HB 4263 Text

H. B. 4263

(By Delegates Ennis, Fahey, Givens,

Pino, Warner and L. Smith)

[Introduced January 28, 2002; referred to the

Committee on the Judiciary.]

A BILL to amend chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-a, relating to crimes against an unborn child.

Be it enacted by the Legislature of West Virginia:

That chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-a, to read as follows:
ARTICLE 2A.

CRIMES AGAINST AN UNBORN CHILD.

§61-2A-1. Short title.
This article shall be known and may be cited as the "Fetal Protection Act."
§61-2A-2. Definitions.

As used in this article, the term:

(a) "Unborn child" means the unborn offspring of a human being, conceived, but not yet completely born;

(b) "Whoever" does not include the pregnant woman whose unborn child is killed or injured;

(d) "Without lawful justification" means acting under circumstances in which the use of lethal force is not legally justified.
§61-2A-3. Murder of an unborn child; penalty.

(a) Whoever, without lawful justification, causes the death of an unborn child is guilty of murder of an unborn child if he or she: (1) Intends to cause the death of or do great bodily harm to another or knows that his or her acts will cause the death or do great bodily harm; (2) knows that his or her acts create a strong probability of death or great bodily harm to another; (3) attempts or commits a forcible felony; or (4) perpetrates an act eminently dangerous to another and evinces a depraved mind, without regard for human or fetal life.

Any person guilty of murder of an unborn child is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten nor more than twenty years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of ten years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two, whichever is greater.

(b) "Forcible felony" means any felonious act that involves a high risk of violence.
§61-2A-4. Voluntary manslaughter of an unborn child; penalty.
(a) Whoever, without lawful justification, causes the death of an unborn child is guilty of voluntary manslaughter of an unborn child if he or she: (1) Intends to cause the death of another in an immediate response provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances; (2) commits or attempts to commit a misdemeanor or gross misdemeanor offense with such force or violence that the death of or great bodily harm to another was reasonably foreseeable; or (3) intends to cause the death of an unborn child because the actor is coerced by threats made by someone other than his or her coconspirator and which causes the actor to reasonably believe that his or her act is the only means of preventing imminent death to the actor or another.

(b) Any person guilty of voluntary manslaughter of an unborn child is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than ten years.
§61-2A-5. Involuntary manslaughter of an unborn child.

(a) Whoever, without lawful justification, causes the death of an unborn child is guilty of involuntary manslaughter of an unborn child if he or she: (1) Creates an unreasonable risk by his or her culpable negligence and consciously takes a chance of causing death or great bodily harm to another; (2) shoots the mother of the unborn child with a firearm or other dangerous weapon as a result of negligently believing her to be an animal; (3) sets a spring gun, pit fall, dead fall, snare or other like dangerous weapon or device; or (4) negligently permits any animal known by the actor to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner's premises, or negligently fails to keep that animal properly confined.

(b) Any person guilty of involuntary manslaughter of an unborn child is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned.
§61-2A-6. Battery of an unborn child.
(a) Whoever, without legal justification, inflicts great or substantial bodily harm upon an unborn child, who is subsequently born alive, by intentionally or knowingly touching a pregnant woman without her consent is guilty of battery of an unborn child.

Any person who commits battery of an unborn child in great bodily harm to an unborn child is guilty of a felony and, upon conviction thereof, shall be fined not more than one thousand dollars, or imprisoned in a state correctional facility not less than one year, or both fined and imprisoned. Any person who commits battery of an unborn child resulting in substantial bodily harm to the unborn child is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned in the county or regional jail not more than one year, or both fined and imprisoned.

(b) As used in this section, "great bodily harm" includes, but is not limited to, permanent disability or disfigurement.
§61-2A-7. Assault of an unborn child; penalty.

(a) Whoever, without legal justification, does any of the following: (1) Commits any act with the intent to cause fear in a pregnant woman of immediate bodily harm to herself or with the intent to cause fear in a pregnant woman of the death of her unborn child; or (2) intentionally inflicts or attempts to inflict bodily harm on an unborn child who is subsequently born alive, commits assault on an unborn child.

(b) Any person guilty of assault on an unborn child is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars, or imprisoned in the county or regional jail not more than six months, or both fined and imprisoned.
§61-2A-8.
Exceptions.

This article does not apply to: (1) Acts which cause the death of an unborn child if those acts were committed during a legal abortion to which the pregnant woman consented; and (2) acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.
§61-2A-9. Other convictions barred.

A prosecution for or conviction under this article is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same.
§61-2A-10. Severability.

If any provision, word, phrase or clause of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not effect the provisions, words, phrases, clauses or applications and of this part which can be given effect without the invalid provision, word, phrase, clause or application and to this end, the provisions, words, phrases and clauses are declared to be severable.

NOTE: The purpose of this bill is to establish the fetal protection act which includes the offenses and penalties for crimes against an unborn child.

This article is new; therefore, strike-throughs and underscoring have been omitted.

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