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Unborn Children

Protection of Unborn Children - 18 U.S. Code § 1841

Under federal law, harming an unborn child (in utero) during the commission of certain other crimes carries the same penalty as if you had committed the crime directly against the mother—and is charged as a separate offense. 

This law is embodied in Title 18 U.S.C. 1841 (Unborn Victims of Violence Act). If you are found guilty of a federal offense that also involves harming or killing an unborn child, you could face significant additional penalties.

Protection of Unborn Children - 18 U.S. Code § 1841

18 U.S.C. 1841, says “(a) (1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.

(2) (A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother.

(B) An offense under this section does not require proof that—

(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant or

(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.

(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall, instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being.

(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

The term “unborn child” means a child in utero, and the term “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

What is the Background of the Law?

The Unborn Victims of Violence Act (also referred to as "Laci and Conner's Law") was signed into law on April 1, 2004, by President George W. Bush. 

This legislation came into existence in response to several high-profile cases where pregnant women were victims of violent crimes resulting in the death of their unborn children. 

The law was named after Laci Peterson and her unborn son, Conner, whose tragic deaths ignited public outcry for stronger legal protections for unborn victims of violence.

What Does the Law Say?

U.S.C. 1841 protects unborn children by recognizing them as victims in cases of violence. Under this law, anyone who causes the death or bodily injury of a child in utero during the commission of certain violent crimes is subject to an additional criminal charge, punishable the same as if the crime had been committed against the pregnant woman herself.

Here's a simple breakdown:

  • If you violate specific federal laws (mainly centered around violent crimes and crimes of obstruction) and a not-yet-born child gets hurt or dies because of it, you're guilty of a separate crime.
  • The punishment for this crime is usually the same as if the injury or death happened to the unborn child's mother.
  • If you are found guilty of deliberately killing or attempting to kill the unborn child, the penalty is the same as for murdering another person.

The provisions of U.S.C. 1841 apply to a long list of federal offenses, including (but not limited to):

  • Murder,
  • Various crimes of assault,
  • Drive-by shootings,
  • Airport violence,
  • Denial of rights or other civil rights violations,
  • Laws related to obstruction,
  • Other violent crimes.

Other things to know about this law:

  • It doesn't matter if you didn't know the woman was pregnant. If you victimize someone who happens to be pregnant without your knowledge that that act is a qualifying federal crime, you can still be charged under U.S.C. 1841.
  • It doesn't matter if you didn't mean to harm the unborn child. U.S.C. 1841 is a law in which intent does not have to be proven. The only provision is that you did the harm during the commission of another federal crime (or deliberately tried to kill the child in utero).

Exception to the Rule

18 U.S.C. 1841 does not apply to lawful abortions and related medical treatments. In other words, this law cannot be used to prosecute a woman who decides to have a legal abortion, nor can it be used to charge medical professionals who either perform lawful abortions or otherwise provide treatment to the mother or child.

What is the Controversy Surrounding the Law?

From its inception, the Unborn Victims of Violence Act has been a subject of hot debate, largely stemming from its interpretation and implications for reproductive rights.

Critics argue that the law (despite the language exception concerning abortion) could potentially undermine a woman's right to choose an abortion by legally defining an unborn child as a separate victim in violent crime cases. 

They express concerns that the legislation might be leveraged to erode established abortion rights by assigning personhood to the fetus.

Some concerns also arise over the question of intent surrounding this law; critics state that a person who happens to victimize a pregnant woman without prior knowledge of the pregnancy is subject to more charges and greater penalties than if the same crime were committed against a woman who is not pregnant.

On the other hand, proponents of the law assert that it offers necessary protections to unborn children who are victims of violence, separate from any debates about abortion. They see it as a tool for holding offenders accountable for their actions against both the pregnant woman and her unborn child.

What are the Possible Defenses?

If you're charged with a separate crime under 18 U.S.C. 1841, defense strategies are more limited than other crimes because lack of knowledge/intent cannot be used as a viable defense. However, a skilled federal criminal defense attorney can implement one or more of the following defenses on your behalf:

  • Exonerating you from the original offense: If you are not guilty of the underlying offense, then by extension, you would not be guilty of the harm caused to the child in utero.
  • Your actions didn't cause harm or death to the unborn: Your attorney may attempt to prove, for example, that the unborn child was already injured or unviable before the alleged crime was committed—or that the death to the child was incidental due to other factors besides your actions.
  • Self-defense or defense of others: If you took appropriate action because you reasonably believed there was an imminent threat of serious bodily harm or death to you or others, you may be exonerated for any harm caused to the unborn child in the process.

Contact our law firm for more information or a case review. Eisner Gorin LLP has offices in Los Angeles, California.

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