CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, August 31, 2008

Sex assaults that leave victims pregnant can warrant tougher penalties, court rules

A sexual assault that leaves a victim pregnant may be punished more severely than one that does not result in pregnancy, the California Supreme Court ruled unanimously Thursday.

The state high court said a pregnancy may be considered "great bodily injury."

"We conclude that here, based solely on the evidence of the pregnancy, the jury could reasonably have found that 13-year-old K. suffered a significant or substantial physical injury," Justice Joyce L. Kennard wrote for the court.

The court ruled in the Santa Clara County case of Gary W. Cross, who repeatedly had sexual intercourse with his 13-year-old stepdaughter while her mother worked. The teenager, identified as K., became pregnant, and Cross arranged for her to have an abortion. Because she was 5 1/2 months pregnant, the abortion was performed surgically.

The jurors at Cross' trial were told they could find that he personally inflicted "great bodily injury" on the girl as a result of her pregnancy or the abortion. The jury reached that finding, which mandated a sentence of 15 years to life in prison. Without that verdict, the defendant would have received a more lenient sentence.

Cross appealed, arguing that a pregnancy without complications could not constitute a substantial injury, nor could an abortion he did not perform. The state high court agreed that the abortion was not an injury he personally inflicted but decided that the pregnancy could be considered a significant injury under the law.

The court cited a prosecutor's trial argument that the victim was "carrying a baby for 22 weeks . . . in a 13-year-old body." A DNA test on tissue samples from the fetus showed a 99.99% probability that Cross was the father.

Although the court ruled unanimously that the girl's pregnancy amounted to substantial harm, the justices were split 5 to 2 on whether to declare that every pregnancy stemming from sexual assault would amount to a great injury. The majority said that was a question for juries to decide based on the facts of a case.

Justice Carol A. Corrigan and Chief Justice Ronald M. George said the ruling should apply to all pregnancies that result from sexual assaults.

"A victim who is raped and made pregnant experiences a different degree of injury than the victim who is not impregnated," Corrigan wrote. "Because pregnancy must result in childbirth, miscarriage or abortion, its infliction during a sexual assault is, by definition, a substantial or significant injury." [Mark Godsey]
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