It is an age-old concern for the criminal justice system: what to do with women who are suspected of causing the death of their infant. The Infanticide Act 1938 characterises women as ‘special’ compared to others who kill infants. Notably it has been decades since a woman convicted of infanticide has been imprisoned. What is it about these women that makes them special? Many would argue that any person who kills a child deserves to rot in jail, and yet the Infanticide Act endures.

The Infanticide Act 1938 is a homicide offence and also provides a partial defence for a woman charged with murder or manslaughter of her biological child aged under one year, while ‘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’. When first enacted in 1922, the mandatory death penalty was a consequence of a murder conviction. Thus, the legislation saved women the threat of the gallows. In reality, no woman had been executed for infant murder since 1849. All women convicted of murder were duly sentenced to death by the judge, only to have their sentence reprieved by the Home Secretary. The outcome of these cases was so common that the judiciary dubbed it the ‘black-cap farce’. Thus, enactment of the Infanticide Act formalised a well-established practice: women who killed infants, notably newborn children, would not be executed.

It is now 100 years since the Infanticide Act was passed by Parliament. We no longer have the death penalty in England and Wales and we now have the partial defence of diminished responsibility. Considering these legal developments, it is perhaps reasonable to ask why we still need a specific offence/defence for this small group of women. The recent case of Tunstill [2018] EWCA Crim 1696 suggests that infanticide is now being interpreted as a psychiatric defence, requiring medical diagnoses to prove that the balance of the woman’s mind was disturbed, and that the cause of that disturbance was either due to giving birth to the child or the effect of lactation. There are few among us today who wouldn’t raise an eyebrow at the suggestion that breastfeeding can cause a woman to become ‘disturbed of mind’. Indeed, numerous studies and research papers, including those written by feminist scholars advocating for justice for women, have argued that the Infanticide Act pathologises women’s acts of violence, suggesting that any woman who kills an infant must be ‘mad’, and that no rational woman – no woman whose mind was not disturbed – would kill her child. However, there is an alternative lens through which we can view the Infanticide Act; one that does not focus on medical and psychological conditions of accused women but sees the legislation in a broader context. To understand this alternative perspective, we must consider the origins of the statute.

Historical concern

While the killing of infants by mothers, particularly newborn infants, has been a phenomenon throughout history, it was not until 1624 that the criminal law specifically focused on this form of homicide. An Act to Prevent the Destroying and Murthering of Bastard Children changed the legal burden required to prove murder if the victim was illegitimate and the accused its mother. ‘Lewd’ (unmarried) women who could not prove through the testimony of a witness that her child had been born dead would be tried for murder without a need for the prosecution to prove live birth. The perception at the time was that unmarried women were purposefully concealing their pregnancies and giving birth alone allow them the opportunity to kill the child and then claim it had been stillborn. To be pregnant outside of marriage at this time was not only ruinous to a woman’s reputation – a violation of the norms of chastity – but also to risk prosecution under Elizabethan and Jacobin poor laws, which punished ‘bastardry’ with fines and imprisonment.

The aim of changing the burden of proof in these cases for unwed women was certainly to increase convictions. But, the desire to convict, and thus execute, more women stemmed from a wish to discourage women from becoming pregnant outside of the confines of marriage. At the time, a very narrow view was taken as to why a woman would find herself pregnant outside of holy matrimony. There was little consideration of the pregnancy occurring due to sexual violence, for example. It was these factors that led to the repeal of the 1624 Act in 1803. The harshness of the law targeting unmarried women dissuaded juries from making use of it, resulting in few women being convicted of murder, even in cases where there was strong evidence that the child had come to harm.

Sympathy for the plight of accused unmarried women only grew over the nineteenth century. Increasingly accused women were viewed as victims of men’s deceptions and jilting. Over this period, women continued to be ruined financially and socially for baring an illegitimate child. Consequently, unmarried women’s decisions to hide a pregnancy, kill the child and then attempt to secretly dispose of the body was seen by many as an understandable response. The fact that such a woman would then be punished under the full force of the law – via a noose around her neck – while the man who caused her predicament got off scot-free was deemed notably unjust. There is clear evidence that sympathy for women impacted the application of the law. Research into case outcomes from the period provide numerous examples of women being found not guilty of murder despite substantial evidence that the child had been mortally wounded. And, as outlined above, after the mid-nineteenth century, if a woman was convicted of murder, she wouldn’t face the gallows.

Within this context, the Infanticide Act essentially formalised what was already happening in the courtroom: stopping women facing the death penalty. However, the newly created offence/defence also allowed for women to be convicted of an offence that matched their crime – a homicide offence, rather than being unduly acquitted or convicted of lesser offences, such as concealment of birth (the concealment of the dead body of a baby to conceal its birth). While the wording of the law may suggest a psychiatric cause of an offence/defence, research into Parliamentary records, notably by Professor Tony Ward, demonstrates that there was no belief that women who could make use of the infanticide legislation were ‘mad’. No connection was seen between these women and insanity. Furthermore, their disturbance of the ‘balance of the mind’ was understood to be temporary, caused by the stress of the solo birth and the context of illegitimate pregnancy. Her behaviour was understood to be more closely aligned with a temporary losing of her mind, rather than being caused by mental ill health. The expansion of the legislation in 1938 to include women who killed an infant aged up to one year was to allow leniency for women such as Brenda Hale, who, in 1936, slit the throat of her three-week-old baby while clearly suffering from a mental illness. The public and Parliament perceived that women such as Hale should be able to benefit from the Infanticide Act in addition to the ‘typical’ infanticidal woman who kills her illegitimate newborn child.

Infanticide today

The legal situation for infanticidal women is very different today from 1922. The social context is also different. For example, the stigma for women who become pregnant outside of marriage is reduced (we cannot say it has disappeared entirely, particularly in certain communities). Contraception is now highly effective and cheaply or freely accessed (although we must remember that women continue to report pressure from men to have sex without barrier methods). Abortion is also now easy to access legally (although it does remain a criminal offence if not accessed in line with the restrictions created by the Abortion Act 1967). In this context, it could perhaps be argued it is only women such as Brenda Hale who should be able to receive leniency for their crimes. That is, only the women with clear mental health conditions that caused them to kill who should escape the mandatory life sentence that comes with a murder conviction today. In which case, the Infanticide Act would be redundant as women such as Hale could rely on diminished responsibility.

However, to interpret the Infanticide Act and the context that surrounds infant killings by mothers so narrowly, misses the broader difficulties that surround these cases and the lives of accused women. Research into the nature of newborn child killing that I have conducted, published in Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother, reveals that accused women are incredibly vulnerable and that their pregnancy causes them a crisis. These are women living within the context of violence and abuse, in poverty, and in fear of their pregnancy being discovered by others. This fear and panic leads them to conceal/deny their pregnancy to themselves and those around them. The consequence is that they give birth alone and the panic and shock of the labour following the concealment/denial of the pregnancy results in a dissociative state. Women have reported floating outside of their body and watching themselves as they harm their newborn child. For women who kill older infants, the stresses and hardships that come with mothering a baby, often unsupported by family – lack of sleep, an incessantly screaming child, the difficulties and exhaustion that come with breastfeeding – can be seen to cause women to snap, resulting in her acting to harm the baby; action she almost certainly regrets instantly.

In cases such as these, the experience of the women, the context of the killings, and the nature of the mental capacity at the time of the killing does not always easily allow for the application of diminished responsibility. The benefit of infanticide is that, if interpreted in its broader meaning, ‘the balance of her mind was disturbed’ can capture the situations outlined above. Whereas, the requirement for an abnormality of mental functioning that arises from a recognised medical condition needed for diminished responsibility may not be so easily proven.

The future of the Infanticide Act

The death of an infant by its mother is always a tragedy. No more so than for the woman herself. Such women are almost always in severe crisis: if they weren’t they wouldn’t have killed the child. To make such a statement is not to dismiss women’s agency or to fail to acknowledge that an exceptionally small number of women do do awful things to children. However, this is not the norm of infanticide. The norm is a crisis and a woman who takes action in the context of desperation and with few options. Parliament and the courts understood this in 1922 and 1938 when they enacted the legislation. Somewhere along the way we have lost sight of this reality of these cases.

The Infanticide Act is far from perfect. Three recent cases of women convicted of murdering their newborn children, with their attempts to plead infanticide failing, suggests the law is not working as well as it could. Regardless, to ensure justice for women, it is essential that we remember the principles of leniency and sympathy that embody the Infanticide Act.