Unborn Victims of Violence Act of 2004

By:  Lindsey Graham
Date: March 25, 2004
Location: Washington, DC


UNBORN VICTIMS OF VIOLENCE ACT OF 2004

Mr. GRAHAM of South Carolina. Madam President, I thank the Senator for yielding. I may take a few minutes, I say to the Senator from Kansas, to explain my relationship to this bill and why I am here today.

No. 1, I want to thank the leadership for allowing the bill to come to the floor. Senator Frist and Senator McConnell and our leadership team has worked hard with Senator Daschle to get an agreement so we could come to the floor and debate what I think is an important issue, and to allow Senator Feinstein to have her say about how we should craft this bill.

In July 1999, this bill was first introduced in the House. I was the author of the bill. Before I came to Congress, I spent some time in the Air Force. Senator DeWine has taken the cause up in the Senate since it was first introduced. I really appreciate all that Mike has done. He has been very sympathetic to what we are trying to do. He was leading the charge in the Senate as this bill was being debated and voted on in the House.

But prior to getting into politics, from 1982 to 1988, I served as a prosecutor and a defense attorney in the U.S. Air Force domestically and overseas. During that experience, I realized at the Federal level there was a gap in law.

We had a case involving a pregnant woman who was beaten up, and her child was lost, and she was almost killed. I looked into the idea of charging the offender with the damage done to the unborn child, and under the Uniform Code of Military Justice there was no way to do that. So I was sensitive to it from a prosecutor's point of view early on in my legal career.

When I got to Congress, there was an effort in some States to create unborn victims statutes, and I associated myself with that effort federally. A lot of pro-life people came over and were very supportive of what we are doing. That is true. Pro-life people generally like the idea of protecting unborn children whenever they can.

Pro-choice people are very sensitive to the fact that a woman should decide what to do with her body in an intimate situation like a pregnancy. I understand that debate clearly.

I am a pro-life person, so I have biased there. But having said that, there are pro-life people who hate this bill. It surprised me, but it is true, because in the bill, we wrote it in a way that abortion is not covered at all. As a matter of fact, we preserve, under the current law-under this bill-the right to have a legal abortion, and you cannot prosecute the mother under any circumstances.

There are cases out there where mothers are being prosecuted who abuse drugs and alcohol and do damage to their children. What I wanted to do was to focus on what I thought we all could agree on, to a large extent. The law in abortion and the politics of abortion really do not play well here because we are talking about criminal activity of a third party. I do not know why you would want to give a criminal any more breaks than you had to if they go around beating on pregnant women.

And people say: Well, don't they have to know if the woman is pregnant? No. Why? The law is really common sense. If you attack a woman of childbearing years, you do so at your own peril. If you push somebody, you do not know if they have a severe medical condition. You are liable for the consequences of your actions.

There are plenty of cases that say, if you attack a woman of childbearing years, you do not have to have actual knowledge. You are responsible for the consequences of your illegal act.

In a poll, when people were asked, if a violent, physical attack on a pregnant woman leads to the death of her unborn child, do you think prosecutors should be able to charge the attacker with murder for killing the fetus, 79 percent said yes; 69 percent of pro-choice people, in that poll, said yes.

Why would a pro-choice person support this legislation? It passed three times in the House. The first time we had it up for a vote was September 30, 1999, I believe. Madam President, 254 folks voted for the bill in the House, as I recall. I assure everyone listening to my voice today, there are not 254 pro-life people in the House. Madam President, 52 Democrats have voted for this bill.

The parties tend to split on the issue of abortion, with the Democratic Party being more pro-choice and the Republican Party being more pro-life. But we had Democratic support, and we had pro-choice people supporting this idea that when it comes to criminal activity, we are going to define the unborn in terms that make it hard on the criminal-not hard on the mother.

You can never prosecute a woman for anything she does to her child, no matter how much you would like to, under this bill. I did not want to get into that debate. You can never ever prosecute anybody for receiving medical treatment related to their pregnancy or lawful abortion.

For over 30 years, in the State of California, two things have coexisted: the Roe v. Wade rights of a woman and a statute that will allow you to do what is happening in California today-prosecute a person for doing damage to the mother and the unborn child, such as the Laci Peterson case.

This has been a long journey. This July will be the fifth anniversary of the time that I introduced this bill. Back in 1999, I remember saying on the floor of the House there will be a case where a pregnant woman is brutalized and she loses her child and it will be front-page news.

The reason I said that then is, having been a prosecutor and a defense attorney, I understand the following: There are a lot of good people in this world, but there are some mean people, too. This happens more than you would ever want to believe. The No. 1 cause of death among pregnant women in the District of Columbia is murder. As much as we would like to believe otherwise, pregnant women have things come their way because of their pregnancy that shocks the conscience.

In Arkansas, there are three people sitting on death row today because they were hired by the boyfriend, who didn't want to pay child support, to kidnap his girlfriend, who wanted to have the child, took her off to a remote area and beat her within an inch of her life with the express purpose of killing the child. And when she was on the floor, she begged for two things: Her own life and her baby's life. Those people under Arkansas law were charged with two crimes, making them eligible for the death penalty. They deserve to be.
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Under this bill, you cannot get the death penalty. The reason I chose not to include the death penalty is, I did not want to get into the death penalty debate because people of goodwill and good reasoning may disagree with the State imposing that punishment. The Senator from California cares as much about pregnant women as anybody here. This is not about who cares about women and who is trying to do this or that. Her amendment may not be written the way she would like. I would oppose it, if it was changed.

It happens in America more times than you would ever believe that pregnant women are the victim of violent assault and their children get killed or severely injured.

That concept can and does exist with the idea that a woman, early on in the pregnancy, can choose whether to carry that child. These are two concepts the law recognizes that exist side by side.

Why do 84 percent of the people believe a criminal should be prosecuted twice, not once? Because it really does violate common decency. If a woman chooses to have a baby and she loses her baby because of a violent act, most of us, a large percentage of us, want to whack the person who did it as hard as we can. And we don't want to get into the debate about abortion. We want to make sure the prosecutor has the tools to bring about the most severe and just verdict possible.

This bill excludes abortion. It excludes the death penalty for political reasons and legal reasons. Pro-life people have criticized me because in this bill, in their opinion, I am legalizing abortion. This bill doesn't legalize abortion. This bill doesn't ban abortion. This bill says: If you are a criminal and you attack a pregnant woman and you hurt her kid, you will get the full force of the law.

What is going on in California? In 1999, when I said there will be a woman out there who suffers brutally and loses her child and we will all know about it because it will be front page news, I never dreamed it would happen so quickly. I never dreamed it would be so vicious. The authorities investigating the Laci Peterson crime have two pieces of evidence to offer the jury: The decomposed body of the mother and the decomposed unborn child late in the pregnancy. It is important the jury know about both. It is important the criminal be held accountable for both. We will debate abortion another day.

Sixteen States define life under the same legal terms I chose when we wrote this bill. That is as to the criminal world, if the pregnancy comes to an end and the unborn child's right to develop comes to an end because of third-party criminal activity, we are going to hold you legally responsible at the earliest onset of pregnancy. The Roe v. Wade standard makes no sense. Why give a criminal a benefit of the legitimate debate of abortion?

Thirteen States define it in stages. California, I think by law, defines the unborn victim statute at the sixth week of pregnancy. Some States, one or two, have the term "viability." There is a sliding scale. But the dominant way to define this in State law is the way we have chosen to define it in this bill. This chart illustrates how the States break out.

There is another situation I would ask you to think about. Let's say there is a woman on death row. She is pregnant for whatever reason. How many people would let the execution go forward knowing the woman is pregnant? Think about that. What good would it do to allow the execution to go forward if you knew the woman was pregnant? Would you wait?

Here is what I suggest to you, if any State or the Federal Government decided to impose the death penalty on a woman who was pregnant during any stage of the pregnancy, there would be a riot in the street-among pro-choice people, too, because what good would it do at any stage of the pregnancy to have the State kill the kid? You are not enhancing Roe v. Wade. You are not advancing the abortion debate. You are doing something you don't need to do.

The definition that was used in the Innocent Child Protection Act of 2000, which I was involved in drafting, is the same definition that is in this bill about the unborn child. It passed 417 to nothing. To me, that makes perfect sense. Four hundred seventeen pro-life people do not exist in the House of Representatives. But when faced with the question, should the State wait if a woman is pregnant, even at the earliest stages of pregnancy, 417 people said yes.

The reason I mention this to you is, when it comes time to prosecute people who unlawfully attack a woman at the earliest stage of pregnancy, why should they get a pass? What good have you done? It does not change the abortion debate. Roe v. Wade rights still exist. All you have done is allow someone to interrupt another person's life, take something of value, and they get a pass because you are mixing concepts that don't need to be mixed. That is why over 50 pro-choice people voted for this bill in the House.

That is why if we ever get to final passage, we are going to have a bipartisan coming together of pro-life and pro-choice people to say one thing loud and clear: If you attack a woman of childbearing years where Federal law applies, you do so at your peril, and you are going to suffer the full consequences of your action. And the full consequences of that action could be the loss of the child and the loss of the mother or a combination thereof.

Why not sentence enhancement? I think there is a reason under the law that no State has gone down this road. Sentence enhancement would say the following: You get a stiffer penalty if the woman is pregnant, but you don't talk about the consequences in terms of the victim's life. That is an artificial distinction that I think denies justice.

This was a statement by Kent Willis, executive director of ACLU, and I disagree with this statement:

That baby was not a murder victim.

He was talking about the Laci Peterson case, the son Connor. I think Connor was a murder victim. The point I guess I am trying to make is that when people talk about what happens to them, the law, wherever it can, should address the full range of what really happened to them.

There is another case you don't know about because it didn't get nearly the publicity, but it is just as real. It is a good example of why we need this statute.

Michael Lenz and his wife were expecting their first child. She worked in the Federal Building in Oklahoma City. She was in the midstages of her pregnancy. She went to work early the day of the bombing to show an ultrasound to her colleagues of their baby. That was going on at the moment the bomb goes off. She was killed. Michael Lenz III was killed. They had already named their little baby boy.

The father came before my committee when I was in the House to testify for this bill. He said: I am no expert on abortion, but here is what happened to my family. My wife was killed, and at the same moment I lost my son, Michael Lenz III.

The reason they lost their son is not because of Roe v. Wade rights; it was because of a third party crazy man, a criminal, who destroyed many lives that day. When you look at the victims of the Oklahoma City bombing case, when it came time in Federal court, you don't find a place for Michael Lenz III. If this bill had been law, there would have been 22 people, not 21 people, that would have been before the court. I cannot say it any better than that.

In terms of Michael Lenz and all the other victims who testified in support of this legislation, sentence enhancement doesn't speak to what happened to them. From a prosecutor's point of view, it makes all the difference in the world to have two charges facing the accused versus one. It gives you more leverage than you could ever dream of. Ladies and gentlemen, in cases like this, it is the right thing to do.

I yield the floor.

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.

Mr. GRAHAM of South Carolina. Mr. President, I thank Senator DeWine for yielding. I will be brief.

We just rejected the idea Roe v. Wade rights should be used by criminals to avoid prosecution for their criminal activity that results in the mother being denied to have a child. Roe v. Wade is an honest, genuine debate that exists in this land. Eighty percent of Americans, when polled, believe if a criminal takes the right to have a child away from a mother, they ought to be prosecuted to the fullest extent of the law for what has happened to that family-damage to the mother and damage to the unborn baby.

Professor Walter Dellinger, a former adviser to President Clinton, said:
. . . although he is a strong advocate for a woman's right to choose abortion, he sees no major problem with fetal-homicide laws. "I don't think they undermine Roe v. Wade," he said. "The legislatures can decide that fetuses are deserving of protection without having to make any judgment that the entity being protected has freestanding constitutional rights. I just think that proposals like this ought to be considered on their own merit."

That is all we are asking. Senator Murray has a very long and complicated amendment that deals with domestic violence, family leave, and other issues. South Carolina, to its shame, for lack of a better word, has one of the leading number of domestic violence cases against women. Our legislature is dealing with that. We can do more here. But this should stand on its own.

Just as we said no to Roe v. Wade being an impediment to prosecuting a criminal who attacks a mother who chooses to have a child, we will not let the criminal benefit from Roe v. Wade, nor should we allow an amendment to destroy a bill whose purpose is to put people in jail who attack pregnant women and do damage to the mother and the child.

No good purpose is served by destroying this bill, even though the underlying problem is very real. This bill should stand on its merits. There are more cases such as this than we would all like to admit. We have a chance to do something about it today. Please vote against Senator Murray's amendment.

RIGHT TO CHOOSE

Ms. COLLINS. Mr. President, I rise to engage the distinguished Senator from South Carolina, Senator GRAHAM, in a brief colloquy in order to make clear the intent behind the language in this bill. It is my understanding that there is nothing in the language of this bill that would, in any way, undermine the constitutional right of a woman to choose to terminate a pregnancy, as expressed by the Supreme Court in Roe v. Wade, and subsequent decisions.

I inquire of the Senator, who is one of the coauthors of the bill, if my understanding of the intent behind the language in the bill is correct.

Mr. GRAHAM. The Senator from Maine is correct. Nothing in the language of this bill is intended in any way to undermine the legal basis for abortion rights, as expressed by the Supreme Court in Roe v. Wade, and subsequent decisions.

Based on my extensive experience as a prosecutor in the U.S. Air Force, this legislation would, however, fill a gap in our Federal laws.

Ms. COLLINS. Mr. President, it is also my understanding that at least 27 States have statutes that criminalize the killing of a fetus or an "unborn child." Am I correct in understanding that there is no legal precedent where a court has held that any of these State statues in any way undermine abortion rights of a woman, as expressed by the Supreme Court in Roe v. Wade, and subsequent decisions?
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Mr. GRAHAM. The Senator from Maine is correct. There is no legal precedent where a court has concluded that any of these State statutes undermines the legal basis for abortion rights.

Ms. COLLINS. Mr. President, I have one final inquiry I would like to make of my colleague. It is my understanding that the intent behind the language of this bill, H.R. 1997, is that this bill, like those State laws, not be construed to undermine the legal basis for abortion rights.

Mr. GRAHAM. The Senator from Maine is correct.

Ms. COLLINS. I thank my colleague for making the intent in this respect clear.