Sunday 20 November 2016

A foetal homicide law in Western Australia?

In a joint media release dated 11 September 2016 from the Attorney General of Western Australia, the Hon Michael Mischin and the Minister for Police, the Hon Liza Harvey on the introduction of the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 the introductory bullet points included a reference to “Up to 20 years jail for intentional foetal homicide”.

The Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 passed its third reading in the Legislative Assembly of Western Australia on 17 November 2016 having passed in the Legislative Council on 15 November 2016.


Bodily harm to an unborn child


The Bill contained an ancillary amendment to the Criminal Code of Western Australia which inserted a new provision into section 1 which addresses bodily harm to an unborn child, grievous bodily harm to the woman’s unborn child and causing the loss of a woman’s pregnancy.

The new provision reads as follows:

 In this Code, unless the context otherwise indicates —

(a)   a reference to causing or doing bodily harm to a person includes, if the person is a pregnant woman, a reference to causing or doing bodily harm to the woman’s unborn child; and

(b)   a reference to intending to cause or intending to do bodily harm to a person includes, if the person is a pregnant woman, a reference to intending to cause or intending to do bodily harm to the woman’s unborn child; and

(c)    a reference to causing or doing grievous bodily harm to a person includes, if the person is a pregnant woman —

(i)                  a reference to causing or doing grievous bodily harm to the woman’s unborn child; and
(ii)                a reference to causing the loss of the woman’s pregnancy; and

(d) a reference to intending to cause or intending to do grievous bodily harm to a person includes, if the person is a pregnant woman —

(i) a reference to intending to cause or intending to do grievous bodily harm to the woman’s unborn child; and

(ii) a reference to intending to cause the loss of the woman’s pregnancy.

This is a significant step forward in recognising in the criminal law of Western Australia that an assault on a pregnant woman that causes the death of an unborn child, or other bodily harm to the child, regardless of any other harm occasioned to the woman herself should be punishable by law.

Falling short of a true foetal homicide law

However, the new provision falls short of a clear offence of “foetal homicide” which would require intentional unlawful acts leading to the death of an unborn child to be punished with the same penalty as other homicides, namely life imprisonment.

Nonetheless the Criminal Code of Western Australia now clearly recognises that it is a crime to “cause or do bodily harm to an unborn child” or “to intend to cause or to do bodily harm to an unborn child”.

“Bodily harm” is defined in Section 1 of the Code as “any bodily injury which interferes with health or comfort”.

Furthermore the Code recognises that it is an even more serious crime to “cause or do grievous bodily harm to an unborn child” or to “intend to cause or do grievous bodily harm to an unborn child”.

“Grievous bodily harm” is defined in Section 1 of the Code as “any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health”.

Finally the Code explicitly makes it an offence to unlawfully “cause the loss of a woman’s pregnancy”, that is to say, the death of an unborn child.

It is somewhat unsatisfactory to treat these offences, by a kind of legal fiction, as a species of bodily harm or grievous bodily harm to the mother of the unborn child rather than as, what they are in reality, direct harms to the unborn child as a separate individual human being.

An inherent tension in the law on the status of the unborn child: disposable or protected?

Nonetheless these new provisions are to be welcomed for two reasons:

Firstly, the provisions go some way towards a just recognition of the real harm done when the life of an unborn child is taken by an unlawful act, such as an assault on a pregnant woman.

Secondly, the provisions introduce a creative tension into the law of Western Australia which now, on the one hand treats acts intentionally causing the death of an unborn child – at any stage of pregnancy – as a serious crime while on the other hand, under Section 334 of the Health Act 1911 making it lawful for a medical practitioner to intentionally cause the death of an unborn child, subject to specified conditions, at any stage of pregnancy.

While these laws can exist side by side in formal law, the inherent contradiction between them can be pointed to by those who see it as self-evident that the very same unborn child can’t be rightly treated as disposable at will in one set of circumstances and worthy of full legal protection in another.


Hon Nick Goiran MLC: A champion for the unborn child

The Hon Nick Goiran MLC has worked persistently over the past few years to persuade the Barnett government to introduce a clear foetal homicide provision to the criminal law. 

While he is naturally disappointed that earlier promises to do so have not been fulfilled, he is to be congratulated on his vital contribution in achieving even this more modest step in the direction of greater justice for children who are killed before birth.

An extract from his second reading speech on the Bill, delivered in the Legislative Council on 15 November 2016 follows below.

(Dr Graham Jacobs MLA is also to be congratulated for addressing this issue forthrightly in the Legislative Assembly on 17 November 2016. Mr Peter Abetz concurred with his remarks.)

I remind members of the event that first led to our consideration of this provision, which is more commonly referred to as the foetal homicide law in Western Australia.

In October 2009, Matthew Silvestro was driving dangerously in a Nissan Pulsar and his heavily pregnant girlfriend, Vanessa De Bari, was in the passenger seat, and their two-year-old son was in the back seat. He turned the car into the path of a Jeep on Wanneroo Road in Woodridge, causing a collision that resulted in severe injuries to Vanessa and the tragic death of her unborn child. Fortunately, the toddler survived. Vanessa spent eight and a half months recuperating in hospital, learning to walk again, and she has permanent brain damage from the collision. The clear injustice in the Silvestro case with regard to this person who had a history of domestic violence offences and had seven restraining orders against him by six different partners is that he received only an $8 000 fine for dangerous driving occasioning grievous bodily harm. This was because currently under Western Australian law no penalty exists for the harm or death of an unborn child as a result of an unlawful assault or dangerous driving.

The former Attorney General, Hon Christian Porter, was rightly outraged by this loophole and the inadequate penalty and he announced plans to strengthen and clarify Western Australia’s foetal homicide laws by creating a new offence of causing death or grievous bodily harm to an unborn child through an unlawful assault on its mother. This offence, he stated, based on one in operation in Queensland, would carry a maximum penalty of life imprisonment. In regard to dangerous driving offences that cause the death of an unborn child, such as in the case of the death of Vanessa De Bari’s unborn child, the then Attorney General announced that this would be dealt with in the District Court and carry a maximum period of imprisonment of 20 years. Additionally, when there was a history of domestic violence against the mother by the offender prior to them harming or causing the death of an unborn child, the offender would face a presumption of imprisonment.

I need to draw to the attention of members of this house that those intentions, as I understand, have not been realised through the inclusion of clause 97 in this bill. It will not achieve what shadow Attorney General John Quigley said at the time, which was that any unlawful act that caused the loss of a child, even if it caused no other injuries to the mother, should attract a charge of grievous bodily harm and be defined as being in aggravated circumstances so that it will attract the higher maximum penalty. No clause in this bill attracts a higher maximum penalty for the death or harm of an unborn child when caused by a person with a history of domestic violence, or by upgrading the grievous bodily harm to being in aggravated circumstances. For the sake of clarity, clause 97 will amend section 1(4) of the Criminal Code by inserting as bodily harm or grievous bodily doing harm to a pregnant woman’s unborn child. This provides recognition of the harm or death of the unborn child as bodily harm or grievous bodily harm to the pregnant woman, and in some circumstances this may increase the penalty. Even though this Restraining Orders and Related Legislation Amendment (Family Violence) Bill achieves something meaningful for pregnant women who suffer the tragic loss of an unborn child through an unlawful assault or dangerous driving, it does not achieve what was intended following the clear injustice suffered by Vanessa De Bari and her unborn child.

Whilst I acknowledge that this amendment to the Criminal Code is a step in the right direction, I believe that consideration needs to be given to honouring the original intent of this reform by providing greater clarity to Western Australia’s foetal homicide laws by stating in law the reality of what has occurred and providing an appropriate penalty. Would any member of this house dispute the medical evidence that Vanessa De Bari’s unborn child was killed as a result of this car crash? I very much doubt it. We use the phrase “killing an unborn child” because, simply stated, that is what has occurred. That is the fact of the matter, yet out of fear of contradicting other laws in Western Australia, we deny the facts and call the killing of an unborn child grievous bodily harm to the mother. The law has a compounding effect.

It began in 1913 when the Western Australian Parliament passed the Criminal Code, which states in section 269 that a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not and whether it has independent circulation or not and whether the naval string is severed or not. Perhaps in the past, before ultrasound technology, it was difficult to confirm the death of a child in utero, and, without confirmation, it was perhaps impossible to prove cause and effect. That is understandable. However, in 2016 a woman can have an ultrasound in the morning showing a moving, unborn child sucking its thumb, and the woman could then experience an assault to her womb, and the medical team could quickly assess the effect on the unborn child, thus placing beyond reasonable doubt that the assault caused the death of the unborn child. A post-mortem examination could further confirm these things. There was perhaps once an issue of cause and effect that led to the creation of section 269.


However, in 2016 we can understand and even prove that an unborn child is capable of being killed. Indeed, I might say that when a martial arts expert kicks the womb of his pregnant girlfriend with the intention of harming the unborn child, as occurred in Queensland in 1996, and the unborn child dies as a result, is this not killing the unborn child? Would the woman not grieve the death of her unborn child? According to our proposed amendment, her grief is misplaced and her grief should be directed towards the grievous bodily harm she has suffered. I am entirely uncomfortable with that notion. The grievous bodily harm she suffered would be of minimal significance to her compared to the loss of her unborn child. Yet our proposed amendment provides no greater significance to her own harm and no separate recognition of the death of the child that once lived within her. What might be of interest to members is that the Queensland Parliament recognised this misdirected justice and changed the law as a result. Twenty years ago, its state’s Criminal Code was amended to recognise that a child that is capable of being born alive is also capable of being killed, and the penalty for intentionally killing an unborn child is the same as murder—imprisonment for life. That, of course, is what the former Attorney General meant when he referred to basing our foetal homicide laws on Queensland’s law. However, in going this far, he would have had to recognise, and he did, the elephant in the room, which is legal abortion; yet he justified that foetal homicide laws could co-exist with legal abortion by stating that the proposed legislation would be drafted to require an unlawful act to be done to the mother before any penalty could apply. Obviously, in Western Australia, performing an abortion within the defined parameters of the law is not an unlawful act, and hence would not be affected by this new offence. I hasten to add that I am not attempting to ignite a debate about the right of women to have an abortion. 

I am simply attempting to draw to members’ intention the original intention of this law reform and to ask that we remain true to that intent to afford women who experience the tragic loss of a child in utero the dignity they deserve by acknowledging the gravity and the reality of the crime that occurred, that being the killing of her unborn child.