Sue Hartigan <[EMAIL PROTECTED]> writes:
Hi Everyone:
Dr. L. and I have been working on something and would appreciate any
help or ideas anyone might have.
First off I will repost the orginal story so you will know what I am
talking about :)
A law that makes it a felony for one parent to beat another does not
apply to the beating of a pregnant woman by the father of the fetus, a
state appeals court said.
The ruling disappointed Riverside County prosecutors, who are discussing
whether to appeal the case to the state Supreme Court, said Deputy
District Attorney Colleen Mass.
"Other rulings have given broad interpretations to the laws about
spousal abuse," Mass said.
The ruling by the 4th District Court of Appeals stems from the
prosecution of Branson S. Ward, who was charged with assaulting Thea
Airrington, his former girlfriend, in her Riverside apartment in March
1996.
Airrington, who broke up with Ward the previous month, was 3 1/2 months
pregnant at the time of the attack. Ward grabbed her arms, pushed her
down, grabbed her by the hair and slammed her head into a closet door,
slapped her and squeezed her neck, the court said.
Prosecutors said the two still were seeing each other, though not living
together.
Ward was convicted of two felonies, aggravated assault and battery on
the mother of his child, and sentenced to six years in prison. The
sentence was double the usual term because Ward had a previous violent
felony conviction and was covered by the three-strikes law.
As drafted, the law used to prosecute Ward imposed felony penalties of
up to four years in prison for beatings that would normally be
misdemeanors, punishable by up to a year in jail, if the victim was the
attacker's spouse of cohabitant.
It was expanded in 1988 to include the beating of "the mother or father
of (the attacker's) child." That amendment was used it the prosecution
of Ward.
Superior Court Judge W. Charles Morgan ruled that the parental violence
law covered the beating of a pregnant woman.
The appeals court, in overturning his ruling, said the law defines
"mother" in a way that makes "the birth of a child...an essential
prerequisite."
The same law does not define "child" but other laws, prohibiting child
abuse and neglect, have been interpreted to apply only to children after
birth, said Justice Art McKinster in the 3-0 ruling.
Mass, though, said murder statutes have provisions that allow someone to
be charged in the death of a fetus.
McKinster also rejected the state's argument that the law was intended
to apply to all types of domestic violence, and said it was up to the
Legislature to make that change.
The attorney general's office may propose such a change, although it has
not ruled out an appeal, said Deputy Attorney General Lilia Garcia, the
state's lawyer.
"We believe that a family relationship between the expectant mother and
the batterer continues during the pregnancy, and she should be entitled
to protection," Garcia said.
Despite the ruling, Ward's prison sentence will not be reduced because
it was legally based on the assault conviction, Garcia said.
Diane Nicoles, Ward's lawyer, could not be reached for comment.
Now here is what we are working on. I found a state law which may
overturn this. It is:
CALIFORNIA CODES
CIVIL CODE
SECTION 43-53
43. Besides the personal rights mentioned or recognized in the
Government Code, every person has, subject to the qualifications and
restrictions provided by law, the right of protection from bodily
restraint or harm, from personal insult, from defamation, and from
injury to his personal relations.
43.1. A child conceived, but not yet born, is deemed an existing
person, so far as necessary for the child's interests in the event of
the child's subsequent birth.
Dr. L. and I would appreciate anything that anyone can contribute to our
little project. We also have the court ruling if anyone would like to
see it.
Thanks Sue
--
Two rules in life:
1. Don't tell people everything you know.
2.
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