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.