INTRODUCTION
3.1 In New South Wales, legislation provides for infanticide as both a substantive criminal offence and as a partial defence to murder. Briefly, a woman may be convicted of infanticide instead of murder if she kills her baby aged less than 12 months while suffering from a mental disturbance which results from giving birth or breast-feeding. Legislation dealing with infanticide also exists in Tasmania, Victoria and Western Australia, as well as in New Zealand, Canada, and the United Kingdom.1 New South Wales is the only Australian jurisdiction which has both a defence of diminished responsibility and an offence/defence of infanticide.2
3.2 The legislative provisions for infanticide in both New South Wales and elsewhere are based on the United Kingdom’s Infanticide Act 1938.3 That Act was introduced after a number of attempts in the 19th century to find an appropriate legal means for dealing with women who killed their babies. At that time, such incidents were said to be reasonably frequent, due in part to the oppressive social and economic conditions which unmarried mothers commonly faced, such as the stigma of illegitimacy, poverty, loss of employment, and desertion by their parents and by the child’s father.
3.3 In theory, child killing at that time amounted to murder, for which the mandatory penalty was death. In practice, however, there was a marked reluctance on the part of the police to prosecute women who killed their babies, as well as on the part of juries to convict these women of murder.4 Even where a murder conviction was returned, both the jury and the judge were likely to recommend mercy, which usually meant that the death penalty was commuted. This lenient attitude on the part of both law enforcers and the general community was said to be due in part to sympathy for the social and economic conditions which unmarried mothers faced, as well as a perception that these women did not pose a threat to the general public, since their crime was confined to the killing of their own children.
3.4 By the end of the 19th century, there had been a number of attempts to formulate a means of avoiding the death penalty in cases of child killing without requiring the prosecution, judges and juries to circumvent the law in order to exercise mercy. Judges in particular objected to having to pronounce the death penalty in such cases, knowing that mercy would almost invariably be exercised. As a consequence of these attempts at reform, an Infanticide Act was introduced in 1922, which was the predecessor of the 1938 Act. The Infanticide Act 1922 (UK) applied to cases where a woman killed her “new-born child” and provided a partial excuse for such offenders based on the notion that they suffered from puerperal psychosis, the most severe form of mental disorder associated with childbirth. This medical model of child killing did not allow overt consideration of the socio-economic factors leading to infanticide. A woman convicted of infanticide was sentenced as if for manslaughter. The Infanticide Act 1922 (UK) was repealed and replaced by the Infanticide Act 1938 (UK), which featured two key changes, namely an amendment in the reference to the victim from a “new-born child” to a child less than 12 months old, and the addition of “lactation” as a ground of mental disturbance, thus allowing the medical basis for excusing infanticide to extend beyond the first few weeks of the child’s life.
3.5 The New South Wales provisions dealing with infanticide were introduced in 1951 and were modelled on the Infanticide Act 1938 (UK).5 At that time in New South Wales, there was a mandatory sentence for murder. Conviction for infanticide allowed the judge to sentence a woman as if for manslaughter, which carried with it a discretionary sentence. The infanticide provisions were therefore said to offer a humane means of dealing with women who became “temporarily deranged” as a result of the after-effects of childbirth.6
3.6 In practice, the offence/defence of infanticide may provide a partial excuse for child killing in a range of different types of cases: for example, where a young single woman conceals her pregnancy and kills her baby within hours of giving birth; where a woman, suffering from post-natal depression or some other mental illness which may or may not have been apparent before her pregnancy, kills her baby shortly after the birth; or where a woman, faced with severe social and economic stresses, kills her baby several months after the birth.7 In some of these cases, it may not be immediately apparent that the offender suffered from a mental disturbance directly attributable to giving birth or to the effects of lactation.
3.7 The infanticide provisions in New South Wales are now very rarely used. For the period 1990 to 1996, only two convictions for infanticide were recorded.8 Its infrequent use, together with more fundamental criticisms of its underlying ideological and medical rationales, have led several to question whether the offence/defence of infanticide should be retained. In this chapter, the Commission discusses the arguments for and against retaining infanticide and recommends that infanticide be abolished in New South Wales. We anticipate that the defence of diminished responsibility will apply to those child killings currently falling within the legal definition of infanticide.
CURRENT OPERATION OF INFANTICIDE
3.8 As we noted in paragraph 3.1, infanticide operates as both an offence and as a partial defence to murder in New South Wales. Where a woman kills her baby, the prosecution may charge her with the offence of infanticide. If she is convicted of that offence, she is sentenced as if she had been found guilty of manslaughter. Alternatively, the prosecution may charge the woman with murder, in which case infanticide may be raised as a partial defence. If successful, the defence will result in a verdict of infanticide. Again, the woman is then sentenced as if she had been found guilty of manslaughter. The maximum penalty for manslaughter is penal servitude for 25 years.9
3.9 The law relating to infanticide is contained in s 22A of the Crimes Act 1900 (NSW). That section reads:
(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 that 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 upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of 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 such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that 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 the 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.
3.10 The elements of infanticide may therefore be summarised as follows:
- the accused must be the natural mother of the victim;
- the victim must be less than twelve months old; and
- at the time of the killing, the accused must have been suffering from a mental disturbance which resulted from her not having recovered from giving birth to the victim or from the effect of lactation consequent upon the victim’s birth.
3.11 Where infanticide is raised as a partial defence to a charge of murder, all of the elements of murder must be established, including an intention to kill or cause grievous bodily harm, or a reckless indifference to human life. In contrast, where infanticide is used as a substantive offence, it is not clear whether the prosecution is required to prove any specific intent on the part of the accused in causing the victim’s death, such as an intention to kill. Section 22A(1) does not refer to any such requirement, although it seems likely that some form of “mens rea” or intention would be presumed by law to be an element of the offence.10
3.12 Where a woman is charged with the offence of infanticide, the burden of proof rests with the prosecution to prove beyond a reasonable doubt that all the elements of the offence are established. In contrast, where infanticide is raised by the accused as a defence to murder, the legislation does not specify whether it is the prosecution who must disprove, or the accused who must prove, that the defence of infanticide is established.11
3.13 Although infanticide may be raised as a substantive offence, it appears that, in practice, it tends to operate more as a defence to a charge of murder.12 Convictions for infanticide are generally obtained by way of the prosecution’s acceptance of a plea of guilty to infanticide following an indictment for murder, rather than by a jury’s verdict following a trial.13 In his submission to the Commission, it was suggested by the (then) Director of Public Prosecutions that one reason why infanticide is not used as a substantive offence is because the prosecution would then be required to prove as part of its case that the accused suffered from a disturbance of the mind.14 Presumably, if that element was not established, the accused would be acquitted.
ABOLITION OF INFANTICIDE
3.14 In DP 31, the Commission considered a proposal to abolish the offence/defence of infanticide in New South Wales.15 While the majority of submissions did not support this proposal,16 we conclude that infanticide should be abolished and recommend accordingly, for the reasons that follow. It is important to note that we base our recommendation on the assumption that the defence of diminished responsibility is retained and reformulated in terms similar to those recommended by the Commission in its reformulation of that defence.17
3.15 The Commission considers that women who kill their children in states of significant mental disturbance should not be convicted of murder. It is appropriate that, given the usually tragic circumstances which characterise infanticide cases, the law should treat such women with leniency. This leniency should not be reflected simply in a reduced sentence for murder, but in conviction for a lesser offence which conveys a lesser degree of culpability.
3.16 Despite our view that women who kill their children in states of severe mental distress should not be convicted of murder, we recommend that the offence/defence of infanticide be abolished. Our reasons for this may be summarised as follows. Essentially, we consider that infanticide is no longer necessary as a means of mitigating culpability because the defence of diminished responsibility is now available as a partial defence to reduce murder to manslaughter where an offender kills in a state of significant mental impairment. We consider that the defence of diminished responsibility is a more appropriate means of reducing culpability than infanticide, because infanticide is based on unsound and outmoded notions of mental disturbance, reflects an anachronistic view of women, and is arbitrarily restrictive. The social, medical and legal bases on which the infanticide provisions were originally modelled have all been called into question in recent times. The more general defence of diminished responsibility is now available for women whose responsibility for killing their children is reduced by reason of mental impairment.
3.17 In the section which follows, the Commission discusses in more detail the reasons why we consider that infanticide should be abolished. We then address the main objections to abolishing infanticide and give our reasons why we do not find these objections sufficiently compelling to warrant retaining the offence/defence of infanticide.
Arguments for abolishing infanticide
Availability of the defence of diminished responsibility
3.18 The Commission considers that the defence of diminished responsibility is sufficient to meet all deserving cases currently coming within the legislative provisions for infanticide. If this view is accepted, then the offence/defence of infanticide is unnecessary for the purpose of reducing culpability from murder in cases where a woman’s responsibility for killing her child is impaired by reason of a disturbed mental state.
3.19 The legislative formulation of infanticide requires that a woman killed her child while “the balance of her mind was disturbed” by reason of her not having fully recovered from the effect of giving birth or by reason of the effect of lactation. In contrast, the defence of diminished responsibility, as it is currently formulated, requires the accused to have suffered from an “abnormality of mind” which substantially impaired his or her mental responsibility for the killing. The abnormality of mind must be caused by either a condition of arrested or retarded development of mind, or any inherent causes, or induced by disease or injury.18 Under the Commission’s recommended reformulation of the defence of diminished responsibility, an accused would be required to prove that he or she suffered from an “abnormality of mental functioning arising from an underlying condition”. It would need to be established that the abnormality of mental functioning substantially impaired the accused’s capacity either to understand events, or to judge whether his or her actions were right or wrong, or to control himself or herself.19
3.20 Following the Commission’s recommended reformulation of diminished responsibility, an accused woman who, for example, kills her child in a severely depressed state would be required to show that her mental processes at the time of the killing were disturbed as a result of that depression in a way which affected her capacity to judge, to understand, or to control herself. She would not be precluded from pleading the defence of diminished responsibility simply because, for example, her depression was not permanent, or did not result directly from the effects of childbirth.
3.21 Despite the apparent flexibility of the defence of diminished responsibility to accommodate infanticide cases, a number of concerns have been expressed in the past in response to a similar proposal in the United Kingdom to abolish infanticide.20 Some commentators have suggested that the defence of diminished responsibility would not be wide enough to cover all infanticide cases and, in particular, that the mental disturbance required under the offence/defence of infanticide is of a less severe degree than that required by an “abnormality of mind” under the defence of diminished responsibility as it is currently formulated.21
3.22 In part, some of these concerns appear to be based on a misconception of the requirements of the defence of diminished responsibility.22 Moreover, one study suggests that, whatever the situation in the United Kingdom, the defence of diminished responsibility as it operates in New South Wales should be adequate to accommodate infanticide cases. That study revealed that, based on psychiatric evidence, the infanticide cases in New South Wales recorded between 1976 and 1980 could also have been dealt with by way of the defence of diminished responsibility. It is suggested in that study that the defence of diminished responsibility may be interpreted more liberally in New South Wales than it is in the United Kingdom.23
3.23 It is evident that, in most respects, the defence of diminished responsibility as it operates in New South Wales is much broader than the offence/defence of infanticide. For example, the defence of diminished responsibility is not restricted to a specific group of offenders or victims, or to a certain type of mental impairment, as is the offence/defence of infanticide. This means that the defence of diminished responsibility is available to a wider range of offenders than is the offence/defence of infanticide. Moreover, providing the Commission’s recommended reformulation of diminished responsibility is adopted into legislation, an accused person will not be required to identify a specific cause of his or her mental impairment, namely that the impairment arose as a result of an arrested or retarded development of mind, an inherent cause, or a disease or injury. Therefore, women who kill their children in states of mental distress would not need to establish a specific diagnosis of their condition in order to meet the statutory requirements of the defence of diminished responsibility.
3.24 Despite the generally wider availability of the defence of diminished responsibility, some commentators have suggested that the offence/defence of infanticide is more accessible to women who kill their children because it is not generally interpreted by the courts and by medical experts as requiring proof of a severe psychiatric disorder.24 Indeed, some women seemed to have received the benefit of an infanticide conviction where there has been no evidence of any persisting psychiatric disturbance.25
3.25 The defence of diminished responsibility does not necessarily require a severe or permanent psychiatric disorder. It may apply to a temporary and curable condition, provided that condition is not merely a transitory state of, for example, heightened emotions. However, it has been argued that the defence of diminished responsibility may potentially be narrower than the offence/defence of infanticide in one respect, namely that it requires a causal connection between the accused’s mental impairment and the killing of the victim, in so far as it must be shown that the mental impairment substantially impaired the accused’s responsibility for his or her actions. In contrast, under the existing formulation of infanticide, there is no express requirement to show that the accused’s mental disturbance actually caused her to kill her child. It simply requires that the accused killed while “the balance of her mind was disturbed”. The absence of any express causal requirement is said to give the offence/defence of infanticide considerable flexibility.26
3.26 While the defence of diminished responsibility may be more restrictive than infanticide in so far as it requires proof of a substantial causal connection, the Commission does not consider that this places too heavy a burden on female offenders who seek to be partially excused for killing their children. It is central to notions of individual responsibility in our criminal law that culpability for serious offences be reduced according to whether that culpability was impaired by reason of, for example, mental illness or mental impairment. If a woman kills her child while suffering from a significant mental impairment, she should be able to rely on the defence of diminished responsibility to be partially excused. If she is unable to show that her responsibility for her actions was substantially impaired by reason of mental impairment, then the law should not apply a lower standard to measure her culpability by allowing her to be excused under the offence/defence of infanticide. While it is important that the law continue to recognise those cases of child killing which occur in tragic circumstances and which invoke our sympathy for the offender, that can be done more appropriately through the application of uniform standards by way of the defence of diminished responsibility.
Unsoundness of medical basis
3.27 In addition to the availability of the defence of diminished responsibility, there are inherent difficulties in the offence/defence of infanticide itself which justify its abolition. These difficulties arise, in part, from the unsoundness of the medical principles on which infanticide is based. The offence/defence of infanticide requires the existence of mental disturbance resulting from the effects of lactation or the effects of giving birth. The validity of these medical principles has been widely questioned.
3.28 In relation to the first ground of mental disturbance, it seems now to be generally doubted that there is any medical basis for the notion of “lactational insanity”.27 Inclusion of lactation as a ground of mental disturbance within the infanticide provisions appears to have been based primarily on a desire to provide a medical justification for extending infanticide beyond the first few weeks of birth.28 Other jurisdictions have since proposed a reformulation of infanticide which omits any reference to lactation as a ground for mental disturbance, on the basis that such a notion is of dubious validity.29
3.29 In relation to the second ground of mental disturbance, it has been suggested that, in reality, the offence/defence of infanticide is applied to very few women suffering from post-puerperal psychosis, which is the mental illness resulting from the effects of giving birth. It is argued that the infanticide provisions more often apply to women suffering conditions which result from the psychological and social stresses of childbirth and child-raising, or from pre-existing mental conditions.30 For example, for a number of women who suffer depression after giving birth, it may be arguable whether their depression is aggravated rather than caused by the birth, and may be induced by or equally attributable to other factors such as marital discord, lack of support, or financial worries. It has been suggested that as a result of the restrictions on the types of mental disturbance giving rise to the offence/defence of infanticide, medical experts are often forced to distort their diagnoses in order to conform with the requirements of the legislation.31
3.30 If infanticide were subsumed into the general defence of diminished responsibility, this would have the advantage of not limiting the type of mental disturbance which might give rise to the defence. For example, if a woman killed her child while in a state of severe depression, the success of raising the defence of diminished responsibility would not depend on whether or not that condition could be said to be the direct result of the effects of giving birth. In this way, the defence of diminished responsibility should be more widely accessible to women who kill their children in states of mental distress than is the offence/defence of infanticide. Moreover, the defence of diminished responsibility would not require medical experts to distort their diagnoses in order to reflect what are essentially outmoded notions of mental illness in childbirth.
Unsoundness of ideological basis
3.31 A second ground for contending that infanticide is no longer an appropriate means of dealing with women who kill their children relates to the unsoundness of its ideological basis. The offence/defence of infanticide may be seen to reflect an anachronistic and paternalistic view of women. As we have already noted, the current legislative provisions are based on a medical model of infanticide which explains child killing by women in terms of mental disturbance resulting directly from reproduction. Women are given special treatment by way of a gender-specific law based on the notion that they are naturally susceptible to mental instability as a result of giving birth. Arguably, this conveys a conception of women as inherently unstable because of their biology.32 This special treatment may be seen to reinforce an image of women as essentially weak, pitiable, and not responsible for their actions. For example, the introduction of the infanticide legislation in New South Wales was described at the time as recognising that:
[w]omen are, by ordinance of nature, subject to certain fundamental disabilities. The Attorney-General, in creating this new offence ... has done something for the status of women in this country.33
3.32 While special treatment in the criminal justice system may benefit individual female offenders, we must question the wider consequences of a law which makes specific concessions to women based on a notion of inherent “disabilities”. There is also concern that female offenders who do not fit easily into the stereotype of women as weak and frail victims of their biology may be condemned as “bad mothers” and punished much more severely.34
3.33 Arguably, the law should not seek to perpetuate the image of women which is inherent in the offence/defence of infanticide. If there were no legal alternative for dealing with women who kill their children in mentally disturbed states, then it might be necessary to retain infanticide despite its unsound ideological basis. However, the defence of diminished responsibility is now available to women who kill their children in states of mental distress, whether as a result of giving birth or whether as a result of other factors and stresses. The defence of diminished responsibility does not single out women on the basis of any notion of their particular vulnerability to mental illness due to their biology.
The restrictive nature of the infanticide provisions
3.34 A third inherent difficulty with infanticide relates to the restrictive nature of the infanticide provisions, which can arguably lead to arbitrary results.
3.35 The offence/defence of infanticide applies only to women, and only to those killings where the offender is the natural mother of the victim aged less than 12 months. These restrictions reflect the medical principles on which infanticide is based, namely that women who have recently given birth may suffer mental disturbance as a result. However, as discussed in the previous section, there now seems to be a large body of evidence suggesting that mental disturbance following childbirth may often be the result of a pre-existing illness or of the social and psychological stresses of child-caring, rather than necessarily always the direct result of the effects of giving birth. It may therefore be argued that there are other groups of offenders who may be equally susceptible to the same stresses and illnesses and who should not be excluded from the offence/defence of infanticide, such as, for example, women who kill their children aged more than 12 months,35 adoptive parents or other people who are the primary carers of children, and male offenders.36 Restricting the availability of the offence/defence of infanticide may arguably lead to some illogical and arbitrary results. For example, in the case of a woman who is suffering from severe depression and kills her two children, one aged less than 12 months and the other aged more than 12 months, the offence/defence of infanticide may apply to the killing of the first child, but not to the second, despite the fact that both killings were committed in a state of significant mental disturbance.
3.36 The justification for the present restrictions on the availability of infanticide depends on the view that mental illness amongst women who kill their children must necessarily result from childbirth. As we have discussed, however, that view has been questioned on both medical and ideological bases. Some of the submissions which supported the retention of specific infanticide legislation accepted that the restrictions in the current infanticide provisions may potentially be arbitrary and illogical. However, instead of abolition, they propose that infanticide be reformulated to widen its application to, for example, women who kill their children aged more than 12 months.37 The Commission does not support this proposal. In our view, to extend the offence/defence of infanticide to other groups of offenders or victims would be to remove infanticide from the biological connection on which it is currently based. If that connection is removed, then it may be argued that any restrictions which are imposed on the availability of infanticide must potentially be arbitrary and discriminatory, since in theory any person may be susceptible to mental disturbance attributable to factors such as severe stress. Given that the biological connection on which infanticide is based appears now to be one of a number of possible factors which lead some women to kill their babies, it seems preferable, in our view, to allow all cases of child-killing in which the question of mental disturbance is raised to rely on the defence of diminished responsibility or, in exceptional cases, on the defence of mental illness.38 These defences impose no restrictions on eligible offenders or victims, but instead allow proper consideration of the impact of mental impairment on each individual offender’s culpability.
Arguments for retention
3.37 Despite the criticisms discussed above, the majority of submissions which the Commission received did not support the abolition of infanticide. This accords with the view taken in a number of jurisdictions which have favoured retaining specific infanticide legislation.39 It is worth noting, however, that in a number of those jurisdictions, the defence of diminished responsibility is not available. One argument against abolishing infanticide is a perception that the defence of diminished responsibility would not be adequate to accommodate all infanticide cases. The Commission has already addressed this objection at paragraphs 3.18-3.26. The following arguments are also commonly advanced to support the retention of the offence/defence of infanticide:
- advantages in recognising women’s experiences by way of a specific criminal offence/defence;
- procedural advantages of retaining a separate offence/defence; and
- sentencing disparities between infanticide and manslaughter.
Advantages of retaining a gender-specific offence/defence
3.38 It may be asserted that, even if the defence of diminished responsibility is adequate to accommodate cases currently falling within the infanticide provisions, it is important to retain a separate criminal offence/defence which recognises the particular experiences and difficulties which women commonly face following childbirth and in child-raising. “Infanticide” is a term which may be used to acknowledge these experiences.40
3.39 Arguably, whatever the cause, women do commonly suffer depression following childbirth and are particularly susceptible to a range of external stresses relating to motherhood, such as poverty, isolation, and lack of support.41 Although the legislation explains infanticide in medical terms, in reality, these external stresses are taken into account in assessing the offender’s mental disturbance. It has been proposed by some that the legislation should be widened so that these stresses might be openly considered.42 Indeed, one submission suggested that the offence/defence of infanticide should be widened to the extent that women’s actions are taken out of the category of mental illness and are instead viewed as valid responses to what, for some mothers, are intolerable social and economic conditions.43
3.40 If infanticide were subsumed into the defence of diminished responsibility, the special problems faced by women with children would cease to be recognised by way of a separate offence/defence. The defence of diminished responsibility would focus attention on individual women’s mental states rather than on the special pressures commonly experienced by women which may have led to that state.44
3.41 The Commission recognises that, to an extent, reliance on a general defence of diminished responsibility focuses attention on the individual’s mental state rather than on the special problems, including social stresses, which women may face when raising children. However, this does not mean that the stresses commonly associated with motherhood cannot be considered within the defence of diminished responsibility, particularly as reformulated according to the Commission’s recommendation, if these stresses can be shown to give rise to an “abnormality of mental functioning”. It is true that, by abolishing a specific defence which relates solely to women, particular attention to the special problems which women face is reduced and the individual’s mental state is emphasised, rather than the social factors which contributed to that state. However, the alternative, which is to retain a separate offence/defence of infanticide, is a less favourable option. As it is currently formulated, infanticide offers some women special treatment in a way which simply perpetuates a paternalistic view of women as victims of their own biology. As we discussed in paragraphs 3.31-3.33, we do not consider it desirable that the law reinforce this conception of women in contemporary society. If infanticide were reformulated according to a socio-economic model, rather than a medical model, then it would run contrary to ordinary principles of individual responsibility which underlie the criminal law to allow social or economic factors in themselves to be used as a defence to killing. No other crime is excused on the basis of social or economic necessity or adversity alone. To permit an exception to this general principle for women may benefit certain individuals but ultimately reinforces a view of women as especially weak and vulnerable because of their sex.
Procedural advantages
3.42 In theory, there may presently be procedural advantages for the accused in retaining a specific offence/defence of infanticide. Women who kill their babies may be charged with the substantive offence of infanticide, rather than murder. An important advantage of this is that it permits the accused to avoid the trauma of a murder charge and the prospect of standing trial for murder, and also leaves the burden of proving the elements of the offence of infanticide with the prosecution. In contrast, diminished responsibility may only be raised as a defence to a charge of murder, which means that if a woman kills her child in a state of substantial mental disturbance, she may potentially be charged with murder, and may then have to face the prospect of a murder trial in which she bears the burden of proving that the defence of diminished responsibility is established.45 These may appear to be significant disadvantages in abolishing the offence/defence of infanticide.
3.43 In practice, however, as we discussed in paragraph 3.13, it appears that infanticide is almost never used as a substantive offence, with most accused being charged with murder and then having a plea of guilty to infanticide accepted by the prosecution. The prosecution has a similar power to accept a plea of guilty to manslaughter where a woman is charged with murder and there is clear evidence of mental disturbance.46 In addition, the prosecution may choose to exercise its discretion by laying an indictment for manslaughter, instead of murder, where it is clear that the accused suffered from an impaired mental capacity. Given the prosecution’s power to accept pleas and the prosecutorial discretion in laying indictments, female offenders would not be disadvantaged as a result of the procedural consequences of abolishing the offence/defence of infanticide.
Sentencing disparities
3.44 It has been argued that infanticide should be retained if only for the pragmatic reason that, if it were abolished, sentences imposed on women who kill their children may increase.47 This argument is based on a perceived disparity in sentences for infanticide as opposed to manslaughter.
3.45 While the same maximum statutory penalty applies to both manslaughter and infanticide, there is empirical evidence to suggest that conviction for infanticide ensures the imposition of a more lenient sentence. For example, in New South Wales between 1990 and 1996, there were two convictions recorded for infanticide and both led to the imposition of non-custodial sentences.48 This result is consistent with sentencing patterns in other jurisdictions.49 In contrast, conviction for manslaughter in New South Wales for the same period did not necessarily result in the imposition of a non-custodial sentence, sentences instead ranging from good behaviour bonds to more than 20 years’ penal servitude.50 Moreover, in two manslaughter cases involving child killing in New South Wales, judges have noted that sentencing may differ depending on whether an offender is convicted of manslaughter or infanticide.51 However, these comments need to be considered in the context of the particular facts involved, since neither case involved manslaughter on the basis of diminished responsibility, and in both cases the level of culpability was arguably quite high.
3.46 It may be contended that women who kill their young children often do so in tragic circumstances as a result of a condition such as severe depression, and should be treated with leniency by the law. If infanticide were abolished, then based on past sentencing patterns, it may be suggested that the leniency currently afforded to these women could not be guaranteed.
3.47 The Commission is not convinced that sentences currently imposed for infanticide would necessarily increase if those same women were convicted of manslaughter. Manslaughter generally attracts a wide range of sentences reflecting both a high level and a low level of culpability. Consequently, existing sentencing statistics can only be of limited assistance in providing guidance for sentences for manslaughter.52 Certainly, courts have a wide discretion to impose a non-custodial sentence for manslaughter where this is appropriate in the circumstances of the individual case, including manslaughter on the basis of diminished responsibility. One factor which may influence a decision not to impose a reduced sentence for manslaughter on the basis of diminished responsibility is if an offender’s mental disorder makes him or her a continuing danger to the general community. This consideration is likely to be of less relevance in cases where a woman has killed her infant owing to a condition such as post-natal depression. The largely varying nature of cases falling within the single offence of manslaughter, together with the wide sentencing discretion inherent in the sentencing process for manslaughter, means that it is difficult to make accurate estimations or comparisons of sentences imposed for manslaughter cases. Courts would assess the facts of cases currently falling within the infanticide provisions and would have the discretion to impose the most appropriate sentence in light of the special mitigating factors of those cases. Where the offender’s culpability is significantly reduced by reason of mental disturbance, there is certainly scope under sentencing principles for manslaughter to impose a substantially reduced sentence, including a non-custodial sentence.
FOOTNOTES
1. See Crimes Act 1958 (Vic) s 6; Crimes Act 1961 (NZ) s 178; Criminal Code (Canada) s 233, 237, 663; Infanticide Act 1938 (UK) s 1. In Tasmania and Western Australia, legislation provides for infanticide as an alternative offence to murder, but does not make it available as a defence to murder: see Criminal Code (Tas) s 165A; Criminal Code (WA) 281A.
2. See Crimes Act 1900 (NSW) s 22A, 23A. Overseas, the United Kingdom also has both a defence of diminished responsibility and an offence/defence of infanticide: see Homicide Act 1957 (UK) s 2; Infanticide Act 1938 (UK) s 1.
3. For a more detailed history of infanticide, see, for example, N Walker, Crime and Insanity in England (University Press, Edinburgh, 1968) chapter 7; L Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (Stevens and Sons Limited, London, 4 volumes, 1948) volume 1 at 430-436; volume 4 at 337; J Allen, “Octavius Beale Re-Considered: Infanticide, Babyfarming and Abortion in NSW 1880-1939” in Sydney Labour History Group (ed), What Rough Beast? The State and Social Order in Australian History (Allen and Unwin, Sydney, 1982) chapter 5; R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41 at 43-47; D Seaborne Davies, “Child-Killing in English Law” [1937] Modern Law Review 203; A Wilczynski, Child Homicide (Greenwich Medical Media Ltd, London, 1997) chapter 6.
4. For example, the jury might adopt the view that the child had been still born, or had died in the course of childbirth, or had been killed accidentally.
5. See Crimes Act 1900 (NSW) s 22A, introduced by the Crimes (Amendment) Act 1951 (NSW) s 2(d).
6. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 26 September 1951, at 3225.
7. See, for example, R v Hutty [1953] VLR 338, and cases discussed in the following infanticide studies: R D Mackay, “The Consequences of Killing Very Young Children” [1993] Criminal Law Review 21; A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 190-191; R Bluglass, “Infanticide and Filicide” in R Bluglass and P Bowden (eds), Principles and Practice of Forensic Psychiatry (Churchill Livingstone, Edinburgh, 1990) at 523-529. Child homicide may be broadly classified into two types: the killing of a new born child within the first few hours of life; and the killing of a child who is more than one day old. These categories are commonly referred to as “neonaticide” and “filicide” respectively. Filicide may be subcategorised into five groups: parents who kill an unwanted child; mercy killing; aggression attributable to gross mental pathology; stimulus arising outside the victim; stimulus arising from the victim. Each group tends to display distinct offender characteristics: see R Bluglass, “Infanticide and Filicide” in R Bluglass and P Bowden (eds), Principles and Practice of Forensic Psychiatry (Churchill Livingstone, Edinburgh, 1990) at 525.
8. Figures taken from the Judicial Commission’s Judicial Information Research System.
9. Crimes Act 1900 (NSW) s 24.
10. See He Kaw Teh v The Queen (1985) 157 CLR 523.
11. It would seem consistent with the defences of mental illness and diminished responsibility, and with the underlying presumption of sanity, if the burden of proof for the defence of infanticide rested on the accused. There are, however, no cases in New South Wales which address this issue, while two cases in Papua New Guinea have stated that the burden of disproving the defence of infanticide lies with the prosecution: see the decisions of the Supreme Court of Papua New Guinea in R v Yiwagi and Aku [1963] PNGLR 40; R v Brigitta Asamakan [1964] PNGLR 193. Similarly, the Law Reform Commission of Victoria recommended that the burden of disproving the defence of infanticide should rest on the prosecution: see Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility (Report 34, 1990) recommendation 28.
12. This practice runs contrary to the recommendation made in one case that infanticide be used as a substantive offence where this is appropriate in light of the evidence of the particular case: see R v Hutty [1953] VLR 338.
13. See R Lansdowne, “Child Killing and the Offence of Infanticide: The Development of the Offence and its Operation in New South Wales 1976-1980” (Thesis submitted for the Degree of Masters of Laws, University of New South Wales, 1987) at 96.
14. See R Blanch, Submission (7 September 1993) at 1.
15. New South Wales Law Reform Commission, Provocation, Diminished Responsibility and Infanticide (DP 31, 1993) at 129-132.
16. Only one submission was in favour of abolishing infanticide: see I H Pike, Submission (3 November 1993) at 4. Those submissions which supported the retention of infanticide were: M L Sides, Submission (17 December 1993) at 4; A Wilczynski, Submission (23 September 1993) at 1; Women’s Legal Resources Centre, Submission (3 December 1993) at 5-6; S Yeo and S Odgers, Submission (29 October 1993) at 7-8; P Easteal, Submission (14 September 1993) at 3; Law Society, Submission (28 October 1993) at para 2.2; Legal Aid Commission, Submission (2 February 1994) at 2; R Blanch, Submission (7 September 1993) at 1. While these submissions considered that infanticide should be retained, they proposed that it be reformulated.
17. See New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility (Report 82, 1997) recommendation 4.
18. See Crimes Act 1900 (NSW) s 23A(1); NSWLRC Report 82 at paras 3.5-3.9, 3.31-3.43.
19. NSWLRC Report 82 recommendation 4.
20. England and Wales, Committee on Mentally Abnormal Offenders, Report of the Committee on Mentally Abnormal Offenders (HMSO, London, Cmnd 6244, 1975) at para 19.22.
21. See England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at paras 102-103; P T d’Orban, “Women Who Kill Their Children” (1979) 134 British Journal of Psychiatry 560 at 570; R D Mackay, “The Consequences of Killing Very Young Children” [1993] Criminal Law Review 21 at 29; A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 187-188.
22. For example, it has been argued that some women convicted of infanticide would not be able to meet the definition of “mental disorder” in the Mental Health Act 1983 (UK) s 1 (or similarly, in its predecessor, the now repealed s 4, Mental Health Act 1959 (UK)). It is contended that an accused person must be able to satisfy this definition in order to rely on the defence of diminished responsibility, and that consequently some women relying on the infanticide provisions would be excluded from pleading diminished responsibility: see A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 187; A Wilczynski, Child Homicide (Greenwich Medical Media Ltd, London, 1997) at 157; Submission of the Royal College of Psychiatrists to the Criminal Law Revision Committee (England and Wales) in its report, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at paras 105. In fact, the defence of diminished responsibility as provided for in s 2 of the Homicide Act 1957 (UK) does not require the accused to prove a mental disorder as defined in the Mental Health Act 1959 (UK) or the Mental Health Act 1983 (UK). There was a proposal in England and Wales in 1975 that the defence of diminished responsibility be reformulated to require proof of a mental disorder as defined in s 4 of the Mental Health Act 1959 (UK) (now repealed and replaced by s 1 of the Mental Health Act 1983 (UK)): see England and Wales, Committee on Mentally Abnormal Offenders, Report of the Committee on Mentally Abnormal Offenders (HMSO, London, Cmnd 6244, 1975) at para 19.17. That proposal has not been adopted into legislation.
23. See R Lansdowne, “Child Killing and the Offence of Infanticide: The Development of the Offence and its Operation in New South Wales 1976-1980”, (Thesis submitted for the degree of Masters of Laws, University of New South Wales, 1987) at 24-25, 29.
24. R D Mackay, “The Consequences of Killing Very Young Children” [1993] Criminal Law Review 21 at 29; P T d’Orban, “Women Who Kill Their Children” (1979) British Journal of Psychiatry 560 at 570.
25. See, for example, the case studies in R Bluglass, “Infanticide and Filicide” in R Bluglass and P Bowden (eds), Principles and Practice of Forensic Psychiatry (Churchill Livingstone, Edinburgh, 1990) at 525-526.
26. See Bluglass (1990) at 527; A Wilczynski, Child Homicide (Greenwich Medical Media Ltd, London, 1997) at 165.
27. See, for example, the evidence of the Working Party of the Royal College of Psychiatrists in England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at para 105; R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41 at 52.
28. See N Walker, Crime and Insanity in England (University Press, Edinburgh, 1968) at 132.
29. See England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at 47; Law Commission of England and Wales, Criminal Code for England and Wales (Law Com 177, 1989) cl 64(1); Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility (Report 34, 1990) recommendation 28 and at para 166. The Tasmanian provision dealing with infanticide makes no reference to lactation: see Criminal Code (Tas) s 165A.
30. See, for example, P T d’Orban, “Women Who Kill Their Children” (1979) 134 British Journal of Psychiatry 562; A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 187; England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at paras 102-105; England and Wales, Committee on Mentally Abnormal Offenders, Report of the Committee on Mentally Abnormal Offenders (HMSO, London, Cmnd 6244, 1975) at paras 19.23-19.24; R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41 at 51-59; R D Mackay, “The Consequences of Killing Very Young Children” [1993] Criminal Law Review 21 at 29-30.
31. R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41 at 54.
32. See, for example, R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41 at 41; A Morris and A Wilczynski, “Parents who kill their Children” [1993] Criminal Law Review 31 at 35; K Laster, “Infanticide and Feminist Criminology: ‘Strong’ or ‘Weak’ Women?” (1990) 2 Criminology Australia 14 at 15 & 18; K O’Donovan, “The Medicalisation of Infanticide” [1984] Criminal Law Review 259; A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 207-214. This argument contrasts with the view taken in one submission, which suggested that if a woman suffers from post-natal depression, this is a real medical entity and should be recognised as such by the court: see P Easteal, Submission (14 September 1993) at 3. The Commission does not dispute the fact that some women suffer from post-natal depression. However, we consider that it is more appropriate if illnesses such as post-natal depression be recognised by way of the defence of diminished responsibility.
33. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 27 September 1951, at 3275.
34. See K Laster, “Infanticide and Feminist Criminology: ‘Strong’ or ‘Weak’ Women?” (1990) 2 Criminology Australia 14 at 15 & 18; A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 208-209.
35. Cf Crimes Act 1961 (NZ) s 178(1) & (2), which extends the offence/defence of infanticide in certain circumstances to women who kill their children aged under 10 years.
36. Empirical studies indicate that child homicide in Australia is committed to at least an equal extent by men: see for example H Strang, “Children as Victims of Homicide” (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice, number 53, 1996) (study based on police records across Australia for the period July 1989 to December 1993); A Wallace, Homicide: The Social Reality (NSW Bureau of Crime Statistics and Research, Research study number 5, 1986) chapter 9 (study based on NSW police files for the period 1968-1981). The Judicial Commission’s study on homicide offenders in New South Wales between 1990 and 1993 reported that 84% of child homicide offenders were male, where “child” is defined as a person under 18 years of age: Donnelly, Cumines and Wilczynski (1995) at 25. However, several studies have suggested that there are qualitative differences in child killings by men as opposed to women: men are said typically to commit abuse-type killings, in the course of discipline and out of anger or jealousy, whereas women are more likely to kill in a mentally disturbed and depressed state: see Strang (1996); A Wilczynski, “Why Do Parents Kill Their Children?” (1994) 5 Criminology Australia 12; A Wilczynski and A Morris, “Parents Who Kill Their Children” [1993] Criminal Law Review 31.
37. M L Sides, Submission (17 December 1993) at 7; P Easteal, Submission (14 September 1993) at 3; Legal Aid Commission, Submission (2 February 1994) at 2. In contrast, two submissions in favour of specific infanticide legislation opposed the proposal to extend such legislation to children aged more than 12 months: see S Yeo and S Odgers, Submission (29 October 1993) at 8; Law Society, Submission (28 October 1993) at para 2.4.1.
38. The defence of mental illness may be an inappropriate means of dealing with women who kill their children in states of temporary mental disturbance, largely because of the consequences of being “acquitted” by reason of the defence of mental illness. In reality, an “acquittal” usually means being placed in custody in prison or hospital as a forensic patient: see Mental Health Act 1990 (NSW) s 81(2)(b) and 82, with recent amendments under the Mental Health Legislation Amendment Act 1997 (NSW) Sch 1.2[1], [2] and Sch 2.
39. England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) at para 107; Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility (Report 34, 1990) recommendation 27.
40. S Yeo and S Odgers, Submission (29 October 1993) at 7.
41. See S Yeo and S Odgers, Submission (29 October 1993) at 7; M L Sides, Submission (17 December 1993) at 4. See also, for example, L Reece, “Mothers Who Kill: Postpartum Disorders and Criminal Infanticide” (1991) 38 UCLA Law Review 699 at 754-757; K Laster, “Infanticide and Feminist Criminology: ‘Strong’ or ‘Weak’ Women?” (1990) 2 Criminology Australia 14 at 15.
42. See Women’s Legal Resources Centre, Submission (3 December 1993) at 5-6. See also England and Wales, Criminal Law Revision Committee, Offences Against the Person (Report 14, HMSO, London, Cmnd 7844, 1980) recommendation 114 and at paras 105-106; Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility (Report 34, 1990) recommendation 28.
43. Women’s Legal Resources Centre, Submission (3 December 1993) at 5-6.
44. See A Wilczynski, “A Socio-Legal Study of Parents Who Kill Their Children in England and Wales” (Dissertation submitted for the Degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993) at 208.
45. The Commission considered the question of whether legislation should permit indictments to be laid for manslaughter on the basis of diminished responsibility, but concluded that such a provision would be unnecessary: see NSWLRC Report 82 at paras 3.103-3.105.
46. See Crimes Act 1900 (NSW) s 394A.
47. See, for example, R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41; D Maier-Katkin and R Ogle, “A Rationale for Infanticide Laws” [1993] Criminal Law Review 903; A Wilczynski, A Socio-Legal Study of Parents Who Kill Their Children in England and Wales (Dissertation submitted for the degree of Doctor of Philosophy in Criminology, University of Cambridge, 1993).
48. Information taken from the Judicial Commission’s Judicial Information Research System.
49. See, for example, A Wilczynski and A Morris, “Parents Who Kill their Children” [1993] Criminal Law Review 31 and D Maier-Katkin and R Ogle, “A Rationale for Infanticide Laws” [1993] Criminal Law Review 903, which examine child homicide statistics in England and Wales for the periods 1982-1989 and 1982-1988 respectively. See also R Lansdowne, “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Monash University Law Review 41, which examines cases of child killings by female offenders in New South Wales between 1976 and 1980.
50. See the Judicial Commission’s Judicial Information Research System.
51. See R v Sempel (Court of Criminal Appeal, NSW, 31 March 1994, CCA 60126/93, unreported); R v Grierson (Court of Criminal Appeal, NSW, 28 October 1996, CCA 60276/96, unreported).
52. See R v Withers (1925) 25 SR (NSW) 382; R v Hill (1981) 3 A Crim R 397; R v Schelberger (Court of Criminal Appeal, NSW, 2 June 1988, CCA 254/87, unreported); R v Troja (Court of Criminal Appeal, NSW, 16 July 1991, CCA 606394/90, unreported); R v Morabito (1992) 62 A Crim R 82.
