Oh dear, I really must have a perverse desire to start Threads o’ Doom this week – first rape and sexual assault, now a post about abortion. Anyway, in news just in, a Cairns couple have been found not guilty of attempting to procure an abortion. The couple, Tegan Leach and Sergie Brennan, found out Leach was pregnant in late 2008, and the couple gave evidence that they did not want the baby because they were too young to be parents. Leach did not want to have a surgically invasive procedure, so Brennan got his sister in Ukraine to send them abortifactant drugs.
Queensland police found evidence of that Leach and Brennan had procured and used the drugs Misoprostol and RU486 when they were searching Leach and Brennan’s flat on an unrelated matter, and charged them pursuant to ss 225 and 224 of the Criminal Code 1899 (Qld) respectively.
Section 224 provides:
Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.
Section 225 provides:
Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.
In summing up the two-day trial, Judge Everson explained to the jury that Ms Leach could be found guilty regardless of whether she had been pregnant or not when she attempted to procure her own miscarriage.
As a result, he said, the jury must be satisfied beyond reasonable doubt that the drugs Ms Leach took were noxious to her health, rather than to the health of her unborn child.
….The case has reignited the debate over Queensland’s abortion laws and pro-choice activists converged on Cairns to demand the decriminalisation of abortion.
Media coverage of the trial and the surrounding debate has also been intense and The Australian understands the couple is at the centre of a potentially lucrative bidding war by rival media outlets.
Questions remain about why the pair were prosecuted. Ms Leach was charged under section 225 of Queensland’s 111-year-old Criminal Code, thought never to have been used before.
Children by Choice’s Kate Marsh said police traditionally turned a blind eye to the practice.
“This law has been in place for 111 years and no charges have been brought under it before,” Ms Marsh said outside court.
“Why now, why this couple and why did they have to undergo 18 months of pretty much hell to be found not guilty?”
Derek Barry at Woolly Days has a really good post on the history of abortion law in Queensland which provides some further context to the case. It will be interesting to see if there is any change to Queensland law as a result of this case.
This piece in the SMH yesterday thinks that it is unlikely that either Queensland or New South Wales law will be reformed in the wake of this case.
The bottom line is that I’m a pragmatist, not an idealist. It seems that society in general doesn’t actually want to apply this law when it comes down to tin tacks — police don’t usually charge people under it, the DPP don’t usually prosecute people under it, and the courts and juries don’t want to find people guilty. If a piece of legislation is not working (i.e. no one is applying it) then it should be scrapped, even if it’s not replaced with something else. What is the point of having a dead letter provision in the statute? It makes an ass of the law.