Court convicts woman for anti-abortion protesting

By Dr Ronli Sifris and Dr Tania Penovic

 

In the Magistrates Court this week, anti-abortion protester Kathleen Clubb became the first person to be convicted of breaching Victoria’s safe access zone legislation. The 51-year-old mother of thirteen and active member of the anti-abortion group known as Helpers of God’s Precious Infants was found guilty of “prohibited behaviour” within a safe access zone outside the Fertility Control Clinic in East Melbourne. We have been in court hearing the case against Clubb and have published an opinion piece in The Guardian about the implications of the decision.

Clubb’s conduct appears to have been calculated to challenge the legislation, which was passed in November 2015 and came into effect last May following the decriminalisation of abortion in 2008. The legislation provides for safe access zones of 150 metres around premises where abortions are provided and prohibits certain behaviour such as harassing and intimidating persons within the zones. It is aimed at protecting the safety, privacy and dignity of those seeking to access reproductive health services.

After protesting outside the East Melbourne clinic six days a week for more than two decades, the Helpers of God’s Precious Infants – a US-founded anti-abortion group – were not willing to cease protesting within the safe access zones. Members of the group told police that they intended to breach the legislative provisions, and Clubb was given a police warning before (and in fact after) she approached a young couple walking into the clinic to hand them anti-abortion pamphlets. After refusing to heed all warnings, she was arrested and charged.

As foreshadowed in statements made by Clubb after she was charged, a preliminary question put before the court concerned the constitutional validity of the safe access zone legislation. This challenge was unsuccessful with Magistrate Luisa Bazzani deciding that the provisions do not infringe the freedom of political communication implied in the Commonwealth Constitution. She then proceeded to hear the case which turned on whether Clubb was “communicating by any means in relation to abortions in a manner that…is reasonably likely to cause distress or anxiety.”

In determining whether Clubb’s conduct was likely to cause anxiety or distress, her Honour heard evidence from Dr Susie Allanson, who worked for twenty-six years as a clinical psychologist at the Fertility Control Clinic. Dr Allanson talked about the circumstances of patients and the distress and anger caused by anti-abortion protestors whose behaviour included: displaying pictures of dismembered foetuses and other graphic images, walking alongside or chasing patients approaching the clinic, pressing brochures into their hands and providing misinformation about the consequences of abortion. Some protesters would attempt to stop patients from exiting cars and entering the clinic and physical altercations would sometimes take place. The protesters created an undercurrent of stress for patients and staff and a constant fear of confrontation. Dr Allanson is one of the eleven people we have interviewed about the effectiveness of safe access zones and her evidence is consistent with what we have been told by others about the nature and effects of anti-abortion protest.

Ultimately, Magistrate Bazzani found Clubb guilty of breaching the legislation and imposed a conviction as well as a $5000 fine. She found that Clubb engaged in a planned and deliberate act with the intention of breaking the law. Drawing on Dr Allanson’s evidence, Magistrate Bazzani found that Clubb imposed herself on strangers, including people likely to be quite vulnerable. She demonstrated no remorse and no insight into her behaviour.

The decision to hold Clubb guilty is a victory for women’s rights to access appropriate health care free of intimidation or harassment and with due respect for their privacy and dignity. A not-guilty verdict would have inevitably led to further testing of the parameters of the legislation, which would have seen women once again become the targets of harassment and intimidation outside Victoria’s abortion clinics.

Magistrate Bazzani’s decision has sent an important deterrence message to those contemplating engaging in anti-abortion protests within the safe access zones. Unfortunately, in some of our neighbouring jurisdictions where safe access zones have not been introduced, women continue to face intimidation, harassment and violations of their privacy and dignity when seeking to access a legal health service.

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Castan Centre

The Castan Centre for Human Rights Law seeks to promote and protect human rights through the generation and dissemination of public scholarship in international and domestic human rights law. In pursuit of this mission, the Centre brings the work of human rights scholars, practitioners and advocates from a wide range of disciplines together in the Centre’s key activities of research, teaching, public education (lectures, seminars, conferences, speeches, media presentations, etc), applied research, advice work and consultancies.

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