Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

HB 12-1130 First Degree Murder of Unborn Child Rep. Joshi & Sen. Mitchell Staff Name: Kate Hennessy What the Bill Does: Currently, any person who intentionally causes the end of a pregnancy of a woman, by any means other than justified medical termination or birth, commits criminal abortion. Criminal abortion is a class 4 felony, unless the woman dies as a result of the criminal abortion, in which case it is a class 2 felony. 1 There is also a separate statute stating that unlawful termination of a pregnancy, a class 4 felony, occurs when a person has the intent to unlawfully terminate a pregnancy and does so. 2 Under HB 12-1130, if a crime against a pregnant woman, as defined under Title 18 or 42, is the cause of death or injury to an unborn child, the respective homicide and assault charges for the death or injury of the unborn child may be brought as a second set of charges. Colorado Context: A similar bill, HB 11-1256, was introduced last year by bipartisan sponsors. However, HB 11-1256 was killed by its sponsor, Rep. Mark Wallar, following strong criticism by anti-abortion groups who objected to the following sentence: "The bill does not confer the status of 'person' upon a human embryo, fetus, or unborn child at any stage of development prior to live birth." 3 National Context: Many states have enacted different statutes in response to fetal homicide, or the unauthorized killing of a fetus. States where a third party can terminate a pregnancy without a womans consent and escape criminal prosecution rely on a technical post-trauma determination to decide if a homicide has occurred: Was the fetus born alive outside of the mother's womb before death? However, the majority approach holds that when a person kills a pregnant woman, or injures a pregnant woman and kills her fetus, the two harms each warrant separate punishment. 4 As of 2010 at least 38 states have fetal homicide laws. Moreover, as of 2009, although there have been numerous challenges, no court has

1
2

C.R.S. 40-6-102 C.R.S. 18-3.5-101 3 Colorado crime bill stirs abortion debate; The Denver Post, available at http://www.denverpost.com/legislature/ci_19915782. 4 Joanne Pedone, Filling the Void: Model Legislation for Fetal Homicide Crimes, 43 Colum. J.L. & Soc. Probs. 77 (2009).

DRAFT 4/2/2012 7:35 AM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

overturned a fetal homicide law for violating the constitutional right to abortion. The following are examples of criminal statutes for fetal homicide in nearby states as of 2010: 5 Kansas : a "person" and "human being" shall also mean an unborn child when defining victims of murder in the first and second degrees, manslaughter, capital murder and involuntary manslaughter while driving under the influence of alcohol or drugs. Utah: a person commits criminal homicide if a person intentionally, knowingly, recklessly causes the death of another human being, including an unborn child at any stage of development. Nevada: a person who willfully kills an unborn quick child by any injury committed upon the mother of the child commits homicide. Nebraska: Homicide of the Unborn Child Act defines murder of an unborn child in the first degree, murder in the second degree, manslaughter, and vehicular homicide. Wyoming, Montana and New Mexico do not have laws regarding fetal homicide. Bill Provisions: - This bill allows for a second charge to be filed if a crime committed against a pregnant woman is the proximate cause of injury or death to the unborn child. Fiscal Impact: Overall, this bill is anticipated to increase state expenditures, but there is no data available on the number of cases where unborn children were injured or killed. Thus, the increase in costs cannot be estimated at this time. In addition, to the extent that a judge increases fines for an offender that has multiple charges as a result of one or more crimes committed against a pregnant woman that injures or causes the death of her unborn child, state revenue may increase. 6

Fetal Homicide Laws; NCSL, available at www.ncsl.org/issues-research/health/fetal-homicide-state-laws.aspx.

Kerry White, Fiscal Note: SB 12-125 (March 6, 2012), available at http://www.leg.state.co.us/CLICS/CLICS2012A/csl.nsf/BillFoldersSenate?openFrameset.

DRAFT 4/2/2012 7:35 AM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.