Murder and pregnancy

UDP

Hi,

If a pregnant woman is killed (either murder or manslaughter) is the killer generally charged with 2 counts of murder/manslaughter i.e. for pregnant woman and fetus? If yes, is it the case that it doesn't matter how far along this woman is in her pregnancy - once she is pregnant = 2 counts of murder/manslaughter.

I cannot seem to find any cases/instances of it happening or articles that say one way or another.

Thanks.

johnnyskeleton

UDP wrote: »

Hi,

If a pregnant woman is killed (either murder or manslaughter) is the killer generally charged with 2 counts of murder/manslaughter i.e. for pregnant woman and fetus? If yes, is it the case that it doesn't matter how far along this woman is in her pregnancy - once she is pregnant = 2 counts of murder/manslaughter.

I cannot seem to find any cases/instances of it happening or articles that say one way or another.

Thanks.

At common law for the purposes of criminal proceedings, a child has rights as soon as the court feels those rights need to be protected. So an unborn child doesn't have rights as such until those rights are violated.

In the case of homicide, if the actions of a person results in a child not being born, that can be murder/manslaughter.

Pro Hoc Vice

UDP wrote: »

Hi,

If a pregnant woman is killed (either murder or manslaughter) is the killer generally charged with 2 counts of murder/manslaughter i.e. for pregnant woman and fetus? If yes, is it the case that it doesn't matter how far along this woman is in her pregnancy - once she is pregnant = 2 counts of murder/manslaughter.

I cannot seem to find any cases/instances of it happening or articles that say one way or another.

Thanks.

It would depend on the facts there has been one case I can find in the UK http://www.e-lawresources.co.uk/A-G-Ref-NO--3-OF-1994.php

I am not aware of any cases in Ireland. The UK case may have been decided differently in Ireland due to our constitution.

McCrack

I defer to johnny but would have thought a homicide can only be committed upon a living person. OP you might be asking this question in light of the recent sentence on John Geary in Limerick. One of his victims in that appalling crime was pregnant but he was only charged with 4 counts of murder. There was 4 people murdered by him although it is possible the DPP felt it was unnecessary to count a 5th. The sentence will be the same regardless.

drkpower

Don't think there has been a case in Ireland but the traditional English common law rule was that it can only be manslaughter or murder if the unborn is subsequently born alive and then dies. I think the US - or perhaps certain states - has taken a different approach.

Dandelion6

Murder applies only in respect of the killing of a person. A lot of people seem to think that Article 40.3.3 makes a foetus a person in Irish law, but it doesn't.

Pro Hoc Vice

Dandelion6 wrote: »

Murder applies only in respect of the killing of a person. A lot of people seem to think that Article 40.3.3 makes a foetus a person in Irish law, but it doesn't.

I'm not really sure this issue has ever been litigated, in 2004 the Coroner for the City of Dublin recognised Baby Doherty an unborn child as the 34th victim of the Dublin and Monaghan bombings.

Bluegrass1

UDP wrote: »

Hi,

If a pregnant woman is killed (either murder or manslaughter) is the killer generally charged with 2 counts of murder/manslaughter i.e. for pregnant woman and fetus? If yes, is it the case that it doesn't matter how far along this woman is in her pregnancy - once she is pregnant = 2 counts of murder/manslaughter.

I cannot seem to find any cases/instances of it happening or articles that say one way or another.

Thanks.

Have you looked at the definition of murder?

Dandelion6

infosys wrote: »

I'm not really sure this issue has ever been litigated, in 2004 the Coroner for the City of Dublin recognised Baby Doherty an unborn child as the 34th victim of the Dublin and Monaghan bombings.

I'm not sure the Coroner's decision in that case has any legal implications for the personhood of Baby Doherty though and the fact that the baby was only days away from birth may have been significant. Ugbelese v MJELR is probably on point here, it found that the "unborn child" has none of the personal rights protected by the Constitution with the exception of that guaranteed by Article 40.3.3 i.e. the right to life. No personal rights = not a person, I would think.

It's also pretty clear in the way legislation is interpreted in practice, for example it's impossible to claim child benefit for a foetus although the social welfare legislation defines a qualified child as a person under the age of 16.

UDP

Bluegrass1 wrote: »

Have you looked at the definition of murder?

My understanding is it is premeditated killing of another person.

Bluegrass1

UDP wrote: »

My understanding is it is premeditated killing of another person.

Your understanding? That is not murder (at least not in all circumstances). There is a definition of murder in the common law. The first thing you should have done is looked at it.

drkpower

Bluegrass1 wrote: »

Your understanding? That is not murder (at least not in all circumstances). There is a definition of murder in the common law. The first thing you should have done is looked at it.

The precise definition of murder is actually of very little help in answering the OP's fairly net (and difficult) question.

If you are going to act the arse, at least be an accurate arse.

UDP

Bluegrass1 wrote: »

Your understanding? That is not murder (at least not in all circumstances). There is a definition of murder in the common law. The first thing you should have done is looked at it.

According to the Cornell University Law pages:

At common law, murder was defined as killing another human being with malice aforethought.

That seems to be the same as what I was saying? I'm not sure what you are looking for here or what your point is or the relevance to my question as drkpower has pointed out.

Pat Mustard

Bluegrass1 wrote: »

Your understanding? That is not murder (at least not in all circumstances). There is a definition of murder in the common law. The first thing you should have done is looked at it.

You're not a 'Milk & Honey' re-reg, by any chance, are you?

Similar abrasive style of writing.

Rainblow

drkpower wrote: »

The precise definition of murder is actually of very little help in answering the OP's fairly net (and difficult) question.

If you are going to act the arse, at least be an accurate arse.

It seems to me that the o/p does not understand what murder is. In this jurisdiction its is

Coke:
"Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. .[1]"

Tom Young

S.4 of the Criminal Justice Act, 1964 might also prove useful to OP.

drkpower

Rainblow wrote: »

It seems to me that the o/p does not understand what murder is. In this jurisdiction its is

Coke:
"Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. .[1]"

Well thats not the definition of murder here either!

But in any case, the definition of murder doesnt do much to answer the OPs question.

UDP

Rainblow wrote: »

It seems to me that the o/p does not understand what murder is. In this jurisdiction its is

Coke:
"Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. .[1]"

My question is not about the technicalities of what murder is or isn't - I don't see how the above is much different to what I said not that it matters. It is about what charges are normally brought in the event of a pregnant woman being murdered/unlawfully killed and whether how far into the pregnancy the woman is matters.

Pat Mustard

The previous position was that if a child is killed in utero, there was no murder, per Coke Co. Inst., Pt. III, ch.7, p. 50.:

"If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child; this is a great misprision, and no murder . . .".

However, Charleton, McDermott & Bolger (Criminal Law, 1999) (p517) submit that this position has been abrogated by the 8th Amendment to the Constitution (1983), meaning that in Ireland, unlawful killing of the foetus can result in a charge of murder or manslaughter.

That's the general position (as already set out by Johnnyskeleton).

EDIT: Link to bailii.org full listing of AG's Reference No. 3 of 1994 - UK HOL 1997 (already mentioned by infosys).

In that case, the accused was originally charged with murder, which is what one might expect.

This was a UK case concerning injuries inflicted prior to birth. M was 24 weeks pregnant. She was stabbed in the face, back and abdomen by the father, B, who knew that she was pregnant. M survived. The child, S, had a grossly premature birth 17 days later, and died 121 days subsequently. The child did not die as a direct result of a stab wound, but due to complications arising out of premature birth caused by the injuries inflicted on the mother.

Unlike Ireland, the UK has a born alive rule, whereby a if an accused kills a foetus prior to birth, he does not commit murder or manslaughter.
From AG's Reference case:

There is no doubt also that he would not have been guilty either of the murder or of the manslaughter of the child if the child had been stillborn. Until she had been born alive and acquired a separate existence she could not be the victim of homicide: 3 Co.Inst. (1680) 50.

It was held that although the foetus was dependent upon its mother, it was a unique organism which could not be treated as part of the mother. Where it could not be shown that B intended to harm the foetus itself, as opposed to the mother, there was not enough to show mens rea for the murder of the child under the doctrine of transferred malice. The doctrine of transferred malice did not go that far, as it would have to go from the mother to the foetus and from the foetus to the child. Manslaughter was a possible verdict.

I would suggest that it is likely that an Irish court would not find a distinction between the prenatal and post-natal right to life of the child in those circumstances, given Article 40.3.3. Therefore, given the same facts as in the above case, I suggest that a murder verdict should be possible under the doctrine of transferred malice, in this country.

SHORT ANSWER:
I think that murder/manslaughter charges could be brought in the following circumstances:
a. Somebody kills the mother and unborn child.
b. Somebody seriously injures the mother and the child is stillborn because of those injuries.
c. Somebody seriously injures the mother and the child survives but dies subsequently, as a result of complications caused by injuries to the mother.

Dandelion6

The Mustard wrote: »

I would suggest that it is likely that an Irish court would not find a distinction between the prenatal and post-natal right to life of the child in those circumstances, given Article 40.3.3.

Would you suggest that a woman who has an abortion could be charged with murder?

Pro Hoc Vice

Dandelion6 wrote: »

Would you suggest that a woman who has an abortion could be charged with murder?

No because under Irish law there is a specific offence in relation to abortion which if memory serves has a maximum sentence of life.

The new bill once law will mean a women or another person can in certain circumstances carry out an abortion lawfully.

Tom Young

Offences Against the Person Act 1861, 1861 c. 100 (Regnal. 24_and_25_Vict) Attempts to procure Abortion, Section 58.

Rainblow

UDP wrote: »

My question is not about the technicalities of what murder is or isn't - I don't see how the above is much different to what I said not that it matters. It is about what charges are normally brought in the event of a pregnant woman being murdered/unlawfully killed and whether how far into the pregnancy the woman is matters.

Very few women are unlawfully killed in Ireland and very few of those are unlawfully killed whist pregnant. The result is that there have been no trials run where such a thing has been in issue. The DPP can bring whatever charges she likes. The real; question is what charge are likely to be given to the jury as to which offences they can convict the accused.

Dandelion6

infosys wrote: »

No because under Irish law there is a specific offence in relation to abortion which if memory serves has a maximum sentence of life.

Well that kind of underscores the point, I think - there is a "specific offence in relation to abortion" which means that terminating a pregnancy through intentionally killing the foetus is not murder under the law. The law against abortion applies both to the woman herself and to any other person who terminates the pregnancy (under the new legislation the offence is defined as "to intentionally destroy unborn human life", and no distinction is made as to who the intentional destroyer is). Also, it now carries a different sentence to murder, 14 years instead of life.

Pat Mustard

Dandelion6 wrote: »

Would you suggest that a woman who has an abortion could be charged with murder?

As a comparator with abortion for argument's sake, infanticide legislation allows for a woman who is charged with the murder of her child to be sent forward for trial on a charge of infanticide instead. (Infanticide Act 1949, as amended)

I do not see a similar provision in the abortion legislation.

I don't see anything to preclude a murder charge being brought by the DPP. Please feel free to correct this, if it is wrong.

However, infanticide legislation was introduced because of public and professional opinion that the killing of an infant by its mother should not be treated as being as heinous as murder. (Charlton, McDermott, Bolger quoting Smith & Hogan)

Along similar lines, I would suggest that abortion by a mother is less heinous a crime than murder in the ordinary course of events, if such exists. As we know, there are other jurisdictions in which abortion is permissible, and there are many people who argue that abortion should not be a crime in this jurisdiction. Also, abortion is permissible in this country under certain limited circumstances.

Therefore, I would suggest that in the circumstances of an abortion of a foetus by its mother, murder charges would not be brought by the DPP, in practise.

There is also the issue of how an application to dismiss a murder charge would be treated by a court, if the facts concerned abortion.



EDIT: SHORT ANSWER:

1. Could it happen?: I think that it could happen, in theory.
2. Would it happen?: I doubt that it would happen in practise.

Pat Mustard

Dandelion6 wrote: »

Well that kind of underscores the point, I think - there is a "specific offence in relation to abortion" which means that terminating a pregnancy through intentionally killing the foetus is not murder under the law.

I don't think that this is necessarily correct.

Subject to correction, without specific provision for the contrary in the legislation or otherwise in the law, there is nothing to prevent a range of criminal charges arising out of a single unlawful act.

I will use the example of a man who unlawfully discharges a firearm in a crowded public street. He could be charged with several offences, such as breach of the peace at common law, public order offences, firearms offences, and possibly more. He might possibly be convicted on all charges, even though some might be taken into consideration with respect to sentencing.

Therefore, the existence of one offence does not preclude the bringing of other charges arising out of the same unlawful act.

If a murder charge could not be brought in the case of an abortion, I think that there would have to be another reason why not, and I have not yet found any general reason.

Dandelion6

The Mustard wrote: »

If a murder charge could not be brought in the case of an abortion, I think that there would have to be another reason why not, and I have not yet found any general reason.

I think the reason has already been discussed in this thread. Murder relates to the killing of a person, and a foetus has never been deemed a "person" in Irish law.

infanticide legislation was introduced because of public and professional opinion that the killing of an infant by its mother should not be treated as being as heinous as murder.

Yet the legislation says that, but for the particular circumstances, it would be murder. There's no such provision in the abortion legislation (either the 1861 Act or the current bill). There's also no requirement in the abortion legislation that the woman's mind be "disturbed", so no clear reason why it should be treated as a distinct offence the way that infanticide is, if a foetus was a person.

Also, you haven't addressed the reason to have a distinct abortion law for someone other than the pregnant woman who deliberately terminates the pregnancy?

Pat Mustard

Dandelion6 wrote: »

I think the reason has already been discussed in this thread. Murder relates to the killing of a person, and a foetus has never been deemed a "person" in Irish law.

If this was true, it would simplify matters, but I don't think that it is correct.

The old law was that a foetus was not a person and could not be murdered (Coke).

My point is that because of Article 40.3.3, a foetus is capable of being the subject of murder or manslaughter (Charleton, McDermott, Bolger).

Dandelion6 wrote: »

Yet the legislation says that, but for the particular circumstances, it would be murder. There's no such provision in the abortion legislation (either the 1861 Act or the current bill). There's also no requirement in the abortion legislation that the woman's mind be "disturbed", so no clear reason why it should be treated as a distinct offence the way that infanticide is, if a foetus was a person.

Also, you haven't addressed the reason to have a distinct abortion law for someone other than the pregnant woman who deliberately terminates the pregnancy?

My point was that a murder charge may be altered to one of infanticide because the legislation provides for it. The abortion legislation made no provisionfor a murder charge to be altered to one of abortion. The old law did not need to say so because in 1861 a foetus was not a person, in law. There was no need to distinguish between abortion and murder, because murder of a foetus was a legal impossibility in 1861. However, I say that this is no longer the case because of Article 40.3.3. of the Constitution. These days, a foetus is capable of being murdered, in law, apparently. Therefore, I say that the new legislation in train should provide for the substitution of a murder charge with abortion, but it does not.

The old s.59 (which is still law at the moment) was aimed at third party medics or abortionists. As discussed, it was drafted in an era when a foetus was not human life, in law. The new law is drafted generally to catch all who 'intentionally destroy human life'. As it a catch-all provision, there is no need to deliberately include third parties in the new law.

I don't have the exact reason why no distinction is drawn with murder in the new legislation, but it seems plausible that it is a failure of our legislators.

Getting back to the main point, the existence of an abortion offence is not a reason to preclude a murder charge unless the law says so somewhere. Maybe it does, but I can't find it. If you can find where the law states this, maybe you could point it out.



Bill (now passed the Dáil stage)
Explanatory Memorandum

Dandelion6

The Mustard wrote: »

My point is that because of Article 40.3.3, a foetus is capable of being the subject of murder or manslaughter (Charleton, McDermott, Bolger).

I'm aware that you've said this, but at this stage it's still merely hypothesising and not the actual position of the Irish courts. What exactly do Charleton McDermott and Bolger say, incidentally, can you cite verbatim instead of summarising?

The new law is drafted generally to catch all who 'intentionally destroy human life'. As it a catch-all provision, there is no need to deliberately include third parties in the new law.

But third parties are included - and are subject to a lesser maximum sentence than they would be under a murder or manslaughter charge. I don't see how you can get around this, it seems to me to clearly indicate that killing a foetus is a lesser crime than killing a person no matter who does the killing.

I don't have the exact reason why no distinction is drawn with murder in the new legislation, but it seems plausible that it is a failure of our legislators.

Well, it seems more plausible to me that it is because our legislators do not consider abortion to be an alternative charge to murder or manslaughter, but a different - and lesser - offence.

Pat Mustard

Dandelion6 wrote: »

I'm aware that you've said this, but at this stage it's still merely hypothesising and not the actual position of the Irish courts. What exactly do Charleton McDermott and Bolger say, incidentally, can you cite verbatim instead of summarising?

"Right to life of unborn
[7.54] It is submitted that since the Eighth Amendment to the Constitution on 5 September 1983, the rule of common law which confines the protection of law, through the offences of murder and manslaughter to children fully extruded from the womb is abrogated. Equal treatment of unborn and born life is explicit in the Constitution which acknowledges the right of the unborn and guarantees to respect and protect it with due regard to the equal right to life of the mother."

(p.517)

Dandelion6 wrote: »

But third parties are included - and are subject to a lesser maximum sentence than they would be under a murder or manslaughter charge. I don't see how you can get around this, it seems to me to clearly indicate that killing a foetus is a lesser crime than killing a person no matter who does the killing.

This is the argument that because the abortion offence exists, the murder/manslaughter charge cannot be brought. I understand this argument, but I do not agree with it.

Dandelion6 wrote: »

Well, it seems more plausible to me that it is because our legislators do not consider abortion to be an alternative charge to murder or manslaughter, but a different - and lesser - offence.

This does not explain why somebody could not be charged with the abortion offence and murder at the same time.

Dandelion6

The Mustard wrote: »

which confines the protection of law, through the offences of murder and manslaughter to children fully extruded from the womb is abrogated

So they don't actually say that abortion could be charged as murder? That bolded part seems to imply that what they're actually addressing is the potential killing of a child in the process of being born (a statutory crime in the UK but not here). Otherwise why not just say "outside the womb". In any case (a) their view has still not been adopted by the Irish courts and (b) that book was published before the Ugbelese decision which, as I said above, seems to me to rule out the possibility of equating a foetus with a person, as would be required to bring it within the laws on murder and manslaughter.

This is the argument that because the abortion offence exists, the murder/manslaughter charge cannot be brought.

No, it's the argument that the legislature specifically considers abortion to be a different, and lesser, offence.

I'm open to correction on this but in all the debate over the abortion bill, which is the most comprehensively debated piece of legislation in recent memory, I don't think I heard even one person suggesting that the existing legislation on murder and manslaughter would cover anyone who terminated a pregnancy (or even anyone except the pregnant woman). If anyone did suggest it, they certainly weren't taken seriously. If that were a realistic possibility, I can't see why it wouldn't have featured at all in the debate.

Dandelion6

Sorry, one more thing. The State assists pregnant children in care and asylum seekers in going to the UK for an abortion. If abortion was murder in Irish law, wouldn't that make the State an accessory to murder? I assume that if I knew you were going abroad to kill an actual person, and I paid your airfare or organised your travel documents, I could be charged as an accessory or at least a conspirator.

Pro Hoc Vice

Dandelion6 wrote: »

So they don't actually say that abortion could be charged as murder? That bolded part seems to imply that what they're actually addressing is the potential killing of a child in the process of being born (a statutory crime in the UK but not here). Otherwise why not just say "outside the womb". In any case (a) their view has still not been adopted by the Irish courts and (b) that book was published before the Ugbelese decision which, as I said above, seems to me to rule out the possibility of equating a foetus with a person, as would be required to bring it within the laws on murder and manslaughter.



No, it's the argument that the legislature specifically considers abortion to be a different, and lesser, offence.

I'm open to correction on this but in all the debate over the abortion bill, which is the most comprehensively debated piece of legislation in recent memory, I don't think I heard even one person suggesting that the existing legislation on murder and manslaughter would cover anyone who terminated a pregnancy (or even anyone except the pregnant woman). If anyone did suggest it, they certainly weren't taken seriously. If that were a realistic possibility, I can't see why it wouldn't have featured at all in the debate.

My own view is that you are not correct on the Ugbelese decision, Cooke J said clearly that a unborn child does not have the rights of a born citizen but has a right to life and to be born.

"Held by the High Court (Cooke J.) in refusing the relief sought, 1, that the Constitution did not accord to the unborn child any of the unspecified personal rights enjoyed by the child when born a citizen. The scope and limitations of the rights enjoyed by the unborn child were made explicit by Article 40.3.3ø of the Constitution. Such rights were found exclusively and separately within that provision alone and the only constitutional right of the unborn child was the right to life or the right to be born."

BTW the main bit of Cooke's decision was overturned by the ECJ in Zambrano.

In this thread the OP's question related not to abortion but to the murder of a mother and therefore her child. This issue has never to my knowledge been litigated in Ireland, and only arose in the UK because of the survival of the mother. There is nothing stopping the DPP in the same circumstances bringing a charge of murder, would it succeed I have no idea, but I can bet any good defence team will challenge it.

Pro Hoc Vice

Dandelion6 wrote: »

Sorry, one more thing. The State assists pregnant children in care and asylum seekers in going to the UK for an abortion. If abortion was murder in Irish law, wouldn't that make the State an accessory to murder? I assume that if I knew you were going abroad to kill an actual person, and I paid your airfare or organised your travel documents, I could be charged as an accessory or at least a conspirator.

While I accept the thread got a little derailed, the OP's question was nothing todo with abortion.

In fact you first brought up the Abortion issue

"Quote:
Originally Posted by The Mustard
I would suggest that it is likely that an Irish court would not find a distinction between the prenatal and post-natal right to life of the child in those circumstances, given Article 40.3.3.
Would you suggest that a woman who has an abortion could be charged with murder?"

As I said the OP has a very specific question, not related to abortion, which has to the best of my knowledge not been litigated in Ireland.

Pat Mustard

Dandelion6 wrote: »

So they don't actually say that abortion could be charged as murder?

I've mentioned this point several times. They clearly refer to the old common law rule that a foetus could not be murdered, and they say that it is not the law any more. They say that it is possible for a person who kills an unborn child to be charged with murder or manslaughter.

Dandelion6 wrote: »

That bolded part seems to imply that what they're actually addressing is the potential killing of a child in the process of being born

The phrase used is 'fully extruded from the womb', which means fully pushed out from the womb, which means born. They say that the old common law rule is abrogated, which had confined protection of law to children fully extruded from the womb. So the old law does not apply. So it is irrelevant whether the child is born, unborn or in the process of being born.

In the next sentence, they go on to explain that they mean equal treatment for unborn and born life.

Dandelion6 wrote: »

(a statutory crime in the UK but not here). Otherwise why not just say "outside the womb".

Because the old common law rules used this type of terminology in describing the circumstances under which a child could be born: it had to be fully extruded from the womb, whether or not it was still attached by the umbilical cord, etc. I really hope that we do not intend to go down this particular rabbit hole.

And they did use the phrases 'unborn' and 'born' in the very next sentence

Dandelion6 wrote: »

In any case (a) their view has still not been adopted by the Irish courts

Yes, but as infosys pointed out, the matter has not been litigated in the light of the 8th Amendment.

Dandelion6 wrote: »

and (b) that book was published before the Ugbelese decision which, as I said above, seems to me to rule out the possibility of equating a foetus with a person, as would be required to bring it within the laws on murder and manslaughter.

It doesn't seem as though you read the case. The Ugbelase decision was a refugee case concerning citizenship rights. The right to life of the unborn was actually affirmed in the Ugbelase decision.

Dandelion6 wrote: »

No, it's the argument that the legislature specifically considers abortion to be a different, and lesser, offence.

As I said, I understand the argument. Again, it does not show that a murder charge cannot be brought.

Dandelion6 wrote: »

I'm open to correction on this but in all the debate over the abortion bill, which is the most comprehensively debated piece of legislation in recent memory, I don't think I heard even one person suggesting that the existing legislation on murder and manslaughter would cover anyone who terminated a pregnancy (or even anyone except the pregnant woman). If anyone did suggest it, they certainly weren't taken seriously. If that were a realistic possibility, I can't see why it wouldn't have featured at all in the debate.

Well, the thought certainly never crossed my mind until you brought it up.

Dandelion6 wrote: »

Sorry, one more thing. The State assists pregnant children in care and asylum seekers in going to the UK for an abortion. If abortion was murder in Irish law, wouldn't that make the State an accessory to murder? I assume that if I knew you were going abroad to kill an actual person, and I paid your airfare or organised your travel documents, I could be charged as an accessory or at least a conspirator.

Why don't you lead the charge this time, and we'll sit back and take a couple of potshots?

Dandelion6

The Mustard wrote: »

I've mentioned this point several times. They clearly refer to the old common law rule that a foetus could not be murdered, and they say that it is not the law any more. They say that it is possible for a person who kills an unborn child to be charged with murder or manslaughter.

I can only go by the part that you have cited, and that does not clearly say that a person who kills a foetus fully within the womb can be charged with murder or manslaughter. Your explanation does not satisfy me that they are not merely addressing the subject of a killing that takes place during the birthing process.

It doesn't seem as though you read the case. The Ugbelase decision was a refugee case concerning citizenship rights. The right to life of the unborn was actually affirmed in the Ugbelase decision.

I did read the case and I'm aware it affirmed the right to life of the "unborn" - not that that matters, because the "unborn" clearly have a right to life under Article 40.3.3. What it also said is that the "unborn" have none of the other personal rights guaranteed by the Constitution which, as I said above, seems to indicate to me that an "unborn" is not a person. And if it is not a person, then it cannot be a victim of a crime that can only be committed against a person.

In the next sentence, they go on to explain that they mean equal treatment for unborn and born life.

And that's precisely where Ugbelese contradicts them. The born and the "unborn" equally have a right to life, but they are not to be treated equally otherwise.

Well, the thought certainly never crossed my mind until you brought it up.

Why not? If killing a foetus can be murder or manslaughter, that's what follows logically.

Why don't you lead the charge this time, and we'll sit back and take a couple of potshots?

So, no answer to the question then?

Pro Hoc Vice

Dandelion6 wrote: »

I can only go by the part that you have cited, and that does not clearly say that a person who kills a foetus fully within the womb can be charged with murder or manslaughter. Your explanation does not satisfy me that they are not merely addressing the subject of a killing that takes place during the birthing process.



I did read the case and I'm aware it affirmed the right to life of the "unborn" - not that that matters, because the "unborn" clearly have a right to life under Article 40.3.3. What it also said is that the "unborn" have none of the other personal rights guaranteed by the Constitution which, as I said above, seems to indicate to me that an "unborn" is not a person. And if it is not a person, then it cannot be a victim of a crime that can only be committed against a person.



And that's precisely where Ugbelese contradicts them. The born and the "unborn" equally have a right to life, but they are not to be treated equally otherwise.



Why not? If killing a foetus can be murder or manslaughter, that's what follows logically.



So, no answer to the question then?

But we are talking only about the death of the child which must be an interference with the accepted right to life. The most basic human right is the right not to be killed. Also certain certain rights are given by society at certain stages. All citizens do not have the right to vote only when 18, all citizens don't have right to bodily integrity a parent can insist on a treatment for child against child's wishes. Does that make a child any less a person because he does not have all the rights of adulthood.

I do not accept that the case says what you believe, also as I said even if it does the main thrust of the decision has been overturned by Zambrano in any event.

Pat Mustard

Dandelion6 wrote: »

I can only go by the part that you have cited, and that does not clearly say that a person who kills a foetus fully within the womb can be charged with murder or manslaughter. Your explanation does not satisfy me that they are not merely addressing the subject of a killing that takes place during the birthing process.

This makes no sense. You are misinterpreting a simple idea. The idea expressed by Charleton, McDermott and Bolger is quite clear insofar as the old law no longer applies. It does not require further explanation or an interpretation. It is unambiguous.

Dandelion6 wrote: »

I did read the case and I'm aware it affirmed the right to life of the "unborn" - not that that matters, because the "unborn" clearly have a right to life under Article 40.3.3. What it also said is that the "unborn" have none of the other personal rights guaranteed by the Constitution which, as I said above, seems to indicate to me that an "unborn" is not a person. And if it is not a person, then it cannot be a victim of a crime that can only be committed against a person.

Again, this makes no sense. On the one hand, you accept that the right to life is affirmed in the case. On the other hand you make an assumption that because citizenship rights did not accrue to the unborn child that the child is not a person and cannot be murdered. That's a hell of a contradiction. For some reason which is not connected with this case, you are clearly harking back to the old common law rule, which no longer applies.

Dandelion6 wrote: »

And that's precisely where Ugbelese contradicts them. The born and the "unborn" equally have a right to life, but they are not to be treated equally otherwise.

This does not contradict the authors because the right to life is the relevant right here.

Dandelion6 wrote: »

Why not? If killing a foetus can be murder or manslaughter, that's what follows logically.

I agree. But it had not occurred to me before you asked the question. Although the idea had seemed incongruous, the elements of the crime of murder can be assembled, which is what is important from a logical point of view.

Dandelion6 wrote: »

So, no answer to the question then?

Unfortunately, I can't spare the time for that at the moment.

If you want to take a stab at it yourself, maybe look up where it is provided that somebody can be prosecuted in Ireland for murder abroad. See also the right to travel. Bear in mind that abortion has been decriminalised in the UK, so maybe there is a question as to whether somebody can be prosecuted in Ireland for a lawful act committed outside of the jurisdiction.

Dandelion6

infosys wrote: »

But we are talking only about the death of the child which must be an interference with the accepted right to life. The most basic human right is the right not to be killed. Also certain certain rights are given by society at certain stages. All citizens do not have the right to vote only when 18, all citizens don't have right to bodily integrity a parent can insist on a treatment for child against child's wishes. Does that make a child any less a person because he does not have all the rights of adulthood.

The judgment clearly says that the foetus has none of the personal rights granted by the Constitution, except the right to life under 40.3.3. That is a very different matter from the application of certain rights only upon reaching the age of majority.

I do not accept that the case says what you believe, also as I said even if it does the main thrust of the decision has been overturned by Zambrano in any event.

Zambrano was an EU decision about EU law on the right to residency of a child and his or her parents. It didn't in any way overturn the Irish constitutional position on the application (or not) of Irish constitutional personal rights to the foetus.

Dandelion6

The Mustard wrote: »

This makes no sense. You are misinterpreting a simple idea. The idea expressed by Charleton, McDermott and Bolger is quite clear insofar as the old law no longer applies. It does not require further explanation or an interpretation. It is unambiguous.

I don't agree that it is unambiguous. The inclusion of the phrase "fully extruded from the womb" makes it ambiguous. Looking up other uses of the phrase, they all seem to be using it in a context that indicates a distinction with babies in the process of being born or, at maximum, in the late stages of pregnancy. I cannot see any reason to use that phrase rather than "outside the womb" if they were speaking about the foetus in general.

Again, this makes no sense. On the one hand, you accept that the right to life is affirmed in the case. On the other hand you make an assumption that because citizenship rights did not accrue to the unborn child that the child is not a person and cannot be murdered. That's a hell of a contradiction.

I didn't say "citizenship rights", I said "personal rights". Ugbelese says that the Constitution does not accord personal rights to the foetus apart from the right to be born under Article 40.3.3. That's what it says. I don't think it's a contradiction or a major leap to conclude from that under the Constitution, the foetus is not a person. And, as I've pointed out already, we treat the foetus as a non-person in other aspects of law (such as the exclusion from child benefit, which is granted to persons under the age of 16/18).

If you want to take a stab at it yourself, maybe look up where it is provided that somebody can be prosecuted in Ireland for murder abroad.

The more relevant question is whether a person be prosecuted in Ireland for aiding and abetting (within the State) a murder that takes place abroad.

See also the right to travel.

I actually think that vindicates my point - it's inconceivable that the Oireachtas or the public would pass a constitutional amendment guaranteeing the right to travel for the purpose of committing a murder. In any case, the right to travel for an abortion doesn't necessarily impose on the state an obligation to facilitate someone travelling for an abortion. There's no reason it has to help asylum seekers in this situation, yet it does. That doesn't sound to me like the practice of a state that genuinely considers abortion a form of murder.

Pat Mustard

Dandelion6 wrote: »

I don't agree that it is unambiguous. The inclusion of the phrase "fully extruded from the womb" makes it ambiguous. Looking up other uses of the phrase, they all seem to be using it in a context that indicates a distinction with babies in the process of being born or, at maximum, in the late stages of pregnancy. I cannot see any reason to use that phrase rather than "outside the womb" if they were speaking about the foetus in general.

This is going around in circles.

The phrase you mention does not make the exerpt ambiguous. The authors say that the old law is gone. Their meaning really is as simple as that. If you refuse to accept the logical meaning of the paragraph, I don't think that there is any point in continuing this discussion.

Dandelion6 wrote: »

I didn't say "citizenship rights", I said "personal rights". Ugbelese says that the Constitution does not accord personal rights to the foetus apart from the right to be born under Article 40.3.3. That's what it says. I don't think it's a contradiction or a major leap to conclude from that under the Constitution, the foetus is not a person. And, as I've pointed out already, we treat the foetus as a non-person in other aspects of law (such as the exclusion from child benefit, which is granted to persons under the age of 16/18).

The right to be born is the right to life, as stated in the case. Your interpretation involves a major leap, which does not make sense in the context of the case. This has already been pointed out and you refuse to accept it, so there is little point in persisting with this.

Dandelion6

The Mustard wrote: »

The right to be born is the right to life, as stated in the case. Your interpretation involves a major leap, which does not make sense in the context of the case. This has already been pointed out and you refuse to accept it, so there is little point in persisting with this.

I accept that the right to be born is the right to life. The point I am arguing is that the breach of that right to life is to be dealt with under the abortion laws specifically written to protect the foetus, rather than under the murder and manslaughter laws.

I also accept that it is something of a leap to conclude from Ugbelese's finding that a foetus lacks constitutional personal rights that its killing cannot be prosecuted under laws that specifically refer to the killing of a person, but courts do make leaps like this. It was a leap to conclude from Article 40.3.3's reference to "due regard to the equal right to life of the mother" that embryos outside the womb do not meet the definition of "unborn", but that didn't stop the Supreme Court from making that leap in Roche v Roche.

Having said all that, you're probably right that there's little point persisting in this, since we're both only hypothesising how the courts might deal with a particular scenario in the unlikely event it presented.

Pro Hoc Vice

Dandelion6 wrote: »

I accept that the right to be born is the right to life. The point I am arguing is that the breach of that right to life is to be dealt with under the abortion laws specifically written to protect the foetus, rather than under the murder and manslaughter laws.

I also accept that it is something of a leap to conclude from Ugbelese's finding that a foetus lacks constitutional personal rights that its killing cannot be prosecuted under laws that specifically refer to the killing of a person, but courts do make leaps like this. It was a leap to conclude from Article 40.3.3's reference to "due regard to the equal right to life of the mother" that embryos outside the womb do not meet the definition of "unborn", but that didn't stop the Supreme Court from making that leap in Roche v Roche.

Having said all that, you're probably right that there's little point persisting in this, since we're both only hypothesising how the courts might deal with a particular scenario in the unlikely event it presented.

You are missing the important point in relation to this discussion. In the OP the issue is not abortion, it is the intention of the attacker to kill the mother, while doing that he also kills the child, or in the UK case the mother survived the child died.

This is not about abortion, it is about trying to harm on individual and by accident or design killing another. My reading of constitution and the law surrounding murder, it would be possible to at least charge a attacker of a pregnant women's who during that attack was directly responsible for the child's loss of life.

Pat Mustard

I realise that S.53 of the Road Traffic Act has been amended but this is just an example.

53(5) A person liable to be charged with an offence under this section shall not, by reference to the same occurrence, be liable to be charged with an offence under section 35 of the Offences against the Person Act, 1861.

S.35 OAPA'61 is the offence of furious driving. Here is a link the english version of that law.

The Road Traffic Act specifically provides that a person who is liable to be charged under S.53 RTA 1961 shall not be charged with an offence under s.35 OAPA1861 in relation to the one incident.

I would suggest that the abortion legislation should have a similar provision, prohibiting a charge of murder arising out the same incident. However, the new legislation does not make such provision.

Dandelion6

infosys wrote: »

You are missing the important point in relation to this discussion. In the OP the issue is not abortion, it is the intention of the attacker to kill the mother, while doing that he also kills the child, or in the UK case the mother survived the child died.

I'm not missing the point, I'm discussing where the issue in the OP would logically lead to.

The Mustard wrote:

I would suggest that the abortion legislation should have a similar provision, prohibiting a charge of murder arising out the same incident. However, the new legislation does not make such provision.

Which I would suggest is probably because the need to make such provision has never occurred to our legislators, because the inapplicability of the murder charge to abortion is self-evident to them.

Pat Mustard

Dandelion6 wrote: »

Which I would suggest is probably because the need to make such provision has never occurred to our legislators, because the inapplicability of the murder charge to abortion is self-evident to them.

Yes, you have basically expressed this already.

Three eminent lawyers have submitted that murder of a foetus is possible. You refuse to accept this, as is evident from your elaborate and selective misinterpretation of their words.

Pro Hoc Vice

Interesting case in US, http://www.bbc.co.uk/news/world-us-canada-23468222

"Castro was charged with 977 counts including two of aggravated murder for the "unlawful termination" of one of the women's pregnancies, as well as multiple counts of kidnapping and rape."


"Castro was charged with murder for beating and starving one of the women, who was pregnant, until she miscarried."

Dandelion6

Ohio law explicitly defines aggravated murder to include purposely causing "the unlawful termination of another's pregnancy".

Pat Mustard

Dandelion6 wrote: »

Ohio law explicitly defines aggravated murder to include purposely causing "the unlawful termination of another's pregnancy".

Fair point.