December 17th 2016

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Articles from this issue:

COVER STORY Much food for reflection in a single Christmas carol

CANBERRA OBSERVED Coalition limps through year of frustrations

FOREIGN AFFAIRS The left's whitewash of Fidel Castro

THE MEDIA Greed, ideology generate burst of fake news online

WA LEGISLATION Foetal homicide reform a very small step forward

SOCIETY A proposal to assist the victims of sexual abuse

AUSTRALIAN DEVELOPMENT The financial and social costs of cramming ourselves into just five coastal cities

MUSIC What Ellington heard: Allan Zavod, RIP


CINEMA Capra on the Common Man: Meet John Doe

BOOK APPRAISAL Religious incredulity: a most modern virtue

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Foetal homicide reform a very small step forward

by Lorraine Finlay

News Weekly, December 17, 2016

In the final sitting weeks of 2016 the West Australian Parliament passed the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016, which introduces a range of legal reforms, including changes to the Criminal Code (WA) to deal with violence against women that harms their unborn child.

This specific reform is a positive step forward as it strengthens and clarifies the existing legal position in Western Australia. However, it is a missed opportunity in terms of providing full legal recognition of the harm to an unborn child as being a wrong separate to the harm caused to the mother.

Why is reform needed?

Why was this reform considered in the first place? The Criminal Code in Western Australia does not recognise an unborn child as a human being until “it has completely proceeded in a living state from the body of its mother”. As a result, a person in Western Australia cannot be criminally responsible for homicide where they cause injuries to an unborn child and the child is stillborn as a result. In such cases the law simply does not recognise that the unborn child is a “person capable of being killed”.

It was the Silvestro case in 2012 that bought this issue to public attention and led to the commitment by the Barnett Government to introduce foetal homicide law reform. The offender in that case (Matthew Silvestro) drove the car that he was travelling in with his eight-months pregnant former partner (Vanessa De Bari) and their two-year-old child directly into the path of another vehicle. Vanessa De Bari suffered serious and permanent injuries, and the unborn child that she was carrying died in utero.

Matthew Silvestro was convicted of dangerous driving causing grievous bodily harm, and was ultimately fined $8,000 and disqualified from driving for two years. The charge was based solely on the injuries sustained by Vanessa De Bari. Her unborn child was not considered a person by the law despite the obvious fact that the baby would otherwise have survived had it simply been naturally born at that stage of the pregnancy (minus the injuries that were sustained in utero).

The perceived inadequacy of the punishment in this case led to community outrage. The fact that the law didn’t recognise the loss of the unborn child as anything other than an aggravating factor in the offence committed against the mother drove the need for reform.

The amendment that has been introduced by the Barnett Government, and passed by the WA Parliament, amends the Criminal Code definitions of “bodily harm” and “grievous bodily harm” to clarify that a reference to causing bodily harm or grievous bodily harm to a person includes, if the person is a pregnant woman, a reference to causing harm to the woman’s unborn child or the loss of the pregnancy.

Is this a foetal homicide law?

This is a welcome reform in that it does confirm at law that violence against an unborn child is unacceptable and deserving of punishment. It should not, however, be seen as a foetal homicide law. The changes do not go so far as actually to recognise the unborn child as a human being in the eyes of the law. Rather, the reforms recognise that “violence to an unborn child is violence to the mother”. In the eyes of the law, the victim of this violence is the mother, not the unborn child.

This may seem like a technicality, but it is one that has legal and moral significance. The death of an unborn child in utero isn’t simply an injury to the mother, which is how it is characterised under these reforms. The reformed law in Western Australia still fails to recognise the reality that a separate life has been lost and, in this way, fails fully to recognise the loss that has been suffered.

Thus, the laws do not fully meet the commitment made by the Barnett Government in 2012 to introduce foetal homicide laws in Western Australia.

Back in 2012 when the plan to change the law was announced, then WA Attorney-General Christian Porter said that it was “intended that the laws would create a new offence of death or grievous bodily harm to an unborn child through an unlawful assault on its mother”.

This is not what has been done. Instead, the Barnett Government has chosen to extend the existing definitions of bodily harm and grievous bodily harm to include harm to a pregnant woman’s unborn child as being an injury to the pregnant woman.

We should not lose sight of the fact that this reform is a step in the right direction. It will likely result in stronger sentences in cases like that of Silvestro as a result of the courts being required to have regard to the loss of the child when assessing the overall injuries sustained by the mother.

The reforms would not, however, have resulted in any difference to the actual charges that were laid against Silvestro (or the other similar cases that have occurred in Western Australia in recent years), as an injury to the mother was already recognised in the offence that was charged. The only way to ensure that an offender is held criminally responsible for the specific act of causing death or injury to an unborn child is to create a new criminal offence that views this outcome as an injury separate and distinct from any injury sustained by the mother.

The Queensland approach

A more effective reform would have been to adopt the Queensland approach, which was the approach that was outlined in 2012 when these reforms were first proposed. Section 313(2) of the Criminal Code (Qld) creates a separate offence of unlawfully assaulting a female pregnant with a child where that assault “destroys the life of, or does grievous bodily harm to, or transmits a disease to, the child before its birth”.

This approach has the distinct advantage of acknowledging the death of the unborn child as a separate loss, distinct from the harm inflicted upon the mother.

Why did Western Australia not go down this path? During his Second Reading speech, present WA Attorney-General Michael Mischin indicated that an important consideration was to “ensure that the proposed changes will not affect a woman’s existing rights to make decisions about her pregnancy, and the current law with respect to the lawful termination of pregnancies”.

This is a concern frequently raised by opponents of foetal homicide law reform, and seems to be one of the reasons for the minimalist reform that was finally put before the WA Parliament.

It is, however, a concern that can be easily resolved in the drafting process. Indeed, had the Queensland approach been adopted, this perceived problem would have been entirely avoided. The Queensland provision requires as a constituent element of the section 313(2) offence that an unlawful assault be committed against the pregnant female. An unlawful assault will only arise if a pregnant female has not consented to the force being applied to her, which clearly means that lawful abortions conducted with the consent of the woman will not fall within the scope of this offence. Legal abortions and foetal homicide laws are not fundamentally inconsistent with each other and can readily co-exist.

Second, during the Second Reading speech, the WA Attorney-General also noted that it was important that any amendments “do not distort the operation of the criminal law or concepts upon which the current criminal law is based in a manner that will create unforeseen and undesired consequences and anomalies”.

This appears to be a reference to the perceived inconsistency that allegedly exists between the definition of “when a child becomes a human being” under section 269 (which does not recognise an unborn child as a “person capable of being killed”) and a foetal homicide law that would recognise an unborn child as the victim of a criminal offence.

Again, however, careful drafting can ensure that no inconsistency need arise. For example, the Queensland foetal homicide provision does not actually define an unborn child as a “living person”. Rather, it provides limited recognition of specific circumstances in which the law acknowledges a precise type of loss that was previously felt to be insufficiently acknowledged.

Furthermore, the law in Western Australia already recognises unborn children in other circumstances, and has done so without inevitably extending the scope of foetal personhood to all other areas of the law. For example, a stillborn child of at least 20 weeks’ gestation is recognised as a “child” under section 4 of the Births, Deaths and Marriages Registration Act 1998 (WA).

Some recognition of preborns

More recently, Western Australia has legally recognised stillborn babies lost between 12–19 weeks’ gestation by allowing parents to apply for a recognition of loss certificate. This reform clearly recognises the stillborn baby as having an identity distinct from the mother. If it is possible to provide for limited recognition in cases such as these, it must logically also be possible to provide for limited recognition in terms of foetal homicide laws without necessarily distorting the operation of the criminal law or altering the established legal definition of a “human being”.

The reforms introduced by the WA Government are welcome (and overdue) reforms. They strengthen and clarify the existing criminal law with regards to injuries caused to an unborn child in utero. However, this is not a foetal homicide law. The amended laws do not recognise the harm to an unborn child as being a wrong separate to the harm caused to the mother.

A more effective reform would be to introduce a provision that mirrors the Queensland foetal homicide provision, which also happens to be the proposal that the WA Government initially put forward when it first announced its plan to reform the criminal law back in 2012.

Lorraine Finlay joined Murdoch University in 2010 from the Office of the Director of Public Prosecutions (WA), where she worked as a state prosecutor. She previously worked at the High Court of Australia, initially as a legal research officer and then as an associate to Justice Dyson Heydon.

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