I must admit to being rather late to this debate. I followed the postings of others whose opinions I trust on the subject and even a cursory glance at the snippets of the bill and the comments of its supporters made it clear that it was more of a stealth attempt to make abortion more difficult if not outright illegal, and related to that but more important, to restrict a woman’s right to her own body.
After reading this post by 900 ft Jesus, along with the comments, I actually sat down and read through the bill. It left me rather disturbed and I think it’s important to explain why.
Here is the part 900’s post didn’t include:
238.1 (1) Every person who, directly or indirectly, causes the death of a child during birth or at any stage of development before birth while committing or attempting to commit an offence against the mother of the child, who the person knows or ought to know is pregnant,
(a) is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of 10 years if the person
(i) means to cause the child’s death, or
(ii) means to cause injury to the child or mother that the person knows is likely to cause the child’s death, and is reckless as to whether death ensues or not;
(b) is guilty of an indictable offence and liable to imprisonment for life if paragraph (a) does not apply but the person shows wanton or reckless disregard for the life or safety of the child; or
And here is the part that 900 quoted:
(2) An offence that would otherwise be an offence under paragraph (1)(a) may be reduced to an offence under paragraph (1)(b) if the person who committed the offence did so in the heat of passion caused by sudden provocation within the meaning of section 232.
Section 232, for thoroughness, reads as follows:
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
As explained in most introductory law courses, the provocation in question is usually of the scale of walking in on your significant other shagging somebody else and killing one or the other or both in a fit of rage.
It took me a while to work out why this all bugged me. To begin, paragraph 238.1(1) relates to basically causing a miscarriage, but is only an offense if the person causing said miscarriage is aware, or should be aware, that the woman is pregnant. Causing a miscarriage while being unaware of the pregnant state of the woman you’re beating means you’re free and clear so far as this section is concerned.
The sub-paragraphs speak to the intent of the offender. You’re guilty of an offense under (1)(a) if you have the intent to kill or cause fatal harm to the unborn child. You’re guilty under (1)(b) if, while beating the woman, you’re not being too careful about the child she’s carrying. The difference is significant not only regarding intent, but because later in the bill, another section is amended to make it possible for courts to delay parole for offenses under (1)(a).
You don’t have to go any further than this to see that the focus is on the foetus and not the woman. The severity of the offense in this section is entirely independent of the woman’s fate. Indeed, regardless how badly she’s beaten or otherwise harmed, you are only culpable of the most serious offence if you
intended to terminate the pregnancy or were certainly aware that your actions would do so.
The section 900 highlighted merely adds insult to injury. Read in the context of the above, you can attack and beat a woman with the intent to cause the death of the unborn child and still be granted a more lenient sentence and possibility of early parole if you were somehow “provoked” into wanting to terminate the pregnancy through abusive means.
Sickening even to contemplate.