Consider this scenario: a pregnant woman is walking down the street. A person shouts at her that he intends to kill her unborn child. She runs, but the assailant catches her, and strikes her in the abdomen. The woman receives minor injuries but the child dies in utero resulting in her delivering a dead baby.
In Queensland, such an assailant would be charged under section 313 (2) of the Criminal Code which reads – Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime. It could be expected that given the above circumstances, with the child having been killed, the assailant would receive the maximum penalty for this offence, life in prison.
This section was added to the Queensland Criminal Code in 1997. And who could possibly argue against it? It is surely a terrible thing when an assault on a pregnant woman results in the child that she is carrying being killed or injured.
But wait, there is more to the above story. After the assailant has been found guilty and sent to prison, only then is it revealed by the woman that at the time of the assault she had in fact been on her way to the local abortion clinic to have her child’s life ended.
Thus it would be the case that even though an identical outcome would have been arrived at in both scenarios– the child being killed- the person who kills the child would be treated completely differently in each instance.
In the original scenario the one who did the killing of the child would be expected to be sent to jail for life; while in the extended scenario, the one who would have killed the child would have gone unpunished. Indeed, the abortionist would have been paid for carrying out the act.
The only reason that the assailant could have been given such a severe sentence, life imprisonment, for assaulting a pregnant woman would be because the attack took the life of the preborn child. This section of the Code effectively recognises that a homicide (killing of one human being by another) has taken place. Of course the assailant would also be guilty of committing an assault against the mother, but assault is not an offence that is penalised with life imprisonment.
In the extended scenario also, the child’s life would have been taken, but this time by an abortionist acting at the request of the mother. Thus the only relevant difference between the two scenarios is that in the first the child is killed without the consent of the mother and in the second the child is killed with the consent of the mother.
But can one human being lawfully give consent for an action to be done to another human being, where, merely in the absence of the first person’s consent, such an action would be regarded as a major crime?
For example, imagine a situation where a husband gives consent for a man to rape his wife. If the rapist were to argue in his defence that he had not committed a crime because the victim’s husband had consented to the rape, the argument would be thrown out of court and the rapist into jail – probably along with the husband!
Simply because one person has given consent for a criminal act to be done to a second person, such consent does not make the criminal act any less criminal. No one can lawfully consent to the homicide of another human being.
If words mean anything, and if we are to be consistent, then Section 313 (2) of the Queensland Criminal Code should mean that a woman cannot give lawful consent to an abortionist to kill her baby.
We are clearly living with a double standard, for what the present situation boils down to is this: if a woman wants her unborn child, then we recognise that child’s life as having the same value as a born person’s life. If anyone should kill that wanted child they are severely punished.
But if the woman does not want that exact same child, then we are prepared to let that child be treated like so much garbage to be thrown out. (In Queensland there are 15 000 babies deliberately aborted each year– one baby aborted for every three born alive.) This is to be inexcusably inconsistent.
It should also be noted that in 2002 the Queensland Court of Appeal upheld a Supreme Court ruling (Bowditch v McEwan and Orrs) that a mother has a duty of care to her unborn child. Given this, can such a duty of care simply evaporate in order to allow for the destruction of the child’s life by abortion to take place?
In turn it will be pointed out that according to Section 292 of the Queensland Criminal Code, “A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, …” But as has already been noted, there is no requirement in Section 313 (2) for a child to be born alive in order for the assailant who kills the child to be effectively charged with homicide.
Moreover, the “born alive” requirement of Section 292 was an evidentiary rule that was developed hundreds of years ago because of the difficulty at that time of proving that an abortion necessarily had caused the death of a human being. But nowadays the cause of death can be proven and the rule rebutted.
In 1984 in the Common Law jurisdiction of Massachusetts, there was an attack on the “born alive” requirement in a trial for statutory murder. (Commonwealth v Cass) It was held by a majority of seven judges in the Supreme Court of Appeal that “born alive” is no longer required. The Court in Cass had the following to say:
“… we stated that conditioning a right of action on whether a fatally injured child is born dead or alive is not only artificial and unreasonable, but unjust as well … the word ‘person’ is synonymous with the term ‘human being.’ The offspring of human persons cannot reasonably be considered to be other than a human being, and therefore a person … problems in proving causation do not detract from the personhood of the victim.
“… The rationale offered for the rule since 1348 is that ‘it is difficult to know whether [the defendant] killed the child or not …’ That is, one could never be sure that the fetus was alive when the accused committed his act. However difficulty in proving causation is no sound reason for denying criminal liability. Medical science may now provide competent proof as to whether the fetus was alive at the time of the defendant’s conduct and whether his conduct was the cause of death.
“We have long since concluded that fear of speculations is not a sufficient ground for denying a civil right of action for pre-natal injuries … we think that the better rule is that infliction of pre-natal injuries resulting in the death of a viable fetus, before or after it is born, is homicide.”
Section 313 (2) of the Queensland Criminal Code in fact goes further than this American case in that it makes no requirement that the child that is killed be viable. Recognition is given to human life right throughout pregnancy. If a human life is deliberately taken, then the laws of homicide should apply to that killing.
To try and remedy this hypocritical situation, we can take one of two options. One option would be to take section 313 (2) back out of the Criminal Code. But how could that be justified? The reason the section was added was because it was so evident how manifestly unjust it was that a pregnant woman’s child could be killed, yet the destruction of that child’s life had to go unrecognised and unpunished.
The other option would be to close down the abortion clinics.
Of course though, we could just try and ignore this dilemma and simply continue to live as hypocrites. After all, other societies have managed to live with double standards – double standards which resulted in such horrors as the enslavement of dark-skinned people and the destruction of the Jews.
But not all of us are willing to just ‘live with’ this particular horror.
Returning to the scenario at the beginning of this article: if someone had come to the rescue of the pregnant woman and her unborn child being attacked in the street, they would be rightly applauded.
But, if someone should non-violently come to the aid of that same child about to be taken through the doors of an abortion clinic to be killed by an abortionist, we want to lock that rescuer up. Why? After all, section 273 of the Queensland Criminal Code does allow a person to use reasonable force when coming to the defence of another.