Our addiction to criminalising human behaviour makes a mockery of private responsibility

If poisoning your foetus with alcohol is a crime, why is it not a crime to abort it? If alcoholism in pregnancy is attempted manslaughter, as a QC told the court of appeal this week, surely abortion is murder. Indeed if alcoholism before birth criminally harms a babys life, what about alcoholism and a dozen other cruelties after birth? How many are the misdeeds we inflict on our children to which Britains cult of criminality should now turn its attention?

We need a philosopher as Raymond Chandler would say and we need one fast. All we get are bloody lawyers. The motive for this weeks court case in London had nothing to do with the health of mother or child. It was blatantly financial. A local council is acting on behalf of a seven-year-old girl CP who suffers from acute foetal alcohol syndrome. The claimed cause was her mothers drinking during pregnancy. The suit is intended to shift the cost of caring for her from the council to the Criminal Injuries Compensation Authority on the grounds that the girl is victim of violence against the person.

In America hundreds of (mostly black) mothers are now jailed for this offence, to whose benefit it is unclear. In the British case the mother is not charged with any crime, but it is argued that a crime took place. Since the offence is against a person and a foetus is not a person, such playing with words must have far wider implications on abortion, for example.

The advance of criminal law into these recesses of private morality is ominous. Fertility and embryology have been relatively free of legal wrangles in Britain, despite such high-profile cases as Diane Bloods 1997 bid to obtain her dead husbands semen. Scientists and their ethics committees have struggled to regulate an area of biology now evolving by leaps and bounds.

When serving on one such committee I learned that two inputs were of little help: those of religion and the law. Individual priests and lawyers might be perfectly open-minded but their professional background could curse them with dogma, prejudgment and false certainty. The moral complexity of genetic engineering, gamete selection and foetal surgery ran way ahead of old concepts of right and wrong. When really does life begin? How far should we manipulate an embryo? What is a too late abortion? Where does parental responsibility end and state responsibility begin?

My response to this weeks case was initial horror at a squad of lawyers charging over the hill into an area of private tragedy, and for money. They see the mother as responsible for consciously disabling her child, but I assume they distinguish between a mother aborting a foetus and a mother harming a foetus she intends to bring to life. In the first case she harms herself, in the other she harms a future live person. It seems a fine distinction.

I still cannot see how we can call something a crime without a criminal agent. In cases such as thalidomide and traffic accidents, compensation is paid that acknowledges the foetus as distinct from the mother. But excessive drinking is a deliberate act. If it is a crime, the mother must be the criminal. This wedge can only be driven on towards the American treatment of women who endanger their foetuses in this way.

The response from most sensible people is that foetuses are not persons, whatever they turn out to be. Alcoholic mothers therefore need warning, care and treatment, not criminalisation. In extreme cases say, where an alcoholic woman seems determined to conceive when drinking the courts can order sterilisation. But beating mothers about the head with blame, punishment and, in the case of wealthy ones, presumably huge compensation payments, can only make things worse.

If the court of appeal throws this case out, we might hope to focus similar tolerance on drug abuse, shop-lifting, antisocial behaviours and petty crimes for which imprisonment is such a primitive answer. Britain is prison mad. When that old softie Margaret Thatcher left power, there were 45,000 Britons in jail. The number has doubled. Then there were 130 jailed shoplifters. Now thousands pass through prison each year for offences treated in most of Europe like a parking violation.

I have on file cases of Britons recently imprisoned for crimes as relatively mild as abusive tweeting, poll-rigging, Boat Race obstructing, cathedral desecrating, job-application falsifying, expenses fiddling, urinatingon a war memorial, speeding-point switching, licence fee non-paying, and googling in court. Lord Baker, when home secretary, thought of rationing jail-crazy magistrates to a fixed number of cells each week, after filling which they would not be able to give custodial sentences.

Originally posted here:
Our addiction to criminalising human behaviour makes a mockery of private responsibility