Few things are more tragic and gut-wrenching than the death or injury of an unborn child. Under Article 119a of the Uniform Code of Military Justice (UCMJ), a service member who commits a violent crime that results in the death or injury to an unborn child may be prosecuted not only for their crime against the mother but also for what happens to the child in their womb. If convicted, the punishment can be severe and life-altering for the service member.
Military Justice Attorneys (MJA) has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including manslaughter. Contact our military defense lawyers today to learn more about your rights and options if you have been accused of murder or the death of an unborn child.
What is Article 119a, UCMJ (Death or Injury of an Unborn Child)?
Article 119a of the Uniform Code of Military Justice (UCMJ) makes it a crime if a service member causes the death or injury to an unborn child while committing one of the following serious offenses:
To be found guilty, it is not required that the person know that the victim of the underlying offense was pregnant or that the person intended to cause the death or injury to the unborn child.
What Offenses are Listed under Article 119a?
There are four potential charges under Article 119a, UCMJ:
Injuring an Unborn Child: To be guilty of injuring an unborn child, the Government must prove the following elements: (1) that the accused was engaged in the murder, manslaughter, rape, robbery, maiming, assault, or arson of a structure of a woman; (2) that the woman was pregnant; and (3) that the accused caused bodily injury to the unborn child of that woman. Bodily injury is broadly defined and can include a “cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.”
Killing an Unborn Child: To be guilty of killing an unborn child, the Government must prove the following elements: (1) that the accused was engaged in the murder, manslaughter, rape, robbery, maiming, assault, or arson of a structure of a woman; (2) that the woman was pregnant; and (3) that the accused caused the death of the unborn child.
Attempting to Kill an Unborn Child: To be guilty of attempting to kill an unborn child, the Government must prove the following elements: (1) that the accused was engaged in the murder, manslaughter, rape, robbery, maiming, assault, or arson of a structure of a woman; (2) that the woman was pregnant; and (3) that the accused intended and attempted to kill the unborn child of that woman;
Intentionally Killing an Unborn Child: To be guilty of killing an unborn child, the Government must prove the following elements: (1) that the accused was engaged in the murder, manslaughter, rape, robbery, maiming, assault, or arson of a structure of a woman; (2) that the woman was pregnant; and (3) that the accused intentionally killed the unborn child of that woman.
What is an “Unborn Child” under Article 119a?
An “unborn child” is defined as a “child in utero” which is any child who is carried in the womb, at any stage of development, from the moment of conception to birth.
Is Knowledge of the Pregnancy Required under Article 119a?
No, depending on the charge, the accused does not need to know the woman is pregnant to be guilty under Article 119a. For example, the offenses of injuring an unborn child and killing an unborn child do not require proof that the accused knew or should have known that the victim of the underlying offense was pregnant, or that the accused intended to cause the death of, or bodily injury to, the unborn child.
On the other hand, if a service member is being charged with attempting to kill an unborn child, the Government must prove that the accused intended by his conduct to cause the death of the unborn child.
Does Article 119a Criminalize Abortion?
Article 119a does not criminalize abortion. It is not a violation of Article 119a for a female service member to voluntarily have an abortion where she has consented to the procedure or undergoes any medical treatment which results in injury or death to the unborn child.
Are There Any Potential Defenses to Article 119a?
Rule for Court-Martial 916 provides multiple defenses to both Article 119a and underlying serious offenses which the Government must prove. These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.
For example, a service member who shoots and kills a woman in self-defense could be charged with killing an unborn child under Article 119a, even if the accused did not know she was pregnant. In a case like that, the accused could argue at trial that using lethal force against the mother was legally justified and therefore they should be found not guilty of any unexpected death or injury to the unborn child.
Defenses do not, however, prove themselves. A successful defense to the charge of manslaughter will often require the use of experts in the fields of firearms, gunshot residue, bloodstain pattern analysis, crime scene reconstruction, forensic psychology, forensic pathology, and digital forensics, to name a few. A skillful attorney can identify the experts required to prepare a successful defense.
What's the Maximum Punishment under UCMJ Article 119a?
The maximum punishment for death or injury to an unborn child is dependent on the underlying offense but would likely carry the risk of a dishonorable discharge and years if not decades of confinement. The death penalty is not authorized for a violation of Article 119a.
Is Pretrial Confinement Authorized for Allegations of Article 119a?
Yes, service members suspected of the death or injury of an unborn child will likely be placed in pretrial confinement while awaiting court-martial based on the severity of the allegations. This is a devastating punishment that significantly impacts a service member’s ability to prepare for trial. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.
Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.
MJA has successfully fought to have service members released from pretrial confinement for some of the most serious UCMJ offenses, including manslaughter. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.
What Are My Rights When Accused under Article 119a?
Key rights that you can and should invoke while under investigation for a violation under UCMJ Article 119a include:
Right to remain silent: Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement rarely helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.
Right to counsel: Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.
Right to refuse consent: There is no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain authorization from a commander before conducting the search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence that they intend to use against you. Don’t be fooled.
Protect Your Freedom & Your Military Career
When your life, career, and future are on the line, get an experienced law firm in your corner immediately. The skilled and experienced military criminal defense attorneys at MJA have defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, such as Article 119a (death or injury of an unborn child). We can explore all avenues of defense and aggressively fight for your rights and reputation.
