HB 209-FN – AS INTRODUCED
2005 SESSION
04/09
HOUSE BILL 209-FN
AN ACT relative to unborn victims of violence.
SPONSORS: Rep. W. P. Campbell, Straf 3; Rep. P. Smith, Rock 3; Rep. Wendelboe, Belk 1
COMMITTEE: Criminal Justice and Public Safety
This bill establishes a separate offense for causing the death of, or injury to, an unborn child.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05-0198
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
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, at any stage of development, who is carried in the womb.
2 Effective Date. This act shall take effect January 1, 2006.
LBAO
05-0198
1/6/05
HB 209-FN - FISCAL NOTE
AN ACT relative to unborn victims of violence.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, and Departments of Justice and Corrections state this bill will increase state and county expenditures by an indeterminable amount in FY 2006 and each year thereafter. There will be no fiscal impact on state, county, and local revenue or county and local expenditures.
METHODOLOGY:
The Judicial Branch states this bill would amend RSA 630 to provide a separate offense for death or injury to an unborn child for certain offenses. This bill may result in an additional count in cases, or in a criminal case that would not otherwise have been brought in situations where the only victim is the unborn child. An additional count in cases would result in additional time to present the evidence related to the count involving the unborn child and to consider any appeals resulting from that count. In addition, because of the presence of a charge relating to an unborn child, any such case is likely to generate great publicity adding to the potential cost. For new criminal cases, the potential sentences for most of the offenses subject to the proposed statute are great and almost always result in jury trials. The cost of a full day’s trial in the superior court, without even considering the cost of the jury is $1,208.25, assuming the costs of a judge, court monitor, deputy clerk, and bailiff. In addition, the cost of preliminary hearings, a jury, staff time to write a charge to the jury, and clerical processing would bring the cost of a jury trial in excess of $1,500 per day. Should a decision be appealed, several thousands of dollars of additional costs would be incurred in judge, law clerk, and staff time at the Supreme Court. The Branch is unable to estimate the exact fiscal impact at this time, but states that any fiscal impact will result in increased delays in the processing of other cases.
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 the public defender or a contract attorney, who accept these cases on a fixed fee basis of $687.50 per felony charged. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $3,000 will apply. 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 charge
LBAO
05-0198
1/6/05
Page 2
within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $250 per case through disposition, plus $187.50 for each and every review hearing following disposition. Assigned counsel will be at the $60 per hour rate with a fee cap of $1,200. The fee cap may be waived upon motion filed with the court and approved in advance. Any case where a defendant has been found guilty may also result in appeals to either the Superior Court or to the Supreme Court which would have a cost implication for Indigent Defense expenditures made by the State. 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 states this bill would increase the number of homicide prosecutions handled by Department prosecutors involving any victim who had a child in utero when killed. The bill would only impact a small number of cases. Only one homicide in 2004 involved a pregnant victim, and only two homicides have occurred during the past decade involving a pregnant victim. For each applicable case, the Department estimates increased autopsy expenses at $300 per case, increased toxicology expenses at $1,000 per case, and increased expert witness expenses of approximately $5,000-$10,000 per case. In addition, the Department estimates a 20% increase in the overall costs of the prosecution attributed to increase prosecutor work hours, additional legal research, drafting of pleadings, and court hearings. The average cost of expenses incurred during a homicide prosecution varies between $10,000 and $20,000 depending on the nature of the case. With 300 hours per average prosecution per attorney, a 20% increase would result in an additional 60 hours per attorney. Assuming two attorneys per case (120 hours), an expense rate of $33.30 per hour, and benefits at 40% of salary, the estimated cost per case is as follows:
Expense Cost per Case
Autopsy $ 300
Toxicology 1,000
Expert Witness 10,000
Attorneys 5,594
Total $16,894
LBAO
05-0198
1/6/05
Page 3
The Department of Corrections states the number of individuals that will be sentenced under this bill cannot be predicted at this time. The average annual cost of incarcerating an individual in the general prison population for FY 2004 was $27,533.