SPEAKERS CONTENTS INSERTS
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71–182
2001
UNBORN VICTIMS OF VIOLENCE ACT OF 2001
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
H.R. 503
MARCH 15, 2001
Serial No. 4
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
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DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
TODD R. SCHULTZ, Chief of Staff
PHILIP G. KIKO, General Counsel
Subcommittee on the Constitution
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STEVE CHABOT, Ohio, Chairman
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
Vice Chair
LAMAR S. SMITH, Texas
ASA HUTCHINSON, Arkansas
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
CRYSTAL M. ROBERTS, Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
March 15, 2001
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TEXT OF BILL
H.R. 503
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
WITNESSES
Mr. William Croston, Charlotte, North Carolina
Mr. Richard S. Myers, Professor, Ave Marie School of Law, Ann Arbor, Michigan
Ms. Juley Fulcher, Director of Public Policy, National Coalition Against Domestic Violence
Mr. Robert J. Cynkar, Attorney at Law, Cooper, Carvin & Rosenthal
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Mr. William Croston, Charlotte, North Carolina: Prepared Statement
Mr. Richard S. Myers, Professor, Ave Marie School, Ann Arbor, Michigan: Prepared Statement
Ms. Juley Fulcher, Director of Public Policy, National Coalition Against Domestic Violence: Prepared Statement
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Mr. Robert J. Cynkar, Attorney at Law, Cooper, Carvin & Rosenthal: Prepared Statement
APPENDIX
Material submitted for the record
UNBORN VICTIMS OF VIOLENCE ACT OF 2001
Thursday, March 15, 2001
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:08 a.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.
Mr. CHABOT. This Committee will come to order.
This morning the Subcommittee on the Constitution convenes to consider H.R. 503, the Unborn Victims of Violence Act of 2001.
[The bill, H.R. 503, follows:]
I
HR 503 IH
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107TH CONGRESS
1ST SESSION
H. R. 503
To amend title 18, United States Code, and the Uniform Code of Military Justice to protect unborn children from assault and murder, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 7, 2001
Mr. GRAHAM (for himself, Mr. BACHUS, Mr. BARR of Georgia, Mr. CHABOT, Mr. COSTELLO, Mr. DELAY, Mr. HUTCHINSON, Mr. HYDE, Mr. BARCIA, Mr. SMITH of New Jersey, Mr. VITTER, Mr. HILLEARY, Mr. BURTON of Indiana, Mr. RYUN of Kansas, Mr. HALL of Texas, Mr. SHOWS, Mr. LARGENT, Mr. PITTS, Mr. GREEN of Wisconsin, Mr. COLLINS, Mr. GOODLATTE, Mr. GARY MILLER of California, Mr. BLUNT, Mrs. EMERSON, Mr. PHELPS, Mr. HANSEN, Mr. SHIMKUS, Mr. HOEKSTRA, Mr. KNOLLENBERG, Mr. TANCREDO, Mr. GUTKNECHT, Mr. DEMINT, Mr. HAYWORTH, Mr. CHAMBLISS, Mr. ENGLISH, Mr. WELDON of Florida, Mr. BRADY of Texas, Mr. JONES of North Carolina, Mr. SCHAFFER, Mr. STEARNS, Mr. DEAL of Georgia, Mr. CANTOR, Mr. EVERETT, Mrs. JO ANN DAVIS of Virginia, Mr. LAHOOD, Mr. HASTINGS of Washington, Mr. LIPINSKI, Mr. LEWIS of Kentucky, Mr. OXLEY, Mr. DOOLITTLE, and Mr. ROGERS of Michigan) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
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A BILL
To amend title 18, United States Code, and the Uniform Code of Military Justice to protect unborn children from assault and murder, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Unborn Victims of Violence Act of 2001''.
SEC. 2. PROTECTION OF UNBORN CHILDREN.
(a) IN GENERAL.—Title 18, United States Code, is amended by inserting after chapter 90 the following:
''CHAPTER 90A—PROTECTION OF UNBORN CHILDREN
''Sec.
''1841. Protection of unborn children.
''§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
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''(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
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''(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.''.
(b) CLERICAL AMENDMENT.—The table of chapters for part I of title 18, United States Code, is amended by inserting after the item relating to chapter 90 the following new item:
''90A. Protection of unborn children SEC. 3. MILITARY JUSTICE SYSTEM.
(a) PROTECTION OF UNBORN CHILDREN.—Subchapter X of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by inserting after section 919 (article 119) the following new section:
''§919a. Art. 119a. Protection of unborn children
''(a)(1) Any person subject to this chapter who 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 of title 18) 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 this chapter 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
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''(ii) the accused 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 880, 918, and 919(a) of this title (articles 80, 118, and 119(a)) 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 sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title (articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
''(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) 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.''.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of such subchapter is amended by inserting after the item relating to section 919 the following new item:
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''919a. 119a. Protection of unborn children.''.
Under current Federal law, an individual who commits a Federal crime of violence against a pregnant woman receives no additional punishment for killing or injuring the woman's unborn child during the commission of that crime. Therefore, except in those States that recognize unborn children as victims of such crimes, injuring or killing an unborn child during the commission of a violent crime has no legal consequence whatsoever.
The Unborn Victims of Violence Act was designed to address this deficiency in the law by providing that an individual who injures or kills an unborn child during the commission of certain predefined violent Federal crimes may be punished for a separate offense. The Subcommittee on the Constitution held hearings on this legislation during the 106th Congress, and the bill passed in the House with bipartisan support on September 30, 1999, by a vote of 254 to 172.
By its own terms, the act does not apply to, and I quote, ''conduct relating to an abortion for which the consent of the pregnant woman has been obtained or for which such consent is implied by law.'' The act also does not permit prosecution ''of any person for any medical treatment of the pregnant woman or her unborn child,'' or of the mother for any conduct with respect to the unborn child.
The Act further provides that the punishment for the offense against the unborn child will be the same punishment that would have been imposed under Federal law had that conduct resulted in the same injury to the mother. For example, if an individual assaults a Federal official in violation of 18 U.S.C. 111, and as a result of that assault kills the official's unborn child, the perpetrator may be punished for either second degree murder, voluntary manslaughter, or involuntary manslaughter for killing the unborn child, the same punishment the individual would have received had the Federal official died as a result of the assault.
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In that respect the act is consistent with the well-settled criminal law doctrine of transferred intent, which provides that when an individual acts with the intent to harm one person, and during the course of the offense hurts another, the law considers the perpetrator to be just as guilty of harming the second as the first. Thus, if A shoots a gun at B with the intent to kill, and the bullet goes through a wall and kills C, A is guilty of murdering C.
The Unborn Victims of Violence Act will enable prosecutors to bring to justice criminals like Reginald Anthony Falice, who on April 28, 1998 shot his 8-months pregnant wife, Ruth Croston, as she sat at a red light in Charlotte, North Carolina, killing Ms. Croston and her unborn child. Falice was convicted by a Federal jury for interstate domestic violence and using a firearm in the commission of a violent crime, but because Federal law does not currently recognize the unborn as victims, he received no additional punishment for killing the near-term infant. Today we will hear from Ms. Croston's brother, William Croston, regarding this tragic loss of life.
Or the criminals who planted a bomb just outside of Tammy Lynn Baker's apartment in Louisa, Virginia. Ms. Baker was near term with her unborn child when the bomb exploded on December 3, 1997, killing her and the child. Nearly 3 years later, Coleman Johnson, the unborn child's father, was arrested on Federal explosives charges for the death of Ms. Baker and is awaiting trial. His charges do not include the murder of the unborn child.
A similar incident occurred in Connellsville, Pennsylvania on January 1, 1999, when Deanna Mitts, who was 8 months pregnant, returned home from a New Year's Eve celebration with her 3-year-old daughter, Kayla. A bomb exploded in the apartment, killing Ms. Mitts, Kayla, and the unborn child. Almost a year later, Joseph Minerd, the presumed father of the unborn child, was arrested for Deanna and Kayla's murders, but is not being held criminally liable for the harm caused to the unborn child.
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This legislation would also ensure just punishment for criminals like Gregory Robbins, an airman at Wright-Patterson Air Force Base in Ohio, just north of my district, who wrapped his fist in a T-shirt to reduce the chance that he would inflict visible bruises and beat his 8-months-pregnant wife in the face and abdomen, killing their unborn baby. Military prosecutors were able to charge Robbins for the death of the unborn child by assimilating Ohio's fetal homicide law through the Uniform Code of Military Justice. But, had Mr. Robbins beaten his wife just across the Ohio River in Kentucky, which is just south of my district, a State which has no fetal homicide law, he would have received no additional punishment for killing the child.
This important legislation will ensure that criminals who commit violent acts against pregnant women are justly punished for injuring or killing unborn children. Without the Unborn Victims of Violence Act, the crimes against these innocent victims will continue to go unpunished. I urge my colleagues to support this important legislation.
I would like to thank Congressman Lindsey Graham of South Carolina for introducing this legislation and for showing the leadership that he did in the previous Congress and the leadership that he is showing by pushing forward in this Congress. And at this time I will yield to the gentleman, Mr. Nadler, from New York, the Ranking Member of the Committee, for an opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, once again we are faced with a piece of legislation that is disingenuous in the extreme, whose real purpose is not the stated purpose. The stated purpose is to deal with violence against women that hurts a fetus. The real purpose is to establish the doctrine that, contrary to the Supreme Court's holding in Roe v. Wade and other decisions, that a fetus is a separate person, period.
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That is the real purpose of this bill. It is blatantly and facially unconstitutional. We shouldn't be wasting our time on it. The Supreme Court said in Roe v. Wade, ''The unborn have never been recognized in a whole sense,'' and it concluded that ''person as used in the Fourteenth Amendment of the Constitution does not include the unborn.''
This legislation marks a major departure from existing Federal law by elevating the legal status of a fetus at all stages of prenatal development to that of the pregnant woman or that of any other person who is the victim of a crime. This is wrong, Mr. Chairman. It goes against the whole history of law, stretching back to the Bible, the whole history of common law, and against the Constitution of the United States as interpreted even by this Supreme Court, and in doing so threatens to undermine a woman's right to choose as recognized by the Supreme Court in the case of Roe v. Wade.
So why are we here again considering a bill that is clearly unconstitutional, whose sponsors cannot even believe that it is constitutional? The sponsors of H.R. 503 claim that this is a crime bill, yet the bill was never sent by the Republican leadership to the Subcommittee on Crime. Why send it to the Subcommittee on the Constitution if it is a crime bill? The implication seems to be that this legislation is driven by the politics of abortion rather than by any substantive effort to end violence against women, pregnant or otherwise.
The bill would certainly be open to debate in the context of criminal prosecutions over such questions as when life begins, does a fetus feel pain, and at what stage of development does a fetus feel pain, an issue not subject to empirical determination, and other issues which are properly addressed as constitutional matters or perhaps even as metaphysical ones. Let us be clear, these are constitutional issues, not crime issues. That is why this bill is here in the Subcommittee on the Constitution. Make no mistake about it.
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But violence against a pregnant woman is first and foremost a criminal act of violence against a woman that deserves protection. If the sponsors are concerned about violence against pregnant women, I would hope they would join me in seeking full funding for the Violence Against Women Act, and perhaps even expand the penalties for assaults on women which harm their fetuses. That is the proper remedy if we think that assaults on women that harm their fetuses are not adequately protected against, as much as we can in current law.
It is certainly a heinous act which deserves strong punishment, and perhaps we should make the crime a more serious one, but let's not cloud that effort by plunging a legitimate law enforcement effort into the murky waters of the abortion debate. The fact is, this bill is plagued with difficulties, both practical as well as constitutional.
First, the bill would impose criminal liability for injury to a prenatal entity at any stage of development, whether or not the defendant knew that the woman was pregnant or intended to cause harm to the fetus. This clearly violates the criminal law doctrine of mens rea, which requires that the perpetrator of a crime have an actual criminal intent. It also seems to violate the due process clause of the Fourteenth Amendment to the Constitution. Under this bill, people may be prosecuted for crimes they did not intend to commit or even have any reason to know they were committing. And, although this has not yet been tested in the courts, it is unlikely it would pass constitutional muster.
Second, the bill creates difficult issues of proof in determining at what particular stage of prenatal development a given injury occurred, in determining the degree to which fetal pain was caused and whether such perceived or alleged pain was perhaps a response to some other phenomenon, such as a normal reflexive event. Proving any of this beyond a reasonable doubt is even more problematic. And how does one measure fetal pain? How do you prove that question of fact to a jury?
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The bill is also unclear in many respects. Does it cover an embryo after implantation, or does it cover the zygote from conception? If it is after conception, how do you prove that the injury took place and whether it is covered?
Finally, this bill opens the door to prosecuting women or restraining them physically for the sake of the fetus. If the fetus is recognized as a separate person with rights under the Constitution, as this bill would do, then you must restrain the mother in activities that may endanger the fetus. Some courts have already experimented with this approach, although the Supreme Court has never recognized it and, as I said, quite clearly said the fetus is not a separate person.
Once we recognize a zygote, two cells, as having the same legal status as the pregnant woman, it would logically follow that her liberty could be restricted to protect it. The whole purpose of the series of Supreme Court decisions flowing from Roe v. Wade was to protect the woman's liberty interest. This bill would undermine it. And the bill is also facially unconstitutional.
If the Members who are supporting, who are pushing this bill, are honest about their intent, they would forget about this bill and they would push a constitutional amendment declaring a fetus a human life from the moment of conception. I know that has been tried before. I disagree with that. I would oppose it. I would oppose it vigorously. But at least it would be honest. It would do what it says it would do, the purpose would be clear, and we could debate the issues.
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This bill is dishonest, in that it is attempting to do something, the real purpose of the bill is to do something which they don't claim, and the real purpose of the bill is blatantly unconstitutional. The bill is blatantly unconstitutional, and they should push a constitutional amendment. Then we could debate it honestly.
I thank the Chairman for yielding.
Mr. CHABOT. Thank you, Mr. Nadler.
The gentleman from South Carolina, Mr. Graham, is recognized for an opening statement.
Mr. GRAHAM. Thank you, Mr. Chairman. Thank you for having this hearing. I am glad Mr. Nadler is not the Supreme Court all by himself. I guess I would be in trouble.
Mr. NADLER. You certainly would.
Mr. GRAHAM. I would. He says I am dishonest, and I know he means it in the best of ways, but I think he is misinformed in the best of ways.
Let's talk a little bit about some legal concepts he threw out here in rapid-fire fashion. He says a criminal can't be prosecuted if he doesn't know the woman is pregnant. Well, that is not true. There are 11 States that allow prosecution for the harm or death of an unborn child at any stage of development, and that takes care of your zygote situation. There are 11 States with statutes on the books just like the one that I am proposing at the Federal level. There are another 12 or 13 that impose criminal liability at a certain stage of pregnancy, 12 weeks and beyond. So I would say that this is a very tested statute, as States have had the same statute, at least 11 have, for many years now.
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And if you attack someone and you cause a violent attack, you push somebody and you don't know they have a bad heart condition, that is your problem. You don't have to know everything about somebody. All you have to know is, it is illegal to hurt them. And if you set in motion violence against a person, you are fully responsible for the extent of the damage caused, whether you knew about their condition or not, because the act which you should not engage in is hurting other people, and that is the law.
Now, as to this bill and abortion, the Chairman has gone over what we are trying to do here. A woman can never be prosecuted, the pregnant woman can never be prosecuted under this legislation. Some States allow prosecution of pregnant women who endanger their fetus, their baby, through taking drugs or alcohol. This is not one of those statutes.
The only person that can be prosecuted under this statute is a third party criminal, somebody who chooses to assault a woman who is pregnant, and if they choose to do that, this statute says you are going to have two things happen to you: You are going to be prosecuted for hurting the mother and you are going to be prosecuted for hurting her unborn child she chose to have.
Abortion is evenly divided in this country. A lot of people feel that the woman's right to choose should be protected in terms of her own decision. A lot of people feel like the baby should be protected. But here is where we have come together as Americans. In the late terms of pregnancy, seventh, eighth, ninth month of pregnancy, partial-birth abortion ban legislation got the two-thirds vote of this House. At that stage we look at the unborn child differently, and that is where public opinion begins to change.
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I would argue that public opinion is solidly on our side. If a woman chooses to have a baby, and she is attacked and her baby is hurt, her baby is killed, most Americans would say, ''Put that person in jail for doing two bad things, hurting the mother and taking her child away.'' Unfortunately, there are more of these cases than one would ever believe.
The Rae Carruth case, the football player, hired a hit man allegedly, and you know what the hit man did? He charged him $5,000 for shooting the mother, an additional $5,000 for taking care of the child. In the hit man's eyes, he was killing two people. And I think the law should step in and punish people as aggressively as possible when they do those terrible things.
Why not sentence enhancement? Why not the alternative that is being proposed? You don't have a separate offense, you just enhance the sentence that someone would get for attacking the mother. Let me give an example of why I think that is not appropriate.
The Arkansas case that we heard about last year, that got a lot of national publicity, involved a woman who was pregnant, in the ninth month of pregnancy, and her boyfriend hired three people to kidnap her and beat her up, with the express purpose of killing the child so he wouldn't have to pay child support.
Well, they did what was requested and what they were paid to do. They kidnapped the woman, they took her off, and they beat her to a pulp, almost killed her. And as she was on the floor being beat, she was begging for her baby. She lost her baby; she survived. Those people are facing the death penalty because in Arkansas the law recognizes the unborn child as a person in terms of criminal activity by a third party.
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My bill doesn't have the death penalty because I didn't want to take on that argument. But I would argue that in Arkansas, if you just enhanced the assault statute on the mother, justice would not have been done and prosecutors would not have the tools they needed. Those people needed to be prosecuted twice.
Mr. Chairman, thank you for bringing this bill up. It passed last year, 254 votes, in a bipartisan fashion. I think most Americans see the need for this and understand the logic of it, and I thank you very much for bringing it up.
Mr. CHABOT. Thank you, Mr. Graham.
Mr. Conyers or Mr. Scott, I am not sure which of you were here next or who, if either one of you gentleman have an opening statement down there.
Mr. CONYERS. Well, I wasn't here first, but is that the rule in this Subcommittee, too?
Mr. CHABOT. It is not necessarily——
Mr. CONYERS. I will defer to it, if it is. I am willing to go along with it. I am not fighting it. But at any rate, thanks, Mr. Chairman.
Mr. SCOTT. I will defer to my senior.
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Mr. CONYERS. You know, I have to ask, what is the Federal connection in this measure? I mean, is this a matter that we need to have a Federal offense being entered into or what?
Mr. CHABOT. If the gentleman will yield, that is correct. There has to be an underlying Federal offense, a Federal nexus.
Mr. CONYERS. Well, in other words, the States aren't taking care of this, and we already have some legislation on this, Federal, already. But the part that Mr. Graham I think left out, or I didn't hear, is that the third party that commits this crime may or may not know that the woman is pregnant. I think that is a huge problem that we have, and I think it is one that we are going to have to look at very carefully.
Now, he also suggested there were more cases than we know about this, that there is an explosion of these kinds of cases, which I will be looking for to see if there is some evidence to support this. But the question, the question that I am going over again, this is the second hearing we have had. We had a hearing in the previous Congress on this subject, same bill, I guess.
But is this a transparent attempt to legalize or to legally recognize a fetus as a person with rights and interests separate from those of the mother? Is it? That is what I am going to be asking all of the witnesses. Because by creating a separate crime based on injury to an embryo or a fetus, rather than as a corollary injury to the mother, we get into the legislative conceptual area where we are making, perhaps, a clever but transparent attempt to expand fetal rights in a way that can conflict with the woman's interests.
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Now, there is no one that doesn't agree that a pregnant woman and her fetus should be protected from criminal attack through the enforcement of our criminal law. And if that were all we were doing here, this bill would not be controversial, I don't believe, because it would resemble some State laws that enhance penalties for causing death or injury to a fetus.
So, by protecting pregnant women and their fetuses, if that isn't the intent of the bill, conferring rights on a fetus as a separate entity independent of the pregnant woman lays the groundwork for future fetal rights that could be used against the pregnant woman.
And so the creation of these rights can be used then perhaps against the woman, and that may be a growing problem that we all ought to look at. If the trend continues, it could make it difficult for pregnant women to conduct themselves, because any accident or error in judgment could be deemed unacceptable and perhaps the basis of a criminal prosecution.
So the truth is that, from my point of view, that the welfare of the unborn can't be separated from that of the mother. If you care about protecting the fetus, you must care about protecting the mother. This bill doesn't enhance the welfare of mothers. It creates instead an intrusive climate for government intervention in their choices and on their bodies.
And so it seems to me there is a much more productive direction that we could be moving in. If we want to reduce violence against women, we should focus on measures that address the epidemic of domestic violence and sexual assault. I think that would be moving in the right direction with the Violence Against Women Act, which was reauthorized but has not been fully funded yet, and we are waiting to see if that happens.
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So I welcome the witnesses, and I thank the Chairman.
Mr. CHABOT. I thank the gentleman for his statement, and the gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.
Mr. HOSTETTLER. Thank you, Mr. Chairman. While I don't have an opening statement, as such, I would like to yield my time to my colleague from South Carolina, Mr. Graham.
Mr. GRAHAM. I just want to point out one thing that the House did on July 25th of 2000 about Federal law and the unborn child. 417 to nothing, the House voted for the Innocent Child Protection Act, which said that no State or Federal authority may carry out a sentence of death on a woman while she carries a child in utero.
I would imagine most Americans would agree with that idea, that we are not going to execute pregnant women because we are not going to punish the child for the sins of the mother. All I am saying is, if we are going to prevent the State or Federal Government from extracting payment at the expense of the unborn child for any crimes of the mother, let's make sure those who destroy that child, through criminal activity, chosen to be had by the mother, they pay a price. Thank you.
Mr. HOSTETTLER. I yield back the balance of my time.
Mr. CHABOT. The gentleman's time has expired.
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The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. I have no statement. I would like to hear the witnesses.
Mr. CHABOT. Mr. Smith, do you have an opening statement?
Mr. SMITH. Mr. Chairman, I don't have an opening statement. I would like to make a brief comment, simply because I might not be here during the questioning period.
A few weeks ago I finished reading a book by Carl Sagan, who you may recognize as a renowned astronomer, but in that book he voiced his views on the subject of abortion. He is very well known for being pro-choice. And I would like to read a couple of the statements that he made in his book, simply because I think they bear relevance to the subject at hand. Even though he was addressing, I believe, the subject of partial-birth abortion, nevertheless I think you will understand that he had a legitimate point, and I think coming from somebody who is very publicly pro-choice, he has some credibility with these points, as well.
Mr. Chairman, here are the two statements: ''A newborn baby is surely the same being it was just before birth. Why, then, should it be murder to kill an infant the day after it was born but not the day before?''
And the second statement is this: ''If we do not oppose abortion at some stage of pregnancy, is there not a danger of dismissing an entire category of human beings as unworthy of our protection and support?''
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It seems to me, Mr. Chairman, that in the bill that we are having a hearing on today, that was introduced by Mr. Lindsey Graham, that we are making a point that there is a stage, there is a time, and it is when the woman is carrying a fetus, that the fetus needs to be protected and considered an unborn person and therefore worthy of protection and respect, as even Mr. Sagan himself says.
The other point is that surely if we were debating this issue elsewhere, we would have to admit that the baby deserves protection immediately before birth, and I think that if you look at the bill from that point of view, surely there is a stage at which the person who murders that individual should be punished just as much as if they were murdering an individual after birth. And I think that is the point that we have to consider today, and I think to his credit Carl Sagan, who is very pro-choice, admitted the same points as well, and perhaps our witnesses will be able to address that subject, too.
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you, Mr. Smith
The gentleman from North Carolina, Mr. Watt, is recognized for an opening statement.
Mr. WATT. Thank you, Mr. Chairman.
First of all, I wanted to welcome Mr. Croston from Charlotte, North Carolina. I don't believe I have had the pleasure of meeting him in person, and I don't know whether he lives in my congressional district or the adjoining congressional district of Mrs. Myrick, but anybody from North Carolina, I want to make sure they feel welcome here, and I want to thank him for being here, as well as the other witnesses on the panel.
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Congressman Graham and I worked hours and hours and hours last term of Congress, when I was the Ranking Member of this Subcommittee, trying to see if we could get all the anti-abortion, pro-life rhetoric and stuff out of this bill so that we could focus on the real issue. I think if I were looking at North Carolina law, some variation of this bill would be the law in North Carolina, and what I was trying to do as the Ranking Member was to address the concern that Mr. Conyers has raised about whether this was really a substitute for some pro-life agenda or whether this was a real effort to do something substantive.
And it seemed to me that if we could have gotten some of the charged language out of the bill and gotten beyond the abortion debate, we probably could have focused this. But we made a number of different efforts to try to do that, and I see that last year and this year the words ''unborn children'' are in the bill, ''a child,'' ''the child's mother,'' you know. So it is hard to get to a real discussion of the substantive merit of the bill when some people are arguing, ''Well, that means that we are recognizing a separate child as opposed to a fetus,'' and other people are arguing, ''Well, we are not intending that,'' but they are not willing to change the language in the bill to show that that is not the real intent.
After a while, as my colleague from my neighboring State to the south will attest, I just threw up my hands and gave up and walked away from this, and said we will agree to disagree. And while I don't have all that strong a feeling about the substance of the bill, I am going to vote against it because I don't think at least some of the people who are the strong advocates for this bill really care much about the substance. It is more about the language.
And I am not accusing Mr. Graham of that, because I think he worked rigorously with me to try to accomplish the objective that we were trying to accomplish. But this bill has the same concerns, and I am sure it is going to be a kind of a vehicle for a debate about the choice or no choice, rather than a debate about whether the substance of the bill has value.
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And I just encourage Mr. Graham to make one final effort to try to sanitize the language, and maybe we could get to a substantive debate on whether this is a good idea or not. I am not sure that I necessarily think it is a bad idea, but it certainly has some problems the way it is drawn, and I doubt that it is going to be amended in the process, and so I am going to have trouble supporting it again.
Mr. GRAHAM. Would the gentleman yield for a second?
Mr. WATT. I am happy to yield the balance of my time.
Mr. CHABOT. The gentleman is recognized for an additional minute so he can yield.
Mr. WATT. I yield that minute to Mr. Graham.
Mr. GRAHAM. I just want to lay a compliment on you. Last year we worked hard. We wound up not being able to agree. But the term ''unborn child'' is the exact language used in all 11 statutes that I am patterning the bill after, so I think these are legal words, well-recognized, with legal meaning.
And I understand what the gentleman is saying, but he was very honest and sincere about trying to make the bill better in his view, and I don't think he has any hatred for the bill, and I respect his differences. Thank you very much for trying to help me.
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Mr. WATT. I yield back, Mr. Chairman.
Mr. CHABOT. The gentleman's time has expired.
The gentlelady from Pennsylvania, Ms. Hart, is recognized for the purpose of an opening statement.
Ms. HART. Thank you, Mr. Chairman. I have a brief opening statement, as I was not here during the time that this bill was discussed in the prior session.
I was, however, a member of the Pennsylvania Senate in 1998 when we debated this issue on the Pennsylvania level, and did pass a bill overwhelmingly in our Pennsylvania State Legislature, supported by anti-crime legislators who are both pro-life and pro-choice. This is not an issue and should not be made into an issue of whether you are for or against abortion.
The crimes that this bill would enhance, I guess I would say, are listed in some of the documents that we have, that I am sure those who are here to hear us do not have. And I just want to go through a couple of those crimes to let you know how serious the crimes are that we are talking about; that there is an intent by the perpetrator to cause substantial harm.
And unfortunately, though I think Mr. Conyers mentioned that there may be State law to cover this issue for a lot of folks who might be harmed by someone else, there are a lot of Federal crimes that are enumerated here that would not be prosecuted, could not be prosecuted under State law. That is why the need for Federal legislation that does what the law in Pennsylvania does or what the law in Ohio may do and what other State laws may do.
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There are Federal crime statutes that are different and are separate. Some of those include things such as performing an act of violence at an international airport; causing injury to someone using mail facilities or in interstate or foreign commerce; committing assault within the special maritime or territorial jurisdictions of the United States, that would not fall under any State law.
Here is one that should be of special interest to my colleagues: killing, kidnapping, or conspiring to kill, kidnap or assault a Member or a Member-elect of Congress. Now, granted that Member-elect may or may not be in a jurisdiction that would cover this issue, but the reality is that there would be and can be and have been victims of violence who will be prosecuted under Federal law, who would not be afforded the protections that are provided under some State laws. That is why the need for this bill.
Just one more word, Mr. Chairman, before I yield, and that is that those who would try to make this bill opposed to the protection of women from violence I think see this issue completely wrong. It may be blatantly obvious to you that I am a woman, and I am very, very supportive of anti-domestic violence. I am a very anti-domestic violence legislator, have supported many things on the State level.
I see this bill as an ultimate protection of women from violence. Not only does it suggest that the person who would cause harm to this woman would be prosecuted for the harm that is caused to her, but it is also the ultimate respect for the decision that this woman has made to carry her baby, and that respect is not accorded her decision if the person would not be prosecuted for the destruction of her fetus.
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I see this bill as ultimately anti-crime and ultimately pro-woman, and I would hope that we will have an opportunity to explore some opinions from our witnesses today, and I thank the Chairman.
Mr. CHABOT. Thank you very much for your opening statement. I want to thank all the panel members for their statements, and at this time we will introduce the witnesses here this morning.
Our first witness is William Croston of Charlotte, North Carolina. My mother happens to have been born and raised in North Carolina, so we visit our relatives down there a lot. She happened to marry a northern fellow from Massachusetts. We ended up in Ohio. But we visit your beautiful community very often, and it certainly is a lovely city. I have a lot of relatives down there. They say we talk funny from where I live now, but it is a great place.
Mr. Croston will be sharing his family's experience following the murder of his sister, Ruth Croston, and her unborn child. We really do appreciate his coming here today and testifying. I am sure this has been terribly difficult for not only you but other family members, and the fact that you are willing to come here today to tell that story is particularly heroic, I believe, so thank you for coming this morning.
Following Mr. Croston will be Richard S. Myers, a professor of law at Ave Maria School of Law in Ann Arbor, Michigan. Before joining the faculty of Ave Maria, Professor Myers was associate counsel with the Thomas More Center for Law and Justice. Prior to that, he was associate professor at the University of Detroit Mercy School of Law, where he taught courses on civil procedure, conflict of laws, constitutional law, Federal jurisdiction, and the First Amendment. Professor Myers also taught at Case Western Reserve University School of Law from July 1986 to July 1992. He has written numerous articles and publications on a wide range of constitutional and legal issues. And we welcome you here this morning, Professor Myers.
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After Professor Myers, we will hear from Juley Fulcher, who is currently with the public policy director, is the public policy director for the National Coalition Against Domestic Violence. Ms. Fulcher previously served as a legislative consultant for the NOW Legal Defense and Education Fund, and she was a Women's Law and Public Policy Fellow at the Georgetown University Law Center Sex Discrimination Clinic. She is a former litigator, and has taught as a visiting professor at the Georgetown University Law Center Domestic Violence Clinic. She also has a Ph.D. in psychology from Johns Hopkins University, and has been a part-time faculty member in the Psychology Department at Towson University for more than 10 years. We welcome you here this morning, Ms. Fulcher.
Our final witness today will be Robert J. Cynkar, an attorney with the D.C. law firm of Cooper, Carvin & Rosenthal. Mr. Cynkar graduated magna cum laude from Princeton University in 1974, and earned his J.D. degree from New York University School of Law in 1977, where he served on the Law Review. After law school, Mr. Cynkar practiced law for 2 years with the law firm of Fried, Frank, Harris, Shriver & Kampelman, then served as a counsel on the staff of the Senate Judiciary Committee for 4 years. Mr. Cynkar was then appointed to serve as an Assistant United States Attorney for the Eastern District of Virginia, a post he held for 2 years before being appointed to serve as a special assistant to then-Attorney General Ed Meese, and then as Deputy Assistant Attorney General from 1985 to 1988. After that, Mr. Cynkar practiced law with the firm of Shaw, Pittman, Potts & Trowbridge before becoming a founding partner of Cooper, Carvin & Rosenthal.
I want to thank all of you for being here with us this morning. I would ask that you please try to summarize your testimony in 5 minutes or less, and without objection, your written statements will be made a part of the permanent hearing record.
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We do have a lighting system here with the lights that are on the desk in front of you, and the yellow light means that you have 1 minute to go, and the red light means that we would appreciate it if you would conclude your testimony. So we will begin this morning with Mr. Croston, and again, we thank you for being here.
STATEMENT OF WILLIAM CROSTON
Mr. CROSTON. Let me start by saying until the hearing started, I forgot that I was in Washington, D.C., the city of politics and all of the opposing views, and I hope to offer a point of view from an average family with my testimony, a nonpartisan point of view, I might say.
My name is William Croston. I am the brother of Ruth Croston. On April 21, 1998, my sister Ruth and her unborn child were murdered by Reginald Falice. As a result of the murder of Ruth and her unborn child, our family had to go through a trial. The trial was the process of giving Falice his day in court, even though Reginald Falice had confessed to the murder of Ruth Croston prior to the trial.
One major disappointing aspect of the trial was that Falice was not charged with the murder of the unborn child Ruth Croston was carrying. Under current law, we simply choose to dismiss the life of the unborn child. In fact, prior to the beginning of the trial, the Honorable Judge Graham C. Mullen indicated that he did not want the jury to know that Ruth Croston was carrying an unborn child.
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While I understand that the intent here is to avoid jury sympathy for the victim, the reality is that the current process dismissed the life of the unborn child and the family's suffering associated with a very real loss. The difficulty of accepting the loss of Ruth Croston and her unborn child is greatly enhanced by the fact that the unborn child was the child of Ruth Croston and Reginald Falice. Reginald Falice knowingly murdered Ruth Croston and their unborn child. However, the current law does not consider the unborn child a part of the irresponsible actions committed by Reginald Falice.
Unfortunately, the thoughts in the minds of some people in society today have reached a point of no respect for life and rights of others. We need to update the laws to conform to the realities of the crimes committed in society today. Today's laws ignore and/or dismiss crimes against the unborn child. We need to update today's out-of-date laws to include consequences for criminals who cause harm to unborn children through acts of violence against the mother.
The important factor to consider in the case of the United States v. Reginald Falice is that Reginald Falice knew Ruth Croston was carrying his unborn child. The question before the Committee and, I would say, even society at large today is, why don't we bring charges against persons who commit these type of acts?
In closing, the Committee should understand that our family will forever be mourning the loss of Ruth Croston and our unborn niece. Our grief will last a lifetime. The emotional effects of the death of our niece resurface each time we hear about another unnecessary act of violence against a pregnant woman. The impact of the irresponsible actions of Reginald Falice will be with me and my family for the rest of our lives.
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I hope that the House of Representatives Committee on the Judiciary will find the wisdom to bring the current law up to date with the reality of the crimes committed in society today. It is imperative that we hold criminals responsible for their acts of violence against pregnant women and their unborn children.
You know, my testimony is really a small summary of the events our family had to go through when we went into court. I am not a legal eagle. I am not a politician. Our expectations when we went into court were very, very simple. What we expected was proper judgment, justice, and sentencing. And the interesting thing about proper justice and sentencing is that it requires that you take into consideration all of the facts in cases that are heard before a court. To simply leave something out really makes no sense, at least not to me.
So, on behalf of my family and all of the silent victims in the form of unborn children who are murdered in this country every year, I hope that you will put aside politics and do what is necessary to have the law passed so that the individuals who are crazy enough to commit these kinds of crimes are held accountable for them.
PREPARED STATEMENT OF WILLIAM CROSTON
Dear Committee Members:
My name is William Croston. I am one of Ruth Naomi Croston's brothers. On April 21, 1998, my sister, Ruthie, and her unborn child were murdered by Reginald Falice. As a result of the murder of Ruthie and her unborn child our family had to go through a trial. The trial was the process of giving Falice his day in court even though Reginald Falice had confessed to the murder of Ruth Croston prior to the trial. One major disappointing aspect of the trail was that Falice was NOT charged with the murder of the unborn child that Ruth Croston was carrying. Under current law we simply choose to dismiss the life of the unborn child. In fact, prior to the beginning of the trial the Honorable Judge Graham C. Mullen indicated that he didn't want the jury to know that Ruth Croston was carrying an unborn child. While I understand that the intent here is to avoid jury sympathy for the victim, the reality is that the current process dismisses the life of the unborn child and the family's suffering associated with a very real loss. The difficulty of accepting the loss of Ruth Croston and her unborn child is greatly enhanced by the fact that the unborn child was the child of Ruth Croston and Reginald Falice. Reginald Falice knowingly murdered Ruth Croston and their unborn child. However, the current law does not consider the unborn child a part of the irresponsible actions committed by Reginald Falice.
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Unfortunately the thoughts in the mind of some persons in today's society have reached a point of no respect for the life and rights of others. We need to update today's laws to conform to the reality of the crimes committed in society today. Today's laws ignore and/or dismiss crimes against the unborn child. Example: United States vs. Reginald Falice. We need to update today's out-of-date laws to include consequence for criminals who cause harm to unborn children through an act of violence against the mother. The important factor to consider in the case of United States vs. Reginald Falice, is that Reginald Falice knew that Ruth Croston was carrying his unborn child. Why not bring charges for violence to the unborn child?
In closing, the Committee should understand that our family will forever be in mourning over the loss of Ruth Croston and our unborn niece. Our grief will last a lifetime. The emotional effect of the death of our niece resurfaces each time we hear about another unnecessary act of violence against a pregnant woman. The impact of the irresponsible actions of Reginald Falice will be with me and my family for the rest of our lives. I hope that the House of Representatives Committee on the Judiciary will find the wisdom to bring the current law up-to-date with the reality of the crime committed in society today. It is imperative that we hold criminals responsible for their acts of violence against pregnant women and their unborn children.
Mr. CHABOT. Thank you very much, Mr. Croston. We appreciate your testimony this morning.
Professor Myers.
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STATEMENT OF RICHARD S. MYERS, PROFESSOR, AVE MARIE SCHOOL OF LAW
Mr. MYERS. Thank you. I am pleased to be here this morning to address the constitutionality of this law. Just a brief word on my background. I have taught constitutional law, among other topics, for the last 15 years at Case Western in Ohio and then at the University of Detroit, and most recently I was privileged to join the faculty of Ave Maria School of Law, a new school that just opened this year in Ann Arbor, Michigan.
When I was invited to testify on the constitutionality of the act, my initial thought was this was a wonderful opportunity to expound on some of the complex, difficult, and weighty constitutional issues of the day: the right of privacy, the scope of Federal power, and federalism. Yet, closer scrutiny revealed that the proposed legislation does not raise any serious constitutional issues. I don't think there is any serious doubt that H.R. 503 would withstand constitutional scrutiny.
The first question that has to be addressed is whether there is an enumerated power that authorizes Congress to pass this law. And, although the scope of congressional authority pursuant to its delegated powers is quite broad, Congress of course does not have unlimited power to legislate in what it perceives to be the national interest.
With the recent revival of judicially enforceable limits upon Congress' commerce power in cases such as Morrison and Lopez, and the narrow reading of Congress' enforcement power under Section 5 in cases like the recent Garrett case, one might expect some serious debate about whether this act is within the scope of Congress' enumerated powers. There is, however, no such issue presented here. This act simply does not implicate those recent developments at all.
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This act does not extend Congress' reach. No conduct whatsoever that is presently free of Federal regulation will be regulated if this act becomes law. No conduct that was lawful is to be made unlawful. The act is essentially a punishment enhancement provision.
I think in that regard it can be best compared to RICO. RICO, too, relies on certain predicate offenses which are then listed in RICO, as does this act, in order to set up what is essentially a punishment enhancement statute. This act relies on these predicate acts for its constitutional hook. If there is any doubt about the constitutionality of this act's reach, it is the question of the constitutionality of these other predicate offenses, not about this act.
I guess the most contentious question is whether this act unconstitutionally restricts the right to abortion as defined by the Supreme Court, but I think it is clear there is nothing in this act that restricts a mother's right to abortion as protected by those cases. There is nothing in this act that in any way inhibits the mother's freedom to have an abortion.
In fact, I think this act promotes the liberty protected by Roe, Casey, and Stenberg. That liberty, recognized by the Supreme Court, obviously does not require a woman to choose an abortion. She might decide to carry her baby to term, and this act promotes that freedom by creating a criminal penalty for acts that result in the death or bodily injury of her unborn child.
The argument has been suggested that this act is suspect because it attacks the premises of Roe, and because it is in irreconcilable tension with the right of reproductive choice. The theory here seems to be that the act is constitutionally infirm because it adopts a different theory about when human life begins.
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But I think it is clearly a mistake to say that Roe and the subsequent cases set forth an understanding of the origins of human life that must be comprehensively applied in every other area of the law. Roe did state that the State of Texas could not, by adopting one theory of life, override the rights of the pregnant woman.
But this act does not interfere with, much less override, the rights of the pregnant woman. It is true that Roe reflects the view that, with respect to abortion, the unborn child has no rights that the pregnant mother is bound to respect, yet this does not mean that one is required to submit one's intellect and will to the Court's premises in every other area of the law.
This understanding has been explicitly confirmed by the U.S. Supreme Court in the Webster case. In Webster, the Court made it clear that its abortion cases meant only that a State cannot justify an abortion regulation otherwise invalid under Roe on the ground that it embodied the State's view of when life begins. But on the understanding expressed in Webster, Congress is free to conclude and to enforce, outside the parameters of Roe, its view that life begins at conception.
Numerous States, as has already been mentioned, have already taken the step that Congress is considering here, and all of these State statutes have withstood constitutional challenge. I think the best example is a Minnesota case, State v. Merrill, where the Minnesota Supreme Court upheld the constitutionality of Minnesota's unborn child homicide statute.
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The Court there noted—this is the Minnesota Supreme Court—that ''Roe v. Wade protects the woman's right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.'' The Court there concluded that the fetal homicide statutes seek to protect the unborn, and they do so without impinging directly or indirectly on a pregnant woman's privacy right.
Precisely the same analysis applies to this act. This act recognizes the reality that an unborn child is a human being and that killing or injuring an unborn child is a wrong that ought to be separately punished by Federal law. There is nothing in the Constitution that prevents Congress from taking this very modest step to protect what everyone knows is a human life.
Thank you.
[The prepared statement of Mr. Myers follows:]
PREPARED STATEMENT OF RICHARD S. MYERS
I am pleased to address the question of the constitutionality of the Unborn Victims of Violence Act of 2001. [Hereinafter, ''Act''.]
When I was invited to testify on the constitutionality of this Act, my initial thought was that this would be a great opportunity to pontificate on some of the complex and weighty constitutional issues of the day—abortion, the scope of federal power, and federalism. Yet, closer scrutiny revealed that the proposed legislation does not raise any serious constitutional issues. I do not think there is any serious doubt that H.R. 503 would withstand constitutional scrutiny. The constitutional issues were fully addressed by Professor Gerard Bradley in his testimony on an earlier version of this legislation and I have drawn in certain instances from his testimony in preparing these remarks. See The Unborn Victims of Violence Act: Hearings on H.R. 2436 Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 106th Cong., July 21, 1999 (statement of Professor Gerard V. Bradley, Notre Dame Law School).
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The first question that needs to be addressed concerning the constitutionality of the Act is not whether it violates a right protected by the Constitution, including the right articulated by the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973). That would be the first, and only interesting, question if a government with the power to legislate for the general welfare (or put differently if a government that possessed a general police power) passed a law like this Act. Our state governments have such power and more than half the states have effectively done so, either by separate enactment or by subsuming harm to the unborn within homicide protections of murder or manslaughter. As I'll discuss in more detail below, courts throughout the country have found these laws to be compatible with the right articulated in Roe.
Our Constitution creates a Federal Government of enumerated powers. Of course, the scope of congressional power pursuant to its delegated powers (particularly the commerce power and the spending power) is quite broad. Despite this, it remains true, as the structure of the Constitution and the 10th Amendment attest, that Congress does not have unlimited power to legislate in what it perceives to be the national interest. And, recent cases make it clear that there are judicially enforceable outer limits on the scope of the commerce power. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). Congress possesses no general power to protect persons, including unborn persons, against private violence. The Fourteenth Amendment does guarantee to all ''persons'' the ''equal protection'' of the laws, including state laws against assault and homicide. And, Section 5 of the Fourteenth Amendment grants Congress the power to enforce this substantive guarantee by enacting ''appropriate legislation,'' although this congressional enforcement authority has recently been given a rather narrow interpretation. See Board of Trustees v. Garrett, 2001 U.S. Lexis 1700 (February 21, 2001); City of Boerne v. Flores, 521 U.S. 507 (1997). On appropriate findings by Congress that some identifiable class of persons—say, a racial or ethnic minority, or a particularly vulnerable and politically powerless group, like the infirm or unborn—is, on a widespread basis, unequally exposed to private violence by exclusion from, or lax enforcement of, state homicide laws, direct federal protection against such discrimination would be constitutional.
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With this as background, the first question is whether there is an enumerated power that authorizes the Act. With the recent revival of judicially enforceable limits upon Congress's commerce power in cases such as Morrison and Lopez and the narrow reading of Congress's ''enforcement'' power under Section 5 of the Fourteenth Amendment in Garrett and City of Boerne v. Flores, one might expect some serious debate about whether the Act is within the scope of one of Congress's enumerated powers. There is, however, no such issue presented here. The Act does not implicate these recent developments at all, and is not subject to any doubt about its constitutionality because of them. The Act does not extend Congress's reach; no conduct whatsoever that is presently free of federal regulation will be regulated if the Act becomes law. No conduct that was lawful is to be unlawful; no conduct that was legal is to be illegal. The Act is essentially a punishment enhancement provision.
The Act is perhaps best compared in this regard to the Racketeer Influenced and Corrupt Organizations Act—RICO. RICO, too, relies upon (what it expressly calls) ''predicate'' offenses—and then lists them, as does the Act—in order to set up what, like the Act, is essentially an enhanced punishment statute. The Act relies upon predicate acts for its constitutional hook, one might say. If there is any question about the constitutionality of its reach, then, it is a question of the constitutionality of the ''predicate'' offenses, and not about this Act.
(There is one question to be addressed concerning the constitutionality of the reach of this Act, where federal authority is predicated entirely upon the identity of an individual attacked. I postpone that question until later.)
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The Act relies upon established criminal law principles of transferred intent to affix the enhanced penalty to an already criminal act. The basic idea is simple: a bad actor with the requisite malice to, in the language of the bill, ''violate[ ] any of the provisions of law listed in subsection (b),'' may be charged with an additional violent offense, without evidence of malice towards or even knowledge of, the baby in utero where the wrongdoer in fact causes death or bodily injury to the unborn child. This established principle is perhaps classically illustrated in felony murder statutes, where the malice manifested in the commission of a felony is transferred to what may be even an accidentally caused death. So, for example, an arsonist who honestly believes the building he torches is unoccupied is nonetheless indictable for felony murder if, by chance, someone is inside, and is killed.
I suppose the most contentious constitutional question is whether the Act unconstitutionally restricts the right to abortion as defined by the Supreme Court in Roe v. Wade, Planned Parenthood v. Casey, 505 U.S. 833 (1992), and Stenberg v. Carhart, 120 S. Ct. 2597 (2000). But, there is nothing in the Act that restricts a mother's right to an abortion as protected by these cases. Section (c) of the Act explicitly declares an intention to leave the abortion liberty unaffected. I think this section clearly immunizes from any prosecution under the Act the mother and all those cooperating with her in obtaining an abortion. This section also immunizes from prosecution under the Act anyone who provides medical treatment to the pregnant woman or her unborn child. Moreover, the scare-tactics that this Act will empower so-called ''pregnancy police'' are demolished by section (c)(3), which immunizes from prosecution under the Act the woman for any actions taken with respect to her unborn child, even when her actions violate the predicate criminal acts and cause the death or bodily injury of her unborn child. There is no thing in the Act that inhibits in any way the mother's freedom to have an abortion.
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In fact, the Act promotes the liberty protected by Roe, Casey, and Stenberg. That liberty obviously does not require a woman to choose an abortion; she might choose to carry her baby to term. The Act promotes just that freedom by creating a criminal penalty for acts that result in the death or bodily injury of her unborn child.
The argument has been suggested that the Act is constitutionally suspect because it ''attacks the premise of Roe v. Wade'' and because it ''is in irreconcilable tension with the right of reproductive choice.'' The theory here seems to be that the Act is constitutionally infirm because it adopts a different theory about when human life begins.
But, it is clearly a mistake to say that Roe and subsequent cases set forth an understanding of the origins of human life that must be comprehensively applied in every other area of the law. The Roe Court did say that it ''need not resolve the difficult question of when life begins.'' 410 U.S. at 159. The Court went on to say that ''[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.'' Id. The Court did state that ''we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.'' Id. at 162.
But, the Act in question here does not at all interfere with—much less ''override''—the rights of the pregnant woman. It is true that Roe reflects the view that, with respect to abortion, the unborn child has no rights that the pregnant mother is bound to respect. Cf. Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857).Yet, this does not mean that one is required to submit one's intellect and will to the Court's premises in every other area of the law.
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Abraham Lincoln's comments on the Supreme Court's decision in the Dred Scott case are instructive. In 1858, Lincoln said that he ''opposed that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.'' Moreover, President Lincoln's First Inaugural Address made the point even more clearly. After commenting that he accepted the binding effect of the Supreme Court's decisions on the parties to the decision and that he accepted that the Court's decisions ''are also entitled to very high respect and consideration in all parallel cases,'' President Lincoln went on to say ''At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.'' See G. Gunther & K. Sullivan, Constitutional Law 22 (13th ed. 1997) (quoting those speeches by Abraham Lincoln).
The point here is obvious. Roe does not set forth an understanding of the origins of human life that must be comprehensively applied in every other area of the law. Fortunately, this understanding has been explicitly confirmed by the United States Supreme Court in its 1989 decision in Webster v. Reproductive Health Services, 492 U.S. 490 (1989). In Webster, the state of Missouri had legislated that the ''life of each human being begins at conception'', and that ''unborn children have protectable interests in life, health, and wellbeing.'' The Missouri statute required that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Constitution and Supreme Court precedent. The Eighth Circuit held this provision unconstitutional on the view that this portion of the Missouri law ''impermissibl[y]'' adopted a ''theory of when life begins.'' But the Supreme Court reversed this part of the Eighth Circuit holding, stating that its own prior decisions, including Roe, meant ''only that a state could not ''justify'' an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the state's view of when life begins.'' 492 U.S. at 506. The United States Supreme Court reversed because the legislative declaration about when human life begins did ''not by its terms regulate abortion or any other aspect of . . . [the plaintiffs'] medical practice.'' Id. Similarly, because this Act is in no way questionable under Roe apart from the viewpoint issue, the matter is settled: Congress is as free as was the state of Missouri to conclude and to enforce outside the parameters of Roe its view that life begins at conception. If there remains something anomalous about the situation, it is an anomaly engendered by Roe, and not by this Act.
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The state court decisions addressing the constitutionality of state unborn child homicide statutes confirm this view. For example, in State v. Merrill, 450 N.W. 2d 318 (Minn.), cert. denied, 496 U.S. 931 (1990), the Minnesota Supreme Court upheld the constitutionality of Minnesota's unborn child homicide statutes. The Court noted that ''Roe v. Wade protects the woman's right of choice; it does not protect, much less confer on an assailant, a third-party unilateral right to destroy the fetus.'' 450 N.W. 2d at 322. The Court concluded that ''the fetal homicide statutes seek to protect the 'potentiality of human life,' and they do so without impinging directly or indirectly on a pregnant woman's privacy rights.'' Id. Precisely the same analysis applies to this Act.
Now, the postponed question. What if federal jurisdiction is predicated entirely upon the identity of a particular individual, say the President or a cabinet officer or foreign dignitary? Is there a satisfactory basis for enhanced punishment of a violator of, for example, 18 U.S.C. §1751, one who attacks the President and, who as a result of that felonious conduct, injures or kills her unborn child?
The answer must start with the recognition that, strictly speaking, it is only the discharge of federal functions, and not persons just as such, that grounds federal criminal jurisdiction even in cases like this example. Protection of federal officers and jurors and foreign visitors of a certain rank is justified by virtue of the national interest in protecting the functions that those persons perform, or (to put it differently) the offices whose duties they discharge. These functions are impeded by assaults upon the person of the various officers, as well as by threats to them and even to their families. So, it would, I believe, be constitutional to extend federal protection to the entire families of at least certain federal officers, to insure that nothing distracted them or caused them to be derelict in their duty. It seems a reasonable judgment for Congress to make that there is a distinct, punishable harm to the discharge of federally imposed duties where the unborn child of a protectable person is harmed or destroyed. This would seem to be the reasoning behind 18 U.S.C. §115, which protects members of the immediate family of a United States official or law enforcement officer against assault, murder, and kidnapping.
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Mr. CHABOT. Thank you very much, Professor.
Ms. Fulcher.
STATEMENT OF JULEY FULCHER, DIRECTOR OF PUBLIC POLICY, NATIONAL COALITION AGAINST DOMESTIC VIOLENCE
Ms. FULCHER. Good morning. On behalf of the National Coalition Against Domestic Violence, I thank you for the opportunity to address the concerns of battered women who experience violence during their pregnancies.
The National Coalition Against Domestic Violence is a nationwide network of approximately 2,000 domestic violence shelters, programs, and individual members who are working on behalf of battered women and their children. My role here today is to advocate for increased safety for battered women, which in turn will lead to healthier pregnancies and births.
Unfortunately, the Unborn Victims of Violence Act does not provide the protection battered women need to obtain safety. Historically, one of the major obstacles to eradicating domestic violence from the lives of women has been the unwillingness of the legal system to treat domestic violence as a serious crime.
The hard work of dedicated domestic violence advocates on the front lines has slowly brought about changes in the way we treat the crime of domestic violence. States began toughening their laws in the 1980's, and in 1994 Congress gave an important boost to this trend by passing the Violence Against Women Act and committing to a Federal investment in protecting battered women and their children. As a result, we have seen increased criminal prosecutions of domestic violence nationwide.
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Last year, Congress recognized the importance of continuing and expanding this national campaign against domestic violence by passing the Violence Against Women Act of 2000 with overwhelming bipartisan support. It is important that we continue this trend and recognize domestic violence threats, assaults, and murders as the serious crimes that they are.
According to a summary of recent studies, between 4 percent and 8 percent of all pregnant women in this country are battered by the men in their lives, with the highest rates of violence being experienced by pregnant adolescents. As a litigator on domestic violence cases exclusively for several years, I had the opportunity to work on a number of cases where assaults were committed while the woman was pregnant, and no matter how many of these stories I hear, it never ceases to sicken me.
I should note, though, that in all of those cases, by the batterer's actions and words, his intent was clear to cause physical and emotional injury to the woman and establish undeniably his power to control her. We, as a society, are right to want to address this problem and protect a woman from such a fate. However, our response should be one that truly protects the pregnant woman by early intervention before such a tragedy occurs.
The Unborn Victims of Violence Act is not designed to protect women. The goal of the act is to create a new cause of action on behalf of the unborn. The result is that the crime committed against a pregnant woman is no longer about the woman victimized by violence. Instead, the focus often will be shifted to the impact of that crime on the unborn fetus, once again diverting the attention of the legal system away from domestic violence or other violence against women.
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Moreover, passage of the Unborn Victims of Violence Act would set a dangerous precedent which could easily lead to statutory changes that could hurt battered women. The bill would, for the first time, federally recognize that the unborn fetus could be the victim of a crime. It would not be a large intellectual leap to expand the notion of unborn fetus as victim to other realms. In fact, some States have already made that leap, and in those States women have been prosecuted and convicted for acts that infringe on State-recognized legal rights of a fetus.
While the Unborn Victims of Violence Act specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even for violence perpetrated on her by a batterer, under a ''failure to protect'' theory.
Moreover, a battered woman can be intimidated or pressured by her batterer not to reveal the cause of a miscarriage. If she is financially or emotionally reliant on her batterer, she may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for a crime as serious as murder. The long-term public health implications of such a policy would be devastating for victims of domestic violence and all women.
The harmful potential of this bill unfortunately is balanced by little or no additional protections for battered women. The vast majority of domestic violence threats, assaults, and murders are prosecuted by the States. While there are important Federal laws to prosecute interstate domestic violence, interstate stalking, interstate violation of a protection order, they occur in a very small number of cases relative to the incidence of domestic violence nationwide. In fact, prosecutions have only occurred, or we have only had 130 indictments over the past 6 years since those laws were created.
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I see that my time is up. May I continue?
Mr. CHABOT. If you could wrap up in a relatively short period, we would appreciate it.
Ms. FULCHER. Okay. Federal programming already exists that impacts the lives of battered women. It is doing a fabulous job. We have seen a 21 percent decrease in domestic violence since the Violence Against Women Act was passed in 1994.
Unfortunately, we came up more than $200 million short of full funding for Violence Against Women programming in fiscal year 2001. That is the precise kind of response that Congress should be giving to address domestic violence effectively. That will be much more protective of battered women than the current legislation.
Thank you.
[The prepared statement of Ms. Fulcher follows:]
PREPARED STATEMENT OF JULEY FULCHER
Good morning Mr. Chairman and Members of the Subcommittee. My name is Juley Fulcher and I am the Public Policy Director of the National Coalition Against Domestic Violence (NCADV). On behalf of the Coalition, I thank you for the opportunity to address the concerns of battered women who experience violence during their pregnancies. The National Coalition Against Domestic Violence is a nationwide network of approximately 2,000 domestic violence shelters, programs and individual members working on behalf of battered women and their children. My role here today is to advocate for increased safety for battered women, which in turn will lead to healthier pregnancies and births. Unfortunately, the ''Unborn Victims of Violence Act'' does NOT provide the protection that battered women need to obtain safety.
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Historically, one of the major obstacles to eradicating domestic violence from the lives of women has been the unwillingness of the legal system to treat domestic violence as a serious crime. The hard work of dedicated domestic violence advocates on the front lines has slowly brought about a change in the way we treat the crime of domestic violence. States began toughening laws on domestic violence and enforcing existing laws in the late 1980s. In 1994, Congress gave an important boost to this trend by passing the Violence Against Women Act(see footnote 1) and committing to a federal investment in protecting battered women and their children. As a result, we have seen increased criminal prosecutions of domestic violence nationwide. Last year, Congress recognized the importance continuing and expanding the national campaign against domestic violence by passing the Violence Against Women Act of 2000(see footnote 2) with overwhelming bi-partisan support. It is important that we continue this trend and recognize domestic violence threats, assaults and murders as the serious crimes that they are.
According to a summary of recent studies, between 4% and 8% of all pregnant women in this country are battered by the men in their lives(see footnote 3) with the highest rates of violence being experienced by pregnant adolescents.(see footnote 4) As an attorney representing victims of domestic violence, I have seen the effects of this violence first hand. Several years ago, a client of mine lost a pregnancy due to domestic violence. There was a history of domestic violence in her case and she had sought assistance several times. While she was 8 months pregnant, her batterer lifted her up in his arms and held her body horizontal to the ground. He then slammed her body to the floor causing her to miscarry. No matter how many stories like this I hear, it never ceases to sicken me. I should note that in this case and others I have worked on, it was clear by the batterer's words and actions that his intent was to cause physical and emotional injury to the woman and establish undeniably his power to control her. We, as a society, are right to want to address this problem and protect women from such a fate. However, our response to the problem should be one that truly protects the pregnant woman by early intervention before such a tragedy occurs.
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The ''Unborn Victims of Violence Act'' is not designed to protect women. The goal of the Act is to create a new cause of action on behalf of the unborn. The result is that the crime committed against a pregnant woman is no longer about the woman victimized by violence. Instead the focus often will be shifted to the impact of that crime on the unborn fetus, once again diverting the attention of the legal system away from domestic violence or other violence against women.
Moreover, passage of the ''Unborn Victims of Violence Act'' would set a dangerous precedent which could easily lead to statutory changes that could hurt battered women. This bill would, for the first time, federally recognize that the unborn fetus could be the victim of a crime. It would not be a large intellectual leap to expand the notion of unborn fetus as victim to other realms. In fact, some states have already made that leap and, in those states, women have been prosecuted and convicted for acts that infringe on state recognized legal rights of a fetus. While the ''Unborn Victims of Violence Act'' specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even for the violence perpetrated on her by her batterer under a ''failure to protect'' theory. Moreover, a battered woman can be intimidated or pressured by her batterer not to reveal the cause of her miscarriage and, if she is financially or emotionally reliant on her batterer, may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for an offense as serious as murder. The long-term public health implications of such a policy would be devastating for victims of domestic violence and all women.
The harmful potential of this bill is, unfortunately, balanced by little or no additional protections for battered women and other women victimized by violence. The vast majority of domestic violence threats, assaults and murders—like other crimes of violence—are prosecuted by the states. While there are important federal laws to prosecute interstate domestic violence,(see footnote 5) interstate stalking(see footnote 6) and interstate violation of a protection order,(see footnote 7) these are stop-gap statutes which are appropriately applied in a very small number of cases relative to the incidence of domestic violence nationwide. In fact, the federal domestic violence criminal statutes have been called into play only 130 times in the last six years.(see footnote 8) As the ''Unborn Victims of Violence Act'' would only apply in federal cases, the change in the law would do little, if anything, to address the crime of domestic violence in our country or other assaults on pregnant women.
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On the other hand, federal programming already exists that positively impacts the lives of hundreds of thousands of battered women and their children. Since the original Violence Against Women Act was passed in 1994, we have seen a 21% decrease in intimate partner violence.(see footnote 9) Unfortunately, available services still do not come close to meeting the needs of victims. In a recent NCADV survey, as many as two-thirds of the victims seeking assistance at domestic violence shelters and programs were turned away last year due to lack of space. Even though Congress passed the Violence Against Women Act of 2000 in October, stepping up the campaign against domestic violence and sexual assault, the Fiscal Year 2001 appropriations for Violence Against Women Act programming fell more than 200 million dollars short of the authorized amounts, with funding for the state formula grants which aid local prosecutions being funded at the lowest level since 1997. Moreover, funding for programs critical to the sustained safety of battered women such as transitional housing received no funding at all. If the United States Congress is serious about protecting women from domestic violence, whether they are pregnant or not, you must fully fund these programs that have already made so much of a difference in the lives of victims nationwide.
I hope you agree with me that the crime of domestic violence is a horrendous one, not only in terms of the physical impact of the violence, but also in terms of its emotional, psychological, social and economic toll upon its victims. Certainly, there can be no doubt that a pregnancy lost due to domestic violence greatly increases that toll on a battered woman. We at the National Coalition Against Domestic Violence wish to fully recognize and respond to that loss. However, the more appropriate means of dealing with this problem with respect to battered women is to provide comprehensive healthcare, safety planning and domestic violence advocacy for victims. This solution would maintain the focus of any criminal prosecution on the intended victim of violence—the battered woman—and make an important affirmative step toward providing safety for her. If Congress wishes to protect the pregnancy, the way to do that is by protecting the woman.
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Mr. CHABOT. Thank you very much.
Mr. Cynkar.
STATEMENT OF ROBERT J. CYNKAR, ATTORNEY AT LAW, COOPER, CARVIN & ROSENTHAL
Mr. CYNKAR. Thank you, Mr. Chairman, and Members of the Subcommittee. I appreciate the opportunity to be here today.
I would respectfully begin with an exhortation to you and to actually the Members of the full Committee and the whole House. In my view, this legislation is not only, as a technical matter, squarely within the mainstream of well-established principles of criminal law, but it is lawmaking in the furtherance of the most fundamental and most noble ideals of all law and particularly the criminal law.
It does not take a law degree to recognize that committing acts of violence against others is a most pernicious form of lawlessness, striking at the dignity of the victims as human beings and at the order and stability of society. That is why it is the most elementary purpose of the law to punish such unjustified violence against our neighbors. We all expect the law, if it does nothing else, to keep us safe, to preserve us from the brutality of what the philosophers have called the ''state of nature'' outside of civil society.
Our unborn offspring now fall outside the protection of Federal law, and H.R. 503 is designed to remedy that failure. The bill does that by recognizing that a violent act against a pregnant woman has two victims, the mother and her unborn child, and so should constitute two distinct offenses in Federal law.
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It is important to underscore this point: No new crimes are created by this bill. No new judgments concerning the acts that should result in criminal liability are embedded in this legislation. Only one new thing need be proved: that an unborn child suffered bodily injury or death due to conduct that violates one of several specified Federal laws.
Now, there are several issues with the text of the bill that have already been raised by the Members of the Subcommittee, and I would like to briefly address them because I think in both respects—and that is the fact that the perpetrator does not need to know that the victim was pregnant and also that the perpetrator need not have intent to harm the unborn child—both of those concepts are squarely, I think, within the mainstream of well-established principles of criminal law.
This first issue, that no proof that the perpetrator knew that the victim was pregnant is needed, is a variation of the felony murder doctrine under which an individual who commits a dangerous felony which unintentionally results in the death of a person is guilty of murder.
One example of this in Federal law can be found in the Federal murder statute, 18 U.S.C., Section 1111, under which a killing ''committed in perpetration of any arson'' is considered first degree murder. Thus, a person can be found guilty of murder under Federal law if he commits arson and someone dies, even if that person had no idea someone was in the building he set aflame.
The second issue, the fact that the perpetrator does not have to have a specific intent to harm the unborn child, can be addressed I think from several perspectives. Transferred intent is one concept. I find the same notion is better described by the understanding of general versus specific intent in criminal law, and that general intent really is what is needed to support conviction of most crimes of violence.
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Again referring to that Federal murder statute, murder is a homicide, the killing of a human being ''with malice aforethought.'' Malice aforethought is simply the intent to commit a homicide without any justification, excuse, or mitigation. No element of murder requires that the perpetrator have the specific intent to kill the person who was in fact killed.
And I think, as the Chairman pointed out in his opening statement, if John shoots at Joe, trying to kill him, but hits and kills Tom instead, John is still guilty of murder even if he never saw the person who was ultimately hit with the bullet. The same is true for H.R. 503. If a person attacks a pregnant woman with an intent to kill, and also kills her unborn baby, that person would be guilty of the murders of both the unborn child and her mother.
Conceptually, then, H.R. 503 proposes no break with established Federal criminal law. The elements that a prosecutor must prove are set out in the law. The prosecutor would have to prove causation, intent, and I don't think there is anything about the attributes of the victim protected by this bill that creates unique problems of proof. But even if it did, would such mechanical issues of court procedure mean we should disqualify such victims from the protection of the law? When have we stayed our hand in extending the rule of law because executing it might be difficult?
Given what I believe to be the fundamental justice of this bill, it is perhaps, and in light of comments today, my vain if not naive hope, that the backdrop of the abortion debate will not poison consideration of this legislation. There are reasonable, well-meaning people on both sides of the abortion question, and I would say that this bill does not implicate that issue.
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Perhaps a few people at the extreme ends of that debate might object for some reason: the extreme pro-choicer because the bill recognizes—my time has expired. If I could just finish my sentence.
Mr. CHABOT. Yes, if you can just wrap up.
Mr. CYNKAR. My point is simply this. Extreme people, extreme pro-lifers, extreme pro-choicers, might object to this bill for various reasons: concern on the pro-life side that this bill does nothing to disturb abortion; on the pro-choice side, that somehow we will undermine the principles supporting Roe.
I don't think that is true. Most Americans, even those who are pro-choice, are pro-choice in my experience because they have grave qualms about the government interfering with this intimate decision about carrying a child to term, and not because they are pro-abortion per se. I think that vast middle ground of American public opinion would support this legislation.
Thank you.
[The prepared statement of Mr. Cynkar follows:]
PREPARED STATEMENT OF ROBERT J. CYNKAR, ESQ.
Chairman Chabot, Members of the Subcommittee:
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My name is Robert Cynkar. I am a founding partner of the Washington, D.C. law firm of Cooper, Carvin & Rosenthal. I have been invited to testify today based on my experience as a former federal prosecutor who has served in a variety of roles in federal law enforcement and prosecution. During my career I have had the opportunity to serve as an Assistant United States Attorney in the Eastern District of Virginia, as a Special Assistant to the Attorney General responsible for liaison with all the United States Attorneys across the country, and as a Deputy Assistant Attorney General in charge of the Office of Consumer Litigation, the only component in the Justice Department's Civil Division with criminal jurisdiction.
I would respectfully begin with an exhortation to the Members of this Subcommittee, and indeed to the Members of the full Judiciary Committee, and of the whole House. This legislation, the Unborn Victims of Violence Act, is not only as a technical matter squarely within the mainstream of well-established principles of criminal law, but it is law-making in furtherance of the most fundamental, most noble ideals of all law. Who here can doubt that the most basic mission of the law is to establish justice, and through that justice to preserve peace and order in civil society? It is does not take a law degree to recognize that committing acts of violence against others is a most pernicious form of lawlessness, striking at the dignity of the victims as human beings and at the order and stability of society. That is why it is a most elementary purpose of the law to punish such unjustified violence against our neighbors. We all expect the law, if it can do nothing else, to keep us safe, to preserve us from the brutality of what the philosophers have called the ''state of nature'' outside of civil society.
It is shameful, if not an outrage, that certain of our fellow beings are deprived of this fundamental protection of the law because they are not seen, because they cannot protest, or, put in terms familiar to you, because they cannot write their Member of Congress or Senator. Our unborn offspring—''fetus'' simply is Latin for offspring or young—now fall outside the protection of federal law, and H.R. 503 is designed to remedy that failure.
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The bill does that by recognizing that a violent act against a pregnant woman has two victims, the mother and her unborn child, and so should constitute two distinct offenses in federal law. It is important to underscore this point: no new crimes are created by this bill. No new judgments concerning the acts that should result in criminal liability are embedded in this legislation. Only one new thing need be proved, that an unborn child suffered bodily injury or death due to conduct that violates one of several specified federal laws.
Two provisions of H.R. 503 might prompt a challenge to this observation. First, the bill makes it clear that the perpetrator is guilty of the separate offense against the unborn child even if the perpetrator did not know that the woman who is the victim was pregnant, and, second, the perpetrator is guilty even if the perpetrator did not intend to harm the unborn child. Don't these provisions undermine the standard criminal intent that must be established to convict someone of a crime?
The short answer to this question is no. In fact, these provisions closely reflect well-established principles of criminal law. The first provision—that no proof that the perpetrator knew that the victim was pregnant is needed—is a variation of the felony-murder doctrine, under which an individual who commits a dangerous felony, which unintentionally results in the death of a person, is guilty of murder. One example of this in federal law can be found in the federal murder statute, 18 U.S.C. §1111, under which a killing ''committed in the perpetration of . . . any arson'' is considered first degree murder. Thus a person can be found guilty of murder under federal law if he commits arson and someone dies, even if that person had no idea someone was in the building he set aflame.
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The second provision—that no proof is required that the perpetrator intended to harm the unborn child—conforms to the understanding of the ''general,'' as opposed to a ''specific,'' intent that supports conviction of most crimes of violence. Again referring to the federal murder statute, murder is homicide (the killing of a human being) ''with malice aforethought.'' ''Malice aforethought'' is simply the intent to commit homicide without any justification, excuse, or mitigation. No element of murder requires that the perpetrator have the specific intent to kill the person who in fact was killed. Thus if John shoots at Joe, trying to kill him, but hits and kills Tom instead, John is guilty of murder. Likewise, under H.R 503, if a person attacks a pregnant woman with intent to kill, and also kills her unborn baby, that person would be guilty of the murders of both the unborn child and her mother.
Conceptually, then, H.R. 503, proposes no break with established federal criminal law. Rather, it ensures that unborn children have the benefit of that law. It is not surprising that H.R. 503 as a practical matter poses no new or special challenges to the prosecution of a crime. The elements that a prosecutor must prove are already set out in each substantive provision of federal criminal law, which would equally define the offense against the unborn child. The prosecution would have to prove that the wrongful act of the defendant caused the unborn baby's death or bodily injury, to be sure, but such proof of causation is required for the prosecution of almost every crime.
Speaking not only as a former prosecutor, but as one who continues to earn his living as a trial lawyer, none of the provisions of H.R. 503 create any new problems in the dynamics of a criminal trial. Causation and intent are matters to be proved in any criminal proceeding, matters that may be easy to prove in some cases, and more difficult to prove in others. There is nothing about the attributes of the victim protected by H.R. 503—the unborn child—that to my mind creates unique problems of proof. But even if it did, would such mechanical issues of court procedure mean we should disqualify such victims from the protection of the law? When have we stayed our hand in extending the rule of law because executing it might be difficult?
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Given what I believe to be the fundamental justice of this bill, it is my earnest hope that the backdrop of the abortion debate not poison consideration of H.R. 503. There are reasonable, well-meaning people on both sides of the abortion question, a question that H.R.503 does not affect. The substantive provisions of the bill cannot be read to even remotely implicate a woman's right to choose to have an abortion. If that were not enough, the bill expressly prohibits the prosecution of any acts related to an abortion.
Perhaps the few people at the extreme ends of the abortion debate might find H.R. 503 objectionable for some reason, the extreme pro-choicer because the bill recognizes the value of protecting unborn children where the mother does not wish to terminate her pregnancy, and the extreme pro-lifer because the bill leaves the current legal protection for abortion undisturbed. However, I believe the vast majority of Americans who are more in the mainstream, even if they differ over our legal policy concerning abortion, would agree that H.R. 503 is an appropriate step. Surely the vast majority of pro-choice individuals are not pro-abortion per se, but rather have grave qualms about the government interfering with a woman's decisionmaking concerning such an intimate decision as bringing a baby to term. That view is hardly at odds with this bill, which, after all, punishes those who would take away a mother's right to choose by doing harm to her baby. And the majority of pro-life individuals would applaud the recognition of the right to life of an unborn child even under the modest scope of H.R. 503. In short, this is not an abortion bill, and I believe that the overwhelming majority of Americans engaged in that issue will not see it as such.
H.R. 503 is in many ways a modest bill, filling a scandalous gap in our law, that I would respectfully submit merits the support of every Member of this House. Thank you.
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Mr. CHABOT. Thank you very much. And now the Members of the Subcommittee will have an opportunity to have 5 minutes each to ask any questions of any panel members. I will recognize myself for 5 minutes.
Mr. Myers, there have been some allegations, especially in the opening statements, that this legislation obviously doesn't pass constitutional muster, things of that nature, and you addressed that to some extent in your opening statement. Is there any question in your mind that it would pass constitutional muster?
Mr. MYERS. No, I really don't think that there are any serious questions about the constitutionality of the law, and I think that one place to test that perhaps is in the litigation about the constitutionality of similar State laws. All of those laws have been universally upheld by the courts, I think under well-established principles of constitutional law.
The mistake, I think, perhaps is to think that Roe v. Wade sets forth some premises that have to be applied in every other area of the law, and I think that just is a mistake. Roe v. Wade just says that the States cannot adopt a certain view of the origins of human life when doing so will override the pregnant woman's opportunity to get an abortion, but in other areas of the law such as criminal law, the States are perfectly free to act on different assumptions as long as they're not interfering with the woman's right.
And this law, I don't think it could be clearer, excludes the abortion situation. I think it addresses Mr. Conyers' point well. It does not try to pit the pregnant woman against the unborn child at all. It doesn't set them in conflict at all. What it does is protect, vis-a-vis third-party criminal actors, the unborn child, and I think that there is just no serious doubt about its constitutionality.
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Mr. CHABOT. Thank you.
Ms. Fulcher, let me ask you a question. Let me take a case, a hypothetical situation. Let's assume that a woman had a baby at the hospital and she is leaving the hospital, carrying the baby out, and she is attacked by the father whom perhaps she is not married to, who doesn't want to pay child support, and he grabs the child away and kills the child as she is leaving the hospital. I assume that you would believe that he should be charged with murdering that child. Is that correct?
Ms. FULCHER. Yes.
Mr. CHABOT. Okay. Now, let's say it is 3 days earlier than that. Her water has broke, she is on her way to the hospital, she arrives at the hospital, is going in the door, and let's say the guy at that point attacks her, prior to her actually delivering the baby. He punches her in the stomach, similar to the case that happened up in Dayton on the Wright-Patterson Air Force Base. He punches her in the stomach. She is harmed, but not killed, but the baby dies prior to that. It is your contention that he ought to be charged for domestic violence, but that the life of that child, there should not be any additional crime for having killed that baby. Is that correct?
Ms. FULCHER. I am not here to testify about the point at which we should be considering that an additional crime, although I will say that in those circumstances I am not saying that a judge or a jury should not be able to take that into consideration when determining the penalty for the particular crime that is happening.
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What I am saying is that this particular piece of legislation does very little to help women who are battered out in the United States. Very, very, very few cases would be implicated by this statute, where on the other hand if we were devoting our resources to trying to stop domestic violence, which is more than a single crime but in fact a pattern of behavior, hopefully we would be able to intervene long before it reaches that situation.
Mr. CHABOT. You are opposed to the State laws that deal with this as well, correct?
Ms. FULCHER. I am not actually familiar with all the different State laws that address this.
Mr. CHABOT. All right, but in your view, you do not believe there should be a specific crime against that child as she would go into the hospital?
Ms. FULCHER. That is correct.
Mr. CHABOT. Okay. Thank you.
Mr. Croston, you had mentioned that it was one of the concerns of your family, one thing that made this—obviously the thing was a terrible incident—but that family members were also concerned because there was no additional crime for this person having killed the child. How would it have been different or what difference would it have made, what would that have meant to the family, if there could have been charge for that?
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Mr. CROSTON. Well, from our point of view——
Mr. CHABOT. Could you pull the mike over there? Thank you.
Mr. CROSTON. From our point of view Mr. Falice was only charged with the death of Ruth, and the reality is, he knew that she was carrying the unborn child. It is just disappointing that you just overlook that. I mean, you know, you are basically saying that that child is not a person, when in fact you know the child is a person. And like I said earlier, I am not a legal eagle with regards to what is in the law on a lot of these different things, but that is just an average family's point of view on the matter.
Mr. CHABOT. Right, but that made the trauma even worse, then?
Mr. CROSTON. Oh, yes. Sure.
Mr. CHABOT. Thank you very much.
We have been called over for a vote on the floor, so at this time we are going to recess. It is only one vote, so we should be back here in a relatively short period of time. I would ask all Committee Members to get back here as quickly as we can, and we will continue. So we are in recess.
[Recess.]
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Mr. CHABOT. The Committee is going to come back to order, so if everyone could please take their seats, we would certainly appreciate it.
We will go to the next Member in seniority who is here, and that would be Mr. Conyers, who is recognized for 5 minutes to ask questions.
Mr. CONYERS. Thank you very much.
Let me welcome Professor Myers from Michigan. After all, he may be a constituent.
Mr. MYERS. Ann Arbor.
Mr. CONYERS. You are, you say?
Mr. MYERS. I live in Ann Arbor.
Mr. CONYERS. Okay. Well, that is different, then. [Laughter.]
Glad I found that out. Let me just start off, Professor Myers and attorney Cynkar. Do you support Roe v. Wade? Yes, sir?
Mr. CYNKAR. Do I support? No.
Mr. CONYERS. Okay. Professor Myers?
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Mr. MYERS. No, I don't.
Mr. CONYERS. Okay. Mr. Croston, do you know about Roe v. Wade?
Mr. CROSTON. Yes, I do.
Mr. CONYERS. Do you support it? You don't, either?
Mr. CROSTON. No.
Mr. CONYERS. Okay. And do you also believe that people who confess heinous crimes should have a trial?
Mr. CROSTON. Sure.
Mr. CONYERS. Okay. And let me ask you, Professor Myers, your school, the newest law school in the State, is in the process of being accredited. Am I correct?
Mr. MYERS. Right.
Mr. CONYERS. Now, did you know, Mr. Croston, that the State of North Carolina has an enhancement law for people who kill someone who is pregnant?
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Mr. CROSTON. When did that law go into effect?
Mr. CONYERS. I don't know. But did you know that there is one?
Mr. CROSTON. No, I didn't. I don't believe it was in effect during Falice's trial, but I might be wrong about that.
Mr. CONYERS. What year was that?
Mr. CROSTON. He was sentenced in 2000.
Mr. CONYERS. Oh, well, I am almost sure that it was. That was last year.
Let me ask you this. The reason that you think that there is a lot of politics in Washington around this subject matter is because we are changing, by implication, a very important part of law, and that is why this isn't in the criminal law subcommittee, because we are making some other changes that go beyond that. And I was just wondering, didn't the terrible assailant of your sister get life?
Mr. CROSTON. Yes, he did.
Mr. CONYERS. What else could have happened, with or without this law?
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Mr. CROSTON. Well, he was not charged, as I said earlier, for the death of the unborn child.
Mr. CONYERS. So what could have happened?
Mr. CROSTON. The judge basically said that, you know, basically dismissed that. It was not taken into consideration.
Now, I will tell you this, I don't think there are any laws on the books that fit any given situation. I think that you have to look at the facts that are involved with each of the cases in order to make a decision. And so, having said that, the concern I have is that it was just dismissed.
And when you look at this, you can't just look at my sister's case. You have to look at the others. Are there some out there where these individuals didn't get life?
Mr. CONYERS. Well, are there?
Mr. CROSTON. I don't know. I am not—I don't have staff that can go check the statistics on these States for me. You know, I basically have an understanding of what I read in the papers and see on the news.
Mr. CONYERS. Okay. I understand. But, see, you come and tell us that this is political, and we are the ones that are being dragged into this. The political people are the ones that brought the bill, and you end up supporting the bill, and then you say the people that are pointing out to you that this is constitutional and not political, you say, ''Well, that's political stuff. I wish you guys would leave that behind.''
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Mr. CROSTON. Let me explain my position.
Mr. CONYERS. Let me just do one other question, and I will give you all the rest of the time.
Mr. CROSTON. Okay.
Mr. CONYERS. Did you know about sentencing guideline enhancements?
Mr. CROSTON. No, I don't. I am not a legal person.
Mr. CONYERS. Well, that is what you do when something like this is involved. But now, please, you tell me whatever you wanted to tell me.
Mr. CROSTON. The only other comment I was going to make to you is that respect for other people is simple. I will offer my mother as an example. She had a very clear shot on what was right and wrong in life because she wasn't confused by a whole lot of legal education. I mean a real common sense view of respect for God and her fellow person, and that is what this is.
And I don't think that I have heard anyone here say that they were against this, against holding someone accountable who kills an unborn child. And so when we can't get this done, that is all I am saying, it is politics. I mean, what is it in there that has to be looked at and argued out to make it happen.
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Mr. CHABOT. Thank you, Mr. Croston.
Mr. CROSTON. I mean, that is the only comment I would offer to you.
Mr. CONYERS. Okay. Thank you very much.
Mr. CHABOT. The gentleman's time has expired. The gentleman from South Carolina, Mr. Graham, is recognized for 5 minutes.
Mr. GRAHAM. Thank you, Mr. Chairman.
Ms. Fulcher, let's go back to one of the examples that was asked of you by the Chairman. Are you familiar with the cases that involve boyfriends, I don't know of any husband cases, hiring people to attack the pregnant girlfriend with the express purpose of destroying the unborn child? Are you familiar with those cases?
Ms. FULCHER. To the extent that I have read them in the newspaper. I haven't actually read anything associated with the cases themselves.
Mr. GRAHAM. Right. In a case where you pay somebody to go attack a pregnant woman with the express purpose of destroying the unborn child because you don't want to accept responsibility for child support or the burden of taking care of the child as a father, does that in any way erode domestic violence protection to the mother, if we prosecute that guy?
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Ms. FULCHER. Erode the protection? I'm sorry?
Mr. GRAHAM. See, I have a hard time understanding your logic about how my bill that prosecutes people who assault pregnant women somehow undermines protecting women. I just honestly don't agree with you and don't understand the connection here.
We have passed a bill with lots of money to help domestic violence cases. There is a gap in the law, and I am trying to fill that gap in, and my theory is or belief is, if you attack a pregnant woman and you are subject to more liability for the damage done to her unborn child, maybe you will think twice about attacking her to begin with. Do you see any deterrent effect at all?
Ms. FULCHER. I think that when we are dealing with domestic violence, we need to recognize that it is a crime that is different in many ways than others, and that it is something that happens over time, again and again.
Mr. GRAHAM. But here is the crime I am talking about. I pay somebody, I hire somebody to go beat up the woman, with the express purpose of killing the child. Do you have a problem with prosecuting that person for murder?
Ms. FULCHER. In that circumstance, I don't see that it is necessarily domestic violence in that case. I mean, I don't think that it would fall within the domestic violence laws in most States.
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Mr. GRAHAM. So if it is not domestic violence, you don't have a problem with it?
Ms. FULCHER. I just hear the talk about the impact that this will have on battered women.
Mr. GRAHAM. Okay. There is an article by Courtland Milloy, March 11th of this year in The Washington Post, and I would like to read a portion of it.
There was a study of autopsies performed on women in the District of Columbia—and this is about domestic violence and about abuse against women—and they found that 30 of those who died because of violence between 1988 and 1996 were also pregnant. And this study was released to Ms. Norton, a Member from the District of Columbia, and she called for an investigation, because her concern was that the pregnancy may have been the cause of the killing, in the sense that the intimate partner did not want to accept responsibility.
Would you join her and me in trying to find out exactly what goes on there?
Ms. FULCHER. Absolutely. I think that this is an area that is highly understudied, and we need to do some good research, and I know that the Centers for Disease Control has just started doing that.
Mr. GRAHAM. Mr. Croston, that is your name, right?
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Mr. CROSTON. Yes, Croston.
Mr. GRAHAM. When the judge told the jury, discount the unborn child, how did that make you feel?
Mr. CROSTON. Well, actually he didn't tell the jury that. This was said in the courtroom, but the jury was not present when he made these comments. But he did not want them to know that my sister was carrying an unborn child which is disturbing. I can tell you this. We all, I think, accept life and death, and I think that when we lose a loved one, we have the memories to fall back on. You know, that is how they live on with us.
But when you take away an unborn child, you don't have the memories to fall back on. You know, you are taking away something from somebody that you should not be privileged to take away. You shouldn't be able to take anybody's life anyway. But, you know, that is the way I kind of look at that, and that is why I think it is important to take these things into consideration.
Mr. GRAHAM. But from your point of view as a layperson, you believe your family lost a family member?
Mr. CROSTON. Oh, yes, without a doubt.
Mr. GRAHAM. Thank you. No further questions.
Mr. CHABOT. Thank you. The gentleman's time has expired. The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
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Mr. NADLER. Ms. Fulcher, the distinguished gentleman from South Carolina—I can never remember which Carolina or which Dakota—from South Carolina said a moment ago that we passed a very strong Violence Against Women bill. Has that bill been fully funded?
Ms. FULCHER. No, it has not. In fiscal year 2001 it was more than $200 million short in the appropriations process from the full——
Mr. NADLER. So appropriating $200 million would do a lot for domestic violence?
Ms. FULCHER. It would not only be very helpful, but we actually saw a decrease in the amount of money that went to States to aid in prosecutions of domestic violence, and that is where the majority of the prosecutions would take place, not at the Federal level.
Mr. NADLER. Have there been more or fewer Federal prosecutions as a result of the decrease in funds?
Ms. FULCHER. I don't know that there are any statistics on that.
Mr. NADLER. How many Federal prosecutions have there been of domestic violence?
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Ms. FULCHER. There have been 130 indictments under the Violence Against Women violations that went into effect in 1994.
Mr. NADLER. That is Federal indictments?
Ms. FULCHER. That is Federal indictments.
Mr. NADLER. One hundred and thirty in the last 7 years?
Ms. FULCHER. Yes, that is correct.
Mr. NADLER. Do you think the Federal Government is being lax in prosecuting it, or is it just that States do most of it?
Ms. FULCHER. Well, States do most of the prosecution, and those crimes are limited to very specific circumstances where someone crosses State lines.
Mr. NADLER. So there are very few instances where the Federal Government has an application for domestic violence, and with this statute, do you think that there would be many Federal applications for this statute?
Ms. FULCHER. It would be very small.
Mr. NADLER. Very rare?
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Ms. FULCHER. Very, very rare that this would be implicated in domestic violence.
Mr. NADLER. So we are discussing a very rare situation altogether with this bill?
Ms. FULCHER. Yes, that is correct.
Mr. NADLER. Thank you. Let me ask you a different question. I am not sure who to ask this question, maybe Professor Myers.
The bill says, as used in this section, the term ''unborn child'' means a child in utero, and the term ''in utero'' of ''child who is in utero'' means a member of the species homo sapiens at any stage of development who is carried in the womb. Now, does this mean an embryo or zygote literally at any stage of development, or does the term ''who is carried in the womb'' limit the phrase ''at any stage of development'' so we are talking only after implantation in the womb? And do you think the courts would be confused by that question? Is it clear in the bill, in other words? Are we talking about an embryo at any stage? Are we talking about only a fetus once implanted in the womb, according to this definition on page 4, lines 20 through 22?
Mr. MYERS. I think it is pretty clear it applies to any stage of development.
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Mr. NADLER. Then what do the words ''who is carried in the womb'' mean?
Mr. MYERS. It is the same definition used in the death penalty statute.
Mr. NADLER. Then what does ''who is carried''——
Mr. MYERS. The——
Mr. NADLER. Excuse me. Then what does ''who is carried in the womb'' mean? What are those words in the bill?
Mr. MYERS. I am not sure that adds anything. In fact, I think it may be better to just take that clause out. I think it would carry the same weight.
Now, I think if you look at the State level, the States that have so-called unborn child homicide statutes have not had any problem with interpretation in that regard.
Mr. NADLER. And have they used this language?
Mr. MYERS. There are about a dozen States that have laws that are very similar to this. I don't know each one of them off the top of my head, but there are about a dozen——
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Mr. NADLER. So you are testifying, you are testifying that this means a two-cell zygote would qualify under this bill? Is that your testimony?
Mr. MYERS. My testimony was on the constitutionality of it. I don't think there is any doubt about the constitutionality of it. Any stage of development——
Mr. NADLER. Means a two-cell zygote, for example.
Mr. MYERS. I mean, if you look at any biology book about when does human life begin——
Mr. NADLER. Well, that is a metaphysical question.
Mr. MYERS. Outside the context of abortion—it is not a metaphysical question. It is a question that is really a biological question. Outside the context of abortion, everybody knows——
Mr. NADLER. No, we are talking about when it legally becomes a person. That is the question here, not—I could argue that human life continues——
Mr. MYERS. Well, this is not an effort to amend the constitution. It is an effort to say as a matter of criminal law——
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Mr. NADLER. But I am just asking about the, I am asking you about what is covered by this bill, and do you think that the words ''who is carried in the womb'' make that a question that would have to be litigated?
Mr. MYERS. There are always questions that can be litigated, but would it lead to any serious uncertainties, no. I think if you think that it leads to uncertainty, I would say take that clause out and it would have the same effect.
Mr. NADLER. Okay. Then let me ask a final question. And let me say that I wish that—and here I am not going to blame the Chairman of the Subcommittee. I am going to blame the Chairman of the Committee for this silly rule that we can only have one panel and that the Democrats can only have one witness. We really here should have had at least two witnesses, one on domestic violence considerations, one on legal interpretation of the constitutional principles. I wish we had been able to call a prosecutor to provide a different perspective on some of these technical issues, but this rule prevents us from doing so.
Mr. CHABOT. The gentleman's time has expired. The gentleman is recognized to finish his questions, even though he hasn't attacked me but has attacked the Chairman of the overall Committee.
Mr. NADLER. I haven't attacked anybody. I said I regret this silly rule. But thank you.
However, many of the terms in this bill are unclear, and I would like to ask presumably Professor Myers again to address, could someone be prosecuted for murder under this bill, in your opinion, if they unknowingly destroy a zygote? Or how do you determine, by the way, if a zygote was destroyed?
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Mr. MYERS. Well, I think that is why you have prosecutorial discretion. If there is some——
Mr. NADLER. And let me amend the question, also. Let me amend the question, also, address the same question. How do you prove in a criminal case whether there was fetal pain or not?
Mr. MYERS. Well, I don't think it requires fetal pain, does it? The status of an unborn——
Mr. NADLER. It is one of the elements.
Mr. MYERS [continuing]. An unborn child doesn't require——
Mr. NADLER. It is one of the things you would be prosecuted for.
Mr. CYNKAR. Actually, Mr. Nadler, if I could jump in there, because I think what you are referring to is the cross-reference to 18 U.S.C. 1365 and the definition of bodily injury, which has a number of subsections, and one of the subsections is physical pain. And I think in fairness the answer to your question really has a couple of parts.
First of all, I have not read every cross-referenced statute in the Federal code that is involved here, but I would make an educated judgment that if you have a crime that a prosecutor who is going to prosecute against a woman, this act of violence, who was pregnant and so forth, that the nature of the damage is going to easily fall within any of these other subsections as a practical matter, and then physical pain would not be the only element that is necessary to prove a crime.
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Second of all, I would say that, and picking up on part of what Professor Myers said, it is not uncommon as a matter of prosecuting a crime that you think several crimes were committed, and a group of crimes you don't have the proof to go forward with, even though you in your heart of hearts would swear on a stack of bibles that this wrong was done, you don't have the proof to go forward.
But, finally, in fairness to I think the thrust of your question, at worst what you are suggesting is that instead of having as—subsection (a)(1) is the provision of the bill where there is that reference to bodily injury, and it just says ''as defined in Section 1365.'' Your problem could be taken care of by changing that to ''as defined in Section 1365, subsection (g)(3),'' and then just list all of the elements other than that one, (a), (c), (d), or (e). And, as I say, based on my judgment that the bodily—that the physical pain issue is really a nonissue for most prosecutions of Federal violent crimes, it takes care of I think your justifiable concern about clarity and still preserves the thrust of the bill.
Mr. CHABOT. The gentleman's time has expired. The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.
Mr. HOSTETTLER. Thank you, Mr. Chairman.
Mr. Croston, thank you very much for being here and for sharing with us this story, which makes me understand how courageous you are to be here. I would just like to ask you a couple of questions about your testimony and a couple of your statements, in that you said ''Reginald Falice knowingly murdered Ruth Croston and their unborn child.'' Do you believe that was a child your sister was carrying?
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Mr. CROSTON. Oh, yes.
Mr. HOSTETTLER. Later on you said, ''In closing, the Committee should understand that our family will forever be in mourning over the loss of Ruth Croston and her unborn niece.'' So that was a niece that you were going to have?
Mr. CROSTON. Yes, and we didn't know that until after the autopsy. No one knew the sex of the child until later on.
Mr. HOSTETTLER. Thank you, sir.
Ms. Fulcher, in your testimony you said that you had a client, and while she was 8 months pregnant, her batterer lifted her up in his arms and held her body horizontal to the ground. He then slammed her body to the floor, causing her to miscarry. To miscarry what?
Ms. FULCHER. Her fetus.
Mr. HOSTETTLER. The fetus. That is Latin, am I not correct?
Ms. FULCHER. I don't know. I assume so.
Mr. HOSTETTLER. Yes. Testimony by actually Mr. Cynkar says that is true. ''Fetus'' is simply Latin for offspring or young. I am not an attorney, so I just need to have that clarified, that some are speaking in the Latin while I speak in the English, so——
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Ms. FULCHER. My understanding is that the more traditional term in the legal sense is ''fetus'' at that point.
Mr. HOSTETTLER. Right, and the 99 percent of us that aren't lawyers think in other terms.
You said that ''I should note that in this case and others I have worked on, it was clear by the batterer's words and action that his intent was to cause physical and emotional injury to the woman and establish undeniably his power to control her.'' Did he say, it seems here like you talked or heard from him, did he say that the fact that she was pregnant had a part to play in the heinous act that he committed against her?
Ms. FULCHER. In that particular case his words were more along the lines of ''I'll teach you'' and then he performed what he did.
Mr. HOSTETTLER. So it had nothing to do with the fact that she was 8 months pregnant?
Ms. FULCHER. He did not say anything. He did not refer to it in the statement that he made in that particular case, no.
Mr. HOSTETTLER. Do you think it had anything to do with the fact, why he did that, why he picked her up and——
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Ms. FULCHER. Why he chose to do that? Yes, I think that it played a role in what actions he chose to take against her.
Mr. HOSTETTLER. You talk about a large intellectual leap, and I am incapable of those, but in your testimony you talk about ''A battered woman can be intimidated or pressured by her batterer not to reveal the cause of her miscarriage, and if she is financially or emotionally reliant on her batterer, she may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for an offense as serious as murder. The long-term public health implications of such a policy would be devastating for victims of domestic violence and all women.''
Basically, you are saying as a result of being charged with murder, that there has been an elevated nature of his offense, and so that is why——
Ms. FULCHER. Most battered women have been through the legal system on many occasions, and they recognize that usually very little happens to their batterer for something like a simple assault. However, if she were to perceive that this case would be taken extraordinarily seriously, she might think twice about reporting it or going and getting the appropriate medical attention, yes.
Mr. HOSTETTLER. And enhanced penalties. So you are saying a change in the status of law, an elevated status of the offense, enhanced penalties, might cause her to not report the offense?
Ms. FULCHER. That is correct.
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Mr. HOSTETTLER. Isn't that what happened in 1994, when the Federal Government essentially federalized domestic violence? Wasn't there an elevated status of the crime whenever we said that?
Ms. FULCHER. Actually, no. Most domestic violence cases are prosecuted at the State level, and the Federal crimes that were created were only specifically designed to address those rare cases where someone crossed State lines during the process and it was unclear which State should prosecute.
Mr. HOSTETTLER. But there was a Federal—I mean, the whole——
Ms. FULCHER. There were already offenses in place.
Mr. HOSTETTLER. Right, so you are saying there was no need to pass VAWA, Violence Against Women Act?
Ms. FULCHER. No, I am saying that it is appropriate to prosecute domestic violence crimes, and this just filled a gap that was in existence, that had made some domestic violence against women difficult to prosecute in an individual State.
Mr. HOSTETTLER. So you don't think that the creation of a new law, a Federal Violence Against Women Act, a Federal domestic violence policy, was an elevated status of the crime?
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Ms. FULCHER. It did not overall change the kind of punishment that would result from the same action. In other words, the Federal crimes result in very similar punishments to what would have been the punishment for that same action in State law.
Mr. HOSTETTLER. Why did the Supreme Court strike down those particular parts of VAWA, saying that that——
Ms. FULCHER. It did not. The Supreme Court struck down the civil rights remedy of VAWA, which is completely separate from the criminal statutes that we are talking about right now.
Mr. HOSTETTLER. So the——
Mr. CHABOT. The gentleman's time has expired. Is he seeking an additional minute? The gentleman is recognized by unanimous consent for one additional minute.
Mr. HOSTETTLER. I think it does. I think it did enhance. I can't believe that you would say that the Federal Government just did this and really didn't want to have an effect at all on violence against women, we simply wanted to expand the Federal Government's police power and cause a new cause of action. I would think that it would do that, and so I don't see——
Mr. NADLER. Would the gentleman yield for a second on this point?
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Mr. HOSTETTLER. Yes.
Mr. NADLER. My recollection of VAWA was that, aside from taking care of the interstate problem, which was a small number of cases, what it also did was to appropriate money to the States to enable States to enhance their prosecutions, and it also provided funds for training of State judges and law enforcement personnel. In other words, the basic thrust of VAWA was to enable the States better to handle the problem by focusing attention on it and giving specific Federal grants to enable States to better train their judges, their law enforcement personnel, and to enforce domestic violence laws.
Mr. HOSTETTLER. So that we could have a better defense against this violence, I mean——
Mr. NADLER. Yes, a better defense, but not an enhanced sentencing structure, as Ms. Fulcher was quite correctly saying it didn't do.
Mr. HOSTETTLER. Okay, but what I am saying is, you elevated the nature and there was more likelihood of an individual being prosecuted for it. So if before they would not have been prosecuted for it, what we are talking about is continuing to prosecute with this bill, merely to prosecute them for another offense, which in this case would be murder. As you say, with the VAWA monies, you want that money there so that we can in fact prosecute these people that aren't being prosecuted appropriately now. I don't see the difference between prosecuting, between coming from a status of not prosecuting to prosecuting, and then coming from a status of prosecuting for the harm to the mother and prosecuting for the harm to the child.
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Mr. CHABOT. The gentleman's time has expired. The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. And I would also point out that VAWA had substantial funding for shelters, which was another significant part of the statute.
Mr. Croston, I noticed that the title of the case was United States versus. Was this in Federal court?
Mr. CROSTON. Yes.
Mr. SCOTT. And how did it get into Federal court rather than State court, or do you know?
Mr. CROSTON. It was initially in the State court, and it was moved because he had crossed State lines.
Mr. CHABOT. If the gentleman will yield, it has been brought to my attention it was a Federal offense for interstate domestic violence.
Mr. SCOTT. Okay, and he got life, as I understand it?
Mr. CROSTON. That is correct.
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Mr. SCOTT. Part of the discussion we have been having suggests that there is no sanction in cases like this if we don't pass some new law. I would ask one of the lawyers to outline why the penalty enhancement for present laws are insufficient, since I would imagine most of the people who shoot a pregnant woman or otherwise would come under the heinous descriptions that we have had, would routinely get life. This bill does not have the death penalty in it.
Mr. CYNKAR. Well, I think I will take a crack at that, Mr. Scott. I think, first of all, in the criminal law it is not an uncommon thing to have someone charged for multiple offenses, and as Mr. Conyers pointed out in his questions, at a certain point there is only so much as a practical matter you can do to someone. You can execute someone for killing five people or execute him for killing one.
But punishment is not the only aspect, I think, that animates the ability of criminal lawyers to deal with multiple issues. There is the question of justice, of having our system say—and I think that for all of his unwillingness to acknowledge his lawyerly qualities, what Mr. Croston has been pointing out is the practical aspect of justice and what you all do with the law, which is to say, ''This is wrong and it is going to be punished.'' And ultimately——
Mr. SCOTT. And when you do that, you can do that with a penalty enhancement——
Mr. CYNKAR. Well, I am going to get to that. I wanted to start by——
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Mr. SCOTT [continuing]. That you will get more time than if it had been against someone else, and define pregnancy status, pregnancy, as a vulnerable——
Mr. CYNKAR. I think that——
Mr. SCOTT [continuing]. Victim, and you would avoid all of the problems that we are getting into on the technicalities, the Constitution, the abortion issue and everything else.
Mr. CYNKAR. I want to answer that question. I just was answering the first one that you posed. And obviously the question of addressing this through sentencing guidelines and so forth is one that has been raised, and I think, if I understand your question, that is the point you are making.
To me there are two problems with that. First of all is that the law should only include things that are true and correct as a matter of principle, and it seems to me that the premise here is, do you have a distinct victim? Do you have another human being who has been affected here? And that if that is true, what you are saying is that we are only going to—that victim will have a certain lower status. Where the sentencing guidelines now enhance crimes is where you have already recognized——
Mr. NADLER. Would the gentleman yield? Would the gentleman yield?
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Mr. CYNKAR. Could I just finish my two-part answer. You may want to take a shot at both of them, so let me just finish my statement, if I might.
The second thing is, as a criminal defense attorney, I would object to that, because it seems to me if what you are saying is that we are going to punish someone additionally for affecting this other victim, I would want the ability to test that in a criminal trial with the standard of proof beyond a reasonable doubt, which in proceedings under the sentencing guidelines you don't. So from a criminal defense perspective, I think it is unfair to the criminal defendant.
I am sorry, Mr. Nadler. I just wanted to get that out.
Mr. SCOTT. I will yield.
Mr. NADLER. Thank you. I just want to point out that I think Mr. Cynkar just concurred in the main point I was trying to make at the very beginning of this hearing, that the main point of this bill is not sentence enhancement and not stiffer punishment, but the legal recognition, I think as you put it a moment ago, of a separate person. And that is exactly what I said the main purpose of the bill is, and the real purpose of the legal recognition of a separate person is the entire abortion debate.
So, in other words, the real question is, in looking at this bill, a sentencing enhancement approach would work if you simply want to enhance the punishment because it is a worse crime to harm a fetus than just to harm the woman without harming the fetus, but that this bill is necessary if your main point is to recognize the separate existence of a separate person.
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I will yield back to the gentleman.
Mr. SCOTT. Reclaiming my time, that is exactly, I think, the whole point of the debate.
I wanted to get in one rather quick question to either Professor Myers or Mr. Cynkar, and that is, are there any civil implications in this, civil recovery? Does the fetus have a right to recover for having violated a separate statute, if you have a father that is not married to the mother? Are there civil implications in this?
Mr. MYERS. I would say no. I think the normal criminal law rule is that there is no private civil cause of action for the victim, so I would say——
Mr. SCOTT. Say that again.
Mr. MYERS. There is no private cause of action that the victims can bring as a matter of criminal law, as a general——
Mr. SCOTT. Not in criminal court, but violation of a criminal statute is a prima facie case for a tort suit.
Mr. MYERS. But you would have to sue under a separate tort law, so if tort law recognizes a claim, and that is a matter of State law, they would be able to do so. The normal rule as a matter of Federal criminal, as a matter of criminal law, is that you can't——
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Mr. SCOTT. But if you have—Mr. Chairman?
Mr. CHABOT. I will recognize the gentleman for an additional minute, and he can yield to me after he is done with this question.
Mr. SCOTT. If you have a case where an individual has a crime committed against them, that creates a prima facie right to a civil action against the perpetrator. And my question was, having set up this as Mr. Cynkar has been so articulate, you are creating a new person, a new crime, and does that person have a civil action against the perpetrator as a separate cause of action? The mother certainly would have a cause of action, and doesn't the——
Mr. MYERS. But her cause of action wouldn't be under the criminal law, though. It would be under State civil law.
Mr. SCOTT. You are right, civil law. Just like O.J. Simpson got sued in civil court by the families of the victims, could you have a suit in civil court resulting from the criminal action?
Mr. CYNKAR. Mr. Chairman, I don't know——
Mr. CHABOT. You can answer the question, and then——
Mr. SCOTT. If you don't know——
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Mr. CYNKAR. I do know. I would like to take a shot at the answer, but I don't want to goof up your traffic control here.
Mr. CHABOT. Go ahead, but make it relatively quick, please.
Mr. CYNKAR. Actually, you have, I think, just made the point that responds to Mr. Nadler's point, frankly, because all criminal law prosecutions potentially, where tort law provides a private civil lawsuit, could become civil tort suits. So an assault is both a criminal matter and is also a tort matter. So that is possible, depending upon State law.
State law has in many instances already recognized the notion of a tort against the fetus, and so that is why I would differ with your characterization in your opening statement about what this is about. We are beyond that point.
One might say this is a grand inconsistency in the law. On the one hand, we allow abortion, and on the other hand we have these State criminal laws that we have all talked about, protecting the fetus, or we have negligence. And you can say that that is a big conflict. As a lawyer and not a scholar, I take the law as I find it and I say, you know, perhaps.
But I would say there is actually a way to rationalize this, and as Mr. Conyers pointed out in his first question to me, I do not support Roe v. Wade, and I probably oppose it as strongly as you are in favor of it, and probably you, Mr. Nadler, also, as you have said. But if you step back and try to stay out of the advocacy posture of that, one could say, look, the law identifies interests in human beings, and as we sit here right now I am perfectly free to do whatever I want to do, except if I aim a gun and shoot at you, you are then free to shoot and kill me as a matter of self-defense. We have those two interests that suddenly collide there, and the law resolves them so that you can do me harm.
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I would say that what this bill does is recognize, as the law does, that unborn children do have rights under the law; that we can protect them. The Supreme Court has been very clear that Congress can favor life over abortion without infringing a woman's right to choose. But that the law also is, in the context of a pregnancy—the two interests of the child and the woman—under our law the right of the woman to choose to terminate that fetus, that pregnancy, trumps the right to life of that child.
And that is how I would, standing back, try to harmonize the law now, though I obviously think it is wrong. I am not going to fool you fellows with respect to that. But I think that the issue really shouldn't be abortion. I mean, we are more than a little bit pregnant on the notion that there is this great conflict in the law. We do protect fetuses in many instances, and we do allow their destruction in abortion. That is there. I don't think that should disable this bill, is my view.
Mr. NADLER. Mr. Chairman, may I ask unanimous consent to make a comment on that?
Mr. CHABOT. Yes.
Mr. NADLER. Thank you. I just want to make a comment and say two things, without getting into the whole dispute.
Number one, I would say that the rather divided state of the law, without being scholarly but simply being political, the rather divided state of the law can be described as probably a result of the relative strength of the pro- and anti-choice forces in the Congress and in various State legislatures. And since it is not evenly split, it is not the same in every State legislature and in Congress. That is why we have a divided law.
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I would say that the Supreme Court one of these days will have to deal with that, because although these State laws may have been sustained in some State courts, they have never gone to the Supreme Court yet, and the Supreme Court might find a problem with that or might not. I suspect it would, but it might not.
So I don't have to get into any great philosophical things. I think it is simply a political reality as to where this country is at this point, and therefore some States have laws that would seem inconsistent with our understanding of Roe v. Wade and its progeny, and some don't, and one of these days the Supreme Court may decide whether those are inconsistent or not.
Mr. CHABOT. I thank the gentleman for his comments.
Mr. SCOTT. Mr. Chairman, if I have any time left, I will yield it to you.
Mr. CHABOT. Thank you. What I am going to do is, I don't want to get into a whole second round here. We will be here for a considerable time longer. So that was essentially 2 minutes. I am going to recognize myself for 2 minutes and make a brief statement, and yield to the proponent of the legislation, Mr. Graham.
The issue of enhancement has been emphasized here as one reason why this is unnecessary legislation, that we have already got Federal enhancement possibilities. But even assuming the current Federal sentencing guidelines, even assuming that they permit a two-level sentence enhancement if the victim of a domestic violence charge or a violent crime was pregnant, the permissible range of punishment for such an assault would increase the sentence by only 6 months, which is a pretty woefully inadequate increase in the sentence for taking the life of an unborn child, in my view and in the view of many of us here on the panel today.
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And I will yield whatever time I have, which is a minute and 14 seconds, to the gentleman from South Carolina, Mr. Graham.
Mr. GRAHAM. Thank you. I am just trying to, for the record, explain what I have tried to do with the bill and the references we had.
There is a Federal statute that passed the House, 417 to nothing, saying that you can't execute a woman while she is carrying a child in utero. That definition that we used there is virtually the same definition I am using here. We are not going to, there would be riots in the street if we killed a woman who was pregnant, rightfully so, because there is no use taking that baby's life for what the mother did, and it is the same definition.
As to Ms. Fulcher's concern about how protecting unborn children and enhancing penalties could put the mother at risk, I would argue that every child abuse law would be stricken if we used that theory; that when women are abused, often the children are abused, and if the woman reports the abuse of the child, maybe it does put her at risk.
I don't believe that. I believe that we need laws to protect women and children, and we are not going to get rid of the laws for child abuse because of some theory of how it might put someone else in jeopardy. We are going to protect children where we can, including this bill. And I reject that argument, because if you followed that argument, we would have no child abuse laws and domestic violence cases.
Sentence enhancement, the Arkansas case. The guy hired three people to assault the pregnant woman for the purpose of killing the baby because he didn't want to pay child support. To increase the punishment for an assault case is not truth and it is not justice, because the intent was to kill somebody they recognized as a human being, owed obligations. And they are sitting on death row because you could prosecute them for two different events, not just enhance one.
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My situation doesn't deal with the death penalty, but they should be charged with two crimes if their intent was to do what those guys did and not just simply enhance the act against the mother. The prosecutor should have more tools than just a sentence enhancement. He should charge them with the truth of what they were doing, and that is trying to kill that baby.
With that, I will yield back and wish everyone a great weekend.
Mr. CHABOT. Thank you. The gentleman's time has expired. That concludes the questioning, and we want to thank the panel for coming here today. I want to particularly thank Mr. Croston for coming and giving us his tragic story. Thank you very much.
The Committee is adjourned.
[Whereupon, at 12:21 p.m., the Subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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(Footnote 1 return)
Public Law 103–322 [H.R. 3355]; September 13, 1994.
(Footnote 2 return)
Public Law 106–386 [H.R. 3244]; October 28, 2000.
(Footnote 3 return)
Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M., Goodwin, Mary M., Saltzman, Linda E., and Marks, James S., ''Violence and Reproductive Health: Current Knowledge and Future Research Directions,'' Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
(Footnote 4 return)
Wiemann, Constance M., Agurcia, Carloyn A., Berenson, Abbey B., Volk, Robert, J. & Rickert, Vaughn I., ''Pregnant Adolescents: Experiences and Behaviors Associated with Physical Assault by an Intimate Partner,'' Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
(Footnote 5 return)
18 U.S.C.2261(a).
(Footnote 6 return)
18 U.S.C.2261A.
(Footnote 7 return)
18 U.S.C.2262(a)(1).
(Footnote 8 return)
This number reflects actual indictments under 18 U.S.C. 2261, 2261A and 2262 through November, 2000. It does not include the largest category of federal domestic violence prosecutions, those brought under 18 U.S.C. 922(g)(8)—a statute that is not addressed by the ''Unborn Victims of Violence Act.''
(Footnote 9 return)
Bureau of Justice Statistics: Special Report ''Intimate Partner Violence'' by Callie Marie Rennison, Ph.D. and Sarah Welchans (BJS Statisticians), May 2000.