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Administering drugs etc to a woman with intent to cause a miscarriage

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, it is an offence to administer drugs or use an instrument to cause a woman to have a miscarriage. The maximum penalty for this offence is ten years imprisonment.

In NSW, a court can impose any of the following penalties for this charge.


THE OFFENCE OF ADMINISTERING DRUGS ETC TO A WOMAN WITH INTENT:

The offence of administering drugs etc to a woman with intent is contained in section 83 of the Crimes Act 190 which states:

Whosoever:

  • unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or
  • unlawfully uses any instrument or other means,

with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

WHAT ACTIONS MIGHT CONSTITUTE "ADMINISTERING DRUGS ETC TO A WOMAN WITH INTENT"?

Doctors can be charged under this section if they fail to consider certain issues when determining whether it is appropriate for a woman to have an abortion.

Essentially what the legislation means is that a woman cannot choose to have an abortion any time they want for any reason – it has to be ‘lawful’.

Medical practitioners must satisfy themselves and hold an honest belief on reasonable grounds that what they did was necessary to preserve the woman involved from serious danger to their life, or physical or mental health. Commonly, these reasonable grounds have been interpreted to stem from social, economic or medical bases, and can arise either during or after the pregnancy.

If a doctor fails to turn their mind to these considerations at all, they may be guilty of this offence.

Another example would be if a man gave drugs to a woman with the intent of causing her to miscarry to avoid a pregnancy that he did not want.

WHAT THE POLICE MUST PROVE:

  • You unlawfully:
    • Administered or caused to be taken by a woman, a drug or noxious thing; or
    • Used an instrument or other means upon a woman; and
  • You intended to procure the miscarriage of that woman (whether pregnant or not).

POSSIBLE DEFENCES FOR "ADMINISTERING DRUGS ETC TO A WOMAN WITH INTENT”?

Possible defences to an administering drugs etc to a woman with intent charge include but are not limited to:

  • That you were acting lawfully in either administering the drug or using the instrument
  • Duress
  • Necessity

WHICH COURT WILL HEAR YOUR MATTER?

Administering drugs etc to a woman with intent is a Table 1 offence and is to be dealt with by the Local Court, unless you or the prosecution elect for the matter to be heard in the District Court on indictment. The summary disposal of these offences in the Local Court carries a maximum penalty of two years imprisonment.



Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Intensive correction order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines: When deciding the amount the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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