A women inmate at Tafaigata Prison who was two months pregnant asked the defendant to abort the fetus using a duck speculum and uterine sound instrument while she was on weekend parole. Upon returning to the prison and complaining of severe pain, the woman was rushed to the hospital, where she delivered a live, premature female infant. The baby died of respiratory failure as a result of extreme prematurity and neonatal sepsis; the medical report stated that the instruments used by the defendant had infected the victim’s uterus and induced labor. In 2004, she had been sentenced to two and one-half years for the same offense. Although the charges were not prosecuted at the time, they were revisited in 2005 and a year was added to the defendant’s sentence. The sentencing judge in the case considered the defendant’s record of recent convictions as aggravating factors. While the maximum sentence for this offence is seven years, the court considered that it warranted a starting point of six and a half years. The only mitigating factor in the defendant’s favor was her guilty plea, which avoided the necessity of a full trial, for which twelve months were deducted from her sentence. The question before the Supreme Court was whether the Convention on the Rights of the Child and CEDAW ought to be considered in sentencing. In the course of answering such question in the negative, the judge was clear in relying solely upon national legislation: “This country through its elected representatives namely Parliament has chosen to take a pro-life stand and have legislated against abortion except when it is necessary to preserve the life of the mother. Parliament having enacted that law, the courts duty is beyond question, it is required to enforce the laws of the land. The rightness, wrongness or morality of such a law is debated in the building next door, not in this one.” The fact that Samoa continues to criminalize abortion after ratifying international conventions evinces clear legislative intent against domesticating CEDAW through specific legislation.
Police v. Apelu