There has been a great deal of media attention of late surrounding organised crime in Australia, after the 2009 death of Hells Angels bikie Anthony Zervas at Sydney Airport (Brown et al 2011) and the highly popular Underbelly series. This is only set to continue upon the announcement that the Herald will be releasing a special series in its new iPad edition about the history of organised crime. (Duffy 2011) Shortly following Zervas' death NSW parliament passed new legislation: Crimes (Criminal Organisations Control) Act 2009, in response to the "escalation in violent crime involving outlaw motorcycle gangs that has spilled into public places" (Rees, in Brown et al 2011, p.1068). This law has been openly criticised as being a threat to our civil liberties. It represents an overzealous response to an unlikely threat which is already dealt with under the Crimes Act 1990. The most controversy lies in Section 26 which criminalises association regardless of the action or intention of the accused, it is essentially a status offence. A status offence is one where criminal liability lies in the fact that someone is found in a particular position. (Brown 2011) I argue that this type of law is a threat to our liberty. One should be free to associate with whomever they choose so long as they act within the law. It is perfectly reasonable in my opinion for one to associate with a member of an outlawed gang without having any involvement in their criminal activities. Furthermore there have been movements to ban bikie colours and trademark insignias. I understand that we do not have a bill of rights in this country, but once we begin encroaching on basic rights: freedom of association, freedom of movement, freedom of expression, (Universal Declaration of Human Rights, in Cowdery, 2001) where does it end?
Mill's harm principle may be widely accepted as the foundations of criminal law. he states "the only purpose for which a power can be rightfully exercised over another member of a civilized community, against his will, is to prevent harm to others." Basically a persons liberty should only ever be restricted at the expense of a greater liberty. In my view banning someone from associating with who they choose or from expressing themselves through their attire is a restriction of liberty. It is not in keeping certain company or wearing certain clothes that you are harming another individual. The public concern surrounding bikie gangs is their association with the illicit drug industry and the level of violence that comes with such organised crime. By all means crack down on these offences to the full extent of the law, but let us not lose sight of the fact that we live in a free and equal society. As such we should not criminalise anyone prematurely.
References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney
Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia
Duffy M 2011, 'Banning popular pleasures led to the rise of the Mr Bigs', National Times, 31 May
http://www.smh.com.au/opinion/society-and-culture/banning-popular-pleasures-led-to-rise-of-the-mr-bigs-20110530-1fctv.html
Fife-Yeomans J 2009, 'Pubs, clubs ban bikies' colours', The Daily Telegraph, 7 November http://www.dailytelegraph.com.au/news/pubs-clubs-ban-bikies-colours/story-e6freuy9-1225795176272
Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands
Thursday 2 June 2011
Just a Bunch of Plankers
This post in inspired by 'Planking an offence?' http://hayleycrim2027.blogspot.com/
When I first saw the reports indicating planking would be targeted as a criminal offence by police, I was shocked. This was before any serious planking related accidents had occurred. After the death of Acton Beale I paused for a moment to consider that perhaps the police were right to charge plankers, then I reconsidered. If criminalising a 'sport' is necessary under the guise of public protection where do we stop? Smoking and drinking are both still legal, and far more dangerous, in fact I am relatively sure alcohol has been involved in all planking related deaths. You know what else is dangerous, crossing the road without looking. But is this act of stupidity a criminal offence? No, people have always, and will continue, to do stupid things, we can not criminalise all of them.
The magnification of this craze has quickly escalated to near moral panic proportions. Cohen defined a moral panic as "a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media". (Cohen 2002) We can clearly see the media as the driving factor behind the call for action over planking, ironically, it is new media, that is, social media such as facebook, that allowed this fad to become mainstream in the first place. What many do not know is that this cult 'sport' has been around for a considerable time, with no notable deaths, in the form of 'extreme lying down'. (extremelyingdown.net, 2010) It is only due to the actions of an irresponsible few that this activity caught mass media attention and has been deemed dangerous, if not deadly, leaving politicians and law enforcement officials in a position where they feel compelled to act. In any case this is just an example of self victimisation, those who engage in the activity do so at their own risk. Using the full force of the law to protect us from our own actions is an example of paternalism. Joel Feinberg states "hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their own will, from harmful consequences of their fully voluntary choices and undertakings... since it imposes its own values and judgements on people 'for their own good'" (Schonsheck 1994, p.179). The real dangers of this activity are limited, without the previously mentioned contributing factors such as alcohol, and are restricted to those engaging in the behaviour. Let us end the madness before we become a complete nanny state. I say let the plankers plank, this is just a fad, being driven by those who most oppose it, as they grant it the added thrill of notoriety. Like all fads it too will die out soon enough, remember goldfish swallowing? No, me neither. As Hayley said lets not criminalise people for their idiocy, I agree, after all natural selection will surely take care of them for us...
References
Baskin B & Arnold R 2011, 'Planking: not illegal but police warn internet pranksters could face charges of trespass', Courier Mail, 13 May
http://www.couriermail.com.au/lifestyle/planking-not-illegal-but-police-warn-internet-pranksters-could-face-charges-of-trespass/story-e6frer4f-1226055142247
Cohen S 2002, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, Routledge, London
Godfrey A 2011, 'How Brisbane planking death of Acton Beale is fueling a dangerous web craze', The Daily Telegraph, 17 May
http://www.dailytelegraph.com.au/news/national/how-brisbane-planking-death-of-acton-beale-is-fueling-a-dangerous-web-craze/story-e6freuzr-1226056501630
Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands
2010 'Extreme lying down' http://extremelyingdown.net/
When I first saw the reports indicating planking would be targeted as a criminal offence by police, I was shocked. This was before any serious planking related accidents had occurred. After the death of Acton Beale I paused for a moment to consider that perhaps the police were right to charge plankers, then I reconsidered. If criminalising a 'sport' is necessary under the guise of public protection where do we stop? Smoking and drinking are both still legal, and far more dangerous, in fact I am relatively sure alcohol has been involved in all planking related deaths. You know what else is dangerous, crossing the road without looking. But is this act of stupidity a criminal offence? No, people have always, and will continue, to do stupid things, we can not criminalise all of them.
The magnification of this craze has quickly escalated to near moral panic proportions. Cohen defined a moral panic as "a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media". (Cohen 2002) We can clearly see the media as the driving factor behind the call for action over planking, ironically, it is new media, that is, social media such as facebook, that allowed this fad to become mainstream in the first place. What many do not know is that this cult 'sport' has been around for a considerable time, with no notable deaths, in the form of 'extreme lying down'. (extremelyingdown.net, 2010) It is only due to the actions of an irresponsible few that this activity caught mass media attention and has been deemed dangerous, if not deadly, leaving politicians and law enforcement officials in a position where they feel compelled to act. In any case this is just an example of self victimisation, those who engage in the activity do so at their own risk. Using the full force of the law to protect us from our own actions is an example of paternalism. Joel Feinberg states "hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their own will, from harmful consequences of their fully voluntary choices and undertakings... since it imposes its own values and judgements on people 'for their own good'" (Schonsheck 1994, p.179). The real dangers of this activity are limited, without the previously mentioned contributing factors such as alcohol, and are restricted to those engaging in the behaviour. Let us end the madness before we become a complete nanny state. I say let the plankers plank, this is just a fad, being driven by those who most oppose it, as they grant it the added thrill of notoriety. Like all fads it too will die out soon enough, remember goldfish swallowing? No, me neither. As Hayley said lets not criminalise people for their idiocy, I agree, after all natural selection will surely take care of them for us...
References
Baskin B & Arnold R 2011, 'Planking: not illegal but police warn internet pranksters could face charges of trespass', Courier Mail, 13 May
http://www.couriermail.com.au/lifestyle/planking-not-illegal-but-police-warn-internet-pranksters-could-face-charges-of-trespass/story-e6frer4f-1226055142247
Cohen S 2002, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, Routledge, London
Godfrey A 2011, 'How Brisbane planking death of Acton Beale is fueling a dangerous web craze', The Daily Telegraph, 17 May
http://www.dailytelegraph.com.au/news/national/how-brisbane-planking-death-of-acton-beale-is-fueling-a-dangerous-web-craze/story-e6freuzr-1226056501630
Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands
2010 'Extreme lying down' http://extremelyingdown.net/
What the bleep is the point?
On Tuesday morning my twitter feed was sent into a spin on the news that the Victorian government was imposing on the spot fines for those caught using indecent language. I feel this is indicative of the type of event that can make news in the social media age. Issues that are relevant to the individual, evidently I must follow a lot of Victorians who engage in offensive language. News can be streamlined to your own interests and desires, not that I feel it's a good idea to only get your news from one perspective, contrarily I like to 'hate follow' some high profile conservatists, just to maintain perspective, as a bonus the anger makes me feel alive! But back to my point, if you follow people who share your own concerns, you can stay informed on the issues relevant to you, without the bias and agenda that comes with the filtered down version of events available in the commercial media. News can be sourced from people whose main purpose is not necessarily to appease the views of an institution. Meaning readers can escape the effects of the hypodermic syringe model, whereby they accept the media's depiction of events unquestioningly. (Marsh and Melville 2009)
Many are quick to criticise the effect of social media. Consider the recent case of CTB v Twitter Inc over the naming of Ryan Griggs despite his super-injunction (The trial Warrior 2011); or moral panics surrounding cyber bullying and sexting. There are just as many examples of the social media enterprise being used for the greater good. The recent 'slut walk' went viral over twitter and facebook rallying support for a worthy cause, making the arguably outdated and irrelevant concept of feminism resonate with an entirely new generation. So why the outrage over swearing legislation? These laws have actually existed for a great deal of time, in fact since 1966 you could face up to two years imprisonment for serious indecent language. (Madigan 2011) The difference was the matter had to go through the courts. This was expensive and there were large amounts of paper work involved for police. So surely dealing with this matter via a simple on the spot fine is a superior approach? Well no, not necessarily, a law has to actually be used to take effect so while this law has existed, it has remained largely symbolic. This is a classic example of technocratic justice, the drive for efficiency over the pursuit of justice.(Brown et al 2011) This reform may be imposed under the guise of saving police time and court costs, however this is simply untrue, as previously, pursuing such matters was probably not worth effort so did not occur. The greater ease this amendment has afforded police means we now run the risk of fines for profanities being handed out like speeding infringements. Ironically the fine for each of these offenses is roughly the same (Madigan, 2011). Which makes perfect sense considering one is potentially deadly, the other potentially offensive, wait a minute...?
Laurence H. Tribe said "An excess of law inescapably weakens the rule of law". Now that issues of wasting police time on paperwork needn't be considered we will just see more of these charges doled out thoughtlessly in response to an apparent deterioration in public behaviour. But will this achieve any substantial change? In his writing on overcriminalization Douglas Husak states "penal liability is unjustified unless it is imposed for an offense designed to proscribe a nontrivial harm or evil, and may not be inflicted unless the defendant's conduct is wrongful". He calls for a "stringent test of justification" for all legislation to avoid "cluttering our criminal codes" with mala prohibita offences, such as public profanities. Criminal legislation must have a legitimate and substantial state interest. One might claim, given the aforementioned uproar amongst the public, that this is simply untrue of this legislation. Given this law is aimed at remedying the "deterioration in public behaviour" we might apply the "three assumptions which must be satisfied before the particular rule can be expected to change behaviour" to this new approach.
1) Offenders must be aware of the rule.
Check.
2) Knowledge must be able to influence behaviour at the time of the offence.
Unlikely.
3) They must believe the perceived costs outweigh the perceived benefits of offending.
Given the profanity laden ridicule this announcement has attracted?
Evidently not!
(Brown et al. 2011, pp.107-8)
This is just another example of a government instigating a zero tolerance policy designed to illustrate action more so than to endorse any real change. "Every minor infraction is punished to the full extent of the law" (Cowdery 2001, p.26 ). It acts under the assumption that the "theory of selective incapacitation: that is, if you 'take out' minor offenders they will not progress to committing major offences" is an effective rule of law enforcement. The real consequence of this approach, not specific to this offensive language example but in a broader legal context, is that minor offenders are sent to institutions where they learn from major offenders. The logic of this tactic is, to me, unfathomable.
"We want them to be responsible, so we take away all responsibilities... we want them to be non-violent, so we put them where violence is all around. We want them to be kind and loving people, so we subject them to hatred and cruelty... We want them to quit hanging around with losers, so we put all the losers under one roof."
(Challeen 1994, in Matthews 2006, p.1)
References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney
Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia
Madigan, D 2011 'I say fiddle sticks to your swearing fines Mr Baillieu', The Drum, 1 June
http://www.abc.net.au/unleashed/2740602.html
Matthews B 2006, Intractable, Macmillian, Sydney
The trial warrior 2011 'CTB v. twitter, Inc. and unknown persons: trying to flog a dead horse', The Trial Warrior Blog, 23 May
http://thetrialwarrior.com/2011/05/22/ctb-v-twitter-inc-and-unknown-persons-trying-to-flog-a-dead-horse/
Many are quick to criticise the effect of social media. Consider the recent case of CTB v Twitter Inc over the naming of Ryan Griggs despite his super-injunction (The trial Warrior 2011); or moral panics surrounding cyber bullying and sexting. There are just as many examples of the social media enterprise being used for the greater good. The recent 'slut walk' went viral over twitter and facebook rallying support for a worthy cause, making the arguably outdated and irrelevant concept of feminism resonate with an entirely new generation. So why the outrage over swearing legislation? These laws have actually existed for a great deal of time, in fact since 1966 you could face up to two years imprisonment for serious indecent language. (Madigan 2011) The difference was the matter had to go through the courts. This was expensive and there were large amounts of paper work involved for police. So surely dealing with this matter via a simple on the spot fine is a superior approach? Well no, not necessarily, a law has to actually be used to take effect so while this law has existed, it has remained largely symbolic. This is a classic example of technocratic justice, the drive for efficiency over the pursuit of justice.(Brown et al 2011) This reform may be imposed under the guise of saving police time and court costs, however this is simply untrue, as previously, pursuing such matters was probably not worth effort so did not occur. The greater ease this amendment has afforded police means we now run the risk of fines for profanities being handed out like speeding infringements. Ironically the fine for each of these offenses is roughly the same (Madigan, 2011). Which makes perfect sense considering one is potentially deadly, the other potentially offensive, wait a minute...?
Laurence H. Tribe said "An excess of law inescapably weakens the rule of law". Now that issues of wasting police time on paperwork needn't be considered we will just see more of these charges doled out thoughtlessly in response to an apparent deterioration in public behaviour. But will this achieve any substantial change? In his writing on overcriminalization Douglas Husak states "penal liability is unjustified unless it is imposed for an offense designed to proscribe a nontrivial harm or evil, and may not be inflicted unless the defendant's conduct is wrongful". He calls for a "stringent test of justification" for all legislation to avoid "cluttering our criminal codes" with mala prohibita offences, such as public profanities. Criminal legislation must have a legitimate and substantial state interest. One might claim, given the aforementioned uproar amongst the public, that this is simply untrue of this legislation. Given this law is aimed at remedying the "deterioration in public behaviour" we might apply the "three assumptions which must be satisfied before the particular rule can be expected to change behaviour" to this new approach.
1) Offenders must be aware of the rule.
Check.
2) Knowledge must be able to influence behaviour at the time of the offence.
Unlikely.
3) They must believe the perceived costs outweigh the perceived benefits of offending.
Given the profanity laden ridicule this announcement has attracted?
Evidently not!
(Brown et al. 2011, pp.107-8)
This is just another example of a government instigating a zero tolerance policy designed to illustrate action more so than to endorse any real change. "Every minor infraction is punished to the full extent of the law" (Cowdery 2001, p.26 ). It acts under the assumption that the "theory of selective incapacitation: that is, if you 'take out' minor offenders they will not progress to committing major offences" is an effective rule of law enforcement. The real consequence of this approach, not specific to this offensive language example but in a broader legal context, is that minor offenders are sent to institutions where they learn from major offenders. The logic of this tactic is, to me, unfathomable.
"We want them to be responsible, so we take away all responsibilities... we want them to be non-violent, so we put them where violence is all around. We want them to be kind and loving people, so we subject them to hatred and cruelty... We want them to quit hanging around with losers, so we put all the losers under one roof."
(Challeen 1994, in Matthews 2006, p.1)
References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney
Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia
Madigan, D 2011 'I say fiddle sticks to your swearing fines Mr Baillieu', The Drum, 1 June
http://www.abc.net.au/unleashed/2740602.html
Matthews B 2006, Intractable, Macmillian, Sydney
The trial warrior 2011 'CTB v. twitter, Inc. and unknown persons: trying to flog a dead horse', The Trial Warrior Blog, 23 May
http://thetrialwarrior.com/2011/05/22/ctb-v-twitter-inc-and-unknown-persons-trying-to-flog-a-dead-horse/
Abort Calls for Reform to Baby Killer Laws
On march 31 2011, Justine Hampton was sentenced to nine months imprisonment for dangerous driving causing grievous bodily harm. There is nothing extraordinary about this statement. Those who drive dangerously, take the risk of causing harm and going to jail. End of story. Well, not in this case. Brodie Donegan, the victim, was eight months pregnant at the time of the incident. She lost her baby as a result of her injuries. In the eyes of the law Brodie's baby did not constitue a life, only once a baby has taken its first breath outside of the womb can it be seen as a victim. Cue media interest and subsequent public outrage. Brodie and her unborn baby were framed by the media as the ideal victims, in "obvious need of protection... children are the archetypal innocent victims" (Surette 2007, p. 207) Justine on the other hand, who, at the time of the incident, was affected by a "cocktail of drugs" (ABC News, 2011) fitted perfectly into the role of the villain.
And so the stage was set for the standard media framing of these events in simplistic, dichotomous terms. The defenceless victim versus the drug riddled villain. Meyers has said "the innocent victim is cast in the vulnerable role" (Marsh and Melville 2009, p.107) This can be seen in the Daily Telegraph article which depicts Brodie as a woman nearing the uncomfortable end of her pregnancy, taking a walk to "stretch her restless legs", merely in the wrong place, at the wrong time.Further sympathy is evoked via an image of a forlorn woman with visible scarring taken, of course, in Zoe's would be room, complete with an inset image of Zoe's ultrasound.
Juxtapose this with the image of Justine, a mentally ill woman on a "cocktail of drugs" including methadone, commonly associated with ex-heroin users. The identification of methadone as one of the drugs is a blatant attempt to push a between the lines message. A message that drug addicts are criminals, the ideal offender "can never be rehabilitated or resocialized" (Surette 2007 p. 207) and so they should be treated punitively, as they are a menace to society. Now that the public is suitably outraged, their faith in the legal system shattered, it is time to highlight the apparent discrepancies in the law.
Why is this woman allowed to get off on just a grievous bodily harm charge, should she not have to pay for the murder of that baby?
Well according to NSW juristiction no, and here's why...
Currently the law says a defendant may be charged with grievous bodily harm if a woman loses her unborn baby, even if there is no injury to herself (Crimes Amendment (grievous bodily harm) Bill 2005). Essentially the law recognises the fetus as an extension of the mother, not as a separate life. So as long as the mother survives one can only be charged with grievous bodily harm, not murder or manslaughter. In the aftermath of events such as Brodie's case, the media features headlines such as, "Heartbroken family calls for change to laws on unborn babies" fueling the public outcry for law reform. However the full implications are rarely assessed. One might question the extent of these journalists thought processes prior to these calls for justice, as the complexities of this issue are far deeper than they may initially appear.
The first issue I see in declaring a fetus a life is where exactly to draw the line on who to convict?
This case, as framed by the media seems quite black and white, we sympathize with the ideal victim and her tragic circumstances while berating the ideal offender. It's easy to direct blame and anger at a stranger, but what if Brodie's husband had been driving? Would the calls for law reform be so loud? What if the mother crashed her car while speeding? When her fetus is considered a physical extention of herself she cannot be charged with grievous bodily harm, if the life however is separate, can she be convicted of manslaughter? If their dangerous driving were to kill a living, breathing passenger they could be, so what would be the difference? In such a circumstance the public would surely be more sympathetic, but the law cannot afford this bias.
If someone intentionally hurts the mother, killing her baby, not knowing she was preganant, is this murder or manslaughter? The intent is against the mother not the unborn child, so would the mens rea transfer from mother to child? If the lives are to be considered two seperate ones shouldn't they remain so? So in such case would the charge not be dismissed all together, afterall an act cannot be considered a guilty one unless the mind is guilty also.
Finally, without getting into a debate on the morality of abortion, one might wonder what would be the implications for abortion laws? Currently the laws remain an legal grey area in this country: not technically legal; not strictly outlawed. Considering that an offence is committed when actus reus and mens rea coincide, then a planned abortion would be murder, if the law were to consider a fetus to be a life, that is.
Clearly the legal complexities of this issue are far more intricate than any attention grabbing headline might indicate. This one tragic circumstance should not detract from the overall scope of the law and calls for reform are premature while all surrounding questions remain unanswered.
References
Marsh I & Melville G 2009, Crime, justice and the media, Routledge, New York
Surette R, 2007, The media and criminal justice policy, Thomson/Wadsworth, Belmont
Hatzistergos J 2005, Crimes Amendments Grievous Bodily Harm Bill, 3 March, Parliment of New South Wales, http://www.parliament.nsw.gov.au/Prod/parlment/hansart.nsf/V3Key/LC20050503016
Mccumstie A 2010, 'Heartbroken family callsfor change to laws on unborn babies', Express Advocate, 25 May http://express-advocate-gosford.whereilive.com.au/news/story/heart-broken-family-calls-for-change-to-unborn-baby-laws/
Noone, R et al. 2010, 'Attorney-General calls for full report on Zoe's law', The Daily Telegraph, 25 May http://www.dailytelegraph.com.au/news/sydney-nsw/attorney-general-calls-for-full-report-on-zoes-law/story-e6freuzi-1225870776852
And so the stage was set for the standard media framing of these events in simplistic, dichotomous terms. The defenceless victim versus the drug riddled villain. Meyers has said "the innocent victim is cast in the vulnerable role" (Marsh and Melville 2009, p.107) This can be seen in the Daily Telegraph article which depicts Brodie as a woman nearing the uncomfortable end of her pregnancy, taking a walk to "stretch her restless legs", merely in the wrong place, at the wrong time.Further sympathy is evoked via an image of a forlorn woman with visible scarring taken, of course, in Zoe's would be room, complete with an inset image of Zoe's ultrasound.
Juxtapose this with the image of Justine, a mentally ill woman on a "cocktail of drugs" including methadone, commonly associated with ex-heroin users. The identification of methadone as one of the drugs is a blatant attempt to push a between the lines message. A message that drug addicts are criminals, the ideal offender "can never be rehabilitated or resocialized" (Surette 2007 p. 207) and so they should be treated punitively, as they are a menace to society. Now that the public is suitably outraged, their faith in the legal system shattered, it is time to highlight the apparent discrepancies in the law.
Why is this woman allowed to get off on just a grievous bodily harm charge, should she not have to pay for the murder of that baby?
Well according to NSW juristiction no, and here's why...
Currently the law says a defendant may be charged with grievous bodily harm if a woman loses her unborn baby, even if there is no injury to herself (Crimes Amendment (grievous bodily harm) Bill 2005). Essentially the law recognises the fetus as an extension of the mother, not as a separate life. So as long as the mother survives one can only be charged with grievous bodily harm, not murder or manslaughter. In the aftermath of events such as Brodie's case, the media features headlines such as, "Heartbroken family calls for change to laws on unborn babies" fueling the public outcry for law reform. However the full implications are rarely assessed. One might question the extent of these journalists thought processes prior to these calls for justice, as the complexities of this issue are far deeper than they may initially appear.
The first issue I see in declaring a fetus a life is where exactly to draw the line on who to convict?
This case, as framed by the media seems quite black and white, we sympathize with the ideal victim and her tragic circumstances while berating the ideal offender. It's easy to direct blame and anger at a stranger, but what if Brodie's husband had been driving? Would the calls for law reform be so loud? What if the mother crashed her car while speeding? When her fetus is considered a physical extention of herself she cannot be charged with grievous bodily harm, if the life however is separate, can she be convicted of manslaughter? If their dangerous driving were to kill a living, breathing passenger they could be, so what would be the difference? In such a circumstance the public would surely be more sympathetic, but the law cannot afford this bias.
If someone intentionally hurts the mother, killing her baby, not knowing she was preganant, is this murder or manslaughter? The intent is against the mother not the unborn child, so would the mens rea transfer from mother to child? If the lives are to be considered two seperate ones shouldn't they remain so? So in such case would the charge not be dismissed all together, afterall an act cannot be considered a guilty one unless the mind is guilty also.
Finally, without getting into a debate on the morality of abortion, one might wonder what would be the implications for abortion laws? Currently the laws remain an legal grey area in this country: not technically legal; not strictly outlawed. Considering that an offence is committed when actus reus and mens rea coincide, then a planned abortion would be murder, if the law were to consider a fetus to be a life, that is.
Clearly the legal complexities of this issue are far more intricate than any attention grabbing headline might indicate. This one tragic circumstance should not detract from the overall scope of the law and calls for reform are premature while all surrounding questions remain unanswered.
References
Marsh I & Melville G 2009, Crime, justice and the media, Routledge, New York
Surette R, 2007, The media and criminal justice policy, Thomson/Wadsworth, Belmont
Hatzistergos J 2005, Crimes Amendments Grievous Bodily Harm Bill, 3 March, Parliment of New South Wales, http://www.parliament.nsw.gov.au/Prod/parlment/hansart.nsf/V3Key/LC20050503016
Mccumstie A 2010, 'Heartbroken family callsfor change to laws on unborn babies', Express Advocate, 25 May http://express-advocate-gosford.whereilive.com.au/news/story/heart-broken-family-calls-for-change-to-unborn-baby-laws/
Noone, R et al. 2010, 'Attorney-General calls for full report on Zoe's law', The Daily Telegraph, 25 May http://www.dailytelegraph.com.au/news/sydney-nsw/attorney-general-calls-for-full-report-on-zoes-law/story-e6freuzi-1225870776852
Subscribe to:
Posts (Atom)