BONANNO

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.

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194 NEW ENGLAND LAW REVIEW [Vol. 44:193

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.

Thus, pregnancy resulting from unlawful but non-forcible sexual conduct

should not fall under the category of GBI. GBI should be reserved for severe
physical injuries that are prolonged or permanent. As a result, sexual assault
statutes should list pregnancy as a separate element of the offense which
could be satisfied in order to secure a conviction.

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

1. An example of unlawful but non-forcible sexual conduct is when an adult engages in

sexual conduct with a minor but does not use force. See People v. Cross, 190 P.3d 706, 708-
09 (Cal. 2008).
2. Id. at 708, 712 (holding that the jury had enough facts to determine that a pregnancy
resulting from unlawful but non-forcible sexual conduct with the defendant was enough for
a finding of GBI).
3. 190 P.3d 706 (Cal. 2008).
4. Id. at 708-09.
5. Id. at 708. The abortion could not be considered GBI because the defendant did not
perform the abortion. Id. at 713.
6. See, e.g., State v. Grunke, 752 N.W.2d 769, 773 n.7 (Wis. 2008) (First degree
sexual assault. Whoever does any of the following is guilty of a Class B felony: (a) Has
sexual contact or sexual intercourse with another person without consent of that person and
causes pregnancy or great bodily harm to that person.) (emphasis added) (citing WIS. STAT.
ANN. 940.225(1) (West 2005)); NEB. REV. STAT. 28-318(4) (2008).
7. See, e.g., CAL. PENAL CODE 12022.7(f) (West 2009); NEB. REV. STAT. 28-
318(4); WIS. STAT. ANN 939.22(14).
8. CAL. PENAL CODE 12022.7(f).
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2009] PREGNANCY AND GREAT BODILY INJURY 195

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.

I. History of GBI and the Resulting Classification of Pregnancy

The breadth of a GBI statute depends on the jurisdiction.13 California,
Nebraska, and Wisconsin each have a different definition.14 In California,
the statute is much broader than both the Nebraska and Wisconsin
statutes.15 This section will examine the different definitions of GBI, how

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).
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196 NEW ENGLAND LAW REVIEW [Vol. 44:193

California has defined pregnancy under the statute, and the alternative
statutes that list pregnancy as an element of a sexual assault offense.

A. Definitions of GBI in California, Wisconsin, and Nebraska

1. Californias Definition of GBI

In California, GBI is a separate offense that results in a sentencing
enhancement.16 It is defined as a significant or substantial physical
injury.17 However, the courts still have difficulty distinguishing a
significant or substantial bodily injury . . . from [a] trivial or insignificant
injury or [from] moderate harm.18 The broad statutory definition allows
injuries with varying degrees of seriousness to constitute a form of GBI in
California.19 Two cases cited within People v. Cross20 were People v.
Escobar21 and People v. Sargent.22 In Escobar, the common law of
California maintained that in order for GBI to be significant or substantial,
the injury need not be so grave as to cause the victim permanent,
prolonged, or protracted bodily injury.23 In Sargent, GBI existed when a
pregnancy resulted from forcible rape since the pregnancy was not
incidental to forcible rape.24

2. Wisconsins Definition of GBI

In Wisconsin, the definition of GBI is much narrower and is defined
as bodily injury which creates a substantial risk of death, or which causes
serious permanent disfigurement, or which causes a permanent or
protracted loss or impairment of the function of any bodily member or
organ or other serious bodily injury.25 Bodily harm means physical pain

16. People v. Cross, 190 P.3d 706, 708 (Cal. 2008).

17. CAL. PENAL CODE 12022.7.
18. People v. Miller, 558 P.2d 552, 559 (Cal. 1977) (affirming a jury verdict where a
defendant was found guilty when the victim was shot twice in the commission of a robbery).
19. Compare People v. Harvey, 9 Cal. Rptr. 2d 17, 19 (Cal. Ct. App. 1992) (second
degree burns required a month of treatment), and People v. Beltran, 258 Cal. Rptr. 884, 892
(Cal. Ct. App. 1989) (multiple surgeries required), with People v. Jaramillo, 159 Cal. Rptr.
771, 774 (Cal. Ct. App. 1979) (there were bruises and swelling).
20. 190 P.3d 706 (Cal. 2008).
21. 837 P.2d 1100 (Cal. 1992).
22. 150 Cal. Rptr. 113 (Cal. Ct. App. 1978).
23. Escobar, 837 P.2d at 1106. Escobars GBI definition that significant or substantial
injury need not be permanent was applied to a forcible rape case where Escobar inflicted
physical injury through beatings, not as a result of pregnancy. Id. at 1101-02.
24. Sargent, 150 Cal. Rptr. at 116.
25. WIS. STAT. ANN. 939.22(14) (West 2005).
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2009] PREGNANCY AND GREAT BODILY INJURY 197

or injury, illness, or any impairment of physical condition.26 This

definition is more specific than Californias because it limits the types of
bodily harm that can constitute GBI.27 Most instances of GBI in Wisconsin
require hospitalization and immediate medical treatment.28

3. Nebraskas Definition of GBI

Nebraskas definition of GBI mirrors Wisconsins definition.29
Nebraskas statute lists GBI and pregnancy as specific elements within the
statute.30 This shows the intent of the Nebraska Legislature to keep
pregnancy as a distinct separate element.31 [Great] bodily injury shall
mean bodily injury which involves a substantial risk of death, or which
involves substantial risk of serious permanent disfigurement, or protracted
loss or impairment of the function of any part or organ of the body.32
Within the previous definition, bodily injury shall mean physical pain,
illness, or any impairment of physical condition.33 GBI is serious by
nature.34 The previous definition tracks the Wisconsin definition precisely
except that the Wisconsin definition includes or other serious bodily
injury.35 This allows the Wisconsin statute to be viewed more broadly than
the Nebraska statute since the Wisconsin statute allows other serious bodily
injuries to fall within the statutes purview despite the injuries not being
able to fit into the more narrow categories outlined in the statute.36

26. Id. 939.22(4).

27. Compare WIS. STAT. ANN. 939.22(14), with CAL. PENAL CODE 12022.7(f) (West
2009).
28. See, e.g., La Barge v. State, 246 N.W.2d 794, 795 (Wis. 1976) (multiple cuts and
stab wounds requiring sutures and hospitalization); Irby v. State, 182 N.W.2d 251, 254
(Wis. 1971) (victim suffered a chest wound resulting in massive blood loss and
hospitalization).
29. Compare NEB. REV. STAT. 28-109(20) (2008), with WIS. STAT. ANN. 939.22(14).
30. NEB. REV. STAT. 28-318(4).
31. See id.
32. Id. 28-109(20).
33. Id. 28-109(4).
34. See, e.g., State v. Canady, 641 N.W.2d 43, 54 (Neb. 2002) (severe burns); State v.
Oldenburg, 628 N.W.2d 278, 282 (Neb. Ct. App. 2001) (gunshot wound to the left side of a
persons neck left the victim disabled).
35. Compare NEB. REV. STAT. 28-109(20), with WIS. STAT. ANN. 939.22(14) (West
2005).
36. Compare NEB. REV. STAT. 28-109(20), with WIS. STAT. ANN. 939.22(14).
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198 NEW ENGLAND LAW REVIEW [Vol. 44:193

B. Californias Application of GBI to Pregnancy

In California, a charge of GBI can be maintained if a pregnancy
results from unlawful but non-forcible sexual conduct.37 However, the act
itself is not enough to constitute such injury.38 Rape and sodomy alone do
not constitute GBI because neither one is a significant nor substantial
injury.39 According to the Supreme Court of California, GBI may be found
when victims of unlawful sexual conduct experience pain beyond that
routinely associated with the offense.40 As such, pregnancy is considered
to be beyond the ordinary experience for victims of unlawful but non-
forcible sexual conduct since it satisfies the definition of GBI under
California law.41

C. Pregnancy as a Separate Element of the Offense

Wisconsin and Nebraska have codified sexual offense statutes to list
pregnancy as a separate element of the offense that could be satisfied in
order to maintain the sexual assault charge.42 The Wisconsin and Nebraska
statutes are more narrowly tailored since they list pregnancy as a separate
element of the offense rather than encompassing pregnancy within the
definition of GBI.43

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

37. People v. Cross, 190 P.3d 706, 718-19 (Cal. 2008).

38. People v. Caudillo, 580 P.2d 274, 289 (Cal. 1978).
39. Id.
40. People v. Escobar, 837 P.2d 1100, 1106 (Cal. 1992).
41. See, e.g., Cross, 190 P.3d at 712 (noting that the jury was urged to use its common
experiences to decide whether the pregnancy equated to GBI).
42. NEB. REV. STAT. 28-318(4) (2008); WIS. STAT. ANN. 940.225(1)(a) (West 2005).
43. See NEB. REV. STAT. 28-318(4); WIS. STAT. ANN. 940.225(1)(a).
44. WIS. STAT. ANN. 940.225(1)(a).
45. Id. (emphasis added).
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2009] PREGNANCY AND GREAT BODILY INJURY 199

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

II. The Supreme Court of California in People v. Cross

Gary Cross (hereinafter the defendant) became the stepfather of the
victim, Kate, when he married her mother in 1995.51 Kates mother worked
the evening shift while the defendants shift often changed.52 In June 2002,
when Kate was thirteen, and while her mother was at work, the defendant
woke Kate up to bring her into the master bedroom where he engaged in
sexual intercourse with her.53 Kate did not object because she was afraid
the defendant would prevent her from going out with her friends or that he
would take away her cell phone.54 The defendant also prevented Kate from
telling her mother by threatening Kate with the possibility of being
removed from the home.55
Between June 2002 and August 2002, the defendant and Kate
routinely engaged in sexual intercourse.56 Sometime in August 2002, Kate
informed the defendant that there was a possibility she might be pregnant.57
The defendant brought Kate to a clinic where her pregnancy was confirmed

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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200 NEW ENGLAND LAW REVIEW [Vol. 44:193

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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sexual assaults resulting in pregnancy.69 Accordingly, in California, GBI is

defined as a significant or substantial physical injury.70 It can be proved
through evidence showing the seriousness of the physical injury, the pain
resulting from the injury, and any medical care that is required to treat the
injury.71 According to the Supreme Court of California, GBI may be found
when victims of unlawful sexual conduct experience pain beyond that
routinely associated with the offense.72
In reviewing the jurys determination that enough facts supported
such a finding, the court applied the standard from People v. Escobar
where to be significant or substantial the injury need not be so grave as to
cause the victim permanent, prolonged, or protracted bodily damage.73
The court also cited People v. Sargent to support the jurys factual
determination that Kates pregnancy was a form of GBI.74 The court further
noted that GBI resulting from physical harm was a factual determination to
be made by the jury and was not a question of law.75 A jury determines
where the fine line can divide an injury from being significant or
substantial from an injury that does not quite meet the description.76
The court concluded that there were enough facts in the record to
affirm the jurys verdict that the unlawful but non-forcible sexual conduct
resulting in Kates pregnancy constituted GBI.77 The court was careful to

69. Cross, 190 P.3d at 710.

70. Id. (citation omitted).
71. Id. at 712.
72. People v. Escobar, 837 P.2d 1100, 1106 (Cal. 1992); see Cross, 190 P.3d at 712
(stating that the jury was urged to use its common experiences to decide whether the
pregnancy was beyond what is routinely associated with unlawful sexual conduct).
73. Cross, 190 P.3d at 711 (citing Escobar, 837 P.2d at 1106). Escobars definition that
significant or substantial injury need not be permanent was applied to a forcible rape case
where the defendant inflicted physical injury through beatings, not as a result of pregnancy.
Escobar, 837 P.2d at 1101-02. The victim made repeated attempts to escape and was
dragged by her hair and physically restrained, sustaining extensive bruises and abrasions. Id.
74. Cross, 190 P.3d at 711 (citing People v. Sargent, 150 Cal. Rptr. 113 (Cal. Ct. App.
1978)). Sargent involved a victim that was forcibly raped at knifepoint. Sargent, 150 Cal.
Rptr. at 115. As a result, the victim became pregnant; she also sustained scratch marks and
vaginal excoriation. Id.
75. Cross, 190 P.3d at 710.
76. Id. (internal citation omitted) (internal quotations omitted).
77. Id. at 712. The defendant argued that reversible error existed if he was found guilty
of committing GBI based on procuring the abortion for Kate. Id. The trial judge instructed
the jury that an abortion can constitute GBI. Id. However, the court held that an abortion
cannot constitute GBI when someone other than the defendant performs the abortion. Id.
Despite the erroneous jury instruction, the court found that since the instruction was
irrelevant and inapplicable, the error was harmless. Id. Had the jury based its guilty verdict
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202 NEW ENGLAND LAW REVIEW [Vol. 44:193

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

III. Pregnancy Resulting from Unlawful but Non-Forcible Sexual Conduct

Is Not GBI.

A. The Cross Court Incorrectly Used Precedential Authority.

In Cross, the court used the fact patterns and definitions of GBI from
People v. Escobar80 and from People v. Sargent81 in analogizing the case.
The definition used in those cases stated that the injury must be a
significant or substantial bodily injury not a trivial or insignificant
injury.82 These definitions appropriately described the physical injuries
and trauma that the rape victims suffered in Escobar and Sargent.83
However, the application of the term to the factual circumstances in Cross
should have been distinguished from those present in Escobar and Sargent.

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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2009] PREGNANCY AND GREAT BODILY INJURY 203

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

90. Id. at 1101-02.

91. Id. at 1102.
92. Escobar, 837 P.2d at 1106.
93. Id.
94. See id.
95. See People v. Cross, 190 P.3d 706, 709 (Cal. 2008).
96. Id.
97. See Escobar, 837 P.2d at 1101-02.
98. See People v. Sargent, 150 Cal. Rptr. 113, 115 (Cal. Ct. App. 1978).
99. See id.
100. Id.
101. Id.
102. Id.
103. Id.
104. Excoriate is defined as [t]o tear or wear off the skin of. THE AMERICAN HERITAGE
COLLEGE DICTIONARY 487 (4th ed. 2001).
105. See Sargent, 150 Cal. Rptr. at 115.
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204 NEW ENGLAND LAW REVIEW [Vol. 44:193

of the forcible rape and underwent an abortion.106 According to the court,

forcible rape in and of itself is not GBI.107 Pregnancy resulting from
forcible rape is GBI because the injuries are significantly and substantially
beyond that necessarily present in the commission of rape.108 By contrast,
Cross involved unlawful but non-forcible sexual conduct, not forcible
rape.109 The victim in Cross also did not suffer any physical injuries as a
result of the unlawful sexual conduct.110 On this basis, Cross should have
been distinguished from Sargent, not analogized to it.

B. Pregnancy in the Criminal Context Versus Pregnancy in the Civil

Context
A disconnect exists between the civil and criminal law pertaining to
pregnancy. In the criminal context, an unwanted pregnancy as a result of
unlawful but non-forcible sexual conduct may be found to constitute
GBI.111 In the civil context, in California and other jurisdictions, an
unwanted pregnancy that results in the birth of a healthy child does not give
rise to any form of liability.112 As a matter of public policy, the birth of a
healthy child, even if unwanted, does not constitute injury to the childs
parents.113 Holding an individual responsible for the birth of one of lifes
greatest gifts is incompatible with views on pregnancy and the birth of
happy and healthy children.114 Misrepresentations resulting in pregnancy
also do not give rise to liability.115
Not only does the birth of a normal, healthy child not give rise to
liability in a civil context, but the term bodily injury should be given its
plain and ordinary meaning.116 Pregnancy does not fall within the plain and

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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2009] PREGNANCY AND GREAT BODILY INJURY 205

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

C. Californias Sexual Assault Statute Should Be Modeled After the

Sexual Assault Statute in Wisconsin and Nebraska.

1. Wisconsins Sexual Assault Statute

Wisconsin lists pregnancy as one possible element of a sexual assault
charge that must be established to find a defendant guilty of that particular
offense.123 First degree sexual assault. Whoever does any of the following
is guilty of a Class B felony: (a) Has sexual contact or sexual intercourse
with another person without consent of that person and causes pregnancy
or great bodily harm.124 This statute specifically states that a sexual
offense resulting in pregnancy is a Class B felony.125 GBI is also a Class B
felony under the statute.126 By keeping these two concepts separate, the
Wisconsin Legislature implied that they are not to be considered the same
for the purposes of statutory construction.127 [F]irst-degree sexual assault
can occur on the basis of pregnancy as an alternative element to great

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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206 NEW ENGLAND LAW REVIEW [Vol. 44:193

bodily harm.128 Thus, a pregnancy resulting from unlawful sexual conduct

is its own offense.129

2. Nebraskas Sexual Assault Statute

According to Nebraskas sexual assault 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.130 By placing pregnancy and GBI under the heading
of serious personal injury, the plain reading of this statute illustrates that
the Nebraska Legislature intended for these elements to be considered
separate offenses.131 In order for a charge of second degree sexual assault,
there should either be a pregnancy resulting from the sexual assault or GBI
resulting from the sexual assault.132

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).