In NEW YORK when someone assaults a pregnant woman?

Question

and the VIABLE fetus dies as a result, does New York law charge the assailant with murder or simple assault? Please provide references. Thank you.

Answer 1

Since the passing of the Unborn Victims of Violence Act, a violent assault committed against pregnant women will be considered a crime against TWO persons: the woman and the fetus she carries. Using this as precedent, many cases arose where assailants were being charged with a minimum of 2 counts of assault against a pregnant woman.

In your scenario, the assailant would be charged with assault as well as murder. Note that there are thousands of other charges that the DA can and will throw on the assailant, but he will most likely end up plea bargaining to murder and assault.

Answer 2

There have been numerous instances in New York in which a count of murder has been added for the death of a viable fetus during the course of an assault on the mother. However, obtaining a conviction is another problem entirely.

NY Penal Law § 125.25 states in pertinent part as follows:

"A person is guilty of murder in the second degree when:

"1. With intent to cause the death of another person, he causes the death of such person or of a third person."

The term "person" is defined in Penal Law § 125.05 (1) as "a human being who has been born and is alive."

The Court of Appeals has not strayed from its born alive rule, People v Hayner (300 NY 171 [1949]).

By contrast, a fetus is considered a person when its injuries give rise to a criminal assault prosecution ( People v Hayat, 235 AD2d 287, lv denied 89 NY2d 1036), but not in the context of abortion ( Roe v Wade, 410 US 113).

Answer 3

Not sure about NY, but the Bible says only monetary reparations are due in that case. If the woman also dies then it is murder. The perp should be able to be sued for damages if I'm not mistaken.