Unborn Victims of Violence Act of 2004 - Part IV

Part IV

UNBORN VICTIMS OF VIOLENCE ACT OF 2004

I carried Zachariah in my womb for almost nine full months. He was killed in my womb only five days from his delivery date. The first time I ever held him in my arms, he was already dead. This photo shows the second time I held him-it was the last time.

There is no way I could really tell you about the pain I feel when I visit my son's grave site in Milwaukee, and at other times, thinking of all we missed together. But that pain was greater because the man who killed Zachariah got away with murder.

I know that some lawmakers in some groups insist there is no such thing as an unborn victim, and that crimes like this have only a single victim-but that is callous and it is wrong. Please don't tell me that my son was not a real victim of a real crime. We were both victims, but only I survived.

Zachariah's delivery date was to be February 13, 1992. But on the night of February 8, my own husband brutally attacked me in my home in Milwaukee. He held me against a couch by my hair. He knew that I very much wanted my son. He punched me very hard, twice, in the abdomen. Then he refused to call for help, and prevented me from calling.

After about 15 minutes of my screaming in pain that I needed help, he finally went to a bar and from there called for help. I and Zachariah were rushed by ambulance to the hospital, where Zachariah was delivered by emergency Caesarean section. My son was dead. The physicians said he had bled to death inside me because of blunt-force trauma.

My own injuries were life-threatening. I nearly died. I spent three weeks in the hospital. During the time I was struggling to survive, the legal authorities came and they spoke to my sister. They told her something that she found incredible. They told her that in the eyes of Wisconsin law, nobody had died on the night of February 8.

Later this information was passed on to me. I was told that in the eyes of the law, no murder had occurred. I was devastated.

My life already seemed destroyed by the loss of my son. But there was so much additional pain because the law was blind to what had really happened. The law, which I had been raised to believe was based on justice, was telling me that Zachariah had not really been murdered.

Before his trial, my attacker said on a TV program that he would never have hit me if he had thought he could be charged with killing an unborn baby.

My family and I looked for somebody who would help us reform the law so that no such injustice would occur in our state in the future. We found only one group that was willing to help, Wisconsin Right to Life. They never asked me my opinion on abortion or on any other issue. They simply worked with me, and other surviving family members of unborn victims, to reform the law.

It took years. Again and again I told my story to state lawmakers and pleaded with them, as I now plead with you, to correct this injustice in our criminal justice system.

Finally, on June 16, 1998, Governor Tommy Thompson signed the fetal homicide law. This means it will never again be necessary for state authorities in Wisconsin to tell a grieving mother, who has lost her baby, that nobody really died.

Under this law, an unborn child is recognized as a legal crime victim, just like any other member of the human race.

Of course, the state still has to prove anything beyond a reasonable doubt to a jury, which is as it should be. But when this bill was under consideration in the legislature, it was actually shown to some of the former jury members in our case, and they said if that had been the law at the time I was attacked, they would have had no problem convicting my attacker under it.

Next, I present a statement from Ms. Shiwona Pace of Arkansas. Ms. Pace suffered a horrible tragedy. She was severely beaten by several attackers, and as a direct result, her baby, whom she had named Heaven, died. Fortunately, Arkansas passed an unborn victims of violence law prior to the crime committed by Ms. Pace's assailants. Under the Feinstein amendment, Ms. Pace's assailants would not have even committed a crime, other than assault. Please listen to her plea to legislators.

My name is Shiwona Pace. On August 26, 1999, I was a 23-year-old college student in Little Rock. I was the mother of two-my five-year-old son, and an unborn baby girl named Heaven Lashay.
August 26 was one day before my predicted full-term delivery date. But that night, three men brutally murdered my unborn baby daughter. I curled up face down on the floor, crying, begging for them to stop beating me. But they did not stop. One shouted, "F*** you! Your baby is dying tonight!"

They choked me, punched me, hit me in the face with a gun. They kicked me again and again in the abdomen. After about thirty minutes, they left me sobbing there on the floor. At the hospital, they found that Heaven had died in my womb. She was a perfect baby, almost seven pounds.

The assailants were arrested. They had been hired by Erik Bullock, my former boyfriend. He paid them $400 to kill little Heaven Lashay.

Only a month before, a new state law took effect that recognized unborn children as crime victims. If that law had not been enacted, Erik Bullock would have been prosecuted only for the assault on me, but not for the death of my baby.
But thanks to the state law, Bullock was also convicted for his role in killing my baby. The men who attacked me are also being prosecuted for what they did to Heaven.

I tell my story now for one reason: If this same attack occurred today within a federal jurisdiction, the men who killed my baby would be prosecuted only for assault. That is why I urge members of Congress to support the Unborn Victims of Violence Act, which would recognize unborn children as victims under 68 federal laws dealing with crimes of violence.

I was dismayed to learn that some members of Congress oppose this bill, and insist on adoption of a radically different
[version] that says that such crimes only have one victim-the pregnant women.

This is not the same as what would happen under the Feinstein amendment. They are wrong. On the night of August 26, 1999, there were two victims. I lived-but my daughter died. I lost a child, and my son lost the baby sister he had always wanted-but little Heaven lost her life.
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It seems to me that any congressman who votes for the "one-victim" amendment is really saying that nobody died that night. And that is a lie.

Then we have the well-known case of Laci and Conner Peterson in California that has been spoken of previously. This is a statement from Sharon Rocha, Laci Peterson's mother, and Conner Peterson's grandmother. She has spoken out often on this issue. This is a California case that is well known and has probably done as much to bring this up today on this floor as anything else we have examined.

This is from Sharon Rocha's statement. I will read a portion of it:

As you know, Laci and Conner were cruelly murdered. In this difficult time, my family is grateful that under California law the murders of Laci and Conner can both be prosecuted. But for the families of many other murder victims across the country, there can be no such comfort. Federal law does not recognize that these crimes have two victims.

So California law does recognize it.

When I became aware that Congresswoman Melissa Hart was working on a bill to correct this problem, I contacted her to express my support. I asked her to name it "Laci and Conner's Law" in memory of my daughter and grandson. I am grateful to Congresswoman Hart, the House leadership, and the many congressmen, both Republicans and Democrats, who have agreed to support this common-sense legislation. I thank President Bush for his willingness to sign it into law.

The House of Representatives has shown their support for this law by approving it twice thus far, but the Senate has consistently failed to act. I call on every Senator to vote for this bill, so that the law will do justice for families of murder victims-families like mine. It is time for the Senate to stand up for innocent victims like Conner.

These are real stories. They are tough stories. But they speak to the situation in this country today. This type of crime happens all too frequently. Unfortunately, there are more cases that we could mention.

I wanted to put a real face on this issue for my colleagues, and to ask them this simple question when they vote on the Feinstein substitute: How many victims are there? Is it one victim, or are there two? That is the real decision in regard to this amendment.

I urge a vote against the Feinstein amendment.

I yield the floor and reserve the remainder of my time.

Mrs. FEINSTEIN. Mr. President, it is extraordinarily difficult to respond to the litany of atrocities the Senator from Kansas has just enumerated. I cannot help but wonder: What kind of animal can do this to a woman who is 7 or 8 or 9 months pregnant? I cannot help but wonder how our society produces men who would do this kind of thing to a woman. I cannot help, as a mother and a grandmother, to share with those for whom this is a life scar that will never, never heal.

And I understand it. I understand the need to want to punish, and understand the need to want to say this child-who is so close to birth, who would be capable of life outside of the womb at that moment-is a victim because, in fact, that child is a victim. I appreciate that and I understand it.

One of the reasons at the beginning of my remarks I said this bill is so controversial is because definitions have different meanings in law. The controversial part in the underlying bill is the definition of "child in utero" and "child, who is in utero" because the bill language is: "means a member of the species homo sapiens," in other words, a person, "at any stage of development"-"any stage of development," not when the fetus is what they call "quick," which means it is capable of movement; not when it is viable, which means it is capable of life outside the womb; but at "any stage of development."

This is what causes the problem in the law once you set it in the law. That is what is so distressing about this bill. Because every Member of this Senate wants to vote yes. Every Member of this Senate wants to say: Throw the book at that animal. Who could be so callous? Who could be without any morality? Who could be so cruel? Who could practice such a heinous crime? Who could punch a 9-month pregnant woman in the stomach to the extent that it causes the killing of her unborn child?

So I am there. I am there entirely. I am there completely. But, again, it is complicated because the definition we are working from gives rights at the point of conception. It does not differentiate. It does not say the 8-month-old baby or the 7-month-old baby, who is capable of life today, is what we are talking about. It says the recently fertilized egg is what we are talking about. That is the difference.

It is so hard, because you stand here and you listen and your heart goes out, and you think of these beautiful women and their beautiful children, and some animal comes at them, and in some cases kills them both, in some cases kills one, and in some cases kills the other. Sure, throw the book at him.

I will go a step further. I would give them a death penalty because they have taken two lives, and I do believe a child at that period of gestation is a life.

The problem is the bill language, which begins this at the point of conception.

Now, every single case presented on this Senate floor this morning is of a child who is viable outside of the womb. But the bill covers children that are not children; that are a day old in the womb, that are at conception. That is the problem we have with this bill. Because once you give an embryo, at the point of conception, all of the legal rights of a human being, and you have said that embryo, then, if it is lost to humankind, is murdered, you have created the legal case to go against Roe v. Wade in Federal law for the first time in history.

Now, California and the Laci Peterson case was mentioned a great deal. The prosecution of Scott Peterson will be conducted under California law, which has amended the definition of the penal code section 187-which is first degree murder-to refer to a fetus. But then other parts of law in California only imposes criminal liability starting at 7 to 8 weeks of gestation. So where the California law effectively covers exactly the situation that the Senator from Kansas is mentioning-all of those situations-it takes into consideration the period prior to 7 to 8 weeks of gestation.

And, in fact, many other State laws do as well.

The problem is this is a much more comprehensive definition that doesn't make any of the distinctions that are made by many of the States with respect to these criminal statutes. Many of them cover when the fetus has quickened, which means the fetus or the child is capable of movement, and many of them cover after viability.

This creates the situation where the embryo has the rights of a person. That is the problem for many of us.

The Senator from Ohio-and I think he knows I respect him; we have worked on so many things-says don't bring in the abortion debate. But I can't help but bring in the abortion debate because the proponents-not the Senator from Ohio, but other proponents-have said "this is part of our strategy-this is what we want to achieve."
Then you get somebody like me and Senator Boxer and other cosponsors who want to protect a woman's right to control her own reproductive system, particularly in those early months, who read this bill and see the definition and say: "There is the ball game-here we lose big time."

It is like you say to me, "gotcha," because I want to punish that guy who beat that woman to death, who killed her unborn child, because I know that child is capable of life. You know that child is capable of life. But to give that right to a fertilized egg or an embryo is a different thing. Your bill gives that right to a fertilized egg or an embryo or a zygote.

Then, when I go out and I look at what people have said about the bill, I see these statements, such as the statement of Mr. Casey:

In as many areas as we can, we want to put on the books that the embryo is a person.

This bill puts on the books that an embryo is a person, a member of the species Homo sapiens, in bill language. This bill establishes exactly what the right-to-life movement wants to establish, that an embryo is a person. That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection. Once you have the embryo being a human being, then that human being at any stage of development deserves protection-meaning deserves rights under the law, which this establishes because it makes that embryo a victim-even protection that would trump a woman's interest in terminating a pregnancy. Think of that, that would trump a woman's interest in terminating a pregnancy.
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Now, I am one who believes there should not be abortion if the baby is viable. I agree with Roe because it provides the woman choice in the first 3 months of a pregnancy where there is not viability. I lived and grew up at a time when abortion was illegal in California. I saw a good friend commit suicide because she was pregnant and in college. I saw women pass the plate so someone could go to Tijuana for an illegal abortion. You would say that is not relevant to this debate-"don't discuss it; don't bring it up in the Senate-just think about the mothers and the babies who were killed."

I want to do that, too. And I think about the mothers and the babies. I want to throw the book at those guys. And the death penalty, too. I don't have a problem with that because I believe by your actions, you can vitiate your own right to live. That has been true for me since 1971, as well. That has been my consistent position.
But once in a statute you create a fertilized egg as a human being with specific rights, the march to eliminate Roe v. Wade is on its way in statute. That is what is happening with this bill. That is what I object to. There is no reference to viability.

I have the list of what all the States do. They all do different things. Many of them recognize it. For example, seven States impose criminal liability starting when a fetus is quick, in other words, capable of movement: Florida, Georgia, Mississippi, Nevada, Oklahoma, Rhode Island, Washington. Seven States impose criminal liability starting at the point of viability: Florida, Indiana, Massachusetts, Missouri, Oklahoma, South Carolina, Tennessee. So there are many differences. Different States do different things, even when they have this law.

But what this does, what this underlying bill does, is say from the moment of conception there is a baby and that baby is a human being and that baby has rights.

That is a problem in the criminal law. As the Stanford law professor pointed out, if a case comes before the court where, let's say, a woman was assaulted and she was 3 days pregnant, and the forensics could establish that she was 3 days pregnant, and you are voir-diring people for a jury and you are telling them that there is a second victim, and it is a fertilized egg that is 3 days old and there is a 20-year charge pending or life imprisonment pending for that 3- or 5-day-old fertilized egg, then this is what the law professor meant when he said: "You are going to get the very people who are the most interested in protecting the woman being reluctant to go on that jury."

Not every case under this law is going to be post-viability, going to be like the cases that the Senator from Kansas brought forward, where I would say: "Give the guy the death penalty." I wouldn't have a problem with that. They did terrible things, the acts of an animal. But that is not what this law says. That is the difference.

What we have tried to do is say: If you end a pregnancy, if you harm a pregnancy, the same penalties would apply that apply in the House bill and Senator DeWine's bill.

I wish this could have gone to the Judiciary. I wish it wasn't rule XIV. I wish I had an opportunity in committee, in markup, to make these points.

Let me go over once again, so that everybody is crystal clear on the point of the creation of a separate offense, where a defendant violates any of the enumerated Federal crimes, our bills are identical. On the provision that the separate offense is punished the same as the violation of the enumerated Federal crimes, our bill is identical. On the provision that if the separate offense harms or ends the pregnancy, the punishment is the same as a violation would be for the underlying crime: murder, manslaughter, or assault, as appropriate. Our bills are identical.

With respect to the provision of penalty for death of a fetus is a maximum life sentence, our bills are identical. With respect to the provision of penalty for harm to the fetus is a maximum 20-year sentence, our bills are identical. And both bills do not impose the death penalty. Where our bills are different-and this is important-is the definition of when life begins.

The underlying bill defines life as beginning at conception.

(Mr. ALEXANDER assumed the Chair.)

Mrs. FEINSTEIN. Mr. President, we do not address when life begins. I just read Justice Blackmun's opinion in Roe v. Wade. It is interesting, because he goes back to the Stoics, the Catholic Church, to the Middle Ages, and discusses the difference of opinion of when life begins, the difference of opinions in science. Then he reaches his conclusion that because these differences are so vast, the law generally does not directly enjoin that point of when life begins.

That is the problem we have here. That is the dilemma the Senate faces. This bill is on a fast track. This bill has passed the House. This bill has been subject to a Rule XIV, without a hearing, from the year 2000. You have heard the most poignant, disturbing, heartrending stories on this floor. I respond to them like everybody else does. But I also know if you give a fertilized egg rights in the Federal law, it is going to have repercussions downline. If you declare in this bill you can prove a 1-day-old fertilized egg was a victim and therefore murdered, how do you turn around and say in another law you can proceed with embryonic stem cell research? You have the same 1-day-old fertilized egg. If it is murder here, is it not murder there? What are the repercussions of doing that? They are enormous.

The other side doesn't talk about this. They talk about women who are 7 or 8 or 9 months pregnant. They talk about the most heinous and brutal assaults. But the bill does much more. The bill says a 1-day-old fertilized egg is a member of the species Homo sapiens. Translation: It is a person. Translation: It is a human being.

That is the problem, and this Senate, before it passes out this bill, should understand it and should understand there is an alternative, and the alternative aims to impose the same penalties, but doesn't create that victim fertilized egg, 1 day old-by nobody's stretch a human being-possible of becoming a human being, but not a human being. I have live cells, but they are not capable of producing life.

But once the child, the fetus in the womb, is capable of living, that is a different story. I am the first one to admit that is a different story. But everything in this bill, the underlying bill, goes back to the basic definition of what is being done here, and that is that personhood, life, is being given to a 1-day-old fertilized egg.

Now I have one child biologically, I have three stepdaughters, and I have five grandchildren. I have seen close friends-I know the glory of motherhood. I know the catastrophe that takes place when you lose a child. I have had miscarriages, so I understand that. But then there is the march to turn back the clock to when I was in college and abortion was illegal. Then after college, when I went out into the world, I actually sentenced women convicted of abortion in the State of California in the State prison. I saw the terrible morbidity and the terrible things they did illegally in back-alley abortions. At that point, I said this is so terrible. Then Roe v. Wade passed in 1973, and a woman could control her own reproductive system, particularly in that first trimester. I thought to myself, we should never go back to the way it was.

My concern about the underlying bill is it is the first bridge to take us back to the way it was because of the definition that is in this bill, which gives human rights to a 1-day-old fertilized egg in utero. That is the problem for me. That is the problem for a lot of us in the Senate. Whether it will be enough, I don't know.

I tried to perfect the bill. Remember, this was a rule XIV. We didn't have a chance to mark it up. I tried to perfect it.

Unfortunately, I was not granted the usual privilege of being able to send a modified amendment to the desk. But the intent is clear. I have made it crystal clear in my remarks. We will have the same penalties for the same crimes as the underlying bill. We will avoid one thing, and that is determining when life, for the purpose of law, actually begins.
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I yield the floor. How much time do I have remaining?

Mr. DeWINE. In a moment, I will yield to my colleague from South Carolina.

Mr. President, before I yield to my colleague, I want to respond very briefly to my colleague and friend from California in regard, again, to the question of abortion. My colleague is concerned-I understand her sincerity because she has expressed it many times on the Senate floor. I don't doubt that sincerity at all-that somehow this bill sets a precedent regarding abortion.

First of all, we all know statutes cannot overcome the Supreme Court decisions, constitutional law. We should not be concerned about what the statute will do. We particularly should not be concerned when we know many of the States have statutes very similar to what we propose to enact today. In fact, several of the States have had these statutes in place for up to 30 years. They have not in any way changed or infringed on abortion rights. Whatever one might think of abortion rights, these have not affected them and this bill will not affect them. To make sure of that, we put provisions in this statute, which I have read on the floor today, which make it crystal clear they will not in any way affect that. So we have precedent.

We have the fact that statutes cannot interfere with constitutional law, plus we have precedent of many years of experience of State laws not interfering with abortion rights. So there is just no reason for anybody, when they come to the floor to vote on this, to think this is in any way going to affect abortion rights at all.

My friend has talked about the fact that we follow what I believe 16 States have done when we begin to protect the unborn. Some States define it differently. My colleague has cited what California and some States do. They are defined differently. But we follow in this statute what some others States have done.

In our proposed statute, we use this language, and I would say it is not what my colleague, with all respect, has said. This is what the language is:
. . . who is carried in the womb.

"Who is carried in the womb," that is the language, the precise term that is used, "carried in the womb."

As a practical matter, since this is a criminal statute, we all know that to prosecute under this statute, a prosecutor would have to prove beyond a reasonable doubt, to prosecute under this law, that there was this unborn child. They would have to prove the existence of the child. And then they would have to prove there was death or injury to the child beyond a reasonable doubt. They have to prove the existence, first of all, beyond a reasonable doubt, and then they have to prove the death or injury beyond a reasonable doubt.

It is not, with all due respect, a question of at the moment of conception that this protection, as a practical matter, would kick in. First, it has to be carried in the womb; second, you would have to be able to prove the existence and then prove there was injury or prove there was death. That is the practical application of the statute we propose to pass.

I yield to my friend and colleague from South Carolina.

Mr. GRAHAM of South Carolina. Mr. President, I wish to speak to how the bill was drafted and why.

Senator DeWine articulated it well. You have to prove the pregnancy, and we defined the pregnancy like 16 other States. That is the dominant way of defining the child for the purpose of this statute. Thirteen States have a different view of it. In California, I think the law is at 6 weeks. If you can prove the child is beyond 6 weeks-not viable but beyond 6 weeks-the law kicks in.

In 1999, when we first drafted this statute-Senator DeWine was carrying it in the Senate, I carried it in the House, and we are finally coming together to have a vote-it never made sense to me, if you believe this is not about abortion-because it is not; we wrote it so it is not-why would you give a criminal a break who destroyed a family's life in two ways, not one?

You are not going to prosecute medical researchers under this statute. You have to hurt the mother. This is not about medical research. It is not about abortion. It is about criminals who attack pregnant women.

Why would you give the criminal a break at 3 weeks? You could prove the baby has been around for 3 weeks. The criminal just totally gets away with it.

The Feinstein amendment-as much as I like Senator Feinstein, and she is truly one of my favorites-nobody goes this way because this is not the way you would want to go if you are prosecuting criminals. You do not want to ignore the reality of what happened to this family and to these victims. This is not about abortion. If it was abortion law, you would not have any prosecutions except until the late terms of the abortion. Why would you let a criminal do that? This is not about a mother's right to choose. Under the statute, you cannot prosecute the woman at any time. You cannot do anything about abortion rights because the statute protects lawful abortions.

For 30-something years in California, they had the ability to prosecute criminals who attacked pregnant women and have Roe v. Wade rights. Look in the phonebook anyplace in California and you will find people who will provide a lawful abortion. Look at the criminal law and you will find a statute that allows people to be put in jail who attack a pregnant woman and do damage to her unborn child at the 6-week period.

My point is, when criminals attack pregnant women, don't play this game of the abortion debate. Don't bring it over here. The reason we voted 417 to 0 in the House was to prevent an execution of a pregnant woman at the earliest stages of pregnancy. It does no good to kill the chance of that child to grow to render justice to the mother.

With a vote of 417 to 0, the House adopted the same definition as this statute because the purpose of that statute was to prevent the State from executing a woman who we know to be pregnant at the early stages of a pregnancy. The reason being, it does no good. It does not advance Roe v. Wade. It just does something you do not need to do to render justice. You do need the ability to bring two prosecutions at the earliest stages of pregnancy to render justice for those who choose to violently assault pregnant women. No medical researcher is going to be harmed. We will have the stem cell debate. The Roe v. Wade rights that exist today are not going to be eroded. They have existed in conjunction with these statutes for years and years, and that debate will go on for years and years. But here is what is likely to happen.

The PRESIDING OFFICER. The Senator has used 4 minutes.

Mr. GRAHAM of South Carolina. There will be, unfortunately, human nature being what it is, another assault against a pregnant woman where Federal jurisdiction would exist if we have this statute. It is going to happen because people are mean, people are cruel, and they need to be dealt with when they are mean and cruel.

The Senate enhancement option has been rejected by everybody who looked at this because it does not render justice. It creates a legal fiction that is not necessary and destroys the whole purpose of this statute.

I mentioned the Arkansas case. Three teenagers were prosecuted for beating up a pregnant woman for the purpose of making sure one of them did not have to pay child support. They are not on death row. I misspoke. One of them received 40 years, one received life imprisonment. It was a capital statute, but it was not a death penalty case. I was wrong. I apologize.

The PRESIDING OFFICER. The Senator used 5 minutes.

Mr. GRAHAM of South Carolina. Five more seconds.

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The Laci Peterson case is a death penalty case because there are two victims.

All we are saying is Federal law should address reality. When Michael Lenz lost his wife in the Oklahoma City bombing incident, he also lost his son, Michael Lenz III. All I am asking for is that justice be rendered in cases such as that. When somebody chooses to destroy a family-the mother and the unborn child-let them pay a severe price, and let's debate abortion another day, another time, and not interject it into a statute where it should not be interjected.

I yield the floor.

The PRESIDING OFFICER. The Senator from California.

Mrs. FEINSTEIN. Mr. President, could you give us the time remaining on both sides, please?

The PRESIDING OFFICER. Yes. The Senator from California has 23 minutes remaining. The other side has 5 minutes remaining.

Mrs. FEINSTEIN. I thank the Chair. Mr. President, this is a difficult discussion because I am very fond of both the Senators with whom I am debating. However, I certainly do not agree with the statement the Senator from Ohio just made with respect to the definition that is in the bill.

I will read the definition that is in the bill. The term "a child who is in utero" means:

A member of the species Homo sapiens at any stage of development who is carried in the womb.

The one thing neither Senator DeWine nor I know is how fast the egg gets to the womb, but I think it is pretty fast.

I just had a note passed to me by someone more erudite than I. I think we can all put this in our lexicon.

It takes about 7 days for a fertilized egg to get to the womb, but there is also the belief the underlying bill applies at the moment of conception. Let us say the egg gets to the womb in 7 days. The problem those of us on this side of the aisle have with the bill is it gives the status of a human being to that egg as soon as it is in the womb, and that creates for the first time in Federal criminal law a scenario whereby if that egg is hurt, criminal assault charges, criminal manslaughter charges, criminal murder charges can be brought because that egg, at any stage of development-they do not use trimesters, they do not use any way of deciding the development-at any stage of development, that egg in utero is a member of the species Homo sapiens, and that is where this, for criminal purposes, becomes so difficult.

That is why the letter from the professor from Stanford, who runs the criminal prosecution unit at Stanford Law School, becomes so relevant, because let's say I am in a jury pool and a woman has been beaten up and she was 7 days pregnant-at that moment it is a fertilized egg-and she lost the fertilized egg, and I was told the penalty would be an additional 10 years in prison because she lost that egg. Well, I would have to make a decision as to whether I want to be on that jury. So what the professor says is this can actually work contrary to our intent, particularly in these early cases.

He also said he suspects it is dependent on the administration as to whether early cases will be brought to a court or not, but the point is we cannot make that decision. We cannot say this is only going to be used when a mother is 7 months, 8 months, or 9 months, pregnant. In the horrific circumstances described by the Senator from Kansas, which got all of our hearts beating faster, we cannot assume that all cases will be of that type. The legislation clearly says for the purposes of definition the child is defined from the point it is in the womb at any stage of development as a child, as a person, with rights. That is the dilemma and that is why we have tried to craft a bill that does not do that, that says if someone harms or ends a pregnancy, they are subject to the same penalties.

This body is going to have to decide-and it is a very hard question. I think this is one of the most controversial bills we have had. This is probably why this bill has been around for 5 years now. I think it had a hearing in Judiciary in 2000. It has not had a hearing since. It has been rule XIVed to the floor.

Again, I wanted to make some small changes-I was not permitted to do so-by modifying my amendment. I believe, and my chief counsel believes, this bill provides the same penalties. The one difference is the definition is different. We use harm or end pregnancy, rather than that the unborn child becomes a child-well, that a child in utero and child who is in utero means a member of the species Homo sapiens, at any stage of development, who is carried in the womb. That is the problem and that is where for those of us who want to protect a woman's right to choose and who read the statements that are put out by the far right, we take them at their word that this is where they are going.

I did not make this up. This is a rather well-known statement. It clearly says, "In as many areas as we can, we went to put on the books,"-this statute on the books-"that the embryo is a person . . . "

For me, I am also very interested in being able to see that there are prudent regulations and Federal controls that will allow embryonic stem cell research. Well, if it is murder of a 7-day-old fertilized egg, then it is murder if it is used in stem cell research as well. That is where I think this is going.

There are also statements by people who want to ban embryonic stem cell research that also say this is the strategy. So I say, why get into it at all? Why not just say, if someone ends or terminates a pregnancy, the same penalties will apply.

That is what we have tried to do. That is the intent of what we are doing.

I think the votes are very close. At this point, I will yield the floor, but I reserve the remainder of my time.

Mr. DeWINE. We are getting close to the end of this debate. I think there are just a few points about this amendment I would again like to stress. One is this whole debate today has nothing at all to do with abortion. I talked about that. I will not belabor the point. We have made that clear in the language we have written. It is set down in the precedent of States that have passed similar legislation. It has not had anything to do with abortion.

If Members of the Senate truly believe what the vast majority of the American people believe, and that is there are two victims, then they have to turn down the well-intended Feinstein amendment. The Feinstein amendment tries to provide for enhanced penalties. I believe it is clear, from what I have spelled out a few moments ago, she has failed to do that, that there are no enhanced penalties. Even if there were, it is a contortion of the law and logic to deny the fact that when a pregnant woman is violently attacked and she loses her child, for the law to say we refuse to recognize there is a second victim, and that is what the Feinstein amendment, unfortunately, says. The Feinstein amendment denies the fact there is a second victim.

We have heard on the Senate floor today, time and time again, these horrible stories that Senator Feinstein and I-our hearts go out to these victims. Everyone's heart does. But how can we say to these families that these children who were lost, sometimes the grandchildren who were lost, were really not, in the eyes of the law, victims?

In the eyes of everyone else in society they are victims. Shouldn't the law also recognize them as victims? That is what we are saying with our bill. Unfortunately, the Feinstein amendment denies them that.

I reserve the remainder of my time.

Mr. KYL. Mr. President, I am pleased that the Senate is debating this sensible measure, and I certainly hope that the outcome will be the rejection of the two amendments and passage of the underlying bill. Such an outcome will lead immediately to the enactment of the Unborn Victims of Violence Act, as the legislation has already passed the House and the President has stated that he will sign it.
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The Unborn Victims of Violence Act would recognize an unborn child as a victim when he or she is killed or injured during the commission of a Federal or military crime. The gist of this debate is the question of whether there are one victim or two in such instances. Polling suggests that upwards of 80 percent of the American people believe that there are two victims, a view no doubt reinforced by the well-known case of Laci and Connor Peterson. It has been noted that when definitive evidence of foul play in that case came to light, two bodies washed up on the shore, not one. The Unborn Victims of Violence Act would codify that common sense observation in Federal law.

Opponents of the bill contend that the bill's "two victims" premise is "unprecedented," but 29 State laws-including the law in California, where Laci and Connor Peterson were killed-relfect that exact understanding of what merits punishment when a violent crime is committed against a woman and her unborn child. It is the "one victim" idea the Feinstein amendment would inscribe in law that would depart form the understanding embedded in the State laws addressing this question.

Finally, I sincerely hope that my colleagues-whatever their views on the question of one victim versus two victims-will firmly reject the amendment offered by the senior Senator from Washington State. I am very proud of my record of support for victims of domestic violence, and I believe that some of the ideas contained in the Murray amendment merit our consideration.

But passing the amendment we are presented with today would be a serious mistake. First, I must note that the Murray amendment was obviously drafted in haste because it contains serious technical flaws-not the least of which is a provision that would-as I understand it-give an abusive family member the same rights as a victim!

The Murray amendment would create an unpaid leave provision that is distinct from the provisions contained in the Family Medical Leave Act, FMLA, and State laws. This new leave provision would apply to employers with as few as 15 employees-compared to 50 for FMLA. FMLA applies to workers who have been employed for at least a year, but the proposed Murray leave program has no minimum requirements for length of service. Moreover, under this amendment, domestic violence leave could be taken without advance notice, and without corroborating evidence beyond the employee's own sworn statement. Given the extraordinary degree of uncertainty such a regime could create for employers, Congress must proceed cautiously here. To pass the Murray amendment today would be to flout that imperative.

I strongly support the unamended version of this bill.

Mr. LEAHY. Mr. President, acts of violence against women are always abhorrent, but they are especially disturbing when committed against pregnant women. When a violent crime causes injury to a pregnant woman that results in a miscarriage or other damage to the fetus, we all share the desire to ensure that our criminal justice system responds decisively and firmly to exact appropriate punishment. This is not an issue on which you will find any disagreement among Members of Congress, no matter their party affiliation or whether they are pro-choice or anti-abortion. Protecting pregnant women and their families from violence is a serious and compelling problem that deserves to be elevated above political agendas and partisan politics.

Today we consider a bill that proposes a new Federal crime to punish conduct that violates a list of over 60 existing federal crimes and "causes the death of, or bodily injury to, a child, who is in utero." The terms "a child, who is in utero" and "unborn child" are defined in this proposal to be "a member of the species homo sapiens, at any stage of development." Through this proposal, we will be forced to revisit the divisive political debate about when human life begins and what is meant by these terms-whether, for example, the term "any stage of development" is intended to cover an unfertilized human egg or a zygote, and how far away from viability the proposal is designed to move the federal definition of a "person."

Generally, our Federal and State criminal laws only penalize conduct that affects a person who was born alive. That does not mean we cannot or should not go further. I support additional punishment if a violent crime against a pregnant woman causes her to miscarry or otherwise injures the fetus. Senator Feinstein will offer an amendment on this point, which I support, and which I will discuss in a moment.

While no other Federal criminal statute identifies a fetus as a distinct victim of crime, this does not mean that a fetus is left unprotected under our criminal laws. The Justice Department pointed out the obvious, in a letter dated September 9, 1999, to then-Chairman of the House Judiciary Committee, Representative Hyde. That letter states that "[b]ecause the criminal conduct that would be addressed . . . is already the subject of federal law (since any assault on an 'unborn child' cannot occur without an assault on the pregnant woman), [the bill] would not provide for the prosecution of any additional criminals." As Ronald Weich, a former prosecutor and former Special Counsel to the Sentencing Commission, noted in his February 2000 testimony, defendants whose violent attacks against pregnant women resulted in harm to a fetus have been prosecuted, and thus "it is very clear that criminal liability may be imposed under current federal law."

Moreover, the Federal Sentencing Guidelines already provide a sentencing enhancement of two levels where the defendant knew or should have known that the victim was a "vulnerable victim," a term that is defined as someone who is unusually vulnerable due to age, or physical or mental condition. Guidelines Manual, § 3A1.1(b)(1). This provision has been used to cover violent crimes against pregnant women. Mr. Weich described several cases in which a pregnant woman was treated as a vulnerable victim, resulting in enhancements and upward departures in the applicable guideline sentencing ranges for the defendants. Nevertheless, if there is any question about the application of these enhancements in violent crimes against pregnant women, we should clarify that matter promptly.

Respectfully, it seems to me that this bill has not been crafted to find that common ground, nor designed to provide an effective means to prosecute or prevent violence against pregnant women.

First, this bill unnecessarily injects the abortion debate into our national struggle against violence towards women. The Supreme Court in Roe v. Wade held that "the word 'person', as used in the Fourteenth Amendment, does not include the unborn." This bill purposely employs terms designed to undermine a woman's right to choose by recognizing for the first time in Federal law the legal rights of a person as applied to the earliest stages of development of a fetus, an embryo or an egg.

Second, the National Coalition Against Domestic Violence has warned that a consequence of the bill is that battered women who are financially or emotionally reliant on the batterer may be less likely to seek appropriate medical attention if doing so could result in the prosecution of the batterer for an offense as serious as murder. We should pay attention to the experts about the consequences of legislative proposals such as this one, particularly when the experts say this bill could have devastating effects for victims of domestic violence.

Finally, the bill ignores the problems of domestic violence, sexual assault and other forms of violence against women; in fact, the UVVA does not even mention the woman. In short, this bill ignores the reality that an attack that harms a pregnancy is inherently an attack on a woman.

The senior Senator from California will offer a substitute amendment to S. 1019 that does what the Unborn Victims of Violence Act purports to do without wading into the political waters of the abortion debate. This amendment, commonly referred to as the Motherhood Protection Act, creates a separate, additional Federal criminal offense for harm to a pregnant woman. Under this legislation, the prosecutor may (1) charge the defendant with an offense against the woman, and (2) subsequently charge the defendant with the separate offense of interrupting-e.g., causing brain damage to the child-or terminating the normal course of her pregnancy. A defendant would face a maximum of 20 years in prison for interrupting the pregnancy and a maximum of life imprisonment for terminating the pregnancy. Such sentences would be in addition to any penalties for the underlying federal crime. These terms of imprisonment reflect the same sentences included in the UVVA.
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Senator Feinstein's amendment addresses harm to a pregnant woman, while recognizing the loss she suffers through injury to the fetus. By excluding the language in the UVVA that defines a human to include a fetus, the Feinstein amendment accomplishes the stated goal of the UVVA without undermining reproductive rights or ignoring violence against women.

The senior Senator from Washington will offer an amendment in support of domestic violence victims, which I am proud to cosponsor. The Murray amendment would authorize HHS grants to nonprofit agencies to help service providers design and implement intervention programs for children who witness domestic violence. The grants would encourage domestic violence agencies and schools to work together to address the needs of affected children. The amendment would also establish entitlement standards and guidelines for employees to use emergency leave to address domestic and sexual violence.

Unlike UVVA, these two amendments address the issue of violence against women. If we are serious about addressing this problem and trying to end the violence, then we should put a stop to the partisan politics surrounding UVVA and vote for these amendments.

When it has focused on the real issue of violence against women, Congress has taken aggressive action to address the problem of violence against women. Congress made great strides in the fight against domestic violence by passing the bipartisan Violence Against Women Act as a part of the 1994 Violent Crime Control and Law Enforcement Act. Senator Biden and Senator Hatch contributed considerable time and leadership to achieve the enactment of VAWA, which marked a turning point in our Nation's effort to address domestic violence and sexual assault.

This landmark legislation created federal domestic violence offenses with severe penalties to hold offenders accountable for their destructive and criminal acts of violence. Since the end of 1994, the Department of Justice has brought over 1000 VAWA and VAWA-related indictments and awarded over one billion dollars in VAWA grants to communities working hard to combat violence against women and to help cure the pain and suffering that results from it.

I am proud to say that Vermont was the first State in the country to apply for and receive funding under VAWA, and I have seen the way in which groups such as the Vermont Network Against Domestic Violence and Sexual Assault have worked effectively to stem violence against women and children and to assist those who have suffered from it.

I am also pleased that the conference report on the AMBER Alert and PROTECT Acts included Leahy-Kennedy-Biden legislation to establish a transitional housing grant program within the Department of Justice to provide victims of domestic violence, stalking, or sexual assault the necessary means to escape the cycle of violence. It amends the Violence Against Women Act of 1994 to authorize $30 million for each of fiscal years 2004-2008 for the Attorney General to award grants to organizations, States, units of local government, and Indian tribes. The grants will help victims of domestic violence, stalking, or sexual assault who need transitional housing or related assistance as a result of fleeing their abusers, and for whom emergency shelter services or other crisis intervention services are unavailable or insufficient. President Bush signed the conference report into law on May 7, 2003.

We know that violence against women pervades all areas of our country. It makes no difference if you are from a big city or a rural town; domestic violence and other violence against women can be found anywhere. This is a serious issue. We owe this country a serious response, not a debate on ideological proposals that ignore effective programs designed to help women crime victims. I urge my colleagues to join me in supporting the Feinstein and Murray amendments, and in voting against the Unborn Victims of Violence Act.

Mr. FEINGOLD. Mr. President, I will oppose H.R. 1997, the Unborn Victims of Violence Act, and instead support an alternative offered by Senator FEINSTEIN, and I would like to take a moment to explain why.

I join with Senator DEWINE and the supporters of this bill in condemning acts of violence against women, including pregnant women. The Unborn Victims of Violence Act would make it a Federal crime to injure or kill a fetus during the commission of a Federal crime against a pregnant woman. This separate offense would be punished as if injury or death had occurred to the pregnant woman. I believe that acts of violence against pregnant women are deplorable and should be punished severely. Congress has taken and should continue to take steps to protect women from violence and prosecute those who attack them. But I am concerned that by recognizing the fetus as an entity against which a separate crime can be committed, the Unborn Victims of Violence Act may undermine women's reproductive rights as set forth by the Supreme Court in Roe v. Wade.

That is why I plan to support a sound alternative, the Motherhood Protection Act, offered by my colleague Senator FEINSTEIN. the Motherhood Protection Act would accomplish the same stated goal as the Unborn Victims of Violence Act: establishing an additional, separate Federal offense for harm to a pregnant woman. It carries the same penalties as H.R. 1997: a maximum 20-year sentence for harm to a pregnancy and a maximum life sentence for termination of a pregnancy.

I believe that the Feinstein substitute is the better approach because it accomplishes the same goal that H.R. 1997 seeks to address without delving into the controversial issue of defining when human life begins. Regardless of our views on that highly charged question, we can agree that violence against pregnant women is a heinous crime and should be punished to the fullest extent of the law. That is why I will oppose H.R. 1997 and instead support the Feinstein substitute.

I yield the floor.

Mrs. FEINSTEIN. Mr. President, I agree that the debate is concluding, and I thank the Senator from Ohio. This is a serious subject and it is a difficult subject and it is a controversial subject. I appreciate the manner in which the debate has been conducted, because I think it has been conducted in the best tradition of the Senate, with the exception of your not letting me modify my amendment. But I will only interpret that as caused by the fact that the other side is worried and doesn't want my amendment to get any better, so they refuse to let me modify it.

We have two different bills here. I think we have expressed the differences. The underlying bill does recognize the unborn at any stage of development, as long as they are in the womb, as a human being, as a victim and with rights.
My bill, rather than enter into where life begins, at what point in this gestation period life actually begins enough to say this is a person with rights-it doesn't get into that. It takes the penalties and does a double charge and says if the predicate crime is present, and you carry out the crime to harm or end the pregnancy, it is a double charge so you are charged accordingly.

The hard part of this is that we all know there has been a march to turn back Roe v. Wade. Every Member of this Senate knows it. We have had vote after vote after vote. Since 1994, the pro-choice side has lost most of the votes. That is irrevocable fact. We know the march is on.
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So those of us who are pro-choice naturally are going to look at laws to see if those laws can constitute, in addition to what they are supposed to do, any kind of bulwark from which to attack Roe.

Because of the definition of a child in utero being, at any stage of development, a member of the species Homo sapiens, we come to a conclusion. We asked the question, first, why do they use that definition? So many States have passed laws and many of them have used different definitions, why do they select that definition?

Answer, because it accomplishes the purpose of determining that once a fertilized egg is in the womb, it becomes a human being. That, then, buttresses statements such as this one on the easel.

Continued in Part V