NY State Senate Bill 2023-S5308

Senate Bill S5308

2023-2024 Legislative Session

Provides that either a person or an unborn child in any stage of gestation may be the victim of an assault

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Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to codes
Mar 01, 2023	referred to codes

co-Sponsors

2023-S5308 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §§120.75 & 120.80, amd §§125.00 & 125.05, Pen L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S4897
2011-2012: S4347
2013-2014: S1950
2015-2016: S2532
2017-2018: S3830
2019-2020: S1383
2021-2022: S2669

2023-S5308 (ACTIVE) - Summary

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

2023-S5308 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5308

SPONSOR: WEIK
 
TITLE OF BILL:

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

 
PURPOSE:

To provide the tools necessary to bring justice to those who commit acts
of violence against mothers and their unborn children.

 
SUMMARY:

Section 1 outlines the legislative intent.

Section 2 gives this bill the short title: "unborn victims of violence
act" Section 3 adds new sections 120.75 and 120.80 to the penal law.

Section 120.75 to Penal Law establishes the definition of "person"
applicable to the sections addressing assault in the third degree,

assault in the second degree, assault in the first degree, vehicular
assault in the second degree, vehicular assault in the first degree,
gang assault in the second degree, gang assault in the first degree, and
aggravated assault upon a person less than eleven years old. The new
definition adds an unborn child at any stage of gestation.

Section 120.60, for purposes of Article 120 of the Penal Law, exempts
from prosecution individuals performing consensual and justifiable
abortions, individuals treating the mother or child medically, and moth-
ers (other than mothers performing self abortions).

Section 4 redefines "homicide" under section 125.00 of the Penal Law to
include conduct which causes death to an unborn child at any stage of
gestation, to include murder in the first degree, murder in the second
degree, vehicular manslaughter in the first degree, and vehicular
manslaughter in the second degree. Section 4 also states for purposes of
Article 125.00 of the Penal Law, an exemption from prosecution for indi-
viduals performing consensual and justifiable abortions, individuals
treating the mother or child medically, and mothers (other than mothers
performing self abortions).

Section 5 amends the definition provided by section 125.05 of the Penal
Law for "person," when referring to the victim of a homicide, an unborn
child at any stage of gestation.

Section 6 is the effective date.

 
JUSTIFICATION:

The Pregnancy Mortality Surveillance System at the Centers for Disease
Control and Prevention found that the pregnancy-associated homicide
ratio was 1.7 per 100,000 live births in the United States between 1991
and 1999.

Twenty percent of the deaths of pregnant women are caused by homicide
making it the leading cause of death among pregnant women outside

medical complications. When murderers knowingly attack pregnant women,
they knowingly target more than the mother's life.

The Article of the New York Penal Law that deals with homicide,
abortion, and related offenses currently defines "person" as a human
being who has been born alive and "homicide" as causing the death of a
person or unborn child with which a female has been pregnant for more
than twenty-four weeks. These two definitions have left it impossible
for prosecutors and the courts to use the full extent of the law to
punish those who viciously and knowingly take the life of an unborn
child and/or its mother. This bill empowers New York's prosecutors to
seek justice for those who deliberately attack mothers and murder their
unborn children by changing the definitions of "person" and "homicide"
to include unborn children at any stage of gestation.

As is outlined in the bill's first section, the intent of this legis-
lation is to close the loophole for killers of unborn children.  It is
not the intent of this legislation to stifle a woman's right to a
consensual abortion or to medical treatment. As such, the bill specif-
ically provides protections for mothers consenting to an abortion and to
doctors who treat pregnant women.

If we are to claim that we have a justice system that is truly just, it
is paramount that New York State joins the thirty-one states that are
now providing protections and justice for pregnant women and their
unborn children who are victims of violence. By enacting this legis-
lation we send a clear message to perpetrators of violence against preg-
nant women and unborn children that we are serious about protecting New
York's mothers.

 
LEGISLATIVE HISTORY:

2022: S2669 Codes

 
FISCAL IMPLICATIONS:

None to the state.

 
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become law.

2023-S5308 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5308
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 1, 2023
                                ___________
 
 Introduced  by  Sen.  WEIK  --  read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation  to  the  unborn  victims  of
   violence act
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

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

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

 S. 5308                             2
 
 someone be punished for that crime.   Indeed, mothers  will  bury  their
 baby's  body  and  mark  the grave for their child for the rest of their
 lives, but New York law tells them their loved one never existed.
   The  legislature  does not intend this act to apply to any abortion to
 which a woman has consented, to any act of the mother herself or to  any
 form of medical treatment.  The legislature finds that the current legal
 right  to abortion does not protect and does not confer on an assailant,
 a third-party unilateral right to destroy an unborn child.
   The legislature recognizes that a federal "unborn victims of violence"
 law was enacted in 2004, yet believes the law to be limited in  applying
 only to unborn children injured or killed during the course of specified
 federal crimes of violence.
   It  is  the  intent of the legislature that the affirmative right of a
 pregnant woman to carry her child to term be protected, and that  perpe-
 trators  of  crimes  against pregnant women and their unborn children be
 held accountable for their crimes.
   § 2. Short title.  This act shall be known as and may be cited as  the
 "unborn victims of violence act".
   §  3.  The  penal law is amended by adding two new sections 120.75 and
 120.80 to read as follows:
 § 120.75 ASSAULT AND RELATED OFFENSES; DEFINITION.
   THE FOLLOWING DEFINITION IS APPLICABLE  TO  SECTIONS  120.00,  120.03,
 120.04, 120.05, 120.06, 120.07, 120.10 AND 120.12 OF THIS ARTICLE:
   "PERSON,"  WHEN  REFERRING  TO  THE  VICTIM OF ANY ASSAULT, AGGRAVATED
 ASSAULT OR VEHICULAR ASSAULT, MEANS A HUMAN BEING WHO HAS BEEN BORN  AND
 IS ALIVE, OR AN UNBORN CHILD AT ANY STAGE OF GESTATION.
 § 120.80 ASSAULT AND RELATED OFFENSES; DEFINED.
   NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSECUTION:
   1.  OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
 FOR WHICH THE CONSENT OF THE PREGNANT WOMAN HAS BEEN OBTAINED; OR
   2. OF ANY PERSON FOR ANY MEDICAL TREATMENT OF THE  PREGNANT  WOMAN  OR
 HER UNBORN CHILD.
   §  4.  Section 125.00 of the penal law, as amended by chapter 1 of the
 laws of 2019, is amended to read as follows:
 § 125.00 Homicide defined.
   1. Homicide means conduct which causes the death of  a  person  OR  AN
 UNBORN  CHILD AT ANY STAGE OF GESTATION under circumstances constituting
 murder IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, manslaughter in
 the  first  degree,  manslaughter  in  the  second   degree,   VEHICULAR
 MANSLAUGHTER  IN  THE FIRST DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND
 DEGREE, or criminally negligent homicide.
   2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED  TO  PERMIT  THE  PROSE-
 CUTION:
   (A) OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
 FOR  WHICH  THE  CONSENT OF THE PREGNANT WOMAN OR A PERSON AUTHORIZED BY
 LAW TO ACT ON HER BEHALF, HAS BEEN OBTAINED OR FOR WHICH SUCH CONSENT IS
 IMPLIED BY LAW; OR
   (B) OF ANY PERSON FOR ANY MEDICAL TREATMENT OF A PREGNANT WOMAN OR HER
 UNBORN CHILD.
   § 5. Section 125.05 of the penal law,  the  section  heading,  opening
 paragraph  and  closing paragraph as amended by chapter 1 of the laws of
 2019, is amended to read as follows:
 § 125.05 Homicide and related offenses; definition.
   The following definition is applicable to this article:
 S. 5308                             3
 
   "Person," when referring to the victim of a homicide,  means  a  human
 being  who has been born and is alive OR AN UNBORN CHILD AT ANY STAGE OF
 GESTATION.
   § 6. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.

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Senate Bill S5308

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Sponsored By

Alexis Weik