EWJ Dec 2023 - Journal - Page 23
Pregnancies and births unwanted
Younger women
Lack of education
Single or not in a stable relationship
Unable to reveal the birth due to shame or fear
of rejection by their partner or family
l Late or no prenatal care
l First-time mothers
l Non-hospital births
l Personality characteristics marked by immaturity,
impulsivity, passivity and low self-esteem
l Signs of pregnancy may not be evident - no
significant weight gain or cessation of
menstruation.
l A lack of economic and/or psychological resources
l A lack of premeditation
disturbed, and the arguably arbitrary cut-off for the
age of the child at 12 months.
l
l
l
l
l
Where infanticide is raised as a defence, the burden of
proof is on the prosecution to disprove it beyond reasonable doubt. The challenge however is providing sufficient medical evidence to demonstrate the balance of
the woman’s mind is disturbed (a non-medical term)
and that this was caused by factors relating to the birth
of the child or lactation, rather than anything else.
Studies on why women kill their babies are few, with
limited recent, UK-specific, research on the subject. In
2006 the Law Commission published a review of the
law on homicide, manslaughter and infanticide. This
included contributions from psychiatrists, including
Professor Ian Brockington, who provided an outline
of the mental disorders that may occur during childbirth and the post-partum period, and the different
types of infanticide. The conditions that may arise include puerperal bipolar disorder, organic postpartum
psychosis, mother-infant bonding disorders, and
postpartum depression. This establishes a helpful
psychiatric foundation for the offence/defence of infanticide but also refers to the rarity of many of these
disorders.[1]
If the jury had to consider these factors as
circumstances consequent upon the birth that may affect a woman’s mental state, then it’s possible it would
be easier for a defence of infanticide to be made out.
In any event, this list shows the importance of a psychological assessment of the defendant, with expert
evidence outlining the broader context which might
negate the prosecution’s argument that such actions
are deliberate and calculated, rather than the result of
panic and fear as is more usually the case.
"The prevailing image of motherhood is one of
limitless love and tenderness, which this offence
violently disrupts. It is more challenging, but more
correct to look at the circumstances in which these
offences are arising"
Even if the Infanticide Act were to be used more
extensively, it still only covers the period when the
child is born. The lack of protection for women in the
pre-natal period is reflected in the recent outcry over
the outdated provisions of section 58 of the Offences
Against the Person Act 1861, which led to the imprisonment of Carla Foster for procuring an abortion
beyond the legal limit.
Still, in instances where the woman’s psychological
state may place her in denial about her behaviour, it
can make it difficult to obtain instructions to allow such
a defence to be advanced. In the case of KaiWhitewind there appeared to be an indication that the
defendant had caused fatal injury to her child which
was born as a result of rape, but she denied responsibility, and it was therefore difficult to advance a defence of infanticide on her behalf. In such instances
the Law Commission proposed the possibility of the
judge ordering a psychological report to establish
whether at the time of killing the requisite elements of
a charge of infanticide were present.
The Infanticide Act also doesn’t offer any protection in
cases where the child survives. In 2020 I was instructed with Katy Thorne KC in a case where a
young woman, “P”, gave birth unexpectedly in a hospital toilet and left her baby in a bin. The child survived and P was reunited with him, but later charged
with child cruelty under section 1 of the Children and
Young Persons Act 1933. She struggled to explain her
actions at the time and had a limited memory of the
event. We managed to argue a defence of automatism/
insanity but the scope of those provisions is very narrow and not well suited to circumstances of post-natal
trauma. The prosecution were fortunately persuaded
to offer no evidence against P before trial, but the US
case of Alexee Trevizo is an eerie reminder of what
might have been. Trevezio similarly gave birth in a
hospital toilet and placed her baby in the bin, but her
baby died and she is now facing a charge of first-degree murder in New Mexico.
Where there is limited evidence of a psychological
disorder linked to childbirth or lactation, the infanticide defence is undermined. This difficulty is reflected
in the Criminal Law Revision Committee’s recommendation in 1980 to amend the Infanticide Act to
broaden disturbances of the mother’s mind to include
the effect of giving birth or other circumstances
consequent upon that birth.[2]
That is significant bearing in mind other studies have
considered the inherent personal and environmental
trends in women who commit these offences. Some of
this evidence shows that far from being outliers, many
of the defendants charged with these offences fit a
profile.
It is easy to dismiss women who kill or harm their children as mad, bad, sick or selfish. The prevailing image
of motherhood is one of limitless love and tenderness,
which this offence violently disrupts. It is more challenging, but more correct to look at the circumstances
in which these offences are arising and the vulnerabilities of the women committing them, to ask whether
whether they need to be charged at all. The legal
The following characteristics have been identified in
cases involving denial of pregnancy, infanticide and
neonaticide (deaths within the first 24 hours):[3]
EXPERT WITNESS JOURNAL
21
DECEMBER 2023