Abortion as Self-Defence, Part I
The Rape Comparison
Content warning: I extensively discuss aspects of rape in the following post. It may cause distress to some people. If you or someone you know has been the victim of sexual assault, you can find a listing of Australian services here.
Unwanted pregnancy is the non-consensual of someone’s body which can only be ceased through lethal force towards the unborn child. This can be considered self-defence, just as lethal force towards the perpetrator of a rape is self-defence against non-consensual use of someone’s body (and is considered justifiable).
Self-defence is generally taken to be defending oneself, one’s property or another person from injury. The criteria for self-defence is outlined in the South Australian Criminal Consolidation Act 1935, and summarised by the Legal Services Commission of South Australia:
“A person is entitled to use such conduct as he or she genuinely believes is necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment) under s 15 Criminal Law Consolidation Act 1935. This will be a complete defence to an offence, including murder, as long as the force used was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist (for example, see Zecevic v DPP (1987) 162 CLR 645).
It will be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.”
The question to ask, therefore, is whether or not abortion – the killing of the unborn child – is a reasonably proportionate response to the ‘threat’ of pregnancy. To advance the concept that it is, unwanted pregnancy is often compared to rape, where self-defence using lethal force is considered by many to be justifiable.
The concept of reasonable proportionately can be explored from many angles, but given the above, I have chosen to look at it be comparing and contrasting unwanted pregnancy to rape, and therefore hopefully showing that they are not analogous and an argument for lethal self-defence in the case of one cannot be equally applied to the other.
Comparison 1: Basic Premise of Non-Consensual Use
- Rape involves non-consensual use of someone’s body (by the rapist).
- Unwanted pregnancy involves non-consensual use of someone’s body (by the unborn child).
This is a fair comparison, although it is worth having a look at the issue of consent and unwanted pregnancy, which I explored in an earlier post. What is not a given, however, is that non-consensual use of someone’s body is sufficient grounds for lethal self-defence. It is not difficult to think of instances where non-consensual use of someone’s body does not provide sufficient grounds. For example, if a child seizes my hand on a train platform, and cannot be persuaded or forced to relinquish their grip unless I push them into the path of an oncoming train, this is yet unacceptable – at least, I hope you find it so – even though it falls into the category of lethal self-defence in response to non-consensual use of my body. If a stranger on a balcony trips and grabs my arm in order to prevent a fall to their death, and cannot be persuaded or forced to let go (and plummet to their death) unless I kill or severely injure them, this is yet unacceptable – again, I hope you find it so – even with the lesser concept of non-lethal self-defence.
Thus we cannot consider the basic premise of non-consensual use of someone’s body as sufficient ground for lethal self-defence in and of itself. Hence there must be other nuances present that enable us to judge the reasonableness of the response.
Comparison 2: Legal Definition
- To be legally rape, the action of the perpetrator must fulfil the conditions of mens rea and voluntariness.
- In unwanted pregnancy, the unborn child exhibits neither mens rea nor voluntariness.
Mens rea is Latin for ‘guilty mind’ and refers to the intentions of the perpetrator. According to South Australian law:
“(1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b) has withdrawn consent to the sexual intercourse,
and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).”
“The defendant intended to do the physical act, and the defendant was aware that the victim was not consenting, or was reckless towards whether or not the victim was consenting. It is not enough for the complainant to know in themselves that they do not consent – the defendant must have knowledge of this non-consent to be considered legally guilty.”
It should be abundantly clear, should it not have been already, that the unborn child is incapable of mens rea and therefore unable to be considered guilty of illegal action in implanting within the uterus.
The Australian Institute of Family Studies states the following regarding voluntariness:
“The defendant’s actions cannot have been involuntary. Involuntary actions may include: reflex actions; sleep walking; or being in a state of altered consciousness.”
Again, it should be very clear that the unborn is not causing the unwanted pregnancy voluntarily, and therefore this differs again from what would legally be considered rape.
Self-defence is judged on “the threat the defendant genuinely believed to exist”, and therefore cases of rape that would not necessarily fit the legal definition may still be sufficient grounds for lethal self-defence. However, there can be no mistaking the involuntary and unintentional nature of the actions of the unborn child. In other words, given our knowledge of the prenatal development, and also the process that a woman needs to go through in order to obtain an abortion, there is no ‘heat of moment’ excuse in which she could claim that she misunderstood the intent and purpose of the unborn child. Unlike rape, unwanted pregnancy would need to be justified as a ‘threat’ apart from criminal grounds.
In the next post, I will be looking at further comparisons that will highlight the differences between unwanted pregnancy and rape, and exploring the implications for self-defence.