INTRODUCTION

5.1 Infanticide is unique in that it is both a substantive offence and a partial defence. Thus infanticide can be raised as a defence to a charge of murder and, if successful, will result in the offender being dealt with as if convicted for manslaughter. Alternatively, the prosecution can specifically charge a woman with infanticide. Infanticide is only applicable in New South Wales where a woman whose mind is “unbalanced” by reason of the effects of birth or subsequent lactation kills her own child who is under the age of 12 months.

5.2 Infanticide is now controversial in several respects. First, it is relatively rarely used and, on one view, may be subsumed within the broader partial defence of diminished responsibility (which entered New South Wales law at a later time). Secondly, there is considerable doubt about the scientific validity of the medical basis for infanticide - and, indeed, whether the basis is to be found in psychology, physiology or sociology.

5.3 Finally, there is concern expressed in feminist legal thought that it is inappropriate for women to be given “special treatment” by the law for “biological” reasons, as this is certain to rebound to the detriment of women in other areas of the law and runs contrary to the drive for gender equality. On the other hand, there is an argument that, whatever its theoretical basis, there is value in a defence which mitigates against a conviction for murder for a small class of “sympathetic defendants”.

BRIEF HISTORY

5.4 While “it is difficult in this child centred society to imagine the enormity of the child disposal problem throughout the ages”,¹ the practice of infanticide was widely used as a method of population control and was often condoned by the general mores of many pre-Christian societies.² Although Christian morality emphasised the sanctity of life and consequently censured infanticide, the practice remained widespread.³ Legal censure began in 1624⁴ with the statutory presumption of guilt when a woman concealed her (illegitimate) pregnancy and the child died. However, the statute was not strictly applied, an “ingenious case law ... developed to avoid the harshness of conviction for murder”⁵ and the statute was repealed in 1803. Lord Ellenborough’s Act,⁶ which replaced it, created an alternative verdict of concealment of birth carrying a maximum penalty of two years imprisonment. This Act and its successors⁷ formed the basis for the modern English and Australian concealment provisions.⁸

5.5 By the mid-nineteenth century, the killing of young children was a major social issue in England and Australia. Victorian attitudes to illegitimacy meant that unwanted pregnancies were economically and socially disastrous, particularly for women in domestic service and for many young women infanticide must have seemed unavoidable.⁹ The killing of infants occurred in a wide variety of circumstances, from abandonment, exposure and ill-treatment to intentional killings and an entire “baby farming” industry. Indeed its prevalence indicated that it was very much a “part of everyday life”.¹⁰

5.6 Despite the widespread occurrence of various “reproduction-related crimes” indictment rates were relatively low and actual convictions extremely rare.¹¹ Thus while the law itself was severe - child killing was murder and carried the death penalty - police enforcement was selective and sporadic¹² and jury verdicts were invariably lenient. Thus, for example, Keating J testified to the Capital Punishment Commission in England in 1866 that:

It is in vain that judges lay down the law and point out the strength of the evidence, as they are bound to do; juries wholly disregard them and eagerly adopt the wildest suggestions which the ingenuity of counsel can furnish ... juries will not convict while infanticide is punished capitally.¹³

5.7 Evidence was often “stretched” to avoid conviction. On a charge of murder the prosecution has to prove that the child was completely born before it died and doctors frequently testified that the child may have still been in the birth canal when it was strangled or had its throat cut and other such improbabilities.¹⁴ Judges themselves were very reluctant to contribute to a conviction. Seaborne Davies concluded that:

Judges not merely tacitly acquiesced in the methods used by lawyers to circumvent the law, but frequently played an active part in these conspiracies.¹⁵

5.9 There were a number of reasons given for the mercy shown to mothers who committed infanticide. One was, according to Stephen, that because the victims were children, their loss was considered to be inestimable and therefore less.¹⁷ Again, because infanticide was said not to create public alarm like other homicides, society did not insist on the death penalty as a deterrent.¹⁸ Because of generally high infant mortality rates, the death of children was not uncommon and this may have made a deliberate killing more acceptable.¹⁹ In addition, juries were sensitive to the oppressive social and economic conditions an unmarried mother would experience.²⁰ It was also the case that infanticide was not easy to prove, it was often difficult to determine whether the child had been born alive and whether the death had been accidental.²¹ Finally, the harshness of the mandatory death penalty was an important factor in the reluctance of juries to convict.

5.10 It was in this paradoxical context that the “lobbying by medical groups, social reformers and - behind the scenes - judges ... led to the English Infanticide Act 1922”.²² The judges were concerned at the “solemn mockery”²³ of imposing a death sentence which everyone (except perhaps the defendant) knew was not going to be carried out. The reformers were concerned with the social conditions under which infanticide was likely to take place: poverty, abandonment and the social stigma of illegitimacy. Despite these “social” concerns, the Act adopted an essentially medical model, requiring that the “balance of mind” of the mother be disturbed as a consequence of childbirth. Thus the Act provided that a woman was guilty of infanticide if she killed her “newly born child” when she had not “fully recovered from the effect of giving birth to such child and by reason thereof the balance of her mind was then disturbed”. According to O’Donovan:

The Act was the product, not of nineteenth century medical theory about the effects of childbirth, but of judicial effort to avoid passing death sentences which were not going to be executed. But medical theory provided a convenient reason for changing the law.²⁴

5.11 The 1922 Act was amended in 1938. As a reaction to the finding in R v O’Donoghue²⁵ that a 35 day-old child was not “newly born”, the new provisions applied to children killed within one year of birth. In order to make the length of this period plausible, “lactation” was added as a ground for disturbance of mind. The 1938 Act is the basis for s 22A of the Crimes Act 1900 (NSW) which was introduced in 1951.

CURRENT LAW IN NEW SOUTH WALES

5.12 The relevant provision is s 22A Crimes Act 1900 (NSW):

(1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child then, notwithstanding the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child.

(2) Where on the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of the opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child then, notwithstanding the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child.

(3) Nothing in this section shall affect the power of a jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity or a verdict of concealment of birth.

Elements of infanticide

The act of killing and the perpetrator

5.13 The defendant must kill the child, either by act or omission. It appears that the offence is not applicable in New South Wales where the mother is not the principal offender. The defendant also must be the natural mother of the child: adoptive mothers, fathers and other carers are not included within the scope of the provision.

The mental element

5.14 There is no specified mental element for the offence of infanticide. All that is necessary is that the act or omission be wilful. This has the possible consequence that a defendant could be convicted where she accidentally kills her child; that is, where she kills without the mens rea for either murder or manslaughter. This issue has not received judicial consideration but in the light of He Kaw Teh,²⁶ where the High Court held that there is a presumption that mens rea is required before a person can be found guilty of a serious criminal offence, this consequence is highly unlikely. What is not clear is what the mental element would be: must it be the mens rea for murder or would the mental element for involuntary manslaughter suffice?

A medical model

5.15 The rationale of the legislation is that the physical processes of birth can produce an effect that reduces a defendant’s culpability. One consequence of this model is that the provisions only cover natural mothers. As mentioned above, fathers, other carers and adoptive parents do not fall within the scope of the legislation.

5.16 In recent times, the medical model has come under attack. It is pointed out that there is no evidence for a relationship between lactation and mental disorder and that the so called “post-puerperal psychoses” are not different from any other type of mental disturbance. Recent research shows that puerperal psychosis is very rarely the cause of a woman killing her infant.²⁷ In fact, stress from the social environment highlighted by the birth of a baby, stress from an additional family member in an impoverished household, psychological pressure from inability to cope and other environmental factors are usually the operative elements in the killing of infants.²⁸

Mental disturbance and causation

5.17 On the strict wording of the statute there is no need to show a causal connection between the mental disturbance and the act causing death.²⁹ This is in contrast to both the diminished responsibility and insanity defences. One effect of this is that it considerably simplifies the jury’s task who have merely to find that the defendant has a temporary disorder and otherwise falls within the terms of the statute.

The age of the victim

5.18 Section 22A specifies that the victim must be under the age of 12 months. A woman who kills two of her children, one under 12 months and one over, may be charged with infanticide for the first act but must be charged with murder (or manslaughter if appropriate) for the second. This is so even if they occur at the same time and arise from the same psychological or emotional state. This will probably also be the case where a woman has two children under the age of 12 months and kills the older. On a strict reading of the section, she cannot be charged with or plead infanticide for the killing of the older child.

The onus of proof

5.19 If a charge is brought under s 22A(1), the onus is clearly on the prosecution to prove all the essential elements of the crime beyond a reasonable doubt. However, there is some uncertainty surrounding the onus of proof when infanticide is raised as a defence. Section 22A(2) is silent on the matter. By analogy with diminished responsibility it might be thought that the onus lies on the defendant to prove infanticide as an alternative to murder. However, by analogy with provocation and consistently with most defences, it may be argued that the onus lies on the prosecution to negative infanticide where the defendant has produced some evidence towards proving the defence. There is no New South Wales authority on the issue, but where it has been considered the latter approach has been adopted. For example, in two Papua New Guinea cases in the 1960s, construing a similar provision, the Supreme Court ruled that the onus of proof was on the prosecution.³⁰

Child destruction and concealment of birth

5.20 Finally, mention should be made of the analogous offences of child destruction and concealment of birth. Child destruction is covered by s 21 of the Crimes Act 1900 (NSW). Its object is to cover cases where the child is born dead because of acts done which, had the child died after birth, would have amounted to homicide. Essentially it is aimed at the killing of a child which was capable of being born alive due to acts done before (and usually in connection with) delivery. The penalty is imprisonment for a maximum term of 10 years. The offence of concealment of birth is found in s 85 of the Act which provides that wilfully concealing or attempting to conceal the dead body of a child (whether the child dies before, during or after birth) is punishable by a maximum of two years imprisonment. The object of this offence is to give the jury an intermediate option between a verdict of murder or manslaughter and a complete acquittal.³¹ Thus s 22 allows the jury to return a verdict of concealment of birth on a charge of murder or manslaughter.

INFANTICIDE LAW IN PRACTICE

Offending, charging and conviction patterns

5.21 It is clear that the nature of the crime of infanticide has changed significantly since the late nineteenth century. As the cases involving the death of a newborn illegitimate baby decreased, the numbers of married women killing older children correspondingly increased.³² The offence has come to cover two relatively distinct types of act: neonaticide, where the mother is distressed by the birth but usually not mentally disturbed, and the killing of older babies, where the mother is often seriously disturbed.³³ Wallace classifies cases of child killing into six major categories (1) neonaticide; (2) neglect; (3) battered baby; (4) childbirth depression; (5) murder-suicide and (6) miscellaneous.³⁴ Those cases to which the infanticide provisions would be most applicable - neonaticide, battered baby and childbirth depression - are considered further below.

Neonaticide

5.22 Wallace’s study of all homicide cases in New South Wales between 1968 and 1981 identified 17 cases of homicide of a newborn baby.³⁵ Ten women were charged, one with the death of six babies and two cases were unsolved by police. The typical offender was very young, all but one were single and most lived at home with their families. In every case the pregnancy and the birth were concealed and denial of the pregnancy, both to the woman herself and to others, was a constant factor. In Wallace’s opinion:

Given the strength of the woman’s denial, sometimes right up until the delivery, the subsequent birth of the baby clearly can have a cataclysmic effect on the woman.³⁶

5.23 In very few of these cases was there any evidence of deliberate action by the mother to kill the child. Problems in demonstrating intent to kill, along with the difficulty of establishing the cause of death are evident in the subsequent history of these cases. Three cases were discharged at committal, two were no-billed and two of the women were acquitted. Two were convicted of concealment of birth and only the woman who had killed six babies was convicted of manslaughter. Only she received a prison sentence.

Childbirth depression

5.24 All offenders in this category were young, married women in their twenties. At the time of the homicides all offenders were suffering from severe mental distress and all had received treatment for their condition, most were under medication at the time of the death.³⁷ However, as Wallace points out, social, cultural and economic forces play a decisive role in this post-natal depression.³⁸

Battered baby

5.25 Half of the deaths in this category were children under the age of one year but in most cases the offender was the child’s father or the de-facto spouse of his or her mother.³⁹ The context of such killings was usually one of significant financial, marital and familial stress interwoven with the “belief both in the desirability and legitimacy of the use of physical violence in child rearing”.⁴⁰

Cases covered by the infanticide provisions

5.26 This section considers the cases in which the infanticide provisions were applicable - that is, where a woman kills her child who is under the age of one. By way of background, in her comprehensive study of homicide in New South Wales between the years 1968 and 1981, Wallace found that over eighty percent of all child homicide victims were killed by a parent, with men and women offenders equally represented. Thus she concludes that:

Women’s participation in the deaths of young children is certainly high, but the prevailing myth that child killings are the prerogative only of women is found to be patently wrong. Clearly both men and women are involved in the violent deaths of young children.⁴¹

5.27 The study also found that while 92% of the female offenders had no violent criminal records, the majority of male offenders did.⁴² In addition, over half of the women had had prior professional treatment for a mental disorder, compared with only 20% of the men.⁴³ However it is also clear that over seventy percent of children under the age of one were killed by women.⁴⁴

5.28 According to Landsdowne’s research,⁴⁵ in the years 1976-1980 seventeen women were charged with the homicide of a child under the age of one. Seven were indicted for murder. Of this seven, two pleaded guilty to manslaughter by reason of diminished responsibility and five pleaded guilty to infanticide. No trial was held in four cases and five were charged with manslaughter. In only one case was a woman indicted for infanticide (and she was initially charged with murder). Landsdowne found that:

Infanticide is seemingly regarded, both by prosecution and defence counsel, as a defence to reduce what would otherwise be a murder charge, rather than a substantive offence. It is utilised in a very similar way to the partial defence of diminished responsibility.

5.29 Her conclusion is that the prosecution prefers infanticide as a defence because it places them in a superior bargaining position - a charge of murder encourages the defendant to plead guilty to infanticide. On the other hand, a recent Victorian study has found that although originally charged with murder, all women pleading guilty to infanticide had actually been presented for that offence.⁴⁶

5.30 In conclusion, it is clear that infanticide cases are not common. From 1965 to 1991 there were only 53 recorded homicide cases in New South Wales where the victims were under the age of one and the accused was the victim’s mother. Such cases averaged 2 or 3 per year.⁴⁷ In 1990 there was one charge of infanticide, the offender was found guilty after a defended hearing and received a non-custodial sentence.⁴⁸

Sentence

5.31 In terms of sentencing, Landsdowne⁴⁹ found that there was a significant difference between the sentencing patterns for infanticide and diminished responsibility. All five women convicted of infanticide were placed on good behaviour bonds, usually conditional on acceptance of psychiatric care. Of the seven women convicted of manslaughter (three by assault, two by negligence, two by reason of diminished responsibility), only two were given bonds and both women who pleaded diminished responsibility were given custodial sentences. Later figures back up these findings. Of the five cases between 1982-1984 in which a woman was charged with murder of her child under the age of a year, the two infanticide pleas received bonds, as did one diminished responsibility plea. The other woman who pleaded diminished responsibility was sentenced to seven and a half years imprisonment (reduced to two years on appeal). Landsdowne concludes that :

The disparity in sentencing between infanticide and manslaughter by reason of diminished responsibility is not necessarily explicable by different facts. The disparity is due not so much to particularly harsh sentencing in the diminished responsibility cases, as to consistently lenient sentencing for infanticide.⁵⁰

5.32 This sentencing pattern for infanticidal mothers is born out by two recent English studies. In a survey of the 27 infanticide homicides between 1982 and 1989, Wilczynski and Morris found that 44% of charges were not proceeded with and in almost all of the other cases, the women were given probation orders.⁵¹ Mackay found that of 47 cases of child homicide in England, 4.3% of defendants were charged with murder, 31.9% with infanticide, 27.6% were not charged and 21.3% were charged with manslaughter. In terms of sentence 36.2% of these cases were given probation, 12.8% were given a prison sentence and 8.5% were put under a hospital order. All of the infanticide convictions resulted in either probation or a hospital order.⁵² The Victorian Homicide Prosecutions Study recorded that all five women convicted of infanticide received non-custodial sentences.⁵³

The role of the expert witness

5.33 Landsdowne found that all but one of the psychiatrists’ reports surveyed for her study:

included an opinion as to the legal impact of their medical diagnosis ... strictly this could be said to be an infringement of the common law rule that an expert witness may not be asked the question which the trier of fact itself has to decide ... In practice this objection is never taken.⁵⁴

5.34 She also found that it was problematic for psychiatrists to testify as to the causal link between childbirth and the mental disturbance.⁵⁵ This was because current medical thought regards “post-puerperal” psychoses as no different from any other and because there is no evidence at all that lactation is a cause of mental disorder.⁵⁶ Most psychiatrists were content with establishing a temporal link, a link which falls short of what the statute actually requires.

THE POSITION IN OTHER JURISDICTIONS

Other Australian jurisdictions

5.35 Section 6 of the Victorian Crimes Act⁵⁷ is in substantially similar terms to s 22A. Section 165A of the Tasmanian Criminal Code⁵⁸ and s 281A of the Western Australian Criminal Code⁵⁹ provide for an offence of infanticide but do not specifically provide for its use as a defence to a charge of murder. The Tasmanian provision does not refer to lactation and the Western Australian provision specifically provides that the mental element for infanticide is the same as for wilful murder or murder. There are no infanticide provisions in the Australian Capital Territory, Queensland or South Australia.

England

5.36 The position in the United Kingdom is similar to that in New South Wales with s 22A essentially reflecting the provisions of s 1 of the Infanticide Act 1938. In 1975 the Butler Committee proposed that the section be abolished although subsequent reviews have recommended that it be reformulated. Nevertheless, the provision has remain unchanged since 1938. The reform proposals are discussed below.

New Zealand

5.37 Section 178(1) of the Crimes Act 1961 (NZ) provides as follows:

Where a woman causes the death of any child of hers under the age of ten years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent on childbirth or lactation, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment of a term not exceeding three years.

5.38 It is evident that this section differs from the New South Wales provision in a number of important respects. First, it covers a woman who causes the death of her child under the age of ten. Secondly, it applies where the balance of the defendant’s mind was disturbed by reason of her having given birth to the child killed or to any other child. Thirdly, the provision specifies that the mens rea of the act causing death must otherwise be sufficient for murder or manslaughter. Finally, the maximum penalty for the offence is three years. Note that in R v P⁶⁰ a broad interpretation was given to the phrase “a child of hers” which was said to extend to a child under the legal guardianship of the defendant and treated as part of her family.

5.39 It should be noted that cl 124 of the New Zealand Draft Crimes Bill 1989 provides that in relation to the former crime of infanticide, the jury can return a verdict of culpable homicide with mitigating circumstances if the acts amount to what was formerly infanticide. The penalty is three years.

Canada

5.40 In Canada, infanticide is found in sections 233 and 663 of the Criminal Code. Section 233 provides for an offence of infanticide where a mother causes the death of her “newly born child”.⁶¹ Under s 663 if, on a charge of infanticide, the evidence establishes that the mother caused the death of the child but does not establish that her mind was disturbed or that she was not fully recovered from childbirth it is still possible to convict of infanticide, unless the act was not wilful. This obviates the need for the prosecution to charge the defendant with both murder and infanticide in case these elements cannot be proved. The maximum penalty for the offence is five years.

European jurisdictions

5.41 The House of Lords Select Committee on Murder and Life Imprisonment conducted a survey of the Member States of the Council of Europe with respect to their law of infanticide.⁶² It is difficult to appreciate the actual significance of the presence or absence of an analogous defence without considering the entire law of homicide in the relevant jurisdiction and, in particular, the murder/manslaughter distinction and the penalty for murder. However it is noted that Italy, Norway and Switzerland, for example, recognise child killing as a specific, less culpable form of homicide. On the other hand, Luxembourg provides for more severe penalties for the killing of a child.

OPTIONS FOR REFORM

Option One: retain offence/defence without amendment

Implementation

Infanticide in its current form could be retained without change.

Other recommendations to this effect

The Western Australian Law Reform Commission has recently recommended the retention of s 281A of the Western Australian Criminal Code, which is substantially similar to the New South Wales provision.⁶³

Option Two: abolish offence/defence

Implementation

The second option is to abolish infanticide altogether which could be achieved simply by repealing s 22A. Consideration also could be given to making specific legislative provision that matters currently going to establish the defence should be taken into account in respect of sentence.

Other recommendations to this effect

The abolition of the infanticide offence/defence was suggested by the Butler Committee in England⁶⁴ and the Law Reform Commission of Canada.⁶⁵ In Queensland, where there are no infanticide provisions, the Criminal Code Review Committee concluded that the introduction of the offence was unnecessary given the scope of the diminished responsibility defence.⁶⁶

Option Three: reformulate the offence/defence of infanticide

Implementation

The defence/offence could be reformulated to include some or all of the following points:

1. It has been suggested that, since the medical bases for infanticide are either discredited or unproven, the references to lactation and recovery from birth should be removed from the definition. Thus infanticide could be made out, for example, when the balance of a woman’s mind is disturbed “by reason of the effect of giving birth or circumstances consequent on the birth”.
2. The age limit in respect of the victim could be extended beyond one year.
3. The offence could extend to children above the age limit if killed at the same time as children within the age limit.
4. A specific statutory offence of attempted infanticide could be introduced.
5. It could be clarified that the defence applies to a woman charged as an accessory.
6. The mens rea could be specified as being the mens rea for murder or manslaughter.
7. The burden of proof could be clarified where infanticide is used as a defence.
8. Consideration could be given to extending infanticide to fathers, other carers and adoptive parents.
9. The penalty may need to be reconsidered. At present it is the same as manslaughter. Perhaps a lower maximum sentence would be more appropriate.

Other recommendations to this effect

Option Three was the option favoured by the English Criminal Law Revision Committee reporting in 1980.⁶⁷ The Committee’s recommendation was that the references to lactation and recovery from birth should be removed from the definition; that the act leading to death must have otherwise amounted to murder or manslaughter; that there be no change to the age of the children killed and that there be an offence of attempted infanticide. The burden of proof was recommended to be placed on the prosecution and the maximum recommended penalty was five years. The Committee’s recommendations form the basis of cl 64(1) of the Draft Criminal Code proposed by the Law Commission of England and Wales:


A woman who, but for this section, would be guilty of murder or manslaughter of her child is not guilty of murder or manslaughter but is guilty of infanticide, if her act is done when the child is under the age of 12 months and when the balance of her mind is disturbed by reason of the effect of giving birth or of circumstances consequent upon birth.⁶⁸



The Victorian Law Reform Commission also has recommended that infanticide be retained and reformulated.⁶⁹ The reformulated offence would require the mens rea for murder or manslaughter, it would be limited to natural mothers acting as the principal offender or under the principles of complicity and the offence would be made out if “the balance of [the defendant’s mind] is disturbed by reason of the effect of giving birth or circumstances consequent on that birth”. This mental disturbance must be “a substantial enough reason to reduce the offence to infanticide”. The age of the children is not extended and a maximum penalty of five years is recommended. The burden of negativing the elements of the defence should be expressed to lie on the prosecution. Finally, the Report recommended that infanticide should operate as a defence to a charge of murder, attempted murder, manslaughter, child destruction and attempted child destruction.

DISCUSSION OF THE OPTIONS

Should infanticide be retained in one form or another or should it be abolished altogether?

5.42 Infanticide is unnecessary in a jurisdiction with a discretionary murder sentence and/or a defence of diminished responsibility. The argument in favour of abolition is that the offence is unnecessary in a jurisdiction with a discretionary murder sentence and/or a defence of diminished responsibility. New South Wales currently has both. Most of the cases with which it deals could be caught by the defence of diminished responsibility. Abolition would avoid multiplication of offences. Even without regard to diminished responsibility, in a jurisdiction with a discretionary sentence for murder, community demands for leniency could be given expression in terms of sentence. The retention of infanticide is merely sentiment because, without a mandatory death penalty, juries will no longer refuse to convict of murder.

5.43 Despite suggestions that infanticide is unnecessary where there is a discretionary murder penalty, it is noted that the choice of a new offence, labelled “infanticide” rather than murder or manslaughter, was historically very important. In particular, the distinction from murder enabled increasingly lenient sentencing.⁷⁰ It may be particularly inapt to label infanticidal mothers “murderers”. These are defendants who are unlikely to reoffend, unlikely to have prior convictions and are often very disturbed people.

5.44 Further, despite the suggestions that infanticide is unnecessary in a jurisdiction with a defence of diminished responsibility, it can be convincingly argued that the scope of diminished responsibility and infanticide are not the same. First, research indicates there are infanticide cases involving mental conditions which diminished responsibility will not cover. Mackay’s research in England found that while in some cases the psychiatrists thought that both infanticide and diminished responsibility would be available there were many other cases where this was clearly not so.⁷¹ He concludes that his research:

lends no support to the fact that diminished responsibility is either being widely used in cases which might otherwise be infanticide or that as it stands the [diminished responsibility provisions] would safely cover all cases which presently fall within the [infanticide] provisions”.⁷²

5.45 Secondly, unlike diminished responsibility, the infanticide offence enables the prosecution to charge the defendant with the offence directly rather than having to face a murder trial. Recent English and Victorian research shows that this is indeed the dominant way in which infanticide convictions were obtained.⁷³ On the other hand, New South Wales research found that women were usually indicted for murder and were encouraged to plead guilty to infanticide.⁷⁴ Thirdly, by charging infanticide, the prosecution concedes the mental disturbance which the defence then does not have to prove. Indeed Mackay’s research indicates that in all cases the medical evidence was conceded by the prosecution.⁷⁵ Finally, there have been found to be significantly different sentencing patterns for infanticide and diminished responsibility cases.⁷⁶

5.46 Infanticide rests on antiquated medical ideas. The second argument in favour of abolishing infanticide is that the offence rests on antiquated medical ideas of post-puerperal psychosis. Most killings of young children are based on depression, stress and other environmental factors consequent on childbirth or child rearing. This is no doubt true but it ignores the fact that the medical model was never scientifically established and was never the real reason for the introduction of the legislation. It was simply a relatively uncontentious way to justify the courts’ lenient treatment of infanticidal mothers.⁷⁷ It is perhaps worth making the policy reasons behind the infanticide offence explicit - that is, that community expectations require merciful treatment of homicide offenders in certain situations, of which this is one.

5.47 Infanticide is problematic for women. The third argument for abolition of the offence is that infanticide is problematic for women. Some feminists criticise the link between a woman’s biology, particularly with respect to reproduction, and criminal responsibility.⁷⁸ They also criticise the “medicalisation” of the experiences of women in these situations. On the other hand, it can be quite plausibly argued that infanticide is a specific solution to an identified problem. The offence was initially introduced as a response to the refusal of juries to convict of murder in cases where women killed their infants. Thus the community recognises the special nature of these cases. The offence recognises a specific form of human tragedy and “encapsulates the sympathy” society feels for women who kill in these situations.⁷⁹ It retains the special protection offered to women offenders and recognises the specific problems and strains associated with childbirth.

5.48 Infanticide may lead to inappropriate convictions. Fourthly, it is possible that a plea of infanticide may lead to convictions in cases in which acquittals may be appropriate. This is because the woman might be encouraged to plead guilty to the lesser charge of infanticide in circumstances in which, had she gone to trial for murder or manslaughter, she might have been acquitted.

5.49 Infanticide is an anachronism. Finally, it is argued that infanticide is rarely used and that it is not worth retaining an offence or defence which is essentially an anachronism and which has so little application. In response it is contended that there are some values and community expectations which take precedence over tidy classification. If infanticide is abolished there is always the possibility that juries will again refuse to convict infanticidal mothers of murder or manslaughter. In light of clear public sympathy for such women, the law should not again be allowed to become a “solemn mockery”.

Should the offence/defence of infanticide be amended?

5.50 It may be argued that there is little point in amending the infanticide offence because it is so rarely used and because infanticide cases almost invariably proceed by way of guilty pleas. Thus, problematic areas do not arise for consideration in practice. This is not a convincing argument. If infanticide is to be retained, it is surely preferable that its elements are as clear and as unproblematic as possible.

5.51 Legal problems such as the onus of proof (suggestion 7), the requisite mental state (suggestion 6) and questions of attempt and conspiracy (suggestions 4 and 5) are dealt with by the suggestions indicated in Option Three. In addition, the lower penalty (suggestion 9) accords more nearly with the actual sentences imposed for infanticide. These changes are clearly desirable.

5.52 However, the other suggestions raise more difficult issues. Although reformulation in the terms suggested (suggestion 1) will alleviate problems relating to the scientific bases for the defence by removing references to abnormality consequent on lactation, it still relies on a model that directly links childbirth to abnormality of mind rather than allowing that post-natal depression, for example, can go towards establishing the more general diminished responsibility defence. In addition, the use of infanticide where the balance of a woman’s mind is disturbed by circumstances surrounding birth removes the defence from the medical realm into the social realm. It recognises that societal pressures are instrumental. Once this is recognised there is no justification for restricting the infanticide provisions to natural mother - fathers, other carers and adoptive parents would also be subject to the same pressures. However, such an extension (suggestion 8) broadens the scope of infanticide far beyond its historical roots and beyond what the community may be prepared to accept. Indeed, it seems that while lenient treatment for infanticidal mothers is socially accepted, men who kill their children or step-children receive little sympathy.

5.53 Amending the age limit of the victim is also problematic (suggestion 2). It has been argued that the age distinction is arbitrary and that there is no evidence to indicate that the effects of childbirth - medical or social - cease after 12 months. On the other hand, empirical evidence suggests that the age limit accords with experience - children are far more likely to be killed by their mothers when they are under one year old.⁸⁰ Even if it is arbitrary, there is no reason why any other age (the age limit in New Zealand, for example, is 10 years) should be any less arbitrary. However, if there is no age limit, the connection to birth becomes very weak and consequently extends beyond the historical roots of the defence.

5.54 The other problem with the current legislation is that it does not cover older children killed at the same time even where their deaths arise out of the same condition of mind as the deaths of the younger children. However, changing this situation is fraught with difficulty (suggestion 3). It is contended that there is no justification for the current restriction, and if the mind of the woman was disturbed by reason of the birth of one child, this state of mind is equally present with respect to the killing of that or any other child. On the other hand, if the woman’s state of mind was disturbed, what justification is there for restricting the category of victims covered by the provisions to her own children?

1. K Laster “Infanticide: A Litmus Test for Feminist Criminological Theory” (1989) 22 Aust & NZ Journal of Criminology 151 at 152.

2. J Osborne “The Crime of Infanticide: Throwing Out the Baby with the Bathwater” (1987) 6 Canadian Journal of Family Law 47 at 49.

3. Osborne at 49.

4. 21 Jac I c 27.

5. R Landsdowne “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41 at 43; Osborne at 50-51.

6. 43 Geo 3 c 58.

7. Offences Against the Person Act 1828 (UK) s 14; Offences Against the Person Act 1861 (UK) s 60.

8. See, for example, Crimes Act 1900 (NSW) s 22 and 85.

9. Osborne at 49-50.

10. Laster at 154.

11. J Allen “Octavius Beale reconsidered: Infanticide, baby-farming and abortion in NSW 1880-1939” in Sydney Labour Group (ed) What Rough Beast? The State and Social Order in Australian History at 121, extracted in D Brown, D Farrier, D Neal, D Weisbrot Criminal Laws (The Federation Press, 1990) at 719-720.

12. Allen at 124 notes that police often had the same class origins as the working class women who killed their infants and understood their lack of options.

13. Quoted in D Seaborne Davies “Child Killing in English Law” [1937] Modern Law Review 203 at 219.

14. Landsdowne at 44. Seaborne Davies writes that every advantage was taken of the technicalities of proof involved in the definition of a “person in being”, at 221.

15. Seaborne Davies at 219.

16. N Walker Crime and Insanity in England Vol 1 (Edinburgh University Press, 1968) at 128 points out that it was established Home Office practice to advise the commutation of the death penalty. The last execution of an infanticidal mother took place in 1849.

17. Sir James Fitzjames Stephen, cited in Walker at 128; Seaborne Davies at 221. It is interesting to note that the criminal codes of Medieval Europe regarded infanticide as a particularly heinous form of murder because of the vulnerable nature of the victim, see Walker at 126.

18. Seaborne Davies at 221.

19. Osborne at 52.

20. See Allen at 124-5; Seaborne Davies at 221.

21. Osborne at 53.

22. Brown et al at 720. For a history of other reform proposals leading up to the Act, see Walker at 129-131.

23. Seaborne Davies quoting Keating J at 220.

24. K O’Donovan “The Medicalisation of Infanticide” [1984] Criminal Law Review 259 at 261.

25. (1927) 20 Cr App R 132.

26. (1985) 157 CLR 523.

27. See the studies quoted in A Wilczynski “Images of Women Who Kill Their Infants: The Mad and the Bad” (1991) 2 Women and Criminal Justice 71 at 75.

28. Committee on Mentally Abnormal Offenders Report of the Committee on Mentally Abnormal Offenders (Home Office, 1975) (The Butler Report); Criminal Law Review Committee Offences Against the Person (Report 14, 1980); O’Donovan at 263; P d’Orban “Women Who Kill Their Children” (1979) 134 British Journal of Psychiatry 560.

29. See Walker at 134-5.

30. R v Yigwai and Aku [1963] PNGLR 40; R v Brigitta Asamakan [1964] PNGLR 193. See D Chalmers, D Weisbrot and W Andrew Criminal Law and Practice of Papua New Guinea (2nd ed, Law Book Company, 1985) at 450-1. The Infanticide Act 1953-1956 was subsequently incorporated into the Papua New Guinea Criminal Code 1974 and now appears as s 301.

31. B Fisse Howard’s Criminal Law (5th ed, Law Book Company, 1990) at 113.

32. See the studies cited by Landsdowne at 46.

33. Landsdowne at 47. A Wallace in Homicide the Social Reality (New South Wales Bureau of Crime Statistics and Research, 1986) at 117 also makes the point that neonaticide can be regarded as a specific and distinct type of crime.

34. Wallace at 116-117. There are various other classifications, see for example d’Orban at 561.

35. Wallace at 117-120.

36. Wallace at 118.

37. Wallace at 129.

38. Wallace at 130.

39. Wallace at 124-125.

40. Wallace at 127.

41. Wallace at 114.

42. Wallace at 115.

43. Wallace at 115.

44. Wallace at 114.

45. Landsdowne at 48ff.

46. Victorian Law Reform Commission Homicide Prosecutions Study (Report 40, Appendix 6, 1991) at para 109. Note the criticism of Barry J in Hutty [1953] VLR 338 at 339 that the prosecution should not present for murder where infanticide is indicated.

47. New South Wales Bureau of Crime Statistics and Research, unpublished data.

48. New South Wales Bureau of Crime Statistics and Research, unpublished data.

49. Landsdowne at 59-60.

50. Landsdowne at 60.

51. A Wilczynski and A Morris “Parents Who Kill Their Children” [1993] Criminal Law Review 31 at 34-35.

52. R Mackay “The Consequences of Killing Very Young Children” [1993] Criminal Law Review 21. See also the earlier research of d’Orban whose study of matricidal filicides found that half of those convicted received medical dispositions while only 13% received custodial sentences all of which (apart from two murder convictions) ranged from 18 months to 3 years. Of those convicted of infanticide only 2 out of 23 received custodial sentences, while 18 were put on probation. See d’Orban at 566-7.

53. Homicide Prosecutions Study at para 140.

54. Landsdowne at 50.

55. Dr W Barclay Oral Submission (8 July 1993) who has given evidence in infanticide cases also commented on this issue.

56. Landsdowne at 50-52.

57. Introduced in 1949.

58. Initially in similar terms to the 1922 English Act, s 165A was amended in 1973 to introduce a 12 month age limit following R v Taylor [1969] Tas SR 1 in which the offence found to be inapplicable in respect of a three month old child.

59. Inserted as recently as 1986. The maximum penalty is 7 years.

60. [1991] 2 NZLR 116.

61. Defined in s 2 as a person under the age of one year.

62. House of Lords Select Committee on Murder and Life Imprisonment Report (1989).

63. Western Australian Law Reform Commission The Criminal Process and Persons Suffering From Mental Illness (Project 69, Report 1991) at para 2.60.

64. The Butler Report recommended that, if the Crown was allowed to lay a charge of diminished responsibility, infanticide should be abolished, at para 19.27.

65. Canada Law Reform Commission Homicide (Working Paper 33, 1984).

66. Criminal Code Review Committee Final Report (1992) at 195.

67. Criminal Law Review Committee Offences Against the Person (Report 14, 1980) at para 114.

68. England and Wales Law Commission A Criminal Code for England and Wales (Report 177, 1989).

69. Victorian Law Reform Commission Mental Malfunction and Criminal Responsibility (Report 34, 1990) recommendation 28.

70. Walker at 134.

71. Mackay at 29.

72. Mackay at 30. These findings back up the earlier research of d’Orban who found that the “degree of abnormality [in infanticide cases] is much less than that required to substantiate abnormality of mind” under s 2 of the Homicide Act, at 570. See also Wilczynski (1991).

73. Mackay at 29; VLRC Homicide Prosecutions Study.

74. Landsdowne at 49.

75. Mackay at 29.

76. Landsdowne at 60.

77. This point is made by Osborne at 58.

78. See, for example, Laster (1989); K Laster “Infanticide and Feminist Criminology: ‘Strong’ or ‘Weak’ Women?” (1990) 2 Criminology Australia 14; H Allen “At the mercy of her hormones: premenstrual tension and the law” (1984) 9 m/f 19, as extracted in Brown et al at 710ff; J Scutt Women and the Law (Law Book Company, 1990) at 409ff.

79. S Norrish QC Oral Submission (30 June 1993).

80. Wallace at 126.