H-4341              _______________________________________________

                                                   HOUSE BILL NO. 1980

                        _______________________________________________

State of Washington                              50th Legislature                              1988 Regular Session

By Representative Patrick

Read first time 2/3/88 and referred to Committee on Judiciary.

AN ACT Relating to the protection of unborn children; amending RCW 9A.04.110, 9A.04.110, 9A.16.050, 9A.32.010, 9A.32.030, 9A.32.050, 9A.32.060, 9A.32.070, 9A.36.011, 9A.36.021, 9A.36.031, 9A.36.041, and 9A.36.050; adding a new section to chapter 9A.32 RCW; repealing section 12, chapter 257, Laws of 1986, section 3, chapter 324, Laws of 1987 (uncodified); prescribing penalties; providing effective dates; providing an expiration date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1.     This act is necessary for the immediate preservation of the public peace, health, morals, and safety, the support of the state government and its existing institutions.  Section 4 of this act shall take effect July 1, 1988.  The remainder of this act shall take effect immediately.

        Sec. 2.  Section 9A.04.110, chapter 260, Laws of 1975 1st ex. sess. as amended by section 3, chapter 257, Laws of 1986 and RCW 9A.04.110 are each amended to read as follows:

          In this title unless a different meaning plainly is required:

          (1) "Acted" includes, where relevant, omitted to act;

          (2) "Actor" includes, where relevant, a person failing to act;

          (3) "Benefit" is any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary;

          (4) (a) "Bodily injury," "physical injury," or "bodily harm" means physical pain or injury, illness, or an impairment of physical condition;

          (b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part;

          (c) "Great bodily harm" means bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ;

          (5) "Building", in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;

          (6) "Deadly weapon" means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm;

          (7) "Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging;

          (8) "Government" includes any branch, subdivision, or agency of the government of this state and any county, city, district, or other local governmental unit;

          (9) "Governmental function" includes any activity which a public servant is legally authorized or permitted to undertake on behalf of a government;

          (10) "Indicted" and "indictment" include "informed against" and "information", and "informed against" and "information" include "indicted" and "indictment";

          (11) "Judge" includes every judicial officer authorized alone or with others, to hold or preside over a court;

          (12) "Malice" and "maliciously" shall import an evil intent, wish, or design to vex, annoy, or injure another person.  Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty;

          (13) "Officer" and "public officer" means a person holding office under a city, county, or state government, or the federal government who performs a public function and in so doing is vested with the exercise of some sovereign power of government, and includes all assistants, deputies, clerks, and employees of any public officer and all persons lawfully exercising or assuming to exercise any of the powers or functions of a public officer;

          (14) "Omission" means a failure to act;

          (15) "Peace officer" means a duly appointed city, county, or state law enforcement officer;

          (16) "Pecuniary benefit" means any gain or advantage in the form of money, property, commercial interest, or anything else the primary significance of which is economic gain;

          (17) "Person", "he", and "actor" include any natural person, including an unborn quick child and, where relevant, a corporation, joint stock association, or an unincorporated association;

          (18) "Place of work" includes but is not limited to all the lands and other real property of a farm or ranch in the case of an actor who owns, operates, or is employed to work on such a farm or ranch;

          (19) "Prison" means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest, including but not limited to any state correctional institution or any county or city jail;

          (20) "Prisoner" includes any person held in custody under process of law, or under lawful arrest;

          (21) "Property" means anything of value, whether tangible or intangible, real or personal;

          (22) "Public servant" means any person other than a witness who presently occupies the position of or has been elected, appointed, or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror, and any person participating as an advisor, consultant, or otherwise in performing a governmental function;

          (23) "Signature" includes any memorandum, mark, or sign made with intent to authenticate any instrument or writing, or the subscription of any person thereto;

          (24) "Statute" means the Constitution or an act of the legislature or initiative or referendum of this state;

          (25) "Threat" means to communicate, directly or indirectly the intent:

          (a) To cause bodily injury in the future to the person threatened or to any other person; or

          (b) To cause physical damage to the property of a person other than the actor; or

          (c) To subject the person threatened or any other person to physical confinement or restraint; or

          (d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or

          (e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

          (f) To reveal any information sought to be concealed by the person threatened; or

          (g) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

          (h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or

          (i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or

          (j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships;

          (26) "Vehicle" means a "motor vehicle" as defined in the vehicle and traffic laws, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail;

          (27) Words in the present tense shall include the future tense; and in the masculine shall include the feminine and neuter genders; and in the singular shall include the plural; and in the plural shall include the singular.

NEW SECTION. Sec. 3.     Section 2 of this act shall expire on June 30, 1988.

        Sec. 4.  Section 9A.04.110, chapter 260, Laws of 1975 1st ex. sess. as last amended by section 1, chapter 324, Laws of 1987 and RCW 9A.04.110 are each amended to read as follows:

          In this title unless a different meaning plainly is required:

          (1) "Acted" includes, where relevant, omitted to act;

          (2) "Actor" includes, where relevant, a person failing to act;

          (3) "Benefit" is any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary;

          (4) (a) "Bodily injury," "physical injury," or "bodily harm" means physical pain or injury, illness, or an impairment of physical condition;

          (b) "Substantial bodily harm" means bodily injury which involves a substantial disfigurement, loss or impairment of the function of any bodily part or organ, a fracture of any bodily part, or substantial pain, whether such substantial bodily harm is temporary or permanent;

          (c) "Great bodily harm" means bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ;

          (5) "Building", in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;

          (6) "Deadly weapon" means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm;

          (7) "Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging;

          (8) "Government" includes any branch, subdivision, or agency of the government of this state and any county, city, district, or other local governmental unit;

          (9) "Governmental function" includes any activity which a public servant is legally authorized or permitted to undertake on behalf of a government;

          (10) "Indicted" and "indictment" include "informed against" and "information", and "informed against" and "information" include "indicted" and "indictment";

          (11) "Judge" includes every judicial officer authorized alone or with others, to hold or preside over a court;

          (12) "Malice" and "maliciously" shall import an evil intent, wish, or design to vex, annoy, or injure another person.  Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty;

          (13) "Officer" and "public officer" means a person holding office under a city, county, or state government, or the federal government who performs a public function and in so doing is vested with the exercise of some sovereign power of government, and includes all assistants, deputies, clerks, and employees of any public officer and all persons lawfully exercising or assuming to exercise any of the powers or functions of a public officer;

          (14) "Omission" means a failure to act;

          (15) "Peace officer" means a duly appointed city, county, or state law enforcement officer;

          (16) "Pecuniary benefit" means any gain or advantage in the form of money, property, commercial interest, or anything else the primary significance of which is economic gain;

          (17) "Person", "he", and "actor" include any natural person, including an unborn quick child and, where relevant, a corporation, joint stock association, or an unincorporated association;

          (18) "Place of work" includes but is not limited to all the lands and other real property of a farm or ranch in the case of an actor who owns, operates, or is employed to work on such a farm or ranch;

          (19) "Prison" means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest, including but not limited to any state correctional institution or any county or city jail;

          (20) "Prisoner" includes any person held in custody under process of law, or under lawful arrest;

          (21) "Property" means anything of value, whether tangible or intangible, real or personal;

          (22) "Public servant" means any person other than a witness who presently occupies the position of or has been elected, appointed, or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror, and any person participating as an advisor, consultant, or otherwise in performing a governmental function;

          (23) "Signature" includes any memorandum, mark, or sign made with intent to authenticate any instrument or writing, or the subscription of any person thereto;

          (24) "Statute" means the Constitution or an act of the legislature or initiative or referendum of this state;

          (25) "Substantial pain" means serious physical pain extending for a period of time long enough to cause considerable suffering.  The pain shall be the result of an actual injury capable of causing serious physical pain;

          (26) "Threat" means to communicate, directly or indirectly the intent:

          (a) To cause bodily injury in the future to the person threatened or to any other person; or

          (b) To cause physical damage to the property of a person other than the actor; or

          (c) To subject the person threatened or any other person to physical confinement or restraint; or

          (d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or

          (e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

          (f) To reveal any information sought to be concealed by the person threatened; or

          (g) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

          (h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or

          (i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or

          (j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships;

          (27) "Vehicle" means a "motor vehicle" as defined in the vehicle and traffic laws, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail;

          (28) Words in the present tense shall include the future tense; and in the masculine shall include the feminine and neuter genders; and in the singular shall include the plural; and in the plural shall include the singular.

        Sec. 5.  Section 9A.16.050, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.16.050 are each amended to read as follows:

          Homicide is also justifiable when committed either:

          (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, including an unborn quick child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

          (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

        Sec. 6.  Section 9A.32.010, chapter 260, Laws of 1975 1st ex. sess. as last amended by section 2, chapter 187, Laws of 1987 and RCW 9A.32.010 are each amended to read as follows:

          Homicide is the killing of a human being by the act, procurement or omission of another human being, death occurring within three years and a day, and is either (1) murder, (2) homicide by abuse, (3) manslaughter, (4) excusable homicide, or (5) justifiable homicide.

        Sec. 7.  Section 9A.32.030, chapter 260, Laws of 1975 1st ex. sess. as amended by section 3, chapter 38, Laws of 1975-'76 2nd ex. sess. and RCW 9A.32.030 are each amended to read as follows:

          (1) A person is guilty of murder in the first degree when:

          (a) With a premeditated intent to cause the death of another person, including an unborn quick child, he or she causes the death of such person or of a third person; or

          (b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, including an unborn quick child, and thereby causes the death of a person; or

          (c) He or she commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person, including an unborn quick child, other than one of the participants; except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

          (i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

          (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

          (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

          (iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

          (2) Murder in the first degree is a class A felony.

        Sec. 8.  Section 9A.32.050, chapter 260, Laws of 1975 1st ex. sess. as amended by section 4, chapter 38, Laws of 1975-'76 2nd ex. sess. and RCW 9A.32.050 are each amended to read as follows:

          (1) A person is guilty of murder in the second degree when:

          (a) With intent to cause the death of another person, including an unborn quick child, but without premeditation, he or she causes the death of such person or of a third person; or

          (b) He or she commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person, including an unborn quick child, other than one of the participants; except that in any prosecution under this subdivision (1)(b) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

          (i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

          (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

          (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

          (iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

          (2) Murder in the second degree is a class A felony.

        Sec. 9.  Section 9A.32.060, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.32.060 are each amended to read as follows:

          (1) A person is guilty of manslaughter in the first degree when((:

          (a))) he or she recklessly causes the death of another person((; or

          (b) He intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child)), including an unborn quick child by inflicting any injury upon the child or upon the mother of such child.

          (2) Manslaughter in the first degree is a class B felony.

        Sec. 10.  Section 9A.32.070, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.32.070 are each amended to read as follows:

          (1) A person is guilty of manslaughter in the second degree when, with criminal negligence, he or she causes the death of another person, including an unborn quick child by inflicting any injury upon the child or upon the mother of such child.

          (2) Manslaughter in the second degree is a class C felony.

NEW SECTION. Sec. 11.  A new section is added to chapter 9A.32 RCW to read as follows:

          The provisions of this chapter shall not apply to the killing of an unborn child where the killing of the child was the result of a legal abortion procedure legally applied or administered with the prior informed consent of the mother of the child.

        Sec. 12.  Section 4, chapter 257, Laws of 1986 and RCW 9A.36.011 are each amended to read as follows:

          (1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:

          (a) Assaults another person, including an unborn quick child, with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or

          (b) Administers to or causes to be taken by another person, including an unborn quick child, poison or any other destructive or noxious substance; or

          (c) Assaults another person, including an unborn quick child, and inflicts great bodily harm on such person or on a third person, or inflicts great bodily harm upon an unborn quick child by inflicting any injury upon the mother of such child.

          (2) Assault in the first degree is a class A felony.

        Sec. 13.  Section 5, chapter 257, Laws of 1986 as amended by section 2, chapter 324, Laws of 1987 and RCW 9A.36.021 are each amended to read as follows:

          (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

          (a) Intentionally assaults another person, including an unborn quick child, and thereby inflicts substantial bodily harm((; or

          (b) Intentionally and unlawfully causes)) on such person or on a third person, or inflicts substantial bodily harm ((to)) upon an unborn quick child by ((intentionally and unlawfully)) inflicting any injury upon the mother of such child; or

          (((c))) (b) Assaults another person, including an unborn quick child, with a deadly weapon; or

          (((d))) (c) With intent to inflict bodily harm, administers to or causes to be taken by another person, including an unborn quick child, poison or any other destructive or noxious substance; or

          (((e))) (d) With intent to commit a felony, assaults another person, including an unborn quick child.

          (2) Assault in the second degree is a class B felony.

        Sec. 14.  Section 6, chapter 257, Laws of 1986 and RCW 9A.36.031 are each amended to read as follows:

          (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:

          (a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person, assaults another person; or

          (b) Assaults a person employed as a transit operator or driver by a public or private transit company while that person is operating or is in control of a vehicle owned or operated by the transit company; or

          (c) With criminal negligence, causes bodily harm to another person, including an unborn quick child, or causes bodily harm to an unborn quick child by inflicting any injury upon the mother of such child, by means of a weapon or other instrument or thing likely to produce bodily harm; or

          (d) Assaults a fire fighter or other employee of a fire department or fire protection district who was performing his or her official duties at the time of the assault.

          (2) Assault in the third degree is a class C felony.

        Sec. 15.  Section 7, chapter 257, Laws of 1986 as amended by section 2, chapter 188, Laws of 1987 and RCW 9A.36.041 are each amended to read as follows:

          (1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another person, including an unborn quick child.

          (2) Assault in the fourth degree is a gross misdemeanor.

        Sec. 16.  Section 9A.36.050, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.36.050 are each amended to read as follows:

          (1) A person is guilty of reckless endangerment when he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person, including an unborn quick child.

          (2) Reckless endangerment is a gross misdemeanor.

NEW SECTION. Sec. 17.  Section 12, chapter 257, Laws of 1986, section 3, chapter 324, Laws of 1987 (uncodified) are each repealed.

          Sections 4 through 10, chapter 257, Laws of 1986, as codified and including amendments by this act, shall take effect immediately.