Posted on 01/20/2004 11:42:26 AM PST by Land of the Free 04
Virginia legislators have proposed nine bills this General Assembly session that would give individual legal rights to a fetus killed or injured by a criminal act.
If the bills are passed, prosecutors could potentially charge people injuring or killing a fetus with two crimes - one for the fetus, one for the pregnant mother.
Prosecutors in 28 states already can charge the unlawful killing of a fetus as murder or manslaughter. Virginia is among the minority of states without a fetal homicide law.
"Surely Virginia needs to join the ranks of those states," said Brenda Fastabend, president of the Virginia Society for Human Life.
Others aren't so sure, calling the bills a not-so veiled attempt to chip away at reproductive freedoms by defining a fetus as a person.
"It is not an attempt to protect the fetus as much as an attempt to change the definition, so that definition can be used to prohibit abortion," said Kent Willis, executive director of the American Civil Liberties Union of Virginia.
The debate touched home in Lynchburg last year, when jurors learned that one victim of a Sussex Street double murder was pregnant. Although they were allowed to consider that when fixing a punishment for the two defendants, there was no separate crime to deliberate over.
Republican legislators - eight delegates and one senator - proposed this year's bills. The bills would not apply to legal abortions.
Most of the bills make damaging a fetus a felony, with a maximum punishment of life in prison. Under two of the bills, people who didn't intend to kill the fetus could still get 10 years in prison.
Virginia law already allows enhanced punishments for violence against pregnant women. In 1997, the General Assembly made the first-degree murder of a pregnant woman by someone with knowledge of the pregnancy a capital offense punishable by death.
Supporters of the fetal homicide bills say problems arise when a misdemeanor assault just slightly injures the woman but severely damages or kills the fetus.
"It's extremely important that the child in utero be acknowledged and protected," Fastabend said.
Republican Attorney General Jerry Kilgore backed the fetal homicide bills - which he calls Conner's Law - in his legislative package this year.
His proposed bill is named after the unborn son of Laci Peterson, whose body and fetus washed ashore in San Francisco Bay last April. Scott Peterson, the husband and father, faces two counts of murder.
The Peterson case has strengthened a national movement to treat harm to a fetus as a criminal act. Texas has since passed a fetal homicide law, and other states are considering it. The U.S. House of Representatives will likely vote soon on the Unborn Victims of Violence Act.
Virginia legislators have discussed fetal homicide bills the past three years. In 2001 and 2002, the bills passed the House but not the Senate. They died in committee last year, but bill sponsors said they might have gone through if not for concern over prison expenses.
The votes have fallen along abortion ideology lines, with Democrats accounting for most of the nays. Central Virginia's delegation has supported the bills.
Lt. Gov. Timothy Kaine, a Democrat who will likely face Kilgore in the 2005 governor election, said he would support the bills as long as they don't affect abortion rights.
Kilgore spokesman Tim Murtaugh said the fetal homicide debate was outside the abortion arena and was instead about an unborn child being criminally murdered.
Kaine said there must be stiff penalties for serious offenses, but he said most prosecutors tell him that current punishments suffice. He also said legislators must be careful in the wording so as not to tread on the rights of doctors and pregnant women.
Lynchburg defense attorney Leigh Drewry said the bills were a "flanking attack on abortion rights" and said the bills could create legal problems by punishing damage to a fetus no matter the gestational stage.
Fifteen states criminalize fetal homicide from the moment of conception, according to the National Right to Life Committee. Thirteen states don't do so until the fetus could survive outside the womb.
If language addressing age isn't put into the bills, Drewry said, defense attorneys would likely argue in court that a young fetus might not have lived anyway.
"It creates more confusion than it solves," Drewry said. "You could make a better bill by setting gestational age."
In a Newsweek poll conducted last May, 56 percent believed prosecutors should be able to bring separate murder charges in all cases where someone kills a fetus. Twenty-eight percent thought it should be only when the fetus was viable, and 9 percent said there should never be the second charge.
Drewry said there is some precedent in Virginia giving a fetus legal rights. Courts have ruled that a child who wasn't born when his or her parent died has the right to some inheritance unless the will specifically forbids it.
If anyone wants on or off my ProLife Ping List, please notify me here or by freepmail.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.