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Section 14. Science of law
Section 14. Science of law
Voronina Galina Alexandrovna, senior teacher, Caspian Institute of Sea and River Transport
E-mail: gavoronina@mail.ru
The concept of fetus’s extrusion in writings of the Russian Empire jurists (the end of XIX — beginning of XX centuries)
Abstract: The article considers different views on the concept of “fetus’s extrusion" developed by Russian researchers of the Russian Empire in absolutism and transfer to a bourgeois monarchy periods.
Keywords: fetus, extrusion of fetus, criminal abortion, feticide, crime.
Formation and development of the legal category “extrusion of fetus” in the Russian law has its own history. According to the legislation of the Russian Empire, extrusion of fetus was recognized as a crime and illegal, conscious, based on volition feticide.
Historiography practically has no special research on legislation regulating extrusion of fetus and feticide in the Russian Empire, however, certain aspects were still subjected to a comprehensive analysis. This was due to changes in legislation, the adoption of new legislation and historical events taking place.
In the historiography of XIX — early XX centuries a special attention should be paid to the works of the following authors: N. S. Tagantsev, V. D. Nabokov. Much prominence to the problem is given by I. V. Platonov in “The object of crime in the extrusion of the fetus’’ and by A. A. Ginzburg “Extrusion of the fetus”.
Individual aspects of extrusion of fetus were considered in writings by L. S. Belogrits-Kotlyarevskiy “A short course of criminal law”, M. N. Gernet “Women’s equality and the criminal law”, A. S. Ignatovskii “Forensic Science”, N. Rosina “Lectures on criminal law” and others.
According to the opinion expressed by the lawyer
N. S. Tagantsev, extrusion of fetus is a murder of an unborn child in utero, whatever the period of its development can be [7, 267]. On the other hand, pondering over the extrusion of fetus at different stages of pregnancy, N. S. Tagantsev concludes that the crime can not be considered as completed if the fetus had been under destruction, but the extrusion did not follow, and he remained in the uterus and disappeared into the amniotic fluid. At the same time N. S. Tagantsev comes to the conclusion that this crime will be consided as completed as soon as the fact of extrusion takes place even if the extruded fetus remains safe and will continue to exist [7, 303].
I. V. Platonov offers to regard the extrusion of fetus not as a crime but as a misdemeanor, arguing this point of view as follows: “No matter how important social objectives being pursued by punishment for extrusion of fetus are, but the
punishment should neither for pregnant women, nor, consequently, for their accomplices be particularly severe; committing the act of fetus’s extrusion the mother is not completely aware of the viciousness and of the profound demoralization which so vividly accompany other serious crimes; and motives of pregnant women committing the crime are rarely particularly vicious by themselves” [5, 167]. He also states that the fetus can not be regarded as a crime against the health of the pregnant woman. “This opinion is denied by most of the criminologists, because in this case a pregnant woman would be conceded unpunished since damnification to personal health is not punishable. In cases of petty injures to health of a pregnant woman, according to the principles adopted for instance by our law, even her accomplices would avoid punishment if the victim (the pregnant woman) could forgive them or the damnifications had been done with her agreement. Consequently, the extrusion of fetus can be declared as the crime as long as completely innocuous for the health of a pregnant woman methods will not be invented [5, 156]”. Classification of extrusion of fetus as a crime against life, as a murder, even as a special kind of it and as a crime against property was also considered by I. V. Platonov as unacceptable. Therefore, he believed it more correct to assign extrusion of fetus and feticide to the category of crimes against the interests of the pregnant woman or the father of the expected child.
The conception of “ abortion” was formed in the Russian Empire by the end of XIX — beginning of XX centuries. According to the Encyclopedia by Brockhaus and Efron of 1892, “abortion” was defined as an early, premature termination of pregnancy and extrusion of the fetus not capable of independent life apart from the mother’s body, i.e during the first 28 weeks of pregnancy. The same Encyclopedia says about “abortion produced intentionally” not only by a pregnant woman for the purpose of destruction of the fetus, but also by a doctor to save the woman’s life [9, 510].
At the beginning of the XX century researchers divided abortion into two types: medical and criminal ones. In V. Dal’s dictionary of1903, one can find at least two definitions: “Abor-
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The concept of fetus’s extrusion in writings of the Russian Empire jurists (the end of XIX — beginning of XX centuries)
tion is a medical termination of pregnancy. Miscarriage is a prematurely born child, infant and baby in general which is born so early that is unable to live by itself” [8, 4].
A. S. Ignatovskii formulated the following notion of a “criminal abortion”: “the criminal abortion is an artificial extrusion of fetus made without any intention to save the pregnant woman’s life and without any medical necessity and it is punishable and prosecuted by the law among the civilized nations, i.e it is considered as a crime“ [3, 341].
A. S. Ignatovkii stated that “extrusion of fetus” and “feticide” were two categories possessing different meanings. The words “extrusion of fetus” do not exactly reflect the situation as the term must imply not only extrusion of the fetus but the destruction, feticide of it as well which clearly follows from the rules of Medical Regulations article 1738. Under the “extermination of fetus” the lawgiver implies the feticide in utero, under the “extrusion of fetus” is understood premature separation from the utero, false childbirth, stillborn fetus [3, 261].
V. D. Nabokov analyzing the regulations of the Code of criminal and correctional punishments also put different senses into these two categories: “ Extrusion of fetus (not feticide) was contemplated in article 1461 (committed not by the pregnant woman herself but without her awareness or consent; the penalty had different degrees depending on the fact whether the extrusion of fetus resulted in pregnant woman’s personal injury or even death or not: hard labor in a place of exile from 4 to 10 years), article 1462 (committed by someone with awareness and consent of a pregnant woman or by a pregnant woman herself), article 1463 (committed by a
doctor, an accoucher, midwife or “when it was adjudged that the defendant had already been guilty of this crime”) [4; 3].
N. N. Rosin attributed feticide to the crime of privilege or to the murder with the punishment less severe than for other homicides [6, 569]. L. S. Belogrits — Kotlyarevskiy among murders of privilege singled out such as: infanticide, concealing of an illegitimate child’s dead body, murder of an ugly infant, etching away of a fetus, murder as a result of self-defense exceeding [1, 154].
The beginning of the XX century was connected with fundamental changes in perception among scientists of extrusion of fetus as a crime. They defended the view not about maintaining of current legislative regulations but about their radical changes, restriction of the concept “punishable extrusion of fetus” or about the complete exclusion of this deed from crimes. The latter point of view was developed by M. N. Ger-net in his report to the Congress of the Russian group of the International Union of criminologists.
Summary of the report upheld by Professors V. D. Pletnev, N. N. Polyansky and some others, found its strong encouragement in the speech presented by two women: a female doctor and a female lawyer. It was adopted by the majority of members of the assembly [2, 42-43].
In conclusion, it should be stated that extrusion of fetus during the period under study was regarded as a criminal act, but the question of classifying of this act to a particular type of crime was rather controversial and doubtful. At the beginning of the XX century much attention was payed by the lawyers to a non-criminal nature of extrusion of fetus.
References:
1. Белогриц-Котляревский Л. С. Краткий курс уголовного права. - Киев, типография «Петр Барский», 1908.
2. Гернет М. Н. Женское равноправие и уголовный закон, 1916. С. 42-43//СПС Гарант. Электронный ресурс. Режим доступа: garant.ru.
3. Игнатовский А. С. Судебная медицина. Вып. 1. Юрьев: Типография К. Маттисена, 1911.
4. Набоков В. Д. Элементарный учебник особенной части русского уголовного права. Выпуск 1. Книга 1. - СПб.:
Сенатская типография, 1903.
5. Платонов И. В. Объект преступления изгнания плода//Вестник права. Журнал юридического общества при Императорском Санкт-Петербургском Университете. СПб.: типография Правительствующего Сената, сентябрь 1899. № 7.
6. Розин Н. Н. Конспект лекций по уголовному праву. - 1904.
7. Таганцев Н. С. О преступленияхпротив жизни по русскомуправу/Н. С. Таганцев. - СПб.: Типография А. М. Котомина, 1871.
8. Толковый словарь живого великорусского языка Владимира Даля. Т. 1/Изд. Третье Под ред. И. А. Бодуэна-де-Куртенэ, Издание поставщиков Двора ЕИВ Товарищества М. О. Вольф. СПб.: Гост.Двор, 1903.
9. Энциклопедический словарь Брокгауза и Ефрона: в 86 т./под ред. проф. И. Е. Андреевского, К. К. Арсеньева и проф.
О. О. Петрушевского. - СПб., 1890-1907. т. 14.
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