Bill C-484 - What's really wrong with it?
Tue, 2008-04-22 05:55
#1
M. Spector
Bill C-484 - What's really wrong with it?
Tue, 2008-04-22 05:55
#2
M. Spector
Continued from [url=http://www.rabble.ca/babble/ultimatebb.php?ubb=get_topic&f=24&t=001355]H...
quote:
originally posted by Dr. Hilarius:
[b]First, I would really ahve no objection if someone WERE sentenced more stiffly if the attack caused the loss of a kidney or an eye or any other sort of amjor physical harm. I think the harm done to the victim and the long-term impact on the victim's life ought to be taken into consideration at sentencing.[/b]
Me, too. That's what the legal system already does.
quote:
[b] Whether we need strict laws as to how to apply this or how much we leave it to a judge's discretion is another debate.[/b]
No, it's not another debate. It's central to [b]this debate[/b].
The supporters of Bill C-484 are happy to leave it up to the judge's discretion to find an appropriate punishment - except when there is a dead fetus involved. Then it becomes a mandatory 10 years to life sentence, on top of whatever other sentence would normally apply. What do you suppose their motives are?
quote:
[b]As for the kidney comparison, however, I think it is disingenuous. You may be correct on the technical aspects but we all know that issues surrounding pregnancy are very emotional. I have my kidneys and if I lsot one, I'd certainly feel bad about that but as of right now as I write this, I don't feel any sort of emotional attachment or bond to them. I can't say the same about my children, even when they were in the room. yes, we did talk about names and I did feel them kicking and all sorts of other experiences that would ahve made their loss devestating. Comparing that to a kidney is jsut crass.[/b]
You are trying to endow a fetus with some sort of [b]personhood[/b] based solely on the potential mother's emotional attachment to it. I reject that.
Many losses may be emotionally devastating to a woman who has been assaulted; she may be crippled or disfigured, or be unable to bear children again, or have her life expectancy reduced by such an event. Bill C-484 does not concern itself with any of that. It makes no distinctions based on emotion; its provisions would apply regardless of whether the woman was secretly relieved at losing her fetus or emotionally devastated by it. The only important thing to the supporters of the Bill is that there is a dead fetus involved. The impact on the woman, to them, is irrelevant.
ETA: For convenience of reference, here is the [url=http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3127600&... of Bill C-484[/url].
[ 22 April 2008: Message edited by: M. Spector ]
Tue, 2008-04-22 06:11
#3
I agree with you. I said the person who made the kidney comparison was technically right.
I know that my response to the issue of an assault causing a miscarriage is a purely emotional one. I guess you have to be a mother to understand.
Tue, 2008-04-22 06:16
#4
quote:
Originally posted by M. Spector:
[b]The supporters of Bill C-484 are happy to leave it up to the judge's discretion to find an appropriate punishment - except when there is a dead fetus involved. Then it becomes a mandatory 10 years to life sentence, on top of whatever other sentence would normally apply. What do you suppose their motives are? [/b]
I think the motives of the person who introduced this bill is to re-open the abortion debate by trying to shift public opinion towards viewing a fetus as a "person". As to the people who support this bill, some fall into that same category. Others simply think that an assault causing a miscarraige ought to carry greater punishment than simple assault. I saw a poll (Environics, I believe) that showed huge amounts of support for the bill. Far greater than the percentage of people who consider themselves "pro life". I certainly don't think all of them are intent on re-criminalizing abortion.
Tue, 2008-04-22 06:37
#5
I don't think that opponents of Bill C-484 are impugning the people who support stricter sanctions for miscarriage (or other grievous outcome) causing assaults. Indeed, making these supporters the problem is a red herring.
If the Canadian government appeals to women's motherly feelings to get this anti-choice bill through Parliament, I would support making it a crime to send young men and women to their deaths on some "mission" and its tenuous justifications...
Tue, 2008-04-22 06:42
#6
Well it is just lovely to see so many men discounting women's thoughts and opinions as nothing more than "emotions" to be discounted and just "motherly feelings".
Us women we are so irrational! Thank you men, for pointing this out to me. I will tell my cousin who miscarried due to a drunk driver hitting her car to forget her womanly emotions and think of her kidneys. The guy that hit her already has his licsence again as the only other physical damange to her was whiplash.
Tue, 2008-04-22 06:46
#7
One can validate and respect motherly feelings to the point of opposing those who would exploit them to advance an anti-woman agenda.
[ 22 April 2008: Message edited by: martin dufresne ]
Tue, 2008-04-22 06:52
#8
Ghislaine, you were coming quite close in the other thread to posting anti-choice crap, with your link to the stages of fetal development, and I'm not having it in the feminism forum. If you're going to post borderline anti-choice stuff here, you're going to be banned from this web site.
Furthermore, there are lots of mothers on babble (and I'm one of them) who have posted in this thread and many others a point of view that's quite different from yours on this topic, and you don't get a pass for posting regressive stuff in this forum because you're a mother while some pro-choice supporters on babble are not.
If you're going to post anti-choice stuff in the feminism forum on babble, you're going to be banned. Believe it. First and last warning.
[ 22 April 2008: Message edited by: Michelle ]
Tue, 2008-04-22 06:55
#9
One distinction that hasn't been made in this discussion is that between a criminal code offence and a private action against an offender. While the Criminal Code is concerned with the perpetrator's offence against the State, for instance assault or drunk driving, and victims statements can be taken into account but peripherally, civil remedies seem the best route to address harm and damages done to a party - a pregnant woman, for instance - by someone's negligence or assault, adapting reparations to the harm done and acknowledging the victim as the subject with agency.
Tue, 2008-04-22 06:59
#10
quote:
Originally posted by Ghislaine:
[b]Well it is just lovely to see so many men discounting women's thoughts and opinions as nothing more than "emotions" to be discounted and just "motherly feelings".
[/b]
Was that directed at me? I'm a woman and a mother of three children.
Tue, 2008-04-22 07:03
#11
remind
Ghislaine, if you think Bill 484 would have added further punishment to the drunk driver that hit your cousin, had this law been in place, you would be wrong.
DR Hilarious, yes, mothers can feel an attachment to the fetus within, and yet other mothers feel no attachment whatsoever and wish it was not. Your emotional point does not apply to this Bill.
Nor in fact does any.
Tue, 2008-04-22 07:12
#12
M. Spector
quote:
Originally posted by remind:
[b]Ghislaine, if you think Bill 484 would have added further punishment to the drunk driver that hit your cousin, had this law been in place, you would be wrong.[/b]
Why would bill C-484 not apply?
ETA: Ah, I get it. Under Bill C-484 the offender has to know (or ought to know) that the victim is pregnant. The drunk driver would presumably not know that.
[ 22 April 2008: Message edited by: M. Spector ]
Tue, 2008-04-22 07:22
#13
To me, it's about choice. I don't know for sure that I would want there to be any extra penalty for causing a woman to have a miscarriage against her will through violence, but I'm not completely closed to the idea. I was just saying in the other thread that if the people who did this Bill were really concerned with violence against women, then they would have found a way to focus on the injury to the woman, not to the fetus.
When a woman WANTS to be pregnant and chooses to carry a pregnancy to term, she often DOES get attached to the fetus. Does that make the fetus a person? No. But it definitely makes the fetus a part of her body that is extremely important to her, and yes, possibly even more important than a kidney.
Does that mean that we say that the fetus is a person? No, of course not. But that doesn't mean we have to deny the importance a woman places on a WANTED fetus, and it doesn't mean that we can't think of a way to recognize the harm caused to a woman by being forced to terminate a pregnancy.
We recognize the aggravated harm of forcing a woman to have sex against her will - we don't just call that "assault causing bodily harm" even though that's what it is. Because we recognize that there is a unique dynamic to sexual assault, and egregious emotional harm done to the woman that goes beyond that of other types of assault.
The fact that so many people who have been polled on this issue recognize the particularly egregious nature of causing a woman to miscarry against her will through violence leads me to think that probably women ARE more attached to wanted fetuses than to, say, their kidney or whatever.
And I would submit that the reason for that, having experienced that emotional bond myself, is because those of us who are experiencing a WANTED pregnancy are making a huge choice and commitment, and generally we end up rearranging our lives and building up hopes and expectations around that pregnancy.
So, if someone beats the crap out of me, it's very traumatizing. If someone beats the crap out of me and causes me to miscarry while they're at it, to me that would not only feel like an assault, but it would also feel like a much deeper violation, because they've not only physically harmed me, but they've also robbed me of the reproductive choice I have made.
And as far as I'm concerned, right up until a woman is on the abortion table, she should be considered to, at that moment, be pregnant by choice. Unless she's specifically ASKED someone to throw her down the stairs or punch her in the stomach in order to help her miscarry, it doesn't MATTER how she feels about the pregnancy. What matters is whether SHE made the choice right at that moment, through a violent act, to end it. If someone else made that choice for her against her will, I think that's egregious enough to be a separate offence.
But I don't think you have to legally define the fetus as a "person" or a "child" in order to do that.
Tue, 2008-04-22 07:29
#14
Very well said.
Tue, 2008-04-22 07:34
#15
M. Spector
quote:
Originally posted by Michelle:
[b]If someone else made that choice for her against her will, I think that's egregious enough to be a separate offence.But I don't think you have to legally define the fetus as a "person" or a "child" in order to do that.[/b]
So would you support Bill C-484 if they cleaned up the language to make it refer to a fetus instead of a child, and a woman instead of a mother? Do you see anything wrong with this:
quote:
Every person who, directly or indirectly, causes the death of a fetus during birth or at any stage of development before birth while committing or attempting to commit an offence against the woman carrying the fetus, who the person knows or ought to know is pregnant....
Tue, 2008-04-22 07:38
#16
I'm not sure. I might. I wouldn't have as big a problem with it as I do now, that's for sure. The big thing for me about this legislation is that it makes the fetus into a person by calling it a "child". This is the slippery slope to denying abortion rights to women.
Tue, 2008-04-22 07:42
#17
remind
Well, yes it was structured well, though I am not sure what it says is applicable to this Bill.
This Bill would only cover those assaults against women, by strangers, that happen after a woman is observabley pregnant.
Tue, 2008-04-22 07:59
#18
quote:
Originally posted by Michelle:
[b]Ghislaine, you were coming quite close in the other thread to posting anti-choice crap, with your link to the stages of fetal development, and I'm not having it in the feminism forum. If you're going to post borderline anti-choice stuff here, you're going to be banned from this web site.Furthermore, there are lots of mothers on babble (and I'm one of them) who have posted in this thread and many others a point of view that's quite different from yours on this topic, and you don't get a pass for posting regressive stuff in this forum because you're a mother while some pro-choice supporters on babble are not.
If you're going to post anti-choice stuff in the feminism forum on babble, you're going to be banned. Believe it. First and last warning.
[ 22 April 2008: Message edited by: Michelle ][/b]
I am pro-choice. Meaning women can choose to abort or choose to carry to term. For women who choose to carry to term, I believe there should be legal penalties against anyone who would cause them to abort against their will or who causes them to miscarry through a violent act.
Your post further down in this thread was excellent I thought - something I agree with and you seem to be agreeing with me. I was taking issue with the notion that a kidney and a fetus are the same thing to a woman and that if she feels differently it is just womanly emotion that should be discounted. I have heard in too many places in too many ways this idea - that women's opinions and thoughts are just silly emotions.
How is posting real, scientific pictures anti-choice?? It is reality. It is from national geographic. I was posting them to illustrate how a fetus is not a kidney. One immediate indication is that it has legs that the pregnant woman can feel kicking. It also illustrates how the fetus is in the woman's body and is not viable on its own. While I would entertain discussions around whether fetuses that are viable (ie those rare abortions done on 5 mo. old fetuses) should be kept alive when removed from the mother. In that case however, the fetus would be kept alive and adopted. No one can force a woman to be a mother against her will. Other than that type of case, it is dependent on a woman's body and a woman must have control over her own body.
I believe in choice and there are two choices. I don't believe real images from national geographic hinder this choice, they only provide more information to women who may find the choice difficult.
Anyways, sorry. In general, I agree with you Michelle that the legislation needs altered wording to ensure it doesn't infringe on the right of a woman to control her own body. however it does seem that a lot of women support this type of action ( I support anything that lengthens sentences for those who commit violence against women if it will keep them off the streets).
The Conservatives however are obviously disengenuous. If they were serious about assisting survivors of violent men they would do more to fund women's shelters, improve maternity benefits, improve living standards for young mothers, etc, etc, etc.
[ 22 April 2008: Message edited by: Ghislaine ]
Tue, 2008-04-22 08:17
#19
M. Spector
quote:
Originally posted by Michelle:
[b]I'm not sure. I might. I wouldn't have as big a problem with it as I do now, that's for sure. The big thing for me about this legislation is that it makes the fetus into a person by calling it a "child". This is the slippery slope to denying abortion rights to women.[/b]
Sorry, but I have a [b]big[/b] problem with any legislation that singles out the killing of a fetus as a separate crime and deserving of separate punishment.
I don't care how cunningly it's drafted to make it "clear" that a fetus is not a child, and that it's the woman, not the fetus, who is the real victim, etc.
To me, it's not a matter of terminology or hidden agendas; it's a matter of a very open and clear agenda of giving criminal protection to the life of a fetus.
That is very dangerous, and that is why I oppose Bill C-484.
Tue, 2008-04-22 08:43
#20
1. Since criminal sentences in this country are served concurrently, not consecutively, what does the creation of a second offence that only comes in to play when there's an original offence accomplish except to increase the paperwork? It certainly doesn't have any real deterrent effect.
2. Should a pregnant woman really be worth more under the law than a woman who isn't pregnant? To put it a different way: should the life and well-being of a woman who isn't pregnant really be worth less under the law?
Tue, 2008-04-22 08:48
#21
remind
quote:
Originally posted by Ghislaine:
[b] I believe there should be legal penalties against anyone who would cause them to abort against their will or who causes them to miscarry through a violent act. [/b]
Again, this Bill would NOT do that ghislaine, nor would any Bill do that Ghislaine.
Tue, 2008-04-22 08:56
#22
quote:
Originally posted by remind:
[b]Again, this Bill would NOT do that ghislaine, nor would any Bill do that Ghislaine.[/b]
Yes, I wasn't implying that that is what this particular bill would do - just outlining what I believe as I was accused of being anti-choice.
Why would no bill do that?
[ 22 April 2008: Message edited by: Ghislaine ]
Tue, 2008-04-22 09:03
#23
quote:
Originally posted by M. Spector:
[b]Sorry, but I have a [b]big[/b] problem with any legislation that singles out the killing of a fetus as a separate crime and deserving of separate punishment.I don't care how cunningly it's drafted to make it "clear" that a fetus is not a child, and that it's the woman, not the fetus, who is the real victim, etc.
To me, it's not a matter of terminology or hidden agendas; it's a matter of a very open and clear agenda of giving criminal protection to the life of a fetus.
That is very dangerous, and that is why I oppose Bill C-484.[/b]
Fully agree.
I thought M. Spector's experiment (redrafting) was a bit crafty, but it shows how pernicious this legislation is.
Either a foetus is deemed to be a human being or it is not.
Either a foetus can be a victim of a crime or it cannot.
Either an assault on a woman is a single offence (which may attract very different penalties depending on severity etc.) or it is two offences.
Any "in-between" position opens the door to denying women the rights for which they have fought so long and won.
Tue, 2008-04-22 09:13
#24
M. Spector
quote:
Originally posted by remind:
[b]This Bill would only cover those assaults against women, by strangers, that happen after a woman is observabley pregnant.[/b]
quote:
Originally posted by Ghislaine:
[b]I believe there should be legal penalties against anyone who would cause them to abort against their will or who causes them to miscarry through a violent act.[/b]
quote:
Originally posted by remind:
[b]Again, this Bill would NOT do that ghislaine, nor would any Bill do that Ghislaine.[/b]
Are we talking about the same Bill, here? I'm talking about [url=http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3127600&... C-484[/url].
I see nothing in that Bill that restricts its application to "strangers", or requires that the woman victim be "observably" pregnant.
What I do see is a Bill that [b]does[/b] in fact provide "legal penalties against anyone who would cause [women] to abort against their will or who causes them to miscarry through a violent act," to quote Ghislaine.
What am I missing here? [img]confused.gif" border="0[/img]
Tue, 2008-04-22 09:22
#25
quote:
Originally posted by M. Spector:
[b]Sorry, but I have a [b]big[/b] problem with any legislation that singles out the killing of a fetus as a separate crime and deserving of separate punishment. [/b]
Do you have a big problem with singling out the assault of certain body parts (the vagina, breasts, etc.) as a crime separate from ordinary assault and deserving of separate punishment?
Because that's what sexual assault is. Why not just call it ALL assault and not differentiate between sexual assault and other kinds of assault?
P.S. I see your point about framing it as "killing" the fetus. I think using language like "causing a woman to miscarry" would focus exclusively on the woman and not on the fetus as a separate entity.
[ 22 April 2008: Message edited by: Michelle ]
Tue, 2008-04-22 09:28
#26
quote:
Originally posted by unionist:
[b]Fully agree.
I thought M. Spector's experiment (redrafting) was a bit crafty, but it shows how pernicious this legislation is.
Either a foetus is deemed to be a human being or it is not.
Either a foetus can be a victim of a crime or it cannot.
Either an assault on a woman is a single offence (which may attract very different penalties depending on severity etc.) or it is two offences.
Any "in-between" position opens the door to denying women the rights for which they have fought so long and won.[/b]
What about making it a seperate offense to cause a woman to miscarry? This refers to the woman's body, not to the fetus.
Tue, 2008-04-22 09:31
#27
quote:
Originally posted by Ghislaine:
[b]What about making it a seperate offense to cause a woman to miscarry?[/b]
Once more with feeling.
quote:
Since criminal sentences in this country are served concurrently, not consecutively, what does the creation of a second offence that only comes in to play when there's an original offence accomplish except to increase the paperwork? It certainly doesn't have any real deterrent effect.
Tue, 2008-04-22 09:43
#28
M. Spector
quote:
Originally posted by Michelle:
[b]Do you have a big problem with singling out the assault of certain body parts (the vagina, breasts, etc.) as a crime separate from ordinary assault and deserving of separate punishment?[/b]
No, I don't have a problem with sexual assault or sexual touching laws. They deal with offences that are different in character from "ordinary" assault. They are clearly aimed at protecting women, not fetuses. They import no danger that certain parts or organs of the body will be accorded special protected status by the law. And they are not overlaid on top of the offence of assault as a second offence carrying a separate penalty.
I maintain that it is inconsistent to hold the view that there should be special legal protection for the life of a fetus while at the same time supporting a woman's right to rid herself of a fetus without legal consequences.
quote:
[b]P.S. I see your point about framing it as "killing" the fetus. I think using language like "causing a woman to miscarry" would focus exclusively on the woman and not on the fetus as a separate entity.[/b]
My point actually is that it's [b]not[/b] primarily a "framing" problem or a "focus" problem or a "language" problem. By that I mean that no amount of tinkering with the drafting of the Bill would make it acceptable to have a special punishment in law for killing a fetus.
Tue, 2008-04-22 09:48
#29
M. Spector
quote:
Originally posted by Ghislaine:
[b]What about making it a seperate offense to cause a woman to miscarry? This refers to the woman's body, not to the fetus.[/b]
That's exactly what Bill C-484 does! granted, it refers to a fetus as a child and a woman (who may have no children) as a mother, but its effect is exactly the same.
People have to see beyond the superficialities of the terminology to see what is really being proposed by the Bill.
Tue, 2008-04-22 09:54
#30
quote:
Originally posted by pogge:
[QB][/QB]
Well this I did not know. They [i]should[/i]be served consecutively, but I that would need to be the subject of another bill.
Tue, 2008-04-22 09:54
#31
M. Spector
quote:
Originally posted by pogge:
[b]1. Since criminal sentences in this country are served concurrently, not consecutively, what does the creation of a second offence that only comes in to play when there's an original offence accomplish except to increase the paperwork? It certainly doesn't have any real deterrent effect.[/b]
Assault causing bodily harm carries a maximum sentence of ten years. If it's a first offence, you will likely not get anywhere near that. Then you will get 2/3 off for good behaviour.
But if the assault resulted in a miscarriage and you knew or ought to have known the victim was pregnant, you will get 10 years to life under Bill C-484, and you will have to serve at least 5 years before being eligible for full parole.
Tue, 2008-04-22 09:58
#32
quote:
Originally posted by M. Spector:
[b]Assault causing bodily harm carries a maximum sentence of ten years. If it's a first offence, you will likely not get anywhere near that. Then you will get 2/3 off for good behaviour.But if the assault resulted in a miscarriage and you knew or ought to have known the victim was pregnant, you will get 10 years to life under Bill C-484, and you will have to serve at least 5 years before being eligible for full parole.[/b]
And you are against this? So if I choose to carry a fetus to term, have an attachment to this fetus, feel it kicking me, etc. and someone assaults me causing a miscarriage they may get out in way less than 10 years under the current laws?? If a woman wanted more she would have to instigate a civil suit (if she can afford it) and sue for damages?
That is far from good enough. If you are against C-484, do you at least support lengthening minimum sentences for assault causing bodily harm?
ETA:
What about this scenario:
The assault causes a premature birth of the fetus, which is now a full-fledged human being. The assault on the woman caused long-term defects or brain damage to this human being. Is there anything in law that results in stiffer penalties for this type of assault?
[ 22 April 2008: Message edited by: Ghislaine ]
Tue, 2008-04-22 10:01
#33
quote:
Originally posted by M. Spector:
[b]But if the assault resulted in a miscarriage and you knew or ought to have known the victim was pregnant, you will get 10 years to life under Bill C-484, and you will have to serve at least 5 years before being eligible for full parole.[/b]
So under very specific circumstances it has a deterrent effect while in some circumstances it has none.
So why not just charge the suspect with aggravated assault -- which carries an increased penalty -- in the first place? And isn't that light sentence for a first offence a matter of discretion for the judge? In other words, does C-484 accomplish anything that can't be accomplished with existing legislation? Or minor tweaks to existing legislation and sentencing guidelines which would avoid opening this whole can of worms?
PS: I realize you oppose C-484 too.
Tue, 2008-04-22 10:14
#34
M. Spector
Pogge, you have to read the [url=http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3127600&....
Under the present law, the most severe penalty a judge can hand out for aggravated assault is 10 years. She cannot stipulate as to "no parole". So if the convict behaves himself, he's back on the streets in 40 months at most.
Under Bill C-484 the offence would carry a minimum of 10 years, and you would have to serve at least half of it behind bars (ref. section 4 of the Bill).
So the first thing to note is that the Bill does have severe penalty consequences attached to it, regardless of the issue of "consecutive/concurrent".
Secondly, yes, you are right. There's no reason the existing law is insufficient to deal with any aggravating circumstances that might warrant a longer sentence - subject, of course, to any statutory maximums like the 10 years for ABH. So this Bill is not only a dangerous Trojan Horse, it's a solution in search of a problem.
Tue, 2008-04-22 10:17
#35
All of these leaves me unsupportive of C-484, but saddenned by how lightly people are sentenced for violently abusing women.
There definitely needs to be longer sentences one way or another.
I am going to do some searching and see if there are any cases where miscarriage was named as an aggravating factor.
Tue, 2008-04-22 11:12
#36
quote:
Originally posted by Ghislaine:
[b]All of these leaves me unsupportive of C-484, but saddenned by how lightly people are sentenced for violently abusing women.There definitely needs to be longer sentences one way or another.
[/b]
Why? Does prison actually solve any of the deeper problems associated with violence against women? Available evidence re: efficacy of incarceration suggests the contrary.
Note: I am not saying that people shouldn't face consequences - including custodial sentences - for VAW; I'm just skeptical that upping penalties will provide any benefit.
Tue, 2008-04-22 11:24
#37
M. Spector
Longer prison terms don't deter crime. Otherwise the USA would have the lowest crime rates.
Lengthening sentences and mandating minimum sentences are favourite tools used by neo-con politicians to make themselves look tough on crime. Progresssives shouldn't be fooled by this.
Tue, 2008-04-22 11:25
#38
quote:
Originally posted by pookie:
[b]Why? Does prison actually solve any of the deeper problems associated with violence against women? Available evidence re: efficacy of incarceration suggests the contrary.
Note: I am not saying that people shouldn't face consequences - including custodial sentences - for VAW; I'm just skeptical that upping penalties will provide any benefit.[/b]
Until larger societal solutions are found it will at least keep them off the streets and protect women from their further attacking/assaulting them.
Tue, 2008-04-22 11:34
#39
remind
quote:
Originally posted by M. Spector:
[b]Are we talking about the same Bill, here? I see nothing in that Bill that restricts its application to "strangers", or requires that the woman victim be "observably" pregnant.[/b]
Okay, let's follow the trail of logic resulting from the Bill's words. Though I do not see how you misssed it, as you got it for the drunk driver scenario.
This portion of the Bill says:
quote:
[i]Every person who, directly or indirectly, causes the death of a child during birth or at any stage of development before birth while committing or attempting to commit an offence against the mother of the child, who the person knows or[b] ought to know is pregnant,[/b][/i]
The only way that someone who is a stranger [i]ought to know[/i] is if the woman can be seen to be pregnant. So, if the woman is not obviously pregnat, a stranger has no way of knowing she was pregnant when they committ(ed) the assault against her, thus this law if inacted does not apply to them.
Now, that leaves non-strangers to whom the law would apply, and this is where the actual numbers lie of those committing violent offenses against women who are pregnant.
quote:
An offence that would otherwise be an offence under paragraph (1)(a) may be reduced to an offence under paragraph (1)(b) if the person who committed the offence did so in the heat of passion caused by sudden provocation within the meaning of section 232.
Now, this is what Section 232 says:
quote:
232. What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
And that brings 1 c(ii) into play;
quote:
(c) is, in any other case,(ii) guilty of an offence punishable on summary conviction and liable to impris- onment for a term[b] not exceeding 18 months.[/b]
quote:
[b]What I do see is a Bill that [b]does[/b] in fact provide "legal penalties against anyone who would cause [women] to abort against their will or who causes them to miscarry through a violent act," to quote Ghislaine.What am I missing here? [/b]
That it is only the case if "know" or "ought to know", so that excludes stangers who cannot see/determine whether a woman is pregnant.
And if it is known, which means, the person committing the act of violence is knowing the pregnant woman, and if it is deemed an act resulting from provocation in the heat of the moment, then it would be basically an additional 18 months max of concurrent time added to the assault of the woman.
So, the law is very specific, it means 10 years for those who premeditate harm to the fetus.
Tue, 2008-04-22 12:26
#40
quote:
Originally posted by remind:
[b]So, the law is very specific, it means 10 years for those who premeditate harm to the fetus.[/b]
Where in the law did it state that the offender had to "premeditate harm to the fetus" in order to get 10 years?
Tue, 2008-04-22 12:26
#41
quote:
who the person knows or ought to know is pregnant,
Let us say that I "ought to know" someone is pregnant, but don't. So is harm to the mother "premeditated harm to the fetus"?
The only reason to include "ought to know" in the law is because they want to catch more people in its web than would be caught by "knows".
In a typical court proceeding, the mother-to-be will testify she told the guy she was pregnant, and he will say she didn't. Then the jury will be told that if they believe her, he's guilty.
I will bet anyone that this bill will not pass muster under the Charter.
Tue, 2008-04-22 12:35
#42
It seems to me that if someone were to support this law, it shouldn't matter whether the offender knows she's pregnant or not. If he or she has caused a miscarriage through violence, that miscarriage happens whether he or she knows it or not.
Although I guess I see the point that for someone to be guilty of committing a crime, they have to have had intent to commit the crime, or to be able to reasonably predict that their action could cause that crime to be committed.
I think, like most others here, that the easiest thing is to just leave well enough alone and not bother with any new law at all. It's fine for me (and others) to talk about what it COULD say and how this or that could be added or taken away or changed, but really, it's probably best just to not fix what ain't broke.
Tue, 2008-04-22 12:40
#43
M. Spector
remind:
I do agree that the accused could not be convicted if (s)he did not have actual or imputed knowledge that the victim was pregnant.
I don’t agree with your interpretation of the Bill in this respect:
238.1(2) says the defence of “provocation” serves to take the accused out of paragraph 1(a) and into paragraph 1(b), which calls for a [b]maximum life sentence[/b]. Paragraph 1(c) does not enter into the picture if the only defence is “provocation” and the accused person showed a wanton or reckless disregard for the life or safety of the “child”.
Tue, 2008-04-22 12:49
#44
M. Spector
quote:
Originally posted by unionist:
[b]Where in the law did it state that the offender had to "premeditate harm to the fetus" in order to get 10 years?[/b]
Good question.
If you didn't mean to cause injury or death to the fetus, then you drop out of subsection 1(a) into subsection 1(b), where there is no 10-year minimum sentence.
Thus the 10-year minimum applies only if the death of (or harm to) the fetus was intentional (not necessarily "premediated", which is a different concept).
[ 22 April 2008: Message edited by: M. Spector ]
Tue, 2008-04-22 12:55
#45
quote:
Originally posted by Michelle:
[b]It seems to me that if someone were to support this law, it shouldn't matter whether the offender knows she's pregnant or not. If he or she has caused a miscarriage through violence, that miscarriage happens whether he or she knows it or not.
[/b]
I'm not so sure. I'm not a alwyer but I would think that a law would differentiate the deliberate causing of a miscarriage versus it being a side-effect of another crime. Just like it distinguishes the person who drives recklessly, gets into an accident where someone dies versus the person who gets in their car and deliberately runs someone down.
Tue, 2008-04-22 13:18
#46
remind
Mspector, and unionist read (b) again:
quote:
(b) is guilty of an indictable offence and liable to imprisonment for life if paragraph (a) does not apply but the person shows wanton or reckless disregard for the life or safety of the child; [b]or [/b](c) is, in any other case,
(i) guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years, or
(ii) guilty of an offence punishable on summary conviction and liable to impris- onment for a term not exceeding 18 months.
It is the portion of (b) that says [b]or[/b] that shoots you down to c (ii) 18 months as c (i) deals with non-sudden provocation sentencing
Tue, 2008-04-22 13:28
#47
M. Spector
The "or" is simply the connective between paragraphs (a), (b), and (c), just as the word "and" is in this sentence.
If "paragraph (a) does not apply but the person shows wanton or reckless disregard for the life or safety of the child" then paragraph (b) applies.
Paragraph (c) only applies "in any other case".
Tue, 2008-04-22 14:15
#48
quote:
Originally posted by M. Spector:
[b]The "or" is simply the connective between paragraphs (a), (b), and (c), just as the word "and" is in this sentence.If "paragraph (a) does not apply but the person shows wanton or reckless disregard for the life or safety of the child" then paragraph (b) applies.
Paragraph (c) only applies "in any other case".[/b]
M.Spector is correct. It's really a matter of common statutory intepretation. It also conforms to the degrees of criminal liability: causing harm intentionally; causing harm recklessly; causing harm negligently; and causing harm while committing another offence, what is known as predicate liability.
ETA: oops - you were so right I said it twice. [img]wink.gif" border="0[/img]
[ 22 April 2008: Message edited by: pookie ]
Tue, 2008-04-22 14:53
#49
remind
Okay, what would c (ii) be then "in any other case"? Just put there just cause?
Tue, 2008-04-22 14:56
#50
quote:
Originally posted by remind:
[b]Okay, what would c (ii) be then "in any other case"? Just put there just cause?[/b]
In the event the Crown is unable to prove the particular levels of fault outlined in (a) or (b), but the fetus is killed as a result of an assault on the mother, the accused can still be found guilty of fetal homicide.
ETA, Sorry, I keep saying "an assault" on the mother, but the bill actually defines it more broadly as "an offence", not limited to assault.
[ 22 April 2008: Message edited by: pookie ]
Tue, 2008-04-22 15:53
#51
Why are we having a discussion that is nowhere at a level where most of us can arbitrate the semantics and legalese and thought experiments being batted to and fro, nor do we have any kind of leverage on what is decided in any such pro-fetus legislation?
The dynamics behind Ken Epp's private bill bear repeating.
Why are we discussing something as convoluted as C-484? Because anti-choice activists have understood that if they could tie their fight against women's freedoms to "fetal rights" and such "rights" to the prevention of violence against women, then they could tell women and politicians: "To create a law against feticide is to make laws on violence against women more effective, since expectant mothers love their children so much that nothing could be worse to THEM than..."
Putting women into this false position of agency, in a no-win situation (the old Solomon dilemma) - attempts to play against each other advocates of women's choice and people who oppose sexist violence. It makes pro-choice activists into would-be baby-killers! [img]mad.gif" border="0[/img]
We must resist this attempt to play against each other women and a part of their bodies that patriarchy has such a visceral investment in (White fetuses to hold back the Brown tides!).
I recall an anecdote that happened some years ago in Montreal. A pregnant woman died in a car accident, on Jacques-Carrtier Bridge I believe, but the paramedics who rushed to the scene managed to deliver her fetus alive; the media went ape over this and, for the next few weeks, whenever another woman was killed in a car crash, news[b]men[/b] felt duty-bound to give it extra attention and attempt to inform the population whether or not the victim had been pregnant and, if so, had the baby been "saved"! Some of us had to protest this before these hacks slunk back into the woodwork and women stopped being treated as possible vessels of a newsworthy life.
I feel we are being maneuvered into the same situation, but with auto accidents replaced by intimate partner violence. Will we have courts asking for pregnancy tests for assault victims in order to assess their level of entitlement? Defense lawyers arguing on sentencing that "it's not as if the plaintiff had been pregnant"? Will we have sentencing of batterers delayed until Baby is born and fully examined for damage, as if women's own rights were beside the point?
The underlying assumption that women are worth less if they are not pregnant seems to me the essence of patriarchy and should not be tolerated, especially here. And I am afraid that this is what we are doing when we start discussing alternatives to C-484 that remain based on putting fetuses on a pedestal.
Please [url=http://www.breadnroses.ca/birthpangs/activist-page/]write your MP and the Liberals[/url] using Bread'nRoses kick-ass Activist Page, as part of their "One body. One person. One count" campaign.
[url=http://www.thestar.com/Canada/Columnist/article/416542]Chantal Hйbert TorStar article: Leaders should fear abortion debate[/url]
[ 22 April 2008: Message edited by: martin dufresne ]