Crime, as the violation of law, challenges the very foundations of the social order, thereby making its control and punishment one of the most vital functions of the modern state. One of the key elements of establishing criminal responsibility for an offence is the “exercise of the person’s will” towards the commission of the offence. As is evident from this, any intervening conditions which hamper or otherwise affect the “exercise of will” – such as mental illness – are bound to have a bearing on the outcome of the prosecution.
The problem currently under scrutiny outlines a scenario where a woman, driven by mental disturbances following parturition, repeatedly smothers her baby leading eventually to its death. Following an outpouring of public sympathy in favour of the woman, the State Government is prompted to consider the creation of a sui generis defence protecting women who commit infanticide.
This article explores the matrix of legal issues surrounding the proposed introduction of a substantive offence (and defence) of “infanticide” into the Criminal Code of Queensland.
Specifically, the following wording has been suggested:
“A woman who by any wilful act or omission, causes the death of her child (being a child under the age of 12 months), and who was at the time not fully recovered from the effect of giving birth to the child, and the balance of her mind being, by reason thereof, disturbed, is guilty of a crime, which is called infanticide, although, the offence would, but for this section, have amounted to murder.”
Drawing upon an assessment of similar provisions in other jurisdictions, it is argued that the introduction of such a law in Queensland is necessary. Furthermore it is considered whether the availability of the “Diminished Responsibility” defence under Queensland law and the establishment of Mental Health Courts in Queensland to decide the state of mind of persons charged with offences makes the introduction of a new offence/defence of infanticide unnecessary. However, relying on recommendations of a recent report of the Law Commission of the United Kingdom, the claim for maintaining a distinct offence of infanticide is found to be valid.
History of Infanticide
The Law Reforms Commission of the State of New South Wales in its 83rd Report on “Partial Defences to Murder: Provocation and Infanticide” offers an interesting socio-legal account of infanticide from the middle ages to the early 20th century. Tracing the history of infanticide in England and Australia from its roots as a primitive method of “population control”, to early legal attempts of controlling the practice in the 17th century by penalizing “concealment of birth” , the Report sheds light on the extent to which infanticide was regarded as ‘commonplace’.
“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”
It is educative in this context to refer to the account provided in the report, of the fate these “reproduction-related crimes” suffered. Thus, the report states that although the law itself was severe, indictment rates were relatively low and actual convictions extremely rare. This was because of indifferent policing and a reported reluctance on the part of juries and judges to convict while the offence was punished capitally. Factors that contributed to this reluctance to convict included perceptions such as ones that held that “because the victims were children, their loss was considered to be inestimable and therefore less” or that “because of generally high infant mortality rates, the death of children was not uncommon and this may have made a deliberate killing more acceptable”.
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