Some sex assaults may lead to tougher penalties

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

The state 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 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, 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 Cross 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 15-year-to-life sentence. 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 with Cross that the abortion was not an injury he personally inflicted but decided the pregnancy could be considered a significant injury under the law.

A DNA test on tissue samples from the fetus showed a 99.99 percent probability that Cross was the father.

Although the court ruled unanimously that the girl's pregnancy amounted to substantial harm, the justices split 5-2 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 the case.

Justice Carol Corrigan, joined by Chief Justice Ronald 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."

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