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.
