What Is The Penalty For Killing An Unborn Child?
Many of us saw the numerous media reports earlier this year about baby Zoe, who died at 7 months gestation when her mother was hit by an allegedly drug-affected driver. The tragic incident brought about a review of the laws concerning the death of an unborn child due to a crime; mainly to determine whether existing laws go far enough to punish offenders appropriately.
Anyone who has lost an unborn child, due to a crime, will have strong feelings about the appropriate penalty for the offender. Zoes parents called for a manslaughter charge. Current laws dont allow this.
Last month the Supreme Court Justice who conducted the review recommended that no changes should be made to current criminal laws, and that the existing penalties were adequate.
So what is the law?
In 2005 the NSW Crimes Act was amended to expand the definition of grievous bodily harm to include 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. If the act is intentional, the offender can get 25 years in jail, the same maximum sentence as for a manslaughter charge. Recklessly causing grievous bodily harm carries a 10 year maximum sentence (its higher if the act was committed by a group).
In Zoes case, if found guilty, the offender could get a charge for driving under the influence of drugs, and a charge for dangerous driving occasioning grievous bodily harm to the mother. The latter carries a maximum 7 year sentence.
Some would disagree with the reviews findings, believing that an unborn child has rights, and that relying on offences that relate only to causing harm to the mother is inadequate.
Its a contentious issue. In Australia, you can only bring a murder or manslaughter charge against a person who has been born alive, and breathed.
To alter the laws view on what it means to be a person would invite moral and legal dilemmas. If an unborn child is deemed to be a living person with legal rights, could a woman be charged for choosing to terminate a pregnancy after the discovery of foetal abnormalities? Or a medical practitioner for conducting a termination?
The ramifications would likely be immense.
While the review of unborn child laws recommended no criminal law changes, it did suggest one avenue might be to consider amending the Victims Support and Rehabilitation Act, so that a victim could be compensated if their unborn child died as a result of a crime. And that a scheme be established to cover the funeral costs for a stillborn child.
The Government is considering these recommendations.