S T A T E O F N E W Y O R K
2009-2010 Regular Sessions
I N A S S E M B L Y
January 15, 2009
Introduced by M. of A. BENJAMIN, P. RIVERA, POWELL, COLTON, FITZPATRICK,
RAIA, CONTE, CAMARA, TEDISCO, KOLB, BURLING, RABBITT, CUSICK, McKEVITT
-- Multi-Sponsored by -- M. of A. BALL, DelMONTE, HOOPER, McDONOUGH,
J. RIVERA, SEMINERIO, WEISENBERG -- read once and referred to the
Committee on Codes
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:
1 Section 1. Legislative intent. The legislature hereby finds and
2 declares that a significant loophole exists in state law, denying
3 protection to pregnant women and certain children. Currently, an offen-
4 der may not be held criminally responsible for the harm caused to a
5 child unless that child has first been born alive. Therefore, an assai-
6 lant who shoots a woman who is seven months pregnant, and kills both the
7 woman and her child, may only be charged with the homicide of the moth-
8 er; the infant is not considered a legal victim of the crime.
9 New York state policy lags behind most states in this area of crime
10 victims' protection. Thirty-one states now provide protection and
11 justice for pregnant women and their unborn children who are victims of
13 The legislature further finds and declares that current statistics
14 demonstrate that domestic abuse and violence against women increases
15 during pregnancy. It is estimated that one in five women will be abused
16 during pregnancy. A study in the Journal of the American Medical Asso-
17 ciation found that in the state of Maryland, a pregnant woman is more
18 likely to be a victim of a homicide than to die of any other cause.
19 Thus, rather than pregnancy being a peaceful time of preparation and the
20 growth of a healthy child, for many women it can be a time of violence,
21 grief and loss.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
A. 2034 2
1 Compounding this tragedy is the loophole in current law, which denies
2 effective protection and remedy to women and their children. When a
3 woman makes a conscious choice to keep her baby and has the choice viol-
4 ently taken away from her by a violent perpetrator, justice demands that
5 someone be punished for that crime. Indeed, mothers will bury their
6 baby's body, mark the grave for their child for the rest of their lives,
7 but New York law tells them their loved one never existed.
8 The legislature does not intend this law to apply to any abortion to
9 which a woman has consented, or to any act of the mother herself, or to
10 any form of medical treatment. The legislature finds that the current
11 legal right to abortion does not protect, and does not confer on an
12 assailant, a third-party unilateral right to destroy an unborn child.
13 The legislature recognizes that a federal "unborn victims of violence"
14 law was enacted in 2004, yet believes the law to be limited in applying
15 only to unborn children injured or killed during the course of specified
16 federal crimes of violence.
17 It is the intent of the legislature that the affirmative right of a
18 pregnant woman to carry her child to term be protected, and that perpe-
19 trators of crimes against pregnant women and their unborn children be
20 held accountable for their crimes.
21 S 2. Short title. This act shall be known as and may be cited as the
22 "unborn victims of violence act".
23 S 3. The penal law is amended by adding two new sections 120.75 and
24 120.80 to read as follows:
25 S 120.75 ASSAULT AND RELATED OFFENSES; DEFINITION.
26 THE FOLLOWING DEFINITION IS APPLICABLE TO SECTIONS 120.00, 120.03,
27 120.04, 120.05, 120.06, 120.07, 120.10 AND 120.12 OF THIS ARTICLE:
28 "PERSON," WHEN REFERRING TO THE VICTIM OF ANY ASSAULT, AGGRAVATED
29 ASSAULT OR VEHICULAR ASSAULT, MEANS A HUMAN BEING WHO HAS BEEN BORN AND
30 IS ALIVE, OR AN UNBORN CHILD AT ANY STAGE OF GESTATION.
31 S 120.80 ASSAULT AND RELATED OFFENSES; DEFINED.
32 NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSECUTION:
33 1. OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
34 FOR WHICH THE CONSENT OF THE PREGNANT WOMAN HAS BEEN OBTAINED;
35 2. OF ANY PERSON FOR ANY MEDICAL TREATMENT OF THE PREGNANT WOMAN OR
36 HER UNBORN CHILD; OR
37 3. OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION
38 FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS TITLE.
39 S 4. Section 125.00 of the penal law is amended to read as follows:
40 S 125.00 Homicide defined.
41 1. Homicide means conduct which causes the death of a person or an
42 unborn child [with which a female has been pregnant for more than twen-
43 ty-four weeks] AT ANY STAGE OF GESTATION under circumstances constitut-
44 ing murder IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, manslaught-
45 er in the first degree, manslaughter in the second degree, VEHICULAR
46 MANSLAUGHTER IN THE FIRST DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND
47 DEGREE OR criminally negligent homicide, abortion in the first degree or
48 self-abortion in the first degree.
49 2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSE-
51 (A) OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
52 FOR WHICH THE CONSENT OF THE PREGNANT WOMAN, OR A PERSON AUTHORIZED BY
53 LAW TO ACT ON HER BEHALF, HAS BEEN OBTAINED OR FOR WHICH SUCH CONSENT IS
54 IMPLIED BY LAW;
55 (B) OF ANY PERSON FOR ANY MEDICAL TREATMENT OF THE PREGNANT WOMAN OR
56 HER UNBORN CHILD; OR
A. 2034 3
1 (C) OF ANY WOMAN WITH RESPECT TO HER UNBORN CHILD EXCEPT A PROSECUTION
2 FOR VIOLATING SECTION 125.50 OR 125.55 OF THIS ARTICLE.
3 S 5. Subdivision 1 of section 125.05 of the penal law is amended to
4 read as follows:
5 1. "Person," when referring to the victim of a homicide, means a
6 human being who has been born and is alive, OR AN UNBORN CHILD AT ANY
7 STAGE OF GESTATION.
8 S 6. This act shall take effect on the first of November next succeed-
9 ing the date on which it shall have become a law.