This article will be discussing England and Wales’ stance on Infanticide law and why it is problematic. However, before beginning a basic introduction and background of this law is needed.
An Introduction and History Lesson
Infanticide is the crime of a mother killing her child within a year of birth. According to section 1 of the Infanticide Act 1938, the ‘actus reus’ (doing act) of infanticide is when a woman, by wilful act or omission causes the death of her child whom is under twelve months old. The mens rea (mental element) requires that the act or omission at the time was caused by the balance of her mind being disturbed, by her not fully recovering from the effects of childbirth or lactation resulting from childbirth. It acts as a ‘double edged’ sword as it acts as both offence and potential defence to defendants. This is because, as Howard identified, it offers a potential lower penalty.
In the era the Act was created, mothers would kill their infants out of desperation when they were birthed out of wedlock due to the public shaming and exclusion they may face as a single mother, as noted by Frost. This law surrounding infanticide was therefore created to allow illegitimate mothers escape the death penalty as, at this time, the death penalty was not abolished. Hence, in many Infanticide cases, juries would find mothers ‘not guilty’ in order to escape the death penalty which was mandatory for murder (per Law Commission). This clearly caused moral and social issues as it would be allowing mothers whom committed the acts of murder to hold no accountability or punishment for their actions as Howard identified. However, since the abolition of the death penalty in 1965 the use of this defence/offence is low.
England and Wales’ Current Stance on Infanticide Law
The law on Infanticide was amended ever so slightly in 1938, over 80 years ago. The amendment widened the causes for a disturbance of the mind. This now included that the minds disturbance can be caused by the effects of lactation resulting from childbirth. This widens the requirements and use of this offence/defence meaning that more and more defendants can receive lower penalties. However, there has been no further amendments made despite the numerous criticisms of the Act.
Outdated and Lacks Scientific Backing
Section 1(1) Infanticide Act 1938 states that the defendants’ disturbed mind can be caused by the effects of childbirth or the effects of lactation. This is an outdated piece of legislation because it lacks scientific backing that there is a link between lactation and a disturbed mind, yet this aspect of the Act is still included. The link between disturbance of the mind and childbirth itself is indisputable as evidenced by postnatal depression (a disturbance of the mind which alters the brain chemistry, caused by the effects of childbirth/pregnancy). However, in regard to this link being apparent between lactation and a disturbed mind, there is no backing to support this claim. Critics of this legislation suggest that the Act should “no longer [be] considered to have any medical science” (per Law Commission). These are fair and valid criticisms. Our understanding and knowledge of mental health is expanding every day; however, this should not excuse the fact that we have legislative pieces like infanticide that are bluntly outdated.
Gender Bias
The Act has also been criticised for being biased towards women because the Act specifies its defendants as mothers. This piece of legislation fails to acknowledge that fathers can also experience postpartum depression. By having this gender bias, some feminists would suggest that this piece of law is pathologizing female acts, portraying them as ‘mad, not bad’ (per Nicholson and Bibbings). This is a difficult criticism to consume, as whilst I understand that the Act is female centred, this is not necessarily a bad thing as potentially opening the scope of types of defendants would allow for the Act to be misused in situations of infant abuse by both parents etc.
Leniency
The Act’s leniency is also a key part of the criticism it receives, for numerous reasons. Firstly, there is no definition for a 'disturbance of the mind'. This causes issues in terms of consistency and the scope of the offence/defence because no guidance has been given to the jury in finding/not finding this key element. Secondly, there is no requirement to find a causal link between the disturbance of the mind and the killing. This is problematic because it essentially allows the mother to just claim a disturbance of the mind, yet not have to prove it as shown in Tunstill (per Loughnan). The final reason for criticisms of leniency is the fact that the Act treats the defendant like the victim, yet for other crimes like murder, we treat the defendants as only defendants, not as victims of childbirth or anything else. Some would even suggest that this Act is no different to diminished responsibility and therefore it ought to be abolished due to the similarities and clear leniency on the defendants. This is a valid criticism as the Act is clearly too lenient and this makes it an extremely rare piece of law, especially considering the absence of the need to prove such claims.
Why Has the Law Not Changed?
Whilst there has been no explicit explanation as to why the law around infanticide has not been amended, we can speculate. It is suspected that it is due to it not taking priority as the offence/defence is rarely used compared to other areas of law. This can be further emphasised by the fact that, in recent months, emergency legislation surrounding the COVID-19 pandemic has needed to be passed through Parliament urgently.
In the Future?
It is unlikely that this legislation will be amended or abolished in the coming years due to its lack of priority and use across England and Wales. However, having said this, if it were to be amended, I do firmly believe that the amendments would be drastic due to the significant amount of outdated information/scientific knowledge it would need to replace/remove.
Very interesting and well-researched piece! Great job