Testimony of
Juley Fulcher, Esq., Public Policy Director
National Coalition Against Domestic Violence
before the Constitutional Subcommittee
of the House Committee on the Judiciary
on H.R. 503, the "Unborn Victims of Violence Act of 2001"
15 March 2001
Good morning Mr. Chairman and Members of the Subcommittee. My name is Juley Fulcher and I am the Public Policy Director of the National Coalition Against Domestic Violence (NCADV). On behalf of the Coalition, I thank you for the opportunity to address the concerns of battered women who experience violence during their pregnancies. The National Coalition Against Domestic Violence is a nationwide network of approximately 2,000 domestic violence shelters, programs and individual members working on behalf of battered women and their children. My role here today is to advocate for increased safety for battered women, which in turn will lead to healthier pregnancies and births. Unfortunately, the "Unborn Victims of Violence Act" does NOT provide the protection that battered women need to obtain safety.
Historically, one of the major obstacles to eradicating domestic violence from the lives of women has been the unwillingness of the legal system to treat domestic violence as a serious crime. The hard work of dedicated domestic violence advocates on the front lines has slowly brought about a change in the way we treat the crime of domestic violence. States began toughening laws on domestic violence and enforcing existing laws in the late 1980s. In 1994, Congress gave an important boost to this trend by passing the Violence Against Women Act (1) and committing to a federal investment in protecting battered women and their children. As a result, we have seen increased criminal prosecutions of domestic violence nationwide. Last year, Congress recognized the importance continuing and expanding the national campaign against domestic violence by passing the Violence Against Women Act of 2000 (2) with overwhelming bi-partisan support. It is important that we continue this trend and recognize domestic violence threats, assaults and murders as the serious crimes that they are.
According to a summary of recent studies, between 4% and 8% of all pregnant women in this country are battered by the men in their lives (3) with the highest rates of violence being experienced by pregnant adolescents. (4) As an attorney representing victims of domestic violence, I have seen the effects of this violence first hand. Several years ago, a client of mine lost a pregnancy due to domestic violence. There was a history of domestic violence in her case and she had sought assistance several times. While she was 8 months pregnant, her batterer lifted her up in his arms and held her body horizontal to the ground. He then slammed her body to the floor causing her to miscarry. No matter how many stories like this I hear, it never ceases to sicken me. I should note that in this case and others I have worked on, it was clear by the batterer's words and actions that his intent was to cause physical and emotional injury to the woman and establish undeniably his power to control her. We, as a society, are right to want to address this problem and protect women from such a fate. However, our response to the problem should be one that truly protects the pregnant woman by early intervention before such a tragedy occurs.
The "Unborn Victims of Violence Act" is not designed to protect women. The goal of the Act is to create a new cause of action on behalf of the unborn. The result is that the crime committed against a pregnant woman is no longer about the woman victimized by violence. Instead the focus often will be shifted to the impact of that crime on the unborn fetus, once again diverting the attention of the legal system away from domestic violence or other violence against women.
Moreover, passage of the "Unborn Victims of Violence Act" would set a dangerous precedent which could easily lead to statutory changes that could hurt battered women. This bill would, for the first time, federally recognize that the unborn fetus could be the victim of a crime. It would not be a large intellectual leap to expand the notion of unborn fetus as victim to other realms. In fact, some states have already made that leap and, in those states, women have been prosecuted and convicted for acts that infringe on state recognized legal rights of a fetus. While the "Unborn Victims of Violence Act" specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even for the violence perpetrated on her by her batterer under a "failure to protect" theory. Moreover, a battered woman can be intimidated or pressured by her batterer not to reveal the cause of her miscarriage and, if she is financially or emotionally reliant on her batterer, may be less likely to seek appropriate medical assistance if doing so could result in the prosecution of her batterer for an offense as serious as murder. The long-term public health implications of such a policy would be devastating for victims of domestic violence and all women.
The harmful potential of this bill is, unfortunately, balanced by little or no additional protections for battered women and other women victimized by violence. The vast majority of domestic violence threats, assaults and murders -- like other crimes of violence -- are prosecuted by the states. While there are important federal laws to prosecute interstate domestic violence, (5) interstate stalking (6) and interstate violation of a protection order, (7) these are stop-gap statutes which are appropriately applied in a very small number of cases relative to the incidence of domestic violence nationwide. In fact, the federal domestic violence criminal statutes have been called into play only 130 times in the last six years. (8) As the "Unborn Victims of Violence Act" would only apply in federal cases, the change in the law would do little, if anything, to address the crime of domestic violence in our country or other assaults on pregnant women.
On the other hand, federal programming already exists that positively impacts the lives of hundreds of thousands of battered women and their children. Since the original Violence Against Women Act was passed in 1994, we have seen a 21% decrease in intimate partner violence. (9) Unfortunately, available services still do not come close to meeting the needs of victims. In a recent NCADV survey, as many as two-thirds of the victims seeking assistance at domestic violence shelters and programs were turned away last year due to lack of space. Even though Congress passed the Violence Against Women Act of 2000 in October, stepping up the campaign against domestic violence and sexual assault, the Fiscal Year 2001 appropriations for Violence Against Women Act programming fell more than 200 million dollars short of the authorized amounts, with funding for the state formula grants which aid local prosecutions being funded at the lowest level since 1997. Moreover, funding for programs critical to the sustained safety of battered women such as transitional housing received no funding at all. If the United States Congress is serious about protecting women from domestic violence, whether they are pregnant or not, you must fully fund these programs that have already made so much of a difference in the lives of victims nationwide.
I hope you agree with me that the crime of domestic violence is a horrendous one, not only in terms of the physical impact of the violence, but also in terms of its emotional, psychological, social and economic toll upon its victims. Certainly, there can be no doubt that a pregnancy lost due to domestic violence greatly increases that toll on a battered woman. We at the National Coalition Against Domestic Violence wish to fully recognize and respond to that loss. However, the more appropriate means of dealing with this problem with respect to battered women is to provide comprehensive healthcare, safety planning and domestic violence advocacy for victims. This solution would maintain the focus of any criminal prosecution on the intended victim of violence -- the battered woman -- and make an important affirmative step toward providing safety for her. If Congress wishes to protect the pregnancy, the way to do that is by protecting the woman.
Endnotes
1. Public Law 103-322 [H.R. 3355]; September 13, 1994.
2. Public Law 106-386 [H.R. 3244]; October 28, 2000.
3. Gazmararian, Julie A., Petersen, Ruth, Spitz, Alison M., Goodwin, Mary M., Saltzman, Linda E., and Marks, James S., "Violence and Reproductive Health: Current Knowledge and Future Research Directions," Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
4. Wiemann, Constance M., Agurcia, Carloyn A., Berenson, Abbey B., Volk, Robert, J. & Rickert, Vaughn I., "Pregnant Adolescents: Experiences and Behaviors Associated with Physical Assault by an Intimate Partner," Maternal and Child Health Journal, Vol. 4, No. 2, 2000.
5. 18 U.S.C. 2261(a).
6. 18 U.S.C. 2261A.
7. 18 U.S.C. 2262(a)(1).
8. This number reflects actual indictments under 18 U.S.C. 2261, 2261A and 2262 through November, 2000. It does not include the largest category of federal domestic violence prosecutions, those brought under 18 U.S.C. 922(g)(8) - a statute that is not addressed by the "Unborn Victims of Violence Act."
9. Bureau of Justice Statistics: Special Report "Intimate Partner Violence" by Callie Marie Rennison, Ph.D. and Sarah Welchans (BJS Statisticians), May 2000.