senate Bill S4347

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

download pdf

Sponsor

Co-Sponsors

view all co-sponsors

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 30 / Mar / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • REFERRED TO CODES

Summary

Provides that either a person or an unborn child in any stage of gestation may be the victim of an assault or homicide; also states situations when it does not constitute an assault on an unborn child such as during the course of an otherwise lawful abortion, during normal medical treatment or by the pregnant woman; defines "person" to include any human being who is born and is alive or an unborn child at any stage of gestation.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A1673
Versions:
S4347
Legislative Cycle:
2011-2012
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Add §§120.75 & 120.80, amd §§125.00 & 125.05, Pen L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S4897, A2034
2007-2008: A5777

Sponsor Memo

BILL NUMBER:S4347

TITLE OF BILL:
An act to amend the penal law, in relation to the unborn victims of
violence act

PURPOSE:
To provide the tools necessary to bring justice to those who commit
acts of violence against mothers and their unborn children.

SUMMARY:
Section 1 outlines the legislative intent.

Section 2 gives this bill the short title: "unborn victims of violence
act"

Section 3 adds a new section (120.75) to the Penal Law to make a new
definition of "person" applicable to the sections addressing assault
in the third degree, assault in the second degree, assault in the
first degree, vehicular assault in the second degree, vehicular
assault in the first degree, gang assault in the second degree, gang
assault in the first degree, and aggravated assault upon a person less
than eleven years old. The new definition adds an unborn child at any
stage of gestation.

Section 3 also adds a new section (120.80) that, for purposes of
Article 120 of the Penal Law, exempts from prosecution individuals
performing consensual and justifiable abortions, individuals treating
the mother or child medically, and mothers (other than mothers
performing self abortions).

Section 4 redefines "homicide" in section 125.00 of the Penal Law to
include conduct which causes death to an unborn child at any stage of
gestation, to include murder in the first degree, murder in the second
degree, vehicular manslaughter in the first degree, and vehicular
manslaughter in the second degree.

Section 4 also states for purposes of Article 125.00 of the Penal Law,
an exemption from prosecution for individuals performing consensual
and justifiable abortions, individuals treating the mother or child
medically, and mothers (other than mothers performing self abortions).

Section 5 amends the definition provided by section 125.05 of the
Penal Law for "person," when referring to the victim of a homicide, an
unborn child at any stage of gestation.

Section 6 This act shall take effect on the first of November next
succeeding the date on which it shall have become law.

JUSTIFICATION:
The Pregnancy Mortality Surveillance System at the Centers for Disease
Control and Prevention found that the pregnancy-associated homicide
ratio was 1.7 per 100,000 live births in the United States between
1991 and 1999. Twenty percent of the deaths of pregnant women are
caused by homicide making it the leading cause of death among pregnant
women outside medical complications.


When murderers knowingly attack pregnant women, they knowingly target
more than the mother's life.

The Article of the New York Penal Law that deals with homicide,
abortion, and related offenses currently defines "person" as a human
being who has been born alive and "homicide" as causing the death of a
person or unborn child with which a female has been pregnant for more
than twenty-four weeks.

These two definitions have left it impossible for prosecutors and the
courts to use the full extent of the law to punish those who viciously
and knowingly take the life of an unborn child and/or its mother.

This bill empowers New York's prosecutors to seek justice for those
who deliberately attack mothers and murder their unborn children by
changing the definitions of "person" and "homicide" to include unborn
children at any stage of gestation.

As is outlined in the bill's first section, the intent of this
legislation is to close the loophole for killers of unborn children.
It is not the intent of this legislation to stifle a woman's right to
a consensual abortion or to medical treatment. As such, the bill
specifically provides protections for mothers consenting to an
abortion and to doctors who treat pregnant women.

If we are to claim that we have a justice system that is truly just,
it's paramount that New York State joins the thirty-one states that
are now providing protections and justice for pregnant women and their
unborn children who are victims of violence.

By enacting this legislation we send a clear message to perpetrators
of violence against pregnant women and unborn children that we are
serious about protecting New York's mothers.

LEGISLATIVE HISTORY:
S.4897 of 2010 - Referred to Codes
S.4897 of 2009 - Referred to Codes
S.3117 of 2008 - Referred to Codes
S.3117 of 2007 - Referred to Codes
S.2515A of 2006 - Referred to Codes
S.2515 of 2005 - Referred to Codes
S.403 of 2004 - Referred to Codes
S.403 of 2003 - Passed Senate
S.57B of 2002 - Passed Senate

FISCAL IMPLICATIONS:
None to the state.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding
the date on which it shall have become law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4347

                       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
  Codes

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

  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
violence.
  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.
                                                           LBD04168-01-1

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-
CUTION:
  (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.

S. 4347                             3

  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.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.