Earlier today, the U.S. Army preferred 13 charges and specifications of premeditated murder against Major Nidal Hasan.  This preliminary step does not and should not preclude the preferral of additional charges including a charge and specification for the killing of the unborn child of one of the victims of the Fort Hood massacre,  Private Francheska Velez of Chicago, Illinois.

As a former military judge advocate (for 14 years) who specialized in military justice, I understand the confusion that the announcement of these charges and specifications has engendered.  However, it is important to understand that the military justice system is different than the civilian system that most are more familiar with.

The investigation into Hasan’s conduct will continue and, under the Uniform Code of Military Justice (UCMJ) and the Rules for Courts-Martial, his commanders are free to prefer additional charges if warranted.   Moreover, under the UCMJ, Hasan is entitled to an Article 32 hearing — a pretrial hearing in which a military officer, likely a military judge in this case, will review the evidence and charges against Hasan for factual and legal sufficiency, and that hearing officer may also recommend that additional charges and specifications be preferred if the evidence supports them.  In fact, the preferral of additional charges and specifications in a case of this magnitude is common.

Importantly, Army officials have already acknowledged that additional charges are under consideration.  Specifically, the Associated Press is reporting that a decision has not yet been made as to whether Hassan will face a charge and specification under the changes made to the UCMJ in 2004 when President George W. Bush signed the federal Unborn Victims of Violence Act (UVVA).  The UVVA criminalizes assaults on the unborn — including those that result in the death of the child — that occur during the commission of another federal crime or on federal property such as military installations like Fort Hood.  The UVVA specifically modified the UCMJ to allow the prosecution of military personnel (stationed anywhere in the world) who kill or injure an unborn child. 

Notably, if an additional charge for the killing of Private Velez’s unborn child is preferred and referred for court-martial, this will not be the first time that a member of the U.S. military has faced charges under the federal Unborn Victims of Violence Act.  The Air Force has already prosecuted and secured a conviction in one such case.

There are, of course, many unnamed victims of the attack at Fort Hood.  Spouses, parents, children, siblings, friends.  Each left to suffer and question why, on American soil, their loved one’s life was violently ended.

But there was another victim that has been frequently overlooked: the unborn child of soldier Francheska Velez.  When Hasan took Velez’s life, he took the life of her unborn baby as well.

As the country looks for justice to be served in this horrendous tragedy, we cannot forget that Hasan can and should be charged with the death of Baby Velez as well. 

The Uniform Code of Military Justice was modified when President George W. Bush signed the Unborn Victims of Violence Act (UBVV) in 2004.  Also known as “Laci and Conner’s Law,” the federal UBVV law applies only to federal crimes and federal jurisdictions, such as military installations.  That is why AUL pushes so vehemently for states to enact their own versions of the federal UBVV law.

As AUL explained in Defending Life 2009:

“Thus, the biggest impact of Laci and Conner’s law may be in its revisions to the Uniform Code of Military Justice (UCMJ). Military prosecutors can now pursue charges against military personnel stationed anywhere in the world if their actions cause the death of an unborn child; previously, they were limited to filing such charges only in those states with laws protecting unborn victims of violence.  A case such as that of Airman Gregory L. Roberts, who in 1996 savagely beat his pregnant wife, rupturing her uterus and killing their unborn daughter, resulted in manslaughter charges only because Ohio, where he was stationed, had a fetal homicide law on its books. Had Roberts been stationed in Colorado or North Carolina—states with a significant military presence, but no laws protecting an unborn child from violence—he could not have been charged with his daughter’s death and would have faced prosecution only for the assault on his wife.”

You can read the entire article here.

Because the UBVV law was signed in 2004 and is incorporated in the Uniform Code of Military Justice, justice can be sought for Baby Velez.

FOR IMMEDIATE RELEASE

Oklahoma City, OK — Oklahoma Governor Brad Henry has signed Senate Bill 1103, the “Use of Force for the Protection of the Unborn Act,” into Oklahoma law.  This bill allows a woman to use force if necessary to protect her unborn child from attack.  Under the bill, a pregnant woman is legally justified in using deadly force if she “reasonably believes” an attacker is “threatening her unborn child” and “use of force or deadly force are immediately necessary to protect her unborn child.” 

Oklahoma is the first state to pass this new model bill by Americans United for Life (AUL).

Maressa Treat, AUL Oklahoma State Director, explained the driving force behind the bill: “All too often pregnant women are victims of domestic violence, especially violence targeted toward the unborn child.  This bill clarifies that women who protect their child’s life by using force are legally protected in Oklahoma.”

Daniel McConchie, AUL Vice President of Government Affairs, added, “AUL and AUL Action will now work to take this important legislation to other states across the country.  Every pregnant woman in America deserves the right to protect her unborn child from violence and harm.”

About Americans United for Life
Americans United for Life (AUL) is a nonprofit, public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law.  The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971.  The Wall Street Journal has profiled AUL, and PBS’ Frontline program chronicled AUL’s successful efforts in Mississippi.

Today, the Oklahoma House passed Senate Bill 1103, the “Use of Force for the Protection of the Unborn Act.” The Senate had already passed it 44-0 and it passed in the House 95-0. One of the authors of the bill, state Representative Mike Thompson, explained the driving force for creating the bill: “Pregnant women who refuse to abort their child are too often attacked by their partner in an effort to force a miscarriage…Women put in this position should have the legal right to defend themselves, with lethal force if necessary.” To view the press release, go to okhouse.gov.

This year, one of AUL’s new pieces of model legislation is the “Use of Force to Protect the Unborn” bill – a bill that allows pregnant women to use force, even deadly force, to protect her unborn child.

Across the nation, countless pregnant women are victims of domestic violence.  Sometimes, their attacker has one intent in mind – to kill the unborn child she is carrying.  In 1999, Jaclyn Kurr suffered a miscarriage after being physically attacked by her boyfriend, Antonio Pena. Jaclyn was more than 16 weeks pregnant with quadruplets when Pena punched her stomach multiple times during an argument. Jaclyn stabbed Pena in defense of her unborn children. Pena subsequently died, and Jaclyn was charged with and found guilty of manslaughter.  On appeal, the Michigan Court of Appeals held that Jaclyn, as a pregnant woman, was justified in using deadly force to protect the lives of her unborn children.

However, charges should have never been filed against Jacklyn in the first place. But, due to this area of law being unclear, every pregnant woman who defends her unborn child is at risk of the overreach of an overzealous prosecutor.  AUL’s Use of Force bill will help close this loophole.

Oklahoma is the first state to consider this model legislation, and the Senate President Pro Tempore Glenn Coffee carried the bill personally.  The bill passed overwhelmingly by a vote of 44-0.  Here is a copy Senator Coffee’s press release.

The bill now goes to the Oklahoma House for consideration.