IN 2019, at a residence in Glenrothes, 35-year-old Stephen Ramsay stabbed, punched, and throttled his pregnant partner causing her a spinal cord injury and brain damage as well as extensive bruising and numerous other injuries.
He was jailed for five years for attempted murder.
Ramsay’s partner had been 32 weeks pregnant with twins, both of whom died as a result of his attack.
Had the crime taken place in any other part of the UK, Ramsay could also have been charged with “child destruction” in recognition of this additional harm – a charge that can, in theory, carry a 14-year sentence.
Such cases are, sadly, not uncommon in the rest of the UK, and convictions for child destruction have risen alarmingly in England and Wales in recent decades.
Cases such as that of Stephen Ramsay (and numerous others) show that the problem of violence and abuse toward pregnant partners and former partners occurs in Scotland too.
Unfortunately, however, Scotland is the only part of the UK which lacks a specific crime to deal with a situation where pregnancy loss results.
A perpetrator can, of course, be charged with assault or attempted murder. But the loss of a wanted pregnancy due to violence or abuse is a very distinctive and separate kind of harm, over and above any other physical harm to the victim’s body – and Scots criminal law currently has no way of acknowledging or addressing this.
The existing criminal law we have in Scotland is ill suited to the task. The common law crime of abortion could, in theory, be applied to this sort of situation, but it has never been used in this way. Stephen Ramsay, for example, was not charged with “procuring abortion”.
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In any case, abortion law is entirely the wrong framework for addressing the harm suffered in cases like these.
The crime of child destruction elsewhere in the UK is unhelpfully entangled with abortion law but Scotland can design that entanglement out of any new crime created here.
Domestic abuse law is the most appropriate framework – almost all of the reported cases elsewhere in the UK involve partner-on-partner or former partner violence.
The Domestic Abuse (Scotland) Act 2018 is not equipped for the task as it stands however, because the Act punishes a “course of conduct”, whereas the action that ends a pregnancy may be a single attack even where the context may be an abusive relationship.
It has been suggested by some that we could simply use the existing crimes of domestic abuse, assault, and attempted murder, but mention the fact that a pregnancy was lost in the charge, and reflect it in sentencing.
In our view, this is a wholly inadequate way to approach such a serious harm – it suggests a lack of will to address this issue head on and would do nothing to change Scotland’s “outlier" status.
We propose that a new crime be inserted into the act, reflecting the aim of deterring and punishing a distinctive type of harm against women – it is the pregnant person, and not the foetus, who would be the victim of the crime.
The wording we favour would hermetically seal this issue away from debates on abortion and ensure that – unlike the crime of child destruction elsewhere in the UK, neither pregnant women nor their doctors could be prosecuted for it.
There is no need for any anxiety, therefore, that the reform we propose would undermine or erode abortion rights in Scotland.
On the contrary, the creation of a new crime would uphold and protect autonomy during pregnancy by acknowledging and addressing, for the first time in Scotland, a distinctive kind of harm that only pregnant people can suffer and protect them against it by deterring and punishing those who would commit it.
The focus would be squarely on harm to partners and former partners, with no suggestion of rights or interests for the foetus.
In legislating to close the gap, Scotland should avoid simply replicating the laws enacted early last century in England and Wales (1929) and Northern Ireland (1945).
In Scotland in 2022, we can improve significantly on this in a number of ways.
There is now an opportunity to act on this, as the Scottish Parliament is currently considering a petition to introduce reform in this area. As part of that process, we are proposing that the Domestic Abuse (Scotland) Act 2018 be amended to include a new crime.
Hopefully, Parliament will seize this opportunity and replace Scots Law’s silence on the matter with a new law fit for the purpose of deterring and punishing domestic abuse that results in pregnancy loss.
Dr Mary Neal is a Reader in law at the University of Strathclyde and Ryan McAdam is an LLB Law graduate from Robert Gordon University, who wrote his undergraduate dissertation on the topic “Should Scotland Introduce a Offence of Child Destruction?”
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