EWJ Dec 2023 - Journal - Page 22
Mothers Who Kill:
A Look at Infanticide
by Karlia Lykourgou - www.insights.doughtystreet.co.uk
Murders where mothers kill their babies are
thankfully rare, however recent cases raise questions
about the legal framework surrounding this offence,
and whether laws concerning murder, manslaughter
and infanticide are applied in a way that protects not
only vulnerable children but also vulnerable women.
The following cases reflect the current trend:
l In June 2017 Rachel Tunstill was convicted of
murder after stabbing her baby with scissors shortly
after giving birth. She appealed on the basis infanticide should have been left open to the jury as a defence. She was tried again and convicted of murder
in 2019. She was sentenced to a minimum term of 17
years imprisonment and died in prison in August
2023.
The Infanticide Act 1938 is a significant piece of
legislation that can only be committed by a woman
against her biological child which must be under 12
months old, and arises in circumstances where she is
accused of causing the death of the infant by wilful act
or omission at a time when the “the balance of her
mind was disturbed by reason of her not having fully
recovered from the effect of giving birth to the child or
by reason of the effect of lactation consequent upon
the birth of the child.”
l In June 2023 Paris Mayo was convicted of murder
after assaulting her baby fracturing his skull and
putting cotton wool into his mouth. She was 14 when
she became pregnant and was unaware at the time.
She gave birth alone and in silence while her parents
watched TV downstairs and tried to dispose of the evidence without anyone knowing. She was sentenced
to a minimum of 12 years imprisonment.
Under Section 1(1) of the Act a woman may be
charged with infanticide or raise it as a defence to
murder under Section 1(2).
l In July 2023 Eloddie Goncalves-Taborda was
convicted of murder and child-neglect following the
death of her eleven-week old son. Emergency services
were called after the child became unresponsive and
injuries consistent with blunt force trauma and shaking were found on the child. She was 30 at the time
with mental health and addiction issues. Her sentence
hasn’t been published at the time of writing.
A woman found guilty of infanticide may expect the
equivalent sentence to an offence of manslaughter,
namely a maximum life sentence; although Mackay’s
study of cases between 1990 and 2003 found most infanticide convictions resulted in a non-custodial sentence, frequently in the form of a hospital order.[1]
l In July 2023 Constance Marten was charged with
gross-negligence manslaughter, concealing the birth
of a child and perverting the course of justice. She hid
her pregnancy and gave birth in a car, living outdoors
in the middle of winter before being arrested and detained in custody following a publicised manhunt. Her
baby died and was found in a shed. She is due to stand
trial with her partner in January 2024.
In any circumstances where it appears a crime has
been committed, the Crown Prosecution Service
(CPS) determines which offence will be charged. Usually, they opt for the offence that is the most straightforward to prove on its facts. They have no obligation
to choose a charge with a more favourable sentencing
regime for the defendant or one which makes it
easier to raise a defence.
The Infanticide Act 1938 was enacted to address the
“black-cap farce” that had arisen of sentencing women
to mandatory death for the murder of their babies
only to have their sentences later commuted to a lesser
sentence. Parliament replaced an earlier piece of 1922
legislation and introduced the terms “balance of her
mind was disturbed” to give effect to the intention of
the framers of the Bill that the physical and mental
stresses of childbirth should be recognised in law.
After identifying a chargeable offence, they apply the
Full Code Test. This is a two-stage test which requires
the CPS to consider whether there is sufficient evidence for a realistic prospect of conviction, and
whether it is in the public interest to pursue such a
prosecution.
Offences where mothers kill their babies often have
significant evidence pointing to the perpetrator to satisfying the first limb of the test; and the second limb is
usually satisfied, even where there is a strong indication of the defendant’s vulnerability, due to the large
public outcry these cases provoke.
While the pathologizing of childbirth and motherhood is considered problematic for some, it also offers
protection and recognition of a specific set of circumstances affecting female offenders and that makes this
legislation unique.
Despite the availability of infanticide as a chargeable
offence, the CPS seem to be charging women who
kill their babies with an offence of murder or
manslaughter.
EXPERT WITNESS JOURNAL
Still, this provision has remained largely unchanged
since it came into force. Debate has arisen over certain
elements of the offence such as the inclusion of lactation as a cause for the balance of a woman’s mind to be
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DECEMBER 2023