Does the Issue of Obstetric Violence Warrant the Introduction of a Specific Statutory Offence?

Written by Bani Rikhraj for the Medical Law Section.

Obstetric violence is its own unique form of violence. For it to be challenged effectively, there needs to be legal backing in place. Whilst criminal law has been suggested as one avenue, it is important to remember that something like obstetric violence is not simply the occurence of battery, assault, ABH or GBH. In truth, it is much deeper and damaging than that. There then remains one question: Does the Issue of Obstetric Violence Warrant the Introduction of a Specific Statutory Offence?

Obstetric violence refers to the mistreatment of women during childbirth by healthcare professionals and the occurrence of inappropriate or non-consensual acts. The World Health Organisation has recognised that obstetric violence not only violates the rights of women to respectful care, but can also threaten their rights to life, health, bodily integrity, and freedom from discrimination.[1]

Taking into consideration the fact that an essential feature of violence against women is that it stems from structural gender inequality, it is very easy to draw parallels between the mistreatment of women during childbirth and violence against women more broadly.[2] Therefore, obstetric violence can be categorised as a form of gender-based violence. Historically, the law has been very ‘patriarchal’[3] and has struggled to accommodate women’s experiences of abuse and violence.[4] This raises an urgent need for proper recognition of such violence as well as for the introduction of strict sanctions for committing this offence.

Criminalisation

Need

It has been argued that the criminal law is the ‘most powerful and important social institution through which we hold to account, and express public censure of, those who have mistreated others in a wholly unacceptable and highly culpable way.’[5] In this regard, criminalising obstetric violence will mark it as a public offence which would make way for complaints to be taken more seriously and would also allow for adequate punishment via state intervention. Thus, it is the ‘public and punitive character of the criminal law’ that makes its role unique[6] and, going forward, seems to be the most effective way to tackle obstetric violence.

Current methods and their inadequacy

Historically, medical professionals have not faced criminalisation for harm perpetrated on patients, except in cases where such harm caused death.[7] This inadequacy led to the introduction of sections 20 and 21 of the Criminal Justice and Courts Act 2015, which specifically target care providers and criminalise unsafe or abusive medical care. Arguably, these offences can also tackle obstetric violence. However, it should be noted that many instances of obstetric violence lead to emotional harm, distress, and longer-term mental impacts, instead of direct harm to the mother. As the law considers psychological harm as less important than the overall outcome of a healthy mother and child,[8] there seems to be a high chance that legal protection under sections 20 and 21 would be denied because ‘no real damage occurred.’[9]

There is a possibility to criminalise some instances of obstetric violence, particularly non-consented to medical interventions, through the Offences Against the Person Act 1861. For instance, unconsented vaginal examinations can technically be categorised as a form of battery. However, such categorisation tends to oversimplify this issue; the offence of battery fails to confront obstetric violence and hides it due to inadequate labelling.

Thus, even though in recent years there has been an increased feminist focus on criminal reform,[10] it is evident that the current criminal law provides an inadequate response to obstetric violence.

Introduction of a specific statutory offence

Need

The need for a specific statutory provision is exacerbated by the fact that this form of violence against women has long been hidden and is still too often ignored or trivialised.[11] This problem has been made worse by the fact that societal and gender norms have traditionally normalised women’s experiences of abuse to such an extent that often, even the victim does not interpret what has happened to her as ‘violence.’[12] If obstetric violence is explicitly recognised as a specific crime, it would confront these hidden practices and would seek to reject the normalisation of reproductive oppression.[13]

Critics might argue that many patients who are not pregnant also experience medical abuse and so, all such instances should be dealt with under the 2015 Act, suggesting that pregnant persons do not require additional protection and should not be treated ‘differently.’[14]

However, Brennan has correctly pointed out that mistreatment of other patients usually occurs because they are ‘vulnerable’ and disempowered due to illness.[15] Pregnant persons on the other hand are not ‘sick’ – the normative expectations of good motherhood and the perceived maternal-foetal conflict are the factors that make medical professionals cross the line into unprofessional and abusive medical practices.[16] Therefore, birthing persons should be reclassified from their status of a ‘vulnerable’ population to that of a medically complex population.[17] When this is done, it becomes clear that birthing persons’ experiences are different and require special ethical considerations, thus sparking the need for a more woman-centred offence that can consider and provide for these different experiences. It is therefore clear that a specific offence, along with labelling the crime correctly, would also enable the law to respond to specific gender-based harms like autonomy infringement, thus resisting the minimisation of women’s experiences.[18]

Caution

There are still legitimate concerns about overcriminalisation and the doctrine of chilling effect. There is a need to ensure that the fear of criminalisation does not inhibit medical professionals from doing a proper job. A solution to this is to draw a clear line between legal and illegal conduct, for instance, a relatively minor instance of being rude to the mother does not merit criminalisation.

Moreover, to overcome the problem of abusive care at its core, additional interventions such as improving training, sensitisation to and education campaigns on patients’ rights, along with the improvement of broader gender equality are needed.[19] This will undoubtedly take some time to be fully achieved, but it is still a reminder that legal reform in this regard is only part of the solution, albeit a very major one.

Several countries in the Latin America and Caribbean region have adopted laws that criminalise obstetric violence. Perhaps implementing laws inspired by these countries could be a good first step. However, it also needs to be ensured that these provisions are effectively implemented and that there is proper awareness of the issues of obstetric violence and the rights of birthing persons. What is needed in the meantime is the construction of a specific obstetric violence offence, which widens the approach to the seriousness of harm and fault by considering the gendered context of the experiences of birthing persons.[20]

References

[1] WHO statement, “The Prevention and Elimination of Disrespect and Abuse During Facility-Based Childbirth”, WHO/RHR/14.23 (2015).

[2] Jewkes and Penn-Kekana, ‘Mistreatment of Women in Childbirth: Time for Action on This Important Dimension of Violence against Women’ (2015) 12(6) PLoS Med e1001849

[3] Smart, ‘Legal Regulation or Male Control’ in Law, Crime and Sexuality: Essays in Feminism (Sage Publications 1995)

[4] K. Brennan, ‘Reflections on criminalising obstetric violence – A feminist perspective’ in C Pickles and J Herring (eds), Childbirth, vulnerability and law: Exploring issues of violence and control (2019) 226

[5] Yeung and Horder, ‘How Can the Criminal Law Support the Provision of Quality in Healthcare?’ (2014) 23 BMJ Qual Saf 519

[6] Jewkes and Penn-Kekana (n 3)

[7] Francis, ‘Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry’ (The Stationery Office 2013)

[8] Brione, ‘Non-Consented Vaginal Examinations: The Birthrights and AIMS Perspective’ in C Pickles and J Herring (eds). Childbirth, vulnerability and law: Exploring issues of violence and control (2019)

[9] Battisti, ‘The Need to Legislate and Regulate Obstetric Violence to Ensure Women a Real Legal Protection,’ Revista D'antropologia i Investigació Social (10), 2022

[10] Brennan (n 5)

[11] Parliamentary Assembly Report (n 1)

[12] Bibbings, ‘Boys Will Be Boys: Masculinity and Offences against the Person’ in Feminist Perspectives on Criminal Law (Cavendish Publishing 2000)

[13] R Chadwick, ‘Breaking the frame: Obstetric violence and epistemic rupture’ (2021) 35(3) Agenda 104

[14] Brennan (n 5)

[15] ibid

[16] ibid

[17] Blehar et al, ‘Enrolling Pregnant Women: Issues in Clinical Research’ (2013) Women’s Health Issues 23(1)

[18] Brennan (n 5)

[19] C. Pickles, ‘Eliminating Abusive “Care”: A Criminal Law Response to Obstetric Violence in South Africa’ (2015) 54 SACQ 5

[20] Brennan (n 5)