Bill C-543 Far Better Than Bill C-484

August 2, 2008

By Joyce Arthur, Abortion Rights Coalition of Canada (ARCC)

A private member’s bill that some fear is another anti-abortion bill was introduced in May by Liberal MP Brent St. Denis. Bill C-543, “an Act to amend the Criminal Code (abuse of pregnant women)” would require courts to consider pregnancy as an aggravating factor when sentencing those convicted of violence against women. (See sidebar below for details.)

Strictly speaking, this amendment is not necessary. But it is certainly a better alternative to Bill C-484[1], and ARCC suggested such a law last November in our Talking Points against C-484. We do believe that there is already some leeway in our justice system to apply harsher charges or penalties for attacks on pregnant women. And we would prefer other, more proven solutions to the problem of violence against pregnant women, including more comprehensive programs to address domestic violence and promote women’s equality, and equitable enforcement of existing laws.

There is also a valid concern by some women’s groups that a “tougher penalty” law would be used disproportionately against women, as is seemingly the trend in domestic abuse cases. The preferred solution of some women’s groups is to work towards law reform and a more egalitarian society, and refrain from passing new laws intended to protect women, because they often backfire against women in our patriarchal society. However, the answer cannot be to impose a moratorium on law-making until we achieve our desired society. That would lead to political paralysis. Besides, we need laws to protect our lives and rights, and separate dangerous offenders from society. Laws also exist for deterrence, though it can be difficult to prove if specific laws have a deterrent effect and if so, to what degree. But at the very least, laws serve an important symbolic purpose in a civilized society. The path to justice lies in reducing the discriminatory use of laws through education and legal reform, not dispensing with the law itself.

Some fears have been expressed that Bill C-543 would lead to establishing fetal personhood and criminalizing abortion, as would Bill C-484. However, there is no evidence that a “tougher penalty” law would have this effect. About a dozen U.S. states have enacted these laws, usually as a progressive alternative to so-called “Unborn Victims of Violence” laws. The “tougher penalty” laws have not been used to restrict women’s rights or abortion rights in the U.S., or to establish fetal personhood, according to Lynn Paltrow of the National Advocates for Pregnant Women, a civil liberties group that protects the rights of pregnant women (personal correspondence, May 15, 2008). Further, the NAPW supports “tougher penalty” laws, while strongly opposing “unborn victims of violence” laws because of how they’ve been used to target women and violate their rights.

In any case, the simple language of Bill C-543 seems to leave little room for misapplication.[2] It would provide a harsher penalty for abuse of a pregnant woman, which means the fetus does not even have to suffer injury for a charge to be laid. This recognizes the pregnant woman’s right to her pregnancy, not the fetus itself. It also means that if a pregnancy loss occurs, it would be recognized as a harmful assault against the woman, even if she is not otherwise injured. This is the way it should be, because the state of being pregnant is part of a pregnant woman’s personhood, and is a condition that increases her vulnerability to abuse. The only reason to prefer Bill C-484 is to recognize the fetus itself as a victim, but this makes the fetus a separate legal person, in direct conflict with the rights of the pregnant woman. The problem of establishing legal personhood for the fetus, and its vast potential for harm to women, has already been discussed in our previous statements against Bill C-484.

Pregnant women are different from most other vulnerable groups because only women experience pregnancy, while both men and women can be disabled, aboriginal, elderly, gay, and so on. This makes pregnancy an equality issue. Recognizing the unique state of pregnancy should not threaten women’s rights—on the contrary, it should advance women’s reproductive rights and equality by compensating for childbearing and rearing. For example, women should be entitled to fully-funded reproductive healthcare services, including abortion, prenatal and postnatal care, and laws and policies that protect their rights while pregnant (including the right not to be pregnant). A law allowing increased penalties for attacks against pregnant women fits into this framework of compensation and extra protection.

What should the increased penalty be? The current Criminal Code’s aggravated assault clause, Section 268, allows a maximum penalty of 14 years for someone who “wounds, maims, disfigures or endangers the life of the complainant.” (Incidentally, this clause might be insufficient to press charges for an assault causing a miscarriage, especially if there is no other injury to the woman.) Therefore, it’s highly unlikely an offender would get more than 14 years under Bill C-543 for assaulting a pregnant woman and causing her to miscarry.[3] Some may feel this is not enough, but why should we single out pregnancy as something above and beyond any other aggravating factor? That would make pregnant women more “valuable” than any other vulnerable person—unless the concern is really about valuing fetuses as persons in addition.

Although Bill C-543 is neither perfect nor necessary, it serves an important purpose because it renders C-484 redundant and exposes its anti-abortion agenda. The only remaining reason to support C-484 is to give personhood to fetuses, with all that this entails. Some pro-choice Members of Parliament may be worried about political fallout from their constituents if they vote against C-484, because much of the public thinks it’s about protecting pregnant women. By supporting C-543 instead, MPs can now proudly stand up in public and truly protect pregnant women, including their reproductive rights and equality. At the same time, they can take the opportunity to advocate more urgently needed measures to reduce violence against women and promote equality.

Whether or not Bill C-543 ever makes it to 2nd reading, no MP has any excuse to continue supporting Bill C-484. In fact, C-543 is a useful test of the hypocrisy of the religious right: The bill protects women, which was the stated goal of C-484, but it does not grant personhood to fetuses, which was the true goal of C-484. Anyone who supports C-484 instead of C-543 needs to acknowledge that they are not, and have never been, primarily interested in protecting pregnant women from abuse.

Bill C-543 is an amendment to the Criminal Code, Section 7.18.2(a), Part 23 “Purpose and Principles of Sentencing.” The proposed amendment (ii.2) is in red text below.

Other Sentencing Principles

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(ii.2) evidence that the offender, in committing the offence, abused a person who he or she knew, or ought to have known, was pregnant,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;

[1]   The “Unborn Victims of Crime Act” would make it a separate offence to injure or kill a fetus during an assault on a pregnant woman.

[2]   However, the “ought to have known” phrase is copied from Bill C-484 and is legally problematic, in terms of the difficulty of determining a suspect’s knowledge and intent.

[3]    Section 718.2(b) of the Criminal Code (following where C-543 would be inserted) says that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

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