The Comment of the Day, by Eric Monkman, is one of many excellent comments on yesterday’s post on the words of a Canadian judge in allowing a woman who murdered her newborn infant to go free.
There are many threads in the discussion, and I am not caught up. I officially apologize to combatants Eric and tgt especially for not being able to respond in sufficient detail, or in some cases at all, to their thoughtful posts. This an example of the limitations of the blog comment format. I wish I could organize a conference call.
The discussion went into so many directions that the initial post’s point was distorted, in part by me. Here is how I would summarize it:
Judge Veit’s quote, the actual focus of the post, strikes me as ethically offensive because 1) the statement that “many believe” abortion is a less than ideal solution to unprotected sex suggests that abortion is acceptable as a primary method of birth control. The commenters object to my interpretation of the judge’s phrasing to mean that she personally believes the adverse of the statement, that abortion is an ideal solution to unprotected sex. (The ideal solution to unprotected sex is not to have unprotected sex.) OK. I see their point. I still read it differently, and my comments are based upon my reading. At best, it is a sloppy, imprecise statement. 2) The comparison, and equivalency, between grief for the child—who is dead, and who was killed by the person who was most responsible for her welfare—and grief for the murderous mother, who is alive, and who is avoiding legal sanctions for her crime, shows a warped set of ethical values. The implication is that the life of a child is no more important, nor has any more regard from the society, than the emotional comfort of the mother. I know that is the standard in Canada, and in much of the US. It is wrong.
The subsequent discussion about how acceptance of abortion leads to acceptance of infanticide was focused on the U.S., but mistakenly assumed that this was the order of events in Canada. It was not; I think that is affirmatively strange, as one would assume that a human life would not be less valued in a society as it became more viable. It doesn’t change my analysis regarding the U.S., however.
Eric asks some good questions which I will address at the end. Here is his Comment of the Day, on “Unethical Quote of the Month: Canadian Judge Joanne Veit”:
“Why would there be a law punishing infanticide more leniently except because it is a recognition of the frailty of the mother after the stress of giving birth? This is how appellate courts have interpreted the law when deciding whether a charge of infanticide is appropriate. Madam Justice Veit was stating the law as it is and characterizing it in a manner consistent with the reasons for which it was enacted and with how it has been interpreted. How is it unethical for a judge to do this?
“I didn’t feel like adding a side debate to this post (I went for a walk for a couple hours and I’m already having difficulty following all of the different lines of argument in this post), but let me ask you a question. I am against capital punishment. If a judge in a jurisdiction that retains capital punishment says to a guilty murderer “Our society has decided that there are some people who commit crimes so heinous that they are no longer fit to live amongst civilized people. You are one such person. Therefore, the least sentence I can give to you is to hang from the neck until dead. Take the prisoner down,” is that judge unethical for following the law of his or her jurisdiction? He or she is characterizing the laws of capital punishment by saying that they are meant to punish those who commit heinous crimes. In most jurisdictions, capital punishment is not mandatory, so the judge could have imposed a lesser sentence. As far as I’m concerned, the judge is just following the law of his or her jurisdiction, created by the democratically elected legislators of his or her jurisdiction (note that the Canadian Parliament could criminalize abortion or remove the provisions for infanticide if it wanted to). We can argue whether those laws are ethical or unethical, but I don’t think the judge and his or her statement are unethical. Do you?
“I believe that all human life is valuable, yet I acknowledge that punishments for those who take a human life can differ. Those who do so accidentally through no fault of their own should not be punished. Those who do so accidentally and are at fault should be punished, but not to the highest level of severity. Those who do so due to mental problems should generally need help, not punishment. Those who do it intentionally deserve some of the highest penalties that a just society can impose (which is, in my opinion, life imprisonment). Most jurisdictions agree with my interpretation by recognizing culpable and non-culpable homicide, lesser sentences for manslaughter, higher sentences for murder (and even higher sentences for premeditated murder) and rehabilitation for those with mental disorders. Do these jurisdictions not value human lives equally?”
I’m back. As to Eric’s first non-rhetorical question, a law can be unethical, and enforcing it may beunethical as well. While a citizen has an ethical duty to obey all laws (the duty of citizenship), laws that are clearly wrong and do wrong create an ethical obligation to oppose them, just as soldiers, who can be courtmartialed for refusing a lawful command, are supposed to defy a wrongful one. In practice, making the distinction is difficult, or worse.
A judge swears to uphold the laws as passed, but a judge who, for example, sentences a mentally-disabled man to death when he or she has the discretion to do otherwise is unethical. If Veit had no choice but to release the mother, then I agree—she is just doing her job. But her decision to release her was a value judgement, and those values were distorted. The judge in the hypothetical was just stating the law. Veit’s statement was rationalizing the law, and her analysis was ethically unbalanced.
As to the second question, no, those jurisdictions do not value life equally. The value of life is linked to the price the one taking it is forced to pay.
Ethics Alarms 
Veit’s statement was rationalizing the law, and her analysis was ethically unbalanced.
You say rationalization; we say accurate representation of the history of the law. Can you please say which part of her statement does not match the history of the situation in Canada?
As to the second question, no, those jurisdictions do not value life equally. The value of life is linked to the price the one taking it is forced to pay.
This statement only makes sense if you thing manslaughter, murder 2, murder 1, killing by people with mental defect, and completely incidental deaths should all be punished at the same level. I can’t get behind that position, and I’m surprised you can.
There were a lot of factors in Eric’s list, T. I believe that the seriously mentally disabled should not be executed. I believe that jurisdictions that value life differently, for example, call murdering a white man First, and murdering a black man Second. I believe that intentionally causing death should always require at very least long imprisonment. I believe jurisdictions like various European countries, which sometimes release killers after less than 20 years, value life less. Myra Hindley, convicted of helping her boyfriend capture, torture, mutilate and film five children, was eligible for parole after 25 years, though she never got it. In Germany, the man who ate a man he met over the internet was sentenced to manslaughter and 8 years in jail in 2004. Luckily, this cause enough public indignation that he was re-sentenced (which he would not have been in the US.). I think there should be mitigating factors, but the stress, childhood and anxieties of the killer should not be among them. The first consideration should be demonstarting that the state, and society, and the culture, regards taking any life as intolerable.
You took some extreme cases in some specific jurisdictions, but Eric’s comment covered roughly every jurisdiction in the US. Are all of those jurisdictions also unethical based on their parsing of deaths?
In your examples, you showed sentences that appear to be too light for serious crimes, but you did not find a case where what I consider less serious crimes are treated especially harshly…and said it was a good thing. I’m perfectly willing to agree that the German canibal seems like a horrible person, but what was the reason he was convicted of manslaughter and not a more serious offense? Lack of evidence? Lack of mens rea? There seems to be something missing in your example. From the little evidence, do I think he fits the definition of manslaughter as it’s used in the states? No. Does that mean that it’s inappropriate to have lesser sentences for manslaughter? Absolutely not.
The first consideration should be demonstarting that the state, and society, and the culture, regards taking any life as intolerable.
The first consideration should be making sure the particular defendent is treated as they deserve. Messages about the state, society, and culture MUST come second. Otherwise, you are trapped in a dangerous world where people are treated as people second, and pawns of the state first.
Do judges not have a duty to follow precedent when sentencing? All but one case of infanticide in Canada has resulted in a non-custodial sentence. Should a judge impose sentences that are not generally applied to a certain crime just because he or she believes that the offender should have been found guilty of a more serious crime? Should the judge impose a harsher sentence to show his or her disagreement with the law and with precedent just to have it overturned on appeal?
I don’t think you believe that all people who take a life deserve the same punishment. You said “[A] judge who, for example, sentences a mentally-disabled man to death when he or she has the discretion to do otherwise is unethical.” What if that mentally disabled man killed someone, and death was the typical punishment for taking a life? Is there no possible way for the judge to be ethical in this case (either he sentences the man to death or he indicates that he does not think that all lives have the same value).
It seems to me that the difference between “stating the law” and “rationalizing the law” is whether or not you agree or disagree with the law.
Well, we’re in the area of Bizarro World ethics again—this is why I usually stick to the US. I think deciding that “infanticide’ is a lesser crime than murder, since the word literally means “killing infants,” is self-evidently insane. I have read sentencing statement in the US on, for example, 3 strikes cases when the judge writes, “I think this sentence is unjust, but the law gives me no choice. I hope I will have a choice in the future.” Exemplary. Ethical: following precedent, and shutting up about it. Unethical: explaining why the law makes sense.
You’re right—since I think it is a screamingly unethical , callous, warped law that signals that moms can go ahead and wait and see how much they like their new baby before deciding to kill her, I think her statement is unethical because it rationalizes an unethical law. And since I don’t believe infanticide can or should be dismissed by psychobabble, I do not concede that any explanation short of “This is the heartless, child-hating law our culture currently tolerates, and I am bound to follow it” could be ethical.
“Manslaughter” means “the act of killing a man”. Manslaughter is a lesser crime than murder. “Homicide” also means “the act of killing a man”. Homicide can be manslaughter, murder, infanticide, or none of these (it can be non-culpable homicide). Determining the sanity of a certain law based on the meaning of the word used to describe it does not seem like sound jurisprudence to me.
You are welcome to think that the law is an unethical law. Does it make a difference that the infanticide provisions are only meant to protect those mothers who committed the crime because their “mind was disturbed”. It is not meant to protect those who just wanted kill their child because they forgot to have an abortion. Mothers generally do not kill their children, whether they wanted an abortion or not.
Interestingly enough, the infanticide acts were introduced in England for ethical reasons (or at least reasons that were thought ethical at the time). Prior to 1922, if a mother killed her child, that was murder, punishable by death. Mothers who did so tended to have mental problems, so this law was seen as too harsh. Because the penalty was so harsh, juries often refused to convict women who had killed their baby because they thought it unethical to send a mentally disturbed woman to the gallows. Thanks to this jury nullification, Parliament had to step in and introduce a lesser offence so that juries would convict and the woman could be given the help she needed (and if necessary, the penalty they deserved).
It was also sexism, the nice kind. Juries don’t like to execute women. They still don’t. It’s a bias.
There was a third alternative in England to sending a woman to the gallows or jury nullification, this was the lunatic asylum.
Here is an example of one such case.
“The Pall Mall Gazette
Thursday, February 22, 1877
Issue 3748
CHILD MURDER AND ATTEMPED SUICIDE AT KINGSTON
This morning, before the borough magistrates at Kingston-on-Thames, Charlotte King, aged forty-three, wife of a constable in the V Division stationed at Kingston, was charged with the wilful murder of her youngest child, a boy of the age of six months, and also with attempting to destroy her own life.
The acting inspector at the police-station deposed that he went to the house and there found the dead body of the child in one room and a small table knife covered with blood lying near. The prisoner was in the adjoining room, and her dress was stained with blood. She said nothing when charged.
The only other evidence taken was that of a doctor who was first called in, and who said that the child’s windpipe was completely severed, and that of the divisional surgeon, who proved that a week ago he visited the prisoner, who was suffering from melancholia, under which she still laboured. He saw two marks on the prisoner’s throat as if done with a knife.
The accused was then committed for trial at the assizes.”
She spent the rest of her life at the ‘Broadmoor Criminal Lunatic Assylum’ where she died 7 March 1907.
Very interesting.
I have to wonder, should pregnant women and recent mothers also receive lighter sentences for crimes other than infanticide? Following the same logic, why not? At the very least, they must be more likely to murder their husbands.
Good question. It would probably depend on the circumstances surrounding the crime, as sentencing often does. If it was the case that the mother committed a crime due to a disturbed mind and she was able to show that this was the case, it would probably be better to find her not criminally responsible by reason of mental disorder, and then detain her and give her the treatment she needs. Infanticide is a special category of crime to deal with a special category of problem.
Eric, I swear I tried to make that correction shortly after I posted. I’m having trouble with my keyboard, and also couldn’t find the mistake—I’ll edit it.
The fault is all mine. No apology is needed.
Done. I’ll take out your mea culpa—as I say, it was my fault.
It is extremely presumptuous of you to claim that legal systems which ascribe lesser punishments for the taking of life value life less. Your discussion about this topic is consistently full of ideological rhetoric. Is it really so inconceivable that different jurisdictions and different cultures value life equally, but still differ in their application of that value? If there are legal and political activities that clearly demonstrate different degrees of value for life, they would have to be judged on the basis of the extent to which they do, or are aimed at, preserving life. Once a victim is already dead, no amount of punishment is going to bring them back. Legal activity ought to be aimed at preventing future killing, as well as reductions in quality of life for the living. Different people may have different opinions about how to accomplish that, but it is simply unethical of you to dismiss someone else’s valuation of life because they have a different approach to preserving and improving it.
If you can say that the entire nation of Canada fails to value life because their legal sentencing is too light, I can say that the United States fails to value life because of its engagement in foreign wars and its widespread use of capital punishment. I can say that, but I won’t, because I give people more credit than that. I think many (should I specify, possibly most?) of my fellow U.S. citizens support foreign military actions either because they believe such missions preserve more lives than they take or because they have some perverse notion that lives have different degrees of value based on nationality. I also think most supporters of capital punishment hold their view because they think the death penalty is a greater deterrent to future crime, and not because they just plain enjoy killin’. Although… audience reactions at recent Republican debates may prompt me to question my belief.
1. There is nothing ideological in my commentary. I am not ideological. What’s my “ideology”?
2. The current rhetoric from abortion defenders is that the unborn child is simply not a life, and has no value. I have a major bioethics textbook before me that makes a similar, though less extreme, argument about infanticide…an infant, up to an age of self-awareness, is a lesser life. That is clearly Canada’s position. Does Canada value all life less? I don’t know. It clearly values an infant’s life less, and all justifications for infanticide eventually reach that point. On the other end, we have euthanizing the elderly, which is explicitly argued because their life is “less valuable.”
I don’t think the death penalty is a deterrent very often. It is important to set the extreme end of what society believes is intolerable conduct. That is, to show how much we care when someone takes the life of another.
Your comment about what a few members of an audience did with their hands or shouted out during TV debates is beneath you. It is interesting that the same people who would scream foul if anyone made a generalization about African Americans based on the exultations of some filmed groups after the OJ verdict now easily indulge in the same tactic when Tea party members are involved. Every group has assholes, and should not be measured by its assholes. Even when it provides the opportunity for a cheap shot.
2. The current rhetoric from abortion defenders is that the unborn child is simply not a life, and has no value.
Strawman. The position is that it is not a fully human life. Kind of like how an egg is not a fully chicken life. Even if you deny the distinction matters, it’s not cool to pretend they don’t make the distinction.
You can now return to your regularly scheduled argument.
No, it depended on which disingenuous argument you’re referring to. Up until it has so many human characteristics that the denial becomes embarrassing, pro-abortion advocates analogize a fetus to a wart or a tumor—living, but not a life. After that point, they use the “not fully human argument>’
Tumors and warts are living things. I don’t see the issue.
The “no value” comment is also definitely a stretch. Foetus’ can have tremendous value to their hosts, or very little value. It’s up to the hosts to determine the value they set, not outsiders.
Euthanizing the elderly is explicitly argued as being because their life is “less valuable”? Where? Who argues this?
Are you talking about physician-assisted suicide? If so, it’s wrong to conflate the term “value” with the term “quality.” From what I know, the argument for that kind of euthanasia is generally that if a patient wishes to die with dignity, they should be permitted to. I’d say that this is based on the belief that quality of life can be reduced to below zero. I’m going to assume that you meant that at that point the life becomes “less valuable” specifically to that person who is living it. But the defender of euthanasia is applying his sense of the value of that person’s life when he argues for the patient’s right to die with dignity or to be spared from unnecessary suffering. I suppose the distinction between the two camps could be characterized like this: The euthanasia opponent thinks that a person’s life is valuable at this precise moment, and that ending that life devalues it. The euthanasia advocate thinks that a person’s life is valuable in its entirety, and that permitting suffering or indignity to enter that life devalues it. I know which is my stance, but I don’t think that either camp fails to value life.
As to “setting the extreme end of what a society believes is intolerable conduct”: Why does this have to been done through a system of defined punishments. This speaks to the general mistake you’re making. You’re starting with an observation about what societies do regarding their beliefs, and you’re reasoning backwards to what those beliefs are. You may think that Canada is in horrendous error in its means of defending human life; I just want you to stop saying that one society values infant life less than does another society slightly to the south of it.
I’ll grant that my comment about the Republican debates was beneath me. It was intended to be humorous, but was still probably lacking in tact. I will not, however, retract it, because it actually illustrates my point. I honestly don’t believe that those people were representative of Republican thought in general, and you’re right that there are assholes in every group. What I was trying to illustrate to you is that I am taking care not to ascribe the most extreme beliefs represented within a group to that entire group. But it seems to me that you are doing just that – identifying an entire society with the most extreme rationale you can identify for a given set of actions, and essentially insisting that their motivations could not be other than the least defensible of beliefs.
Ed…the entire purpose of health care rationing will be, and to some extent is, based on a societal judgment on the cost-benefit of devoting health resources to lives without social utility—in effect, allowing them to die without treatment or minimal treatment, because they are literally “not worth it.” That’s not quality of life—that’s value of life. Teri Shiavo—that’s quality and value.
“Healthcare rationing” is not the same thing as euthanizing the elderly. While the first is a true (if loaded) term, the second is flat out inaccurate.
We’re not talking about the worth of a person but the efficacy of the treatment, and whether it is worth it for them. If someone has untreatable cancer and 2 months to live, does it make sense for them to get a new lung? Of course not, and nobody seems to argue that they should be on equal standing on transplant lists. Now, if that same person needs 400 grand of surgery that will leave them unable to walk? Is it euthanizing them to not perform said surgery?
I guess I’m somewhat confused. The original post related to the judge’s actual words . . . I understood that reasoning.
I tried doing some research to see if the mother was in jail during her TWO TRIALS THAT ENDED UP WITH HER BEING FOUND GUILTY OF 2nd DEGREE MURDER. It was the appellate court that changed the verdict to the lesser charge of “infanticide.” (I couldn’t locate information related to her being in jail during the trials).
The Criminal Code of Canada classifies infanticide as follows:
A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
In Canada, the punishment for infanticide is “imprisonment for a term not exceeding five years.”
Well, I was waiting for someone to actually cite the law—not me, because my initial point was based on the rhetoric, not the law itself But the fact that there is nothing in the law that mandates or even suggests probation without jail time does undercut the dissenters’ position that all the judge was doing was “following the law.”
No. (What took you so long?)
According to Eric, “All but one case of infanticide in Canada has resulted in a non-custodial sentence.”
What the law mandates and suggests is different from what the caselaw suggests and what is considered an appropriate sentence.
In the U.S., We have mandatory sentencing guidelines for some crimes that are completely separate from the laws actually criminalizing the behavior. There are also nonmandatory but usual sentences that a judge steps away from at their own peril.
For those who are curious, here is my source: http://www.edmontonjournal.com/news/Wetaskiwin+woman+convicted+infanticide+sentenced+Friday/5371749/story.html
“Defence lawyer Peter Royal maintained that all infanticide cases in Canada — save for one — have resulted in non-custodial sentences for the women.”
Ms. Effert spent six years living under restrictive bail conditions and the equivalent of 7 and a half months in pre-trial custody and psychiatric care.
Source: http://www.ctv.ca/CTVNews/Canada/20110909/alberta-mom-suspended-sentence-110909/