Unborn Victims of Violence Act of 2004 - Part III

Part III

UNBORN VICTIMS OF VIOLENCE ACT OF 2004

The phrase "interrupt a pregnancy" is overly vague and will probably be struck down by the courts on that ground. Because of this vagueness, the courts may well interpret the Feinstein amendment as providing no additional penalty for a crime committed against a fetus.

Some will try to claim this weakens domestic violence laws by averting attention to the unborn. That is simply not true. I am a strong supporter of domestic violence laws and, along with Senator Biden, was the main writer of those bills. I believe domestic violence is an evil plague that needs to be stopped.

My commitment to this issue has been longstanding. As many of my colleagues are aware, I was an original cosponsor of the Violence Against Women Act over a decade ago, and I have tirelessly fought in countless venues to protect the rights of women. This bill furthers that cause.

For many years, I have worked hard on the issue of domestic violence and violence against women, and when I stand here today before the entire Senate and offer my support for a bill, I certainly make sure that bill does not diminish in any way our capacity to curb domestic violence and protect women.

The bill before us strengthens the rights of women and provides those who fight against domestic violence with another tool in their arsenal to go after abusers. This bill focuses attention on both a pregnant woman and her child. Before the Government could prosecute someone for hurting the unborn child, it would first need to prove the pregnant woman was hurt. In other words, the Government needs to prove 1 of 68 enumerated predicate Federal crimes against the mother before it could obtain a conviction under this provision of this bill.

Moreover, this provision empowers abused women because it gives the Government a greater arsenal of prosecutorial tools to put the abusive spouse behind bars for a longer period of time. Many today will talk about the Peterson case. Suffice it to say that the public reaction to that case underscores the widespread support for the changes that we are making with H.R. 1997.

A news poll taken last April consisting of an almost even split of pro-life and pro-choice individuals indicated that 84 percent-let me repeat that, 84 percent-believed that Scott Peterson, who is currently on trial for the murder of his wife, should be charged with two counts of homicide for murdering his wife and unborn son.

California law permits criminals to be charged with murder for killing an unborn child when that child has developed past the embryonic stage. The tragic murder of an innocent unborn child is so shocking and so disturbing that regardless of any stance on abortion, the vast majority of all Americans strongly believe an unborn life taken in murder should result in murder charges brought against the perpetrator.

It is only fair and just to ask for our Federal judicial system to incorporate this strong desire of the vast majority of the American people on this issue.

I urge my colleagues to vote for H.R. 1997. I urge my colleagues to vote against amendments to H.R. 1997. Do it for Laci and Conner Peterson and for thousands of others in similar situations who have been abused. Do it for all women who have chosen to have their baby and are having that choice taken away from them by a cold-blooded murderer. Most of all, do it because it is the right thing to do.

I yield the floor.

The PRESIDING OFFICER (Mr. TALENT). The Senator from California.

Mrs. BOXER. Mr. President, I thank the Senator from Utah because he promised me he would keep within the 15 minutes so that I could get the floor at this time, and I appreciate his cooperation.

I also thank my colleague, the senior Senator from California, Mrs. Feinstein, for her great leadership on this issue. I also have to express a little bit of dismay that she was not able to modify her amendment. It kind of gives one a clue that the people on the other side have a different agenda when they say they are not going to allow a colleague they respect and admire to send a modification to the desk.

So I thought I would want to place that on the record because we remember. These things we will remember because it is not right to not allow a colleague to modify an amendment that she has written. So the next time the other side wants to do it, we will have to think a bit. It is just sad. It is not the way the Senate should work.

Senator Feinstein has yielded me 10 minutes of her time, so if the Chair would tell me when I have used 9 minutes, I would appreciate it.

The PRESIDING OFFICER. The Chair will so notify the Senator.

Mrs. BOXER. I am very much in favor of enhanced penalties for those offenders, those criminals, who harm pregnant women. I think Senator Feinstein's substitute amendment is one that does exactly that. What I do not support are the efforts of some Members of this body who clearly are the leaders of the anti-choice movement in the Senate. We have heard from them seriatim. They have just come right down and spoken. I do not support what they are trying to do, which is to undermine pro-choice laws, particularly Roe v. Wade.

Now, one can dress up a bill to make it look like anything one wants, but the so-called Unborn Victims of Violence Act, although they try to dress it up as a criminal statute designed to deter violence, I think has tremendous weakness in the way it is written and in the way it would prosecute a violent criminal who harms a pregnant woman. It is another effort to undermine Roe v. Wade, which as we know, has given women in this country the right to choose, and it is a very important right of privacy.

How do I know this is the supporters' motivation? It is easy for me because if they wanted to create a law that says we believe that a pregnant woman should be protected and we want to punish someone who harms a pregnant woman, it is a pretty easy thing to just support Senator Feinstein's amendment. It is clean; it is clear; she doubles the penalties just as they do in their bill. She avoids the issue, however, of a woman's right to choose, which this is not about. There is nothing about that in this bill.

The substitute that Senator Feinstein has offered to us, which is like H.R. 1997, creates a separate offense when someone harms a pregnancy or terminates a pregnancy while in the commission of a violent Federal crime. That is very important to do because these crimes are heinous and all the more heinous if a woman is pregnant. As the author of the Violence Against Women Act in the House and working with Senator Biden for 10 years to get it through the Senate and the House and get it signed into law, Senator Feinstein's bill is in tune with that point that we will not stand by and allow violence against women. Particularly if a woman is pregnant, it makes the crime more vicious and it doubles the penalty for such a crime. It creates the same separate penalty for this separate crime, a maximum of 20 years for harm and a maximum of life in the event a pregnancy is terminated. It does not require proof that the offender had knowledge of the woman's pregnancy.
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The sole difference between the substitute that Senator Feinstein is offering and the Unborn Victims of Violence Act is that they want to bring in the issue of a woman's right to choose, and they want to make this bill about a woman's right to choose.
What on Earth does this have to do with a woman's right to choose? Nothing, not a thing. Senator Feinstein's substitute focuses on the pregnant woman. That is the issue, the pregnant woman. So one wonders why the other side cannot accept it. The answer is simple. Again, they are trying to make this about abortion, not about convicting a criminal.
I want to correct something. When I referenced the House bill, I meant to reference the Zoe Lofgren bill-and I am not sure of that number-not the House bill that is identical to Senator DeWine's bill. ZOE LOFGREN in the House had a similar bill to Senator Feinstein's bill. That bill got a lot of support but not enough support.

Again, it is very simple why people over there who are anti-choice did not support the Lofgren bill, and they do not support the Feinstein bill, because they want to make this about abortion and they want to undermine Roe v. Wade and a woman's right to choose.

I am a little bit shocked because the experts who have written to us have told us that the bill that the anti-choice Senators are supporting would make it harder to convict a criminal.

For example, Peter Rubin, visiting associate professor at Georgetown Law Center, when he testified before the House Judiciary Committee, said:

The phrase "child in utero" is ambiguous and would actually aid an offender in avoiding prosecution.

Imagine. It seems to me the other side is so anxious to undermine Roe and to confuse the subject and to make this bill about abortion, they are willing to pass an ambiguous bill which would actually aid the offender, the criminal, and would actually allow some heinous criminal to go free.
I ask unanimous consent that Peter Rubin's letter be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

GEORGETOWN UNIVERSITY
LAW CENTER,
Washington, DC, July 21, 1999.
Re H.R. 2436, The Proposed "Unborn Victims of Violence Act of 1999"-written testimony of Peter J. Rubin, Visiting Associate Professor of Law, Georgetown University Law Center, before the Subcommittee on the Constitution of the House Committee on the Judiciary.

I have been asked by this subcommittee to review and comment upon H.R. 2436, which would create a separate federal criminal offense where criminal conduct prohibited under a list of over sixty federal statutes, in the words of the proposed law "causes the death of, or bodily injury . . . to a child, who is in utero." I am honored to have the opportunity to convey my views to the subcommittee.

Where an act of violence against a pregnant woman results in a miscarriage, that act of violence has wrought a distinct and unique harm in addition to the harm it would have done had the woman not been pregnant. Similarly, injury to a baby that may result from unlawful violence perpetrated upon its mother when it was a fetus in utero is something from which government may properly seek to protect the woman and the child.

Consequently, although many states adhere to the traditional rule that the criminal law reaches only conduct against a person already born alive, some states have enacted laws that penalize conduct that may kill or, in some cases, injure, a fetus in utero. One example is North Carolina's state statute which provides that "A person who in the commission of a felony causes injury to a woman, knowing the woman to be pregnant, which injury results in a miscarriage or stillbirth by the woman is guilty of a felony that is one class higher than the felony committed." (N.C. Gen. State. § 14-18.2.)
If the members of Congress conclude that causing injury in this way during the commission of a federal crime warrants additional punishment, it, too, could adopt such a provision. Indeed, it seems as though this is one area on which both sides of the debate about abortion might be able to find common ground in supporting a properly worded statute that might give additional protection to women and their families from this unique class of injury.

As currently drafted, however, the proposed statute differs from some state laws on this issue in two critical respects. First is its use of the phrase "child, who is in utero" to describe the fetus. This is not the ordinary way statutes refer to fetuses in utero. Indeed, the proposed law appears to be unique in its use of this formulation. The use of this language will likely subject H.R. 2436 to legal challenge, and will likely render the proposed law ineffective in preventing and punishing acts that harm or kill fetuses being carried by pregnant women.

Second is the bill's treatment of the fetus solely as a separate victim of certain federal crimes. This approach is different from that taken by some states that have enacted criminal laws addressing fetal injury or death in that it fails to focus at all on the woman who is the victim of the violence that may injure or kill the fetus. It would be far easier to reach common ground with an approach that takes account of the place of the pregnant woman when acts of violence against her lead to fetal injury or death. Indeed, the approach taken by the current statute may lead to some unintended results, and is not consistent with the treatment of the fetus in the American legal tradition.

To begin with, the proposed law refers to "a child, who is in utero at the time the conduct takes place." Because it uses these words, the proposed law would likely result more in useless litigation about the statute's meaning than in the prevention and punishment of conduct that results in fetal injury or death. Its use of the phrase "child, who is in utero" may give a defendant an argument that the statute is ambiguous, and that he lacked the notice of what acts are criminal that is required by the Due Process Clause of the Fifth Amendment. Does it mean the statute applies only to the injury or death of a "child," that is one who is subsequently born, but who was injured in utero? Does it refer to a fetus past the point of viability? Does it refer to a single-cell fertilized ova that has not yet implanted in the uterine wall? The statute does not tell us.

Even if the law is not held inapplicable because of unconstitutional vagueness, the Supreme Court has articulated a doctrine known as the doctrine of "lenity." Rooted in part in separation of powers concerns, this doctrine means that an ambiguous federal criminal statute must be construed in the way most favorable to the defendant, lest an individual be criminally punished for conduct that Congress did not intend to criminalize. At best, the phrase "child, who is in utero" is ambiguous here, and a defendant is likely to be able to avoid prosecution for whatever conduct it is that the drafters of this law intend to criminalize.

In addition, this statute operates in a very unusual manner. It does not just increase the penalty for unlawful violence against a pregnant woman that results in the death of or injury to a fetus, nor does it criminalize injuring or killing a fetus if one has the requisite mental state and is aware of the woman's pregnancy. Rather it includes fetuses within the universe of persons who may be protected from injury or death resulting from violations of other federal criminal laws.
Many state laws address fetal injury and death only in certain circumstances, and, reflecting the unique nature of the developing fetus, many provide some penalty that is different from the penalty that would have applied had the defendant killed or injured a person who was already born. They tend also to take account of the fetus's stage of development. State feticide laws often do not treat even the intentional killing of a fetus through violence perpetrated upon the pregnant woman as murder equivalent to the murder of a person who has been born. Some, like North Carolina, enhance the penalty for the underlying criminal conduct. Others treat even intentional feticide only as manslaughter. Thus, in Mississippi, for example, the law provides that "The wilful killing of an unborn quick child, by an injury to the mother of such child, which would be murder if it resulted in the death of the mother, shall be manslaughter." (Miss. Code. Ann. § 97-3-37.)

The proposed law by contrast says that whenever causing death or injury to a person in violation of a listed law would subject an individual to a particular punishment, he shall be subject to the same punishment if he causes death or injury to a fetus. This is true regardless of the stage of fetal development. Whatever its rhetorical force, the proposed law would lead to some unusual, and probably unintended, results. To give just one example, under the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, one of the statues listed in H.R. 2436, if an individual who is engaged in obstructing access to an abortion clinic knocks a pregnant woman to the ground during a demonstration, he is liable to imprisonment for up to one year. If he causes her "bodily injury" when he knocks her down, he would be subject under FACE to a ten-year term of imprisonment. Under the proposed law, however, if she miscarried as a result of being knocked down, he would be subject to life imprisonment, the same as if his action had caused the death of the woman herself.
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In addition to being far more practical, it would be fare easier to reach common ground on this issue with adoption of a statute similar to those state statutes, providing for enhanced punishments that I have described. For in addition to the practical consequences, the use of a statutory framework, that seeks to achieve its result through treating all fetuses at all stages of development as persons distinct from the women who carry them unnecessarily places federal statutory law on the path toward turning the pregnant women into the adversary rather than the protector of this fetus she carries.

For although this law contains exceptions for abortion, for medical treatment of the woman or the fetus and for the woman's own conduct-exceptions that are both wise and constitutionally required-if the fetus were truly a "person," there would be no principled reason to include such exceptions. Yet of course a law that did not contain them would be shocking to most Americans and both obviously and facially unconstitutional.

Finally, then, in failing to take account of the women, the proposed statute also sets federal law apart from the American legal and constitutional tradition with respect to the treatment of the fetus. As the Supreme Court has, described, "the unborn have never been recognized in the law as persons in the whole sense." At common law, the destruction of a fetus in utero was not recognized as homicide unless the victim was born alive. And, of course, the Supreme Court has held that fetuses are not persons within the meaning of the Fourteenth Amendment. This is a position with which even as staunch an opponent of Roe v. Wade as Justice Antonin Scalia agrees.

In addition, therefore, to the practical and political considerations that counsel in favor of an alternative approach, the proposed law would also unnecessarily set federal statutory law on a conceptual collision course with the Supreme Court's abortion decisions. Whatever one may think of those decisions, an unnecessary conflict about them would not contribute to the important work of healing where possible the country's division over abortion.

Mrs. BOXER. Then you have Jon Jennings who in 1999 was the Acting Assistant Attorney General. He submitted a letter to Representative Henry Hyde on behalf of the Justice Department. He also wrote the law would be hard to prosecute because of the difficulty in gathering evidence.

I ask unanimous consent to have Jon Jennings' letter printed in the Record.
There being no objection, the material was ordered to be printed in the RECORD, as follows:

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, DC, September 9, 1999.
Hon. HENRY HYDE,
Chairman, Committee on the Judiciary, U.S. House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This letter presents the views of the Department of Justice on H.R. 2436, the "Unborn Victims of Violence Act of 1999."

Section 2 of H.R. 2436 would make it a separate federal offense to cause "death or bodily injury" to "a child in utero" in the course of committing any one of 68 enumerated federal crimes. The punishment for the new crime under H.R. 2436 is the same as if the harm had been inflicted upon the "unborn child's mother," except that the death penalty is not permitted. Section 3 of H.R. 2436 would make substantively identical amendments to the Uniform Code of Military Justice.

The Justice Department strongly objects to H.R. 2436 as a matter of public policy and also believes that in specific circumstances, illustrated below, the bill may raise a constitutional concern. The Administration has made the fight against domestic violence and other violence against women a top priority. The Violence Against Women Act (VAWA), which passed with the bipartisan support of Congress in 1994, has been a critical turning point in our national effort to address domestic violence and sexual assault. VAWA, for the first time, created federal domestic violence offenses with strong penalties to hold violent offenders accountable. While most domestic violence crimes are appropriately prosecuted at the state and local level, the Department of Justice has brought 179 VAWA and VAWA-related federal indictments to date, and this number continues to grow. In addition, the Department of Justice alone has awarded well over $700 million through VAWA grant programs since 1994, directing critical resources to communities' efforts to respond to domestic violence and sexual assault. These funds have made a difference in women's lives, and in how communities respond to violence against women. Indeed, these funds have helped save the lives of many victims of domestic violence.

If the Committee wants to make a difference in the lives of women victims of violence, it should reauthorize the Violence Against Women Act. We hope that Congress will work with us on this common goal. H.R. 2436, however, is not an adequate response to violence against women. Our three main objections to H.R. 2436 are described below.
First, H.R. 2436 provides that the punishment for a violation shall be the same as the punishment that would have been imposed had the pregnant woman herself suffered the injury inflicted upon her fetus. The Department agrees that some additional punishment may be warranted for injury to pregnant women. H.R. 2436, however, would trigger a substantial increase in sentence as compared with the sentence that could otherwise be imposed for injury to a woman who is not pregnant.

Second, H.R. 2436 expressly provides that the defendant need not know or have reason to know that the victim is pregnant. The bill thus makes a potentially dramatic increase in penalty turn on an element for which liability is strict. As a consequence, for example, if a police officer uses a slight amount of excessive force to subdue a female suspect-without knowing or having any reason to believe that she was pregnant-and she later miscarries, the officer could be subject to mandatory life imprisonment without possibility of parole, even though the maximum sentence for such use of force on a non-pregnant woman would be 10 years. This approach is an unwarranted departure from the ordinary rule that punishment should correspond to culpability, as evinced by the defendant's mental state.

Third, H.R. 2436's identification of a fetus as a separate and distinct victim of crime is unprecedented as a matter of federal statute. Such an approach is unnecessary for legislation that would augment punishment of violence against pregnant women. Additionally, such an approach is unwise to the extent that it may be perceived as gratuitously plunging the federal government into one of the most-if not the most-difficult and complex issues of religious and scientific consideration and into the midst of a variety of State approaches to handling these issues.

Our policy concerns with H.R. 2436 are exacerbated by the likelihood that the bill will yield little practical benefit. Because the criminal conduct that would be addressed by H.R. 2436 is already the subject of federal law (since any assault on an "unborn child" cannot occur without an assault on the pregnant woman), H.R. 2436 would not provide for the prosecution of any additional criminals. At the same time, prosecutors proceeding under H.R. 2436 would be likely to encounter difficulty collecting evidence to support their prosecutions. For instance, the prosecutor would have to establish that the defendant's conduct "cause[d]" the injury-given the inherent risk of miscarriage and birth defects that occur absent any human intervention, causation may be very difficult to establish.

Finally and critically, the drafters of H.R. 2436 are careful to recognize that abortion-related conduct is constitutionally protected. The bill accordingly prohibits prosecution for conduct relating to a consensual abortion or an abortion where consent "is implied by law in a medical emergency." Without this exception, the bill would be plainly unconstitutional. Including the exception does not, however, remove all doubt about the bill's constitutionality. The bill's exception for abortion-related conduct does not, on its face, encompass situations in which consent to an abortion may be implied by law (if, for example, the pregnant woman is incapacitated) even though there is no medical emergency. In this situation, the bill may unduly infringe on constitutionally protected conduct.

For these reasons, we strongly oppose H.R. 2436. The Administration, however, would work with Congress to develop alternative legislation that would strengthen punishment for intentional violence against women whom the perpetrator knows or should know is pregnant, strengthen the criminal provisions of VAWA, and reauthorize the grant programs established by this historic legislation.

Thank you for this opportunity to present our views. The Office of Management and Budget has advised us that from the standpoint of the Administration, there is no objection to submission of this letter. Please do not hesitate to call upon us if we may be of further assistance.

Sincerely,
JON P. JENNINGS,
Acting Assistant Attorney General.

Mrs. BOXER. Then there is a recent letter of George Fisher, a tenured professor at Stanford, former prosecutor and expert on the criminal justice system. He, too, believes it makes things worse in terms of convicting a criminal.

Mrs. BOXER. I thank my colleague.
I ask unanimous consent the letter from George Fisher be printed in the RECORD.
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There being no objection, the material was ordered to be printed in the RECORD, as follows:

STANFORD LAW SCHOOL,
Stanford, CA, July 10, 2003.
Senator DIANNE FEINSTEIN,
U.S. Senate, Senate Hart Office Building, Washington, DC.

DEAR SENATOR FEINSTEIN, I wish to express my concern about the current formulation of S. 1019, the Unborn Victims of Violence Act of 2003. Although I fully endorse the Bill's ultimate aim of protecting pregnant women from the physical and psychological trauma of an endangered or lost pregnancy, I believe that the Bill's current formulation will frustrate rather than forward this goal.

I write both as a former persecutor and as a law professor specializing in criminal law and criminal prosecution. At the outset of my career, I served as an assistant district attorney in Middlesex County, Mass., and as an assistant attorney general in the Massachusetts Attorney General's office. I then went to Boston College Law School, where I administered and taught in the criminal prosecution clinic. I have been at Stanford since 1995 and a tenured professor of law since 1999; during the next academic year, I will serve as Academic Associate Dean. In 1996 I founded Stanford's criminal prosecution clinic and have administered and taught in the clinic ever sine. I have also created a course in prosecutorial ethics, which I taught at Boston College Law School and, as a visitor, at Harvard Law School.

My background and interest in criminal prosecution prompt me to raise three objections to this Bill. All of them focus on the Bill's use of the expressions "child in utero" and "child, who is in utero," and on its definition of these terms as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

First: The Bill's apparent purpose of influencing the course of abortion politics will discourage prosecutions under any future Act.

I do not know what motives gave rise to the Bill's use of the expressions "child in utero" and "child, who is in utero," but I do know that any vaguely savvy reader will conclude that these terms and the Bill's definition of them were intended by the Bill's authors to influence the course of abortion politics. It is a fair prediction that when a pro-life
President is in office, prosecutions under this Bill will be more frequent than when a pro-choice President is in office. That is because the public will interpret this Bill as suggesting that abortion is a potentially criminal act and will interpret prosecutions under the Bill as endorsing this sentiment.

If the authors of the Bill truly seek to protect unborn life from criminal violence, they will better accomplish this purpose by avoiding such expressions as "child in utero." Better alternatives would refer to injury or death to a fetus or damage to or termination of a pregnancy.

Second: The Bill's apparent purpose of influencing the course of abortion politics will motivate prosecutors to exclude those prospective jurors who otherwise would be most sympathetic to the prosecution's case.

If I were prosecuting a case under this Bill, I would hope to have a jury that includes persons deeply sensitive to the rights and interests of pregnant women. Such jurors would regard an attack on a pregnant woman as being a twofold crime, comprising both the injury directly inflicted on the mother and the stark emotional and physical trauma resulting from injury to or loss of her pregnancy.

But such jurors also will be more likely than others to believe that pregnant women have the right to exercise autonomy over their bodies and to choose whether to abort a pregnancy. I predict that many or most judges will bar prosecutors and defense counsel from questioning prospective jurors about their views on abortion or about related matters such as their religion, religious practices, or political affiliations. Forced to act largely on instinct, prosecutors may be inclined to exercise peremptory challenges against those prospective jurors who appear to be most sympathetic to the rights of pregnant women. This result clearly would frustrate the Bill's stated purpose of protecting unborn life from criminal violence.

Third: The Bill's apparent purpose of influencing the course of abortion politics offends the integrity of the criminal law.

To anyone who cares deeply about the integrity of the criminal law, this Bill's apparent attempt to insert an abortion broadside into the criminal code is greatly offensive. The power to inflict criminal penalties is, second only to the power to wage war, the highest trust invested in our institutions of government. Because the power to make and enforce criminal laws inherently carries enormous potential for abuse, those who exercise that power must always do so with a spirit free of any ulterior political motive. The American Bar Association's Standards Relating to the Administration of Criminal Justice provide that "[i]n making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved. . . ." (Standard 3-3.9(d).) Not all prosecutors conduct themselves with fidelity to this principle, but we may readily condemn those who do not. We may likewise condemn other public actors who abuse the sacred public trust of the criminal sanction for political ends.

For these reasons, I object to the current formulation of the Unborn Victims of Violence Bill. As I am confident that an alternative version of the Bill can fully accomplish its stated purpose of protecting unborn life from criminal violence while avoiding each of the difficulties I have outlined above, I strongly encourage the Senate to modify the Bill in the ways I have suggested above or in some other manner that avoids the freighted and frankly politicized terms, "child in utero" and "child, who is in utero."

My thanks to you for your consideration of my views.
Sincerely,
GEORGE FISHER,
Professor of Law.

Mrs. BOXER. Mr. President, according to the experts, creating a separate offense for a child in utero would make it less likely that someone who harms or terminates a pregnancy would be convicted of a separate offense. So I find it stunning that, rather than back Senator Feinstein's substitute, which is very clear-you harm a pregnant woman, you are going to do double the time, you are going to get double the punishment, and it avoids all question of Roe v. Wade-it shocks me my colleagues on the other side would rather have a weaker bill, soft on the criminal, soft on crime, in order to undermine Roe v. Wade. It is an injection of a political agenda into the criminal justice system which I think harms the integrity of the system.

Again, I am at a loss for words. That is hard for me to believe. But if you look at domestic violence groups, they will tell you how they feel about it. They say they don't support the legislation. They feel it would actually be harmful to battered women.

Again, as someone who coauthored the Violence Against Women Act with Senator Biden, here we have a piece of legislation that is going to be harmful to battered women. Yet the other side will not support Senator Feinstein's amendment, which absolutely avoids this problem.

Juley Fulcher, public policy director of the National Coalition Against Domestic Violence, who testified before the House subcommittee in July 2003, said in her written statement:

The bill is not designed to protect women and does not help victims of domestic violence. Instead, the focus often will be shifted to the impact of the crime on the unborn embryo or fetus, once again diverting the attention of the legal system away from domestic violence or other forms of violence against women.

I commend to my colleagues the July 8, 2003 testimony of Juley Fulcher before the Subcommittee on the Constitution of the House Committee on the Judiciary.

We also have a letter from Lynn Rosenthal, the executive director of the National Network to End Domestic Violence, and the letter of Esta Soler, president of the Family Violence Prevention Fund. I ask unanimous consent to have them printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:
NATIONAL NETWORK TO END
DOMESTIC VIOLENCE,
Washington, DC, February 18, 2004.

DEAR MEMBER OF CONGRESS: The National Network to End Domestic Violence (NNEDV), a social change organization representing state domestic violence coalitions, is dedicated to creating a social, political and economic environment where violence against women no longer exists. We are writing because we know that you will soon be considering the Unborn Victims of Violence Act (UVVA). We know that this is a difficult and emotional issue, and that you are carefully considering your position.

After very careful consideration and study on our part, we have concluded that the UVVA is not the appropriate remedy for addressing violence against pregnant women. We certainly share the concerns of the sponsors of the legislation about tragic crimes such as the murder of Laci Peterson and other pregnant women. We know that Congress is seeking tools and remedies to address such violence, and appreciate your ongoing support for the Violence Against Women Act. Our concerns about the UVVA are mainly focused on its potential impact on the safety and status of women who are victims of domestic violence.

Our first concern is that the legislation could potentially remove the focus on the women as the victim of violence. It would be possible under the UVVA that a violent crime specifically targeted at a woman could be prosecuted with the fetus presented as the primary victim. Yet, it is the violent act against the woman that is at the root of the devastating injuries to the women and the pregnancy. In our view, legislation and policy should be focused on recognizing violence against women as the serious crime it is, and need not rely on loss of a pregnancy to vigorously prosecute these crimes.
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Our second concern is that while the UVVA on its face seems to protect women from prosecution of the violence causes her to lose the pregnancy, it may lead to a slippery slope that erodes women's rights and holds them responsible for this loss. This slippery slope has already formed in South Carolina and California, two states with unborn victims legislation. For example, in Whitner v. State, the court found that South Carolina's child endangerment statute could be used to punish a pregnant woman who engaged in any behavior that might endanger her fetus.

Legislation regarding violence against women must be carefully considered in order to prevent unintended effects from hurting the very women it is supposed to help. Battered women cannot control the violence against them, and should not face the possibility of prosecution simply because they are victims of domestic violence. The landmark case of Nicholson v. Williams, decided in the Eastern District of New York, represents an enormous step in clarifying this position. The federal district court in Nicholson found that mothers' due process rights had been violated when their children were taken away from them merely because they were victims of abuse. That decision correctly puts the emphasis on the abused woman, and stands for the proposition that an abused woman should not be punished, or prosecuted, for occurrences beyond her control.

Because of our work with battered women, we do know that violence often occurs during pregnancy, and that pregnant women may be both physically and psychologically more vulnerable to such abuse. We believe that by supporting sentencing enhancements, Congress can advance both its goals of protecting victims of domestic violence and providing a legal sanction for loss of pregnancy as a result of battering. Sentencing enhancements appropriately punish the additional injuries that such acts cause without causing the unnecessary complications, and potentially dangerous consequences, for the women we serve.

There are also a number of other steps Congress can take to more effectively address the problem of violence against women. First, Congress can fully fund the Violence against Women Act. Unfortunately, the 2004 budget includes $16.1 million in cuts to the STOP grant program, which provides funding to states, tribes and territories to enhance the law enforcement response to domestic violence and sexual assault, improve prosecution and support victim services.

These cuts will have a detrimental impact on communities all across the country that are struggling to maintain core interventions for victims. In addition, the Battered Women's Shelter and Services funding was also cut in 2004, and remains at $48 million below the authorized level. Funds to battered women's programs and rape crisis centers have also received cuts at the local and state level over the past several years. These losses are devastating to providers facing bruised and bleeding women every day. Congress can work to address the problem of violence against women by fully funding these life-saving services.

Thank you for considering our perspective on the UVVA. While the bill is noble in its intentions, we are concerned that it may not fulfill its purpose of creating a legal atmosphere in which women feel protected from violence. Please feel free to call me if you need any additional information. We appreciate for your commitment to ending violence against women, and look forward to continuing to work with you to address this most urgent social problem.

Sincerely,
LYNN ROSENTHAL,
Executive Director.

END ABUSE,
Washington, DC, March 23, 2004.
Hon. JERROLD NADLER,
2334 RHOB,
Washington, DC.

DEAR REPRESENTATIVE NADLER: On behalf of the Family Violence Prevention Fund, I am writing to express concern about the Unborn Victims of Violence Act, H.R. 1997, passed by the House Judiciary Committee on January 21. We are deeply disappointed that some are promoting this bill as a way to end domestic violence, when better and more direct measures to stop family violence languish in Congress year after year. Members of Congress who want to stop abuse will put their energy into passing the prevention and intervention measures that offer great promise to stop violence before it starts.

The murder of Laci Peterson was an unspeakable tragedy, but many laws designed as quick fixes have caused great harm. For example, mandatory domestic violence health reporting laws deter women from seeking the medical help they need. We need to stop back and consider what actually works. Our goal must be to stop violence against all women, regardless of whether they are pregnant.

If Congress is serious about stopping domestic violence against pregnant women and helping women and children who are victims, Members will quickly pass the Domestic Violence Screening, Treatment and Prevention Act, H.R. 1267.

This essential bill would train health care providers to routinely screen female patients for a lifetime history of abuse and give women access to critical domestic violence services when abuse is identified. Introduced in the House in March of 2003 by Representatives Lois Capps (D-CA) and Steven LaTourette (R-OH), this bill has the potential to prevent tragedies by helping victims before violence escalates.

We also urge Congress to fully fund all Violence Against Women Act programs and support legislation that would actually prevent domestic violence before it begins. Domestic violence prevention legislation should include services for children who are exposed to abuse, programs that support young families at risk of violence, and efforts to each young men and boys how to develop healthy, non-violent relationships. Such legislation would do much more to stem the tide of domestic violence than the Unborn Victims of Violence Act.

Finally, we wish to thank you for your continued leadership and support on this issue. As an advocate in Congress and as one of our Founding Fathers, you truly make a difference in the movement to end violence against women and children. If we can be of assistance, please do not hesitate to contact Kiersten Steward in our Washington, D.C. office at 202-682-1212.

Sincerely,
ESTA SOLER,
PRESIDENT, FAMILY VIOLENCE
Prevention Fund.

Mrs. BOXER. Here we have it. I am going to finish with this. We have a bill before us Senator Feinstein has improved greatly. We have a bill before us that, instead of concentrating on punishing the violent criminal, concentrates instead on trying to set the stage to reverse Roe v. Wade, which the vast majority of people in this country think is a good law that balances the rights of the woman and the rights of the fetus. Yet they are so interested in doing this that they have a bill that is going to make it difficult to convict the criminal who commits the heinous crime against the pregnant woman. It shows you how far the other side will go.

When we reach out our hand, as we have done many times with them, they will not take our hand. They push it away, because they are much more interested in the political agenda of taking away a woman's right to choose.
My heart goes out to Laci Peterson's family and to all the other families that have experienced the tragedy of losing a loved one to a violent crime and, on top of that, losing the joy I and Senator Feinstein have of having grandchildren.

But we need to pass laws here that will make matters better, not make matters worse. We need to pass laws here that are clean, that will make the law clear and not murky. I think Senator Feinstein's substitute-she wrote it with the Laci Peterson family in her heart. She wants to make sure criminals who would attack a pregnant woman are brought to justice and we don't get diverted to some other issues.

I am proud to stand with my colleague on this one. I know how hard this is. I know how hard she has worked. I will support her substitute very proudly, knowing it is the right thing to do, to crack down against these heinous crimes and to protect pregnant women.

I thank her very much, and I yield the floor and reserve the remainder of Senator Feinstein's time.

The PRESIDING OFFICER. Who yields time? The Senator from Kansas is recognized.

Mr. BROWNBACK. Mr. President, on behalf of the Senator from Ohio, I yield myself such time as I might consume on his side.

The PRESIDING OFFICER. Without objection, it is so ordered. The Senator is recognized.

Mr. BROWNBACK. Mr. President, I inquire first how much time is remaining for the Senator from Ohio.

The PRESIDING OFFICER. There are 41 minutes remaining on the Senator's side.

Mr. BROWNBACK. Thank you, Mr. President.

I thank my colleagues for being here to participate in a difficult debate. I have a difficult set of stories I want to tell. If any of the individuals here in this body, or watching, are interested in talking to the individuals involved, they are actually outside in the lobby. I invite anybody to come out. There are grandparents, mothers of victims-there are the women who themselves were assaulted and lost a child. They are here. For those individuals here would care to visit with them, they would love to have a chance to tell their story.

The question is simple: do we have one victim or two involved in violent crimes such as these? That is the simple question. I will present a series of case studies to my colleagues and then I will ask my question again-colleagues, do we have here one victim, or two?
[Page S3142]

We start with the story of Christina and Ashley Nicole Alberts. We have a chart which presents a heartbreaking picture. I think it needs to be shown to better tell the story. This is a gut-wrenching picture of Christina and Ashley Nicole Alberts (you can see them there in the coffin). It is a difficult picture. This body needs to know what the Unborn Victims of Violence Act is about-the victim.

I ask my colleagues to bear in mind that the Unborn Victims of Violence Act states there are two victims-there are two victims in this picture. The amendment we are considering right now, the Feinstein amendment, says there is only one victim-one victim in this picture. I simply ask my colleagues to make that determination. Is there one victim or are there two in this picture? Here is the story.

In December 1998, Christina was nearly 9 months pregnant.

Ashley was looking forward to life with her soon-to-be-born daughter whom she could definitely feel moving, alive and well, and growing in her womb. When she found out she was going to have a girl, she decided to name her Ashley Nicole.

However, this earthly life-which all of us living and breathing here today enjoy-tragically came to a screeching halt for Christina and Nicole on December 12, 1998. On that day, some thugs were going around robbing homes for money. The thugs entered the house where Christina was. Christina recognized one of them, and because she recognized one of them, it cost her and her baby Ashley Nicole their lives.

Christina was beaten. Can you imagine someone beating a woman in the ninth month of her pregnancy? Yet they did. I think of my own family and my own wife if she were in that type of situation.

Christina was then forced to kneel, and she was executed-shot in the head. Once the trigger had been pulled, releasing the bullet that abruptly ended her life, one might think at least the physical pain from the crime was over for Ashley Nicole. It was not. When her mother's heart stopped, her inutero child does not die instantly. Instead, the inutero baby dies slower. When the mother's heart stops beating, the baby begins to suffocate for lack of oxygen. The baby can feel. The baby is in pain. At 4 minutes, the baby begins to suffer severe neurological damage. The process gets worse.

Ashley Nicole would have finally died 15 minutes after her mother Christina had been shot and killed.
Look at this photo again of Christina and Ashley in the coffin. Is there one victim? Or are there two? Who will say there is only one victim in this coffin? Yet this substitute amendment we are considering will say there is only one victim.

What about the family? What about Ashley Nicole's grandparents? What happened to them after the murders? Christina and Ashley Nicole lived in Kanawah County, West Virginia.

Her grandmother is here today.

In addition to the horrific news of their daughter and granddaughter's murder, they were further traumatized to learn the West Virginia murder statute does not allow the prosecution of an individual for the murder of an unborn child.
Do you know what happened in the murder trial for Christina and Ashley's killer? Christina's pregnancy could not even be discussed in court. Any recent photos of Christina shown during the trial could only show facial shots. Why? Because the court said any pictures of Christina in which it would have been obvious she was pregnant would have been prejudiced.

I ask my friends from West Virginia to support their constituents, the Alberts, by opposing the Feinstein substitute and voting for passage of unamended Unborn Victims of Violence Act.

I have another story to tell-Heather Fliegelman Sargent.

In this picture with her mother, as you can see, 20-year-old Heather was well into her pregnancy. Heather was 8 months pregnant with her son Jonah.

I also point out that her mother and the grandmother of Jonah are here with us today in the lobby, if people should care to visit with her.

Sadly, both the lives of Heather and Jonah were taken in January 2003, over a year ago. Heather was found dead with multiple stab wounds in her home in Bangor, ME. Her husband Roscoe Sargent was tried on one-only one-count of murder.

The Bangor Daily News reported on January 10, 2003: "That Heather Sargent was pregnant did not affect the charges brought against her husband . . . No matter how advanced the pregnancy, Maine's homicide law does not apply to unborn fetuses."

But listen to this. Another news story on that same day, January 2, 2003, tells us that "Police also reportedly found several dead cats at home. Whoever killed the cats faces charges under the State's animal welfare act, while no charges will stem from the death of the unborn baby."

Is it even remotely rational to charge someone with the death of these cats and yet not charge them with the death of a viable 8-month-old baby?

As we move to the next chart in the same case, I want to pause for a moment and urge caution for any parents who may be watching with young children present. They may not want to view this. It is a serious matter, and these are real life stories that people need to hear. But, nonetheless, they are difficult.

I would simply ask as we move to the next chart, are we looking at one victim or two? On the left in the chart is Heather before she was stabbed to death, and on the right is Jonah who also died in the attack.

The grandmother of Jonah is here with us today.

I hope Senators will hear the pleas of their constituents-the family of Heather and Jonah who are here in the Senate today watching, as I noted. Please, in their behalf, on behalf of Heather and Jonah, oppose this substitute that says there is only one victim.

The Feinstein substitute would increase penalties for Federal crimes in which a pregnant woman is a victim, but it would also write into Federal law the doctrine that such a crime has only a single victim. If we pass this Feinstein amendment, and a mother survives such an attack, she will be told, "We can prosecute your attacker for assault but not for murder-the law says nobody died."

This cannot and should not be. On behalf of Heather and Jonah, I urge my colleagues to oppose the Feinstein substitute and support the underlying bill un-amended.

I have another story to tell. This picture shows the late Ashley Lyons of Kentucky. Ashley was killed when she was 21 weeks pregnant with her son Landon, in January of this year-just 3 months ago.

Her parents and Landon's grandparents are here today. They are in the lobby, if anybody would care to meet with them. I have met personally with them. They are very passionate about this case and about what took place. If Ashley and her son Landon were with us today, they would be planning for Landon's birth in just a little over a month. I have a staff member who is expecting a child in a little over a month, so this really hits home.

Rather than telling the story of Ashley and Landon myself,I would like to read their story as it was written by the mother and grandmother, Mrs. Carol Lyons. As I noted, Mrs. Carol Lyons is with us here today, along with her husband Buford. It was their efforts that helped get an unborn victims law passed in Kentucky-too late for their daughter and grandson, but not too late for other victims.

I will read you this story which actually quotes Ashley, as written by her mother, the grandmother of Landon. It was written February 25, 2004.

I note parenthetically that if this crime had happened on a military base where only Federal law applies, there would be only one victim-not two-unlike California law, which acknowledges two victims of violence.

Ashley's mother writes:
On January 7, I was seeing my grandson, Landon, for the first time. Landon was moving around in an ultrasound image on the TV screen in our home in Stomping Ground, Kentucky. We could clearly see Landon's little heart beating. We could see his little face. Just a few hours later, Ashley and Landon were both dead. They were found murdered-shot to death in a local park.

Later, I found a journal that Ashley had been writing to her baby. Right at the beginning, when she was only two months pregnant, she wrote how she had rejected advice to get an abortion.
[Page S3143]

Clearly Ashley made a choice to have a child. She wrote in her journal: "I couldn't do that. I already loved you."

Ashley also wrote: "You are the child I have always dreamed about. I know that it will be a long time before I meet you, but I can't wait to hold you for the first time. I love you more everyday. Always, Mommy."
Yes, the killer took two lives-each with a long, bright future ahead. It is heartless and cruel to say that the law must pretend this is not so, in order to preserve "choice" on abortion. Ashley had made her choice-and she chose life.

This, again, is her mother Carol speaking.
Our case has been widely reported in Kentucky. In response, both houses of the legislature passed a strong fetal homicide bill, and on January 20th, Governor Ernie Fletcher signed it into law.

I pray that Congress, too, will soon pass the Unborn Victims of Violence Act, which will allow a criminal to be charged for any harm he does to an unborn child during commission of a Federal or military crime.

Of course, laws are not retroactive, so no laws enacted now will allow full justice to be done on Landon's behalf.

But they will ensure in the future no mother, grandmother, or other family member will ever again be told that the law is blind to the loss of a child who is unborn but already living and loved.

I ask my colleagues to listen again to Ashley's words to her child Landon-both victims, both were murdered:

You are the child I have always dreamed about. I know it will be a long time before I meet you, but I can't wait to hold you for the first time. I love you more every day. Always, Mommy.

I ask my colleagues, is there one victim, or are there two? Is it one victim or two when Ashley and Landon were murdered?

I have another case-unfortunately, there are too many of these cases-that demonstrates why this law needs to be dealt with. Here is a picture of Tracy Marciniak holding her son Zachariah 12 years ago. This is a case from Wisconsin.

We all have precious baby photos. I have five children, and I love each of them and have precious photos. This should be a happy baby photo, but if you look closely, you will see it is not. You can see it by the look on Tracy's case, by the coffin behind her, and by the funeral flowers. Tracy's son Zachariah is dead and she, Tracy, survived, and is here today.
If people would like to visit with her, she is in the lobby.

In 1992, in Wisconsin, Tracy was terribly beaten. She lived and her son Zachariah died. I have spoken with Tracy, and I have heard how the loss of Zachariah hurts her to this very day. Regrettably, justice was not served. Was Tracy and Zachariah's assailant charged with the murder of Zachariah? No. In Wisconsin, law enforcement authorities told Tracy's family they could only charge the attacker with assault; in the eyes of the law, no one died.

What is more, Tracy's attacker says he would not have attacked her if he could have been charged with murder. Let me state that again: If Tracy's attacker had known he could have been charged with murder, he would not have attacked her.

I would like to read a portion of Tracy's July 8, 2003, testimony in front of the House Judiciary subcommittee, where she has spoken about this case before. This is Tracy Marciniak's statement:

I respectfully ask that the members of the subcommittee examine the photograph that you see before you. In this photo, I am holding the body of my son, Zachariah Nathaniel.

Often, when people see the photo for the first time, it takes a moment for them to realize that Zachariah is not peacefully sleeping. Zachariah was dead in this photograph. This photo was taken at Zachariah's funeral.

Continued in Part IV