Archive for the ‘ Criminalisation ’ Category

Stepping away from the void: legal reform and abortion

If we learn only one thing from the recent death of Savita Halappanavar, it should be the importance of legal reform on the issue of abortion. The biggest problem with the law in Ireland on this topic, quite apart from the question of whether abortion should be allowed and in what circumstances, is that the existing legal position is unclear and hard to understand for both doctors, and their patients. In fact, there is no written law as such.

In 1992, the Supreme Court of Ireland held that although abortion was not allowed in the Republic of Ireland, there is a right to obtain one where the pregnancy puts the woman’s life at risk, or in this case made a teenager suicidal (you can find a summary of the facts and the case here). The Supreme Court stated:

the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible.

The decision as to whether the termination is permissible is left entirely up to doctors, with no guidance as to what factors might be appropriate.  In 2010, the European Court of Human Rights decided that even though there might not be a complete right to abortion, the lack of legal certainty was a violation of women’s rights as they could not obtain clear information about whether they had access to the procedure or not.

And now, two years later, it is sadly evident that the law is not any clearer, nor is it any better understood. If Savita’s life was at risk, as it seems to have been, then providing her with an abortion would have been legal, even under Irish law as it stands in this ‘catholic country’. A full investigation will hopefully bring more light to what actually happened and how such a tragedy could have been avoided. In the meantime, it seems hardly controversial to call for clarity in the law and a much awaited legal reform.

Legal reform on abortion is not, however, solely an Irish problem that we can safely observe from afar. If anything, the public debate surrounding the issue in the UK and the US, from movements supporting abortion service providers to Nadine Dorries’ controversial attempt to feed her anti-choice views to the masses through the medium of reality TV, shows that legal reform might also be on the agenda here.

Calling for legal reform on abortion is not necessarily a partisan call to action on one side of the debate or the other. Although it is generally seen as an anti-choice endeavour, especially following recent legislative attempts to limit access to the procedure (eg by lowering the time limit and changing counselling requirements for women), changing the law on abortion does not necessarily limit women’s choices, but can also lead to clearer rules and a broader consensus, which reflects true social positions. There are probably as many ways to deal with abortion in the law as there are legal systems, but specific examples can show different ways to approach the issue and maybe give some inspiration to legislators in Ireland and elsewhere…

What does the law say?

English Law

Contrary to what we might assume, English law does not recognise a positive right for women to choose to have an abortion, in the way that we have a right to freedom of expression and religion. Instead, the law provides a specific defence to cases which would otherwise be a crime according to two separate offences, both of which carry a maximum sentence of life imprisonment. The legal position is therefore that the action of procuring or attempting to procure an abortion is by nature wrong, but might be excused under certain limited circumstances. There is no right which guarantees or protects access to the procedure.

The offences which criminalise abortion are two very old crimes, defined in 1861 and 1929 respectively. They are:

  • Intentionally trying (or helping someone to try) to have an abortion, irrespective of whether you succeed, or even if you are not pregnant, and
  • Causing an abortion, either on yourself or someone else, when the foetus could have been born alive.

Since 1967, the pithily named ‘Abortion Act 1967’ has introduced a defence to these offences in certain specific circumstances. A person will not be guilty of an offence relating to abortion if the “pregnancy is terminated by a registered medical practitioner” and “two registered medical practitioners” are of the opinion that

  • The pregnancy has existed for less than 24 weeks, and “the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family”, OR
  • At any point of the pregnancy, there are serious medical issues relating either to the mother, the foetus or both.

So the ‘Abortion Act’ does not provide a right to abortion, but finds that in certain, strictly defined circumstances, trying to have or actually having an abortion will not be considered a crime. This is not because the woman has a right to decide and choose for herself, but only because doctors have found that continuing with the pregnancy will be damaging to the woman carrying the child or her existing children. Even under 24 weeks, it is not the woman’s choice which determines if she can have an abortion, but the doctors’ opinion on her mental and physical state.

This approach to abortion sets the UK apart from other countries, where there is generally a right to have an abortion by choice before a certain time limit. This is, for example, the case in France and Germany.

French law

The 12 or 14 week time limit applicable in France and Germany is often presented as imposing more restrictions than English law does. However, upon closer inspection, the law in both countries is potentially less severe than the English 24 week time limit. In France, for example, access to abortion is divided between two different procedures: ‘voluntary interruption of pregnancy’ (IVG) and ‘medical interruption of pregnancy’ (IMG). Each represents a different decision making process and attracts different rules:

  • A voluntary interruption must be performed by a medical practitioner, and has to happen within 14 weeks from the woman’s last period, which amounts to 12 weeks of pregnancy. During this time however, there is no limitation as to why a woman may interrupt her pregnancy – the fact that she decides to is enough, although she will have to see a medical practitioner and there is generally a time delay of a few days between the consultation and the procedure.
  • A medical interruption of pregnancy is also, as the name suggests, performed by a medical practitioner, but can be performed at any time during the pregnancy, in cases of grave malformation of the foetus and serious danger to the woman’s life. Certain conditions must be  met:
  1. It is not against the woman’s will,
  2. The disease is grave and incurable,
  3. Experts’ authorisation has been granted, and
  4. There are no other alternatives.

So, although the 12 week time limit for obtaining an abortion may seem more severe than in English law, the crucial difference in French law is that a woman who wants to interrupt her pregnancy in the first trimester (where over 90% of abortions happen anyway, in France and in England) can do so without having to seek any medical authorisation. Since 2001, French law explicitly states that it is her right to choose to have an abortion, and the only test is whether she considers that her pregnancy places her in a “situation of distress.” This approach ensures that it is truly the woman’s choice to have an abortion. Before 14 weeks, the doctor’s role is merely that of an advisor or facilitator, and is therefore closer to what it is in most medical cases.


The next step in making abortion more like a medical procedure is to decriminalise it entirely. This is the case in Canada, where it is treated as a medical procedure, regulated and protected by medical laws. This has been the situation for over twenty years, since a decision by the Canadian Supreme Court in 1988. Until then, the law regarding abortion was essentially the same as in England: intentionally trying to procure a miscarriage was a crime, unless the woman had a medical authorisation and the procedure was carried out according to various restrictions, including that the procedure should be approved by a ‘therapeutic abortion committee’ composed of at least three doctors and carried out in a hospital.

In 1983, 3 doctors were charged with the offence of trying to procure a miscarriage, based on the claim that they carried out abortions in their clinic without respecting those restrictions. The case went all the way to the Supreme Court, and the doctors’ lawyers argued that the law on abortion violated women’s fundamental rights according to the Canadian Charter of Rights. The court agreed with that argument (only one judge disagreed) on the basis that:

  • The law against abortion violated a woman’s right to security of the person (ie the right to do what one wants with one’s body and take personal decisions). In particular, the process that was imposed before a woman could have a legal abortion was too complicated and traumatic.
  • Although the state had a genuine interest in protecting the rights of the foetus, the law went too far and infringed on the woman’s rights more than was necessary to protect the foetus.

Different judges focused on different rights, but the core of the decision was that the legal complications created too many delays and possible complications when seeking an abortion, which could pose a significant risk to the health of the woman, both physically and emotionally. All the judges recognised the importance of protecting the foetus, but found that the law as it was did not strike the right balance between the protection of the foetus and the duty owed to the pregnant woman, especially as delays could lead to forcing her to carry out an unwanted pregnancy to term. The idea that a ‘forced pregnancy’ would be a particularly severe violation of a woman’s rights was strongly endorsed by the court.

Abortion in Canada is therefore not a crime anymore, although it doesn’t mean that access to services is necessarily easier. It also doesn’t mean that it’s outside of the law entirely, as medical law and ethics will apply to the medical decision of carrying out an abortion, and regulations about access to medical services will apply. Any violation of the rules surrounding medical practice and ethics might amount to a crime, but it will not be a crime relating to abortion per se.

Legal reform and policy

In terms of wider policy, the legal approach to abortion can be separated into three broad categories:

  • using the law as an expression of moral condemnation and prohibition,
  • limiting or cancelling the criminalisation of abortion altogether because of its negative consequences on women, and
  • including access to abortion services within a list of medical services that should be available to all women.

While France and Canada represent the second category of policy, English law still remains mainly the expression of a moral condemnation of the act, albeit with a limited medical defence. The fact that it does not recognise a right for all women to choose to interrupt an unwanted pregnancy, whatever the stage of the pregnancy, sends a clear message that abortion is morally wrong and therefore should be punished, except in certain limited circumstances.

This negative connotation is also reflected in the use of the word ‘abortion’ to refer to the procedure itself in English law. Although the process is referred to as ‘medical termination of pregnancy’ in the heading of the legal provision, the word abortion is more widely used, including in the title of the Act itself, which is the Abortion Act 1967. By contrast, in French law, the direct translation of the word ‘abortion’ (avortement) is not used at any point in the law: the term used is ‘voluntary interruption of pregnancy’ before 12 weeks, when the decision is made by the woman and ‘medical interruption of pregnancy’ after that, when the decision is made by the woman and medical practitioners. Meanwhile, in Canada, the Supreme Court justified its decision to decriminalise abortion by referring to the negative consequences of ‘forcing a woman to carry a foetus to term,’ shifting the emphasis on the consequences of not having an abortion, rather than on the procedure itself.

Although the word ‘abortion’ is technically neutral, it has become morally loaded, especially when compared to voluntary or medical ‘interruption of pregnancy’, and the concept of ‘avoiding a forced pregnancy.’ Those terms refer to the same medical act, but carry different connotations and are ultimately a reflection of the social policy implemented in each country. This lack of neutrality is partly because access to abortion represents much more than a legal problem: it’s a social question, a gender issue, a religious belief, a medical procedure, and a personal decision all at once.

The complexity of the question makes the quality of the legal answer even more important, as the recent case of Savita’s death has shown us. Ireland has avoided legislating on this issue for over 20 years now, and whatever the results of the enquiry under way, the lack of clarity in the law leaves a gaping hole where the legal safety net should be. While the law can often be an ass with little or unimportant consequences, the stakes are literally a matter of life or death in the case of abortion. This is why how the law is written and what policy it reflects is so incredibly important, whatever views one holds.

However, the fact that abortion is such a political minefield means that governments and Parliaments around the world often prefer to ignore the issue rather than risk alienating a whole class of voters. But just as a legal void can lead to tragedy, so a political void on the issue creates a space where personal and emotional arguments will inevitably lead to a skewed debate and eventually to bad law.


The F word.

An interview between Jeremy Paxman and Boris Johnson is always entertaining, the former a mildly sarcastic chastising headmaster to the latter’s cheeky schoolboy, but their little number reached new heights of randomness last week.

Sick vs Broken, Camera vs Riots

Newsnight had managed to corner the mayor of London the day after his own speech and before David Cameron’s big address to the Tory Conference, and Paxman brought up the issue of the riots and whether – I paraphrase – Johnson disagreed with ‘Dave’ about the fact that it showed society was in some way ‘broken’. Wary of being caught out in disagreement with his beloved leader, Johnson then launched into a bizarre argument about the meaning of ‘sick’ vs ‘broken’, which culminated in Johnson pointing out to the BBC camera in front of him and the fact that it might be ‘sick’ (the exact diagnosis remained unclear to the audience) but was still functioning and not broken. (full interview here)

So the mayor of London, city where most of the violence and disorder took place in August, manages to answer a question about a very serious issue by comparing the riots to a scuff on the underside of a camera. It’d be fairly amusing if it wasn’t so depressing.

Well, it might be the lawyer in me, but I believe that words matter. They matter in everyday life, but even more so when you are trying to control things with them, as the law does when defining contracts, crimes or constitutions. And because we are now in an age of constant news coverage, they also matter as soon as they come out of a politician’s mouth (or preferably before, but you can’t expect too much I guess…).

Comparing the riots and their impact and role in our society to a malfunctioning camera might seem innocuous in the context of the interview, but it trivialises a very important issue, from a man who arguably already took a little too long to realise their importance…

It’d be easy to dismiss this “playground” argument as just that, but it is just one of many examples of ‘soundbites’ regarding the riots, from the prime minister’s dismissive diagnosis of society ‘being sick’ to Ian Duncan-Smith’s focus on ‘gangs’ and the need to ‘find a way out’, rather than fix things where they are. Using soundbites instead of policy is bad enough as even Tony Blair, soundbiter extraordinaire, has acknowledged, but there is another darker side to this.

“Feral Underclass”

One word that seems to have cropped up regularly since the riots is ‘feral’. Often it was used in sensational headlines or in live interviews in the heat of the moment, but it finally caught my attention properly when I read Ken Clarke’s article in the Guardian about a month ago. In the article, the Lord Chancellor talks about the failure of incarceration when dealing with offenders, a laudable and interesting point, especially from a Tory minister. But despite some of the positive things said in that article, the opening paragraphs of the article rankled in my mind for a while after I’d finished reading it and I realised that, more than the often flawed arguments used by the Lord Chancellor, one word in particular was still bothering me: ‘feral‘.

And so I did what any good lawyer will do when in doubt: go and check what the law says. In this case, the law was a dictionary, and it told me that feral was an adjective meaning:

in a wild state , especially after escape from captivity or domestication (especially of an animal).

A feral person is therefore someone that escaped some sort of ‘domestication’ and returned to a wild, uncontrollable state. They are also, somehow, of an animal nature, and as friend pointed out a couple of weeks ago, the most common way to deal with feral animals is to terminate them when they represent a threat. These implications attached to the word ‘feral’, especially in association with the riots, are only compounded by the fact that the exact words of Mr Clarke referred to a ‘feral underclass’. Not only are they wild and out of the control of their ‘captor’, but they are also inferior (this is just based on the literal meaning of underclass. Inferior to what or whom is open to debate…)

As a politician and lawyer, Mr Clarke should know that whatever message he was trying to put across, it will be overshadowed by the use of that adjective and the words surrounding it. I’m sure, and indeed I hope, that Mr Clarke would deny having any such intention when he wrote his article but it barely matters. Words are what remain, black and white on the pages of a newspaper, on a computer screen and sometimes, tragically, in the mind the mind of members of this so-called ‘feral underclass’…

Home, Reasonable Home?

If I was slightly more cynical, I would almost be tempted to believe that all the fuss and repeated gaffes over the Legal Aid and Sentencing Bill was a way to distract from the massive and dangerous cuts to the legal aid system.

First, the ‘rape might not always be as serious as other types of rape’ non-debate, then the accidental publication of the bill on Tuesday morning, and the expected U-turn on the 50% sentence reduction for early guilty plea. And just in case that wasn’t enough to catch one’s attention and make our collective heads spin, David Cameron then stepped up to provide some distraction, in the popular and populist form of “Grrrr! Look at me I’m tough and not at all soft” posturing. Or, as John Humphrys elegantly put it this morning, “willy-waving”.

(the video link is here – apologies for unwanted and scarring mental images…) 

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Rape Roundup

In the spirit of ‘smartened up debate‘ and before everybody gets sick of talking / reading about it, here are a few points about the non-debate on rape last week and the many issues that were or should have been raised…

Rape is ?

The cause of the whole controversy was Ken Clarke’s comment about what constitutes ‘serious rape’ or ‘rape in the ordinary conversational sense’. This is obviously a very bad choice of words and something the Justice Secretary has rightfully apologised about. After a week of commentators, politicians and journalists worriedly repeating ‘rape is rape’ just in case someone might think they didn’t think that it was, maybe it would be a good idea to remind ourselves what the definition of rape actually is:  

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life

No ‘jumping from behind a bush’, no ‘victim must be appropriately dressed and reasonably sober’. The only requirements are:

  • A penetration, by a penis, which means that rape can only be committed by a man. Students often perk up at this point and make the ever-incisive comment that ‘what about a man raped by a woman’? What about it indeed? Well, that would be covered by an offence of sexual assault, which is defined in section 3 of the act, though I’m not sure how practically relevant to criminal law a ‘woman on man’ rape really is.
  • The act can be committed against both a man or a woman, and forcing someone to do a blowjob is rape too.
  • There is no consent to the penetration itself. Consenting to dinner / a drink / 10 drinks / a grope / any sexual act does NOT imply consent to the penetration. In fact, even if there was consent to the penetration but consent is withdrawn, everything else should be withdrawn too…
  • Consent is a difficult thing to prove, which is why many rape cases hinge on that particular issue. There are situations where it will be presumed that consent was absent, as was discussed in this blog before.
  • If there is a reasonable belief that there was consent, then it was not rape. The excuse that ‘No means Yes’ will not cut it, it has to be shown that care was taken to find out about consent and that anybody else could have made that mistake.
This is what rape is. However, this is not what Ken Clarke was actually trying to talk about at all…

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Dumbed Down Debating

The real winner of this week’s latest fracas controversy debate on rape is probably the BBC and the producers of BBC Question Time. The programme obviously hit the jackpot when Ken Clarke put his foot in it, two days before the show was to be recorded at Wormwood Scrubs prison. In fact, in these conspiratorial times, it’s enough to make you wonder if Ms Derbyshire wasn’t purposefully trying to trick the Justice Secretary…

In any case, the show made for interesting, if somewhat confusing viewing. Interesting that, to the left of the master of ceremony, Shami Chakrabarti of Liberty was siding with Ken Clarke, while to the right New Labour’s justice tsar Jack Straw was cosying up to Melanie Phillips of the Daily Mail. Funny and confusing days we live in… I mean, how is one supposed to know who to shout at?

After the inevitable re-affirmation of the week’s most popular truism that rape is, indeed, rape, the questions and the answers started getting infuriating moronic interesting. In particular, Ms Phillips’ cry for criminals, and rapists in particular, to serve their ‘whole sentence’ signalled a turn for the worse. Continue reading

A Striking Balance

An interesting interview in the Guardian yesterday with Keir Starmer, head of the Crown Prosecution Service and therefore in charge of who gets tried for what crime in England and Wales. He talks in particular about the guidance that the CPS has issued as part of a consultation on whether a woman who retracts a claim of rape should be charged with perverting the course of justice when there is a history of abuse with the accused.

A broad enough measure of compassion?

image courtesy of Joe Gratz, via

This consultation (which is open until May 6) was prompted by a case a few months ago where a young mother was jailed for a few months after she was found guilty of perverting the course of justice. She had accused her husband of rape, only to withdraw her claim later. This ‘false retraction’ had led to her being sentenced to prison, despite the fact that the court accepted she had suffered abuse at the hand of her husband and had withdrawn her claim because of pressure from him.

Although the court of appeal ‘freed’ her, it did not quash her conviction. This means that she is still guilty of a criminal offence of ‘perverting the course of justice’, but that her sentence was reduced to a community sentence with a two year supervision order instead. As the aptly named Lord Judge put it, the court should have showed a “broad measure of compassion” for a woman who had already been “victimised”…

While the result is undoubtedly just, one can’t help but wonder whether it is just enough, as she is still held to be a criminal for giving in to the pressure of her abusive husband.

Only false accusations to be prosecuted

Mr Starmer’s reaction to the case was to announce that all similar cases of rape retractions in situations of domestic violence would be reviewed by him personally. But he thankfully didn’t stop there and the CPS has now produced a consultation about its interim guidance on such cases…

The most striking characteristic of this guidance is that women who falsely withdraw claims of rape will now only be prosecuted if the initial claim was false or malicious and not if the allegation was true but withdrawn for personal reasons. This position is reinforced by the instruction that to prosecute someone for falsely retracting rape claims will therefore only be acceptable if it can be proved, to the criminal standard of proof (ie beyond reasonable doubt), that it was falsely made in the first place.

This means in practice that women who have claimed that their partner has raped them but later withdrawn a claim, whether because of the abusive nature of the relationship or for other personal reasons, will not be prosecuted and held criminally responsible. If there is enough evidence to show the accusation of rape was false in the first place, then the CPS will consider whether it is in the public interest to bring that person to justice. This will not always be the case: in a recent case where a 14 year-old girl wrongly accused a 14 year-old boy of having raped her, it was found that a trial would not be in the public interest and all charges were stopped.

Balancing Act…

image courtesy of Bryan Gosline via

This test strikes a much better balance regarding the responsibility of women who withdraw rape claims. By allowing the conviction to stand, the Court of Appeal’s decision means that a woman was made a criminal for giving in to the pressures of an abusive partner. This would make women in her situation partly responsible for the abuse she receives, a position which is untenable and unfair. By stating clearly that such women are not committing any criminal wrong but rather are still to be protected by the criminal justice system, the CPS shows that its commitment to fighting domestic violence isn’t all talk and no show…

Criminal Cover-up

Since Monday morning, I’ve been wanting to write a post about the French burqa ban. It’s not even that I’ve been putting it off because I was enjoying the last rays of sunshine, or busy trying to write an actual chapter for my PhD, or even that I was in bed with a bad cold. It’s just that I couldn’t find how to write it. I couldn’t think of what I would start with and which words would convey my dismay and sadness at this opportunistic and un-thought-through piece of legislation…

And then I realised that, as a lawyer, these were the exact words I needed: that of the actual law. So I went looking and found the new website dedicated to the ban (what’s next? a facebook fan page?), setting out the new rules and their inspiration. And guess what? They turned out to be just as depressingly inspiring as I’d hoped they would be…

What ?

The law, voted on the 11 October 2010 and that came into force last Monday, doesn’t actually expressly ban the burqa or even the niqab. In fact, it states that “no-one can, in the public space, wear an outfit designed to hide ones face.” The website (and the downloadable flyers, in case you fancy printing some out for yourself…) helpfully explains that this means “outfits which prevent identification. The face need not be totally hidden, for example a piece of cloth which hides the face but the eyes is also forbidden”. But, before you think they are targeting anyone in particular, this can include but isn’t limited to: “balaclavas, integral veils (burqa, niqab), masks and any other accessories or items of clothing which, whether on their own or associated with other items, hide the face.” Continue reading

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