF LT. COL. MICHAEL J. DAVIDSON

Lieutenant Colonel DAVIDSON. Sir, first of all, I thank you very

much for letting me come today. And I have to preface my remarks

by saying that these are all my personal opinions and don’t reflect

any position of the Department of the Army or any other Federal

agency.

I personally support this bill for a couple of reasons. I am going

to focus primarily on military law which is what I am most familiar

with. First of all, the Assimilative Crimes Act. The Robbins case

was the example from your jurisdiction of an airman who beat his

wife with such severity that she lost their child.

48

The whole UCMJ was set up to provide a uniform system of law

to our service members. The way it works with the fetal homicide

situation is that doesn’t exist. Soldiers don’t pick where they are

assigned. If Airman Robbins had been assigned to Germany, even

if both he and his wife were Ohio citizens, the fetal crime part of

his misconduct would never have been prosecuted in a military

court martial because there is no UCMJ provision for it and there

is nothing to assimilate overseas.

Senator DEWINE. Or he would have been in any other State that

didn’t have that, or overseas.

Lieutenant Colonel DAVIDSON. Yes, sir. About half the States

that have no fetal homicide statutes, a member of the service could

not be prosecuted for fetal homicide.

The example I gave in my written testimony of how absurd it can

get is Fort Campbell, KY. Fort Campbell, KY, actually sits in Kentucky and Tennessee. If a soldier on the Tennessee side assaults

a woman and kills the fetus, he can be prosecuted in military court

martial for fetal homicide by assimilating Tennessee law. But a few

yards into the Kentucky side, the same misconduct by the same

parties can’t be reached by the military prosecutor. In terms of uniformity, I think this bill would provide a uniform fetal homicide

body of law for the military.

To touch base on the transferred intent part of this, military law

generally follows transferred intent as it is developed in common

law. In military law, there is no requirement that you know the existence of a second victim, and there is no release from your criminal responsibility because the victim is particularly susceptible to

harm, in the instance of a pregnant woman. We follow what I

guess is called the eggshell, or something like that. You take your

victim as you find them. This bill is consistent with existing military law on transferred intent.

One issue that I wanted to address a little bit that I didn’t address in my written testimony is the sentencing issue. Unlike the

Federal system, we have no sentencing guidelines. So in terms of

our existing sentencing scheme, I think this bill would do a lot to

address fetal homicide, and the hypothetical I would give you is

this. A soldier assaults a woman and kills the fetus. He is charged

with some form of assault under article 128.

We have bifurcated trials. In the case-in-chief, the prosecutor

wants to bring in the fact that the woman was pregnant. As the

situation, I believe, happened to one of our victims, the judge probably would not let that in in the case-in-chief because it is not relevant to one of the elements the prosecution has to prove. It is

probably more prejudicial than probative, at least on the guilt part

of it. So in that part of it, it would not come in.

And then we would go to the sentencing part, and at that point

the prosecutor would say, well, this is directly related to the offense; it is an aggravating circumstance, and under Court Martial

Rule 1001 this should be admitted. The defense counsel will then

say, again, it is more prejudicial than probative, it is uncharged

misconduct—we differ from the Federal Sentencing Guidelines in

that respect—and it is light years above what my client either was

found guilty of or pled guilty to, the assault charge. Here, you are

talking essentially about a second victim, a homicide, even if we

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are not going to call it that, and it is infinitely more prejudicial

than probative and it will inflame the jury.

And I think a reasonable judge in those circumstances, in a military courtroom, might exclude the evidence that the woman was

pregnant. And in that case and under that scenario, the fact that

the woman lost her fetus as a result of the assault would never

enter the courtroom at all. It would not be a sentencing enhancement. It would not be a consideration for the sentencing body. It

would simply not be a factor at all in the court martial.

But by making it a separate crime, and presumably it would be

charged as such, obviously the sentencing body would have to know

of this and it would be a consideration for the sentencing body

when it determines the appropriate sentence for this person. So our

sentencing scheme is radically different from the Federal scheme,

and while this bill may or may not have an impact on the Federal

sentencing because of vulnerable victims and stuff like that, it certainly would have an impact on the way we sentence and it would

require the sentencing body to know about the fetal homicide part

of the misconduct.

I just want to touch on Senator Feinstein’s reference to a sentencing enhancement. There are some provisions where there is a

sentencing enhancement for the status of the victim; for example,

assault. Regular assault and battery is punished by 6 months in

the military. If the victim is under 16, it is punished by 2 years.

So to that extent, there would be some enhancement that you could

put into something like article 28.

But for our premeditated murder statute, we break it down into

four things, but basically all four of them are punishable by life

and two of the four are punishable by death if it is capital. In instances where they are non-capital, there is no sentencing enhancement that you could give to that statute. He either gets life or he

gets something less than life, and it is all up to the sentencing authority. There is no sentencing enhancement that could be built

into some of our statutory punitive articles, such as the premeditated murder statute.

So, in sum, I think this bill would go a long way to improving

military justice which, as I pointed out earlier, is a lot different

from the Federal system.

Thank you very much.

Senator DEWINE. Thank you very much.

[The prepared statement of Lt. Col. Davidson follows:]

PREPARED STATEMENT OF LT. COL. MICHAEL J. DAVIDSON

I have been asked to comment on the Unborn Victims of Violence Act of 1999 (the

Act), S. 1673, particularly as it affects military law. I am an active duty Army Judge

Advocate currently assigned to the Third U.S. Army, Fort McPherson, Georgia and

have previously served as a both a military trial counsel (prosecutor) and as a Special Assistant U.S. Attorney. I’ve taught military law as an adjunct professor at Arizona State University School of Law. I possess a B.S. from the U.S. Military Academy, a J.D. from the College of William & Mary, a LL.M. (Military Law) from the

Judge Advocate General’s School and a LL.M. (Federal Procurement Law) from

George Washington University. Earlier I engaged in research in this area while a

LL.M. student at George Washington University. The results of this research effort

were published as an article entitled ‘‘Fetal Crime And Its Cognizability As A Criminal Offense Under Military Law,’’ in the July 1998 edition of The Army Lawyer.

Any opinions that I may render are my own personal opinions and do not reflect

the position of the Department of the Army or any other federal agency.

50

With respect to the proposed legislation I would like to make the following points

supportive of the Act. 1. The current ‘‘born alive’’ rule, followed by both military and

federal courts, is a legal anachronism whose rationale for existence is no longer

valid. 2. The Assimilative Crimes Act (ACA), which provides the military a vehicle

for prosecuting feticide by using state law, results in an inequitable application of

military law to members of the armed forces. This Act will serve to correct that inequity. 3. This legislation does not infringe on a woman’s right to choose. 4. The

legal principle of transferred intent, upon which this Act relies, is well-established

in military law.

1. THE BORN ALIVE RULE

Both military and federal courts follow the ‘‘born alive’’ rule, which means that

before a person can be prosecuted for misconduct that results in the fetus’ death,

the fetus had to have survived for at least a short period of time outside the womb.

Historically, the definition of what constituted being born alive varied by jurisdiction. For example some states required that the baby survive for a period of time

after the umbilical cord was severed. The military rejected that standard in 1954

in United States v. Gibson, a case involving an Air Force nurse who strangled her

baby shortly after birth. The evidence at trial was unclear as to whether the accused

had strangled her child before or after she severed the umbilical cord. The current

born alive rule is based on English common law and is believed to have existed

since at least 1348. Despite the longevity of this rule the military still struggles to

fully develop a definition of that term. See United States v. Nelson, 52 M.J. 516

(N.M. Ct. Crim. App. 1999) (review was granted on February 2, 2000).

The rationale for the born alive rule was rooted in the difficulty of proving the

cause of a fetus’ death, which was a byproduct of the primitive level of medical

knowledge in this area. Indeed, until the late 1800’s a physician could not conclusively establish the existence of a pregnancy until the fetus moved in the womb (the

quickening which usually occurred around four months) and the fetus’ health could

not be determined until birth.

Continued reliance on the born alive rule is problematic for two reasons. First,

modern medicine has advanced to such a point that the basis for the rule simply

no longer exists. Presently, medical technology can diagnose the existence of a fetus

early in the pregnancy, certainly much earlier than the point of quickening. Additionally, the fetus can be observed through the use of ultrasound and fetoscopy; it

can be operated on while still in the womb; and physicians normally can determine

the cause of a fetus’ death.

The second reason that continued reliance on this rule of law should be disfavored

is that in practice it rewards the successful attacker. An accused (military equivalent of a defendant) who beats a pregnant woman cannot be prosecuted for killing

the fetus if it dies before it is born. The death of the fetus goes unpunished. In contrast, the accused who beats the pregnant victim less severely, permitting the fetus

to be born alive, may be prosecuted for homicide under existing military and federal

homicide statutes if the child dies as a result of the beating. In short, the born alive

rule serves to reward the more culpable actor for his heightened state of misconduct.

2. ASSIMILATIVE CRIMES ACT

The Assimilative Crimes Act (ACA), 18 U.S.C. 13, permits prosecution of a member of the armed forces under Article 134, clause 3 (crimes and offenses not capital),

UCMJ, for violating a state law within an area of exclusive or concurrent federal

jurisdiction (e.g. a military base). The ACA permits use of the penal law of the local

state to fill in gaps in military/federal criminal law. Article 134 may not be used

to assimilate state law if another provision of the UCMJ or other federal criminal

statute has already defined an offense for that specific misconduct. Fetal homicide

is not specifically made punishable under any punitive article of the UCMJ or provision of the federal criminal code.

In 1996, for the first time, the military relied on the ACA to assimilate a state

feticide law in order to court-martial a member of the armed forces. In United States

v. Robbins, 52 M.J. 159 (1999), an airman stationed at Wright-Patterson Air Force

Base, Ohio, wrapped his fist in a tee shirt and severely beat his wife, who was 34

weeks pregnant. The beating occurred in government housing on base, an area of

exclusive federal jurisdiction. This was not the first such incidence of spousal abuse.

In addition to breaking his wife’s nose and giving her a black eye (her eye was swollen shut), Robbins punched her with such force that he ‘‘ruptured [his wife’s] uterus

and tore the placenta from the uterine wall. The unborn baby, who was otherwise

healthy, was expelled into the mother’s abdominal cavity and died before birth.’’ Id.

at 160.

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Eventually Robbins was charged under the UCMJ with two specifications of assault in violation of Article 128; one count of maiming, in violation of Article 124

because Robbins had ruptured his wife’s uterus; and with murder and manslaughter

under Article 134 through the assimilation of Ohio law. The case was referred to

a general court-martial, which is the military’s highest form of court-martial. Pursuant to a pretrial agreement (plea bargain), Robbins pled guilty to assault and battery on Mrs. Robbins and intentional affliction of grievous bodily harm on her, in

violation of Article 128; and involuntary manslaughter by terminating his wife’s

pregnancy, in violation of section 2303.04 of the Ohio Revised Code, as assimilated

into Article 134, by the Assimilative Crimes Act. The military judge sentenced Robbins to a dishonorable discharge, confinement for eight years, and reduction in rank

to the lowest enlisted grade. On appeal, the conviction, and the assimilation of

Ohio’s fetal homicide law, was reviewed and upheld by both the Air Force Court of

Criminal Appeals and the U.S. Court of Appeals for the Armed Forces.

If enacted, this legislation will have the positive affect of providing a uniform application of feticide law to members of the armed forces. Under existing law, whether or not members of the armed forces may be prosecuted for feticide will depend

on where they are stationed. If the military base is located in a state that has a

fetal homicide statute (e.g. Ohio), military prosecutors may rely on that law to proceed against the servicemember at court-martial. If that particular state has no

such law, or if the servicemember is stationed overseas, no feticide charge will result. Further, even among states with fetal homicide laws, the standard for conviction varies. Some states make feticide a crime if the fetus is viable, others if the

fetus is ‘‘quick,’’ and still others protect the fetus at the point of fertilization. Even

if all states in which military bases are located were to adopt feticide laws, the punishment used by the military would vary by state. Under the ACA, unless the state

law is closely related to a punitive article of the UCMJ, the military also assimilates

portions of the state’s punishment scheme.

To give an example of how absurd this inequitable situation can become I would

point to Fort Campbell. This Army base is located in both Kentucky and Tennessee.

Tennessee has feticide statues, but Kentucky does not. Were a soldier to assault a

pregnant woman and kill her fetus on the Tennessee side of Fort Campbell he could

be prosecuted at a military court-martial, under Article 134, by assimilating Tennessee law. However, if the same misconduct occurred only yards away on the Kentucky side of the base, the military could not prosecute him for committing the identical misconduct against the fetus.

3. A WOMEN’S RIGHT TO CHOOSE

The Act does not infringe on a women’s right to choose to terminate the pregnancy and does not conflict with Roe v. Wade. This proposed legislation virtually

immunizes the mother from prosecution for any harm to the fetus and likewise protects those who are involved with the consensual termination of the pregnancy. The

Supreme Court in Roe recognized the state’s legitimate interest ‘‘in protecting potential life’’ (410 U.S. at 154). This Act not only recognizes the governmental right to

protect the fetus from harm—in this case imposed by a third party—but also serves

to protect the woman’s right to choose to bring her wanted fetus to term.

A number of state courts have examined their fetal homicide laws in light of Roe

and the results of those examinations support the legality of this Act. In People v.

State, 872 P.2d 591 (Cal. 1994), the Supreme Court of California opined that the

Supreme Court’s opinion in Roe v. Wade only precluded a state from protecting a

nonviable fetus in instances where the interests of the fetus and mother conflict. As

noted above, this Act only contemplates applicability when the interests of the government and mother coincide.

Similarly, in State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990), the Supreme

Court of Minnesota examined its unborn child homicide law in the wake of Roe and

its progeny. The court determined that the state possessed a legitimate interest in

protecting both the ‘‘potentiality of life’’ at any stage of development and in protecting the woman’s right to determine the ultimate outcome of her pregnancy. ‘‘The

interest of a criminal assailant in terminating a woman’s pregnancy does not outweigh the woman’s right to continue the pregnancy.’’ Id. at 322.

4. TRANSFERRED INTENT

The Act provides that the military accused who engages in certain misconduct

against an expectant mother, which results in death or injury to the unborn child,

may also be separately prosecuted for the death or injury to the fetus to the same

extent as if the death or injury had occurred to the expectant mother. This provision

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of the Act is based on the legal principle of ‘‘transferred intent,’’ which is well-established in military law.

The current version of the Manual for Courts-Martial, Part IV, para. 43(c)(2)(b),

which discusses Article 118, provides: ‘‘When an accused with a premeditated design

attempted to unlawfully kill a certain person, but, by mistake or inadvertence, killed

another person, the accused is still criminally responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended victim

to the actual victim.’’ Further, in United States v. Willis, 46 M.J. 258 (1997) the U.S.

Court of Appeals for the Armed Forces took the position that ‘‘where there is . . .

an intent to kill and an act designed to bring about the desired killing, the defendant is responsible for all natural and probable consequences of the act, regardless

of the intended victim.’’ The military accused may be convicted of premeditated murder of the second, unintended victim, even in the ‘‘absence of any ill-will, animosity,

or intent to kill [the second victim].’’ United States v. Black, 11 C.M.R. 57, 59

(C.M.A. 1953).

Under the Act military prosecutors would not be required to prove that the accused knew the victim-mother was pregnant at the time of the accused’s misconduct.

This provision of the proposed legislation is consistent with existing law. First, the

doctrine of transferred intent does not require knowledge that the second victim was

present. Additionally, military law has long followed the related eggshell or thin

skull rule; that is, you take your victims as you find them. See United States v.

Eddy, 26 C.M.R. 718, 725 (A.B.R. 1958).

A state court addressed this same issue in the infanticide context. In People v.

Hall, 557 N.Y.S.2d 879 (Sup. Ct. App. Div. 1990), the defendant fired two shots at

his intended victim, but missed and instead struck a pregnant passerby, Brigette

Garrett, who was 28 to 32 weeks pregnant and walking to a nearby restaurant. The

fetus was delivered by an emergency caesarean section, but died 36 hours later. In

upholding the defendant’s manslaughter conviction the court noted: ‘‘It is axiomatic

that a perpetrator of illegal conduct takes his victim as he finds them, so it is entirely irrelevant whether the defendant actually knew or should have known that

a pregnant woman was in the vicinity and that her fetus could be wounded as a

result of his actions.’’ Id. at 885.

In State v. Merrill, 450 N.W.2d 318 (Minn. 1990), the defendant challenged his

conviction for murdering the unborn child of a woman he had also been convicted

of murdering, arguing that ‘‘it was unfair to impose on a murderer of a woman an

additional penalty for murder of her unborn child when neither the assailant nor

the pregnant woman may have been aware of the pregnancy.’’ Id. at 323. The unborn child in question was a 27 to 28 day embryo. Rejecting that argument, the

Minnesota Supreme Court found that the doctrine of transferred intent applied.

Further, the court pointed out: ‘‘The possibility that a female homicide victim of

childbearing age may be pregnant is a possibility that an assaulter may not safely

exclude.’’ Id.

CONCLUSION

In my personal opinion, I believe this legislation would have a positive impact on

military law by providing a uniform feticide law and by eliminating reliance on the

out-dated born alive rule. Further, the Act does not interfere with a woman’s right

to choose, but instead reinforces both that right and the government’s interest in

protecting the potentiality of life. Finally, the Act’s reliance on the principle of

transferred intent is consistent with existing military law.’’

Senator DEWINE. Ms. Fulcher.

STATEMENT OF JULEY FULCHER

Ms. FULCHER. Good afternoon, Mr. Chairman.

Senator DEWINE. It is afternoon, isn’t it?

Ms. FULCHER. It is.

Senator DEWINE. Thank you.

Ms. Fulcher. As the Public Policy Director of the National Coalition Against Domestic Violence, I would like to thank you for the

opportunity to address the concerns of battered women who experience violence during their pregnancies.

The National Coalition Against Domestic Violence is a nationwide network of approximately 2,000 domestic violence shelters,

53

programs, service providers, and individual members who work on

behalf of battered women and their children. And my role here

today is to advocate for increased safety of battered women, which

in turn will lead to healthier pregnancies and births. Unfortunately, the Unborn Victims of Violence Act does not provide the

protection that battered women need to obtain safety.

Historically, one of the major obstacles to eradicating domestic

violence from the lives of women has been the unwillingness of the

legal system to treat domestic violence as a serious crime. The hard

work of many dedicated domestic violence advocates on the front

lines has slowly brought about a change in the way we treat the

crime of domestic violence.

States began toughening their laws on domestic violence and enforcing the existing laws that would address the issue in the late

1980’s, and in 1994, as you are well aware, Congress gave an important boost to this trend by passing the Violence Against Women

Act and committing to a Federal investment in prosecuting the

crimes and protecting battered women and their children. As a result, we have seen increased criminal prosecutions of domestic violence nationwide both at the Federal and the State level. And it is

important that we continue this trend and recognize domestic violence threats, assaults, and murders as the serious crimes that

they are.

According to a 1994 report from the Centers for Disease Control

and Prevention, at least 6 percent of all pregnant women in this

country are battered by the men in their lives. As an attorney representing victims of domestic violence, I have seen the effects of the

violence firsthand. In my written testimony, I described a client of

mine from several years ago who lost a pregnancy due to domestic

violence. There was a history of domestic violence in her case and

she had sought assistance of the legal system and service support

system several times.

While she was 8 months pregnant, her batterer lifted her up in

his arms, held her body horizontal to the ground, and then

slammed her body to the floor, causing her to miscarry. And no

matter how many times I hear stories like this one, stories like the

ones that we heard on the panel before, it never ceases to sicken

me what is happening.

I should note that in the case that I just described and in others

that I have worked on, it was clear, both by the batterer’s words

and actions, that his intent was to cause physical and emotional injury to the woman and establish undeniably his power to control

her. We as a society are right to want to address this problem and

to protect women from such a fate. However, our response to the

problem should be one that truly protects the pregnant woman by

early intervention before such a tragedy occurs.

The Unborn Victims of Violence Act is not designed to protect

women. The goal of the Act is to create a new cause of action on

behalf of the unborn. The result is that a crime that is committed

against a pregnant woman is no longer about the woman victimized by the violence. Instead, the focus will often be switched to the

impact that that crime had on the unborn fetus, once again diverting the attention of the legal system away from domestic violence

and other crimes of violence against women.

54

Moreover, the passage of the Unborn Victims of Violence Act

would set a dangerous precedent which could easily lead to statutory changes down the line that could hurt battered women. This

bill would, for the first time, federally recognize that the unborn

fetus could be the victim of a crime. It would not be a large intellectual leap to expand the notion of unborn fetus as victim to other

realms. In fact, some States have already made that leap, and in

those States women have been prosecuted and convicted for acts

that infringe on State-recognized legal rights of a fetus.

While the Unborn Victims of Violence Act specifically exempts

the mother from prosecution for her own actions with respect to the

fetus, it is easy to imagine subsequent legislation that would hold

her responsible for injury to the fetus, even for violence perpetrated

on her by her batterer under a failure to protect theory.

Moreover, a battered woman can be intimidated or pressured by

her batterer not to reveal the cause of her miscarriage, and if she

is financially or emotionally reliant on her batterer, she may be

less likely to seek appropriate medical assistance if doing so could

result in the prosecution of her batterer for an offense as serious

as murder. The long-term public health implications of such a policy would be devastating for victims of domestic violence and all

women.

The harmful potential of this bill is unfortunately balanced by

little or no additional protections for battered women and other

women victimized by violence. The vast majority of domestic violence threats, assaults, and murders, like other crimes of violence,

are prosecuted by the States. While important Federal laws exist

to prosecute interstate domestic violence, interstate stalking, and

interstate violation of a protection order, these are stop-gap statutes which are appropriately applied in a very small number of

cases relative to the incidence of domestic violence nationwide.

In fact, the Federal domestic violence criminal statutes have

been called into play only approximately 200 times in the last 5

years. As the Unborn Victims of Violence Act would only apply in

Federal cases, the change in the law would do little, if anything,

to address the crime of domestic violence in our country or other

assaults on pregnant women.

I hope you agree with me that the crime of domestic violence is

a horrendous one, not only in terms of the physical impact of the

violence but also in terms of its emotional, psychological, social,

and economic toll upon its victims. Certainly, there can be no doubt

that a pregnancy lost due to domestic violence greatly increases

that toll on a battered woman. We at the National Coalition

Against Domestic Violence wish to fully recognize and respond to

that loss.

However, the more appropriate means of dealing with this problem with respect to battered women is to provide comprehensive

health care, safety planning, and domestic violence advocacy for

victims. The solution would be to maintain the focus of the criminal

prosecution on the intended victim of violence, the battered woman,

and make an important, affirmative step toward providing safety

for her. If Congress wishes to protect the pregnancy, the way to do

that is by protecting the woman.

Thank you.

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1 Centers for Disease Control and Prevention, The Atlanta Journal and constitution, 1994.

[The prepared statement of Ms. Fulcher follows:]

PREPARED STATEMENT OF JULEY FULCHER

Good morning Mr. Chairman and Members of the Committee. My name is Juley

Fulcher and I am the Public Policy Director of the National Coalition Against Domestic Violence. On behalf of the Coalition, I thank you for the opportunity to address the concerns of battered women who experience violence during their pregnancies. The National Coalition Against Domestic Violence is a nationwide network

of approximately 2,000 domestic violence shelters, programs, and individual members working on behalf of battered women and their children. My role here today

is to advocate for increased safety for battered women, which in turn will lead to

healthier pregnancies and births. Unfortunately, the ‘‘Unborn Victims of Violence

Act’’ does NOT provide the protection that battered women need to obtain safety.

Historically, one of the major obstacles to eradicating domestic violence as a serious crime. The hard work of dedicated domestic violence advocates on the front lines

has slowly brought about a change in the way we treat the crime of domestic violence. States began toughening laws on domestic violence and enforcing existing

laws in the late 1980s. In 1994, Congress gave an important boost to this trend by

passing the Violence Against Women Act and committing to a federal investment

in protecting battered women and their children. As a result, we have seen increased criminal prosecutions of domestic violence nationwide. It is important that

we continue this trend and recognize domestic violence threats, assaults, and murders as the serious crimes that they are.

According to a 1994 report from the Centers for Disease Control and Prevention,

at least 6% of all pregnant women in this country are battered by the men in their

lives.1 As an attorney representing victims of domestic violence, I have seen the effects of this violence first hand. Several years ago, a client of mine lost a pregnancy

due to domestic violence. There was a history of domestic violence in her case and

she had sought assistance several times. While she was 8 months pregnant, her

batterer lifted her up in his arms and held her body horizontal to the ground. He

then slammed her body to the floor causing her to miscarry. No matter how many

stories like this I hear, it never ceases to sicken me. I should note that in this case

and others I have worked on, it was clear by the batterer’s words and actions that

his intent was to cause physical and emotional injury to the women and establish

undeniably his power to control her. We, as a society, are right to want to address

this problem and protect women from such a fate. However, our response to the

problem should be one that truly protects the pregnant woman by early intervention

before such a tragedy occurs.

The ‘‘Unborn Victims of Violence Act’’ is not designed to protect women. The goal

of the Act is to create a new cause of action on behalf of the unborn. The result

is that the crime committed against a pregnant woman is no longer about the

woman victimized by violence. Instead the focus often will be switched to the impact

of that crime on the unborn fetus, once again diverting the attention of the legal

system away from domestic violence or other violence against women.

Moreover, passage of the ‘‘Unborn Victims of Violence Act’’ would set a dangerous

precedent which could easily lead to statutory changes that could hurt battered

women. This bill would, for the first time, federally recognize that the unborn fetus

could be the victim of a crime. It would not be a large intellectual leap to expand

the notion of unborn fetus as victim to other realms. In fact, some states have already made that leap and, in those states women have been prosecuted and convicted for acts that infringe on state recognized legal right of a fetus. While the ‘‘Unborn Victims of Violence Act’’ specifically exempts the mother from prosecution for

her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even for the violence

perpetrated on her by her batterer under a ‘‘failure to protect’’ theory. Moreover,

woman can be intimated or pressured by her batterer not to reveal the cause of her

miscarriage and, if she is fundamentally or emotionally reliant on her batterer, may

be less likely to seek appropriate medical assistance if doing so could result in the

prosecution of her batterer for an offense as serious as murder. The long-term public

health implications of such a policy would be devastating for victims of domestic violence and all women.

The harmful potential of this bill is, unfortunately, balanced by little or no additional protections for battered women and other women victimized by violence. The

vast majority of domestic violence threats, assaults and murders—like other crimes

of violence—are prosecuted by the states. While important federal laws exist to

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2 18 U.S.C. 2261(a). 3 18 U.S.C. 2261A. 4 18 U.S.C. 2262(a)(1). 5See, E.G., Testimony of Bonnie J. Campbell, Director, Violence Against Women Office, House

Judiciary Subcommittee on rime, ‘‘Violence Against Women Act Oversight Hearing’’ (Sep. 29,

1999), also noting that the largest number of these federal domestic violence prosecutions were

brought under 18 U.S.C. 922(g)(8)—a statute that is not addressed by the ‘‘Unborn Victims of

Violence Act.’’

prosecute interstate domestic violence,2 interstate stalking 3 and interstate violation

of a protection order,4 these are stop-gap statues which are appropriately applied

in a very small number of cases relative to the incidence of domestic violence nationwide. In fact, the federal domestic violence criminal statues have been called into

play less than 200 times in the last five years.5 As the ‘‘Unborn Victims of Violence

Act’’ should only apply in federal cases, the change in the law would do little, if anything, to address the crime of domestic violence in our country or other assaults on

pregnant women.

I hope you agree with me that the crime of domestic violence is a horrendous one,

not only in terms of the physical impact of the violence, but also in terms of its emotional, psychological, social and economic toll upon its victims. Certainly, there can

be no doubt that a pregnancy lost due to domestic violence greatly increases that

toll on a batter woman. We at the National Coalition Against Domestic Violence

wish to fully recognize and respond to that loss. However, the more appropriate

means of dealing with this problem with respect to battered women is to provide

comprehensive healthcare safety planning and domestic violence advocacy for victims. This solution would maintain the focus of any criminal prosecution on the intended victim of violence—the battered woman—and make an important affirmative

step toward providing safety for her. If Congress wishes to protect the pregnancy,

the way to do that is by protecting the woman.

Senator DEWINE. Ms. Fulcher, thank you very much for your testimony. First, let me say in regard to the Violence Against Women

Act, this is an Act that I support. I have supported funding of the

Act and I look forward to working with the other members of the

committee to get it passed.

You have talked about domestic violence very eloquently. This is

something that I have been dealing with since the mid-1970’s when

I was a county prosecuting attorney. So I certainly understand

what you are saying. I understand the need for society to do more.

We have made some progress, but we certainly have a long, long

way to go. So I agree, I guess, with about 98 percent of your testimony, and I am sure every member of the panel does, no matter

what their opinion about this bill is.

I guess where I disagree and where I suspect—I can’t speak for

them, but I suspect many of the victims, particularly the ones who

have testified here today, probably disagree with you is that this

particular Act would divert attention away from the woman. That

is not the intention. I don’t think that would take place, I don’t

think that would happen. And so I guess I just disagree with you

on that particular point, but I appreciate your testimony very

much.

This panel has been very helpful, and what I would like to do

now—and we are running way over time and I appreciate this panel’s testimony. You are the ones who had to stay here and wait

throughout the entire morning, but I would just open it up. If any

of you would like to respond to any comments made by any of the

other members of the panel, I would be more than happy to hear

that at this point.

Professor Bradley, since you went first, I guess you have the opportunity to respond.

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Mr. BRADLEY. I have had a long time to think about it, I suppose.

Mr. Weich and I were both assistant prosecutors in Manhattan to

Robert Morgenthau, who is still the District Attorney of New York

County. But I don’t have anything like his experience with the Federal system, so I am hesitant to weigh in and disagree with him

on one point, but I am going to give it a try.

He said that the additional count that the Act would set up is

unnecessary. It may be unnecessary from some perspectives.

Whether an additional count is always necessary to deter certain

misconduct, who is to say? But I do think, and my own experience

with him in a local prosecutor’s office suggests to me that wherever

there are multiple victims, whether they are multiple homicide victims or multiple victims of assault, four, five, six people, it is just

always the case that there is a separate count for each victim.

Even if, in a given case, there is no apparent reason for doing

so other than the truth of the matter, which is that there is an additional victim, if you have four, five, six homicide victims, the defendant, if guilty, is going to go to jail for a very, very long time.

If you added a seventh victim, if that were the case, they wouldn’t

go to jail for any longer, nor at least in many cases would it make

any difference to the proof or to the likelihood of jury conviction.

But it simply seems to me to be the practice, and a proper one, that

where, in truth, there are five victims, there are five counts.

Mr. WEICH. May I respond to that?

Senator DEWINE. You certainly can.

Mr. WEICH. Professor Bradley and I were colleagues in the local

system, but then I have since gone on to work more in the Federal

system. It is actual ly quite a different practice in Federal court,

and the most dramatic example of this—and it is one that was

raised in the House hearing on the companion bill—is the Oklahoma City bombing.

In that case, there were not 168 counts of murder. The counts

were, of course, the destruction of a Federal building, the use of an

explosive. Those were Federal counts, and there were Federal

counts for the murder of Federal employees because, of course,

there were BATF and IRS agents in the Federal building at the

time. But the civilians in that building did not have separate

counts in the indictment. That is just not the way Federal law

works. I understand that there is now a subsequent Oklahoma

State prosecution where that is happening, but in the Federal case

there were not separate counts.

Your bill, Senator DeWine, would create the anomaly that there

would be a count of conviction for the unborn child of one of the

pregnant, non-federal employees in the building, but not for the

woman herself. And I think that is strong evidence of what Ms.

Fulcher was saying, which is that this bill is providing protections

for the fetus that in Federal law are not even available for the

woman herself. This bill doesn’t create a new count, doesn’t create

new criminal liability for harming the woman during the course of

in that case the bombing of a Federal building.

Senator DEWINE. Anyone else? Any other comments?

[No response.]

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Senator DEWINE. Well, we appreciate your testimony very much.

We intend to take these comments into consideration and we intend to move forward with this legislation. Thank you very much.

[Whereupon, at 12:27 p.m., the committee was adjourned.]

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ADDITIONAL SUBMISSIONS FOR THE RECORD

PREPARED STATEMENT OF HON. BOB SMITH, A U.S. SENATOR FROM THE STATE OF

NEW HAMPSHIRE

This bill establishes that if an unborn child is injured or killed during a crime

that is punishable under Federal law, the assailant may be also charged with a second offense on behalf of the second victim, the unborn child.

The companion bill to S. 1673, H.R. 2436, passed with a bipartisan vote (56 Democrats) of 254–172. I am proud to support this bill, and I am confident that S. 1673

will garner the same bi-partisan support when it comes to a vote.

Twenty-four states already have laws that provide criminal penalties for killing

unborn children during at least some part of the prenatal development time period.

We should fill the gap in Federal law by providing additional punishment for criminals who, while perpetrating a Federal crime, injure or kill another innocent victim—the unborn.

Those who oppose this bill are opposed to the very notion of granting any form

of personhood to the unborn child. However, our nation already, in many cases,

views the unborn as having separate interests and separate rights from its mother.

For instance, we already have warnings on cigarette and alcohol labels about the

harmful effects of those products or unborn children. Our medical profession already

treats the unborn as patients, especially as technology increases fetal viability. Our

legal community already grants status and protection to the unborn, particularly in

child custody cases and protective orders, and very often treats fetuses as individuals.

In addition, the Supreme Court has ruled that the government has an ‘‘important

legitimate interest in protecting the potentiality of human life,’’ and also that the

government has legitimate interests in protecting ‘‘the life of the fetus that may become a child.’’

Under the Freedom of Access to Clinic entrances Act (FACE), an abortion protester who interferes with a pregnant woman by harming her physically, and who

subsequently kills the unborn child, can be punished with life imprisonment—the

same punishment as if the protester has killed the woman herself.

Obviously, our country has already personified the unborn child in many respects,

and made it deserving of cultural, political and legal protection. It is only logical

that we extend this protection under Federal law.

Nevertheless, this bill falls short in one crucial aspect: it does not extend legal

protection to unborn children who are ‘‘unwanted.’’ These ‘‘undesirables’’ are left to

the devices of the abortionist’s scalpel. In other words, all the forementioned rights

and privileges that have been extended to unborn children from the states, from

prestigious professions, from Federal statutes, agencies and courts, do not apply if

the unborn child is not wanted. Where one late-term unborn child would receive all

the legal and medical protection due to any American, another would lose its life

at the hands of an abortionist, all because the latter child was deemed to be inconvenient or imperfect and therefore unworthy of life. This arbitrary and unjust standard goes against the ideals that we should strive to uphold as Americans and as

citizens of a civilized society. It is time that we end this schizophrenic and capricious standard and extend the legal right to life to the most innocent and defenseless of us all, the unborn.

PREPARED STATEMENT OF HON. TERRY DEMPSEY, JUDGE OF THE FIFTH DISTRICT OF

MINNESOTA

My name is Terry Dempsey, and I want to thank you all for allowing me to appear before this committee to address issues that I feel are important.

As a member of the Minnesota House of Representatives, a similar issue came to

my attention, and I felt strongly that it merited a legislative response. What gave

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* My testimony is provided in the public interest; I do not speak on behalf of any client or

organization.

rise to the issue was a tragic automobile accident that involved an expectant mother

who was operating her vehicle on a normal driving day. Sometime before she could

complete her trip, her automobile was involved in a collision. Her car and one being

operated by a drunk driver collided. Although the mother wasn’t seriously inured,

the collision did result in the death of her unborn child. The mother was beyond

her sixth month of pregnancy.

Our statutes at the time did not provide for any penalty for someone causing such

an injury—in this case the death of the fetus. There was a strong outpouring of sentiment that such conduct should be punishable under our criminal law. Albeit, that

civil liability may result, with insurance coverages and other factors coming into

play, that did not seem to be an adequate remedy.

Minnesota Statutes were amended by a bill I authored. At the outset there was

some discussion that the motives for the legislation was something other than to

attach criminal sanctions for such conduct, but the bill passed and became law.

There was not a lot of interest in the new law until a case was brought in District

Court in northern Minnesota. That charge seemed to generate some questions about

my motive and those who voted for the legislation. Was it really wrongful conduct

warranting criminal prosecution, or was it a ruse to somehow confer upon the unborn a standing that might lead to other legislation or even court decisions of a

similar nature. It even attracted one major news network to come to Minnesota to

do a short news story about it on network TV. I was asked in an interview about

why the legislation was needed; others were similarly asked the same question.

That was a number of years ago. The law remains intact today. Those of us who

supported the legislation, and now even some of those who at one time had reservations about the precedent that it might set, agree it wasn’t an attempt to erode the

Roe v. Wade decision of a person’s right to an abortion, but was the right thing to

do.

As a lawyer and a judge, I have not seen any attempt to use the law for any purpose, except to punish those who break its provisions. Is it an absolute deterrent

to the crimes they address? I can’t say. But I can say with some degree of surety

that for those who are affected by the conduct which this Minnesota statute addressed, agree that it closed a glitch in the law that had existed by making such

conduct a criminal offense. To defeat the proposal before you based on some fear

that this might be a slippery slope and used to ‘‘confer’’ or ‘‘attribute’’ rights to the

unborn is contrary to the experience in Minnesota. Our statutes do not deal with

the right of abortion, nor do they conflict with the U.S. Supreme Court decisions

on abortion. In truth and in fact, the legislation in Minnesota addresses the conduct

of a person as it affects the lives of others and hasn’t been expanded beyond that

by our courts, nor have I seen any attempt that it be used for other purposes.

As you consider the proposal before you, I hope you will look to the Minnesota

experience as a precedent. The legislation is similar, and the reasons for passage

are evident. The reason for opposing this legislation I feel cannot be on the merits

of the proposal, but rather a feeling that there might be some side effects that some

may attempt to use this legislation for purpose beyond the sanctions attached to a

criminal act. I doubt that such attempts would be successful based upon what has

occurred in Minnesota. There is clearly a wrong to be addressed by the bill you are

considering.

That you again for letter me discuss my feelings and experiences with you.

PREPARED STATEMENT OF PETER J. RUBIN, VISITING ASSOCIATE PROFESSOR OF LAW,

GEORGETOWN UNIVERSITY LAW CENTER*

I have been asked by members of the Committee to review and comment upon

S. 1673, which would create a separate federal criminal offense where criminal conduct prohibited under a list of over sixty federal statutes, in the words of the proposed law ‘‘causes the death of, or bodily injury . . . to, a child, who is in utero.’’

I am honored to have the opportunity to convey my views to the Committee.

Where an act of violence against a pregnant woman results in a miscarriage, that

act of violence has wrought a distinct and unique harm in addition to the harm it

would have done had the woman not been pregnant. Similarly, injury to a baby that

may result from unlawful violence perpetrated upon its mother when it was a fetus

in utero is something from which government may properly seek to protect the

woman and the child.

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1See, e.g., Giaccio v. Pennsylvania, 382 U.S. 399, 402–403 (1966). 2See, e.g., Roe v. Wade, 410 U.S. 113, 161 (1973) (describing legal treatment of the unborn). 3See, e.g., United States v. Bass, 404 U.S. 336, 347 (1971). 4See id. at 347–349.

Consequently, although many states adhere to the traditional rule that the criminal law reaches only conduct against a person already born alive, some states have

enacted laws that penalize conduct against a person already born alive, some states

have enacted laws that penalize conduct that may kill or, in some cases, injure, a

fetus in utero. One example is North Carolina’s state statute which provides that ‘‘A person who in the commission of a felony causes injury to a woman, knowing

the woman to be pregnant, which injury results in a miscarriage or stillbirth by the

woman is guilty of a felony that is one class higher than the felony committed.’’ N.C.

Gen. State. § 14–18.2.

If the members of Congress conclude that causing injury in this way during the

commission of a federal crime warrants additional punishment, it, too, could adopt

such a provision. Indeed, it seems as though this is one area on which both sides

of the debate about abortion might be able to find common ground in supporting

a properly worded statute that might give additional protection to women and their

families from this unique class of injury.

As currently drafted, however, the proposed statute has several distinct problems,

some of which could give rise to constitutional objection, and others of which would

simply divide Americans, creating an unnecessary conflict with America’s legal and

constitutional tradition.

In both form and substance the proposed law differs critically from many state

laws. As written, the proposed law uses the phrase ‘‘child, who is in utero at the

time the conduct takes place’’ to describe the fetus. This is not the ordinary way

statutes refer to fetuses in utero. Indeed, the proposed law appears to be unique in

its use of this formulation. The use of this language will likely subject S. 1673 to

legal challenge, and will likely render the proposed law ineffective in preventing and

punishing acts that harm or kill fetuses being carried by pregnant women.

Because it uses this formulation, the proposed law would likely result more in

useless litigation about the statute’s meaning than in the prevention and punishment of conduct that results in fetal injury or death. It’s use of the phrase ‘‘child,

who is in utero’’ may give a defendant an argument that the statute is ambiguous,

and that he lacked the notice of what acts are criminal that is required by the Due

Process Clause of the Fifth Amendment.1 Does it mean the statute applies only to

the injury or death of a ‘‘child,’’ that is one who is subsequently born, but who was

injured in utero? This is a reasonable reading of the statute: traditionally in the

United States, legal interests of the unborn have ordinarily been contingent upon

subsequent live birth.2 Does the language of the proposed statute refer instead to

a fetus past the point of viability? Does it refer to a single-cell fertilized ova that

has not yet implanted in the uterine wall? The statute does not tell us.

Even if the law is not held inapplicable because of unconstitutional vagueness, the

Supreme Court has articulated a doctrine known as the doctrine of ‘‘lenity.’’ 3 Rooted

in part in separation of powers concerns, this doctrine means that an ambiguous

federal criminal statute must be construed by courts in the way most favorable to

the defendant, lest an individual be criminally punished for conduct that Congress

did not intend to criminalize.4 At best, the phrase ‘‘child, who is in utero’’ is ambiguous here, and a defendant is likely to be able to avoid prosecution for whatever

conduct it is that the drafters of this law intend to criminalize.

There is a deeper problem with the proposed statute as well. In addressing violence

that may cause injury or death of a fetus, the bill treats the fetus solely as a separate

victim of certain federal crimes. This approach is different from that taken by some

states that have enacted criminal laws addressing fetal injury or death in that it

fails to focus at all on the woman who is the victim of the violence that may injure

or kill the fetus.

It would be far easier to reach common ground with an approach that takes account of place of the pregnant woman when acts of violence against her lead to fetal

injury or death. Indeed, the approach taken by the current statute may lead to some

unintended results, and is not consistent with the treatment of the fetus in the

American legal tradition. The statute does not just increase the penalty for unlawful

violence against a pregnant woman that results in the death of or injury to a fetus.

Rather it includes fetuses within the universe of persons who may be protected from

injury or death resulting from violations of other federal criminal laws.

Further, the statute does not draw any distinctions based on gestational age. An

action that results in a miscarriage, at literally any stage of pregnancy, is to be

treated as though it had resulted in the death of a grown woman, the woman who

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5 I should not that, as currently drafted, the exception for abortion contained in the proposed

statute is constitutionally inadequate. The proposed law provides that prosecution is not permitted ‘‘for conduct relating to an abortion for which the consent of the pregnant woman has

been obtained or for which such consent is implied by law in a medical emergency.’’ This exception—which covers implied consent only in the context of medical emergency—does not cover

abortions that have been ordered by courts because they are in the best interests of women,

including minors, who are not capable of consenting on their own behalf. Such abortions are

sometimes lawfully ordered. Indeed, the Constitution requires pregnant minors to be able to

avoid parental involvement in their abortion decisions by obtaining a judicial determination either that they are mature enough themselves to consent to the abortion, or that, if they are

not mature enough to consent, the abortion is in their best interests. See Akron v. Akron Center

for Reproductive Health, 462 U.S. 416, 441 n. 31 (1983); Bellotti v. Baird (Bellotti II), 443 U.S.

622, 643–644 (1979) (plurality opinion of Powell, J.). 6 Roe v. Wade, 410 U.S.C. 113, 162 (1973).

suffered the miscarriage, subjecting the perpetrator to penalties up to life imprisonment. Nor is the law limited to perpetrators who knew, or even to those who should

have known, that the woman they injured was pregnant. Indeed, a defendant may

be imprisoned for life under this law for unintentionally causing a woman to miscarry even if that woman herself was not aware she was pregnant! The provisions

of the bill with regard to intent thus depart from the traditional rule that criminal

punishment should correspond to the knowledge and intent of the defendant.

Many state laws address fetal injury and death only in certain circumstances,

and, reflecting the unique nature of the developing fetus, many provide some penalty that is different from the penalty that would have applied had the defendant

killed or injured a person who was already born. They tend also to take account of

the fetus’s stage of development. Thus, for example, Mississippi law punishes as

manslaughter violence to a pregnant woman that results in the death of a ‘‘quick’’ fetus: ‘‘The willful killing of an unborn quick child, by an injury to the mother of

such child, which would be murder if it resulted in the death of the mother, shall

be manslaughter.’’ Miss. Code. Ann. § 97–3–37.

State feticide laws often do not treat even the intentional killing of a fetus

through violence perpetrated upon the pregnant woman as murder equivalent to the

murder of a person who has been born. Some, like North Carolina, enhance the penalty for the underlying criminal conduct. Others, like Mississippi, treat even intentional feticide only as manslaughter.

The proposed law by contrast treats violence that causes injury or death to a fetus

as equivalent to violence causing injury or death to a person who has been born.

The bill says that whenever causing death or injury to a person in violation of a

listed law would subject an individual to a particular punishment, he shall be subject to the same punishment if he causes death or injury to a fetus. This is true

regardless of fetal development.

Whatever its rhetorical force, the proposed law would lead to some unusual, and

probably unintended, results. To give just one example, under the Freedom of Access to Clinic Entrances Act (‘‘FACE’’), 18 U.S.C. § 248, one of the statutes listed

in S. 1673, if an individual who is engaged in obstructing access to an abortion clinic

knocks a pregnant woman to the ground during a demonstration, he is liable to imprisonment for up to one year. If he causes her ‘‘bodily injury’’ when he knocks her

down, he would be subject under FACE to a ten-year term of imprisonment. Under

the proposed law, however, if the woman miscarried as a result of being knocked

down, the defendant would be subject to life imprisonment, the same as if his action

had caused the death of a woman herself.

In addition to being far more practical, it would be far easier to reach common

ground on this issue with adoption of a statute similar to those state statutes providing for enhanced punishments that I have described. For in addition to the practical consequences, the use of a statutory framework that seeks to achieve its result

through treating all fetuses at all stages of development as persons distinct from

the women who carry them unnecessarily places federal statutory law on the path

toward turning the pregnant woman into the adversary rather than the protector

of the fetus she carries. For although this law contains exceptions for abortion, for

medical treatment of the woman or the fetus, and for the woman’s own conduct—

exceptions that are both wise and constitutionally required—if the fetus were truly

a ‘‘person,’’ there would be no principled reason to include such exceptions. Yet of

course a law that did not contain them would be shocking to most Americans and

both obviously and facially unconstitutional.5

Finally, then, in failing to take account of the woman, the proposed statute also

sets federal law apart from the American legal and constitutional tradition with respect to the treatment of the fetus. As the Supreme Court has described, ‘‘the unborn have never been recognized in the law as persons in the whole sense.’’ 6 At

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7See Commonwealth v. Cass, 467 N.E. 2d 1324, 1328 (Mass. 1984) (describing the common

law). 8 Roe, 410 U.S. at 157. 9See Webster v. Reproductive Health Services, 492 U.S. 490, 535 (Scalia, J., concurring in part

and concurring in judgment) (stating that the legality of a abortion is ‘‘a political issue’’ that

should be decided by the states, a position dependent upon an implicit conclusion that fetuses

are not ‘‘persons’’ within the meaning of the Fourteenth Amendment).

common law, the destruction of a fetus in utero was not recognized as homicide unless the victim was born alive. 7 And, of course, the Supreme Court has held that

fetuses are not persons within the meaning of the Fourteenth Amendment. 8 This

is a position with which even as staunch as opponent of Roe v. Wade as Justice

Antonin Scalia agrees. 9

In addition, therefore, to the practical and political considerations that counsel in

favor of an alternative approach, the proposed law would also unnecessarily set federal statutory law on a conceptual collision course with the Supreme Court’s abortion decisions. Whatever one may think of those decisions, all unnecessary conflict

about them would not contribute to the important work of healing where possible

the country’s division over abortion.

Æ