Bill to add penalty for harming unborn

ROBERT W. DALTON, Staff Writer

COLUMBIA -- Trey Gowdy's very first case as Seventh Circuit solicitor involved a man who broke into his pregnant girlfriend's apartment and punched her in the stomach.

Gowdy was able to prosecute the man for assaulting his girlfriend. A bill that the state Senate approved Wednesday would allow prosecutors to charge an attacker with assaulting the fetus as well in similar situations in the future.

Under the "Unborn Victims of Violence Act," anyone who commits a violent crime that injures or kills a fetus can be prosecuted for a separate offense and punished as if the injury or death occurred to the mother. Sen. Jim Ritchie, one of the bill's primary sponsors, said the bill goes a long way to protect the rights of the fetus. The bill covers criminal acts only and does not affect a woman's right to an abortion.

"To me it's very important that we recognize that when a pregnant woman is attacked that there are two victims of that crime," said Ritchie, R-Spartanburg. "It doesn't matter if the attacker knows the woman is pregnant or not."

Gowdy said it's not unusual for a pregnant woman to be more at risk to become a victim of domestic violence. If a woman is attacked and both she and the fetus die, it's clear that there are two homicide victims, he said.

"The hole that this bill plugs is that if the woman survives and the fetus dies or is injured, we'll now be able to charge her attacker," Gowdy said.

He also said that the bill would allow for prosecution in felony DUI cases in which a fetus is killed or injured. The bill does not address the issue of viability -- meaning charges can be brought whether the woman is in her first week or third trimester of pregnancy. And killing a fetus is not a death-penalty eligible crime, according to the bill.

Sen. Brad Hutto, D-Orangeburg, said someone who kills or injures a fetus through a criminal act deserves to be punished. But he said the issue could be addressed by enhancing sentencing guidelines.

"I'm afraid that what we're going to hand solicitors are cases that are fraught with problems," Hutto said. "It will be a useful tool in some cases, but in others it's going to give prosecutors a headache."

Hutto said he's concerned about the prosecution meeting the burden of proof in cases in which a woman is attacked early in her pregnancy and suffers a miscarriage weeks or months later.

"Is it going to be prosecutable every time a woman has a miscarriage after an attack?" he said.

Gowdy said that Hutto raises a good question, but one that has an easy answer: Expert testimony.

"How do you determine the cause of death in any case?" Gowdy said. "We routinely have to consult forensic pathologists to tell us why a fetus died."

The bill will receive routine third reading today and then move on to the House.

Robert W. Dalton can be reached at 562-7274 or bob.dalton@shj.com.