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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Wednesday, 10 March 2004) . . Page.. 961 ..

Mr Pratt’s bill defines an unborn child as “a foetus at any stage of its development”. In medical terms, an embryo develops into a foetus at six to eight weeks after conception. A strict application of the bill’s definition arguably means that an embryo would not be covered by the bill’s offences. Mr Pratt has not thought about how this offence might be prosecuted and how the structure of the offence creates the potential for the victim to be revictimised during a trial.

By stipulating a point during gestation, Mr Pratt’s proposed offence places a burden upon the victim of the crime. The defendant seeking a technical means of avoiding conviction would look to the accuracy of the medical opinion that the victim was at least six to eight weeks pregnant. Women who lose their pregnancy during the first trimester could face a line of questioning seeking to establish the time of conception.

Questions about the victim’s sex life could be asked as a means of trying to establish inconsistencies about the time of conception. When did you conceive? How often did you have sex? Is your husband the father? Do you have other sexual partners? Because the offence is so badly devised, it would become a trial about the victim’s personal life and the conception. This type of questioning would simply add to the trauma experienced by the victim and her family.

A defendant might also call upon a plethora of doctors to offer a medical opinion that the victim had not reached six to eight weeks gestation or that there was other evidence to suggest the foetus was already not viable or damaged. Did you have any accidents prior to the incident? Are there any ultrasound records? What do your doctor’s notes say about the health of the pregnancy? The prosecution would need to counter the defendant’s medical evidence with its own medical evidence. It is highly probable that many trials would focus on conflicting medical opinion about the status of a foetus rather than the act that led to the end of the pregnancy.

There are other negative ramifications for women. In the United States this kind of law expanded in the late 1970s and early 1980s in response to motor vehicle incidents and attacks on pregnant women. Since that time the legal construction has evolved in a way that enables third parties to intervene, through civil law, in a woman’s pregnancy and for courts to make orders contrary to the mother’s wishes. These cases create an adversarial relationship between the mother and her foetus. In some cases the mother’s rights were subordinated to the legally constructed interests of the nascent child. We can learn from these negative experiences. We do not have to take this path, which divides a pregnant woman into two legal entities.

There is yet another danger to the interests of women. In a criminal context, a simple amendment to the offence proposed by Mr Pratt would transform the offence from one that deals with actions by other people against the mother to one that includes actions by a pregnant woman against herself. This creates a real potential for revisiting the abortion debate. Not only that, it creates the potential for third parties to allege that the behaviour of the pregnant woman is causing harm to the foetus.

In his presentation speech, Mr Pratt argued that his bill is about protecting women in cases of domestic violence. The government is taking considerable steps to address the issue through a strategy of prevention and support for women at risk of violence or

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