In French criminal law, a legal vagueness exists around the status of the fetus. In the tragic accident involving Pierre Palmade, a victim lost his. However, the manslaughter could not be retained.
Can the qualification of manslaughter be retained in the context of an accident involving an unborn child? This is the thorny question that the criminal judge will have to answer in the case Pierre Palmade. In this accident caused by the comedian, the pregnant woman who was in the vehicle hit by the comedian lost her unborn child. At this stage, the 50-year-old is being prosecuted for “homicide and involuntary injury”. But the facts could be reclassified and the homicide proceedings dropped. This is not the first time that such a question has arisen in France and the case law leans towards a negative answer. A look back at this status in France and its consequences in the Palmade case.
Absence of legal definition of the fetus
In French law, the fetus has no legal definition. Scientifically, the fetus is the stage of development that follows the embryo, i.e. the end of the 8th week (two months) of pregnancy. Article 16 of the Civil Code lays down an important but legally vague principle: “the law ensures the primacy of the person, prohibits any attack on the dignity of the latter and guarantees respect for the human being from the beginning of his life. “. It remains to decide the essential question: when does life begin?
The principle solution is that a human being acquires legal personality at the time of birth with two cumulative conditions: the newborn must be “alive” and “viable”. To be born “alive”, the child must have breathed even a few seconds and to be born “viable”, according to the WHO, he must have reached the term of 22 weeks of pregnancy and weigh at least 500 grams.
Theoretically, the fetus does not have legal personality, despite doctrinal debates, also raised concerning the question of abortion. Criminally, the legal personality of the fetus is excluded because the Court of Cassation refuses to qualify as manslaughter the act of a third party leading to the death of the fetus. The whole issue of legal qualification is to determine whether the unborn child is deceased in utero or outside its mother’s womb.
In the case of the Palmade case, the results of the autopsy have not yet been revealed, but the family of the victims have made it known through their lawyer, Mr. Mourad Battikh, that the unborn child had breathed, and was therefore born “alive” and “viable”, which would make it possible to retain the qualification of manslaughter.
What does the law say if the fetus is born “alive” and “viable”?
This is the scenario defended by the lawyer for the victims in the accident caused by Pierre Palmade. According Mourad Battikh, “the child would have been born alive” and would have breathed. For the moment, the autopsy of the body of the fetus older than 6 months has not made it possible to establish whether the child was born or not alive. Crucial point of the investigation to determine whether there was a homicide or not. What will be the case if it turns out that the child To be born broke away from his mother’s legal personality and acquired an independent existence. On the other hand, if the child is stillborn, then the facts would be requalified as “involuntary injuries”.
In 2014, the Tarbes Criminal Court opposed previous case law dating from 2002 by condemning for involuntary homicide a driver who had hit a pregnant woman and condemned him for “involuntary homicide on a fetus”. The judgment had held that the unborn child had “died only because of the accident”. However, the prosecution appealed and the Pau Court of Appeal returned to previous case law. The count of homicide had therefore been quashed. Ihe characterization of manslaughter does not apply to dead unborn children in utero.
Asked by RTLSophie Paricard, professor of private law, indicated that the judgment in the Palmade case “can also be a way of re-examining this case law, which is now 20 years old, because we know that it was criticized by some at the time” she clarified.
What does the law say if the fetus is not born “alive” and “viable”?
In this second case, article 221-6 of the Penal Code does not apply to the unborn child, to the fetus. This article provides that “causing (…) by clumsiness, imprudence, inattention, negligence or breach of an obligation of prudence or safety imposed by law or regulation, the death of another constitutes manslaughter” . It was first the Criminal Division of the Court of Cassation that identified this principle in a judgment of June 3, 1999, called the Golfier judgment. In this case, by confusion due to a homonymy, a doctor had removed the IUD from the wrong patient causing the disappearance of the fetus. A therapeutic interruption of the pregnancy was then carried out.
Manslaughter had also not been retained following a road accident, in which a pregnant motorist had been struck by a drunk driver, according to a decision rendered on June 29, 2001. This exclusion from the manslaughter was confirmed by the plenary assembly of the Court of Cassation, the most solemn formation. In this judgment, the High Court held that “the principle of the legality of offenses and penalties, which imposes a strict interpretation of criminal law, precludes the criminalization of the involuntary homicide of others, be extended to the case of the unborn child whose legal regime is governed by specific texts on the embryo or the fetus”. Since then, case law has been constant, notably maintained in a decision of June 25, 2002 by the Court of Cassation. In these cases, the Court refused to take into account the criterion of the viability of the unborn child.