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Testimony of Tracy Marciniak Before the Subcommittee on the Constitution, Committee on the Judiciary

Jul 8, 2003 | Unborn Victims of Violence

Testimony of Tracy Marciniak

Before the Subcommittee on the Constitution,

Committee on the Judiciary,

U.S. House of Representatives

On the Unborn Victims of Violence Act of 2003 (H.R. 1997)

July 8, 2003

Mr. Chairman and honorable members of the subcommittee: My name is Tracy Marciniak. I thank you for this opportunity to appear before you today to tell you my story and to explain how it is related to the Unborn Victims of Violence Act (H.R. 1997).

I respectfully ask that the members of the subcommittee examine the photograph that you see before you. In this photo, I am holding the body of my son, Zachariah Nathanial.

Often, when people see this photo for the first time, it takes a moment for them to realize that Zachariah is not peacefully sleeping. Zachariah was dead in this photograph. This photo was taken at Zachariah’s funeral.

I carried Zachariah in my womb for almost nine full months. He was killed in my womb, only five days from his delivery date. The first time I ever held him in my arms, he was already dead. This photo shows the second time I held him, which was the last time.

There is no way that I can really tell you about the pain I feel when I visit my son’s grave site in Milwaukee, and at other times, thinking of all that we missed together. But that pain was greater because the man who killed Zachariah got away with murder.

One Victim, or Two?

Mr. Chairman, I ask you and the other members of the committee to look at this photograph and ask yourselves: Does it show one victim, or two?

If you look at this photo and see two victims – a dead baby and a grieving mother who survived a brutal assault – then you should support the Unborn Victims of Violence Act.

I know that some lawmakers and some groups insist that there is no such thing as an unborn victim, and that crimes like this only have a single victim – but that is callous and it is wrong. Please don’t tell me that my son was not a real victim of a real crime. We were both victims, but only I survived.

Zachariah’s delivery date was to be February 13, 1992. But on the night of February 8, my own husband brutally attacked me at my home in Milwaukee. He held me against a couch by my hair. He knew that I very much wanted my son. He punched me very hard twice in the abdomen. Then he refused to call for help, and prevented me from calling.

After about 15 minutes of my screaming in pain that I needed help, he finally went to a bar and from there called for help. I and Zachariah were rushed by ambulance to the hospital, where Zachariah was delivered by emergency Caesarean section. My son was dead. The physicians said he had bled to death inside me because of blunt-force trauma.

My own injuries were life-threatening. I nearly died. I spent three weeks in the hospital.

During the time I was struggling to survive, the legal authorities came and they spoke to my sister. They told her something that she found incredible. They told her that in the eyes of Wisconsin law, nobody had died on the night of February 8.

Later, this information was passed on to me. I was told that in the eyes of the law, no murder had occurred. I was devastated.

My life already seemed destroyed by the loss of my son. But there was so much additional pain because the law was blind to what had really happened. The law, which I had been raised to believe was based on justice, was telling me that Zachariah had not really been murdered.

It took over three years for this case to go to trial. The state prosecuted my attacker for first-degree reckless injury, and for false imprisonment, and he was convicted of those counts. They also prosecuted him under a 1955 abortion law. But they failed to win a conviction on the abortion count, because that law required that they prove a specific intent to destroy the life of my unborn child. I do not fault the state authorities or the jurors – they simply did not have the right legal tool for this type of case. The law simply failed to recognize what anybody who looks at the photo should be able to see – that Zachariah was robbed of his life.

Reform of Wisconsin Law

Before his trial, my attacker said on a TV program that he would never have hit me if he had thought he could be charged with killing an unborn baby.

My family and I looked for somebody who would help us reform the law so that no such injustice would occur in our state in the future. We found only one group that was willing to help: Wisconsin Right to Life. They never asked me my opinion on abortion or on any other issue. They simply worked with me, and with other surviving family members of unborn victims, to reform the law.

It took years. Again and again, I told my story to state lawmakers and I pleaded with them, as I now plead with you, to correct this injustice in our criminal justice system.

Finally, on June 16, 1998, Governor Tommy Thompson signed the fetal homicide law. This means that it will never again be necessary for state authorities in Wisconsin to tell a grieving mother, who has lost her baby, that nobody really died. Under this law, an unborn child is recognized as a legal crime victim, just like any other member of the human race.

Of course, the state still has to prove everything beyond a reasonable doubt, to a jury, which is as it should be. But when this bill was under consideration in the legislature, it was actually shown to some of the former jury members in our case, and they said if that had been the law at the time I was attacked, they would have had no problem convicting my attacker under it.

Mr. Chairman, we surviving family members of unborn victims of violence are not asking for revenge. We are begging for justice – justice like we were brought up to believe in and trust in. Justice means that the penalty must fit the crime, but that is only part of it – justice also requires that the law must recognize the true nature of a crime.

Please hear me on this: On the night of February 8, 1992, there were two victims. I was nearly killed – but I survived. Little Zachariah died.

Why Federal Bill is Needed

Mr. Chairman, I understand very well that the Unborn Victims of Violence Act would apply only to federal crimes and federal jurisdictions. Therefore, even if this bill had been in force on the day I was attacked, it would not have applied to Zachariah.

But you know very well that there have been in the past cases like ours that did occur in federal jurisdictions and during federal crimes. And you know that tragically, such cases are bound to occur in the future. I do not want to think of any surviving mother being told what I was told – that she did not really lose a baby, that nobody really died. I say, no surviving mother, father, or grandparent should ever again be told that their murdered loved one never even existed in the eyes of the law.

So, I think that you really should look at these state cases for illustrations of the type of pain and injustice that results when unborn victims of violence are not recognized in the law. This has been called Laci and Conner’s bill, and it is, but it is also Tracy and Zachariah’s bill, and it is also Shiwona and Heaven’s bill, and it is a bill for every unborn victim and surviving family member.

I am encouraged that more and more states are enacting unborn victims laws. I’ve been told that 28 states now recognize the unborn child as a crime victim at least in some circumstances, and 15 of those laws cover the killing of the unborn child at any point in his or her development in the womb. Texas just enacted a strong law. These laws are all listed at the website The photograph that you have before you today is also posted at that website.

I am also encouraged by recent national polls that show that more and more people “get it.” A scientificNewsweek poll released June 1 asked people whether someone who “kills a fetus still in the womb” should face a homicide charge for that act – either throughout pregnancy, or from the point of “viability,” or not at all. Fifty-six percent (56%) said throughout pregnancy, and another 28% said at viability, for a total of 84%. Only 9% said there should be no such thing as a fetal homicide charge.

Also in May, a national Fox News poll found that 84% favored a double-homicide charge in the Peterson murder case in California, while only 7% favored a single homicide charge.

No Effect on Abortion

The Wisconsin law has been in effect for five years now and it has had no effect on legal abortion. Legal abortion is specifically exempted under that law. The bill that you are considering also has a specific exemption for abortion. Opponents of the bill should stop trying to turn it into an abortion issue.

It really boils down to the question that I asked you earlier. Does the photograph show one victim, or two?

Some lawmakers say that criminals who attack pregnant women should be punished more severely, but that the law must never recognize someone’s unborn child as a legal victim. For example, I have read Congresswoman Lofgren’s proposal, which she calls the “Motherhood Protection Act.” There is only one victim in that bill – the pregnant woman. So if you vote for that bill, you are really saying all over again to me, “We’re sorry, but nobody really died that night. There is no dead baby in the picture. You were the only victim.”

More importantly, you would be saying to all of the future mothers, fathers, and grandparents, who lose their unborn children in future federal crimes, “You didn’t really lose a baby.”

Please don’t tell us that. Please don’t tell me that my son was not a real murder victim.

If you really think that nobody died that night, if you really think there is no dead baby in the picture, then vote for the Lofgren bill. But please remember Zachariah’s name and face when you decide.

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