Child destruction
Encyclopedia
Child destruction is the name of a statutory offence in England and Wales
, Northern Ireland
and Hong Kong
. The offence of that name has been abolished and replaced in Victoria
.
Child destruction is the crime
of killing an unborn but viable fetus
; that is, a child "capable of being born alive", before it has "a separate existence".
People have been convicted of the offence for injuring a heavily-pregnant woman in the abdomen, such that her fetus dies; for killing a fetus during childbirth
; or for performing a late-term abortion
. In United States law, the crime of feticide
may encompass both illegal abortion
of non-viable fetuses and what would in English law be defined as "child destruction".
Its purpose is to criminalize the killing of a child during its birth, because this is neither abortion nor homicide for the purposes of the criminal law. It can also be used to prosecute late abortions.
During the second reading of the Preservation of Infant Life Bill 1928 to 1929, Lord Atkin said:
, the offence is created by section 1(1) of the Infant Life (Preservation) Act 1929
:
"Felony"
See the Criminal Law Act 1967
.
"Penal servitude"
The reference to a sentence of penal servitude must be construed as a reference to a sentence of imprisonment]]: The Criminal Justice Act 1948
, section 1(1).
A registered medical practitioner who terminates a pregnancy in accordance with the provisions of the Abortion Act 1967
does not commit this offence.
Mode of trial
Child destruction is an indictable-only offence.
Sentence
Child destruction is punishable with imprisonment for life or for any shorter term.
The 1929 Act defined "capable of being born alive" as 28 weeks' gestation, later reduced to 24 weeks.
The charge of child destruction is rare. There were ten cases in the ten years to 1987. When a woman who had a backstreet abortion while 7½ months pregnant was given a suspended sentence
of 12 months in 2007, the Crown Prosecution Service
was unaware of any similar conviction. In 2000, a man who stamped on his girlfriend's abdomen caused her to go into premature labour. Since he had intended to kill the fetus in the womb, whereas in fact the baby died shortly after birth, he was convicted of manslaughter
and attempt
ed child destruction.
On February 12, 2011, 26 year old Carl Whant was charged with child destruction and murder of a 19 year old woman who was 8½ months pregnant.
, the offence is created by section 25(1) of the Criminal Justice Act (Northern Ireland) 1945
.
Sentence
Child destruction is punishable with imprisonment for life or for any shorter term.
Use
The first conviction for this offence was in 1997. The coroner
reporting on the 1998 Omagh bombing
recommended that the Director of Public Prosecutions for Northern Ireland
should prosecute for two counts of child destruction as well as 29 of murder, as one of those killed was 34 weeks pregnant with twins.
has a separate criminal code. The offence is called "killing unborn child" in Queensland
, Western Australia
(WA), and Northern Territory
(NT), and "causing death of child before birth" in Tasmania
. In South Australia, it comes under the heading of "abortion
".
In some states, the offence can be committed only around the time of childbirth: namely WA, Queensland, and NT. The definition is somewhat broader in Australian Capital Territory
, and comparably broad to the English law in Tasmania and South Australia
.
In Victoria
, section 10 of the Crimes Act 1958 defined the crime in terms similar to the Infant Life (Preservation) Act 1929
. It was repealed by the Abortion Law Reform Act 2008, on the recommendation of the Victorian Law Reform Commission.
New South Wales
has no child destruction law.
. This means that he is liable to imprisonment for life and to pay such fine as the court may award.
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
. The offence of that name has been abolished and replaced in Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
.
Child destruction is the crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
of killing an unborn but viable fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
; that is, a child "capable of being born alive", before it has "a separate existence".
People have been convicted of the offence for injuring a heavily-pregnant woman in the abdomen, such that her fetus dies; for killing a fetus during childbirth
Childbirth
Childbirth is the culmination of a human pregnancy or gestation period with the birth of one or more newborn infants from a woman's uterus...
; or for performing a late-term abortion
Late-term abortion
Late termination of pregnancy or late-term abortions are abortions which are performed during a later stage of pregnancy. Late-term abortions are more controversial than abortion in general because the fetus is more developed and sometimes viable.-Definition:A late-term abortion often refers to an...
. In United States law, the crime of feticide
Feticide
Feticide is an act that causes the death of a fetus. In a legal context, "fetal homicide" or "child destruction" refers to the deliberate or incidental killing of a fetus due to a criminal human act, such as a blow to the abdomen of a pregnant woman...
may encompass both illegal abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
of non-viable fetuses and what would in English law be defined as "child destruction".
Its purpose is to criminalize the killing of a child during its birth, because this is neither abortion nor homicide for the purposes of the criminal law. It can also be used to prosecute late abortions.
During the second reading of the Preservation of Infant Life Bill 1928 to 1929, Lord Atkin said:
England and Wales
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the offence is created by section 1(1) of the Infant Life (Preservation) Act 1929
Infant Life (Preservation) Act 1929
The Infant Life Act 1929 is an Act of the Parliament of the United Kingdom. It creates the offence of child destruction.It also amended the law so that an abortion carried out in good faith, for the sole purpose of preserving the life of the mother, would not be an offence.-Parliamentary...
:
"Felony"
See the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
.
"Penal servitude"
The reference to a sentence of penal servitude must be construed as a reference to a sentence of imprisonment]]: The Criminal Justice Act 1948
Criminal Justice Act 1948
The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
, section 1(1).
A registered medical practitioner who terminates a pregnancy in accordance with the provisions of the Abortion Act 1967
Abortion Act 1967
The Abortion Act 1967 is an Act of the Parliament of the United Kingdom legalising abortions by registered practitioners, and regulating the free provision of such medical practices through the National Health Service ....
does not commit this offence.
Mode of trial
Child destruction is an indictable-only offence.
Sentence
Child destruction is punishable with imprisonment for life or for any shorter term.
The 1929 Act defined "capable of being born alive" as 28 weeks' gestation, later reduced to 24 weeks.
The charge of child destruction is rare. There were ten cases in the ten years to 1987. When a woman who had a backstreet abortion while 7½ months pregnant was given a suspended sentence
Suspended sentence
A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation...
of 12 months in 2007, the Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
was unaware of any similar conviction. In 2000, a man who stamped on his girlfriend's abdomen caused her to go into premature labour. Since he had intended to kill the fetus in the womb, whereas in fact the baby died shortly after birth, he was convicted of manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
and attempt
Attempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
ed child destruction.
On February 12, 2011, 26 year old Carl Whant was charged with child destruction and murder of a 19 year old woman who was 8½ months pregnant.
Northern Ireland
In Northern IrelandNorthern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, the offence is created by section 25(1) of the Criminal Justice Act (Northern Ireland) 1945
Criminal Justice Act (Northern Ireland) 1945
The Criminal Justice Act 1945 is an Act of the Parliament of Northern Ireland.Section 25 of the Act creates the offence of child destruction, which states:...
.
Sentence
Child destruction is punishable with imprisonment for life or for any shorter term.
Use
The first conviction for this offence was in 1997. The coroner
Coroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
reporting on the 1998 Omagh bombing
Omagh bombing
The Omagh bombing was a car bomb attack carried out by the Real Irish Republican Army , a splinter group of former Provisional Irish Republican Army members opposed to the Good Friday Agreement, on Saturday 15 August 1998, in Omagh, County Tyrone, Northern Ireland. Twenty-nine people died as a...
recommended that the Director of Public Prosecutions for Northern Ireland
Director of Public Prosecutions for Northern Ireland
The Director of Public Prosecutions is the head of the Public Prosecution Service of Northern Ireland, and is appointed by the Attorney General for Northern Ireland. The current DPP is Sir Alasdair Fraser CB QC.-See also:*Director of Public Prosecutions...
should prosecute for two counts of child destruction as well as 29 of murder, as one of those killed was 34 weeks pregnant with twins.
Australia
Each state and territory of AustraliaStates and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
has a separate criminal code. The offence is called "killing unborn child" in Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
(WA), and Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
(NT), and "causing death of child before birth" in Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
. In South Australia, it comes under the heading of "abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
".
In some states, the offence can be committed only around the time of childbirth: namely WA, Queensland, and NT. The definition is somewhat broader in Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
, and comparably broad to the English law in Tasmania and South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
.
In Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, section 10 of the Crimes Act 1958 defined the crime in terms similar to the Infant Life (Preservation) Act 1929
Infant Life (Preservation) Act 1929
The Infant Life Act 1929 is an Act of the Parliament of the United Kingdom. It creates the offence of child destruction.It also amended the law so that an abortion carried out in good faith, for the sole purpose of preserving the life of the mother, would not be an offence.-Parliamentary...
. It was repealed by the Abortion Law Reform Act 2008, on the recommendation of the Victorian Law Reform Commission.
New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
has no child destruction law.
Hong Kong
Child destruction is defined in Section 47B of the Offences against the Person Ordinance. A person guilty of child destruction is liable to be punished as though he was guilty of manslaughterManslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. This means that he is liable to imprisonment for life and to pay such fine as the court may award.