Infanticide: Should that be the substitute charge for murder?

On March 3, 2011 the Ontario provincial appeals court in Toronto had ruled that women who kill their babies can plead to the lesser charge of infanticide instead of murder.

Infanticide is the killing of an infant; it can describe what might amount to a cultural act or an offence defined by the victim's age. Often it is the mother who commits the act, but criminologists recognize various forms of non-maternal child murder. In many past societies, certain forms of infanticide were considered permissible. Female infanticide is more common than the killing of male offspring due to customs in various countries. For example, in China where the law is one child per family, newborn baby girls have been murdered by their parents because the girls have been seen as less productive to a family than a boy is.

Infanticide is a controversial section of the Canadian Criminal Code. Some people feel that when a woman kills her own child it should never lead to anything less than a murder conviction.

Despite such feelings about infanticide, three judges on the Ontario Court of Appeal ruled unanimously that the charge of infanticide could stand alone as a legal defense instead of being a secondary charge to first-degree murder.

The government had appealed the conviction of an unidentified woman who admitted to smothering one of her infants in 1998 when she was 17 and later smothering a second baby in 2002 when she was 21. She was convicted of infanticide instead of murder and served one additional year in prison after time served was applied to her sentence.

The Ontario ruling was the first among Canadian provinces to delve into the issue in Canada's Criminal Code, which incorporated the charge of infanticide in 1948.

The court ruled that it can be used as a defense if it can be proved the woman was suffering from postpartum depression or other hormonal conditions associated with childbirth.

In England and Wales, the Infanticide Act 1938 describes the offence of infanticide as one which would otherwise amount to murder (by his/her mother) if the victim was older than 12 months and the mother was not suffering from an imbalance of mind due to the effects of childbirth or lactation. Where a mother who has killed such an infant has been charged with murder rather than infanticide s.1(3) of the Act confirms that a jury has the power to find alternative verdicts of Manslaughter in English law or guilty but insane.

Homicide in Canada is covered in section 222 of the Criminal Code of Canada and is defined as:
• when a person directly or indirectly causes the death of another person
• homicide is culpable or not culpable
• homicide that is not culpable is not an offence
• culpable homicide is murder, manslaughter or infanticide
• a person commits culpable homicide when he/she causes the death of another person:
o a) by means of an unlawful act
o b) by criminal negligence
o c) by causing that person, by threats or fear of violence or by deception, to do anything that causes their death; or
o d) by willfully frightening that human being, in the case of a child or sick person.

Under section 229, culpable homicide is defined as murder where the person (i) intends to cause the death and (ii) means to cause bodily harm that they know will likely to cause death, and is reckless whether death ensues or not. People that have the intention to cause death or bodily harm that will probably result in death and does so by accident or mistake, is still considered homicide. If a person has an unlawful objective and does anything that they know or ought to know will result in death of another, it is considered murder. For the offence of murder, both actus reus (the physical act) and mens rea (the mental intent) must be present.

Murder is a classification of homicide which is categorized into first degree murder and second degree murder.

A conviction of first degree murder in Canada carries a maximum life sentence while the maximum for infanticide is only 5 years.

A 14-year-old girl in Prince Albert, Saskatchewan, Canada pleaded guilty Friday to infanticide for abandoning her newborn baby along a seldom-used trail behind her home. The teenager, who cannot be named under the Young Offenders Act, was also charged with first-degree murder, but that was dropped in exchange for her guilty plea to the lesser charge.

I should add that the court cannot convict a person of two similar charges. If she hadn’t pleaded guilty to infanticide, the prosecutor would have proceeded with the charge of first degree murder against the girl. If court convicted her of that charge, the prosecutor would have been legally obligated to withdraw the charge of infanticide against her. If the court convicted her of infanticide, the prosecutor would have had to withdraw the charge of murder.

The girl walked into a bush on October 2, 2001, near her home on the Whitefish reserve that she shared with several relatives and gave birth to her baby. She had hidden the pregnancy from her family.

She wrapped the baby boy in a blanket, placed him along the infrequently used trail and walked away. The baby's body was discovered along the path two days later.
It was established by a postmortem examination that there were no bruises on the body and the baby likely died of exposure. The baby, who was never fed, lived for at least two hours after he was born.

University of Saskatchewan criminal law Prof. Tim Quigley believes there is a place for infanticide provisions in the Criminal Code. Quigley said a first-degree murder charge "seems a bit stretched."

He said the reason infanticide charges are so rare is that it is very narrowly defined. He added that it’s not to put a different value on the life of a child but rather it’s to give some understanding to the circumstances of a woman who is in unfortunate straits.

Saskatoon pediatrician Dr. C. Krochak said all women experience some level of stress during and immediately after giving birth. Sleep deprivation, lack of family support, lack of parenting skills are some of the things that contribute to stress levels.

Postpartum depression (also called, postnatal depression) is considered a psychiatric illness that can make new mothers act irrationally. Dr. Krochak said "If they have definite postpartum clinical depression, they cannot make proper choices. They are almost psychotic. They don't know reality anymore." It can affect women, and less frequently men, after the birth of a child, Studies report prevalence rates among women from 5% to 25% depending where the studies are done.

Symptoms include sadness, a feeling of hopelessness, low esteem, a feeling of guilt, a feeling of being overwhelmed, sleep and eating disturbances, inability to be comforted, exhaustion, a feeling of emptiness, social withdrawal, low or no energy, becomes easily frustrated, feeling inadequate to care for the baby, impairment with respect to speech and writing, spells of anger to others, increased anxiety or panic, sadness, fatigue, reduced sex drive and crying episodes. Obviously, suffering from just one of these symptoms is bad enough but to suffer from them all, takes an enormous toll on the human mind.

It is sometimes assumed that postpartum depression is caused by a lack of vitamins, but studies tend to show that more likely causes are the significant changes in a woman's hormones during pregnancy. On the other hand, others have suggested there is no known correlation between hormones and postpartum mood disorders, and hormonal treatment has not helped postpartum depression victims. Many women recover because of participation with a support group or counseling.

The hospital where our two daughters were born have a policy that after the mother and child leave the hospital, they arrange for another woman who has had a child of her own, visit the new mothers to cheer them up and offer them advice. The visits are generally daily and last at least a week.

This makes me ask this rhetorical question. Why will a mother who has breast fed her newborn baby, then abandon it or otherwise kill her baby? Perhaps the age of the woman is considered as a factor or that she has been a victim of rape or has other lifestyle factors which play a bigger role in their decision than actual mental illness such as postpartum that is often suffered by mothers.

There are a number of factors have been identified as predictors of PPD. They are: formula feeding rather than breast-feeding, a history of depression, cigarette smoking, low self esteem, the stress of childcare, prenatal depression during pregnancy, prenatal anxiety, stress towards life in general, low social support, poor marital relationship, infant temperament problems such as colic, maternity blues, being a single parent, low socioeconomic status, (it’s not surprisingly, women with fewer resources indicate a higher level of postpartum depression and stress than those with more financial resources) and unplanned/unwanted pregnancy.

Husbands/fathers should be on the lookout for such signs of these factors and assist their partners/wives through these trying times the mothers are undergoing.

A study done in the United States in 2006 showed that of the 26,877 postpartum women the researchers interviewed, they found that 15.7% were depressed. Of the women suffering from PPD, 25.2% were African American, 22.9% were American Indian/Native Alaskan, 15.5% were White, 15.3% were Hispanic, and 11.5% were Asian/Pacific Islander. Even when important social factors such as age, income, education, marital status, and baby’s health were controlled, African American and American Indian/native Alaskan woman women still emerged with significantly increased risk for PPD. I think this is because many of these women are single and some, if not many of them feel abandoned by the fathers of their babies.

In reality, far more men kill infants than women. It’s one of those strange ironies in life, that women who kill their babies are given more sympathy and sentenced with a view of treatment while men who do the same thing are charged with murder and sentenced to life in prison. The reason however is obvious. The men can’t plead the post partum defence. That is only available to women who have just given birth to their babies. The men doing it generally do it to get even for a perceived slight they got from the mother of the child or children they kill.

Here is another rhetorical question. Why is the mental health of male killers of babies of relatively little interest to the courts despite the fact that the number of fathers who kill their babies are suffering from some form of psychosis and/or severe depression? When the subject is infanticide and/or child murder, mothers who kill are considered either mad or bad whereas fathers are more often simply considered bad.

My concern about the defence of postpartum is that it could be argued that an out-and-out psychopath could murder her infant and get off with a relative slap on the wrist simply by exaggerating her ‘baby blues’. How can we really be sure?

For example, several years ago, a woman murdered her children simply because her boyfriend told her he would marry her if she didn’t have any children. If that fact was brought to the attention of the court, the accused couldn’t argue postpartum as a defence but suppose the court didn’t know the real motive behind the murder of the children. If the mother then gave postpartum as a defence and it was accepted by the court, then justice for the deaths of the children would be non existent.

I believe that the infanticide law in Canada evolved many decades ago because juries repeatedly refused to convict young mothers of murder, knowing that they might be led away to the scaffold.

The crime of infanticide is punishable by up to five years in jail, but only a handful of infanticide sentences are handed out in Canada each year. However, the profound questions of culpability, mercy and maternal love that they raise loom far out of proportion to the number of cases heard in court.

I will admit that it is conceivable that many women really do suffer from severe postpartum depression. But how many of them that proffered that illness as a defence, really did suffer from that illness?

The courts have long misconstrued the Criminal Code provision, believing that infanticide operates as a legitimate legal defence for a woman charged with murder. In reality, it is an offence and not a defence and infanticide should considered only if a judge or jury first concludes that the prosecutor has failed to make out the essential ingredients of a murder prosecution.

If the law was approached in this manner, the law would allow mothers who suffer from genuine mental disturbances to be acquitted of murder, while at the same time making intentional killers pay the appropriate penalty. Further, once it is established that a mother who killed her baby suffered from postpartum illness, she should be placed in a correctional institution where she can be treated.

To answer the question I placed at the heading of this article, Infanticide: Should that be the substitute charge for murder?, my answer is that if it can be reliably determined that the mother who killed her newborn child was really suffering from a serious bout of postpartum depression that resulted in her having no real control over her mind, then yes, infanticide should be the alternative to the charge of murder.

Now my readers will ask; if she is suffering from a mental illness, why should she be incarcerated in a prison? The answer is obvious. Suffering from a mental illness isn’t a free pass from imprisonment. Such a person, especially a mother that suffers from a postpartum illness should seek medical help. If she chooses not to do so, for whatever reason, and subsequently kills her baby, she is not worthy of too much sympathy.

This is why most mothers who have their babies delivered in a hospital, have experienced and trained people visit them for the first week or so each day to help them deal with any postpartum signs that may exist in the mother of her newborn baby.

One way to save the newborn babies is to make it possible for the mothers suffering from PPD to leave their newborn babies at a fire station or police station or church or hospital without any questions being asked. I would rather see this happen then read about a newborn baby being abandoned on a trail in a forest that is rarely traveled on.

Further, I would rather see a mother who is convicted of infanticide go to prison than be sent to an asylum for the criminally insane. The stigma of imprisonment is easier for her to bear when she is released than what she would have to endure if she was sent to an asylum for the criminally insane. Her subsequent reputation would be easier for her to bear if she was classed as bad rather than as mad because most people feel that people who are bad can change but that people who are mad are unlikely to change. This may not be what it really is but perception is generally what is in the minds of most people.