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COMMENTS:
PREGNANCY AS A RESULT OF
UNLAWFUL BUT NON-FORCIBLE
SEXUAL CONDUCT IS NOT A FORM
OF GREAT BODILY INJURY
Sabrina Bonanno
Abstract: Pregnancy resulting from unlawful but non-forcible sexual
conduct is treated differently depending on the jurisdiction where the offense
takes place. In People v. Cross, the Supreme Court of California affirmed the
defendants conviction by holding that a pregnancy can be considered a form
of great bodily injury (hereinafter GBI). In contrast to California,
Wisconsin and Nebraska list pregnancy and GBI as specific elements of the
sexual assault statute. Thus, the Wisconsin and Nebraska statutes outline a
clear distinction between the two elements.
The application of GBI should be reserved for the most severe physical
injuries. To define pregnancy as GBI is to reduce the significance of the term
as it is applied to physical attacks that leave a victim on the verge of being
maimed or deformed for life. Also, in light of societal views of pregnancy,
where pregnancy is generally celebrated, it is inconsistent to define a
pregnancy as GBI. Further, in the civil context, liability for an unwanted, but
healthy child generally does not exist, while in the criminal context, a
sentencing enhancement for GBI can result from an unwanted pregnancy.
Instead pregnancy should be listed as a specific element of the sexual assault
Hereinafter the terms great bodily harm, serious bodily harm, and serious bodily
injury will be referred to as great bodily injury since that is the term defined in the
California statutes and used by the Supreme Court of California in People v. Cross, 190
P.3d 706 (Cal. 2008).
Candidate for Juris Doctor, New England School of Law (2010). B.A., Political Science,
cum laude, Flagler College (2007). Additionally, I would like to thank my parents, Sam and
Vickie, for always providing me with their unconditional love, support, and guidance. I
would also like to thank my brother Mike for being a constant source of inspiration.
193
BONANNO
statute and should not be encompassed within the definition of GBI. While
pregnancy resulting from unlawful but non-forcible sexual conduct should
still be a factor in determining the reprehensibility of the offense, by making
pregnancy an element of the offense, it eliminates the need to classify
pregnancy as GBI for the purpose of increasing a defendants sentence.
INTRODUCTION
Jurisdictions treat pregnancy resulting from rape or unlawful but non-
forcible sexual conduct1 differently. In California, a pregnancy resulting
from such conduct can be considered great bodily injury (hereinafter
GBI).2 More specifically, in People v. Cross,3 the defendant engaged in
unlawful but non-forcible sexual conduct with his step-daughter resulting
in a pregnancy and subsequent abortion.4 The Supreme Court of California
held that the step-daughters pregnancy could be considered a form of
GBI.5 Conversely, Wisconsin and Nebraska list pregnancy as a specific
element in the sexual assault statute that, if satisfied, secures a conviction.6
The legal definition of GBI depends on the jurisdiction.7 In
California, GBI means a significant or substantial physical injury.8
Whether a pregnancy resulting from unlawful but non-forcible sexual
conduct falls under this broad definition is a question of fact for a jury.9
However, pregnancy should not be a form of GBI. Rather, pregnancy
should be listed as a specific element of the sexual assault statute that could
be satisfied as was codified by the Wisconsin and Nebraska Legislatures.10
To define pregnancy as GBI is to reduce the significance of the term as it
applies to physical attacks that leave a victim on the verge of being maimed
or deformed for life.11 Even though pregnancy resulting from such
unlawful conduct should not be considered GBI, it should still be a factor
in determining the reprehensibility of the offense. As such, sexual assault
statutes should list pregnancy as a separate element of the offense which
could be satisfied to maintain the charge.
Part I of this Comment will examine the different definitions of GBI,
how California has defined pregnancy under this definition, and the
alternatives to listing pregnancy as a form of GBI. Part II of this Comment
will outline the Cross holding. Part III of this Comment will be broken into
three parts. Part III.A will demonstrate why Cross should have been
distinguished from both People v. Escobar and People v. Sargent.12 Part
III.B will analyze the disconnect between pregnancy in the criminal context
where it can constitute a form of GBI and pregnancy in the civil context
where liability for an unwanted child generally does not exist. Part III.C
will examine examples of different statutes that list pregnancy as an
element of the sexual assault statute of which the California Legislature
should use as a model to amend their current statutes.
9. See, e.g., People v. Cross, 190 P.3d 706, 710 (Cal. 2008).
10. See NEB. REV. STAT. 28-318(4); WIS. STAT. ANN. 940.225(1)(a).
11. See generally State v. Canady, 641 N.W.2d 43, 54 (Neb. 2002) (stating that a child
who suffered full thickness burns resulting in skin grafts, mobility problems, and growth
retardation was maimed or deformed for life).
12. Escobar and Sargent both addressed GBI as a result of forcible rape. People v.
Escobar, 837 P.2d 1100, 1106 (Cal. 1992); People v. Sargent, 150 Cal. Rptr. 113, 115 (Cal.
Ct. App. 1978).
13. See, e.g., NEB. REV. STAT. 28-109(20) (2008); WIS. STAT. ANN. 939.22(14)
(West 2005); People v. Escobar, 837 P.2d at 1103.
14. Compare CAL. PENAL CODE 12022.7, 12022.8 (West 2009), and NEB. REV. STAT.
28-109(20), and WIS. STAT. ANN. 939.22(14).
15. Compare CAL. PENAL CODE 12022.7, 12022.8, with NEB. REV. STAT. 28-
109(20), and WIS. STAT. ANN. 939.22(14).
BONANNO
California has defined pregnancy under the statute, and the alternative
statutes that list pregnancy as an element of a sexual assault offense.
1. Wisconsin
The Wisconsin statute lists pregnancy as a possible element of a
sexual assault that could be established in order to find a defendant guilty
of that particular offense.44 In Wisconsin, first degree sexual assault occurs
when a defendant [h]as sexual contact or sexual intercourse with another
person without consent of that person and causes pregnancy or great bodily
harm.45 Under the statute, a person found guilty of first degree sexual
assault either has to impregnate the victim or cause the victim to suffer
GBI.46 Thus, first degree sexual assault can occur on the basis of
pregnancy as an alternative element to great bodily harm.47
2. Nebraska
According to the Nebraska statute, [s]erious personal injury means
great bodily injury or disfigurement, extreme mental anguish or mental
trauma, pregnancy, disease, or loss or impairment of a sexual or
reproductive organ.48 The construction of this statute shows that the
Nebraska Legislature intended for pregnancy and GBI to be considered
separate offenses.49 While both appear under the heading of serious
personal injury, they are listed separately.50
46. Id.
47. Hagenkord v. State, 302 N.W.2d 421, 437 n.8 (Wis. 1981).
48. NEB. REV. STAT. 28-318(4) (emphasis added).
49. Id.
50. Id.
51. People v. Cross, 190 P.3d 706, 708 (Cal. 2008). The abbreviation K. was used for
the name of the victim in Cross to protect her identity. For the purposes of this Comment,
the fictitious name Kate will be substituted for the initial K.
52. Id.
53. Id. at 708-09.
54. Id. at 709.
55. Id.
56. Id.
57. Cross, 190 P.3d at 709.
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on September 25, 2002.58 The defendant brought Kate back to the same
clinic during December 2002 for an abortion when she was five and a half
months pregnant.59 Kate was referred to San Francisco General Hospital,
without her mothers knowledge, for the two day abortion procedure since
her pregnancy was too far along for an abortion at the clinic.60 When Kate
filled out the medical forms, she listed the defendant as her father.61 After
the abortion, the defendant continued to have sexual intercourse with Kate
until July 2003 when her mother found the abortion records and Kate
finally informed her mother that the defendant had been engaging in sexual
intercourse with her.62
DNA evidence used from the fetus eventually confirmed to a 99.99%
probability that the defendant was the father.63 The defendant was arrested
and charged with several offenses including committing a lewd and
lascivious act on a child under the age of [fourteen] by force, violence,
duress, menace, or fear, with an allegation that he inflicted great bodily
injury on the victim.64 The prosecutor told the jury that either the
pregnancy or the abortion could meet the requirement of GBI.65 The
defendant was found guilty of a lesser crime that included committing a
lewd act on a child under the age of [fourteen], and the defendant was
found guilty of personally inflicting GBI on Kate.66 Such a finding along
with a specific type of sexual offense results in an automatic prison
sentence of fifteen years to life under the One Strike Law.67 The
California Court of Appeals affirmed the guilty verdicts, and the Supreme
Court of California granted the defendants petition for review.68
The Supreme Court of California looked to the statutory definition of
GBI and examined previous cases that applied it to offenses involving
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Cross, 190 P.3d at 709.
64. Id. (citation omitted). The other charges are not being mentioned since the GBI
sentencing enhancement does not apply to them.
65. Id. at 709-10.
66. Id. at 710.
67. Id. at 708. This sentence was to be served consecutively with a six-year sentence
given to the defendant as a result of being found guilty of non-forcible oral copulation. Id. at
710. Under the One Strike Law, if a defendant is convicted of a specific type of sexual
offense, as in this case, the trial court must sentence the defendant to anywhere from fifteen
years to life in prison. Id. at 708.
68. Id. at 710.
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note that not every case where non-forcible sexual conduct results in
pregnancy will constitute GBI.78 However, the Supreme Court of California
held that unlawful but non-forcible sexual conduct resulting in pregnancy
could amount to GBI.79
1. People v. Escobar
Escobar should have been distinguished from Cross because the
injuries the victim sustained in Escobar were physically severe.84 The facts
in Escobar are distinguishable from Cross on two grounds: (1) Escobar
involved forcible rape, and (2) Escobar involved significant and substantial
physical injuries where no pregnancy resulted.85 In Escobar, the victim was
taken at gunpoint by the defendant.86 She was repeatedly dragged by her
hair, thrown to the ground, and slapped.87 The victim suffered injuries to
her neck.88 She also suffered from bruises, scrapes, and abrasions.89 The
of GBI on the abortion instead of the pregnancy, reversible error would have existed. See id.
at 713.
78. Id. (holding that a jury could reasonably believe a thirteen-year-old girl who was
twenty-two weeks pregnant at the time she had an abortion suffered GBI).
79. Id. at 708.
80. 837 P.2d 1100 (Cal. 1992).
81. 150 Cal. Rptr. 113 (Cal. Ct. App. 1978).
82. Escobar, 837 P.2d at 1109 (citations omitted); Sargent, 150 Cal. Rptr. at 115.
83. See Escobar, 837 P.2d at 1101-02; Sargent, 150 Cal. Rptr. at 115.
84. See Escobar, 837 P.2d at 1101-02.
85. Compare id. at 1106, with People v. Cross, 190 P.3d 706, 709 (Cal. 2008).
86. Escobar, 837 P.2d at 1101.
87. Id.
88. Id. at 1102.
89. Id.
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victim screamed and struggled with the defendant the entire time.90 She
was unable to walk without assistance for days after the attack.91 The
defendant was found to have inflicted GBI on the victim as a result of the
physical attack.92
The degree of brutality and violence in Escobar went beyond the
types of injuries routinely associated with rape.93 Escobars finding of
GBI focused on the brutal physical attack of the victim.94 By contrast, in
Cross, there was no physical force used.95 The victim in Cross consented to
the sexual intercourse because she was afraid she would not be allowed to
go out with her friends, not because of physical force.96 No pregnancy
resulted from the forcible rape in Escobar,97 making the comparison
between a finding of GBI as a result of physical force and as a result of
pregnancy distinguishable.
2. People v. Sargent
Sargent should have been distinguished from Cross because the
injuries the victim sustained in Sargent were also physically severe and
more traumatic.98 While this case is similar to Cross in that the victim
became pregnant, there are still two major distinctions: (1) the victim in
Sargent was forcibly raped at knifepoint, and (2) there were physical
injuries beyond the pregnancy that could have constituted GBI.99 In
Sargent, the defendant broke into the victims home.100 She was only
seventeen years old.101 She was forcibly raped at knifepoint.102 She had
scratch marks on her neck.103 There was also major excoriation104 and
inflammation of the vaginal area.105 The victim became pregnant as a result
106. Id.
107. Id.
108. Id. at 116.
109. People v. Cross, 190 P.3d 706, 708 (Cal. 2008).
110. See id. at 709.
111. Id. at 708.
112. See, e.g., Stephen K. v. Roni L., 164 Cal. Rptr. 618, 619 (Cal. Ct. App. 1980);
Andrews v. Keltz, 838 N.Y.S.2d 363, 368 (N.Y. 2007).
113. Keltz, 838 N.Y.S.2d at 368 (noting that a medical malpractice suit cannot be
maintained when the birth of an unwanted but otherwise healthy child results from
negligence in performing a vasectomy).
114. People v. Cathey, 681 N.W.2d 661, 668 (Mich. Ct. App. 2004) (Murphy, J.,
dissenting); see Keltz, 838 N.Y.S.2d at 368.
115. Roni L., 164 Cal. Rptr. at 619 (holding that a man had no cause of action against his
girlfriend even though she misrepresented her inability to conceive a child).
116. Cathey, 681 N.W.2d at 669 (Murphy, J., dissenting).
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ordinary meaning of the term bodily injury.117 When the term is not
appropriately defined by the legislature, a dictionary can be consulted.118
Bodily injury means physical damage to a persons body.119 Pregnancy
cannot be considered harmful or damaging to the body since it is one of
lifes greatest gifts.120 Only the legislature should decide if pregnancy
resulting from unlawful sexual conduct is GBI.121 Thus, the legislature
should list pregnancy as an element of the offense or write into the statute
that pregnancy is GBI.122
117. See id. Although Cathey is a Michigan case, the Michigan Court of Appeals
followed the Supreme Court of Californias definition that pregnancy resulting from
unlawful but non-forcible sexual conduct can constitute GBI. Id. at 664 (majority opinion)
(citing People v. Sargent, 150 Cal. Rptr. 113, 115 (Cal. Ct. App. 1978)).
118. Id. at 668 (Murphy, J., dissenting).
119. Id.
120. Id. [T]he creation of a new life, innocent of any wrongdoing, cannot . . . be
relegated to the designation of damage unless the Legislature has clearly expressed such
an intent. Id.
121. Id.
122. See Cathey, 681 N.W.2d at 669 (Murphy, J., dissenting).
123. WIS. STAT. ANN. 940.225(1)(a) (West 2005).
124. Id. (emphasis added).
125. Id.
126. Id.
127. See id.
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CONCLUSION
Pregnancy resulting from unlawful but non-forcible sexual conduct
should not be considered GBI. The term should be reserved for the most
severe physical injuries that are on the verge of being permanent or that
result in a deformity.133 A disconnect in the law exists when an unwanted
pregnancy due to unlawful but non-forcible sexual conduct may result in a
prison sentence of fifteen years to life while there is no civil liability for an
unwanted pregnancy due to medical malpractice or misrepresentations
made by an individual. Pregnancy cannot be one of lifes greatest gifts in
the civil context, but then found to be GBI in the criminal context. Even
though the pregnancy itself should not be considered GBI, the pregnancy
should still be considered an element of the sexual assault statute. Instead
of defining GBI to include pregnancy, California should change its sexual
assault statutes to list pregnancy as a separate element of the offense. As
such, the disconnect between the definition of GBI when compared with
societal views of pregnancy will be eliminated.
128. Hagenkord v. State, 302 N.W.2d 421, 437 n.8 (Wis. 1981).
129. See id.
130. NEB. REV. STAT. 28-318(4) (2008) (emphasis added).
131. See id.
132. See State v. Freeman, 677 N.W.2d 164, 176 (Neb. 2004).
133. See generally State v. Canady, 641 N.W.2d 43, 54 (Neb. 2002).