I have been asked to comment on the Unborn Victims of Violence Act of 1999 (the Act), S.1673, particularly as it affects military law. I am an active duty Army Judge Advocate currently assigned to the Third U.S. Army, Fort McPherson, Georgia and have previously served as both a military trial counsel (prosecutor) and as a Special Assistant U.S. Attorney. I’ve taught military law as an adjunct professor at Arizona State University School of Law. I possess a B.S. from the U.S. Military Academy, a J.D. from the College of William & Mary, a LL.M. (Military Law) from the Judge Advocate General’s School and a LL.M. (Federal Procurement Law) from George Washington University. Earlier I engaged in research in this area while a LL.M. student at George Washington University. The results of this research effort were published as an article entitled “Fetal Crime And Its Cognizability As A Criminal Offense Under Military Law,” in the July 1998 edition of The Army Lawyer.

Any opinions that I may render are my own personal opinions and do not reflect the position of the Department of the Army or any other federal agency.

With respect to the proposed legislation I would like to make the following points supportive of the Act. 1. The current “born alive” rule, followed by both military and federal courts, is a legal anachronism whose rationale for existence is no longer valid. 2. The Assimilative Crimes Act (ACA), which provides the military a vehicle for prosecuting feticide by using state law, results in an inequitable application of military law to members of the armed forces. This Act will serve to correct that inequity. 3. This legislation does not infringe on a woman’s right to choose. 4. The legal principle of transferred intent, upon which this Act relies, is well-established in military law.

1. The Born Alive Rule

Both military and federal courts follow the “born alive” rule, which means that before a person can be prosecuted for misconduct that results in the fetus’ death, the fetus had to have survived for at least a short period of time outside the womb. Historically, the definition of what constituted being born alive varied by jurisdiction. For example some states required that the baby survive for a period of time after the umbilical cord was severed. The military rejected that standard in 1954 in United States v. Gibson, a case involving an Air Force nurse who strangled her baby shortly after birth. The evidence at trial was unclear as to whether the accused had strangled her child before or after she severed the umbilical cord. The current born alive rule is based on English common law and is believed to have existed since at least 1348. Despite the longevity of this rule the military still struggles to fully develop a definition of that term. See United States v. Nelson, 52 M.J. 516 (N.M.Ct.Crim.App. 1999) (review was granted on February 2, 2000).

The rationale for the born alive rule was rooted in the difficulty of proving the cause of a fetus’ death, which was a byproduct of the primitive level of medical knowledge in this area. Indeed, until the late 1800’s a physician could not conclusively establish the existence of a pregnancy until the fetus moved in the womb (the quickening which usually occurred around four months) and the fetus’ health could not be determined until birth.

Continued reliance on the born alive rule is problematic for two reasons. First, modern medicine has advanced to such a point that the basis for the rule simply no longer exists. Presently, medical technology can diagnose the existence of a fetus early in the pregnancy, certainly much earlier than the point of quickening. Additionally, the fetus can be observed through the use of ultrasound and fetoscopy; it can be operated on while still in the womb; and physicians normally can determine the cause of a fetus’ death.

The second reason that continued reliance on this rule of law should be disfavored is that in practice it rewards the successful attacker. An accused (military equivalent of a defendant) who beats a pregnant woman cannot be prosecuted for killing the fetus if it dies before it is born. The death of the fetus goes unpunished. In contrast, the accused who beats the pregnant victim less severely, permitting the fetus to be born alive, may be prosecuted for homicide under existing military and federal homicide statutes if the child dies as a result of the beating. In short, the born alive rule serves to reward the more culpable actor for his heightened state of misconduct.

2. Assimilative Crimes Act

The Assimilative Crimes Act (ACA), 18 U.S.C. 13, permits prosecution of a member of the armed forces under Article 134, clause 3 (crimes and offenses not capital), UCMJ, for violating a state law within an area of exclusive or concurrent federal jurisdiction (e.g. a military base). The ACA permits use of the penal law of the local state to fill in gaps in military/federal criminal law. Article 134 may not be used to assimilate state law if another provision of the UCMJ or other federal criminal statute has already defined an offense for that specific misconduct. Fetal homicide is not specifically made punishable under any punitive article of the UCMJ or provision of the federal criminal code.

In 1996, for the first time, the military relied on the ACA to assimilate a state feticide law in order to court-martial a member of the armed forces. In United States v. Robbins, 52 M.J. 159 (1999), an airman stationed at Wright-Patterson Air Force Base, Ohio, wrapped his fist in a tee shirt and severely beat his wife, who was 34 weeks pregnant. The beating occurred in government housing on base, an area of exclusive federal jurisdiction. This was not the first such incidence of spousal abuse. In addition to breaking his wife’s nose and giving her a black eye (her eye was swollen shut), Robbins punched her with such force that he “ruptured [his wife’s] uterus and tore the placenta from the uterine wall. The unborn baby, who was otherwise healthy, was expelled into the mother’s abdominal cavity and died before birth.” Id. at 160.

Eventually Robbins was charged under the UCMJ with two specifications of assault in violation of Article 128; one count of maiming, in violation of Article 124 because Robbins had ruptured his wife’s uterus; and with murder and manslaughter under Article 134 through the assimilation of Ohio law. The case was referred to a general court-martial, which is the military’s highest form of court-martial. Pursuant to a pretrial agreement (plea bargain), Robbins pled guilty to assault and battery on Mrs. Robbins and intentional affliction of grievous bodily harm on her, in violation of Article 128; and involuntary manslaughter by terminating his wife’s pregnancy, in violation of section 2303.04 of the Ohio Revised Code, as assimilated into Article 134, by the Assimilative Crimes Act. The military judge sentenced Robbins to a dishonorable discharge, confinement for eight years, and reduction in rank to the lowest enlisted grade. On appeal, the conviction, and the assimilation of Ohio’s fetal homicide law, was reviewed and upheld by both the Air Force Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces.

If enacted, this legislation will have the positive affect of providing a uniform application of feticide law to members of the armed forces. Under existing law, whether or not members of the armed forces may be prosecuted for feticide will depend on where they are stationed. If the military base is located in a state that has a fetal homicide statute (e.g. Ohio), military prosecutors may rely on that law to proceed against the servicemember at court-martial. If that particular state has no such law, or if the servicemember is stationed overseas, no feticide charge will result. Further, even among states with fetal homicide laws, the standard for conviction varies. Some states make feticide a crime if the fetus is viable, others if the fetus is “quick,” and still others protect the fetus at the point of fertilization. Even if all states in which military bases are located were to adopt feticide laws, the punishment used by the military would vary by state. Under the ACA, unless the state law is closely related to a punitive article of the UCMJ, the military also assimilates portions of the state’s punishment scheme.

To give an example of how absurd this inequitable situation can become I would point to Fort Campbell. This Army base is located in both Kentucky and Tennessee. Tennessee has feticide statutes, but Kentucky does not. Were a soldier to assault a pregnant woman and kill her fetus on the Tennessee side of Fort Campbell he could be prosecuted at a military court-martial, under Article 134, by assimilating Tennessee law. However, if the same misconduct occurred only yards away on the Kentucky side of the base, the military could not prosecute him for committing the identical misconduct against the fetus.

3. A Woman’s Right To Choose

The Act does not infringe on a woman’s right to choose to terminate the pregnancy and does not conflict with Roe v. Wade. This proposed legislation virtually immunizes the mother from prosecution for any harm to the fetus and likewise protects those who are involved with the consensual termination of the pregnancy. The Supreme Court in Roe recognized the state’s legitimate interest “in protecting potential life” (410 U.S. at 154). This Act not only recognizes the governmental right to protect the fetus from harm--in this case imposed by a third party--but also serves to protect the woman’s right to choose to bring her wanted fetus to term.

A number of state courts have examined their fetal homicide laws in light of Roe and the results of those examinations support the legality of this Act. In People v. State, 872 P.2d 591 (Cal. 1994), the Supreme Court of California opined that the Supreme Court’s opinion in Roe v. Wade only precluded a state from protecting a nonviable fetus in instances where the interests of the fetus and mother conflict. As noted above, this Act only contemplates applicability when the interests of the government and mother coincide.

Similarly, in State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990), the Supreme Court of Minnesota examined its unborn child homicide law in the wake of Roe and its progeny. The court determined that the state possessed a legitimate interest in protecting both the “potentiality of life” at any stage of development and in protecting the woman’s right to determine the ultimate outcome of her pregnancy. “The interest of a criminal assailant in terminating a woman’s pregnancy does not outweigh the woman’s right to continue the pregnancy.” Id. at 322.

4. Transferred Intent

The Act provides that the military accused who engages in certain misconduct against an expectant mother, which results in death or injury to the unborn child, may also be separately prosecuted for the death or injury to the fetus to the same extent as if the death or injury had occurred to the expectant mother. This provision of the Act is based on the legal principle of “transferred intent,” which is well-established in military law.

The current version of the Manual for Courts-Martial, Part IV, para. 43(c)(2)(b), which discusses Article 118, provides: “When an accused with a premeditated design attempted to unlawfully kill a certain person, but, by mistake or inadvertence, killed another person, the accused is still criminally responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended victim to the actual victim.” Further, in United States v. Willis, 46 M.J. 258 (1997) the U.S. Court of Appeals for the Armed Forces took the position that “where there is . . . an intent to kill and an act designed to bring about the desired killing, the defendant is responsible for all natural and probable consequences of the act, regardless of the intended victim.” The military accused may be convicted of premeditated murder of the second, unintended victim, even in the “absence of any ill-will, animosity, or intent to kill [the second victim].” United States v. Black, 11 C.M.R. 57, 59 (C.M.A. 1953).

Under the Act military prosecutors would not be required to prove that the accused knew the victim-mother was pregnant at the time of the accused’s misconduct. This provision of the proposed legislation is consistent with existing law. First, the doctrine of transferred intent does not require knowledge that the second victim was present. Additionally, military law has long followed the related eggshell or thin skull rule; that is, you take your victims as you find them. See United States v. Eddy, 26 C.M.R. 718, 725 (A.B.R. 1958).

A state court addressed this same issue in the infanticide context. In People v. Hall, 557 N.Y.S.2d 879 (Sup. Ct. App. Div. 1990), the defendant fired two shots at his intended victim, but missed and instead struck a pregnant passerby, Brigette Garrett, who was 28 to 32 weeks pregnant and walking to a nearby restaurant. The fetus was delivered by an emergency caesarean section, but died 36 hours later. In upholding the defendant’s manslaughter conviction the court noted: “It is axiomatic that a perpetrator of illegal conduct takes his victim as he finds them, so it is entirely irrelevant whether the defendant actually knew or should have known that a pregnant woman was in the vicinity and that her fetus could be wounded as a result of his actions.” Id. at 885.

In State v. Merrill, 450 N.W.2d 318 (Minn. 1990), the defendant challenged his conviction for murdering the unborn child of a woman he had also been convicted of murdering, arguing that “it was unfair to impose on a murderer of a woman an additional penalty for murder of her unborn child when neither the assailant nor the pregnant woman may have been aware of the pregnancy.” Id. at 323. The unborn child in question was a 27 to 28 day embryo. Rejecting that argument, the Minnesota Supreme Court found that the doctrine of transferred intent applied. Further, the court pointed out: “The possibility that a female homicide victim of childbearing age may be pregnant is a possibility that an assaulter may not safely exclude.” Id.

Conclusion

In my personal opinion, I believe this legislation would have a positive impact on military law by providing a uniform feticide law and by eliminating reliance on the out-dated born alive rule. Further, the Act does not interfere with a woman’s right to choose, but instead reinforces both that right and the government’s interest in protecting the potentiality of life. Finally, the Act’s reliance on the principle of transferred intent is consistent with existing military law.

Michael J. Davidson

20 February 2000