Child destruction
Child destruction is the name of a
.Child destruction is the crime of killing an unborn but viable foetus; that is, a child "capable of being born alive", before it has "a separate existence".[1]
People have been convicted of the offence for injuring a heavily pregnant woman in the abdomen, such that her foetus dies; for killing a foetus during childbirth; or for performing a late-term abortion.
The purpose of the offence is to criminalise the killing of a child during its birth, because this is neither abortion[2] nor homicide[3] for the purposes of the criminal law. It can also be used to prosecute late abortions.[4]
During the second reading of the
As the noble and learned Lord has explained, the gap is that, whereas the mother of a child who kills it after it has a separate existence is guilty of what was the crime of murder and is now the lesser offence of infanticide, yet, if she kills the child in the actual course of delivery or within such a short time afterwards that it has not had and cannot be proved to have had a separate existence, it is not an offence.[5]
England and Wales
Statute
In England and Wales, the offence is created by section 1(1) of the Infant Life (Preservation) Act 1929:
(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:
Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be primâ facie proof that she was at that time pregnant of a child capable of being born alive.[6]
"Capable of being born alive"
See C v S [1988] QB 135, [1987] 2 WLR 1108, [1987] 1 All ER 1230, [1987] 2 FLR 505, (1987) 17 Fam Law 269,
In a 1991 case[7] Brooke J said that a child is "born alive" if "after birth, it exists as a live child, that is to say breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother."
As originally enacted, section 5(1) of the Abortion Act 1967 described the Infant Life (Preservation) Act 1929 with suffix "(protecting the life of the viable foetus)".[8] It was held that this description would not alter its effect. The defence suggestion that "viable" had a narrower meaning thus described fewer foetuses than "capable of being born alive" was rejected in 1991.[9]
By 2000, David Ormerod opines that a definition of "born alive" taken from the 1991 case is not of universal application and that an example of a case where it was not applicable was
Applicability after 28 weeks' gestation has been reduced to 24 weeks.[1]
"Felony"
The distinction between felony and misdemeanour was abolished by the Criminal Law Act 1967. That Act directs that "any enactment creating an offence by directing it to be felony shall be read as directing it to be an offence".
"Penal servitude"
The reference to a sentence of
Defence
A
Mode of trial
Child destruction is an
Sentence
Child destruction is punishable with imprisonment for life or for any shorter term.[14]
Early release of prisoners
Child destruction is an "excluded offence" for the purposes of section 32 of the Criminal Justice Act 1982.[15]
History
Before 1 April 1991, section 5(1) of the Abortion Act 1967 provided that nothing in that Act affected the provisions of the Infant Life (Preservation) Act 1929. That section was substituted by section 37(4) of the Human Fertilisation and Embryology Act 1990.
Incidence
The charge of child destruction is rare.
In 2012, a woman who self-administered an abortion drug when 39 weeks pregnant was convicted of unlawful abortion under the 1861 Act.[20] The sentencing judge remarked that she might equally have been charged with child destruction.[20][21]
In 2015, Kevin Wilson and an accomplice, who was under eighteen and could not be legally named, were convicted of child destruction and grievous bodily harm after they beat and kicked Wilson's pregnant ex-girlfriend, causing fatal injuries to the foetus.[22]
Northern Ireland
In
Sentence
Child destruction is punishable with
Use
The first conviction for this offence was in 2000.[25] The coroner reporting on the 1998 Omagh bombing recommended that the Director of Public Prosecutions for Northern Ireland should prosecute for two counts of child destruction as well as 29 of murder, as one of the people killed was 34 weeks pregnant with twins.[26]
Australia
Each
New South Wales does not have a child destruction enactment,[27] but the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) amended the Crimes Act 1900 (NSW) so that s 4(1)(a) now defines "grievous bodily harm" as including "the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm".[36]
Hong Kong
Child destruction is defined in section 47B of the
See also
References
- ^ ISBN 1-85941-159-2.
- Offences against the Person Act 1861, which is defined as "unlawful procurement of a miscarriage."
- ^ That is to say, the offences of murder, manslaughter and infanticide.
- ISBN 0-406-00086-7. ¶¶11.82–83.
- ^ "PRESERVATION OF INFANT LIFE BILL. [H.L.]". Parliamentary Debates (Hansard). 22 November 1928. Retrieved 18 September 2016.
- ^ Digitised copy of section 1 of the Infant Life (Preservation) 1929 from Legislation.gov.uk. Accessed on 8 December 2011.
- QBD
- ^ Digitised copy of the original print of the Abortion Act 1967.
- ^ Rance v Mid-Downs Health Authority [1991] 1 QB 587, [1991] 2 WLR 159, [1991] 1 All ER 801, QBD.
- ^ Re A (Children) [2001] 2 WLR 480, [2000] 4 All ER 961, [2001] Crim LR 400
- ^ David Ormerod. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. Page 603
- ^ The Abortion Act 1967, section 5(1) (substituted by the Human Fertilisation and Embryology Act 1990, section 37(4))
- ^ Archbold Criminal Pleading, Evidence and Practice, 1999 Edition, paragraph 19–133
- ^ The Infant Life (Preservation) Act 1929, section 1(1); the Criminal Justice Act 1948 (11 & 12 Geo.6 c.58), section 1(1)
- ^ The Criminal Justice Act 1982, section 32(2)(b) and paragraph 10 of Part II of Schedule 1
- ^ a b "Child destruction: charge is rarely used". The Daily Telegraph. London. 27 May 2007. Retrieved 31 March 2009.
- ^ Dean, Malcolm (20 January 1987). "Babes in harm / Legal protection for the unborn and newly-born child". The Guardian.
- ^ Britten, Nick (27 May 2007). "Jury convicts mother who destroyed foetus". The Daily Telegraph. London. Retrieved 31 March 2009.
- Press Association.
- ^ a b Prochaska, Elizabeth (21 September 2012). "Sarah Catt, abortion and the legal rights of pregnant women". The Guardian. Retrieved 22 November 2012.
- ^ Cooke, Jeremy (17 September 2012). "R -v- Sarah Louise Catt sentencing remarks" (PDF). Judgments. Leeds Crown Court: Judiciary of England and Wales. p. 4, § 12. Archived from the original (PDF) on 23 September 2012. Retrieved 22 November 2012.
- ^ "Man convicted of killing unborn baby by kicking pregnant ex-girlfriend". The Guardian. London. 17 December 2015.
- ^ Digitised copy of section 25 of the Criminal Justice Act (Northern Ireland) 1945, from Legislation.gov.uk. Accessed on 27 February 2012.
- ^ The Criminal Justice Act (Northern Ireland) 1945, section 1(1); the Criminal Justice Act (Northern Ireland) 1953, section 1(1)
- Belfast News Letter. 28 April 2001. p. 3.
- ^ "Omagh coroner to write to DPP on twins". Belfast Telegraph. 29 September 2000.
- ^ ISBN 0-7546-2614-8.
- ^ "Criminal Code Act 1899: Reprint No. 7" (PDF). Office of the Queensland Parliamentary Counsel. 1 December 2008. Archived from the original (PDF) on 19 September 2009. Retrieved 31 March 2009.
- ^ "§ 290: Killing unborn child". Criminal Code Act Compilation Act 1913 (PDF) (v14-b0-05 ed.). 27 June 2009. p. 142. Retrieved 31 March 2009.
- ^ "Criminal Code Act – Notes". Australasian Legal Information Institute. Archived from the original on 6 March 2008. Retrieved 31 March 2009.
- ^ Harvard School of Public Health. Retrieved 31 March 2009.
- ^ a b "Criminal Law Consolidation Act 1935 Sect 82A–Medical termination of pregnancy". Australasian Legal Information Institute. 27 November 2008. Retrieved 31 March 2009.
- ^ "Crimes Act 1900 Section 42". Australasian Legal Information Institute. Retrieved 31 March 2009.
- ^ "Abortion Law Reform Bill 2008: Explanatory memorandum". Australasian Legal Information Institute. Retrieved 31 March 2009.
Clause 9 repeals section 10 of the Crimes Act 1958, which is contained in subdivision (2) of Division 1 of Part I of that Act. Section 10 of the Crimes Act 1958 contains the offence of child destruction, which the Victorian Law Reform Commission has recommended be repealed.
- ^ "Abortion Law Reform Act 2008 (No. 58 of 2008) – Sect 9". Australasian Legal Information Institute. Retrieved 31 March 2009.
- ^ Crimes Act 1900 (NSW), s 4(1)(a)
- Offences against the Person Ordinance, section 47B. Digitised copy from the Hong Kong Legal Information Institute. Accessed on 27 February 2012.
- Offences against the Person Ordinance, section 47B(1)
- Offences against the Person Ordinance, section 7
Further reading
- Keown, John (1 May 2012). "The scope of the offense of child destruction". The Law and Ethics of Medicine: Essays on the Inviolability of Human Life. Oxford University Press. pp. 172–194. ISBN 9780199589555.