Term Paper: Infanticide in Australia

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[. . .] 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 The Infanticide Act 1922 was superseded by the Infanticide Act 1938, which had two key modifications, namely, a clarification that the newborn was a child of less than 12 months old and the addition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… [END OF PREVIEW]

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Infanticide in Australia.  (2004, September 23).  Retrieved April 24, 2019, from https://www.essaytown.com/subjects/paper/infanticide-australia/9078384

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"Infanticide in Australia."  Essaytown.com.  September 23, 2004.  Accessed April 24, 2019.
https://www.essaytown.com/subjects/paper/infanticide-australia/9078384.