Unborn Victims of Violence Act

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This photo of Tracy Marciniak, holding her son Zachariah at his funeral – he was killed by a criminal assault during the ninth month of her pregnancy – was displayed on the floors of both houses of Congress during the debates on the Unborn Victims of Violence Act. Marciniak testified before a congressional committee in support of the bill.^[1]

The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law which recognizes a "child in utero" as a legal victim, if he or she is injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."^[2]

The law is codified in two sections of the United States Code: Title 18, Chapter 1 (Crimes), §1841 (18 USC 1841) and Title 10, Chapter 22 (Uniform Code of Military Justice) §919a (Article 119a).

The law applies only to certain offenses over which the United States government has jurisdiction, including certain crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military. In addition, it covers certain crimes that are defined by statute as federal offenses wherever they occur, no matter who commits them, such as certain crimes of terrorism.

Because of principles of federalism embodied in the United States Constitution, Federal criminal law does not apply to crimes prosecuted by the individual states. However, 34 states also recognize the fetus or "unborn child" as a crime victim, at least for purposes of homicide or feticide.^[3]

The legislation was both hailed and vilified by various legal observers who interpreted the measure as a step toward granting legal personhood to human fetuses, even though the bill explicitly contained a provision excepting abortion, stating that the bill would not "be construed to permit the prosecution" "of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf", "of any person for any medical treatment of the pregnant woman or her unborn child" or "of any woman with respect to her unborn child."

The bill contained the alternate title of Laci and Conner's Law after the California mother (Laci Peterson) and fetus (Conner Peterson) whose deaths were widely publicized during the later stages of the congressional debate on the bill in 2003 and 2004. (see Scott Peterson and Laci Peterson). Scott Peterson was convicted of double homicide under California's fetal homicide law.

Prior to enactment of the federal law, the "child in utero" was, as a general rule, not recognized as a victim of federal crimes of violence. Thus, in a federal crime that injured a pregnant woman and killed the "child in utero," no homicide was recognized, in most cases.^[4]

One exception was the "born-alive rule," applied in US v. Spencer, 839 F.2d 1341 (9th Cir. 1988), a case in which the child was born alive and died shortly afterwards; therefore there was no doubt that the decedent was once a living person under the law.

The Unborn Victims of Violence Act was first introduced in Congress in 1999 by then-Congressman (later Senator) Lindsey Graham (R-SC). It passed the House of Representatives in 1999 and 2001, but not the Senate. In 2003, the bill was reintroduced in the House as H.R. 1997 by Rep. Melissa Hart of Pennsylvania. It was ultimately co-sponsored by 136 other members of the House before it passed by a vote of 254 in favor to 163 against on February 26, 2004. After several amendments were rejected, it was passed in the Senate by a vote of 61-38 on March 25, 2004. It was signed into law by President Bush on April 1, 2004.

Signing ceremony at the White House, April 1, 2004.

At the signing ceremony, the President was joined on stage by men and women who had lost family members in two-victim crimes, including Laci Peterson's mother, Sharon Rocha. During his remarks at the ceremony, Bush said, "Any time an expectant mother is a victim of violence, two lives are in the balance, each deserving protection, and each deserving justice. If the crime is murder and the unborn child's life ends, justice demands a full accounting under the law." Senator John Kerry, his main opponent in the 2004 Presidential election, voted against the bill, saying, "I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy."

The Unborn Victims of Violence Act was strongly opposed by most pro-choice organizations, on grounds that the U.S. Supreme Court's Roe v. Wade decision said that the human fetus is not a "person" under the Fourteenth Amendment to the Constitution, and that if the fetus were a Fourteenth Amendment "person," then he or she would have a constitutional right to life. However, the laws of 34 states also recognize the human fetus as the legal victim of homicide (and often, other violent crimes) during the entire period of pre-natal development (24 states) or during part of the pre-natal period (10 states).^[5] Legal challenges to these laws, arguing that they violate Roe v. Wade or other U.S. Supreme Court precedents, have been uniformly rejected by both the federal and the state courts, including the supreme courts of California, Pennsylvania, and Minnesota.^[6]

Some prominent legal scholars who strongly support Roe v. Wade, such as Prof. Walter Dellinger of Duke University Law School, Richard Parker of Harvard, and Sherry F. Colb of Rutgers Law School, have written that fetal homicide laws do not conflict with Roe v. Wade.^[7]

[edit] Text of the Law

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The operative portion of the law, now codified as Title 18, Section 1841 of the United States Code, reads as follows:

Sec. 1841. Protection of unborn children

(a) (1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.

(2) (A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother.

(B) An offense under this section does not require proof that— (i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or (ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.

(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being.

(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

(b) The provisions referred to in subsection (a) are the following: (1) Sections 36, 37, 43, 111, 112, 113, 114, 115, 229, 242, 245, 247, 248, 351, 831, 844 (d), (f), (h)(1), and (i), 924 (j), 930, 1111, 1112, 1113, 1114, 1116, 1118, 1119, 1120, 1121, 1153 (a), 1201 (a), 1203, 1365 (a), 1501, 1503, 1505, 1512, 1513, 1751, 1864, 1951, 1952 (a)(1)(B), (a)(2)(B), and (a)(3)(B), 1958, 1959, 1992, 2113, 2114, 2116, 2118, 2119, 2191, 2231, 2241 (a), 2245, 2261, 2261A, 2280, 2281, 2332, 2332a, 2332b, 2340A, and 2441 of this title. (2) Section 408(e) of the Controlled Substances Act of 1970 (21 U.S.C. 848 (e)). (3) Section 202 of the Atomic Energy Act of 1954 (42 U.S.C. 2283).

(c) Nothing in this section shall be construed to permit the prosecution— (1) of any person for conduct relating to an abortion 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; (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.

(d) As used in this section, the term “unborn child” means a child in utero, and the term “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

The provision amending the Uniform Code of Military Justice is functionally the same, except for minor technical points.

[edit] Footnotes

^ [1] Testimony of Tracy Marciniak before Judiciary Committee of U.S. House of Representatives, July 8, 2003.
^ [2] Text of Unborn Victims of Violence Act.
^ [3] "State Homicide Laws That Recognize Unborn Victims."
^ [4] "Some Cases of Homicides of Unborn Children under Federal or Military Jurisdiction," May 8, 2003. (Examples of fetal-death cases that could not be prosecuted prior to enactment of the Unborn Victims of Violence Act.)
^ [5] "State Homicide Laws That Recognize Unborn Victims."
^ [6] Constitutional Challenges to State Unborn Victims (Fetal Homicide) Laws."
^ [7] "The Unborn Victims of Violence Act and Roe v. Wade," February 2, 2004.