STATEMENT OF SENATOR LEAHY Ranking Member, Senate Judiciary Committee At Hearing On "Protecting Our Silent Victims: The Unborn Victims of Violence Act"

February 23, 2000

Acts of violence against women are 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 our families from violence is a serious and compelling problem that deserves to be elevated above political agendas and partisan politics.

Today we will hear about 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 definitions– whether "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 person.

Generally, our federal and state criminal laws only penalize conduct that affects a person already born alive. That does not mean we can not or should not go further. If a violent crime against a pregnant woman causes her to miscarry or otherwise injures the fetus, I would support additional punishment. Indeed, as Professor Peter Rubin states in his written testimony for this hearing, "this is one area on which both sides of the debate about abortion might be able to find common ground in supporting a properly worded statute that might give additional protection to women and their families from this unique class of injury."

While no other federal criminal statute identifies a fetus as a distinct victim of crime, this does not mean a fetus is left unprotected under our criminal laws. The Justice Department has pointed out the obvious, in a letter dated September 9, 1999, to Chairman Hyde, 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 Special Counsel to the Sentencing Commission, notes in his 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," which is defined as someone who is unusually vulnerable due to age, physical or mental condition. Guidelines Manual, § 3A1.1(b)(1). This provision has been used to cover violent crimes against pregnant women. Mr. Weich describes 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 application of these enhancements in violent crimes against pregnant women, we should clarify that matter promptly.

There are a number of other ways we could consider to protect pregnant women and their families that would enjoy strong bipartisan support. Respectfully, it seems to me that this bill has not been crafted to find that common ground, nor designed to provide any 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 and, in fact, does not even mention violence against women. In short, this bill ignores the reality that an attack that harms a pregnancy is inherently an attack on a woman.

Congress has responded aggressively in the past to address the problem of violence against women. Five years ago, 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, in particular, both contributed considerable effort and leadership in achieving the passage 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. The Department of Justice has brought close to 200 VAWA and VAWA-related indictments and awarded over $700 million in VAWA grants to communities working hard to combat violence against women and help deal with the pain and suffering that exists when it occurs.

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 the violence against women and children and help those who have suffered from it.

We need to discuss the reauthorization and improvement of grant programs under the Violence Against Women Act. These programs are due to expire at the end of this fiscal year. The expiring grant programs that would be reauthorized and improved by VAWA II include the National Domestic Abuse Hotline, the Civil Legal Assistance Grant Program, STOP Grants, Grants to Encourage Arrest Policies, Rural Domestic Violence and Child Abuse Enforcement Grants, National Stalker and Domestic Violence Reduction grants, the Family Violence Prevention and Services Grants, Grants for televised testimony for Victims of Child Abuse, Child Abuse Training Programs for Judicial Personnel and Practitioners, and the Court-appointed Special Advocate program for victims of Child Abuse.

Reauthorizing VAWA, which is under attack, is not the subject of the Committee's hearing today. For those of us who want to prevent violence against women, including pregnant women and their families, the failure of this Committee and the majority to consider reauthorization of that important law and instead to focus on a measure designed to be divisive is doubly unfortunate.

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 debate on ideological proposals that ignore effective programs designed to help women crime victims and that potentially undermine their constitutional rights.