I was reading of a case recently in which a Sydney woman, expecting her second child, was hit by a car driven by an allegedly drug-influenced driver. There were two results of this: firstly, she was badly hurt, though is expected to make a full recovery; secondly, the foetus was lost. She and her fiance wanted the driver charged with manslaughter, but were unable to because the foetus did not yet count as a human life. The driver has been punished for reckless driving, but not for anything more.
This must have been very traumatic for the family in question, and I can understand their anguish. I certainly think that in an ideal world, they would have had some outcome with which they were happier. But the world in which we live is not ideal, and there are two very good reasons that a stronger punishment is not warranted.
The first is something that I started to cover in my first article on crime and punishment. As I noted, there are two, and only two, reasons for which people should be punished by the law. The first is to act as a deterrent against either that person and other people committing criminal acts in the future; the second is to keep the person out of circulation, so that society does not have to deal with him any more. While we certainly want to discourage people from driving recklessly or under the influence of drugs, and from killing either foetuses or people, giving extra punishment for an unlucky, unforeseen and unexpected consequence of some action is not consistent with the principles.When all three of these factors are present, the consequence is largely a matter of luck, and anything involving an element of luck has no place in the legal system. Perhaps it can be said that you make your own luck and that the accident occurred only because the driver was on drugs (if indeed she was) then whatever punishment ismeted out to her should be meted out to all those who drive after consuming the same drugs, regardless of whether they kill or injure anyone, or even whether they crash at all.
Drivers killing pedestrians because they are on drugs is a consequence of drivers being on drugs. So all those who are caught driving under the influence of anything detrimental to their driving should be given roughly the same punishment. DUI, DUI causing injury and DUI causing death are one and the same crime, and should therefore have the same penalty. As ever there will be mitigating circumstances, but setting those aside the penalty should be the same for the same crime, regardless of the outcome.
The second reason, almost entirely unrelated to the first, is that any harsher penalty than normal would imply that the killing of an unborn child is both wrong and punishable, even if the mother is mostly unscathed. This would imply,as the family in question asserts, that the foetus has a life of its own, which in turn would have one very big implication: abortion should be treated as murder, or at least as serious assault. While I am not in favour of abortions, per se, the fact is that they are currently acceptable de facto, if not de jure. It would be very hard to argue convincingly that in some situations the killing of a foetus was acceptable but in others it was not. If a foetus is part of a mother and not a life of its own, then causing it to miscarry is in no way wrong; if it has a life of its own then abortion is murder.
Abortion is an immensely emotive issue, but when it's related to something may make a difference of five years or so in jail to someone, we need to think rationally and not emotionally. Too often in debates such as these shrill hysteria takes over from calm reason and measured rationality. I could be doing humanity a great disservice, but I would imagine that you'd find anumber of takers for charging the driver with murder, but giving abortionists a free run. I don't strongly object to either viewpoint, but I strongly object to both together.
See also: Abortion