UNBORN VICTIMS OF VIOLENCE LAWS:

Protecting society's most vulnerable

By Denise M. Burke

Vice President & Legal Director, Americans United for Life

The unimaginable grief and suffering endured by Laci and Conner Peterson’s family has, largely due to their own courageous advocacy, been transformed into a blow for justice on behalf of unborn victims of criminal violence. In April 2004, President Bush signed the Unborn Victims of Violence Act, more commonly known as “Laci and Conner’s Law,” filling an important gap in federal law. Federal prosecutors may now charge an assailant in the death of an unborn child when the death occurs on federal property, such as military installations, or when the death stems from the commission of a federal crime.

More importantly, Laci and Conner lived in a state (California) where prosecutors could press murder charges for the deaths of both this young mother and her unborn son. Thirty-six states carry such provisions in their criminal law, often referred to as fetal homicide laws. As for the remaining 14 states, Laci Peterson’s mother, Sharon Rocha, has said it best, that they are in effect telling grieving families that “innocent victims [like Conner] are not really victims—indeed that they never existed at all.”

Twenty years ago, the picture was even more bleak. The vast majority of states followed the outdated born-alive rule, requiring an unborn victim to be born after the assault, and then to die, before prosecutors could press charges. Thanks in large part to research and advocacy by Clarke D. Forsythe of Americans United for Life (AUL), this picture has changed, including the enactment of the California law which permitted prosecutors to file charges for the deaths of both Laci and Conner Petersen.

ISSUES

In recent years, several high-profile cases from across the nation have highlighted the need for laws protecting unborn victims from criminal violence. Perhaps most notably, the tragic deaths of Laci and Conner Peterson have focused much-needed attention on this critically important issue. Currently, 36 states provide some degree of protection for unborn victims of homicide, while 22 states protect the unborn from nonfatal assaults.

Under common law,¹ the killing of an unborn child was not considered a homicide unless the child was first born alive and then died as a result of a criminal prenatal act. This rule, called the born-alive rule, is still followed in a majority of states that have not enacted special legislation to protect unborn children from criminal violence. Thus, if someone shoots a pregnant woman, killing her child, he or she is not subject to criminal prosecution for the murder of the child unless the child is first born alive and then dies as a result of the injuries which the child sustained before birth. The purpose of the laws protecting unborn victims of homicide, also know as fetal homicide laws, is to overturn the common law born-alive rule and criminalize conduct causing the death of an unborn child. These laws are not directed at abortion which, under current constitutional doctrine, is protected.

TALKING POINTS

Unborn victims of violence laws do not directly impact or implicate the woman’s right to choose abortion. These laws deal with criminal violence against a woman and her unborn child, not legal abortion. Indeed, these laws uniformly and specifically exclude legal abortion from potential criminal liability.

These laws recognize that criminal violence against pregnant women inherently involves and endangers two victims—the woman and her unborn child. Importantly, in a significant number of assaults against pregnant women, the assailant’s true target is the unborn child.

While 36 states recognize the unborn child as a separate victim of criminal violence against a pregnant woman, a minority of states (six states) statutorily recognize only one victim of such assaults.² In these states, an assault on a pregnant woman that results in a miscarriage or stillbirth is typically considered an enhanced offense for sentencing purposes.

Despite repeated challenges, no state or federal law criminalizing violence against an unborn child has been declared unconstitutional by any court.

Typically, unborn victims of violence laws do not apply to any act committed by the mother of an unborn child, to any medical procedure (including abortion) performed by a physician (or other licensed medical professional) at the request of the pregnant woman (or her legal guardian), or to the lawful dispensation or administration of lawfully prescribed medication.

The authority of the states to prohibit self-abortion or other conduct by the pregnant woman herself which may be injurious to the life or health of her unborn child is unclear. It should be noted that prior to Roe women were not prosecuted for self-abortion. In the absence of special legislation, courts generally have refused to hold a pregnant woman liable under child neglect or other criminal statutes for prenatal injuries, regardless of how inflicted.³ Thus, to avoid any possible constitutional problems, laws protecting unborn victims of violence laws, which are intended to reach nonconsensual conduct only, typically exclude conduct of the pregnant woman herself.

MYTHS AND FACTS

Myth: Laws protecting unborn victims of violence are unconstitutional because they give legal status to an unborn child and/or contradict the established tenets of Roe v. Wade.

Fact: Despite numerous challenges, no law protecting unborn victims of violence has ever been struck down as unconstitutional. Moreover, these laws do not directly implicate the so-called “right to choose an abortion.” These laws specifically exclude the performance of a legal abortion from potential criminal liability. They also do not apply to conduct to which the mother of the unborn child (or her legal guardian) consents, such as medical treatment or an abortion.

Myth: These crimes are merely offenses against the pregnant woman, with harm or death to the unborn child being an incidental or accidental consequence.

Fact: The failed effort by Senator Dianne Feinstein (D-CA) to gut Laci and Conner’s Law (by making assault on a pregnant woman a so-called “enhanced offense” if her unborn child also dies) sought to perpetuate this view. Nothing, in fact, could be further from the truth. In many cases involving violence against pregnant women, the assailant attacks a pregnant woman with the intent of killing the unborn child by causing a miscarriage or stillbirth. In some, the woman refused to have an abortion and the child’s father, rather than respecting her choice, reacts violently to end the pregnancy. In these situations, women have been savagely beaten, pushed down flights of stairs, and suffered blows, stab wounds, and gunshots targeted to the abdomen. Sometimes, this violence takes a less savage, but no less deadly turn. In 2002, an Ohio physician whose pregnant girlfriend had refused to have an abortion spiked her drink with a prescription drug known to cause miscarriage.

Myth: Now that we have the federal Unborn Victims of Violence Act, there is no need to pass similar state protections.

Fact: Murder and assaults, except in limited circumstances, are typically state crimes. The vast majority of the criminal prosecutions for homicide and assault take place in state courts, not in federal courts, so it is critical that each state protect the unborn from criminal violence. Conversely, Laci and Conner’s law only applies to federal crimes and federal jurisdictions, such as military installations.

Thus, the biggest impact of Laci and Conner’s law may be in its revisions to the Uniform Code of Military Justice (UCMJ). Military prosecutors can now pursue charges against military personnel stationed anywhere in the world if their actions cause the death of an unborn child; previously, they were limited to filing such charges only in those states with laws protecting unborn victims of violence. A case such as that of Airman Gregory L. Roberts, who in 1996 savagely beat his pregnant wife, rupturing her uterus and killing their unborn daughter, resulted in manslaughter charges only because Ohio, where he was stationed, had such a law on its books. Had Roberts been stationed in Colorado or North Carolina—states with a significant military presence, but no law protecting an unborn child from violence—he could not have been charged with his daughter’s death and would have faced prosecution only for the assault on his wife.

State of the States:

Where Are We Now?

CURRENT LAW

Homicide of the Unborn:

Thirty-six states treat the killing of an unborn child as a form of homicide:

Twenty-five states define the killing of an unborn child at any stage of gestation as a form of homicide: Alabama, Alaska, Arizona, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia, and Wisconsin.

One state defines the killing of an unborn child after the embryonic stage (seven to eight weeks) as a form of homicide: California.

One state defines the killing of an unborn child after 12 weeks of gestation as a form of homicide: Arkansas.

Four states define the killing of an unborn child after “quickening” (discernible movement within the womb) as a form of homicide: Florida, Nevada, Rhode Island, and Washington.

Four states define the killing of an unborn child after viability as a form of homicide: Indiana, Maryland, Massachusetts, and Tennessee.

One state defines the killing of an unborn child after 24 weeks gestation as a form of gestation: New York.

Nonfatal Assaults on the Unborn:

Twenty-two states define nonfatal assaults on the unborn as criminal offenses: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Illinois, Kansas, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.

“One-Victim Laws”:

Eleven states define criminal assaults on a pregnant woman that result in miscarriage or stillbirth as an enhanced offense for sentencing purposes: Arkansas, Colorado, Indiana, Iowa, Kansas, Maine, Michigan, Mississippi, New Hampshire, New Mexico, and Wyoming.

Prenatal Use of Drugs and Alcohol by the Mother:

Currently, 16 states define substance abuse during pregnancy as “child abuse” under civil child-welfare statutes: Arkansas, Colorado, Florida, Illinois, Indiana, Iowa, Louisiana, Maryland, Minnesota, Nevada, Rhode Island, South Carolina, South Dakota, Texas, Virginia, and Wisconsin.

Fourteen states require healthcare professionals to report suspected prenatal drug use: Alaska, Arizona, Illinois, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Dakota, Oklahoma, Rhode Island, Utah, and Virginia.

Four states require healthcare professionals to test newborns for prenatal drug exposure when there is suspicion of prenatal drug abuse: Iowa, Kentucky, Minnesota, and North Dakota.

Nineteen states fund drug treatment programs for pregnant women and newborns: Arkansas, California, Colorado, Connecticut, Florida, Illinois, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New York, North Carolina, Ohio, Oregon, Pennsylvania, Virginia, and Washington. Importantly, Nebraska’s program for pregnant women and newborns applies only to women and newborns eligible for Medicaid.

Seven states give pregnant women priority access to state drug treatment programs: Arizona, Georgia, Kansas, Missouri, Oklahoma, Texas, and Wisconsin

What Happened in 2007

Protection for Unborn Victims of Violence

At least 39 measures were considered in 23 states—including Alabama, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Kansas, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Virginia, West Virginia, and Wyoming—seeking to protect unborn victims from criminal violence.

Kansas enacted a measure that amended the statutes on first degree murder, second degree murder, capital murder, voluntary manslaughter, involuntary manslaughter, vehicular manslaughter, and battery to include an unborn child at any stage of gestation, from fertilization to birth, as a possible victim, thereby affording the fetus separate legal status from the pregnant woman.

Conversely, in Wyoming, a bill that would have amended the homicide law to give the unborn separate legal status from the pregnant woman was vetoed; however, this bill would only have applied if the mother was killed as well.

Four states passed legislation to protect the unborn from prenatal drug exposure by the mother, thereby exposing the mother to criminal prosecution: Arkansas, Maryland, Minnesota, and Montana.

Arkansas enacted a measure allocating $5 million over two years to expand substance abuse treatment services for pregnant women and women with children.

Maryland amended its current law to state that a child “is not receiving proper care” if the child is exposed to methamphetamine in utero, or if the mother tests positive for the drug upon hospital admission for delivery of the child.
Minnesota enacted a law that allows a court to order a pregnant woman to enter an early intervention treatment program for substance abuse. In addition, this law requires healthcare professionals and law enforcement officers to report suspected drug abuse by pregnant women.
Montana enacted a law requiring specific individuals acting in a professional capacity to report suspected infant drug exposure to the health department.

Louisiana enacted a law that amended its definition of “prenatal neglect” to include heavy alcohol use by the pregnant woman. The law requires a physician to perform a drug test on the newborn upon suspicion of prenatal drug exposure. If the test is positive, or the newborn shows signs of prenatal alcohol exposure, the physician is required to report it to the child protection office. However, such test results cannot be used in criminal proceedings.

What To Do in 2008

States lacking any protection of the unborn from homicide must recognize that the outdated born alive rule does not meet contemporary standards of justice and enact strong measures to punish the violent death of an unborn child as a distinct offense.

Similarly, states that do not currently protect an unborn child at all stages of gestation should amend their existing statutes to protect an unborn child from conception until birth.

States that do not protect an unborn child from nonfatal assaults should consider enacting such protection.

States that do not protect women and the unborn from prenatal exposure to drugs and alcohol should consider enacting programs that provide for reporting, treatment, and counseling.

Endnotes

¹ As distinguished from laws created by the enactments of legislatures, the common law comprises the body of those principles and rules of action, relating the government and security of persons and property, that derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs. The most common source of American common law is English common law.

² Those states are Colorado, Iowa, Maine, New Hampshire, New Mexico, and Wyoming. Five additional states, Arkansas, Indiana, Kansas, Michigan, and Mississippi, have so-called “one victim” laws on the books, but also define certain offenses as “homicide.”

³ But see McKnight v. State, 576 S.E.2d 168 (S.C. 2003), cert. denied, 124 S.Ct 101 (U.S. 2003) (affirmed conviction of mother whose drug use caused the death of her unborn child); Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997) (conviction under child neglect statute for substance abuse during pregnancy), cert. denied, 523 U.S. 1145 (1998). See also, Arkansas SB 114 (2005) (Signed by Governor, March 28, 2005), which modifies the definition of “neglect of a child” within the Family Code to include cases in which a child is born with an illegal substance present in his or her system or with a health condition that resulted from the mother’s use of an illegal substance prior to birth. A test of either the newborn or the mother’s bodily fluids can be used to establish neglect. Known as “Garrett’s Law,” the new law also requires mandatory reporting of this neglect to the statewide child abuse hotline.