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