Child destruction

Child destruction is the name of a statutory offence in England and Wales, Northern Ireland and Hong Kong. The offence of that name has been abolished and replaced in Victoria.

Child destruction is the crime of killing an unborn but viable fetus; that is, a child "capable of being born alive", before it has "a separate existence".[1]

People have been convicted of the offence for injuring a heavily-pregnant woman in the abdomen, such that her fetus dies; for killing a fetus during childbirth; or for performing a late-term abortion. In United States law, the crime of feticide may encompass both illegal abortion of non-viable fetuses and what would in English law be defined as "child destruction".[citation needed]

Its purpose is to criminalize the killing of a child during its birth, because this is neither abortion[2] nor homicide[3] for the purposes of the criminal law. It can also be used to prosecute late abortions.[4]

During the second reading of the Preservation of Infant Life Bill 1928 to 1929, Lord Atkin said:

As the noble and learned Lord has explained, the gap is that, whereas the mother of a child who kills it after it has a separate existence is guilty of what was the crime of murder and is now the lesser offence of infanticide, yet, if she kills the child in the actual course of delivery or within such a short time afterwards that it has not had and cannot be proved to have had a separate existence, it is not an offence.[5]

Contents

England and Wales

In England and Wales, the offence is created by section 1(1) of the Infant Life (Preservation) Act 1929:

(1)Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

(2)For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be primâ facie proof that she was at that time pregnant of a child capable of being born alive.[6]

"Felony"

See the Criminal Law Act 1967.

"Penal servitude"

The reference to a sentence of penal servitude must be construed as a reference to a sentence of imprisonment]]: The Criminal Justice Act 1948, section 1(1).

A registered medical practitioner who terminates a pregnancy in accordance with the provisions of the Abortion Act 1967 does not commit this offence.[7]

Mode of trial

Child destruction is an indictable-only offence.[8]

Sentence

Child destruction is punishable with imprisonment for life or for any shorter term.[9]

The 1929 Act defined "capable of being born alive" as 28 weeks' gestation, later reduced to 24 weeks.[1]

The charge of child destruction is rare.[10] There were ten cases in the ten years to 1987.[11] When a woman who had a backstreet abortion while 7½ months pregnant was given a suspended sentence of 12 months in 2007,[12] the Crown Prosecution Service was unaware of any similar conviction.[10] In 2000, a man who stamped on his girlfriend's abdomen caused her to go into premature labour. Since he had intended to kill the fetus in the womb, whereas in fact the baby died shortly after birth, he was convicted of manslaughter and attempted child destruction.[13]

On February 12, 2011, 26 year old Carl Whant was charged with child destruction and murder of a 19 year old woman who was 8½ months pregnant.[14]

Northern Ireland

In Northern Ireland, the offence is created by section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. [15]

Sentence

Child destruction is punishable with imprisonment for life or for any shorter term.[16]

Use

The first conviction for this offence was in 1997.[17] The coroner reporting on the 1998 Omagh bombing recommended that the Director of Public Prosecutions for Northern Ireland should prosecute for two counts of child destruction as well as 29 of murder, as one of those killed was 34 weeks pregnant with twins.[18]

Australia

Each state and territory of Australia has a separate criminal code. The offence is called "killing unborn child" in Queensland,[19] Western Australia (WA),[20] and Northern Territory (NT),[21] and "causing death of child before birth" in Tasmania.[22] In South Australia, it comes under the heading of "abortion".[23]

In some states, the offence can be committed only around the time of childbirth:[24] namely WA,[20] Queensland,[19] and NT.[21] The definition is somewhat broader in Australian Capital Territory,[24][25] and comparably broad to the English law in Tasmania[22] and South Australia.[23][24]

In Victoria, section 10 of the Crimes Act 1958 defined the crime in terms similar to the Infant Life (Preservation) Act 1929.[26] It was repealed by the Abortion Law Reform Act 2008, on the recommendation of the Victorian Law Reform Commission.[26][27]

New South Wales has no child destruction law.[24]

Hong Kong

Child destruction is defined in Section 47B of the Offences against the Person Ordinance.[28] A person guilty of child destruction is liable to be punished as though he was guilty of manslaughter.[29] This means that he is liable to imprisonment for life and to pay such fine as the court may award.[30]

See also

References

  1. ^ a b Knight, Bernard (1998). Lawyers guide to forensic medicine (2nd ed.). Routledge. p. 70. ISBN 1859411592. http://books.google.ie/books?id=CMA4_NHHc8wC&lpg=PP1&ots=MiobFfF5ed&dq=Lawyers%20guide%20to%20forensic%20medicine&pg=PA70#v=onepage&q=&f=false. 
  2. ^ That is to say, the offence of administering drugs or using instruments to procure abortion, contrary to section 58 of the Offences against the Person Act 1861, which is defined as "unlawful procurement of a miscarriage."
  3. ^ That is to say, the offences of murder, manslaughter and infanticide.
  4. ^ Card, Richard; Cross and Jones (1992). Criminal Law (12 ed.). Butterworths. ¶¶11.82–83. ISBN 0-406-00086-7. 
  5. ^ http://hansard.millbanksystems.com/lords/1928/nov/22/preservation-of-infant-life-bill-hl#S5LV0072P0_19281122_HOL_16
  6. ^ "Infant Life (Preservation) Act 1929 (c.34)". UK Statute Law Database. http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=1081100. Retrieved 2009-08-26. 
  7. ^ The Abortion Act 1967, section 5(1) (substituted by the Human Fertilisation and Embryology Act 1990, section 37(4))
  8. ^ Archbold Criminal Pleading, Evidence and Practice, 1999 Edition, paragraph 19-133
  9. ^ The Infant Life (Preservation) Act 1929, section 1(1); the Criminal Justice Act 1948 (11 & 12 Geo.6 c.58), section 1(1)
  10. ^ a b "Child destruction: charge is rarely used". Daily Telegraph (London). 27 May 2007. http://www.telegraph.co.uk/news/uknews/1552650/Child-destruction-charge-is-rarely-used.html. Retrieved 2009-03-31. 
  11. ^ Dean, Malcolm (1987-01-20). "Babes in harm / Legal protection for the unborn and newly-born child". The Guardian. 
  12. ^ Britten, Nick (27 May 2007). "Jury convicts mother who destroyed foetus". Daily Telegraph (London). http://www.telegraph.co.uk/news/uknews/1552651/Jury-convicts-mother-who-destroyed-foetus.html. Retrieved 2009-03-31. 
  13. ^ Cooper, Matthew (2000-11-02). "'Arrogant Ladies' Man' gets 10 years over baby's death". Press Association. 
  14. ^ "Man charged with murder of pregnant teenager Nikitta Grender". Daily Mail (London). 14 February 2011. http://www.dailymail.co.uk/news/article-1356431/Nikitta-Grender-murder-Carl-Whant-charged-death-pregnant-teen.html?ITO=1490. 
  15. ^ "Criminal Justice Act (Northern Ireland) 1945 (Chapter 15)". UK Statute Law Database. http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=2956937. Retrieved 2009-03-31. 
  16. ^ The Criminal Justice Act (Northern Ireland) 1945, section 1(1); the Criminal Justice Act (Northern Ireland) 1953, section 1(1)
  17. ^ "Killer loses appeal over child's death". Belfast News Letter: p. 3. 2001-04-28. 
  18. ^ "Omagh coroner to write to DPP on twins". Belfast Telegraph. 2000-09-29. 
  19. ^ a b "Criminal Code Act 1899: Reprint No. 7". Office of the Queensland Parliamentary Counsel. 2008-12-01. http://www.legislation.qld.gov.au/LEGISLTN/SUPERSED/C/CriminCode_007_081201.pdf. Retrieved 2009-03-31. 
  20. ^ a b "Criminal Code Act Compilation Act 1913". 2009-06-27. p. 143. http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:15905P/$FILE/CrimCdActCompilationAct1913_14-a0-03.pdf?OpenElement. Retrieved 2009-03-31. [dead link]
  21. ^ a b "Criminal Code Act – Notes". Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/nt/consol_act/cca115/notes.html. Retrieved 2009-03-31. 
  22. ^ a b "Tasmania. Criminal Code Act 1924 (No. 69 of 1924), as amended through 2003.". Harvard School of Public Health. http://www.hsph.harvard.edu/population/abortion/TASMANIA.abo.htm. Retrieved 2009-03-31. 
  23. ^ a b "Criminal Law Consolidation Act 1935 Sect 82A–Medical termination of pregnancy". Australasian Legal Information Institute. 2008-11-27. http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s82a.html. Retrieved 2009-03-31. 
  24. ^ a b c d McLean, Sheila (2006). First do no harm: law, ethics and healthcare. Ashgate Publishing. pp. 360–2. ISBN 0754626148. http://books.google.ie/books?id=Uvd3xOMIXpkC&lpg=PA360&ots=MCmmDNYg59&dq=%22child%20destruction%22%20queensland&pg=PA361#v=onepage&q=%22child%20destruction%22%20queensland&f=false. 
  25. ^ "Crimes Act 1900 Section 42". Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/act/consol_act/ca190082/s42.html. Retrieved 2009-03-31. 
  26. ^ a b "Abortion Law Reform Bill 2008: Explanatory memorandum". Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/vic/bill_em/alrb2008219/alrb2008219.html. Retrieved 2009-03-31. "Clause 9 repeals section 10 of the Crimes Act 1958, which is contained in subdivision (2) of Division 1 of Part I of that Act. Section 10 of the Crimes Act 1958 contains the offence of child destruction, which the Victorian Law Reform Commission has recommended be repealed." 
  27. ^ "Abortion Law Reform Act 2008 (No. 58 of 2008) – Sect 9". Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/vic/num_act/alra200858o2008255/s9.html. Retrieved 2009-03-31. 
  28. ^ The Offences against the Person Ordinance, "section 47B". Hong Kong Legal Information Institute. http://www.hklii.org/hk/legis/en/ord/212/s47b.html. Retrieved 2009-03-31. 
  29. ^ The Offences against the Person Ordinance, section 47B(1)
  30. ^ The Offences against the Person Ordinance, section 7

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