Bordering on ludicrous: was Handmaids etc.

jbone at place.org jbone at place.org
Sat Nov 8 20:46:43 PST 2003


Bill S. says:

> JB, This is a real case.  A woman well into her third trimester (8 to 9
> months along) was intentionally punched in the stomach, and the 'fetus'
> was killed.  So was the crime 'assault and battery' of the woman or
> murder of a human child, or both (or something different altogether)? 
> If
> some thug on the street were to walk up to you and punch you in the
> stomach, should he be punished differently? IMHO, anyone who would
> advocate that the two assaults as equivalent (as some feminists did) 
> are
> seriously fucked up.

I'd like to treat this with all the gravitas that it deserves, so here 
goes.  Yes, this is a significant case.  It has a profound impact in 
principle and in practice in how our laws are interpreted.  It is a 
*very* serious, impactful case.

My perspective on this is:  the two cases should be treated *entirely* 
equivalently.  Here's why:  we have no consistent definition of what 
constitutes a human being.  For lack of such a definition, the cases 
*must* be treated as equivalent *if* the law is to be consistent --- 
and unless it is "complete" (which it's not, and can never be) or 
"discretionary" (which I think we all agree it should not be) then the 
cases cannot be distinguished.  Otherwise "Justice" is not blind;  it 
gives preferences in terms of victims' rights to persons who are 
pregnant and / or to "people" that simply *aren't* yet.

Consider the following:  I'm walking down the street and somebody mugs 
me and kicks me hard in the nuts, rendering me (even temporarily) 
sterile.  Should we consider the impact on my future ability to 
reproduce --- from a reproductive perspective?  IMHO, no, we should 
not.  Such things are the consideration of *civil* court, not criminal 
court --- civil court is inherently discretionary.  From the standpoint 
of criminal law, the only consideration is the action.  The guy that 
kicks me (or you) in the nuts and renders you sterile (temporarily or 
permanently) *must* be considered the same from a criminal perspective 
as the guy that mugs me, slugs me in the face, and breaks my jaw.

If we cannot overcome our sentimental biases, then the law becomes a 
blunt and imprecise instrument of societal control.  The only option is 
to make an arbitrary but consistent decision about what constitutes 
human life --- and apply it consistently.  In principal I can get 
behind an arbitrary decision that says any fetus that might be viable 
should be granted human rights, and under that regime the above should 
be treated as homicide (or infanticide, if you want to differentiate.)  
Philosophically and in practice I'm pretty convinced this does nothing 
positive in terms of social impact.

Let's also note that our *instincts* (rather than rational assessments 
of social impact) always come into play in situations like this.  We're 
hard-wired biologically in this way:  reproduction is a biological 
imperative, and the irrational / sentimental urge to "protect the 
offspring" is hard to reason around.  But when we're talking about 
larger social impact, it *must* be reasoned around.  Let's get one 
thing straight:  reproduction is the most natural thing in the world, 
and over-valuing it is a significant societal danger.  IMHO, the goals 
should be to maximize intelligence, overall productivity, and 
"satisfaction."  A sentimental knee-jerk policy that sacrifices these 
things for beings that simply, frankly cannot think yet --- is a bad 
policy.  Whether in the above context or in the context of the right of 
the mother to terminate the pregnancy.

It all gets back to the desperate need for a rational and 
consistently-applied definition of "human."

Call me seriously fucked up if you want, but that's how I see it --- 
the scenarios you pose are and *must be* (given current context) 
treated identically.

jb



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