Further to Mariana Debono’s article on Malta Today
“Let us slow down” but properly.
Mariana Debono tells us that decriminalisation amounts to “throwing the Criminal Code out the window.”
Just a reminder to Ms. Debono that our Criminal Code does not enshrine every moral failure. Adultery is not a crime. Breaking a promise is not a crime. Refusing to donate an organ to save another person’s life is not a crime. Withdrawing life support is not a crime.
These are morally difficult issues. Yet in Malta we recognise that criminal punishment is not always the appropriate response to moral complexities. In fact, many issues considered morally “wrong” by some have been removed from the criminal code such as sodomy which until 1973 was considered a crime. This decriminalisation did not mean society declared every aspect of sexuality morally uncomplicated. It meant the state recognised that imprisoning consenting adults for private sexual acts was unjust and disproportionate. The removal of sodomy from the Criminal Code did not “celebrate” it. It acknowledged that criminal law is a blunt instrument, one that should not be used to police deeply personal decisions.
The law does not exist to solve every difficult ethical debate. To my knowledge it exists to decide when the state should use force by the police to investigate, prosecute and imprison for the greater good of society.
Depenalisation as suggested by Ms. Debono (who seems to want to punish women at all costs) means keeping abortion technically criminal but choosing not to punish some women in certain cases. This leaves women to be seen as having done something wrong at law, and under the shadow of criminality, and dependent on the discretion of those in charge, and at the mercy of politicians, magistrates and judges. It means any woman caught having had an abortion can still be shamed and named. Depenalisation would do nothing to improve the shame, secrecy, and stigma surrounding women who have had to have abortions for whatever personal reason.
And here is where the argument about “responsibility” often becomes detached from reality, Ms. Debono is obviously painfully oblivious to the situation in Malta. In Malta today, none of the abortions are carried out by doctors “professionally and repeatedly for payment” because women are secretly ordering abortion pills online and carrying out abortions themselves alone, in fear and against the law in their homes.
So when Ms. Debono mentions that “primary legal responsibility must fall on the one who intentionally performs the act”, we must be honest and knowledgeable about context: in Malta that means penalising the women because nobody else is involved locally. In fact, criminalisation has not prevented abortions. Abortions are happening every day in Malta. Criminalisation has simply added fear, shame and stigma to an already oftentimes complex decision.
Ms. Debono’s suggestion that women should face “mandatory counselling, restorative measures, or even prison in some circumstances” makes it sound like criminal law is some form of therapeutic tool. Let’s be clear, we all know that it is not.Ms. Debono’s suggestion that women should face “mandatory counselling, restorative measures, or even prison in some circumstances” makes it sound like criminal law is some form of therapeutic tool. Let’s be clear, we all know that it is not.
Criminal law is punitive by design. Once something is in the Criminal Code, it is subject to investigation, charge, trial, and potential imprisonment. That reality cannot be softened by appeals to provide some form of healing.
If Ms. Debono genuinely believes that women often act under “fear, pressure, abandonment, coercion, or financial desperation” then why is the harsh arm of the law the correct response? Shouldn’t we be providing a more humane way forward, one that recognises the complex moral difficulties that surround this issue? One where those who are morally opposed to abortion, never have to have one, doctors morally opposed to abortion never need perform one, whilst still protecting the privacy and rights to sexual and reproductive health and rights of girls and women as per international guidelines from the major institutions in the world?
That is not “pretending there is no stone.” It is recognising that stones are not removed by criminal codes – around the developed world they are removed by proper, fair policies.
Ms. Debono in her article mentions “the distress of court proceedings” as if it were merely some minor emotional discomfort. But criminal proceedings are invasive, phones are seized, medical records are scrutinised, private messages are examined. In small societies like Malta we all know that reputations are destroyed as soon as anyone gets hold of a whiff of something like this.
If we are serious about fairness, equality, and if we really care about women’s wellbeing, we must ask: what is achieved by keeping abortion within criminal law that could not be achieved through regulation outside it? Decriminalisation does not declare abortion “morally neutral“. It declares that imprisonment is not the appropriate tool.
And beyond law lies something more important. Human decency. If we truly want fewer abortions, to me, the answer is not criminal punishment of any sort. It is well thought out and planned social structures and policies. A country where boys, men, girls and women are supported before an unplanned pregnancy, with comprehensive sex education, with free contraception, and also after, with proper support in home and at the workplace, both emotionally and financially. These measures will always see better outcomes than one where only girls and women face stigma, shaming, silence and punishment.
Cross-party dialogue is welcome by Ms. Debono. But we must be honest about what our “courage” looks like. Courage is not insisting that the Criminal Code remains the guardian of morality. Courage is admitting when a law no longer serves its original purpose. Compassion is not legal amnesia. Compassion is legal correctness and sometimes that means recognising that criminal law is too heavy a hammer for the fragile complicated realities faced by girls and women.
If we want to protect life, dignity, and women simultaneously, we must do more than threaten punishment.
In my world, we must build more sustainable support systems that make unplanned pregnancy rarer. We must teach boys and men to respect women more because women do not magically get pregnant, and most importantly as a society we must trust women enough to know what is best for themselves and their families and not try to control them through fear of shame and punishment.
Do you have an experience you’d like to share with us at Wham, either in your name or anonymously? Contact us! We’d love to hear from you!
Francesca Fenech Conti is passionate about social issues and has a BA in Social Policy. She is the Founder and creator of the women only facebook group Women for Women (Malta) and the Women for Women Foundation that works hand in hand with other NGOs and businesses to empower and support women, especially single mothers.
Francesca recently also launched Wham.com.mt to provide a much needed space on the local media scene to promote women’s voices and to provide women with a source of information regarding their general wellbeing.
Click here to check out Francesca’s full bio as well as a list of all her Wham published articles
Related posts:
An Accessible Overview of the Newly Amended Articles Relating to Abortion in Malta’s Criminal Code
Texas Abortion Ban Makes Malta Reproductive Healthcare Look Worse
Decriminalisation of abortion is about compassion helping women & loving couples
Helena Dalli Delivers Speech About Restrictive Abortion Laws in Poland
