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How many were really killed in St Thomas?

Killing of child in the womb not capital murder by Jamaican law

BY BALFORD HENRY Observer senior reporter balfodh@jamaicaobserver.com

Monday, September 10, 2012    

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HOW many lives were taken when 27-year-old Kay-Ann Lamont — who was in an advanced stage of pregnancy — was shot and killed, allegedly by a policeman, in Yallahs, St Thomas two Saturdays ago?

Two died; Lamont and her unborn child, yet the policeman accused of the shooting, has only been charged with one murder, in addition to other charges of illegal possession of a firearm, wounding with intent and assault.

Public Defender Earl Witter appeared supportive of the view that, indeed, two lives were lost, when the Jamaica Observer spoke to him last week Wednesday. He said he saw nothing wrong with the mother and the unborn child having separate interments, and even suggested that, on the basis of the indictments from the Director of Public Prosecutions (DPP), there could even be separate compensation for the loss of the two lives.

"I am waiting to see how the DPP (Director of Public Prosecutions) frames the indictment," Witter said then. He noted that medical science has established a point beyond which the foetus is considered viable, or at a point where it could survive independent of its host.

But, by the time the Independent Commission of Investigations released the DPP's indictments a day later, Witter seemed to be changing his tune.

"My investigations do not suggest two murders," he said. "There have been two deaths; one being Kay-Ann Lamont and the other being an unborn child. But, although they have been two deaths, I have seen no basis on which an indictment alleging the murder of both may be sustained."

Witter said that the reason for his second opinion was that the killing of an unborn child still in the womb is not murder under Jamaican statutes.

He attributed his original position to the United Kingdom's Infant Life (Preservation) Act, which creates an offence of child destruction. Child destruction is the crime of killing an unborn but viable foetus, or a child "capable of being born alive", before it has "a separate existence".

"But, I am not aware of any counterpart statutory laws in Jamaica," he explained.

The UK Act states that:

"...Any person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother".

The Act also states: "For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more, shall be primâ facie proof that she was at that time pregnant of a child capable of being born alive."

Child destruction is a statutory offence in England, Wales, Northern Ireland and Hong Kong. People have been convicted of the offence for injuring a heavily-pregnant woman in the abdomen, such that her foetus dies; for killing a foetus during childbirth; or for performing a late-term abortion.

The purpose of the offence is to criminalise the killing of a child during its birth, because this is neither abortion nor homicide for the purposes of the criminal law. It can also be used to prosecute late abortions.

Former minister and current Opposition spokesperson on women's affairs, Olivia "Babsy" Grange, believes that Jamaica needs a law similar to the Infant Life (Preservation) Act, to protect women who are far advanced in pregnancy from the kind of violence that has taken the lives of three pregnant women in Jamaica since September 2.

According to her, "there is a need to make the murder of pregnant women, especially those whose foetus is already at the point of viability, capital murder; in light of the fact that it is the murder of two human beings capable of existing as separate individuals".

She said that this protection should also be extended to compensation from the State when the police are involved, especially in cases where no effort is made to save the life of the unborn child. She said she understood this was the case in Lamont's death and could also have been the case in the deaths of two pregnant women killed in St James last Wednesday night.

The public defender said that it would have been a glaring breach of the Jamaica Constabulary Force's (JCF) Use of Force and Firearms Policy, not to have dealt with the injured with dispatch. He said he had no evidence as to the length of time it took the police to seek medical assistance.

The JCF's Use of Force and Firearms Policy requires that the police "ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment".

Tom Tavares-Finson, the lawyer representing the slain woman and her family, however, thinks that deciding what do in the circumstances could have been a challenge for the police, in light of how quickly things developed.

"The doctors say that if there was medical personnel at the scene they could have tried to save the child, but what if she (Lamont) was not dead, and there is also a policy about disturbing the crime scene," he commented.

Tavares-Finson said the DPP's indictment was exactly what he expected, and suggested that calls for a Jamaican statute to indict persons accused of killing advanced pregnant women were probably, "emotional".

"We always react in an emotional manner to things like these," he remarked.

Despite the loss of his child, Linton Dennis, father of the dead foetus was a much happier man Friday afternoon, after an autopsy in Kingston accommodated its removal and the revelation that it was a boy weighing five-and-a-half pounds.

"I would have named him Leroy and I know he would have weighed six to six-and-a-half pounds by the time of his birth," Dennis said. "Now, all I can do is to bury him."

Lenroy has another son, however. He is 13-year-old Okel, who attends the Paul Bogle High School in Morant Bay, where his father lives.

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