S T A T E O F N E W Y O R K
2011-2012 Regular Sessions
I N S E N A T E
March 30, 2011
Introduced by Sens. RITCHIE, BALL, DIAZ, FARLEY, GOLDEN, JOHNSON, LANZA,
LARKIN, LIBOUS, LITTLE, MAZIARZ, YOUNG, ZELDIN -- read twice and
ordered printed, and when printed to be committed to the Committee on
AN ACT to amend the penal law, in relation to the unborn victims of
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. The legislature hereby finds and
declares that a significant loophole exists in state law, denying
protection to pregnant women and certain children. Currently, an offen-
der may not be held criminally responsible for the harm caused to a
child unless that child has first been born alive. Therefore, an assai-
lant who shoots a woman who is seven months pregnant, and kills both the
woman and her child, may only be charged with the homicide of the mother
since the infant is not considered a legal victim of the crime.
New York state policy lags behind most states in this area of crime
victims' protection. Thirty-one states now provide protection and
justice for pregnant women and their unborn children who are victims of
The legislature further finds and declares that current statistics
demonstrate that domestic abuse and violence against women increases
during pregnancy. It is estimated that one in five women will be abused
during pregnancy. A study in the Journal of the American Medical Asso-
ciation found that in the state of Maryland, a pregnant woman is more
likely to be a victim of a homicide than to die of any other cause.
Thus, rather than pregnancy being a peaceful time of preparation and the
growth of a healthy child, for many women it can be a time of violence,
grief and loss.
Compounding this tragedy is the loophole in current law, which denies
effective protection and remedy to women and their children. When a
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
S. 4347 2
woman makes a conscious choice to keep her baby and has the choice viol-
ently taken away from her by a violent perpetrator, justice demands that
someone be punished for that crime. Indeed, mothers will bury their
baby's body and mark the grave for their child for the rest of their
lives, but New York law tells them their loved one never existed.
The legislature does not intend this act to apply to any abortion to
which a woman has consented, to any act of the mother herself or to any
form of medical treatment. The legislature finds that the current legal
right to abortion does not protect and does not confer on an assailant,
a third-party unilateral right to destroy an unborn child.
The legislature recognizes that a federal "unborn victims of violence"
law was enacted in 2004, yet believes the law to be limited in applying
only to unborn children injured or killed during the course of specified
federal crimes of violence.
It is the intent of the legislature that the affirmative right of a
pregnant woman to carry her child to term be protected, and that perpe-
trators of crimes against pregnant women and their unborn children be
held accountable for their crimes.
S 2. Short title. This act shall be known as and may be cited as the
"unborn victims of violence act".
S 3. The penal law is amended by adding two new sections 120.75 and
120.80 to read as follows:
S 120.75 ASSAULT AND RELATED OFFENSES; DEFINITION.
THE FOLLOWING DEFINITION IS APPLICABLE TO SECTIONS 120.00, 120.03,
120.04, 120.05, 120.06, 120.07, 120.10 AND 120.12 OF THIS ARTICLE:
"PERSON," WHEN REFERRING TO THE VICTIM OF ANY ASSAULT, AGGRAVATED
ASSAULT OR VEHICULAR ASSAULT, MEANS A HUMAN BEING WHO HAS BEEN BORN AND
IS ALIVE, OR AN UNBORN CHILD AT ANY STAGE OF GESTATION.
S 120.80 ASSAULT AND RELATED OFFENSES; DEFINED.
NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSECUTION:
1. OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
FOR WHICH THE CONSENT OF THE PREGNANT WOMAN HAS BEEN OBTAINED;
2. OF ANY PERSON FOR ANY MEDICAL TREATMENT OF THE PREGNANT WOMAN OR
HER UNBORN CHILD; OR
3. OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION
FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS TITLE.
S 4. Section 125.00 of the penal law is amended to read as follows:
S 125.00 Homicide defined.
1. Homicide means conduct which causes the death of a person or an
unborn child [with which a female has been pregnant for more than twen-
ty-four weeks] AT ANY STAGE OF GESTATION under circumstances constitut-
ing murder IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, manslaught-
er in the first degree, manslaughter in the second degree, VEHICULAR
MANSLAUGHTER IN THE FIRST DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND
DEGREE OR criminally negligent homicide, abortion in the first degree or
self-abortion in the first degree.
2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSE-
(A) OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
FOR WHICH THE CONSENT OF THE PREGNANT WOMAN OR A PERSON AUTHORIZED BY
LAW TO ACT ON HER BEHALF, HAS BEEN OBTAINED OR FOR WHICH SUCH CONSENT IS
IMPLIED BY LAW;
(B) OF ANY PERSON FOR ANY MEDICAL TREATMENT OF A PREGNANT WOMAN OR HER
UNBORN CHILD; OR
(C) OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION
FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS ARTICLE.
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S 5. Subdivision 1 of section 125.05 of the penal law is amended to
read as follows:
1. "Person," when referring to the victim of a homicide, means a
human being who has been born and is alive OR AN UNBORN CHILD AT ANY
STAGE OF GESTATION.
S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.