Criminal Law

Raised Voices: The Unborn Victims of Violence Act

The senseless violence of the shooting at the Fort Hood Army Base left people wondering how this tragedy could have happened, not on the battlefields but on the base which is home to many soldiers and their families.

U.S. Army Private Francheska Velez had just been transferred from Iraq to Ft. Hood after learning that she was pregnant with her first child. Sadly, she and her unborn baby were killed in the shooting rampage that rocked the country.

Some are looking to the controversial federal law, passed in 2004, known as "The Unborn Victims of Violence Act". This created a separate offense for harming or killing an unborn child during certain violent crimes.

Mothers and Babies Protected

The Unborn Victims of Violence Act created a separate federal crime for harming or killing an unborn child when certain violent crimes are committed. This could include drive-by shootings connected with a major drug offense. There isn’t a requirement that the person committing the crime has to know of the pregnancy.  

The Act was added to the federal statutes now known as the "U.S. Code" and the Uniform Code of Military Justice", and is set forth in a separate section for "the protection of unborn children".

Interest in the law was renewed in the Fort Hood shootings. Under this law, the murder suspect could be charged with the murder of the 13 adult victims and a 14th victim, Pvt. Velez's unborn child. The Army hasn’t successfully prosecuted the death of a fetus under the new law. However, a member of the Air Force convicted an airman who attempted to kill an unborn child when he poisoned his wife to force a miscarriage.  

Separate Charges for the Death of a Fetus

More than 25 states have laws allow that the killing of a fetus or unborn child is a crime. Each state varies as to how far along the fetus is when this Act applies.

Controversy continues about whether such state laws, and the federal law, could be interpreted as impacting abortions. Many of these state laws have been challenged by individual defendants on the grounds of Equal Protection or vagueness. It’s likely the federal courts will be asked to consider the constitutionality of this new law under these standards.

"Statute of Limitations" Apply

All criminal offenses are subject to specific time deadlines, known as "statutes of limitations" when a complaint must be filed. The length of time varies greatly by state and federal law and by offense or type of case. Consult with an attorney licensed in the state where the injury occurred for specific information about such deadlines.

If you or someone you know has been the victim of a crime, including harm to or the death of a fetus, an attorney will likely urge you to file a report with the police or to the local prosecutor's office. They’ll make a decision whether the deadline for criminal charges has passed, and whether the evidence justifies criminal prosecution.

An attorney can also assess whether it’s possible to file a civil suit, which is separate from any criminal proceedings. There are many factors including the strength of the evidence, the likelihood of a guilty verdict, and the likelihood of collecting a judgment that affect the outcome.

Question for Your Attorney

  • Does my case fall under the Unborn Victims of Violence Act?
  • In addition to the Unborn Victims of Violence Act, are there any state laws that protect a unborn child?
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