Article

Unborn Victims of Crime Act

From Ken Epp

Questions & Answers
(Last updated February 8, 2008)

Questions/concerns regarding Unborn Victims of Crime legislation

1. Why do we need this legislation?

Many Canadians are shocked to learn that when an attacker kills a pregnant woman's unborn child, no charge can be laid in that child�s death, even when the attacker purposely intended to kill the child. This is because our criminal law does not recognize children as victims of crime until they are born alive. This gap in federal law gives rise to grave injustices.

In November 2005, Olivia Talbot of Edmonton who was 27 weeks pregnant with her son, Lane Jr., was shot three times in the abdomen and twice in the head by a long-time friend. No charge could be laid in the death of Baby Lane. Another pregnant Edmonton woman, Liana White, was slain by her husband in the summer of 2005 — again no charges could be laid in her baby�s death. In March 2007, a man from Surrey, BC, Mukhtiar Panghali was charged with second-degree murder in the death of his wife Manjit Panghali who was 4 months pregnant at the time. Roxanne Fernando from Winnipeg was beaten to death in February 2007 by a youth for refusing to have an abortion. Last month, Aysun Sesen from Toronto was seven months pregnant when she was repeatedly stabbed in the abdomen. Her husband has been charged with murder in her death. In all of these cases, there has been no recognition of a crime against these women�s unborn children.

Clearly there are two victims in these types of crimes, and the public recognizes this. An Environics poll commissioned by LifeCanada released last month showed that 72% of Canadians — and 75% of women — support a law that would make it a separate crime to kill an unborn child during an attack on a pregnant woman.¹

The grieving families of the victims have made impassioned pleas to their Members of Parliament and the Government to enact legislation to recognize unborn children as separate crime victims when they are harmed or killed during criminal attacks against their mothers.

2. Isn't this just a backdoor attempt to re-criminalize abortion?

The Unborn Victims of Crime Act has nothing to do with elective abortion. This Bill is totally focused on protecting the choice of a pregnant woman to carry her baby to term and to give her child life. Elective abortion is explicitly excluded. The Bill uses terminology that describes the injury or death of the unborn child during the commission of a crime against the mother. Elective abortion is not a crime in Canada. The Bill goes on with explicit language: "For greater certainty, this section does not apply in respect of � conduct relating to the lawful termination of the pregnancy of the mother of the child to which the mother has consented." The Unborn Victims of Crime Act addresses the situation where a third party harms or kills a woman's unborn child while committing an offence against her — action to which she has clearly not consented. This legislation honors a woman's 'right to choose' to give birth to her baby.

3. If the Criminal Code is changed to recognize the unborn child as a human being, then wouldn't abortion become illegal?

The Unborn Victims of Crime Act does not change the definition of "human being" in the Criminal Code. "Human being" is defined in the Criminal Code as follows:

223.(1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother�.

The Criminal Code defines homicide as follows:

222.(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

So in today's criminal law, legal protection is afforded the child only once it becomes a "human being," that is, once it has been born alive. The Unborn Victims of Crime Act amends the Criminal Code so that legal protection will not only be given to "human beings" as defined by the Criminal Code, but also to unborn children who are harmed or killed during the commission of an offence against their mothers. The amendment does not change the definition of "human being." What it does is it offers protection to the unborn child in a very particular circumstance, despite the definition of "human being."

If an amendment were made to the Criminal Code which changed the definition of "human being" to include unborn children, then that would affect the abortion issue because then an abortion would be considered "homicide" under section 222 (1). But that is not what the Unborn Victims of Crime Act does. It does not redefine "human being" and so it does not affect abortion whatsoever. In fact, the Unborn Victims of Crime Act explicitly excludes abortion so that there can be no misunderstanding as to the intent of this amendment.

4. The Supreme Court of Canada has already said that the fetus is not a person, so wouldn't this law be unconstitutional?

One often hears the argument that the Supreme Court would not allow an unborn child to have any rights because it has said that a fetus is not a "person." It is true that the Courts have said that the fetus is not a person. But this is only because our existing law does not recognize the fetus as a person and the Courts were only interpreting existing law when they made their rulings. But the law can be changed. And that is the responsibility of Parliament, not the Courts, as the Supreme Court itself has said in a number of cases.

In the case of Sullivan and Lemay v. the Queen, 1991, two midwives were charged with criminal negligence causing death to the child of Jewel Voth. The baby was born dead. At issue in this case was whether a living child partially born was a "person" within the meaning of Section 203 of the Criminal Code, which states:

203. Every one who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life. (emphasis added)

The Supreme Court ruled that the midwives could not be charged under this section, because the child was not considered a "person" for the purposes of the Criminal Code. Why did the Court say this? Because the word "person" is not defined in the Criminal Code, but "human being" is, (as discussed in response to the previous question) and the Court said that there was no reason to assume that "person" should mean anything different than "human being" and since "human being" is defined as a child who is born alive, then the child before birth, if not a "human being," is also not a "person." The Court was in no way saying that the law could not be changed to grant some rights to the child before birth.

In the case of Winnipeg Child and Family Services v DFG, 1997, involving a glue-sniffing pregnant woman, the issue at hand was whether child protective services could force a pregnant woman into custody in order to protect the unborn child. As in the previous case cited, the Supreme Court said that according to the existing law, the unborn child has no rights and therefore the woman could not be forced into custody. The Court stated: "The law of Canada does not recognize the unborn child as a legal person possessing rights." The Court went on to ask, "At what stage would a fetus acquire rights?" The Court said that such "thorny moral and social issues�are better dealt with by elected legislators than the courts." (emphasis added)

In Chantale Daigle v. Jean-Guy Tremblay, the Supreme Court again said it was up to Parliament to determine what level of protection to give the unborn child. The Court stated:

"The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood�..Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature." (emphasis added)

As the above cases illustrate, the Supreme Court has clearly stated that the existing law does not recognize the unborn child as a "person" and that it is not up to the courts to change the law in this respect. Rather, it is the responsibility of those elected to Parliament. The Supreme Court has made it clear that it is up to our legislators to decide what level of protection to give to children prior to birth. The Unborn Victims of Crime Act addresses this issue in one very specific way — by extending protection to the unborn child who is injured or killed when the mother is the victim of a crime.

5. If the fetus is not a human being or person, then how can you create an offence for killing it?

The criminal law can be used to protect 'non-persons' and to prescribe sanctions against those who violate the law. For example, animals are protected by Cruelty to Animals legislation. An entity does not have to be defined as a 'person' or a 'human being' in order to receive protection in criminal law. The Assisted Human Reproduction Act offers some protection to human embryos even though embryos are not considered 'persons' in our criminal law. As the Law Reform Commission of Canada stated in its working paper, Crimes Against the Foetus: "�.to decide whether to give the foetus criminal law protection we don't need to decide if it is a person�.There is nothing which limits criminal law protection to persons." (p. 34)

6. Why do we need to recognize the unborn child as a separate victim? Our criminal justice system already takes into account aggravating factors, so why can't the pregnancy be treated as an aggravating factor?

First of all, aggravating factors are taken into account only for sentencing purposes, not when determining what offence was committed in the first place. The issue here is not just about how severe the sentence should be; it is about creating an offence specifically for the harm done to the preborn child in recognition of the fact that the child is also a victim of a crime when it is harmed or killed during an attack on the mother.

Even though treating pregnancy as an aggravating factor would serve to acknowledge that pregnancy makes a woman more vulnerable, it would send the message that it is only the physical condition of pregnancy that is relevant and that prenatal human life has no intrinsic value. Any pregnant woman who survives a violent attack but loses her preborn child — a child she wants and loves — will grieve for that child, and no one can say she grieves for that child any less, simply because that child had not yet been born. Failure to recognize these children as crime victims amounts to telling these women that they lost nothing of value when their children were killed.

7. We have concurrent sentencing in Canada, so a person who kills a pregnant woman and her unborn child will not serve any more time in prison than if he had just killed the woman, so what's the point of charging the woman's attacker with an additional offence?

In existing criminal law, if the pregnant woman survives the attack but the child dies, there is no murder charge — the offender is charged only with assault on the woman. But under the Unborn Victims of Crime Act, the offender would be charged not only with assault on the woman, but also with the new offence in the death of the child.

Secondly, if a mother and her already born child were attacked and intentionally killed, or if a person opened fire in a public place and killed multiple people, the offender would be charged with multiple counts of murder, not just one, regardless of our concurrent sentencing system. The point is that our criminal law recognizes each of these victims, and recognition is not dependent on whether or not more jail time would be served. In this respect, Unborn Victims of Crime legislation is no different from how our existing criminal law handles multiple victims.

And finally, the reason for creating such a law is not primarily to increase the amount of time the offender will remain in prison. Rather, the purpose is to recognize that there are two victims in such crimes, the mother and the child. Such a law sends a strong message that prenatal human life matters. Our current law which affords no protection whatsoever to the preborn child amounts to telling these abusers that since society places no value on that human life growing inside the woman, why should he? If the state has no interest in protecting the unborn child, why should he? If the state will turn a blind eye to a pre-meditated attack on a woman's unborn child — even when the attacker has the full intention of causing the death of that child — then we are effectively telling the pregnant woman, when she is at her most vulnerable, that it is her responsibility alone to help her child survive, that she will receive no help from the state. By our failure to legally protect these children from acts of violence committed against their mothers, by our failure as a society to recognize any worth whatsoever in the preborn child, we are only encouraging abusive behaviour towards pregnant women. And we must all share in the blame for the consequences — children maimed or killed in their mother's womb. As for the family who is left behind to try to cope, their grief goes unvalidated — they try desperately to mourn a death that society refuses to recognize, because a living, human child, they are told, did not exist in the eyes of the law.

Remember — all of this has to do with a woman who is exercising her freedom of choice to bring her child to term in safety. In anticipating the birth of her baby, she has become emotionally attached to it, and has experienced the greatest violation of her right and freedom possible — the criminal assault and death or injury to her child that she loves and wants to protect.

8. Some people have claimed that this type of law would be used to target pregnant women, citing US examples of women with drug abuse problems being prosecuted under "unborn victims of violence" laws in the US as evidence to support this claim. Is this true?

Firstly, Bill C-484 could never be used to prosecute pregnant women because it applies only during the commission of an offence against the woman, and, "for greater certainty" the bill states that it "does not apply in respect of�.any act or omission by the mother of the child."

Secondly, anyone who claims that similar laws in the US have been used to target pregnant women has been seriously misinformed.

For example, the Abortion Rights Coalition of Canada (ARCC) claims that "Pregnant women have been arrested under U.S. fetal homicide laws�.The worst offender is South Carolina, where between 50 and 100 pregnant women with drug abuse problems have been arrested under its fetal homicide law." ²

In making this claim, ARCC references articles on the website of the National Advocates for Pregnant Women (NAPW). But there is misleading information in those articles because, although they refer to unborn victims of violence / fetal homicide laws, the cases they cite have nothing to do with these types of statutes, but rather with laws having to do with child abuse and endangerment (for example, prenatal drug use).

In the Whitner case cited by NAPW, for example, a pregnant woman was convicted under the child abuse and endangerment statute in the South Carolina Children's Code because her baby was born with crack cocaine in her system due to the mother's ingestion of this substance during the third trimester of her pregnancy. In the State v. McKnight case cited by NAPW, the pregnant woman was convicted of homicide by child abuse following a stillbirth caused by cocaine use.

Whitner and McKnight were prosecuted and convicted because in each case the court found that the child abuse/endangerment laws applied not just to born children but to viable fetuses as well. This is because South Carolina's case law recognized a viable fetus as a "person" in some contexts (for example, the 1984 State v. Horne case referred to in one of the articles you referenced on NAPW's website). But the case law of other US States has not recognized the fetus as a "person" and so a pregnant mother's conduct would not result in criminal charges in those cases. For example, "Massachusetts law permits homicide prosecutions of third parties who kill viable fetuses," however "a Massachusetts trial court has held that a mother pregnant with a viable fetus is not criminally liable for transmission of cocaine to the fetus. See Commonwealth v. Pellegrini." ³

When comparing the types of laws used in the above cited cases to bill C-484, ARCC is comparing apples and oranges. C-484 applies only in the commission of an offence against the mother and the bill states "for greater certainty" that it does not apply to acts or omissions by the mother. These stipulations do not exist in South Carolina's child abuse and endangerment / homicide by child abuse statutes. The intent of C-484 is to protect the unborn child from third-parties, during the commission of an offence against the woman.

The statute that would be the proper subject matter for comparison — South Carolina's Unborn Victims of Violence Law (in which a third party is held criminally responsible for harming or killing a woman's unborn child during the commission of an offence against her ) — did not come into effect until 2006, years after the McKnight and Whitner cases!

The Whitner case occurred in 1997; the McKnight case, in 2003. This is proof that these other cases cited by NAPW and relied on by ARCC had nothing to do with South Carolina's Unborn Victims of Violence Law. They had to do with laws that serve a completely different purpose than does bill C-484.

Our research (done in conjunction with the Library of Parliament ⁴ has not turned up anything to substantiate ARCC's claims, nor has research conducted by Americans United for Life.⁵

¹ Environics poll commissioned by LifeCanada, October 2007, www.lifecanada.org/html/resources/polling/2007PollReport.pdf
²"Talking points against the 'Unborn Victims of Violence' Act," by the Abortion Rights Coalition of Canada, Talking Point 9, updated Feb. 5 2008.
³Cornelia Whitner, Respondent, v. State of South Carolina, Petitioner, Opinion No. 24468, Supreme Court of South Carolina, Heard May 31, 1995; Refiled October 27, 1997.
⁴"Prosecution of Pregnant Women under 'Fetal Homicide Laws' and 'Unborn Victims of Violence Laws' in the United States," Law and Government Division, Parliamentary Information and Research Service, Library of Parliament, January 17, 2008.
⁵ Fetal Homicide and Unborn Victims of Violence Act Case Research, Americans United for Life, November 26, 2007. See http://www.kenepp.com/admin/assets/FETHOMRSRCH.pdf