§ Article 119a : Death or Injury of an Unborn Child

Article 119a of the UCMJ (10 U.S.C. § 919a) makes it a separate offense to cause the death of, or bodily injury to, a child in utero through conduct that violates one of eight listed articles. It does not require proof that the accused knew of the pregnancy, and death may not be imposed for an offense under this article.

Who It Applies To

Any person subject to the UCMJ who engages in conduct that violates Article 118 (murder), 119(a) (voluntary manslaughter), 119(b)(2) (involuntary manslaughter during an offense directly affecting the person), 120(a) (rape), 122 (robbery), 126 (arson), 128 (assault), or 128a (maiming), and thereby causes the death of, or bodily injury to, a child who is in utero at the time of the conduct.

What It Covers

The Manual lists four offenses. In each:

1. The accused was engaged in the murder, voluntary manslaughter, involuntary manslaughter, rape, robbery, maiming, or assault of a woman — or in burning or setting afire, as arson, a dwelling inhabited by her or a structure or property known to be occupied by or belonging to her.
2. The woman was then pregnant.
3. The accused thereby:

• caused bodily injury to her unborn child (injuring an unborn child);
• caused the death of her unborn child (killing an unborn child);
• intended and attempted to kill her unborn child (attempting to kill an unborn child); or
• intentionally killed her unborn child (intentionally killing an unborn child).

Key rules

• For every underlying offense except arson, the victim of the underlying offense must be the pregnant mother. For arson, the mother must have some nexus to the arson such that she sustained some bodily injury. “Woman” means a female of any age.
• Injuring or killing an unborn child does not require proof that the accused knew or should have known the victim was pregnant, or that the accused intended to harm the unborn child. Attempting to kill an unborn child requires that intent.
• Bodily injury has the meaning in 18 U.S.C. § 1365: 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, however temporary.
• Unborn child means a member of the species homo sapiens, at any stage of development, who is carried in the womb.
• The article does not permit prosecution of any person for conduct relating to an abortion to which the pregnant woman, or a person authorized by law to act for her, consented or for which consent is implied by law; of any person for medical treatment of the pregnant woman or her unborn child; or of any woman with respect to her unborn child.

Maximum Punishment

Maximum authorized punishment. For injuring or killing an unborn child, any punishment other than death that a court-martial may direct, consistent with the punishment that would apply had the injury or death occurred to the unborn child’s mother. Under the statute, when the accused intentionally kills or attempts to kill the unborn child, the punishment is instead that provided for intentionally killing or attempting to kill a human being under Articles 80, 118, and 119(a). Death may not be imposed for any offense under Article 119a.

Sentencing parameters. Dependent on the underlying offense.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 119a is always tied to one of the eight listed underlying offenses, which may also be charged. Offenses against the mother herself are addressed by the underlying articles, such as Article 118, Article 119, and Article 128.

What the Provision Does

Article 119a treats death or injury to an unborn child, caused by specified violent conduct against the mother, as a separate offense, while excluding consensual abortion, medical treatment, and the pregnant woman’s own conduct.

History

Article 119a was added to the UCMJ by the Unborn Victims of Violence Act of 2004 (Pub. L. 108-212, § 3), enacted April 1, 2004. Its list of underlying offenses was updated in 2016 (Pub. L. 114-328) and 2017 (Pub. L. 115-91) to reflect the renumbering of the punitive articles.

Sources

• 10 U.S.C. § 919a (Article 119a, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 58
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• 18 U.S.C. § 1365 (definition of bodily injury)