Senate Bill S4897

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

                                  4897

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced by Sen. AUBERTINE -- 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  moth-
er; 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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05346-01-9
              

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someone be punished for that crime.   Indeed, mothers  will  bury  their
baby's body, 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 law to apply to any abortion to
which a woman has consented, or 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 THE 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  5.  Subdivision  1 of section 125.05 of the penal law is amended to
read as follows:

S. 4897                             3

  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.