Our addiction to criminalising human behaviour makes a mockery of private responsibility
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Version 0 of 1. 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 baby’s life, what about alcoholism and a dozen other cruelties after birth? How many are the misdeeds we inflict on our children to which Britain’s “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 week’s 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 mother’s 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 Blood’s 1997 bid to obtain her dead husband’s 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 week’s 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. When Ken Clarke as justice minister tried to rein back this lunacy, David Cameron sacked him. Now we have the proposed crime of “emotional violence” – including “reducing self-esteem” by calling someone fat – showing there is no limit to the law’s ambition. To be against jailing people for such offences is not to condone what they do, merely to apply some sense of proportion. The mob craving to bring coercive law into every realm of human behaviour has long troubled ethicists. Oxford’s Jonathan Glover sought to apply moral precepts to everyday life in his excellent book, Causing Death and Saving Lives. He quoted from Karamazov the brother’s euphoric cry that “everyone is responsible for everyone else and in every way”. It was, he said, heavy with “nightmare implication”. Such paternalism – or perhaps control freakery – led the last Labour government to create 4,300 new offences through 50 criminal justice acts. It led Tony Blair to justify war against one state after another, for its own good. Glover asked only that we “work out what things are most important and then try to see where we ourselves have a contribution to make”. We cannot spend our lives trying to save the lives of others, least of all others’ unborn infants. There must be some room left for private responsibility. The ethics that swirl round childbirth can seem so intractable that every case is a moral blind alley. In 2012-13 there were 252 diagnoses of foetal alcohol syndrome, 80 of which are awaiting the outcome of the current claim. If the court somehow contrives a “crime without a criminal” so as to gain compensation, the impact on thousands of distressed mothers will surely be appalling. The best hope is that publicity for this case will merely promote healthier pregnancy – and perhaps persuade us that what causes harm does not have to be a crime. |