HB 655-FN – AS INTRODUCED
2007 SESSION
04/09
HOUSE BILL 655-FN
AN ACT relative to unborn victims of violence.
SPONSORS: Rep. Mooney, Hills 19; Rep. Rowe, Hills 6; Rep. Manney, Hills 7; Rep. Kappler, Rock 2; Sen. Roberge, Dist 9; Sen. Barnes, Dist 17; Sen. Letourneau, Dist 19; Sen. Kenney, Dist 3
COMMITTEE: Criminal Justice and Public Safety
This bill establishes a separate offense for causing the death of, or injury to, an unborn child.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07-0081
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT relative to unborn victims of violence.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Homicide; Death of or Injury to an Unborn Child. Amend RSA 630 by inserting after section 6 the following new section:
630:7 Death of, or Injury to, an Unborn Child.
I.(a) Any person engaging in conduct that violates any provision of law listed in this paragraph and thereby causes the death of, or bodily injury to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.
(b) Except as otherwise provided in this section, the penalty for that separate offense is the same as the penalty provided under state law for that conduct had that injury or death occurred to the unborn child’s mother.
(c) The provisions of law referred to in subparagraph (a) are as follows: RSA 173-B:9, 265:82, 265:82-a, 629:1, 629:2, 629:3, 630:1-a, 630:1-b, 630:2, 630:3, 631:1, 631:2, 631:3, 632-A:2, 632-A:3, 633:1, 633:2, 635:1, 636:1, 639:3, 642:9, and 644:1.
II. An offense under this section does not require proof that:
(a) The person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
(b) The defendant intended to cause the death of, or bodily injury to, the unborn child.
III. If the person engaging in the conduct thereby purposely or knowingly kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph I(a), be punished under RSA 629:1 or 630:1-a.
IV. Notwithstanding the provisions of RSA 630:1, the death penalty shall not be imposed for an offense under this section.
V. Nothing in this section shall be construed to permit the prosecution of:
(a) Any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
(b) Any person for any medical treatment of the pregnant woman or her unborn child; or
(c) Any woman with respect to her unborn child.
VI. As used in this section:
(a) “Serious bodily injury” shall be as defined in RSA 625:11, VI.
(b) “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, in the third trimester of development, who is carried in the womb.
2 Effective Date. This act shall take effect January 1, 2008.
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1/17/07
HB 655-FN - FISCAL NOTE
AN ACT relative to unborn victims of violence.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Justice, and Department of Corrections state this bill may increase state and county expenditures by an indeterminable amount in FY 2008 and each year thereafter. This bill will have no fiscal impact on state, county, and local revenue or local expenditures.
METHODOLOGY:
The Judicial Branch states this bill would provide a separate offense for death or injury to an unborn child for the following offenses: violation of a domestic violence protective order; both DWI and aggravated DWI; murder first,: murder second; manslaughter; negligent homicide; assault first; assault second; reckless conduct; both felonious and aggravated felonious sexual assault; kidnapping; criminal restraint; burglary; robbery; endangering the welfare of a child or incompetent; assaults by prisoners; riot; or an attempt, criminal solicitation, or conspiracy to commit any of these offenses. This bill may result in an indeterminable amount of additional court cases. Because of the presence of a charge relating to an unborn child, any such case is likely to generate substantial publicity adding to the potential cost. The Branch states the cost of a full day’s jury trial in the Superior Court is $1,693. The cost of preliminary hearings, time to write a charge to the jury, and clerical processing would bring this cost in excess of $2,000 per day. Given the subject matter of such a trial and the publicity it would generate, the court would also have to consider the need for additional security at additional cost. Should a decision be appealed, several thousand dollars of additional costs would be incurred in judge, law clerk, and staff time at the Supreme Court. The Branch is unable to determine the exact fiscal impact at this time.
The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable will, in the first instance, be handled by a public defender or contract attorney. The fixed fee for the level of offense charged will apply. The current rate for a misdemeanor is $275; a felony $756.25; a felony “1” $2,282.50; and an “other” case is $206.25 based upon existing contract rates. There is no contract rate for homicides, so the rate paid begins at the fee cap level of $15,000. If an assigned counsel attorney must be
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used, due to either conflict of interest or for reasons of caseload limitation, the $60 per hour rate, with a fee cap based upon the case type will apply. The fee caps are $1,000 for a misdemeanor; $3,000 for a felony; and $15,000 for a homicide. If a motion to exceed the fee cap is approved and/or “services other than counsel” are approved, these will also be chargeable to the Indigent Defense Fund. Any offense within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $275 per case through disposition, plus $206.25 for each and every review hearing following disposition. Assigned counsel attorneys will bill a juvenile case at $60 per hour with a fee cap of $1,200 through disposition. It should also be noted that any case where a defendant has been found guilty may also result in an appeal to either the Superior Court from the District Court or to the Supreme Court which will also have cost implications for indigent defense expenditures made by the State. The public defender and contract attorney rates for Supreme Court appeals, like those for assigned counsel, are $1,500 per case. Associated with any Supreme or Superior Court appeal may be transcript requests which are often costly expenses approved from “service other than counsel” funds. The Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.
The Department of Justice is unable to estimate how many prosecutions would result from the passage of this bill, as there are no available statistics on the number of women who have been the victim of one of the delineated offenses while pregnant, and whose fetus was injured or killed. The Department would be responsible for handling the prosecution of any case that fell within the parameters of the statutes for first degree murder, second degree murder, and manslaughter. The remainder of the cases would be prosecuted by the county attorneys. If the death of a fetus occurred in conjunction with the death of the mother, the cases would be prosecuted jointly and the impact would be negligible. However, if the death of the fetus was not connected with the death of the mother, then it would constitute an additional homicide case for prosecution that would not have existed previously. New Hampshire averages 21 murders per year, and over the past ten years, an average of 50% of them have been domestic violence related. As pregnancy is often the catalyst for violence, it is likely this bill could result in an additional one or two homicide prosecutions per year. The Department is unable to determine the exact fiscal impact at this time.
The Department of Corrections states they are unable to determine the fiscal impact at this time since the number of individuals violating the provisions of this bill cannot be predicted.
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The average annual cost of incarcerating an individual in the general prison population was $31,140 for FY 2006. The cost to supervise an offender by the Department’s Division of Field Services was $1,174 for FY 2006.