Re: L&I Any ideas or help would be appreciated/Sue/Ron

[Linda D. Misek-Falkoff, Ph.D., J.D.]

"Linda D. Misek-Falkoff, Ph.D., J.D." <[EMAIL PROTECTED]> writes:


Hi Sue, your re-post of both the Ward (criminal) material, and the civil
material, is very timely. Dr. Ron gave a distinction between
fetus/neonate/infant/and child which seems very explanatory, but I don't
see it as compatible with what appears as the  very broad or loose
language of the Civil code ("a child conceived, but not yet born"). What
do you think?
:) LDMF.

---------------------------Sue Hartigan wrote:------------------------
> 
> 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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