Abortion Discussion, Part the Fourth

end of the road

https://www.boards.ie/discussion/comment/120711195#Comment_120711195

i would expect the judge considered all factors, i would expect he is obligated to do so where and when they are relevant.

remember sending someone to prison can be about the seriousness of the offence, rather then being about whether one may be a danger to the public or could potentially reoffend.

it can also be about sending out a message to others to not do the same thing.

Hotblack Desiato

Sentences are changed on appeal all the time. Convictions overturned regularly too (although that seems pretty unlikely in this case).

Judges make mistakes same as anyone else.

end of the road

https://www.boards.ie/discussion/comment/120712087#Comment_120712087

i know.

but unless the appeal throws up something then there looks to me to be no mistake here.

the unborn baby/fetus/whatever term one wants to use was way into viability so this would be a serious enough offence, so would have had to have a custodial sentence.

Hotblack Desiato

The judge said it would probably not have been a custodial sentence if she had pleaded guilty from the start!

So no, you're wrong, it would not have to have been a custodial sentence.

aloyisious

https://www.boards.ie/discussion/comment/120709181#Comment_120709181

As the sentence has been given, our discussing it and the reasoning behind the judge's statement is probably moot. I agree with your thinking above re the early guilty plea resulting in a suspended sentence. My point was that the judge seems to have decided to send the woman to prison not for the unlawful offence she chose to commit but for not entering a guilty plea early enough as well as he specifically mentioned that as a reason for the committal sentence he gave her. It seems he might have actually given her a suspended sentence otherwise in respect of the charge he found her guilty of.

Peregrinus

In the UK (and most countries) there are sentencing principles which work more or less like this: the legislature typically sets the maximum penalty for a crime (and occasionally also the minimum penalty) but it's recognised that the maximum penalty won't be appropriate in most cases; the maximum is only appropriate in the most serious cases. So there's a range of factors that you look at when considering sentencing — the particular circumstances of the offence, particular factors that either aggravate or mitigate the offence, etc. You consider these factors when working down from the maximum to something that seems appropriate. (An early guilty plea is one of the factors that mitigates and, the earlier it is, the more it mitigates.) Judges don't make up the sentencing factors ad hoc; there's general guidance given by the higher courts in earlier cases (and specific sentencing guidelines in relation to particular offences though not, I think, this offence). A trial judge is expected to apply the sentencing factors in all cases, and to follow the sentencing guidelines in cases where relevant guidelines have been issued.

But the judge's starting point for this process always has to be the penalty set by the legislature, which in this case is life imprisonment. The judge won't ever operate on the basis that the legislature shouldn't have set the maximum that it did; that's not the judge's call to make.

It's been reported that the judge indicated that a guilty plea at the earliest opportunity would have resulted in a non-custodial sentence. I haven't looked in detail at the facts of this case, or at the sentencing remarks, but at first glace that looks to me like a pretty aggressive application of sentencing factors (as in, aggressively in favour of the defendant). In general it's a big ask to find sentencing factors that get you all the way from life imprisonment down to a non-custodial sentence.

I think there is likely to be an appeal against sentence. It remains to be seen whether the appeal court will think the sentencing factors were correctly applied in this case.

But, regardless of the outcome of the appeal, I think the fundamental issue here is the one pointed out by Hotblack in post 2753; the statutory maximum penalty for this offence, from which all else flows, is life imprisonment. In England in 2023, does that reflect community values, beliefs, expectations in relation to this offence?

(For what it's worth, the statutory maximum penalty in Ireland for the offence of intentionally destroying unborn human life (where not permitted under the Health Act) is 14 years' imprisonment.)

ohnonotgmail

https://www.boards.ie/discussion/comment/120713180#Comment_120713180

It would take a pretty aggressive application of sentencing factors to go from 14 years down to a suspended sentence. As it was the judge went from life to 2 years, with the first year being in custody. so the judge was minded to give as low as sentence as possible. I still maintain the defendant was badly advised. Given the facts as stated a conviction was inevitable. an early guilty plea would have the sensible option from a legal perspective.

Peregrinus

https://www.boards.ie/discussion/comment/120713224#Comment_120713224

Nitpick: We don't know what advice she was given. Defendants always get advice, but they don't always follow it.

ohnonotgmail

https://www.boards.ie/discussion/comment/120713281#Comment_120713281

that is a fair point. either way her course of action was unwise.

Hotblack Desiato

There is real value in an early guilty plea when it prevents the victim / their family having to testify and / or suffer through a trial.

That's not the case here.

Seems from their remarks that the judge was more miffed at the lateness of the guilty plea than anything else (and, yes, accused badly advised or would not take advice)

I expect the sentence to be appealed.

I also expect the 1861 Act to be toast in relatively short order.

It's bizarre that abortion was decriminalised in NI but not in England, Scotland and Wales.

Peregrinus

https://www.boards.ie/discussion/comment/120713398#Comment_120713398

That consideration would make it more difficult to justify reducing a life sentence to non-custodial on the basis of a guilty plea, surely?

A wild guess suggests to me that, with his comment about what he would have done with a first-opportunity guilty plea, the judge was signalling that he was doing his best for the defendant; if he could have reduced the sentence all the way down to non-custodial, he would have.

As for it being bizarre that abortion has not been decriminalised in England, it's as toxic a political issue there as it is in Ireland. The framework for UK abortion law was set in 1967, and reflects a set of compromises between competing views that predominated at that time. There has been extreme reluctance to revisit it, except around the margins. I agree with you that this case may now cause it to be revisited. But that will not necessarily result in decriminalisation; it could just mean a reduction in the maximum sentence, or it could mean some other change that falls short of decriminalisation.

This is still a case that a lot of people will find shocking. The abortion occurred at 32-34 weeks, well after the threshold of viability. If born alive at 32-34 weeks, a baby would be considered only moderately preterm, and would have an excellent likelihood of survival without complications. There's a legitimate debate to be had about the proper societal response to abortion at this stage of pregnancy, but the view that it should attract no legal response at all may not command universal support.

Abortion hasn't been entirely decriminalised in NI; it remains an offence to terminate a pregnancy otherwise than in accordance with the regulations. But the maximum penalty is an unlimited fine, and - crucially - it's not an offence for the woman herself; just for everyone else involved.

This may not be a brilliant scheme overall. What it means in practice is that a woman who wants an abortion outside the regulations can't get any medical or professional assistance; she has to arrange and administer her own abortion, if necessary through lying and concealment. That's not a good combination of incentives, it incentivises exactly what happened in this case.

Hotblack Desiato

Never the slightest chance of a life sentence whatever the 1861 Act says.

Westminster voted to decriminalise it (as far as the woman is concerned) in NI so why on earth not in Britain. It just requires a Private Members's Bill to come to a vote, or the government to initiate a Bill. This case may help bring that about. I would then expect a free vote to succeed easily.

Like it was the case here for many years, I think a small but very vocal minority are giving the impression of controlling the debate but that's because most of the time they're the only ones talking about it. That changed completely here in the run up to 2018 and there will now be many calling for change in GB.

Peregrinus

https://www.boards.ie/discussion/comment/120713741#Comment_120713741

Oh, I know. But the sentences are that are awarded will all be conditioned by the fact that that is the max. If the max were, say, 5 years then actual sentences would be correspondingly lighter.

aloyisious

https://www.boards.ie/discussion/comment/120713290#Comment_120713290

Given the fact reported by the news that evidence was given during the trial by the prosecution that the woman went online seeking information about the law/s governing late abortions and the use of the pills at the late stage of her pregnancy, I'd have said the advice she got was not to her good. I don't know if she was aware of the strength of the prosecution case but it certainly points to the risk of using the internet to seek information as the search is recorded. Library book research seems safer as the pages turned don't get recorded.

Peregrinus

https://www.boards.ie/discussion/comment/120714668#Comment_120714668

She would have known what evidence the prosecution were going to advance. This is routinely disclosed to defendants in advance of the trial. She knew when she put in her plea that the prosecution knew all about her search history.

We're getting a bit sidetracked, though. Obviously the defendant made some poor judgments both at the time she organised the abortion, and in the course of the legal proceeding against her. Equally obviously, she was in a situation of considerable crisis, pressure and stress. Some people deal better with such situations than others, but it's not wholly surprising when poor judgments get made in this situations.

None of that is in dispute, and none of it is unusual. The criminal courts are filled with defendants who have made poor judgments in stressful situations.

The issue is whether a maximum of a life sentence is seen as the appropriate legal response to the poor judgments made in this case and, if not, what is?

smacl

https://www.boards.ie/discussion/comment/120714924#Comment_120714924

The issue is whether a maximum of a life sentence is seen as the appropriate legal response to the poor judgments made in this case and, if not, what is?

As per Hotblack's post, if the life sentence is highly unlikely to ever be dished out it is probably not an appropriate maximum. I can't think of any other crime that carries a potential life sentence where person involved is no threat to the broader community and unlikely to reoffend. While I appreciate that there are those who would consider the unborn foetus in this scenario to be akin to a murder victim, I'm not convinced this is a reasonable position for the law to take. If, for example, the woman were to have a miscarriage, due to excessive drinking, smoking etc..., could it legally be considered to be manslaughter?

ohnonotgmail

https://www.boards.ie/discussion/comment/120715206#Comment_120715206

well in this scenario the fetus was sufficiently developed as to be viable.

Hotblack Desiato

If she'd requested an immediate delivery though could she have got one?

ohnonotgmail

https://www.boards.ie/discussion/comment/120715965#Comment_120715965

You would a doctor have induced her unnecessarily? Possibly not.

Hotblack Desiato

so we're back to chaining people to the bed again?

Peregrinus

https://www.boards.ie/discussion/comment/120715206#Comment_120715206

Inducing a miscarriage, even intentionally, is neither murder nor manslaughter (and never has been). That's why it had to be separately criminalised in the 1867 Act.

The life sentence, of course, was considered to be appropriate in 1867, at a time when a lot more offences attracted a life sentence (and at a time, contrary to what you might think, actual sentences served might be dramatically less than those imposed; someone sentenced to life imprisonment in the 1860s would likely be transported to Australia and, if not considered a risk to others, given ticket-of-leave within months).

But it's worth pointing out that assigning a life sentence doesn't mean that the offence was equated to murder, not least because at the time and for nearly a century afterwards murder carried an automatic death sentence. Even today, a wide range of crimes other than murder carry a (potential) life sentence in the UK — manslaughter, false imprisonment, wounding with intent to cause GBH, causing bodily injury by explosives, endangering the safety of railway passengers, making or possessing explosives under suspicious circumstances, infanticide, possession of a firearm with intent to endanger life, robbery, assault with intent to rob, aggravated burglary, torture, endangering safety at aerodromes, rape, sexual activity with a person having a mental disorder impeding choice, paying for sexual services of a child, carrying a firearm with criminal intent . . . the list is very long.

But, yeah, what might have seemed appropriate given sentencing policy and practice, and attitudes to abortion, in the 1860s definitely looks anomalous today. I suspect it has remained in place because the toxicity of abortion politics discourages politicians from attempting any reform, and also because the crime itself is very rarely committed or prosecuted.

ohnonotgmail

https://www.boards.ie/discussion/comment/120716530#Comment_120716530

Please don't put words into my mouth.

smacl

https://www.boards.ie/discussion/comment/120715433#Comment_120715433

No argument there, just struggling in my own mind to imagine what would be an appropriate legal response that adequately addresses the needs of society and the care of the woman involved. The questions we need to ask ourselves are firstly whether the sentence passed down was appropriate and secondly, if not, what would be the appropriate legal response?

Peregrinus

https://www.boards.ie/discussion/comment/120716910#Comment_120716910

And I think there's a bigger question — what happened so that the woman got into this situation, and what needed to have happened so that she didn't? I think we can all agree that late-term abortions of this kind are very, very problematic, and something that as a society we should seek to avoid. Maybe the criminal law isn't the best or most effective instrument to be using to address this problem.

smacl

https://www.boards.ie/discussion/comment/120716999#Comment_120716999

I was thinking the same, there seems to be an awful lot of contextual information here that we don't have that doesn't merit speculation. I'd agree that criminal law is the wrong tool here when considered in isolation.

Hotblack Desiato

https://www.boards.ie/discussion/comment/120716707#Comment_120716707

I don't think I was. Didn't mean to anyway. But I want to find out what alternatives were open to this woman who had made up her mind that, at any cost, she could not continue to be pregnant. Her actions were quite extreme.

Can't legally abort, doctors can't or won't deliver. If patient threatens self-destruction does that move the needle?

We had a chained to the bed and forced c-section case here a few years back.

Thankfully this sort of situation is exceedingly rare but I think this case and others demonstrate that criminalisation of the woman is not the answer.

Peregrinus

As other has pointed out, if this woman had done what she did in Northern Ireland, she would not have committed an offence.

And yet I don't think NI is afflicted with a plague of late-term abortions.

Which suggests that, yeah, there are probably approaches to dealing with these distressing cases that don't depend on criminalisation.

Hotblack Desiato

She finally got an induction but not until she nearly died.

https://www.bbc.com/news/world-us-canada-65935189

Doctors told her she had cervical insufficiency, which is a weakening of the cervical tissue that causes premature dilation, and that her unborn daughter would not survive. She and her husband were devastated.

"She was a baby that we desperately, desperately wanted," she said.

A standard course of medical treatment for an unviable pregnancy at that stage of development is to terminate, and extract the foetus. Waiting to miscarry naturally can put the mother at risk for infection, which can prove fatal.

But doctors told her they couldn't terminate her pregnancy, as under the state's laws, it was a crime to perform an abortion when there was a foetal heartbeat, unless the mother's life was threatened. Essentially, the message was that she was not sick enough yet to legally justify an abortion.

Three days later, Amanda developed a life-threatening infection and went into septic shock.

robindch

The Beeb checks out Kristan Hawkins, a woman with only one interest, and only one book, in her life. Apologies for linking to an article with a clickbait headline.

https://www.bbc.com/news/world-us-canada-65923956

Hotblack Desiato

Read that yesterday, thin article apart from exposing the obsessive nature of people like that - can't be right in the head.

Anyone who ever said "overturning Roe v Wade was impossible" etc etc is an idiot. All it needed was for sufficient vacancies to arise on SCOTUS at a time when the president and congress were happy to appoint any moron provided they were resolutely anti-abortion.

There will never be a federal law enacted on abortion one way or the other. Agreement is impossible.

Her contempt for democracy and the American public shines through everything. She is right and her opinion is the only one that matters.

Laughable that she says the fake 'Silent scream' video was a turning point for her - when she was already enrolled in an anti-abortion group. Of course if she'd been to a catholic school she'd have already seen it...