Article 119a — Death or injury of an unborn child

Part IV · Punitive Articles

Article 119a. Death or injury of an unborn child · MCM ¶ 58

2024 Manual for Courts-Martial, United States

(a) Text of statute. (a)(1) Any person subject to this chapter who engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365 of title 18) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section and shall, upon conviction, be punished by such punishment, other than death, as a court-martial may direct, which shall be consistent with the punishments prescribed by the President for that conduct had that injury or death occurred to the unborn child’s mother. (2) An offense under this section does not require proof that— (i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or (ii) the accused intended to cause the death of, or bodily injury to, the unborn child. (3) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall, instead of being punished under paragraph (1), be punished as provided under sections 880, 918, and 919(a) of this title (articles 80, 118, and 119(a)) for intentionally killing or attempting to kill a human being. (4) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section. (b) The provisions referred to in subsection (a) are sections 918, 919(a), 919(b)(2), 920(a), 922, 926, 928, and 928a of this title (articles 118, 119(a), 119(b)(2), 120(a), 122, 126, 128, and 128a). (c) Nothing in this section shall be construed to permit the prosecution—

(1) of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

(2) of any person for any medical treatment of the pregnant woman or her unborn child; or

(3) of any woman with respect to her unborn child. (d) In this section, the term “unborn child” means a child in utero, and the term “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

(b) Elements.

(1) Injuring an unborn child.

(a) That the accused was engaged in the [(murder (article 118)), (voluntary manslaughter (article 119(a))), (involuntary manslaughter (article 119(b)(2))), (rape (article 120(a))), (robbery (article 122)), (maiming (article 128a)), (assault (article 128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belonging to))] a woman;

(b) That the woman was then pregnant; and

(2) Killing an unborn child.

(b) That the woman was then pregnant; and

(3) Attempting to kill an unborn child.

(b) That the woman was then pregnant; and

(4) Intentionally killing an unborn child.

(b) That the woman was then pregnant; and

(1) Nature of offense. This article makes it a separate, punishable crime to cause the death of or bodily injury to an unborn child while engaged in arson (article 126, UCMJ); murder (article 118, UCMJ); voluntary manslaughter (article 119(a), UCMJ); involuntary manslaughter (article 119(b)(2), UCMJ); rape (article 120(a), UCMJ); robbery (article 122, UCMJ); maiming (article 128a, UCMJ); or assault (article 128, UCMJ) against a pregnant woman. For all underlying offenses, except arson, this article requires that the victim of the underlying offense be the pregnant mother. For purposes of arson, the pregnant mother must have some nexus to the arson such that she sustained some bodily injury due to the arson. For the purposes of this article the term “woman” means a female of any age. This article does not permit the prosecution of any—

(a) person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

(b) person for any medical treatment of the pregnant woman or her unborn child; or

(2) The offenses of injuring an unborn child and killing an unborn child do not require proof that —

(a) the accused had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or

(b) the accused intended to cause the death of, or bodily injury to, the unborn child.

(3) The offense of attempting to kill an unborn child requires that the accused intended by his conduct to cause the death of the unborn child ( see subparagraph b.(3)(c) of this paragraph).

(4) Bodily injury. For the purpose of this offense, the term “bodily injury” is that which is provided by section 1365 of title 18, to wit: 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.

(5) Unborn child. “Unborn child” means a child in utero or a member of the species homo sapiens who is carried in the womb, at any stage of development, from conception to birth.

(d) Maximum punishment. The maximum punishment for (1) Injuring an unborn child; (2) Killing an unborn child; (3) Attempting to kill an unborn child; or (4) Intentionally killing an unborn child is such punishment, other than death, as a court-martial may direct, but shall be consistent with the punishment had the bodily injury, death, attempt to kill, or intentional killing occurred to the unborn child’s mother. d. Sample specifications.

(1) Injuring an unborn child. In that _____________ (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdiction data, if required), on or about _________ 20 ____, cause bodily injury to the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

(2) Killing an unborn child. In that _____________ (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdiction data, if required), on or about _________ 20 ____, cause the death of the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

(3) Attempting to kill an unborn child. In that _____________ (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdiction data, if required), on or about _________ 20 ____, attempt to kill the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

(4) Intentionally killing an unborn child. In that _____________ (personal jurisdiction data), did (at/on board—location), (subject-matter jurisdiction data, if required), on or about _________ 20 ____, intentionally kill the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For this offense, the confinement category is dependent on the underlying offense.

Maximum punishment

Such punishment, other than death, as the court-martial may direct and consistent with the maximum punishment had the offense been committed upon the unborn child's mother.

Sample specification

In that __________(personal jurisdiction data), did (at/on board--location), (subject matter jurisdiction data, if required), on or about _________ 20___, cause bodily injury to the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

Elements

(1) That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault), of (state the name of the alleged pregnant woman)] [burning or setting afire, as arson, of (a dwelling inhabited by) (a structure or property known to be occupied by) (a structure or property belonging to)) (state the name of the alleged pregnant woman)];

(2) That (state the name of the alleged pregnant woman) was then pregnant; and

(3) That the accused thereby caused bodily injury to the unborn child of (state the name of the alleged pregnant woman).

Definitions & other instructions

A “pregnant woman” is a female of any age who is carrying within her body an unborn child.

The term ‘unborn child’ means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of development, from conception to birth.

For the purpose of this offense, the term “bodily injury” to the unborn child is 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.

NOTE 2. The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (i.e., murder, voluntary or involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, which was the proximate cause of the bodily injury to the unborn child. If the evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised accordingly (using the optional instruction below) and the Findings Worksheet must permit findings by exceptions and substitutions.

The accused may be found guilty of injuring an unborn child only if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the offense of (state the offense alleged), which has the following elements: (state here the elements of the underlying offense alleged).

Proof that the accused had an intent to injure the unborn child, or even had actual knowledge that (state the name of the alleged pregnant woman) was, at the time pregnant when the offense was committed, is not required.

(The government has charged that the accused injured the unborn child of (state the name of the alleged pregnant woman) while engaged in the offense of (state the offense alleged). If you are convinced beyond a reasonable doubt of all the elements of the charged offense, except that the accused was engaged in the offense of (state the offense alleged), you may still find the accused guilty, if you are convinced beyond a reasonable doubt that the accused injured the unborn child while engaged in the offense of (state the lesser included offense raised that is also an enumerated offense) a lesser included offense of (state the offense alleged). (State the lesser included enumerated offense raised) has the following elements: (state here the elements of the lesser included enumerated offense). In this event you must make appropriate findings by excepting the word(s)”(state the offense alleged)”and substituting the word(s)”(state the lesser included enumerated offense).”)

NOTE 3. Causation. When the issue of causation between the alleged enumerated offense and the bodily injury to the unborn child is an issue, give the following general instruction, followed by Instruction 5-5, tailored as appropriate.

The specification in this case alleges that the bodily injury to the unborn child occurred as a result of the accused committing the offense of (state the offense alleged). You may find the accused guilty of injuring the unborn child only if you find that the act(s) of the accused while engaging in that offense (or any lesser included offense as I have described for you) (was) (were) the proximate cause of the injury to the unborn child.

NOTE 4. Special defense. A special defense of consent to an abortion, or death/injury occurring in the course of medical treatment, may reasonably be raised. If applicable, the following instruction should be given.

(An accused may not be convicted of this offense for (his) (her) conduct relating to an abortion for which the consent of (state the name of the alleged pregnant woman), or a person authorized by law to act on her behalf, had been obtained or for which the law implies such consent.) ((Likewise,) An accused may not be convicted of this offense for (his) (her) conduct relating to any medical treatment of (state the name of the alleged pregnant woman) or her unborn child.) (You have heard evidence that (here the military judge may summarize evidence related to an abortion of the unborn child allegedly consented to by the pregnant woman or other authorized person acting on her behalf, or evidence related to medical treatment for the pregnant woman or the unborn child.)) Unless you are convinced beyond a reasonable doubt that the injury to the unborn child (did not result from an abortion consented to by (state the name of the pregnant woman) or by someone legally authorized to act on her behalf,) ((and) did not result from the accused’s conduct in the course of any medical treatment of (state the name of the alleged pregnant woman) (or) (the unborn child), you may not convict the accused of this offense.)

Source: Instruction 3a-58-1 · view original on jagcnet.army.mil

Maximum punishment

Such punishment, other than death, as the court-martial may direct and consistent with the maximum punishment had the offense been committed upon the unborn child's mother.

Sample specification

In that __________(personal jurisdiction data), did (at/on board--location), (subject matter jurisdiction data, if required), on or about _________ 20___, cause the death of the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

Elements

(1) That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault), of (state name of the alleged pregnant woman)] [burning or setting afire, as arson, of (a dwelling inhabited by) (a structure or property known to be occupied by) (a structure or property belonging to) (state the name of the alleged pregnant woman)];

(2) That (state the name of the alleged pregnant woman) was then pregnant; and

(3) That the accused thereby caused the death of the unborn child of (state the name of the alleged pregnant woman).

Definitions & other instructions

A “pregnant woman” is a female of any age who is carrying within her body an unborn child.

The term “unborn child” means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of development, from conception to birth.

NOTE 2. The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (i.e., murder, voluntary or involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, which was the proximate cause of the death of the unborn child. If the evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised accordingly (using the optional instruction below) and the Findings Worksheet must permit findings by exceptions and substitutions.

The accused may be found guilty of killing an unborn child only if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the offense of (state the offense alleged), which has the following elements: (state here the elements of the underlying offense alleged).

Proof that the accused had an intent to injure or kill the unborn child, or even had actual knowledge that (state the name of the alleged pregnant woman) was pregnant at the time the offense was committed, is not required.

(The government has charged that the accused killed the unborn child of (state the name of the alleged pregnant woman) while engaged in the offense of (state the offense alleged). If you are convinced beyond a reasonable doubt of all the elements of the charged offense, except that the accused was engaged in the offense of (state the offense alleged), you may still find the accused guilty, if you are convinced beyond a reasonable doubt that the accused killed the unborn child while engaged in the offense of (state the lesser included offense raised that is also an enumerated offense) a lesser included offense of (state the offense alleged). (State the lesser included enumerated offense raised) has the following elements: (state here the elements of the lesser included enumerated offense). In this event you must make appropriate findings by excepting the word(s) “(state the offense alleged)” and substituting the word(s) “(state the lesser included enumerated offense).”)

NOTE 3. Causation. When the issue of causation between the alleged enumerated offense and death of the unborn child is an issue, give the following general instruction, followed by Instruction 5-5, tailored as appropriate.

The specification in this case alleges that the death of the unborn child occurred as a result of the accused committing the offense of (state the offense alleged). You may find the accused guilty of killing the unborn child only if you find that the acts of the accused while engaging in that offense (or any lesser included offense as I have described for you) were the proximate cause of the death of the unborn child.

(An accused may not be convicted of this offense for (his) (her) conduct relating to an abortion for which the consent of (state the name of the alleged pregnant woman), or a person authorized by law to act on her behalf, had been obtained or for which the law implies such consent.) ((Likewise,) An accused may not be convicted of this offense for (his) (her) conduct relating to any medical treatment of (state the name of the alleged pregnant woman) or her unborn child.) (You have heard evidence that (here the military judge may summarize evidence related to an abortion of the unborn child allegedly consented to by the pregnant woman or other authorized person acting on her behalf, or evidence related to medical treatment for the pregnant woman or the unborn child.)) Unless you are convinced beyond a reasonable doubt that the death of the unborn child (did not result from a lawful abortion consented to by (state the name of the alleged pregnant woman) or by someone legally authorized to act on her behalf, ((and) did not result from the accused’s conduct in the course of any medical treatment of (state the name of the alleged pregnant woman) (or) (the unborn child), you may not convict the accused of this offense.)

Source: Instruction 3a-58-2 · view original on jagcnet.army.mil

Maximum punishment

Such punishment, other than death, as the court-martial may direct and consistent with the maximum punishment had the offense been committed upon the unborn child's mother.

Sample specification

In that __________(personal jurisdiction data), did (at/on board--location), (subject matter jurisdiction data, if required), on or about _________ 20___, attempt to kill the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

Elements

(1) That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of (state the name of the alleged pregnant woman)] [burning or setting afire, as arson of (a dwelling inhabited by) (a structure or property known to be occupied by) (a structure or property belonging to) (state the name of the alleged pregnant woman)];

(2) That (state the name of the alleged pregnant woman) was then pregnant;

(3) That the accused thereby intended and attempted to kill the unborn child of (state the name of the alleged pregnant woman);

(4) That such act(s) amounted to more than mere preparation, that is, (it was a) (they were) substantial step(s) and a direct movement toward the unlawful killing of the unborn child; and

(5) That such act(s) apparently tended to bring about the intentional killing of the unborn child; that is, the act(s) apparently would have resulted in the intended death of the unborn child except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented the killing of the unborn child.

Definitions & other instructions

The killing of an unborn child is unlawful when done without legal justification or excuse.

“Pregnant woman” is a female of any age who is carrying within her body an unborn child.

The term “unborn child” means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of development, from conception to birth.

Preparation consists of devising or arranging the means or measures necessary for the killing of the unborn child. To find the accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward killing the unborn child. A substantial step is one that is strongly corroborative of the accused’s criminal intent and is indicative of (his) (her) resolve to unlawfully kill the unborn child.

Proof that the unborn child was actually killed is not required. However, it must be proved beyond a reasonable doubt that the accused specifically intended to kill the unborn child of (state the name of the alleged pregnant woman) without legal justification or excuse.

The intent to kill does not have to exist for any measurable or particular length of time before the act(s) of the accused that constitute(s) the attempt. However, the intent to kill must exist at the time of the act(s) that constitute(s) the attempt.

The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, you may infer that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death, it may be inferred that (he) (she) intended to inflict death. The drawing of this inference, however, is not required.

NOTE 2. The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (i.e., murder, voluntary or involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, thereby attempting to kill the unborn child. If the evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised accordingly (using the optional instruction below) and the Findings Worksheet must permit findings by exceptions and substitutions.

The accused may be found guilty of attempting to kill an unborn child only if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the offense of (state the offense alleged), which has the following elements: (state here the elements of the underlying offense alleged).

(The government has charged that the accused attempted to kill the unborn child of (state the name of the alleged pregnant woman) while engaged in the offense of (state the offense alleged). If you are convinced beyond a reasonable doubt of all the elements of the charged offense, except that the accused was engaged in the offense of (state the offense alleged), you may still find the accused guilty, if you are convinced beyond a reasonable doubt that the accused attempted to kill the unborn child while engaged in the offense of (state the lesser included offense raised that is also an enumerated offense) a lesser included offense of (state the offense alleged). (State the lesser included enumerated offense raised) has the following elements: (state here the elements of the lesser included enumerated offense). In this event you must make appropriate findings by excepting the word(s) “(state the offense alleged)” and substituting the word(s) “(state the lesser included enumerated offense).”)

NOTE 3. Special defense. A special defense of consent to an abortion, or death/injury occurring in the course of medical treatment, may reasonably be raised. If applicable, the following instruction should be given.

(An accused may not be convicted of this offense for (his) (her) conduct relating to an abortion for which the consent of (state the name of the alleged pregnant woman), or a person authorized by law to act on her behalf, had been obtained or for which such consent is implied by law.) ((Likewise,) An accused may not be convicted of this offense for (his) (her) conduct relating to any medical treatment of (state the name of the alleged pregnant woman) or her unborn child.) (You have heard evidence that (here the military judge may summarize evidence related to an abortion of the unborn child allegedly consented to by the pregnant woman or other authorized person acting on her behalf, or evidence related to medical treatment for the pregnant woman or the unborn child.)) Unless you are convinced beyond a reasonable doubt that the attempted killing of the unborn child (did not result from an abortion consented to by (state the name of the alleged pregnant woman) or by someone legally authorized to act on her behalf,) ((and) did not result from the accused’s conduct in the course of any medical treatment of (state the name of the alleged pregnant woman) (or) the unborn child), you may not convict the accused of this offense.)

NOTE 4. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable.

Source: Instruction 3a-58-3 · view original on jagcnet.army.mil

Maximum punishment

Such punishment, other than death, as the court-martial may direct and consistent with the maximum punishment had the offense been committed upon the unborn child's mother.

Sample specification

In that __________(personal jurisdiction data), did (at/on board--location), (subject matter jurisdiction data, if required), on or about _________ 20___, intentionally kill the unborn child of a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.

Elements

(1) That (state the time and place alleged), the accused was engaged in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of (state the name of the alleged pregnant woman)] [burning or setting afire, as arson, of (a dwelling inhabited by) (a structure or property known to be occupied by) (a structure or property belonging to) (state the name of the alleged pregnant woman)];

(2) That (state the name of the alleged pregnant woman) was then pregnant; and

(3) That the accused thereby intentionally killed the unborn child of (state the name of the alleged pregnant woman).

Definitions & other instructions

The killing of an unborn child is unlawful when done without legal justification or excuse.

“Pregnant woman” is a female of any age who is carrying within her body an unborn child.

The term “unborn child” means a child in utero (or a member of the species Homo Sapiens who is carried in the womb), at any stage of development, from conception to birth.

An “intentional” killing means the accused specifically intended the death of the unborn child. The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, you may infer that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death, it may be inferred that (he) (she) intended to inflict death. The drawing of this inference, however, is not required.

NOTE 2. The members must be instructed on the elements of the alleged enumerated offense listed in Article 119a(b) (i.e., murder, voluntary manslaughter, involuntary manslaughter, rape, robbery, maiming, assault, or arson) the accused was engaged in, which was the proximate cause of the death of the unborn child. If the evidence of the alleged enumerated offense also raises a lesser included enumerated offense, the panel must also be advised accordingly (using the optional instruction below) and the Findings Worksheet must permit findings by exceptions and substitutions.

The accused may be found guilty of killing an unborn child if, in addition to all the other elements of the offense, you are convinced beyond a reasonable doubt that the accused engaged in the alleged offense of (state the offense alleged), which has the following elements: (state the elements of the enumerated offense alleged).

(The government has charged that the accused intentionally killed the unborn child of (state the name of the alleged pregnant woman) while engaged in the offense of (state the offense alleged). If you are convinced beyond a reasonable doubt of all the elements of the charged offense, except that the accused was engaged in the offense of (state the offense alleged), you may still find the accused guilty, if you are convinced beyond a reasonable doubt that the accused intentionally killed the unborn child while engaged in the offense of (state the lesser included offense raised that is also an enumerated offense) a lesser included offense of (state the offense alleged). (State the lesser included enumerated offense raised) has the following elements: (state here the elements of the lesser included enumerated offense). In this event you must make appropriate findings by excepting the word(s) “(state the offense alleged)” and substituting the word(s) “(state the lesser included enumerated offense).”)

(An accused may not be convicted of this offense for (his) (her) conduct relating to an abortion for which the consent of (state the name of the alleged pregnant woman), or a person authorized by law to act on her behalf, had been obtained or for which such consent is implied by law.) ((Likewise,) an accused may not be convicted of this offense for (his) (her) conduct relating to any medical treatment of (state the name of the alleged pregnant woman) or her unborn child.) (You have heard evidence that (here the military judge may summarize evidence related to an abortion of the unborn child allegedly consented to by the pregnant woman or other authorized person acting on her behalf, or evidence related to medical treatment for the pregnant woman or the unborn child.)) Unless you are convinced beyond a reasonable doubt that the death of the unborn child (did not result from an abortion consented to by (state the name of the alleged pregnant woman) or by someone legally authorized to act on her behalf,) ((and) did not result from the accused’s conduct in the course of any medical treatment of (state the name of the alleged pregnant woman) (or) the unborn child), you may not convict the accused of this offense.)

NOTE 4. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), will ordinarily be applicable.

Source: Instruction 3a-58-4 · view original on jagcnet.army.mil