Can you really be jailed for an abortion in NI?

This article originally appeared here:
https://www.channel4.com/news/factcheck/factcheck-can-you-really-be-jailed-for-abortion-in-northern-ireland

The claim

“In Northern Ireland, if you are raped and you have become pregnant and you seek a termination, as a result you could face a longer prison sentence than the person who attacked you.”
Stella Creasy, 23 July 2018

The background

Campaigners are calling for the UK government to decriminalise abortion in Northern Ireland.

It’s much harder to get a termination in Northern Ireland than anywhere else in the United Kingdom, prompting hundreds of women and girls to travel to England for treatment.

Abortion pills are illegal but can be bought over the internet, and an unknown number of women end pregnancies unlawfully rather than making the trip.

The Labour MP Stella Creasy is among campaigners from across the political spectrum calling for a change in the law, and she made a dramatic claim about the potential risk for Northern Irish women who decide to carry out abortions themselves.

Can it really be true that a woman who terminates a pregnancy after being raped could end up getting a longer prison sentence than her attacker?

The law

It’s illegal for women to “unlawfully administer to herself any poison or other noxious thing” to cause a miscarriage.

If the language sounds archaic, it’s because the relevant law is section 58 of the Offences Against the Person Act, passed in 1861.

Ms Creasy and others are trying to get parliament to amend the Act in an effort to effectively decriminalise abortion in the province without waiting for the currently non-existent Northern Ireland Assembly to legislate on abortion.

The Victorian law still applies across the UK, but the Abortion Act 1967 carves out significant exceptions for most British women.

An abortion can be carried out before 24 weeks if two doctors agree there is a risk “of injury to the physical or mental health of the pregnant women”. Abortions can be performed later if there is a substantial risk that the baby will have serious disabilities or if the mother’s health is at serious risk.

The Abortion Act doesn’t apply in Northern Ireland, and the grounds for abortion are much narrower.

No exceptions for rape victims

According to guidelines issued by the Northern Ireland executive, abortion is only lawful if “it is necessary to preserve the life of the woman, or there is a risk of real and serious adverse effect on her physical or mental health, which is either long term or permanent.”

Abortion remains illegal in Northern Ireland even if a woman has become pregnant as the result of rape or incest, and even if the foetus has a fatal abnormality.

The issue is a devolved matter, and the Northern Ireland assembly voted against proposals to make abortion laws more liberal in 2016.

The power-sharing assembly collapsed last year and it’s not clear when it will be up and running again.

Life sentence?

The maximum sentence for illegally carrying out an abortion under the Offences Against the Person Act is life imprisonment.

Rape also carries a maximum life sentence, which helps to justify the comparison Stella Creasy makes.

It is theoretically possible for a rape victim to be given a longer spell behind bars for having an unlawful abortion than her rapist, according to the letter of the law.

That doesn’t mean a judge is realistically likely to impose a life sentence on women in this situation, or even a long custodial sentence.

In 2016, a Northern Irish woman pleaded guilty to inducing a miscarriage after buying pills online at the age of 19.

Although the theoretical maximum sentence was life, the defendant – who cannot be named following a court order – was given a three-month suspended sentence, meaning she spent no time behind bars.

The judge reportedly said he knew of no other similar cases being tried and had no guidelines or case law to rely on when deciding on the sentence.

But campaigners say prosecutions are now on the increase, and lenient sentences for are not guaranteed.

Last year a woman aged 21 and a man, 22, were charged over abortion pills, but prosecutors dropped the charges after expert evidence about the woman’s mental health. The pair accepted formal cautions.

Another case, of a mother accused of buying pills for her 15-year-old daughter, is still going through the courts.

The Police Service of Northern Ireland has carried out raids and made seizures relating to online purchases of abortion pills.

In 2012 section 58 of the 1861 Act was used to prosecute an English woman, Sarah Louise Catt, who aborted a pregnancy at 38 weeks, past the legal limit.

The judge gave her a sentence of eight years, later reduced to three-and-a-half on appeal. The facts of the case were complex and the judge’s sentencing remarks bear reading in full.

But the case was a reminder that criminal sanctions remain in place for women who terminate pregnancies outside the terms of the Abortion Act, and that serious jail time is a possibility.

FactCheck verdict

It is theoretically possible for a woman in Northern Ireland to get a longer sentence for procuring an abortion than her rapist, depending on the circumstances, although this may not be a very realistic scenario.

Prosecutors would have to be satisfied that it was in the public interest to charge the woman with a crime, and the judge would have to hand down a lengthy prison sentence.

The last time an Ulster woman was convicted for an illegal abortion, the judge gave her a short, suspended sentence (and this case had nothing to do with rape).

However, the possibility of life imprisonment exists as long as section 58 of the Offences Against the Person Act 1861 remains in force.