Infanticide Defence

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Infanticide is the act of killing a child. In the criminal law, it serves both as an offence and a defence. It is provided for in s 22A of the Crimes Act 1900 (NSW):

  • Offence - the test for infanticide is:
    • Where a woman causes the death (due to act or omission) of a child under 12 months old, where at the time of the offence she was disturbed by reason of her not having recovered from the effect of the birth or lactation, she will be guilty of infanticide and treated as if she had been guilty of the offence of manslaughter: s 22A (1).
    • Must be proven beyond reasonable doubt
  • Defence - a defendant, if able to satisfy the test above, may have a murder charged reduced to a manslaughter charge.
    • Defence raises an evidentiary burden, then prosecution must disprove beyond all reasonable doubt.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 555-559.

Introduction

[1] Infanticide occurs when a women by an act or omission causes the death of her child, who is under a year old. Infanticide functions as both an offence as well as a defence:

  • Offence - infanticide is an offence, which for sentencing purposes is treated as if it is manslaughter.
  • Defence - where a woman is being charged for murder, and the circumstances are fitting to a case of infanticide, she can argue infanticide as an alternative to murder, thus reducing the the sentence as if it was brought down to manslaughter. It can thus be seen as a partial defence.

Provisions

Infanticide is provided for in s 22A of the Crimes Act 1900 (NSW). The section can be summarised as follows:

  • s 22A (1) deals with the offence and the test for infanticide. The test is as follows:
    • Where a woman causes the death (due to act or omission) of a child under 12 months old, where at the time of the offence she was disturbed by reason of her not having recovered from the effect of the birth or lactation, she will be guilty of infanticide and treated as if she had been guilty of the offence of manslaughter.
    • s 22A (2) with the defence, restating the above test and saying that a jury is entitled to return a verdict of infanticide as opposed to murder if the test is satisfied.

A few other procedural principles should be kept in mind:

  • If the prosecution argues infanticide, it will need to prove it beyond all reasonable doubt.
  • If the defence argues infanticide, it will need need to raise an evidentiary burden and then the prosecution will need to negate it beyond all reasonable doubt.

Commentary

[2] In practice, infanticide is only really used as an offence.

  • The prosecution usually charges for murder, which is then bargained down to infanticide with a guilty plea.
  • Jury trials for infanticide are therefore pretty rare. There are in fact, no reported judgments of infanticide.

Reform Proposals

[3] The offence/defence of infanticide are now seen as dated. Whilst agreeing that the law should treat with such cases with leniency, The NSWLRC has pushed for the abolition of the provisions because of the following reasons:

  • It is no longer necessary as a means of mitigating culpability because of the 'diminished responsibility' (now the substantial impairment defence) provisions which have the same effect (reducing murder to manslaughter) and could be extended to include infanticide cases.
  • The validity of the medical principles which founded infanticide (some special physiological disturbance in women caused by lactation etc) are now widely questioned.
  • The ideological basis is also called into question - infanticide reflects an anachronistic and sexist view of women.
    • It is a gender-specific law which is based on the notion that women are naturally susceptible to mental instability etc. The law should not continue to reflect such views.
  • The laws of infanticide are too restrictive - they apply to only to women, only to biological mothers, and only to children below 12 months old.
    • This is too stems from the notion that it is the act of child birth which is the sole cause of mental instability, but rather it is the stresses of child-caring etc which adoptive parents and males also undergo.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 555-7.
  2. R Landsowne, 'Child Killing and the Offence of Infanticide: The Development of the Offence and its Operation in New South Wales 1976-1980', UNSW LLM thesis (1987) in Textbook, p 556.
  3. NSWLRC, Provocation and Infanticide Report No 83 (1997) in Textbook, pp. 558-9.
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