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


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