Senate Bill No. 146
(By Senators Kessler, McKenzie, Edgell, Bailey, Unger, Love,
Hunter, Tomblin, Mr. President, Chafin, Barnes, Boley, Jenkins,
Minard, Helmick, Sprouse, Dempsey, Oliverio, Harrison, Prezioso,
Weeks, Sharpe, Minear, Guills, Bowman, Caruth, Plymale and
[Introduced February 10, 2005; referred to the Committee
on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §61-2-30, relating to
creating the Unborn Victims of Violence Act; defining certain
terms; identifying offenses of violence against a person that
are committed against a pregnant woman or her embryo or fetus
in the womb; establishing that an embryo or fetus in the womb
may be a separate and distinct unborn victim in the case of
certain violent crimes against a pregnant woman or her embryo
or fetus in the womb; providing exceptions against the
application of said section to certain persons or entities;
specifying penalties; and providing that a conviction under
said section, or of said article, is not a bar to prosecution
of, or punishment for, any other crime allegedly committed by
the defendant arising from the same incident.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-2-30, to read as
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-30. Recognizing an embryo or fetus as a distinct unborn
victim of certain crimes of violence against the
(a) This section may be known and cited as the Unborn Victims
of Violence Act.
(b) For the purposes of this article, the following
definitions shall apply: Provided, That these definitions only
apply for purposes of prosecution of unlawful acts under this
section and may not otherwise be used: (i) To create or to imply
that a civil cause of action exists; or (ii) for purposes of
argument in a civil cause of action, unless there has been a
criminal conviction under this section.
(1) "Embryo" means the developing human in its early stages.
The embryonic period commences at fertilization and continues to
the end of the embryonic period and the beginning of the fetal
period, which occurs eight weeks after fertilization or ten weeks
after the onset of the last menstrual period.
(2) "Fetus" means a developing human that has ended the
embryonic period and thereafter continues to develop and mature
until termination of the pregnancy or birth.
(c) For purposes of enforcing the provisions of sections one, four and seven of this article, subsections (a) and (c), section
nine of said article, sections ten and ten-b of said article and
subsection (a), section twenty-eight of said article, a pregnant
woman and the embryo or fetus she is carrying in the womb
constitute separate and distinct victims.
(d) Exceptions. -- The provisions of this section do not apply
(1) Acts committed during a legal abortion to which the
pregnant woman, or a person authorized by law to act on her behalf,
consented or for which the consent is implied by law;
(2) Acts or omissions by medical or health care personnel
during or as a result of medical or health-related treatment or
services, including, but not limited to, medical care, abortion,
diagnostic testing or fertility treatment;
(3) Acts or omissions by medical or health care personnel or
scientific research personnel in performing lawful procedures
involving embryos that are not in a stage of gestation in utero;
(4) Acts involving the use of force in lawful defense of self
or another, but not an embryo or fetus; and
(5) Acts or omissions of a pregnant woman with respect to the
embryo or fetus she is carrying.
(e) For purposes of the enforcement of the provisions of this
section, a violation of the provisions of article two-i, chapter
sixteen of this code shall not serve as a waiver of the protection
afforded by the provisions of subdivision (1), subsection (d) of
(f) Other convictions not barred. -- A prosecution for or
conviction under this section is not a bar to conviction of or
punishment for any other crime committed by the defendant arising
from the same incident.
(NOTE: The purpose of this bill is to establish the Unborn
Victims of Violence Act which creates a separate criminal cause of
action for crimes of violence where a pregnant woman is carrying a
is new; therefore, strike-throughs and underscoring
have been omitted.)