Infanticide as a Charge and a Defense

Infanticide in Australia Infanticide is the act or practice of killing newborns or infants. It has been committed or performed in every continent and in every level of culture from the poorest hunters and gatherers to the richest and most advanced classes of people and from the time of our ancestors to modern age (Milner 1998).

The act or practice has been so rampant that there is enough evidence on record to show that it has been more the rule than an exception and this evidence reflects that parents themselves kill their infants under distressing and stressful situations. The practice or act was so frequent in England in the 19th century that both the medical and the private communities had to think of ways to control the crime (Milner) described by medical practitioners as savage in a contradiction to human progress.

But infanticide is not a modern creation. It was committed or practiced not only in barbaric periods but also during the Golden Age of Greece and splendor of the Persian Empire (Milner 1998). Poverty and population control have been the most significant motives behind infanticide since prehistoric times. When food supply became short and starvation was feared, restricting or reducing the number of survivors to adult was a measure resorted to.

The evolution scientist Charles Darwin believed that infanticide, especially of female infants, was performed to check the proliferation of early populations (Milner). Many see female infanticide as part of the growing prejudice against females by male-dominated societies or cultures, which viewed female infanticide as a means to population check and survival. This prejudice against women and female infants or sexism was evident as well as prominent in Arabia before the birth of Mohammed in 570 (Milner 1998).

Its paternalistic society regarded females as burden to a family's struggle to survive, so that burying a female child was even considered a generous deed. But the Koran prohibited female infanticide as a wrong act (Milner). Judaism and Christianity likewise forbade infanticide and generally, of human life, as contained in Genesis (Maimonides as qtd in Milner), which taught that each life was a gift of God and that only God can take it. The Jews and Christians widely rejected it as a socially impious and illegal act.

Despite the common pose by the three major Western religions against child murder, female infanticide has remained socially acceptable in India and China for centuries (Milner 1998). The number of missing females or females feared to be dead is estimated to be at least 60 million in Asia and more than 100 million worldwide: 30.5 million in China, 22.8 million in India, 3.1 million in Pakistan, 1.6 million in Bangladesh, 1.7 million in West Asia, 600,00 in Egypt and 200,000 in Nepal (Milner).

The burdensome costs in raising a girl and the eventual provision for a dowry in marriage made female infanticide socially acceptable and desirable in India (Milner 1998). China, on the other hand, is generally considered a poor country with a low agriculture output, extremely high infant and child mortality rate because of low food supply and medical care provision. Each Chinese couple needs to raise three sons to insure than at least one will survive into adulthood.

Female infants or children have, thus, been viewed by poor Chinese families as mere consumers and an economic disadvantage, often killed right at birth (Milner). British colonists brought infanticide into the New World and found the Indians practicing it too (Milner 1998). Parents during the puritanical era in colonial America allowed or encouraged parents to be severe in disciplining their children, even bringing in stubborn children to court or downright killing them. There were "stubborn child laws" in Massachusetts in 1646, in Connecticut in 1650, Rhode Island in 1668 and in New Hampshire in 1679.

The rigidity of parental attitude over the discipline of children was so startling that the courts founded a Society for the Prevention of Cruelty to Children in response to the report of Henry Berg, founder of the Society for the Prevention of Cruelty to Animals. It was commonly believed that the 16-20% children mortality in the 1850s was due to Sudden Infant Death Syndrome or SIDS. And 1966 records showed that there were 10,920 murders in the United States and one in every 22 of these was committed by a parent (Milner).

Modern civilization in the 20th century has advanced only in the mode of committing infanticide through medical advancement, which had already made abortion a safe and legal procedure. The lives of newborns or the unborn have been snuffed out by their own parents for seeming reasons of necessity that mostly occurred only in their minds (Milner1998) or of simply being unwanted by these parents. When these parents did not have the suitable means of preventing or terminating pregnancy, they waited until full-term delivery before disposing of the infant.

As records show, more than five million pregnancies end in abortion in the Western world alone and this implies that infanticide shall have been resorted to if the abortions are not resorted to (Milner). Right or wrong, a woman or mother's right to choose against a pregnancy has led her to take recourse in infanticide if she cannot have an abortion. US ranks 11th in the world survey of homicide under the age of one year, the first for ages 1 to 4 and fourth for ages 5-14 (Milner 1998).

From 1968 to 1975, infanticide accounted for almost 3.2% of all reported homicides in the U.S. Although trends showed a decrease in overall homicide, infanticide incidence continued to rise. In 1968 alone, more than 600 children were reported to have been killed by their parents and approximately 1.1% of all homicides from 1982 and 1987 were less than a year old (Milner). The younger the child, the chances were greater that a parent committed the act. The older the child, it was likelier that a non-parent was responsible.

The mother was also the likelier parent to kill an infant, although more males generally appear to commit murder than females. White mothers were likelier to kill newborns or younger infants, while white fathers were 10% likelier to murder children more than a year old and black fathers 50% likelier than black mothers (Milner). Those who committed infanticide were mostly young women with a low level of education, unemployment or poorly employed, with some mental or psychological disturbance, such as alcoholism, drug addiction or criminal behavior (Milner 998).

Hitting the head, strangulation and drowning were the most common methods used and with the murderer's hands by strangulation or physical punishment (Milner). Legal attention has been historically focused on women or mothers who kill their infants (LST32FPS 2004). In 1624, Puritan legislators passed an act penalizing with death the concealed death of an illegitimate newborn, except when stillborn. In the 17th century, 40% of women found guilty of murdering their newborns were hanged.

A physician and surgeon, William Hunter, thought that concealment was only a suspicion and not a presumption of the crime and, along with others, noted the scientific difficulties in establishing live births for the prosecution (LST32FPS). The laws on evidence, standards of proof, the challenge posed against presumption by the defense and the judges' consideration for state of the mother's mind altered the course of events. The 1624 statute was repealed in 1803 and the evidence of live birth became a requirement (LST32FPS).

Infanticide was first introduced as a specific legal offense as well as a defense in England in 1922 when a woman killed her natural newborn child. Infanticide Act of 1938 became a modern form of legislation, whereby it was a partial defense and, therefore, a conviction could be reduced to manslaughter. Women or mothers in the 19th century resorted to infanticide on grounds of stigma of illegitimacy, poverty, loss of employment, parental threat or separation, and abandonment of the child's father.

The law was so severe that the police were constrained from prosecuting and the juries from convicting. The jury and judges oftentimes recommended mercy for a convicted woman or commuted her conviction when the death penalty was imposed (LST32FPS).

Section 6 of the Crimes Act of 1958 defined the offense of infanticide as a willful act or omission that caused the death of an infant less than 12 months old when the mother's mind was imbalanced or disturbed for not having fully recovered from the impact of childbirth or from the effect of lactation (National Right to Life News 1995). The act clearly differentiated infanticide from murder and imposed only a level 6 punishment equivalent to only 5 years imprisonment. Murder was punishable by death.

But the act also prevented the jury from later changing its verdict from murder of a child to manslaughter, or from not guilty on the ground of insanity (NRLN). Before its abolition in 1997, legislation in New South Wales provided for infanticide as both a substantive criminal offense and as a partial defense to murder. It was a partial ground for defense in the form of diminished responsibility on the mother's part (National Right to Life News 1995).

These legislative provisions grew out of the United Kingdom's Infanticide Act 1938, which evolved from repeated attempts in the 19th century to establish appropriate legal means of tackling the nagging issue of women who killed their infants. It was a frequent situation at that time when unmarried mothers must face the shame of illegitimate pregnancies, poverty, the loss of employment and abandonment of parents or the child's father (NRLN). Killing infants then was interpreted as murder and murder was punishable with death.

Although this was the law, in practice, both the police and the jury showed sympathy for the women because of their social and economic conditions, for as long as their crime was private and they did not pose public threat. The judges, juries and the prosecution sought for ways of avoiding the death penalty in these cases until they agreed on institution reform (NLRN).

The Infanticide Act 1922 was introduced in the UK, whereby a woman who killed her newborn could be charged with infanticide with a partial defense of puerperal psychosis. This was a severe mental disorder associated with childbirth. The woman found guilty was given the same sentence as manslaughter. The Infanticide Act 1922 was superseded by the Infanticide Act 1938, which had two key modifications, namely, a clarification that the newborn was a child of less than 12 months old and the addition of lactation as a ground for mental imbalance (NLRN).

The amendment excused the act of killing a newborn for medical reasons and extended that excuse beyond the first weeks of the birth (NLRN). When used as a partial defense to a murder charge, all the elements of murder must first be established, including the intent to kill or cause grievous bodily injury on the infant or a reckless regard for human life (National Right to Life News 1995).

When used as a substantive offense, on the other hand, it was not clear whether the prosecution needed to satisfactorily prove intent to kill the infant. The burden of proof lay with the prosecution beyond a reasonable doubt. Even when used as substantive offense, infanticide was intended more to be a defense to a murder charge, considering that convictions of infanticide generally followed a plea of guilty to infanticide and after a conviction of murder.

The Legal Aid Commission of Australia believed that such women who killed their infants due to states of significant mental disturbance should not merit a conviction of murder (NRLN 1997) but be treated with understanding and leniency. The Commission equated the lenient pose not only as a reduced sentence for murder but for a lesser offense with a lesser degree of culpability.

In addition to the change of view and provision, the Commission furthermore recommended the abolition of the offense or defense of infanticide in that it no longer considered infanticide as necessarily mitigating culpability with the availability of the defense of diminished responsibility as partial defense to reduce murder to manslaughter (NLRN).

It considered the defense of diminished responsibility sufficient and a more appropriate means to reducing culpability than infanticide, which was in turn, based on unsound and outdated concepts of mental disturbance, produced an unrealistic ideal of women and was arbitrarily stringent. When appealing to this provision, the accused needed to prove that she suffered from some mental abnormality that substantially impaired his or her sense of responsibility when committing the crime.

This abnormality could be caused by some condition of arrested or interrupted development of mind, or from any inherent cause or as induced by disease or injury (NLRN). Under a defense of diminished responsibility, the accused should or can prove that she or he suffered from some "abnormality of mental functioning arising from an underlying condition" (NLRN 1997) when she or he killed the infant.

The evidence had to be substantial in leading to the impairment of his or her judgment of the act of killing or in determining what was right from wrong or in controlling oneself The accused, for example, had to satisfactorily prove that she or he was in a severe depression when the act was committed.

This required him or her to prove that his or her mental processes at the time were disturbed by the depression he or she experienced then and that the disturbance was strong enough to affect his or her capacity to judge, understand or control himself or herself (NLRN). The accused could also take recourse to diminished responsibility even if the depression was temporary or not directly resulting from the effects of childbirth.

Many critics found that the offense or defense of infanticide was easily accessible to women who killed their infants because the required proof was not interpreted by the courts or medical experts if the mental disturbance was not persistent (NLRN 997). The law did not require a severe or permanent psychiatric disorder for the accused to appeal to the provision for diminished responsibility. The disorder could, in fact, be temporary and even curable, as long as it was not fleeting or transitory like high emotions.

But it required a causal connection or link between the accused's mental marred condition and the killing of the infant. In its formulation, the provision did not make an express requirement on how the accused's mental disorder led or caused him or her to kill the infant. The evidence presented as proof of offense or defense was considerable enough to grant the accused room for flexibility (NLRN).

The defense of diminished responsibility appeared more restrictive than infanticide but the Commission deemed that such did not too heavily burden women who sought to be partially excused for killing their infant. Criminal law always looked out for individual responsibility in determining culpability for serious offenses according to whether that culpability was increased or decreased by mental illness, for example.

If the killing occurred during an episode of mental derangement, the law would tend to apply a lower standard to measure culpability and allow the accused to be excused from an offense or through a defense of infanticide. The argument for the abolition of infanticide also rested on the disagreeable paternalistic and anachronistic view of women (NLRN 1997). Women appeared to have been given special treatment by a gender-specific law that assumed their natural susceptibility to mental imbalance or instability, particularly at childbirth.

The view presented women as inherently unstable on account of their biological nature and thus reinforced their image as essentially weak beings, deserving of pity and protection and not quite responsible for their individual actions (NLRN). The infanticide legislation itself outlined this view when it was first introduced in New South Wales, when it recognized that "women, by ordinance of nature,..

subject to certain fundamental disabilities...(NLRN)." While it benefited individual female offenders, the old law's condescending view of women had far wider consequences and implications on account of these assumed "fundamental disabilities." Owing to the stereotyped biological weakness and frailty, women were thought to be and condemned as "bad mothers" and punished more severely. Clearly, this should not be the posture of the law as inherent in an offense or defense of infanticide.

When there was no other way to settle the increase of infanticide cases than to cast or reinforce this concept of women, the infanticide law was better off retained. In the meantime, the provision for diminished responsibility appeared sufficient and adequate for women or mothers who killed their infants when in mental distress directly or indirectly resulting from childbirth or other factors and stresses (NLRN). This defense was, furthermore, not confined to any kind of female vulnerability to a mental illness to which the feminine nature seemed susceptible or vulnerable.

It should be noted that the majority of submitted opinions did not support the abolition of infanticide in New South Wales but, instead favored its retention. These unsupportive sectors, however, conceded to the inadequacy of a defense of diminished responsibility in accommodating all infanticide cases.

They argued that it should be retained because of the advantages in the form of recognition of women's experiences in specific or particular criminal offense or defense, other procedural advantages of retaining offense and defense separately; and the sentencing disparities between infanticide and manslaughter, as earlier mentioned (NLRN). The disparities in sentencing were one argument in retaining infanticide - as opposed to manslaughter -- as a defense in that, it the infanticide law was abolished, the sentence could increase (National Right to Life News 1997).

The maximum statutory penalty was the same for manslaughter and infanticide, but there was empirical evidence to show that the penalty for infanticide was more lenient. In New South Wales between 1990 and 1996, for example, two convictions were recorded for infanticide and non-custodial sentences were imposed on both cases. In contrast, conviction for manslaughter in New South Wales did not result in non-custodial sentences on those ranging from good behavior to more than 20 years of hard labor (NLRN).

Furthermore, judges noted that the sentences differed, depending on whether the conviction was for manslaughter or infanticide. The Commission was also not convinced that the sentences imposed for infanticide would increase in comparison to those convicted for manslaughter. It explained that manslaughter was generally meted out a wide range of sentences, whether on a high or low level of culpability (NLRN 1997). Courts exercises discretion in imposing a non-custodial sentence for manslaughter in appropriate circumstances, such as diminished responsibility.

There could be a different view or conviction if the killing was the consequence of a mental or emotional condition, such as post-natal depression. They said that it was difficult to accurately determine or estimate sentences that could be made on manslaughter cases and they would need to assess the separate groups of facts falling within the infanticide provisions and exercise discretion in determining and imposing appropriate sentence in the light of special mitigating factors in each case.

Australian philosopher and ethicist Peter Singer favored decimating the lives of disabled babies for which his appointment as professor at Princeton University was severely criticized (National Catholic Reporter 1998). His critics were mainly those who opposed his views on abortion, infanticide and euthanasia. Singer was the head of the Center for Human Bioethics at Monash University in Melbourne, Australia and appointed as DeCamp Professor of Bioethics at Princeton University Center for Human Values in the fall of 1999 (NCR).

A renowned author or editor of books and several articles and a frequent lecturer at colleges and universities, he advocated the killing of severely disabled babies and those suffering from Down's Syndrome, who needed more attention and care than the normal child (NCR). He suggested that comatose adults or those in a persistently vegetative state were no different from severely disabled infants who craved for and deserved merciful intervention through death but with the consent of their families.

The National Catholic Office for Persons with Disabilities reacted to Singer's approach as something that had to be rejected at all costs as something superficial to Catholics and to the disabled (NCR). Its executive director, Mary Jane Owen, felt that Singer's repeated sympathies for sufferers of severe disabilities did not appear scholarly. Owen herself was blind, partially deaf and used a wheelchair. She believed that Singer's position on these issues showed his poor credentials, especially in proposing that the severely disabled were better dead.

On the other hand, Director Amy Gutmann of Princeton University Center for Human Values found Singer's scholarly achievements as extraordinarily impressive and that his entry into the professorial league would be an enormous enhancement of the institution's teaching ad scholarly strength in these fields (National Catholic Reporter 1998). She also said that the appointment of Singer was one more way whereby Princeton demonstrated "its continuing commitment to honest, creative and open intellectual engagement with the most important issues concerning the human condition, no matter how controversial those issues" might be (NCR).

Infanticide was introduced in 1949 in Victoria and continues to exist today only in Victoria in Australia (LST32FPS 2004) but also in the UK, Ireland, Canada and New Zealand. In these places, a young and single woman can be convicted and punished for infanticide if proven that she killed her infant within hours from birth, suffered from post-natal depression or another mental illness shortly after the birth or killed her infant several months after birth because of severe social or economic hardship (LST32FPS).

Mental imbalance can also be in the form of major depression, bipolar disorder or lactational psychosis within four weeks from childbirth. A charge of infanticide in Victoria must prove all the elements satisfactorily and these consist of all the circumstances of a murder, that the accused is the natural mother of the infant, that she suffered from mental disturbance when she killed her infant and on account of her not yet fully recovered from the impact of childbirth or the effect of lactation as related to the birth (LST32FPS).

One such case was R. v Hutty in 1953. Dorothy Hutty, an unmarried 9-year-old woman kept the pregnancy secret from her parents and delivered in an.