The offence/defence of infanticide: A view from two perspectives

Abstract

This article asks whether the time is right for abolition of the offence/defence of infanticide. To this end, a two-pronged approach is taken, examining infanticide initially as an offence, and then as a defence. In terms of the offence of infanticide, consideration is given both to the concept of the ‘infanticidal mother’ and to the status of infants below the age of 12 months. When considering the defence of infanticide, examination is made of the exclusive nature of the defence and of the scope for an individual to be a ‘partial’ moral agent. The contradictory nature of infanticide, being both inculpatory and exculpatory, suggests the need for a theoretical rationale that justifies disallowing the offence/defence to, inter alia, those women who kill their own children over 12 months and to men who suffer similar ‘environmental’ postnatal depression. It is suggested that women who kill their children while suffering from the ‘after-effects’ of childbirth are either, depending on the severity of mental disorder, fully competent and therefore criminally responsible (although perhaps entitled to a lesser sentence due to a reduction in culpability) or fully incompetent, therefore incurring no criminal responsibility at all. This proposal can be achieved by recognising that there is a place for reduced culpability or a complete absence of responsibility to fall within the current defence of diminished responsibility or within the Law Commission’s recommended alternative to the insanity defence of ‘not criminally responsible by reason of recognised medical condition’.