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Pregnancy a factor in assault penalties

Court upholds harsher sentence for man who impregnated girl, 13.

August 29, 2008|Maura Dolan | Times Staff Writer

A sexual assault that leaves a victim pregnant may be punished more severely than one that does not result in pregnancy, the California Supreme Court ruled unanimously Thursday.

The state high court said a pregnancy may be considered "great bodily injury."

"We conclude that here, based solely on the evidence of the pregnancy, the jury could reasonably have found that 13-year-old K. suffered a significant or substantial physical injury," Justice Joyce L. Kennard wrote for the court.

The court ruled in the Santa Clara County case of Gary W. Cross, who repeatedly had sexual intercourse with his 13-year-old stepdaughter while her mother worked. The teenager, identified as K., became pregnant, and Cross arranged for her to have an abortion. Because she was 5 1/2 months pregnant, the abortion was performed surgically.

The jurors at Cross' trial were told they could find that he personally inflicted "great bodily injury" on the girl as a result of her pregnancy or the abortion. The jury reached that finding, which mandated a sentence of 15 years to life in prison. Without that verdict, the defendant would have received a more lenient sentence.

Cross appealed, arguing that a pregnancy without complications could not constitute a substantial injury, nor could an abortion he did not perform. The state high court agreed that the abortion was not an injury he personally inflicted but decided that the pregnancy could be considered a significant injury under the law.

The court cited a prosecutor's trial argument that the victim was "carrying a baby for 22 weeks . . . in a 13-year-old body." A DNA test on tissue samples from the fetus showed a 99.99% probability that Cross was the father.

Although the court ruled unanimously that the girl's pregnancy amounted to substantial harm, the justices were split 5 to 2 on whether to declare that every pregnancy stemming from sexual assault would amount to a great injury. The majority said that was a question for juries to decide based on the facts of a case.

Justice Carol A. Corrigan and Chief Justice Ronald M. George said the ruling should apply to all pregnancies that result from sexual assaults.

"A victim who is raped and made pregnant experiences a different degree of injury than the victim who is not impregnated," Corrigan wrote. "Because pregnancy must result in childbirth, miscarriage or abortion, its infliction during a sexual assault is, by definition, a substantial or significant injury."

The sexual assault of K. began in summer 2002, seven years after Cross married the victim's mother, the court said. Cross awoke K. in the middle of the night and told her to follow him to the master bedroom.

After having sexual intercourse with her, he threatened that if she told her mother she would be taken away by police and not allowed to see her family, the court said.

"Although K. occasionally objected to these sex acts, she was reluctant to do so for fear the defendant would not allow her to go out with her friends or would take away her cellphone," Kennard wrote.

After the abortion in December 2003, Cross resumed sexual activity with the girl until the following July, when the victim's mother came across paperwork from the abortion and summoned the police.

The jury found the sexual acts were not committed by force but still violated laws that prohibit sex with minors.

Stephen B. Bedrick, who represented Cross, said the court's decision means Cross will spend the rest of his life in prison because governors rarely grant parole to inmates with life terms. Without the finding of great bodily injury, Cross would have served 12 to 15 years, Bedrick said.

Great bodily injury results from a "knife stab, a gunshot," he said. "Most people I know who have children did not consider pregnancy an injury."

Deputy Atty. Gen. Michael D. O'Reilley, who argued the case for the prosecution, was unavailable for comment.

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maura.dolan@latimes.com

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