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Preferral of Charges Against Hasan Need Not and Should Not Preclude Charge for Killing Baby Velez

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.