Digital Johnny, Real Johnny: Some light reading

April 02, 2004

Some light reading

In response to Sean's posting about the new federal fetus law:

I read the version of this Unborn Victims of Violence Act that the House passed and I was pretty shocked. I wasn't surprised that it makes the killing of a fetus a separate crime since most states' penal laws already recognize that (click link below for California Penal Code dealing fetus murder), but what's really shocking is that the bill basically eliminates any kind of requirement of knowledge or intent in order to be found guilty of this other murder. I guess that would have to be since the law creates "complete coverage" for fetuses, meaning that the defendant is subject to it as soon as the woman is pregnant and not just if s/he knew or had reason to know the woman was pregnant or if s/he intended to harm the baby.

I know I only got a C+ in Criminal Law last semester, but I'm pretty sure that is totally uncool under the Constitution since a major part of Due Process is being held accountable only for things that you are either subjectively aware of or should be aware of in the eyes of a "reasonable person" or the law. I really don't like this strict liability for the death of a fetus, no matter how new it is and despite the fact that the mother may not show any signs of being pregnant and the defendant isn't aware and has no way of possibly knowing that she is. This won't protect unborn children any more because the attacker isn't able to see that she's pregnant and therefore won't be able to make the choice to NOT attack because she is pregnant. I also doubt that it will make all attackers of women think twice about whether or not she could be pregnant b/c that's just not realistic. All this will do is inflict a totally unjust penalty for a unknowing and unknowable crime, which is sooooo contrary to the spirit and intent of criminal law that I can't even think about it.

Click below for text of the Act and some California Penal Codes

H.R. 1997
United States Code Title 18, Sec. 2. PROTECTION OF UNBORN CHILDREN
Ch. 90A--PROTECTION OF UNBORN CHILDREN
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.

(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:

(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).

(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.'

California Penal Code 187
(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(2) The act was committed by a holder of a physician's and surgeon'
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.

California Penal Code 188
Such malice may be express or implied. It is express [malice] when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied [malice], when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

California Penal Code 190.2, note of decision 36
Killing of a fetus, multiple murder

Application of multiple-murder special circumstance to crimes of killing pregnant woman and her viable fetus did not constitute disproportionate penalty in violation of State and Federal Constitutions in case in which defendant was found guilty of first-degree murder of mother and second-degree murder of fetus, as later verdict necessarily included jury finding that defendant, at very least, bore implied malice toward fetus. People v. Dennis (1998) 71 Cal.Rptr.2d 680, 17 Cal.4th 468, 950 P.2d 1035, rehearing denied, certiorari denied 119 S.Ct. 257, 525 U.S. 912, 142 L.Ed.2d 211.

Killing of viable fetus is "murder," within meaning of multiple-murder special circumstance. People v. Hamilton (1989) 259 Cal.Rptr. 701, 48 Cal.3d 1142, 774 P.2d 730, modified on denial of rehearing, certiorari denied 110 S.Ct. 1503, 494 U.S. 1039, 108 L.Ed.2d 638, rehearing denied 110 S.Ct. 1961, 495 U.S. 924, 109 L.Ed.2d 323, habeas corpus denied, order to show cause discharged 84 Cal.Rptr.2d 403, 20 Cal.4th 273, 20 Cal.4th 1083A, 975 P.2d 600, as modified.

Applying multiple-murder special circumstance for imposition of death penalty to killing, by single act, of pregnant woman and her viable fetus does not establish cruel or unusual punishment. People v. Bunyard (1988) 249 Cal.Rptr. 71, 45 Cal.3d 1189, 756 P.2d 795, modified on denial of rehearing.

Multiple-murder special circumstance for imposition of death penalty is applicable to the killing, by a single act, of a pregnant woman and her viable fetus. People v. Bunyard (1988) 249 Cal.Rptr. 71, 45 Cal.3d 1189, 756 P.2d 795, modified on denial of rehearing.

Multiple murder special circumstance which requires that defendant has in instant proceeding been convicted of more than one offense of murder in first or second degree is applicable to killing, by single act, of mother and her fetus. People v. Smith (App. 5 Dist. 1987) 234 Cal.Rptr. 142, 188 Cal.App.3d 1495, review denied, certiorari denied 108 S.Ct. 188, 484 U.S. 866, 98 L.Ed.2d 140.

California Penal Code 190.2

click here and scroll down for list of special circumstances

Posted by Kristina at April 2, 2004 01:39 AM

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