Prepared Statement of Robert J. Cynkar, Esq.

Before the Subcommittee on the Constitution

House Committee on the Judiciary

Hearings on H.R. 503

March 15, 2001

Chairman Chabot, Members of the Subcommittee:

My name is Robert Cynkar. I am a founding partner of the Washington, D.C. law firm of Cooper, Carvin & Rosenthal. I have been invited to testify today based on my experience as a former federal prosecutor who has served in a variety of roles in federal law enforcement and prosecution. During my career I have had the opportunity to serve as an Assistant United States Attorney in the Eastern District of Virginia, as a Special Assistant to the Attorney General responsible for liaison with all the United States Attorneys across the country, and as a Deputy Assistant Attorney General in charge of the Office of Consumer Litigation, the only component in the Justice Department's Civil Division with criminal jurisdiction.

I would respectfully begin with an exhortation to the Members of this Subcommittee, and indeed to the Members of the full Judiciary Committee, and of the whole House. This legislation, the Unborn Victims of Violence Act, is not only as a technical matter squarely within the mainstream of well-established principles of criminal law, but it is law-making in furtherance of the most fundamental, most noble ideals of all law. Who here can doubt that the most basic mission of the law is to establish justice, and through that justice to preserve peace and order in civil society? It is does not take a law degree to recognize that committing acts of violence against others is a most pernicious form of lawlessness, striking at the dignity of the victims as human beings and at the order and stability of society. That is why it is a most elementary purpose of the law to punish such unjustified violence against our neighbors. We all expect the law, if it can do nothing else, to keep us safe, to preserve us from the brutality of what the philosophers have called the "state of nature" outside of civil society.

It is shameful, if not an outrage, that certain of our fellow beings are deprived of this fundamental protection of the law because they are not seen, because they cannot protest, or, put in terms familiar to you, because they cannot write their Member of Congress or Senator. Our unborn offspring - "fetus" simply is Latin for offspring or young - now fall outside the protection of federal law, and H.R. 503 is designed to remedy that failure.

The bill does that by recognizing that a violent act against a pregnant woman has two victims, the mother and her unborn child, and so should constitute two distinct offenses in federal law. It is important to underscore this point: no new crimes are created by this bill. No new judgments concerning the acts that should result in criminal liability are embedded in this legislation. Only one new thing need be proved, that an unborn child suffered bodily injury or death due to conduct that violates one of several specified federal laws.

Two provisions of H.R. 503 might prompt a challenge to this observation. First, the bill makes it clear that the perpetrator is guilty of the separate offense against the unborn child even if the perpetrator did not know that the woman who is the victim was pregnant, and, second, the perpetrator is guilty even if the perpetrator did not intend to harm the unborn child. Don't these provisions undermine the standard criminal intent that must be established to convict someone of a crime?

The short answer to this question is no. In fact, these provisions closely reflect well-established principles of criminal law. The first provision - that no proof that the perpetrator knew that the victim was pregnant is needed - is a variation of the felony-murder doctrine, under which an individual who commits a dangerous felony, which unintentionally results in the death of a person, is guilty of murder. One example of this in federal law can be found in the federal murder statute, 18 U.S.C. § 1111, under which a killing "committed in the perpetration of . . . any arson" is considered first degree murder. Thus a person can be found guilty of murder under federal law if he commits arson and someone dies, even if that person had no idea someone was in the building he set aflame.

The second provision - that no proof is required that the perpetrator intended to harm the unborn child - conforms to the understanding of the "general," as opposed to a "specific," intent that supports conviction of most crimes of violence. Again referring to the federal murder statute, murder is homicide (the killing of a human being) "with malice aforethought." "Malice aforethought" is simply the intent to commit homicide without any justification, excuse, or mitigation. No element of murder requires that the perpetrator have the specific intent to kill the person who in fact was killed. Thus if John shoots at Joe, trying to kill him, but hits and kills Tom instead, John is guilty of murder. Likewise, under H.R 503, if a person attacks a pregnant woman with intent to kill, and also kills her unborn baby, that person would be guilty of the murders of both the unborn child and her mother.

Conceptually, then, H.R. 503, proposes no break with established federal criminal law. Rather, it ensures that unborn children have the benefit of that law. It is not surprising that H.R. 503 as a practical matter poses no new or special challenges to the prosecution of a crime. The elements that a prosecutor must prove are already set out in each substantive provision of federal criminal law, which would equally define the offense against the unborn child. The prosecution would have to prove that the wrongful act of the defendant caused the unborn baby's death or bodily injury, to be sure, but such proof of causation is required for the prosecution of almost every crime.

Speaking not only as a former prosecutor, but as one who continues to earn his living as a trial lawyer, none of the provisions of H.R. 503 create any new problems in the dynamics of a criminal trial. Causation and intent are matters to be proved in any criminal proceeding, matters that may be easy to prove in some cases, and more difficult to prove in others. There is nothing about the attributes of the victim protected by H.R. 503 - the unborn child - that to my mind creates unique problems of proof. But even if it did, would such mechanical issues of court procedure mean we should disqualify such victims from the protection of the law? When have we stayed our hand in extending the rule of law because executing it might be difficult?

Given what I believe to be the fundamental justice of this bill, it is my earnest hope that the backdrop of the abortion debate not poison consideration of H.R. 503. There are reasonable, well-meaning people on both sides of the abortion question, a question that H.R.503 does not affect. The substantive provisions of the bill cannot be read to even remotely implicate a woman's right to choose to have an abortion. If that were not enough, the bill expressly prohibits the prosecution of any acts related to an abortion.

Perhaps the few people at the extreme ends of the abortion debate might find H.R. 503 objectionable for some reason, the extreme pro-choicer because the bill recognizes the value of protecting unborn children where the mother does not wish to terminate her pregnancy, and the extreme pro-lifer because the bill leaves the current legal protection for abortion undisturbed. However, I believe the vast majority of Americans who are more in the mainstream, even if they differ over our legal policy concerning abortion, would agree that H.R. 503 is an appropriate step. Surely the vast majority of pro-choice individuals are not pro-abortion per se, but rather have grave qualms about the government interfering with a woman's decisionmaking concerning such an intimate decision as bringing a baby to term. That view is hardly at odds with this bill, which, after all, punishes those who would take away a mother's right to choose by doing harm to her baby. And the majority of pro-life individuals would applaud the recognition of the right to life of an unborn child even under the modest scope of H.R. 503. In short, this is not an abortion bill, and I believe that the overwhelming majority of Americans engaged in that issue will not see it as such.

H.R. 503 is in many ways a modest bill, filling a scandalous gap in our law, that I would respectfully submit merits the support of every Member of this House. Thank you.