ARTICLE 119A – DEATH OR INJURY OF AN UNBORN CHILD

Article 119a deals with alleged crimes where the death of or bodily injury to an unborn child is caused by an enlisted member. Under this article, an unborn child may be a child in- utero at any stage between conception and birth. This offense shall be treated as a separate one and the accused is given the same punishment as would be given if he had committed the offensive act (that lead to the injury or death) on the in- utero child's mother.

It is important to note that the accused cannot use his lack of knowledge of the mother's pregnancy as defense where the offense has been committed unintentionally. However, the accused can defend himself by showing that the death/ injury of the fetus occurred while carrying out abortion or during the course of medical treatments, both of which had the mother's full consent.

Four different situations are covered under this article and their critical components are as follows:

a) Causing injury to an unborn infant

Elements:

• That at a specific time and place, the accused committed voluntary manslaughter/ involuntary manslaughter/ murder/ rape/ maiming/ rape/ assault of a specified woman; or committed arson of the dwelling or other property belonging to her or known to be occupied by her.
• That the woman was pregnant when the accused committed his act.
• That through his act the accused caused bodily injury to the unborn infant.

Note: 'Bodily injury' refers to any cut, bruise, abrasion, disfigurement, burn, illness, physical pain or function impairment of a physical or mental nature, even those that are temporary. It is not necessary to furnish proof that the accused was aware of the woman's pregnancy or that he intended to injure the unborn child by carrying out the act.

Maximum Punishment: Forfeiture of all allowances and pay, bad conduct discharge, and six months confinement is the maximum punishment.

b) Killing an unborn infant

Elements:

• That at a specific time and place, the accused committed voluntary manslaughter/ involuntary manslaughter/ murder/ rape/ maiming/ assault of a specified woman; or committed arson of the dwelling or other property belonging to her or known to be occupied by her.
• That the woman was pregnant when the accused committed his act.
• That through his act the accused caused the death of the unborn infant.

Note: It is necessary to prove that the acts of the accused were the proximate cause of the unborn infant's death. It is not necessary to prove that the accused was aware of the woman's pregnancy or that he intended to kill the unborn child by carrying out the act.

Maximum Punishment: Forfeiture of all allowances and pay, dishonorable discharge, and three years confinement is the maximum punishment.

c) Attempt to kill an unborn infant

• That at a specific time and place, the accused committed voluntary manslaughter/ involuntary manslaughter/ murder/ rape/ maiming/ assault of a specified woman; or committed arson of the dwelling or other property belonging to her or known to be occupied by her.
• That the woman was pregnant at the time of commission of the offense.
• That through his act the accused made an attempt to kill the specified woman's unborn child.
• That the accused's acts amounted to a clear progress towards fulfilling his objective and were not mere preparations for the act.
• That this act would have killed the unborn child if unexpected circumstances had not intervened.
• That the accused had clear intent to cause the death of the infant when he committed these acts.

Note: It is not necessary to furnish proof that the accused actually succeeded in his act or that the child expired in- utero. The accused's intent to kill can be proved by circumstantial evidence.

Maximum Punishment: Forfeiture of all allowances and pay, dishonorable discharge and 15 years confinement is the maximum punishment.

d) Intentionally killing the unborn infant

Elements:

• That at a specific time and place, the accused committed voluntary manslaughter/ involuntary manslaughter/ murder/ rape/ maiming/ assault of a specified woman; or committed arson of the dwelling or other property belonging to her or known to be occupied by her.
• That the woman was pregnant.
• That through his act the accused killed the unborn infant intentionally.

Note: The accused's intent to kill the child may be established by circumstantial evidence.

Maximum Punishment: The accused faces forfeiture of all allowances and pay dishonorable discharge and 15 years confinement. For more information on this article, please refer to the Manual for Courts Martial.