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Introduced Version Senate Bill 628 History

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Key: Green = existing Code. Red = new code to be enacted


Senate Bill No. 628

(By Senator McKenzie)

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[Introduced February 18, 2002; referred to the Committee

on the Judiciary.]

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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 creating the crime of feticide; definitions; providing various degrees of murder, manslaughter and assault; and criminal penalties.

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. CRIME OF FETICIDE.
§61-2A-1. Definitions.
The definitions in this section apply to the provisions of this article.
(a) "Unborn child" means the unborn offspring of a human being conceived, but not yet born.
(b) "Whoever" does not include the pregnant woman.
§61-2A-2. Feticide murder in the first degree.
Whoever does any of the following is guilty of murder of an unborn child in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility for life:
(a) Causes the death of an unborn child with premeditation and with intent to effect the death of the unborn child or of another; or
(b) Causes the death of an unborn child while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the mother of the unborn child or another; or
(c) Causes the death of an unborn child with intent to effect the death of the unborn child or another while committing or attempting to commit burglary, aggravated robbery, kidnapping, arson in the first or second degree, tampering with a witness in the first degree or escape from custody.
§61-2A-3. Murder of an unborn child in the second degree.
Whoever does either of the following is guilty of murder of an unborn child in the second degree and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than forty years:
(a) Causes the death of an unborn child with intent to effect the death of that unborn child or another, but without premeditation; or
(b) Causes the death of an unborn child, without intent to effect the death of any unborn child or person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence.
§61-2A-4. Murder of an unborn child in the third degree.
Whoever, without intent to effect the death of any unborn child or person, causes the death of an unborn child by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human or fetal life, is guilty of murder of an unborn child in the third degree and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than twenty-five years.
§61-2A-5. Manslaughter of an unborn child in the first degree.
Whoever does any of the following is guilty of manslaughter of an unborn child in the first degree and, upon conviction thereof, shall be fined not more than thirty thousand dollars, or imprisoned in a state correctional facility for not more than fifteen years, or both fined and imprisoned:
(a) Intentionally causes the death of an unborn child in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances; or
(b) Causes the death of an unborn child in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force or violence that death of or great bodily harm to any person or unborn child was reasonably foreseeable, and murder of an unborn child in the first or second degree was not committed thereby; or
(c) Intentionally causes the death of an unborn child because the actor is coerced by threats made by someone other than the actor's coconspirator and which cause the actor to reasonably believe that the act performed by the actor is the only means of preventing imminent death to the actor or another.
§61-2A-6. Manslaughter of an unborn child in the second degree.
A person who causes the death of an unborn child by any of the following means is guilty of manslaughter of an unborn child in the second degree, and upon conviction thereof, may be fined not more than twenty thousand dollars, or imprisoned for not more than ten years, or both fined and imprisoned:
(a) By the actor's culpable negligence whereby the actor creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to an unborn child or a person; or
(b) By shooting the mother of the unborn child with a firearm or other dangerous weapon as a result of negligently believing her to be a deer or other animal; or
(c) By setting a spring gun, pit fall, deadfall, snare or other like dangerous weapon or device; or
(d) By negligently or intentionally permitting any animal, known by the person 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 failing to keep it properly confined.
If proven by a preponderance of the evidence, it is an affirmative defense to criminal liability that the mother of the unborn child provoked the animal to cause the unborn child's death.
§61-2A-7. Assault of an unborn child in the first degree.
Whoever assaults a pregnant woman and inflicts great bodily harm on an unborn child who is subsequently born alive is guilty of a felony and, upon conviction thereof, shall be fined not more than thirty thousand dollars, or imprisoned in a state correctional facility for not more than fifteen years, or both fined and imprisoned.
§61-2A-8. Assault of an unborn child in the second degree.
Whoever assaults a pregnant woman and inflicts substantial bodily harm on an unborn child who is subsequently born alive is guilty of a felony and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in a state correctional facility for not more than five years, or both fined and imprisoned.
As used in this section, "substantial bodily harm" includes the birth of the unborn child prior to thirty-seven weeks gestation if the child weighs two thousand five hundred grams or less at the time of birth. "Substantial bodily harm" does not include the inducement of the unborn child's birth when done for bona fide medical purposes.
§61-2A-9. Assault of an unborn child in the third degree.
Whoever does any of the following commits an assault of an unborn child in the third degree and is guilty of a misdemeanor:
(1) Commits an act with intent to cause fear in a pregnant woman of immediate bodily harm or death to the unborn child; or
(2) Intentionally inflicts or attempts to inflict bodily harm on an unborn child who is subsequently born alive.
§61-2A-10. Injury or death of an unborn child in commission of crime.

(a) Death of an unborn child.

Whoever, in the commission of a felony, causes the death of an unborn child is guilty of a felony and, upon conviction thereof, shall be fined not more than thirty thousand dollars, or imprisoned in a state correctional facility for not more than fifteen years, or both fined and imprisoned.
(b) Injury to an unborn child.
Whoever, in the commission of a felony, causes great or substantial bodily harm to an unborn child who is subsequently born alive, is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty thousand dollars, or imprisoned in a state correctional facility for not more than ten years, or both fined and imprisoned.
§61-2A-11. Other convictions not barred.
A prosecution for or conviction under the provisions of this article is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.




NOTE: The purpose of this bill is to create the crime of feticide, provide definitions and various degrees of the offense and penalties therefor.

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