Abortion by Assault: Violence against Pregnant Women in Thirteenth-and Fourteenth-Century England

Abstract

According to medieval common law, assault against a pregnant woman causing miscarriage after the fi rst trimester was homicide. Some scholars have argued, however, that in practice English jurors refused to acknowledge assaults of this nature as homicide. The underlying argument is that because abortion by assault is a crime against women, male jurors were loath to impose the death penalty. A reexamination of the material notes that while conviction rates for assault on pregnant women were low, the English believed such assaults were felonies. Moreover, the role played by husbands as plaintiffs makes it clear that this was not merely a women's issue. Abortion by assault was never an easy judgment for jurors to deliver. In particular, the medical expertise required to pass judgment on such a case presented jurors with diffi culties that may have prevented conviction of abortion by assault in many cases. T he recent signing of the Unborn Victims of Violence Act by President George W. Bush, passed by the Senate in March 2004 and signed into law on 1 April of the same year, in many ways is a dramatic departure from current western positions on the legal rights of a fetus. Since the famed American case of Roe v. Wade, law courts throughout the western world have generally refused to acknowledge a fetus as a separate legal entity capable of being victimized. The passage of this bill and its ratifi cation by Bush both endows fetuses with legal life and champions their human rights. Thus, under federal law the death of a fetus, at any stage of development, resulting from a violent attack, is now recognized as homicide. It should be acknowledged, however, that this is not the fi rst time western law has claimed rights for the unborn. As early as the Middle Ages, English common law courts adopted a harsh stance on the issue of abortion by assault, although it is important to note that medieval Englishmen defi ned abortion somewhat differently than we do today. Medieval legal treatises emphasized two pivotal moments. First, the quickening, meaning the earliest observance of fetal movement (roughly around 18 weeks), was signifi cant because the medieval church believed fetal movement was a sign that a fetus had acquired its soul. 1 Second, the treatises highlighted the formation of the fetus, thought to have occurred some weeks earlier. Tampering with

Divisions of Labor: Gender, Power, and Later Medieval Childbirth, c. 1200–1500

“…Recent work on legal sources from northern Europe has also highlighted male investment in pregnancy and childbirth. In a 2002 examination of testimony at proof‐of‐age inquests in later medieval England, Becky Lee stressed how men's “dynastic interests and social politics routinely penetrated [the] walls” of the “birthing chamber.” Similarly, Sara M. Butler's study of what she terms “abortion by assault” in 13th‐ and 14th‐century England challenged conventional assumptions that such offenses were viewed merely as a crime against women, stressing husbands' role in litigating for damages…”

Justice and the Fetus: Rawls, Children, and Abortion

“…27 More recently, such laws have been federalized: ''Under federal law the death of a fetus, at any stage of development, resulting from a violent attack, is now recognized as homicide.'' 28 It does seem somewhat strange to treat the fetus as a person with the same protections from homicide afforded to adult citizens and children with the exception that a woman and her doctor can end its life if they want to. This point parallels Rawls' inconsistency in granting protection to a 22-week-old human being, but not a 23-week-old one merely because of its location.…”

Review of periodical literature published in 2005

“…Female perception within the common law is also approached by Butler, from the perspective not of economic activity independence, but through examination of the felony of abortion by assault. She argues against the notion that, although common law acknowledged the principle, English jurors were reluctant to treat such assaults as homicide and were programmatically disinclined to convict a man of a capital offence committed against a woman.…”