Governor Signs Fetal Homicide Law as Families Look On

Sarah and Griffin’s Law has been signed. I was determined to see this happen, in person. I wouldn’t believe it otherwise.

Gov. Chris Sununu signed “Sarah and Griffin’s Law” (SB 66, fetal homicide) with the childrens’ families looking on. Ellen Kolb photo.

New Hampshire Governor Chris Sununu signed SB 66 on June 30, and now the fetal homicide measure will be known as Sarah and Griffin’s Law. It will go into effect January 1, 2018.

At that time, prosecutors will have the option of bringing a homicide charge against a person whose violent actions cause the death of a preborn child at or after 20 weeks’ gestation, against the will of the mother.

Fetal homicide was one of the first topics I tackled on this blog. I haven’t shut up about it, actually. The state Supreme Court’s 2009 plea in the Lamy case has never been far from my mind. Overturning a drunk driver’s homicide conviction for killing a child who died from injuries sustained in utero by the drunk driver’s actions, the Court told the legislature it would have to update state law in order for such a charge to stick.

Finally, the legislature and a governor have answered the Supreme Court with something other than “meh.”

Moms Deana Crucitti & Ashlyn Rideout (front); dads Nathan Crucitti & Daniel Kenison (rear middle & right) after SB 66 was signed into law. Ellen Kolb photo.

The families of Griffin Kenison and Sarah Crucitti were at the Governor’s side as he signed the law. Their extended families, children included, filled the Executive Council chamber. Some held photos of Griffin and Sarah.

Sarah’s mother Deana Crucitti and Griffin’s mother Ashlyn Rideout embraced before the ceremony. I started to take a photo of them and then backed off.  In the middle of that crowded room, it was an unmistakably private moment.

Three generations of Griffin’s family were there, including “Grammy Shirley,” who told me with deep emotion three years ago “we’re on a crusade.”

It was a year ago yesterday that then-Executive Councilor Sununu switched his vote and voted “Yea” on a state contract with abortion providers – a contract that the Council had rejected with his help a few months earlier.

It’s been seven months since a concerned pro-life Republican challenged the self-identified “pro-choice” gubernatorial candidate Sununu, asking him what pro-life initiatives he could support. The candidate responded by writing that he could support five in particular. (Text of the letter is at the bottom of this link.)

Fetal homicide was #1 on the list.

I give him credit for keeping his word.

I give credit to Leon Rideout, Sen. Regina Birdsell, Rep. Kathy Souza (who has worked for a fetal homicide bill for more than 20 years), and all the legislators who co-sponsored fetal homicide bills over the years.

I give credit to Ovide Lamontagne, who last year elicited Chris Sununu’s written support for fetal homicide legislation.

I give credit to retired Supreme Court Justice James Duggan, author of the Lamy decision, who placed the ball squarely in the legislature’s court eight years ago.

I give most of the credit to the families who lost their children and who came to Concord again and again to tell their stories.

When former Rep. Leon Rideout, Griffin’s grandfather, introduced a fetal homicide bill in 2014, I covered the hearings. There I met family members including Griffin’s aunt Robin. We spoke today after the signing.

“I didn’t think I’d live to see this day,” I told her. I wasn’t kidding.

She gave me a no-nonsense look. “Shame on you.” She wasn’t kidding, either.

Lesson learned: never give up.

Why not consult the Court over fetal homicide language?

Rep. Leon Rideout (

State representative Leon Rideout (R-Lancaster) posted a Facebook update today during the New Hampshire House session:

H[ouse]B[ill]560 ‪#‎FetalHomicide‬ Bill was amended to the language of last years SB40. The ‪#‎NHHouse‬ just voted to not concur with that language. We will go back to work on making ‪#‎NH‬ the 38Th state with a fetal homicide law from the Senate next year ‪#‎Griffinslaw‬

This is a sadly familiar situation. In New Hampshire, a person whose action performed without a pregnant woman’s permission causes the death of the pregnant woman’s preborn child, is not open to a homicide charge in the child’s death. This puts New Hampshire law at variance with the laws of more than three dozen other states that make “fetal homicide” part of the criminal code. Even the federal government has the Unborn Victims of Violence Act, also known as Laci and Conner’s Law, to apply to fetal homicide in certain jurisdictions.

Those laws presume that a woman’s choice to carry a pregnancy to term should get at least as much respect as a woman’s choice to terminate a pregnancy.

The bill number is confusing: the bill voted on today was HB 560. It’s Rep. Rideout’s bill. There was a Senate version last year, SB 40, with a provision making fetal homicide a chargeable crime not until much later in pregnancy. That bill did not pass, but the language was resurrected by the Senate this year and added to HB 560.

The problem with the Senate version, which is where HB 560 is today, is that the law would not apply until the fetus is “viable,” which is defined in the Senate language as “capable of sustained extrauterine survival.”

Who’s to determine whether a preborn child who dies from trauma inflicted by a drunk driver is viable? And what is “sustained” extrauterine survival?

The acid test of any legislative language is the 2009 Lamy decision by the New Hampshire Supreme Court. Lamy overturned the conviction of a drunk driver for causing the death of a preborn child delivered with injuries two months early. The reason: New Hampshire has no fetal homicide law. The child’s mother was seriously injured as well, and the harm caused to her gave rise to a separate criminal conviction against the impaired driver. That conviction was sustained.

So look at little Dominick Emmons, the child whose death was at issue in the Lamy case. Was he “viable” when he was delivered? He had to go straight into neonatal intensive care due not only to his prematurity but also to the injuries he sustained in utero due to the impact of the vehicle collision. He died two weeks after he was delivered. Is that “sustained” survival? Did the injuries render him not “viable”?

Would the current Senate language, with which the House just refused to concur, have allowed the conviction against Joshua Lamy for the death of Dominick Emmons to stand? Not as long as a defense attorney could create reasonable doubt over “viability,” it seems to me, although I hasten to add that I am not an attorney. I say this knowing that some of the Senators favoring the viability language believe sincerely that it would be adequate. Condemning those Senators would be a mistake.

Save the criticism for the Senators who voted against “viability” both last year and this year while failing to propose or accept any other fetal homicide language: all the Democrats plus Republican Nancy Stiles. (See Senate roll call #31 from 2015 and Senate roll call #3 from 2016.)

In view of the importance of having an effective fetal homicide law in place, I fail to understand why neither the House nor the Senate has called upon the New Hampshire Supreme Court for an advisory opinion. “Would the amended language of HB 560 [i.e. the Senate language] have permitted the Court to uphold the conviction of Joshua Lamy for causing the death of Dominick Emmons?”

If the answer is no, that will give the senators something to chew on. Most have expressed great sympathy for the families who have lost children and who are seeking fetal homicide legislation. In view of that sympathy, I expect senators should be eager to find out if their language would actually get the job done.

As I said, I’m not an attorney – but surely there are enough lawyers in the legislature to craft an appropriate inquiry, or else explain why such an inquiry can’t be made.

New Hampshire Constitution, Article 74: “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.”

That looks to my non-attorney eyes as though a simple majority of the House OR of the Senate could request an opinion. How about it, all you Honorables?