Crimes Against Pregnant Women & Infants

Published on April 20th, 2021

Memorandum of Support

Re: A5729 Cusick / S2669 Ritchie
A4367 Manktelow / S2658 Helming
A4843 DiPietro / S2129 Jordan
S4983 Lanza
In relation to crimes against pregnant women and infants

Each of the above-referenced bills attempts to provide some measure of statutory protection and remedy for pregnant women and their unborn children who are violated and harmed in incidents of domestic violence. Such protection and remedy was removed from New York’s law with the enactment of Chapter 1 of the Laws of 2019, the Reproductive Health Act (RHA).

The New York State Catholic Conference supports each of these legislative initiatives as a means to resolve current deficiencies in the law and provide maximum protection to women, infants and their families.

We know that the incidence and severity of intimate partner violence escalates during pregnancy and the postpartum period. According to the American College of Obstetricians and Gynecologists, approximately 324,000 pregnant women are abused each year in the United States. The NYS Office for the Prevention of Domestic Violence notes that 21% of domestic violence events against women in our state involve a pregnancy (October 2018 OPDV Dashboard).

The enactment of the RHA did not put an end to horrific cases of violence against pregnant women in our state. These are just some of the cases that made the headlines: In January of this year, Shanita Thomas of Albany, 35, pregnant with her third child, was shot and killed. In October last year, Vanessa Pierre, of Hempstead, 29, was six months pregnant with a baby girl when she was strangled and beaten to death. In July 2020, Ieasha Merritt of Schenectady, 34, was shot and killed. In May 2020 Ana DeSousa of Staten Island, 33, was shot and killed in a home invasion. In 2019, Jennifer Irigoyen, 35, was five months pregnant when she was viciously and fatally stabbed to death in Queens. All of their babies died with them.

We recognize that current assault and murder charges for harm or death to a woman carry significant penalties under New York law. However, we also recognize that when a woman is pregnant and fatally wounded, her family members will mourn the loss of two victims, bury two bodies, and grieve the loss of two individuals for the rest of their lives. Our current law tells these families that their grandchild, their niece or nephew, their unborn loved one never existed, and there will be no one held responsible for the death of that child. Moreover, the deficiencies in current law are even more stark when the pregnant woman receives only minor injuries, but the assault causes a miscarriage. In that case, there is no proportionate charge available to be brought against the assailant. In fact, the only charge available may be harassment, a violation. That is grossly insufficient for the loss of a wanted child.

Currently, 38 states in the nation recognize the unlawful killing of an unborn child as homicide, with 30 of those states recognizing the child throughout the entire pregnancy. The remaining 8 states protect the child as a victim of crime during only part of the child’s pre-natal development. New York statute has never recognized the unborn child as a crime victim and still clings to an outdated and obsolete “born-alive” rule, which states that a homicide victim must have been “a human being who has been born and is alive” (Penal Law Section 125.05).

Therefore, prior to the enactment of the RHA, the only criminal charge which had been available to New York prosecutors for coerced abortions and violent attacks against pregnant women with the intent to harm the fetus was the crime of “abortion.” But once abortion was stripped from our Penal code under the RHA, prosecutors lost even this tool to hold violent assailants accountable and provide some measure of justice to families.

We believe that A5729/S2669 would remedy the current situation in the most comprehensive manner, by making the killing or non-lethal assault of an unborn child of any gestation a crime. The remaining bills listed above would create either a new crime of fetal homicide or a new crime of assault on a pregnant woman which results in the termination of her pregnancy. All of the bills specifically exclude abortion and any conduct of the pregnant woman herself. We support all of these measures.

Such legislation is clearly constitutional, as no fetal homicide statute has ever been successfully challenged. Indeed, these laws have been upheld in such states as California, Illinois, Pennsylvania, Ohio and Minnesota. In rejecting challenges to these laws, courts have affirmed that while Roe v. Wade protects the woman’s right of choice, it was never meant to protect the right of a third party assailant to destroy a pregnancy against a mother’s wishes.

The Reproductive Health Act (NYS Public Health Law Article 25-A) declares “Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion.” Women who have their wanted pregnancies violently taken from them in incidents of violence have had their reproductive freedom grossly violated. They and their families deserve comprehensive justice. We urge you to favorably consider one of the above-referenced remedies.