Talk about a 'miscarriage of justice'...

If it weren’t such a sad story there would be something comical, almost Python-esque about it. A few days ago I commented about the case in which a Tunisian woman got sentenced to two years (suspended for four) for ‘deliberately provoking a miscarriage’ by means of a pills cocktail.

Well, it now turns out that she wasn’t even pregnant. Which means there was no miscarriage. Which means there was no crime. Which means…

… which means I am now struggling to think of an analogy that can illustrate the same level of absurdity, had we been talking about any other crime but abortion.

It’s a bit like driving to the police station in the car you’re about to report as ‘stolen’. Or filing a ‘missing person’ claim, when that ‘missing person’ is actually yourself. There is something singularly absurd about a prosecution and conviction for a crime that not only didn’t happen, but – much more significantly – couldn’t possibly have happened at all.

But perhaps the most surreal detail is that the evidence for this state of absurdity was there all along, staring everyone in the face: the doctors who examined the woman, the police officers who prosecuted her, and the magistrate who passed judgment.

Right: before proceeding I’ll admit I’m a little uncomfortable delving too deeply into the specifics – after all, they involve the rather intimate private affairs of a non-public person – but something about this case seriously doesn’t add up.

Consider this quote from the news report which revealed the lack of a bun in the oven: “the ultrasound-based diagnosis was that she had a blighted ovum. That occurs when a fertilised egg attaches itself to the uterine wall but the embryo fails to develop. The placenta can continue to grow and support itself without a baby for a short time, and pregnancy hormones can continue to rise, which leads a woman to believe she is still pregnant.”

Well, that ultrasound was carried out on 27 October. That’s two weeks before the woman took her deliberate overdose.

Immediately, a number of questions arise. I won’t go into all of them, because some are clearly none of my business. But if this woman undertook an ultrasound which revealed she wasn’t pregnant… why did she come away so otherwise convinced, that she later ingested a potentially harmful drug cocktail to end a pregnancy she must have believed to be real?

What, in a nutshell, was she told by the doctors who examined her at Mater Dei?

A small clue comes by way of Mater Dei’s CEO Ivan Falzon, who said that: “Mater Dei Hospital is duty-bound to flag any suspicious case with the relevant authorities. It is up to the authorities to then investigate and prosecute should it be deemed appropriate.”

OK, so now we know how this curious case made it to court in the first place. The hospital ‘flagged’ what it deemed to be a ‘suspicious’ case with the relevant authorities. But then again… what was so suspicious about this case, if the woman wasn’t pregnant (and they had records to prove this)? On what basis would medical practitioners ‘suspect’ that someone was planning an abortion… when they knew from beforehand that there was no foetus to abort, and therefore no possibility to abort it? And besides: since when is any of that part of their job description, anyway?

There are other questions concerning Mater Dei’s handling of this case: including whether reporting one’s patients for ‘suspicious’ behaviour might infringe doctor-patient confidentiality. It is not just pregnant women who may be reluctant to seek medical treatment or advice for this reason: drug addicts have even more cause to fear being reported to the police… some have even been known to die from overdoses because their companions were too afraid of the possible consequences of seeking medical help.

But I’ll save that for another time. The more pressing concern here is: why was that woman even charged in court in the first place? Why did the police act on this report, even though they had access to the same medical documents that make a nonsense of the entire charge?

This is where it gets interesting. The woman in the story was charged with (and pleaded guilty to) the ‘intention’ to commit a crime. And already there are people out there who argue that it is actually immaterial whether the woman was pregnant or not. The law she was prosecuted for breaking concerns only the ‘intent’, and not the deed itself. So as long as it can be proved that she wanted to procure an abortion, no actual abortion is necessary to convict her.

There is, however, a small snag. And it’s only a little bit smaller than that other snag in the above argument: i.e., that we are now talking about “thought crime”, which is straight out of Orwell’s 1984.

We now know that, whatever her intention, it was simply not possible for her to commit the crime in question. And from a legal perspective that changes the argument completely. ‘Criminal intent’ is not the only consideration that makes up grounds for prosecution… there also has to be ‘corpus delicti’, defined as "the fact of a crime having been actually committed."

In this case, not only is the corpus delicti entirely absent (no crime was actually committed, remember?), but the ‘intended crime’ was directed at a ‘victim’ that didn’t even exist. So no matter what her intentions were, at no point did she have the physical power to actually carry those intentions through. The ‘victim’ was nothing more than a figment of her own imagination; and one cannot be prosecuted for killing imaginary people… still less for plotting to kill imaginary people, which is the case here.

Incidentally this fact also has a direct bearing on the way her case was handled by the courts. There is even a medical explanation for her behaviour, which doesn’t seem to have been given any weight at all at any point in proceedings.

We know from the above report that she suffered from a condition that may have impaired her judgment. ‘Pregnancy hormones’ will not only deceive someone into imagining a phantom pregnancy… already a delusion in itself… they may also substantially impact that person psychologically, making them particularly susceptible to other forms of psychotic delusion: including paranoia and anxiety (hormones have a habit of doing things like that: look under ‘post-natal depression’ for further details).

That’s some crime she was convicted for ‘intending to commit’, isn’t it? I was unaware that finding oneself in a delusional state, brought on by trauma and a well-known diagnosed medical condition, is enough to get you treated like a criminal in this country… even when you don’t commit any crime.

So not only was this case an astonishing ‘miscarriage of justice’ in every sense of the word… but the entire prosecution was rooted in a very basic misunderstanding of the law; and to cap it all, the court failed to take into consideration the most basic of medical evidence imaginable. At which point one has to also ask: what the heck was the defence counsel doing while all this buffoonery was going on?

As mentioned earlier, the woman had pleaded guilty to the charge. Criminal lawyer Joe Giglio tells us things would have worked out differently had she been advised to the contrary. I think that tells us a lot about the way some lawyers look upon their responsibility towards their clients. But it also tells us something about the way the law courts operate in this country.

Malta must be one of the few jurisdictions in the civilised world where a guilty plea, on its own, is taken as sufficient evidence to secure a conviction… even when there is no evidence of any crime having been committed.

In this case, there was ample reason to doubt the suspect’s admission. The magistrate could have asked for a psychiatric evaluation, on the basis of the above medical record alone. And a closer inspection of the facts should have resulted in a different ruling, even if the suspect maintained her guilty plea throughout. After all, whether she thought she was guilty is neither here nor there. She also thought she was pregnant, and that turned out to be hocus pocus.

Ultimately there is a difference between being convinced of guilt, and being actually guilty. That is why ‘corpus delicti’ also foresees situations whereby the courts may at times also have to defend citizens against themselves.

Here are a few more considerations that arise from the same legal principle: “Many jurisdictions hold as a legal rule that a defendant's out-of-court confession, alone, is insufficient evidence to prove the defendant's guilt beyond reasonable doubt... Some jurisdictions also hold that without first showing independent corroboration that a crime happened, the prosecution may not introduce evidence of the defendant's statement…”

All these interpretations imply that admission of guilt, alone, is not proof of guilt. In Malta, we have succeeded in utterly perverting that logic to produce a situation whereby admission of guilt automatically makes you guilty… even when there is abundant proof that you are innocent.

That’s the sort of thing that can only happen in two places I know: Monty Python sketches, and the Malta law courts. And I’m not at all sure which is the more surreal.