Naval Law Review KILL AN UNBORN CHILD -- GO TO JAIL: THE UNBORN VICTIMS OF VIOLENCE ACT OF 2004 AND MILITARY JUSTICE Joseph L. Falvey, Jr.* I. Introduction Historically, the military justice system has had no specific criminal sanctions for persons who harm or kill an unborn child and military prosecutors could seek no additional criminal penalties other than those associated with the person of the mother. This apparent anomaly results from the military court’s historic adherence to the common law “born alive rule.” The born alive rule provides that no one can be prosecuted for injuring or killing an unborn child unless it is born alive. [his common law rule was based in part upon the medical opinion that the cause of death or injury to an unborn child could not be known with certainty, and also upon the complementary legal principle that doubt must be resolved in favor of the defendant in a criminal case. Today’s medical technology permits physicians to determine, with a very high degree of medical certainty, an unborn child’s cause of death. Accordingly, a majority of states have now enacted legislation curbing or abolishing the born alive rule, and thus they have allowed prosecution of crimes of violence harming or killing an unborn child. Federal courts, including military courts, however, appeared unlikely to eliminate this gap in criminal law. In March 2004, Congress adopted the Unborn Victims of Violence Act.' President George W. Bush signed it into law on April 1, 2004. * Professor of Law at Ave Maria School of Law, Ann Arbor, Michigan. B.A., University of Notre Dame; J.D., Notre Dame Law School; LL.M., The Judge Advocate General's School of the Army. Professor Falvey is also a Colonel in the U.S. Marine Corps Reserve and serves as an Appellate Judge on the U.S. Navy-Marine Corps Court of Criminal Appeals. The author is indebted to Geoff O’Brien and Michael Thiefels for their research assistance on this paper. ' The bill passed the House by a vote of 254-163 on February 26. “House Passes Unborn Victims Bill,” February 26, 2004, http://www.foxnews.com/story/0,2933,112579,00.html. It passed the Senate by a vote of 61-38 on March 25. “Bill criminalizes violent harm to fetus,” March 25, 2004, http://www.msnbe.msn.com/id/4600845/. The Unborn Victims of Violence Act of 2004, Pub. L. No. 108-212, 118 Stat. 568 (codified as amended at 18 U.S.C. § 1841 and 10 U.S.C. § 919a (2004)). Previous versions of this legislation had passed the House, but were not acted on in the Senate. 2006 The Unborn Victims of Violence Act Substantially the same as previously introduced bills,’ the 2004 bill recognizes as potential criminal victims all unborn children injured or killed during the commission of specified federal crimes.* This legislation survived numerous attempts in the Senate to prevent its passage, including a substitute amendment proposed by Senator Diane Feinstein that was defeated by only one vote.” During the signing ceremony, President Bush remarked that, “[until] today, the federal criminal code had been silent on the injury or death of a child in cases of violence against a pregnant woman. . . . The swift bipartisan passage of this bill through Congress this year indicates a strong consensus that the suffering of two victims can never equal only one offense.” This article will: 1) examine the history of prenatal criminal law, including its history in military law; 2) review the effect of the Unborn Victims of Violence Act of 2004 on military law; 3) examine the constitutionality of the Act; and 4) discuss the policy considerations underlying its enactment. Il. THE HISTORY OF PRENATAL CRIMINAL STANDARDS The origin of the common law born alive rule, its development in state courts, and the current trend of state legislation in regards to fetal crime are all important aspects behind the adoption of the Unborn Victims of Violence Act. “Unbom Victims’ bill passed by House,” February 26, 2004, http://www.msnbc.msn.com/id/4387085. * Press Release, White House, President Bush Signs Unborn Victims of Violence Act of 2004, (April 1, 2004), available at http://www.whitehouse.gov/news/releases/2004/04/2004040 1- 3.html. * Before the final vote in the House, a number of amendments were incorporated into it: the captions were revised (see infra note 74); the definition of unborm child was reworded; under the Uniform Code of Military Justice (UCMJ), Article 111 was removed from the list of underlying offenses that justified punishment for the death or injury of an unborn child (see infra note 78); there were technical changes to the Military law's punishment provision (see infra note 79); the section that excluded prosecution for particular conduct, such as for abortions, dropped language limiting the scope of consent to abortion (see infra note 87); and there were other minor changes to the statute’s language. However, the intention and the effect of the statute did not change as a result of the amendments. Compare S. 1019, 108th Congr. (2003) as introduced in the Senate on May 7, 2003 to H.R. 1997 108th Congr. (2004), as placed on the calendar in the Senate on February 26, 2004, available at http://thomas.loc.gov, S 1019 and HR 1997, respectively. * White House Press Release, supra note 2. * The “Motherhood Protection Act” was proposed on the Senate floor on the day of the final bill’s passage. It proposed to create an additional or increased penalty for acts “caus[ing] the termination of a pregnancy or the interruption of the normal course of pregnancy.” The underlying federal offenses which would make such additional or increased penalties applicable would have been the same as those enumerated in the Unborn Victims of Violence Act. 150 CONG. REC. $3124, 3125-29 (daily ed. Mar. 25, 2004) (statement of Sen. Feinstein). * White House Press Release, supra note 2. Naval Law Review To better understand the new legislation, an examination of the history of prenatal criminal law is necessary. A. The Born Alive Rule The “born alive rule” is a common law rule that asserts that only those children who are “born alive” are afforded the protections of the criminal law.’ The rule can be traced back to 17" century English law, and perhaps further. In his Commentaries on the Laws of England, Sir William Blackstone paraphrased Sir-Edward Coke’s Third Institutes,” stating: To kill a child in its mothers womb, is now no murder, but a great misprison: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the greater opinion, to be murder in such as administered or gave them.” The rule as stated at the time of Coke appears to have been a reversal of earlier practice.'” Contrary to Blackstone and Coke,'' Henry Bracton wrote 400 years earlier that “if there be some one, who has struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.”'* sol2 Fleta, another writer contemporaneous with Bracton’’ agreed that a child injured in utero need not be born alive for the killing to constitute a homicide. The born alive rule resulted from the evidentiary and medical challenges of the 17" and 18" centuries in determining the actual time and cause of death of an unborn child.'* The primitive medical knowledge and technology ’ Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U. L. REV. 563, 563 (1987). * LorD CHIEF JUSTICE EDWARD COKE, 3 INSTITUTES 50 (1644). * SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWSO F ENGLAND, Book IV, 192 (Oxford: The Clarendon Press, 1765-1769) (reprinted by William S. Hein & Co., Inc., Buffalo, 1992). The “born alive” rule was initially adopted by American courts citing Sim's Case, (75 Eng. Rep. 1075 (K.B. 1601). Forsythe, supra note 7, at 584, citing Sim's Case, 75 Eng. Rep. at 1075; see also Vo v. Superior Court, 836 P.2d 408, 414. " See James Clark, State v. Ard: Statutory Aggravating Circumstances and the Emergence of Fetal Personhood in South Carolina, 50 S.C. L. REV. 887, 889 (1999) (citing State v. Cooper, 22 NJ.L 52, 54 (1849)). "Id. '? HENRICUS DE BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE, THE SECOND TREATISE OF THE THIRD BOOK, “CONCERNING THE CROWN,” 279 (Buffalo: William S. Hein & Co., Ink., 1990). '* Forsythe, supra note 7, at 581. '$ Id. at 585. 2006 The Unborn Victims of Violence Act of the period made any knowledge of the health or condition of an unborn child uncertain.’ Accordingly, the battery of an expectant mother could not then be proven to be the proximate cause of the death of her unborn child.'® Furthermore, the born alive rule protected against false accusations when stillborn deliveries, from various causes, were much more common.'” Thus, most commentators conclude that the born alive rule resulted from problems of proof, and not from any moral or philosophical determination of personhood.'* Although a majority of states have now abrogated the common law rule, approximately fifteen states still follow it, or some minor variation of it. '” In federal actions for crimes against an expectant mother in which the death of her unborn child resulted, the “born alive” rule was the standard for imposing additional punishment on the perpetrator.” In the only published case in which the rule was applied to a federal crime, United States v. Spencer," the United States Court of Appeals for the Ninth Circuit affirmed a murder conviction under 18 U.S.C. § 1111 for fetal infanticide.” In Spencer, injuries inflicted upon a pregnant woman resulted in the death of her baby ten minutes after the baby’s emergency Cesarean birth.” Under 18 U.S.C. § 1111, however, murder is “the unlawful killing of a human being with malice aforethought.””* As such, the issue was whether this child was a “human being” within the meaning of the statute. In concluding that the child was a human being under the statute, the court stated that in such situations, since at least 1908, the common law “born alive” rule applied.”* 'S Id. at $75. © Id. at 582 (citing 16" century writer William Staunford). "7 Id. at 576 (quoting A. TAYLOR, MEDICAL JURISPRUDENCE 530 (7" ed. 1861) (“The onus of proof is thereby thrown on the prosecution; and no evidence imputing murder can be received, unless it be made certain by medical or other facts, that the child survived its birth and was actually living when the violence was offered it.”)). See also REESE'S TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY 195 (D.J. McCarthy, 8" ed. 1911). '* Forsythe, supra note 7, at 590. '? See Colleen Jolicoeur-Wonnacott, The Unborn Victims of Violence Act: Friend or Foe to the Unborn?, 17 T.M. COOLEY L. REV. 563, 575 (citing generally National Right to Life Committee Federal Legislative Office, http://www.nrlc.org/Unborn_Victims/index.html (last updated June 23, 2003) [hereinafter NRLC]). Some changes in state laws have been made since Ms. Jolicoeur- Wonnacott’s article was written in 2000, and those changes are incorporated herein. Not included in the number of states following the “born alive” rule is Texas, whose legislature passed in both houses a Pre-Natal Protection Act on June 2, 2003. The bill took effect on September 1, 2003, and protects the unborn from conception to birth. See Texas Legislature Online, 78" Regular Session (2003), Bill SB 319, http://www.capitol.state.tx.us/tlo/legislation/bill_status.htm. *° Michael J Davidson, Fetal Crime and Its Cognizability as a Criminal Offense Under Military Law, 1998 ARMY LAw. 23, 27 (citing United States v. Spencer, 839 F.2d 1341 (9" Cir. 1988)). *! United States v. Spencer, 839 F.2d 1341 (9th Cir. 1988). Davidson, supra note 20, at 27. °° Spencer, 839 F.2d at 1342. * 18 U.S.C. § 1111(a) (1994). *5 Spencer, 839 F.2d at 1343. Naval Law Review B. Quickening As an alternative to the born alive rule, some jurisdictions advanced the notion that an unborn child is afforded the protection of the criminal law at “quickening.” Quickening has been generally defined as “the first recognizable movements of the fetus, appearing usually from the sixteenth to eighteenth week of pregnancy.” Until the early 20" century, it was the most certain method of determining whether or not a woman was pregnant.”’ Because it was the only sure proof that a woman was pregnant, some jurisdictions adopted quickening as the point when an unborn child was a human being under the law.”* Early courts then used quickening as an evidentiary standard for determining if violations of abortion statutes had occurred, while granting that some form of embryonic or “unanimated” life may have existed before quickening.” Lesser punishments were often assigned to abortions of pre-quickened unborn children.*” The term “quickening” lost significance in the medical profession as science advanced during the late 19" century.*' According to one authority who denounced the continued use of quickening by the law: “[t]he foetus is certainly, if we speak physiologically, as much a living being immediately after conception, as at any other time before delivery; and its future progress is but the development and increase of those constituent principles which it then received. o32 Modern sonography established that fetal movements take place nearly two months before quickening.” In some jurisdictions, however, the law held to the distinction. Currently, there are seven states with statutes criminalizing the killing of an unborn child after it has quickened.** ** Forsythe, supra note 7, at 567 (citing DORLAND’S ILLUST. MED. Dict. 1105 (26" ed. 1985)); Roe v. Wade, 410 U.S. 113, 132 (1973). *7 Id. at 571 (citing SAMUEL FARR, ELEMENTS OF MEDICAL JURISPRUDENCE 4 (1787), reprinted in T. COOPER, TRACTSO N MEDICAL JURISPRUDENCE (1819)). ** Id. at 573 (citing Evans v. People, 49 N.Y. 86 (1872) (appellant’s manslaughter charge for causing a miscarriage in violation of abortion statute reversed since woman had not yet experienced quickening, stating “there must be a living child before its death can be produced”)). » Evans v. People, 49 N.Y. 86, 89-90 (1872); See also Roe,, 410 U.S. at 133-34; Forsythe, supra note 7, at 591. * Roe, 410 U.S. at 139. *! Forsythe, supra note 7, at 574 (citing J. BECK, 1 ELEMENTSO F MEDICAL JURISPRUDENCE 276 (11" ed. 1860); and 3 WHARTON & STILLE’S, MEDICAL JURISPRUDENCE 7 (5" ed. 1905)). * Forsythe, supra note 7, at 574. * Id. at 578 (citing J. PRITCHARD, P. MACDONALD, & N. GANT, WILLIAMS OBSTETRICS 279 (17" ed. 1985)). * NRLC, supra note 19. 2006 The Unborn Victims of Violence Act C. Viability In addition to the born-alive rule and quickening, some jurisdictions have determined that the unborn child is afforded the protections of the law at “viability.” The term “viable” is generally understood to mean, “the physical maturation or physiological capability of the fetus to live outside the womb.” Although viability can vary in different circumstances, it is usually obtained between the 24" and 28" week of pregnancy.*° The first court to include viable unborn children in the statutory meaning of “person” for the purpose of criminal law was the Supreme Court of Massachusetts in Commonwealth v. Cass.*” In that case, the court discarded the “ancient” common law born alive rule and held that the “infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide.”** The court based its decision on medical advances which render the cause of death of the unborn more easily determinable.” Similarly, in State v. Horne,*° the Supreme Court of South Carolina used viability as a factor in determining criminal culpability. The court held that from that day forward, “the killing of a viable human being in utero could constitute a criminal homicide.”*' Regarding the issue of mens rea, although the accused only intended to kill his wife, the intent was “transferred” to the actual victim, their viable unborn child.” Two states have passed statutes criminalizing violence on unborn children after viability.’ In Tennessee, the killing of an unborn child after viability is treated much like any other homicide.** The Michigan Supreme ** Forsythe, supra note 7, at 569 (citing DORLAND’S ILLUST. MED. DICT. 1455 (26" ed. 1985)). © Id. * Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984). See also Forsythe, supra note 7, at 579 (noting viability “played no part in the development of the common law concerning the unborn child”)). ** Cass, 467 N.E.2d at 1329. The defendant in Cass was found guilty of violating the motor vehicle homicide statute, but his punishment was abated due to the unforseeability of the decision. /d. at 1330. Five years later, the court applied their ruling in Cass to common law murder. See Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989). * Cass, 467 N.E.2d at 1328. The court noted that they had already deemed out-dated the common law “year and a day” rule due to medical advances (citing Commonwealth v. Lewis, 409 N.E.2d 771 (Mass. 1980)). /d. * State v. Horne, 319 S.E.2d 703 (S. Car. 1984). *" Id. at 704. 4. ** NRLC, supra note 19. * Id. (citing Tenn. Code Ann. §§ 39-13-201, 39-13-202, 39-13-210, 39-13-211, 39-13-213, 39-13- 214, 39-13-215 (1997 & Supp. 1998)). Naval Law Review Court interpreted a Michigan statute criminalizing the killing of an “unborn quick child” as manslaughter* to include only viable unborn children.*° D. State Law Trends The current trend in state legislatures and state courts reflects growing dissatisfaction with the common law born alive rule. Although repeatedly challenged, nearly all courts have upheld the common law rule, indicating that, although the rule was anachronistic, the respective legislatures had the duty to enact changes to existing criminal law.*’ Courts recognized that modern medical technology had removed the obstacle of proving the causation element when the victim of an alleged crime was in utero. However, many of these same courts disfavored changing the common law rule, as such a change would seem to create new crimes, traditionally the province of state legislatures.** Consequently, a majority (thirty-five) of the state legislatures *S Mich. Stat. Ann. § 28.555. * Larkin v. Wayne, 208 N.W.2d 176, 180 (Mich. 1973) (citing Roe v. Wade, 410 U.S. 113, 163-64 (1973)). Subsequently, the Michigan legislature adopted a prenatal protection act that criminalizes injury or death of an unborn child. Mich. Stat. Ann. § 750.323 (2004). *” Jolicoeur-Wonnacott, supra note 19, at 573 (citing State v. Holcomb, 956 S.W.2d 286, 291 (Mo. Ct. App. 1997) (citing State v. Beale, 376 S.E.2d 1 (N.C. 1989)). But see Meadows v. State, 722 S.W.2d 584 (Ark. 1987); State v. Green, 781 P.2d 678 (Kan. 1989). * See, e.g.,.Meadows v. State, 772 S.W.2d 584 (Ark. 1987); State v. Trudell, 755 P.2d 511 (Kan. 1988); People v. Guthrie, 293 N.W.2d 775 (Mich. Ct. App. 1980); State v. Soto, 378 N.W.2d 625 (Minn. 1985); People v. Vercelletto, 514 N.Y.S.2d 177 (County Ct. 1987); and Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001). Some of these decisions (and others like them) provoked legislation effectively circumventing the common law rule. For a collection of case summaries, see Alan S. Wasserstrom, Homicide Based on Killing of Unborn Child, 64 A.L.R.S" 671. The Unborn Victims of Violence Act have now enacted the necessary changes to their criminal codes to circumvent the old rule and criminalize crimes against unborn children.” II. MILITARY LAW BACKGROUND Traditionally, as in civilian courts, military courts have followed the common law born alive rule.’ The earliest military-specific reference to the rule dates to Colonel Winthrop, who wrote that murder under the common law required that “the person assailed must be a living being (not an unbom child).”*' In 1951, Congress enacted the Uniform Code of Military Justice (UCMJ), codifying for the military many criminal offenses, including homicide.” However, Articles 118 [homicide] and 119 [manslaughter] of the UCMS failed to define “human being” in their prohibitions against murder and manslaughter. Consequently, military courts looked to the common law for clarification.’ In this regard, military courts have consistently upheld the traditional common law approach that has required a child to be born alive in order to be considered a human being and a cognizable victim of a crime. However, even though the common law has prevailed, the military courts have indicated a willingness to reconsider, like civilian courts, the formulation of the born alive rule. A. The Born Alive Rule in Military Law The common law born alive rule used by military courts was first developed in the 1954 case of United States v. Gibson. In Gibson. an Air Force nurse was convicted of unpremeditated murder when she strangled her baby immediately after the child’s birth.°° On review of her conviction, the ** NRLC, supra note 19. * See Davidson, supra note 20, at 28-30; United States v. Nelson, 53 M.J. 319, 321 (2000). *' Davidson, supra note 20, at 23, 29 (quoting COLONEL WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS (1898)). The Court of Appeals for the Armed Forces relied upon this quote from Winthrop in deciding its two cases that directly addressed the born alive rule. See United States v. Robbins, 52 M.J. 159, 163 (C.A.A.F. 1999); United States v. Nelson, 53 M.J. 319, 321 (C.A.A.F. 2000). * Davidson, supra note 20, at 29. ** Jd. at 29-30. Davidson’s article traces the common law origins of the military homicide laws -- Articles 118, 119, and 134 of the UCMJ. By comparison to state common law trends recognizing the common law’s born alive rule, a compelling argument exists for military courts to reject this antiquated legal maxim and bring viable fetuses within the ambit of theU CMJ’s homicide articles.” Id. at 38. ** United States v. Gibson, 17 C.M.R. 911 (U.S.A.F.B.R. 1954). ** Jd. at 919. Gibson was a First Lieutenant at an Air Force Hospital in Alaska. She had kept her pregnancy a secret before the birth of her child at her Bachelor Officer’s Quarters. Shortly thereafter Naval Law Review appellant challenged the legal sufficiency of the verdict. The court upheld the conviction, relying on the modern common law “separate existence” test of People v. Hayner. *° Hayner, a New York case decided five years earlier, held that a child would be considered born alive, and thus a human being within the meaning of the statute, if “wholly expelled from its mother’s body and possessed or was capable of an existence by means of a circulation independent of her own.”*’ Additionally, the court applied the modern common law view that did not require severance of the umbilical cord before a child was considered born alive rather than an earlier common-law view that required severance of the umbilical cord.** Applying the modern common law approach, the court noted that the test did not “requir[e] the severance of the umbilical cord but only that the child [was] carrying on its being without help of the mother’s circulation.”” It was a “physiological fact that the circulation between mother and child through the umbilical arteries ceas[ed] almost immediately after the child [was] extruded and breath{ed]."” Furthermore, the court stated that the notion that severance of the umbilical cord was required “‘appear[ed] to have been repudiated by modern advancement in medical knowledge of human physiology.”*' Thus, a child’s independent circulation, rather than whether the umbilical cord was severed, determined whether the child was born alive. Because the child had “breathed and cried,” the court held “the evidence established that the child was ‘born alive’ and was a human being within the meaning of the Uniform Code of Military Justice, Article 118. she strangled her child, wrapped her in sheets and put her in a footlocker. The mother did not testify at trial as to the condition of the child at birth but the nurse from a neighboring apartment testified that she heard a child cry for a few seconds. After the mother did not show for a number of meals at the mess hall, a fellow nurse notified a physician who, after an examination of the appellant, had her moved to the hospital where she was treated for loss of blood. The obstetrician who examined her determined that she must have given birth in the three previous hours. A search was then conducted, which resulted in the discovery of the dead baby girl in the footlocker. The pathologist who performed the autopsy on the child testified that the child had been born alive and that her lungs contained air. The mother was tried for the offense of premeditated murder “of an unnamed baby girl, by means of strangulation, in violation of Uniform Code of Military Justice, Article 118.” The law officer issued instructions on the offense of unpremeditated murder from the Manual for Courts Martial, but, significantly, gave no instructions regarding the born alive rule. The court martial convicted the mother of murder without premeditation. The sentence approved by the convening authority was: a dismissal from the service; forfeiture of all pay and allowances; and confinement at hard labor for five years. *° Id. at 926. * Id. at 926 (citing People v. Hayner, 90 N.E.2d 23 (1949)). * Id., at 926. ” Id. dd. *" Id. at 924, “ Id. at 919, 927. Evidence of breath was found by an autopsy on the child by a pathologist, Captain James G. Bridgens. In Captain Bridgens’ opinion, the child had lived for a “matter of minutes, The Unborn Victims of Violence Act Currently, almost a half century later, the Gibson court’s formulation of the born alive rule remains good law in the military justice system.” However, the military, while keeping with the traditional rule, has done so without expressly repudiating modern conceptions of the born alive rule. B. The Viability Standard Military courts have discussed two different viability standards, both of which are very different from each other. One has been rejected outright, while the other has been accepted, albeit only in theory. Ironically, it is the former, which was most closely related to the Gibson born alive test, that the military has expressly rejected. First, the Court of Appeals for the Armed Forces (CAAF) in United States v. Nelson™ overturned a “viability outside the womb” standard that slightly revised the Gibson formulation of the born alive rule.” While the lower court still required the Gibson formulation that the child be expelled from the mother and have an independent circulation, the lower court, motivated by a desire to “afford the maximum protection [to the child] possible under the law,” did not require evidence that the child had taken a breath. Rather, it was only necessary in the opinion of the lower court that the government prove “other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles.”°’ CAAF, however, rejected a change to the Gibson standard, relying primarily on the need for the legislature rather than the judiciary to handle the issue.” Upholding Gibson, CAAF also referred to the solid support for the born alive rule in prior military case law, as well as the flexibility the standard offered “to accommodate advancements in medicine that inevitably affect[ed] the reality of what it means to be ‘born alive.” probably less than 10 or 15.” His examination revealed that the lungs “contained air, plus areas of emphysema, and [because the lungs] floated when placed in water.” /d. ** See United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000). “ A Hull Maintenance Technician Third Class had secretly given birth on ship, had placed her child and the clothing used to clean up the afterbirth in a semi-aerated trash bag, and had disembarked with the bag in tow. There were, however, three doctors and two medical corpsmen “experienced in delivering babies” on Nelson’s ship. She arrived at an Italian hospital 12 hours later. Attempts to revive the child were unsuccessful. Expert medical testimony provided at the court-martial supported the conclusion that the child had been born alive, but needed simple medical assistance to begin breathing. The court-martial members were given instructions on the bom alive rule as interpreted by Gibson. Nelson was convicted of involuntary manslaughter. /d. at 321-23. * Id. at 323. 66 ld. wid. we ® Id. at 323-24. 10