Provides that either a person or an unborn child in any stage of gestation may be the victim of an assault

1 Co-sponsor

• Catharine Young

Title of bill

An act to amend the penal law, in relation to the unborn victims of violence act

Purpose of bill

Provides that either a person or an unborn child in any stage of gestation may be a victim of an assault and homicide.

Summary of provisions

Section 3 adds two new sections to the penal law: § 120.65 assault and related offenses, definition lists the assault and related offenses applicable to the new definition of "person", which includes "a human being who has been born and is alive, or an unborn child at any stage of gestation". § 120.70 assault and related offenses; defined provides exceptions to the prosecution of certain persons including a person conducting an abortional act with the consent of the woman, a person providing medical treatment to the pregnant woman, or the woman herself except where for violations of § 125.50 and § 125,55. Amends homicide (§ 125.00) to include definition of "person".

Justification

This bill affirms that the right of a pregnant woman to carry her child to term be protected, and that perpetrators of crimes against women and their unborn children be held accountable for their crimes.

New York State's Penal Law emphasizes the protection of citizens from offenses committed against the person, such as homicide and assault. This portion of the Penal Law has been strengthened at various times to provide even greater protection for, among others, children (Chapter 477 of the Laws of 1990, adding Penal Law section 20.12 and amending Penal Law section 125.20). Yet, despite this, there remains very significant loopholes relating to homicide and assaults in which unborn children are the victims.

Under current law, if an unborn child being carried by a pregnant mother is killed or injured, the offender may not be held criminally responsible for the harm caused to that child unless it had been born alive (Penal Law § 10.00(7), 125.05(1)). The only criminal responsibility in such a situation will be for the harm caused to the pregnant mother.

This legislation will provide that those who kill or injure an unborn child in any stage of gestation by the commission of any of a number enumerated homicide or assault offenses, may be held criminally responsible for their actions. Nine other states (Arizona, Illinois, Indiana, Louisiana, Minnesota, Missouri, North Dakota, South Dakota and Utah) currently have statutes imposing criminal liability for the homicide of an unborn child in any stage of gestation.

This bill does not alter a woman's right to an abortion or to medical treatment. The measure specifically provides that acts committed: (1) during the course of an otherwise lawful abortion to which the mother has consented; (2) during the course of a normal and customary medical diagnosis or treatment; or (3) by the woman pregnant with the fetus, shall not be the basis of criminal liability for the death or injury of an unborn child.

By expanding the coverage of the state's Penal Law to include certain deaths and injuries caused to unborn children, the bill extends the measure of protection afforded to society by our criminal justice system.

Legislative history

2005-06: 5.2515, referred to Codes. 2007-08: 5.3117, referred to Codes.

Fiscal implications

None. EFFECTIVE DATE : This act shall take effect on the first of November next succeeding the date on which it shall have become a law.