Churchill: When a murder isn’t punished like one

By Chris Churchill

Gabriel Vega killed two, but was punished for one.

Vanessa Milligan was a victim. The other was Alina Milligan, who hadn’t yet been born.

At the time, prosecutors of the 2014 killings in Troy expressed frustration that, under New York law, they couldn’t charge Vega for two killings. The only available charge for Alina’s death was first-degree abortion, the crime for the intentional miscarriage of a fetus more than 24 weeks old that doesn’t involve saving the mother’s life.

That charge could soon disappear.

Gov. Andrew Cuomo, as part of his budget, has proposed removing abortion from the penal code, a change that some activists have long wanted. But opponents note that the change would allow the killing of viable fetuses, wanted by their mothers, to essentially go unpunished.

For example, if an abusive husband punched his pregnant spouse in the belly, killing the child, prosecutors could charge the man only with the assault on his wife. There would be no available charge for the death of the fetus.

“It’s grotesque,” said Shane Hug, a former Rensselaer County assistant district attorney who helped prosecute Vega. “Can you think of a worse act of domestic violence?”

I can’t, and given that pregnant women face an increased risk of domestic violence, it is ironic that Cuomo proposed the changes as part of a supposed Women’s Agenda.

The governor’s proposed budget includes several other abortion-related proposals that are hotly controversial in the usual ways of the debate over reproductive rights. But I’m going to concentrate here on issues involving viable fetuses wanted by their mothers — cases like the killing of Vanessa and Alina Milligan, who died six days before her due date.

In part, that’s because I think the argument is distinct from the abortion debate. In other words, you can be decidedly pro-choice and still be troubled that a healthy baby — that’s the word, not fetus, that every pregnant mom uses — killed weeks or days ahead of his or her expected birth isn’t considered worthy of special punishment.

Roe v. Wade was presumably about a woman’s right to choose,” said Kathleen Gallagher, director of pro-life activities for the New York State Catholic Conference. “It certainly does not protect the rights of a third party to destroy that child against her will.”

In 38 states, including California, prosecutors can pursue a separate manslaughter charge when an unborn child is killed without a mother’s consent. No such law exists in New York.

There have been efforts to change that.

The Unborn Victims of Violence Act, originally proposed by former Assemblyman Michael Benjamin, a pro-choice Democrat from the Bronx who noted that crimes involving pregnant women are more common than many believe, would allow the involuntary, violent termination of a pregnancy to be treated as a felony. The bill has languished for years.

In part, that’s because some pro-choice voices fiercely resist giving unborn children any legal protection whatsoever, even when they pass the age of viability. Advocates also want abortion removed from the penal code, as Cuomo proposed in a budget that was still being negotiated on Wednesday.

(Separate legislation passed by the Democrat-controlled Assembly would do the same.)

“Abortion is not a crime, nor is it the result of a violent attack — it is a health-care procedure,” Robin Chappelle Golston, president of Planned Parenthood Empire State Acts, said in a written statement.

“In the horrible circumstance where a third party attacks a woman and she loses a pregnancy, there are appropriate criminal charges,” Golston added. “Courts in New York have found that an attack on a pregnant woman that results in fetal loss constitutes first-degree assault — which holds a harsher penalty than does a charge of abortion.”

Just to be clear, that’s assault on the mother, not the child. The charge would, of course, bring less of a punishment than murder or manslaughter.

Those more significant charges are what Vanessa’s father, Nate Milligan, wanted for the killings of both his daughter, who was 19, and his unborn granddaughter. The family, he said, mourned the two losses after Vega killed them and set their apartment on fire to hide his crime.

“It was on the same level as killing my daughter,” Milligan said of Alina’s death. “We felt like it should have been double for everything.”

Ultimately, Vega was given 25 years for manslaughter and 25 years for arson. The 2 ⅓- to 7-year sentence for his first-degree abortion conviction is running concurrently, meaning it was largely symbolic.

Still, it was something. It acknowledged that Alina’s life had value.

The Milligan killings and the limitations faced by prosecutors still haunt Hug, the former assistant district attorney. Vanessa was burned beyond recognition, he said, but an autopsy revealed Alina’s small body, just days away from a scheduled C-section, to be unharmed by the fire and fully formed.

“I saw it,” Hug said. “It was a baby.”

Source: Churchill: When a murder isn’t punished like one, TimesUnion.com