Bill Text: NY S05308 | 2023-2024 | General Assembly | Introduced

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Bill Title: Provides that either a person or an unborn child in any stage of gestation may be the victim of an assault or homicide; states situations when it does not constitute an assault on an unborn child such as during the course of an otherwise lawful abortion, during normal medical treatment or by the pregnant woman; defines "person" to include any human being who is born and is alive or an unborn child at any stage of gestation.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S05308 Detail]

Download: New_York-2023-S05308-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5308

                               2023-2024 Regular Sessions

                    IN SENATE

                                      March 1, 2023
                                       ___________

        Introduced  by  Sen.  WEIK  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Codes

        AN ACT to amend the penal law, in relation  to  the  unborn  victims  of
          violence act

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1.   Legislative intent.   The legislature  hereby  finds  and
     2  declares  that  a  significant  loophole  exists  in  state law, denying
     3  protection to pregnant women and certain children.  Currently, an offen-
     4  der may not be held criminally responsible for  the  harm  caused  to  a
     5  child unless that child has first been born alive.  Therefore, an assai-
     6  lant who shoots a woman who is seven months pregnant, and kills both the
     7  woman and her child, may only be charged with the homicide of the mother
     8  since the infant is not considered a legal victim of the crime.
     9    New  York  state  policy lags behind most states in this area of crime
    10  victims' protection.   Thirty-one  states  now  provide  protection  and
    11  justice  for pregnant women and their unborn children who are victims of
    12  violence.
    13    The legislature further finds and  declares  that  current  statistics
    14  demonstrate  that  domestic  abuse  and violence against women increases
    15  during pregnancy.  It is estimated that one in five women will be abused
    16  during pregnancy.  A study in the Journal of the American Medical  Asso-
    17  ciation  found  that  in the state of Maryland, a pregnant woman is more
    18  likely to be a victim of a homicide than to  die  of  any  other  cause.
    19  Thus, rather than pregnancy being a peaceful time of preparation and the
    20  growth  of a healthy child, for many women it can be a time of violence,
    21  grief and loss.
    22    Compounding this tragedy is the loophole in current law, which  denies
    23  effective  protection  and  remedy  to women and their children.  When a
    24  woman makes a conscious choice to keep her baby and has the choice viol-
    25  ently taken away from her by a violent perpetrator, justice demands that

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09261-01-3
        S. 5308                             2

     1  someone be punished for that crime.   Indeed, mothers  will  bury  their
     2  baby's  body  and  mark  the grave for their child for the rest of their
     3  lives, but New York law tells them their loved one never existed.
     4    The  legislature  does not intend this act to apply to any abortion to
     5  which a woman has consented, to any act of the mother herself or to  any
     6  form of medical treatment.  The legislature finds that the current legal
     7  right  to abortion does not protect and does not confer on an assailant,
     8  a third-party unilateral right to destroy an unborn child.
     9    The legislature recognizes that a federal "unborn victims of violence"
    10  law was enacted in 2004, yet believes the law to be limited in  applying
    11  only to unborn children injured or killed during the course of specified
    12  federal crimes of violence.
    13    It  is  the  intent of the legislature that the affirmative right of a
    14  pregnant woman to carry her child to term be protected, and that  perpe-
    15  trators  of  crimes  against pregnant women and their unborn children be
    16  held accountable for their crimes.
    17    § 2. Short title.  This act shall be known as and may be cited as  the
    18  "unborn victims of violence act".
    19    §  3.  The  penal law is amended by adding two new sections 120.75 and
    20  120.80 to read as follows:
    21  § 120.75 Assault and related offenses; definition.
    22    The following definition is applicable  to  sections  120.00,  120.03,
    23  120.04, 120.05, 120.06, 120.07, 120.10 and 120.12 of this article:
    24    "Person,"  when  referring  to  the  victim of any assault, aggravated
    25  assault or vehicular assault, means a human being who has been born  and
    26  is alive, or an unborn child at any stage of gestation.
    27  § 120.80 Assault and related offenses; defined.
    28    Nothing in this article shall be construed to permit the prosecution:
    29    1.  of any person for conduct relating to a justifiable abortional act
    30  for which the consent of the pregnant woman has been obtained; or
    31    2. of any person for any medical treatment of the  pregnant  woman  or
    32  her unborn child.
    33    §  4.  Section 125.00 of the penal law, as amended by chapter 1 of the
    34  laws of 2019, is amended to read as follows:
    35  § 125.00 Homicide defined.
    36    1. Homicide means conduct which causes the death of  a  person  or  an
    37  unborn  child at any stage of gestation under circumstances constituting
    38  murder in the first degree, murder in the second degree, manslaughter in
    39  the  first  degree,  manslaughter  in  the  second   degree,   vehicular
    40  manslaughter  in  the first degree, vehicular manslaughter in the second
    41  degree, or criminally negligent homicide.
    42    2. Nothing in this article shall be construed  to  permit  the  prose-
    43  cution:
    44    (a) of any person for conduct relating to a justifiable abortional act
    45  for  which  the  consent of the pregnant woman or a person authorized by
    46  law to act on her behalf, has been obtained or for which such consent is
    47  implied by law; or
    48    (b) of any person for any medical treatment of a pregnant woman or her
    49  unborn child.
    50    § 5. Section 125.05 of the penal law,  the  section  heading,  opening
    51  paragraph  and  closing paragraph as amended by chapter 1 of the laws of
    52  2019, is amended to read as follows:
    53  § 125.05 Homicide and related offenses; definition.
    54    The following definition is applicable to this article:
        S. 5308                             3

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