By Paul Gregoire and Ugur Nedim
The decade-long debate in NSW around foetal personhood laws continues as NSW premier Gladys Berejiklian and attorney general Mark Speakman have released exposure draft legislation seeking to establish a circumstance of aggravation for criminal offences perpetrated against pregnant women.
Released on 10 November, the draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020 would provide that an individual who commits a crime that leads to the destruction of a foetus could face up to three additional years prison time as a result.
Conversative Coalition MPs are crying foul as the bill doesn’t create a standalone offence that would make causing serious harm to or the destruction of a foetus a crime in itself.
Christian Democratic MLC Reverend Fred Nile has been pushing for such a law since 2013, which is commonly known as Zoe’s Law.
Currently, serious harm against or the destruction of a foetus can be prosecuted under grievous bodily harm (GBH) offences against the pregnant woman. Intentionally causing GBH is an offence under section 33 of the Crimes Act 1900 which carries a maximum penalty of 25 years in gaol, while recklessly causing GBH is an offence under section 35 of the Act which carries a maximum of 10 years behind bars.
However, the premier’s laws also seem to compromise women’s bodily autonomy: while NSW finally decriminalised abortion in September 2019, there are provisions within the new bill that would encroach upon some of the hard won gains achieved as the crime of abortion was abolished.
The Offences Against Pregnant Women Bill amends four Acts. Firstly, it inserts new section 9 into the Crimes Act 1900 (NSW), which would create the circumstance of aggravation when a crime is committed against a pregnant woman that “causes the destruction of the foetus”.
This provision would apply regardless of whether the woman herself involved dies or if the accused was aware she was pregnant. And if this form of aggravation is applied to crime, it would result in the maximum penalty for that offence being extended by an additional 3 years.
Circumstances of aggravation are factors that make a basic crime more serious and result in a longer prison sentence.
So, if a person was convicted of dangerous driving occasioning death and it involved the destruction of a foetus, it would increase the maximum penalty from 10 to 13 years in gaol.
Berejiklian’s bill would also amend sections of the Crimes (Sentencing Procedures) Act 1999 (NSW) that pertain to victim impact statements, so that a relation of a pregnant woman involved in crime can address in their statement the impact that the destruction of her foetus has had upon them.
The bill further adds a provision to the Criminal Procedure Act 1986 (NSW) so that the name of the destroyed foetus may be included upon the indictment against the accused.
An indictment is a document outlining information regarding an alleged offence, which is read out in court.
The final amendment the bill makes is to the Motor Accident Injuries Act 2017 (NSW) to ensure that section 3.4 provides that statutory benefits for funeral expenses that apply to the death of a person, would also apply to a destroyed foetus, which would be recognised as “the death of a person”.
Berejiklian promised this legislation in November 2018, following outrage over the death of Katherine Hoang and her two late-stage unborn children in a car accident in Orchard Hills in September that year.
The incident led Nile to again raise debate over his 2017 Zoe’s Law bill.
The reverend’s third iteration of the Zoe’s Law legislation was tabled in parliament in August last year. It seeks to establish a standalone offence for harm or destruction caused to a foetus, as well as extend the provisions of dangerous driving offences so that “death of a person” includes a destroyed foetus.
Zoe’s Law was named after the unborn child involved in a NSW Central Coast tragedy that occurred on Christmas Day 2009, which saw Brodie Donegan, who was 8 months pregnant, hit by an intoxicated driver as she was walking along a footpath.
Yet there has been long-term resistance to foetal homicidal and personhood laws, like Zoe’s Law, in NSW, due to the impact they have upon a women’s bodily autonomy and their right to decide on whether to go ahead with a pregnancy.
In the US, such laws have been applied or there have been attempts to apply them detrimentally to women in cases of miscarriages both caused intentionally or happening by accident.
A threat to bodily autonomy
Berejiklian’s proposed aggravated circumstances law presents as a compromise to advocates of Zoe’s Law, as while it provides for tougher penalties for crimes that cause the destruction of a foetus, it doesn’t make it an offence in itself.
Since the premier first promised laws regarding foetuses, NSW became the last jurisdiction in the country to decriminalise abortion.
This involved repealing the offences against a pregnant woman or another person for carrying out an abortion, as well as the crime of supplying the means to conduct the procedure.
The decriminalisation bill also created a new offence under section 82 of the Crimes Act, which makes it a crime for an unqualified person to perform the termination of a pregnancy. This offence carries a maximum penalty of up to 7 years prison time.
And while the premier’s new legislation specifically rules out the aggravated circumstances provision having any implications for the section 82 crime, there are other questionable aspects to the proposed Coalition legislation that could impact women’s bodily autonomy.
Those grey areas
The government has further specified that the proposed laws would not affect the centuries-old common law “born alive rule”, which provides that a child doesn’t attain legal personhood, or the capacity to become a victim, until it’s born and takes its first breath.
This rule is today enshrined under section 20 of the Crimes Act.
However, the Berejiklian-Speakman bill seeks to recognise the foetus as a named individual upon a criminal indictment, and even more questionably, it would recognise a destroyed foetus as the “death of a person” under motor vehicle laws.
Indeed, these provisions begin to encroach upon the area of legally recognising foetal personhood, which could carry dire consequences for women, when it comes to matters such as termination.
The Law Society of NSW, the Australian Medical Association, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, along with the NSW Greens have all spoken out against the establishment of foetal personhood laws.
There’s also a question around whether a pregnant woman who commits a crime that results in the destruction of her foetus could see the aggravated circumstances applied.
This could be in relation to the consumption of illegal drugs causing miscarriage, or a dangerous driving incident that does so.
The NSW government is accepting submissions on the proposed offences against pregnant women legislation up until 29 January next year.