What is Infanticide in the Criminal Law?

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By Paul Gregoire and Ugur Nedim

A mother living in North Strathfield held her six-month-old baby’s head under the water in a bathtub on 18 November 2010, until the child stopped breathing. The woman then called triple zero to report that her daughter had fallen from her bath seat and drowned.

Despite the operator pleading with the mother to go back into the bathroom to retrieve her baby from the water, all the woman kept saying was “I can’t go in there”. And later that same day, the mother was admitted into the psychiatric ward of Concord Hospital.

At trial, the NSW Supreme Court heard that for months the woman had been obsessed about her baby having dwarfism or some other genetic disorder. And psychiatrists testified that within 24 hours of giving birth, her prior schizoaffective disorder spiralled into postpartum psychosis.

The woman’s barrister argued that a custodial sentence shouldn’t be imposed, as “no court could ever inflict a punishment greater than the death of her daughter, by her”. And on 19 May 2017, Justice Robert Beech-Jones sentenced the woman to a four year good behaviour bond.

The 41-year-old mother’s legal representation explained that his client had pleaded to the charge of manslaughter, and not that of infanticide – which a case like this would usually entail – because the unnamed woman’s mental health condition had pre-existed before the child’s birth.

Infanticide in NSW

The offence of infanticide is similar to manslaughter. And it operates in much the same way that manslaughter relates to the offence of murder. Section 18 of the Crimes Act 1900 (NSW) stipulates that murder occurs when someone purposefully causes or omits to prevent the death of another.

Whereas, manslaughter is the offence of killing a person without meaning to. Cases of manslaughter can include circumstances where a person kills another without the intention of doing so, or where they were provoked to an extent that they flew into a rage and temporarily lost self-control.

Section 22A of the Crimes Act of the Crimes Act contains the offence of infanticide. It involves a woman killing her own child, when it’s under the age of 12 months old. But, at the time of doing so, the mother wasn’t in her right frame of mind due to giving birth or the effects of lactation.

So, where a woman would usually be convicted of murder, the offence can “be dealt with and punished as if she had been guilty of the offence of manslaughter”. And if a jury finds a woman guilty under these circumstances, she can be punished with the same penality that manslaughter carries.

The maximum penalty for infanticide, as is the case with manslaughter, is 25 years imprisonment.

In Australia, women who do take the lives of their babies under the age of 12 months old aren’t usually charged with infanticide, rather they’re initially charged with murder. Then infanticide is argued as a partial defence to the crime of murder, in a similar way to the partial defence of provocation.

Unwarranted capital punishment

Australian infanticide laws are based on similar measures in the UK, which are set out in the Infanticide Act 1938. This Act was passed, in acknowledgement that women who were taking the lives of their children in their first year were often in a disturbed state of mind due to childbirth.

Back then in Britain, murder was punishable by death, specifically hanging. And authorities were concerned that women not in their right frame of mind following childbirth, were being put to death due to a mental condition. And they asserted the crime should be treated like manslaughter.

The passing of the 1938 Act, actually abolished the 1922 Infanticide Act, which had been brought in under similar circumstances, but only applied to women who had taken the lives of their babies straight after childbirth.

Infanticide in Australia

The Australian jurisdictions of NSW, Victoria, Tasmania and Western Australia, all passed similar acts based upon the 1938 UK laws. WA was the last state to enact the offence in 1986. And on the recommendation of the local law commission, it repealed it in 2008.

The Victorian Law Reform Commission reviewed the offence in 2004. It came to the conclusion it should be kept on the books, and the period as to how it applied should be extended to 24 months, which is how it now stands.

The NSW Law Reform Commission recommended that infanticide be abolished back in 1997. But, this suggestion has never been acted upon. And hence, infanticide is still a separate crime in our state.

NSW decriminalised abortion

Australian academic Caroline Ingram in her history of infanticide, argues that these laws were enacted in times when women who had “illegitimate” children were frowned upon, and when times were tough, so the economic burden of a child could be a disaster for a single mother.

However, Ingram states that now “contraception and abortion are easily accessible and the social stigma of having children outside marriage has disappeared”, perhaps infanticide laws have lost their relevance.

Whether one agrees with Ingram or not, her argument certainly shoots down the claims of Tony Abbott and Barnaby Joyce who both argued that decriminalising abortion in this state last September was akin to “infanticide on demand”.

Non-custodial sentences

The NSW woman who drowned her young baby in 2010 was given a good behaviour bond, while another woman, who pleaded guilty to murdering her four-mouth-old child last May, was sentenced to life imprisonment in WA, where the crime of infanticide no longer exists.

Justice Carolyn Simpson presided over the 2001 NSW Supreme Court case R versus Cooper, in which she sentenced a woman to a four year good behaviour bond for the infanticide of her seven-month-old daughter.

Her Honour explained that while the court recognises “the gravity of offences of homicide”, infanticide recognises “a perceived phenomenon relating to the effects, in some instances, of childbirth”. And in these cases, “a different approach to sentencing” is appropriate.

Infanticide is rarely argued in the NSW criminal justice system. Statistics show that between January 2006 and June 2017, there had only been one conviction. And the offender received a suspended sentence.

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