Via Heather Mallick's column on the CBC, we learn that Leon Benoit has introduced private member's bill C-291 which would amend the Criminal Code of Canada so that someone who murders or injures an unborn child guilty of not one crime (attacking the woman), but of two crimes - attacking the woman, and by proxy her child.
Taking a page out of the anti-civil rights movement, Benoit proposes the following wording:
238.1 (1) Every one who injures or causes the death of a child before or during its birth while committing or attempting to commit an offence against the mother who is pregnant with the child is guilty of the offence of which the person would have been guilty had the injury or death occurred to the mother, and is liable to the punishment prescribed for that offence.
Take a close look at that first statement - "...before or during its birth...". By implication, this would make most women who have an abortion (natural occurance or otherwise) guilty of an offense. This is particularly troubling when you consider the notion that the anti-abortion crowd desperately wants abortion to become a crime. Do the math.
Moving a little further down Mr. Benoit's little treatise, we find this:
(2) It is not a defence to a charge under subsection (1) that
(a) the child is not a human being;
Again, we have to read between the lines here a bit. Notice the use of the term "the child". Among other things until a child is born, they are a fetus. The "right to life" crowd wants you to forget this, of course, so they use the much broader term "child", which naturally evokes the image of a toddler running around on the grass.
The danger in a bill like this is multiple - the obvious is the implicit legal distinction it draws between a pregnant woman and the fetus she is carrying. For women, this creates a serious legal dilemma, for suddenly not only are they morally and emotionally responsible for the fetus, but worse, now there is a legal distinction which essentially holds the unborn fetus as equivalent to an independent human being. Consider the ramifications down the road - ten, twenty years later, we discover that the mother's use of Aspirin was the root cause of the child's asthma (for sake of argument), now the criminal code can be used as part of a "wedge case" to argue that the mother's negligence was at fault, and that she should be held accountable for the injury to the child that resulted.
What you have just done, is created an environment where parents can be sued or criminally charged by their own children for events that occurred before they were born. Yikes! That creates a vision that makes the former Soviet KGB look positively benign.
- Oh yes - and if you had any ideas that the CPC has "moderated" itself, don't forget that the back benches are filled with guys like Benoit, Vellacott, Merrifield and goodness knows how many other long-term wingnuts. (The front benches have their share too - starting with Stockwell Day, and moving on through people like Jason Kenney, Vic Toews and a few others...)
7 comments:
Actually the wording seems to be ok when you take the first part of the sentence in context with the second part, specifically "while committing or attempting to commit an offence against the mother". Bills are very carefully designed to have a specific wording, and looking at a part of a sentence out of context will almost always render a different meaning. Therefore, you can't do that.
The wording itself doesn't look "too bad". The concern I have is with what may be inferred _from_ that wording in other contexts.
The argument that would follow in the courts is along the lines of: "Section 238(1) of the Criminal Code reads as follows ..., therefore, we (the plaintiff) argue that the government has already tacitly agreed that an unborn child is in fact a person protected by Canada's laws ..."
- Whether a judge would agree with this, I don't know, but the implications of are very worrying - especially if the wingnuts start pushing into women's health and reproductive rights arenas. (Which they are trying to do)
Me again,
When viewed as a whole (which really is the only way you can look at a piece of legislative text), the text seems to specifically be designed to exempt the woman seeking an abortion from prosecution under this clause, and only be targeting those that intend harm to the woman, and also harm the baby/fetus/embryo as well. And rightly so.
Actually, now that I think about it more, this is a very enlightened proposal that nimbly avoids the whole issue of abortion and the can of worm that comes with it. I dare say, it would do Trudeau proud :-)
I think that Grog is indicating that there is a concern that this bill would give a foot in the door for the Religious Right to declare that a fetus is a person which opens up a whole other can of really nasty worms.
The wording of 238.1 ....who is pregnant with the child.... is the part that could be used to argue that a fetus is actually a _child_ and is thus guaranteed of all the rights of a member of society. Once this occurs it becomes very easy to limit womens choices, once they become pregnant, and can be used to take away those rights that women have fought for.
This bill is very subtle and in my opinion is a first step by the Religious Reich to regain some of the _power_ that they probably feel has been lost due to gains that women have made over the past few decades.
SB
Oh, the amendment is subtle enough, alright.
Often with politicians, one has to ask what they haven't said as much as looking at what they have said. It's not the amendment itself, it's what follows from it that is significant.
The extreme right wing has been looking for a wedge they can use for a long time. That they are becoming more subtle in their efforts should come as no surprise.
Me yet again,
After some reflection, I realize that both Grog and SB have valid concerns, but I guess what bothers me with the opposition to this proposed law is that we are denying rights to an unborn child for the purpose of protecting the rights of the mother. Really, it seems like we're sacrificing one for the other. More to the point, we're denying any rights to an unborn child, simple because of a potential danger to the rights of the mother. I believe that the mother has complete authority to decide if she should bring a fetus to term, but in the cases where this is the indended outcome, then the fetus/embryo/child should have some level of protection.
In my opinion, this particular wording serves this purpose. Any wedge like danger this may pose should be dealt on a case by case basis. Doing so otherwise would certainly be very dogmatic.
Arguing that we are "denying rights to an unborn child" is problematic.
First of all, the fetus is part of the mother's body, and is therefore protected by the same legal protections that apply to the mother.
Second of all, by providing recognition of "rights" for a fetus, you are creating a situation where that fetus can be treated as a separate entity from its mother. Legally, this becomes very troubling, very quickly.
I would be a lot less worried about this law if it had stipulated that an assault on a pregnant woman carried with it a "doubling of sentence" in recognition of the harm such an assault could cause to the mother and the fetus she is carrying".
It doesn't - it uses the term "unborn child" in a manner that can arguably be read as recognizing that fetus as a distinct entity.
As I have commented on before, legal wording can be a very subtle thing, and its final meanings can be quite surprising.
[Note]: I've started a different thread dealing specifically with the notion of "fetal rights", and why I see the notion as highly problematic, especially when codified in law.
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