Assaulting a pregnant woman with the intent to kill her unborn child.

JimiTime

This is a scenario I'd be curious about. Does anyone know what the charge would be if someone assaulted a pregnant woman in order to cause the death of their unborn child and suceeds? Is that just counted as an assault on the mother? Or is the life of the child taken into account?

Thanks.

McCrack

Section 3, possibly Section 4 assault. I'm not sure if the unborns life is taken into consideration but I would say it would certainly be an aggravating factor when sentencing, I'd be leaning towards saying the court would be looking more at the effect on the mother both physical and mental.

Tom Young

OP: If the assault on the parent/carrier succeeds then it Edit: could be murder.

Section 4 of the 1964 CJA.

(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.

(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.

Intent would more than likely be an element present, thus the charge of attempted murder could stand.

TJM

See Attorney General’s Reference No. 3 of 1994 [1998] AC 245, particularly in relation to whether the doctrine of transferred malice can apply to an intent aimed at the mother.

Tom Young

Has this been tested in Ireland? ...and in the OPs example is the intent aimed solely at the mother?

McCrack

There is no such crime under Irish law as murder of a foetus, the thing murdered must have an independent existence i.e a living human being.

I'm just not sure what the exact charge would be, I'm thinking also that there maybe charges under Offences Against the Person Act 1861 re abortion as well as the NFOAPA '97.

Dante09

This very scenario (or similar enough just a lot more beefed up) came up in the criminal FE1 last sitting (in march).
Id have to agree with McCrack. All common law jurisprudence suggests that only a living, self-sufficient human being can be murdered. There is no authority to suggest that a fetus constitutes this.
Furthermore, common law authority suggests that a person can only be considered "murdered" if that person is dead and in R v Quitting & Adams it was said:
"traditionally both law and medicine have been unanimous in saying that it is not safe to pronounce a man dead until after his vital functions have ceased to operate"
I would be tempted to make the argument that the "vital functions" of the fetus are not in fact that vital because it is fully dependent on the mother to stay alive and therefore in my opinion, cannot be categorized as a "man" for the purposes of the above definition of death.
But like I said, there is no actual case law on this point at common law so its hard to say how the courts would construe this. It would be VERY interesting.
In Vo v France (in this case a doctor negligently caused a fatal injury after mistaking the mothers identity for that of another patient) the French Criminal Court (Civil law jurisdiction for those who dont know) acquitted the doctor on the basis that the fetus was not a human being. Last October the Grand Chamber of the ECHR heard this case but side-stepped the issue of whether the fetus falls under Article 2 (right to life) stating that if did, France had not violated its provisions.
ie: the issue is also undecided at European level.

Very interesting question OP

JimiTime

Thanks for your responses guys. I thought of this when discussing abortion. I then wondered how the law would deal with the intentional killing of an unborn child, i.e. Did the law bestow any rights to the unborn. If I were to summarise, would I be correct in saying the following:

Presently, the law will not recognise the rights of the unborn, but rather relate any injury to the unborn as injury to the mother? I.E. You cannot 'murder' an unborn child?

I gather by the responses that there is some grey area's, but you would lean towards the above?

GUIGuy

"only a living, self-sufficient human being can be murdered" well then one could suggest that assaulting a premature baby that was on a ventilator with the intent of ending his/her life is not murder!

The problem is that "living" and "self-sufficient" especially are very subjective.

Would shooting a parasitic conjoined twin in the head not be murder? We might subjectively assume that they are alive, because they have their own sentient awareness. In many separation operations it is well known that the parasitic person will die... so one is killed so that the other can live.

This raises another issue which is that we consider them 'alive' and afford them 'personhood' because they have sentience...

Has the govt ever defined what a person is, when they are deemed to be alive, and what degree of independence, sentience is required to have protection under the law?

GerardKeating

JimiTime wrote: »

This is a scenario I'd be curious about. Does anyone know what the charge would be if someone assaulted a pregnant woman in order to cause the death of their unborn child and suceeds? Is that just counted as an assault on the mother? Or is the life of the child taken into account?

Thanks.

In Theory one could be charged with perform an illegal abortion, but i doubt if they would take it...