A03128 Summary:

BILL NOA03128
 
SAME ASSAME AS S01950
 
SPONSORCusick (MS)
 
COSPNSRTedisco, Fitzpatrick
 
MLTSPNSRBrook-Krasny, Kolb, Malliotakis, McDonough, McLaughlin, Ra, Tenney, Walter
 
Add SS120.75 & 120.80, amd SS125.00 & 125.05, Pen L
 
Provides that either a person or an unborn child in any stage of gestation may be the victim of an assault or homicide; also states situations when it does not constitute an assault on an unborn child such as during the course of an otherwise lawful abortion, during normal medical treatment or by the pregnant woman; defines "person" to include any human being who is born and is alive or an unborn child at any stage of gestation.
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A03128 Actions:

BILL NOA03128
 
01/23/2013referred to codes
01/08/2014referred to codes
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A03128 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3128
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 23, 2013
                                       ___________
 
        Introduced  by M. of A. CUSICK, GABRYSZAK, ESPINAL, TEDISCO, FITZPATRICK
          -- Multi-Sponsored by -- M. of  A.  BROOK-KRASNY,  KOLB,  MALLIOTAKIS,
          McDONOUGH,  McLAUGHLIN,  RA,  WALTER  -- read once and referred 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:
 
     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 mother
     8  since 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
    12  violence.
    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.
    22    Compounding this tragedy is the loophole in current law, which  denies
    23  effective  protection  and  remedy  to women and their children.  When a
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00780-01-3

        A. 3128                             2
 
     1  woman makes a conscious choice to keep her baby and has the choice viol-
     2  ently taken away from her by a violent perpetrator, justice demands that
     3  someone be punished for that crime.   Indeed, mothers  will  bury  their
     4  baby's  body  and  mark  the grave for their child for the rest of their
     5  lives, but New York law tells them their loved one never existed.
     6    The legislature does not intend this act to apply to any  abortion  to
     7  which  a woman has consented, to any act of the mother herself or to any
     8  form of medical treatment.  The legislature finds that the current legal

     9  right to abortion does not protect and does not confer on an  assailant,
    10  a third-party unilateral right to destroy an unborn child.
    11    The legislature recognizes that a federal "unborn victims of violence"
    12  law  was enacted in 2004, yet believes the law to be limited in applying
    13  only to unborn children injured or killed during the course of specified
    14  federal crimes of violence.
    15    It is the intent of the legislature that the affirmative  right  of  a
    16  pregnant  woman to carry her child to term be protected, and that perpe-
    17  trators of crimes against pregnant women and their  unborn  children  be
    18  held accountable for their crimes.
    19    §  2. Short title.  This act shall be known as and may be cited as the
    20  "unborn victims of violence act".
    21    § 3. The penal law is amended by adding two new  sections  120.75  and
    22  120.80 to read as follows:

    23  § 120.75 Assault and related offenses; definition.
    24    The  following  definition  is  applicable to sections 120.00, 120.03,
    25  120.04, 120.05, 120.06, 120.07, 120.10 and 120.12 of this article:
    26    "Person," when referring to the  victim  of  any  assault,  aggravated
    27  assault  or vehicular assault, means a human being who has been born and
    28  is alive, or an unborn child at any stage of gestation.
    29  § 120.80 Assault and related offenses; defined.
    30    Nothing in this article shall be construed to permit the prosecution:
    31    1. of any person for conduct relating to a justifiable abortional  act
    32  for which the consent of the pregnant woman has been obtained;
    33    2.  of  any  person for any medical treatment of the pregnant woman or

    34  her unborn child; or
    35    3. of any woman with respect to her unborn child except a  prosecution
    36  for violating section 125.50 or 125.55 of this title.
    37    § 4. Section 125.00 of the penal law is amended to read as follows:
    38  § 125.00  Homicide defined.
    39    1.  Homicide  means  conduct  which causes the death of a person or an
    40  unborn child [with which a female has been pregnant for more than  twen-
    41  ty-four  weeks] at any stage of gestation under circumstances constitut-
    42  ing murder in the first degree, murder in the second degree, manslaught-
    43  er in the first degree, manslaughter in  the  second  degree,  vehicular
    44  manslaughter  in  the first degree, vehicular manslaughter in the second

    45  degree or criminally negligent homicide, abortion in the first degree or
    46  self-abortion in the first degree.
    47    2. Nothing in this article shall be construed  to  permit  the  prose-
    48  cution:
    49    (a) of any person for conduct relating to a justifiable abortional act
    50  for  which  the  consent of the pregnant woman or a person authorized by
    51  law to act on her behalf, has been obtained or for which such consent is
    52  implied by law;
    53    (b) of any person for any medical treatment of a pregnant woman or her
    54  unborn child; or
    55    (c) of any woman with respect to her unborn child except a prosecution
    56  for violating section 125.50 or 125.55 of this article.

        A. 3128                             3
 

     1    § 5. Subdivision 1 of section 125.05 of the penal law  is  amended  to
     2  read as follows:
     3    1.    "Person,"  when  referring  to the victim of a homicide, means a
     4  human being who has been born and is alive or an  unborn  child  at  any
     5  stage of gestation.
     6    § 6. This act shall take effect on the first of November next succeed-
     7  ing the date on which it shall have become a law.
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