The charges facing Staff Sgt. Robert Bales, the alleged mass murderer, have been confusing from the start, with reports alternately citing 16 and 17 victims.
This morning, the New York Times offered a possible explanation, from Kandahar police chief Brig. Gen. Abdul Raziq: “The Americans are right and one of the females was pregnant, which is why they are saying 17."
Killing an unborn fetus is illegal under Uniform Code of Military Justice Section 919a, which was enacted in 2004 along with a federal law called the Unborn Victims of Violence Act, also called Laci and Conner's Law. The law states that anyone who, as part of a violent crime, "causes the death of, or bodily injury [...] to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense." The law gained traction after Scott Peterson's murder of his pregnant wife, Laci. When he signed the bill, President Bush said, "All who knew Laci Peterson have mourned two deaths and the law cannot look away and pretend there was just one." Thirty-six states also treat the killing of a fetus as a separate crime in at least some cases.
Prosecutions under 919a aren't common, but they aren't unheard of.
Prof. Victor Hansen of New England Law School, in Boston, told BuzzFeed that before even 2004 addition, there had been prosecutions under a section of the military code that allows state and federal law to be incorporated into military prosecutions."
"While this is not a frequently charged offense, SSG Bales would not be the first," he said.
The UVVA is rooted, in part, in the anti-abortion campaigns to define fetuses as people, and so abortion rights advocates have opposed the measure.
At the time, Vicki Saporta of the National Abortion Federation said it would threaten abortion rights by defining the fetus as a person: "The bill President Bush has signed into law today is yet another example of the misleading tactics that opponents of a woman's right to choose are willing to employ."
And Atlee Breland of Parents Against Personhood told BuzzFeed she had concerns about state laws that make killing a fetus a separate offense: "While the proponents of such laws are well-meaning, there is concern about how [they] might be interpreted to create legal precedents for personhood. For example, a concurring opinion in a recent Alabama Supreme Court wrongful-death case very explicitly linked embryonic personhood to wrongful-death lawsuits." Pro-choice advocates argue that granting the fetus personhood status could not only challenge Roe v. Wade, but might also criminalize some forms of birth control.
Bales may not end up being charged under UCMJ 919a.
NATO spokesman Lt. Col. Jimmie E. Cummings Jr. now says a fetus wasn't among the dead: “Our investigators on the ground found enough evidence for charges in 17 cases. There were no wounded who died, and no fetus.” But his case is a reminder that how to prosecute the murder of pregnant women is a vexed issue, and will likely remain one for a long time to come.
Update: Keith Mason, President of Personhood USA, sent BuzzFeed this statement:
The death of any child is a tragedy, no matter the circumstances. Of course the murderer in this case in Afghanistan is guilty of murdering a 17th victim, if it is in fact true that one of the women killed was pregnant.
No matter the circumstances - whether it be the brutal murder of a wanted child across the world, or the brutal murder of a so-called 'unwanted' child in an American abortion clinic, there is no justification for the killing of any innocent person. Personhood USA grieves with the families of the Afghanistan victims, and continues to grieve for the thousands of innocent babies who are killed daily in the United States.
While those who profit from abortion are very vocal in their protest of laws that recognize the value of human life, such as the Unborn Victims of Violence Act, our position is that these laws make the hypocrisy of the United States glaringly obvious. It should not matter whether a child is intentionally killed by an abortionist, or intentionally killed by a gunman - both children are unique individual persons with a right to life. 'Wanted' or 'unwanted', born or pre-born, all babies in the womb deserve legal protection and recognition.