Pre-natal Injury and Homicide Following Attorney-General’s Reference (No 3 of 1994)
Any society that wishes to distinguish abortion from homicide must draw a (more or less arbitrary) line between people, who qualify for the full panoply of legal rights, and foetuses, which receive reduced protection. Rarely does the distinction cause practical problems for criminal lawyers,' but one recent exception has generated less comment than it may deserve. The factual background is as simple as it is tragic. Following a quarrel with his girlfriend, who he knew to be nearly six months pregnant with their child, the defendant stabbed her several times in the face, back and abdomen with a long-bladed kitchen knife. She went into labour two weeks later, giving birth to a grossly premature baby girl. While the baby had, it turned out, been wounded during the original attack, the only provable threat to her health resulted from extreme prematurity. After battling for some four months she eventually contracted a lung condition and died. A murder charge failed at trial, the judge ruling that neither actus reus nor mens rea for a homicide offence was present. The Attorney General referred that point to the Court of Appeal.2