Crime and Mind
October 19, 2011
-Is the causation of death of an infant by its own mother. It is a legal (in the sense that we can talk about different kinds in
different cultures) concept, and legal in that we have it as a legal offence (which is essentially mitigation.
-It is a verdict that can be found in a case that has the possibility of being murder.
-It includes a form called maternal neonaticide (the killing of a very newborn child). Other kinds exist as well. Legally in
Canada, infanticide is usually when a mother kills her own child in the first year if its life.
-Strikingly, in Canada, infanticide is the only sex-specific crime in the Code. A father who kills his own child in the first year
of life can’t be convicted of infanticide.
-Regarding BWS, remember key themes or conclusions:
-One feature is that both psychologists who support the notion of BWS, and the rational actor feminist
sociologists (who criticize it), both believe that they are arguing on behalf of the women for exoneration. They
argue that women who kill their abusive partners in self-defence should be exonerated. They have different
ways for arguing that, but they argue it nonetheless.
-We also talked about Faigman (a legal traditionalist) who said that they should be convicted and punisher.
-When we look at what all these people want, legal traditionists argue for more conditions, psychologists argue for more,
and rational actor argue for less convictions, yet they have similarities to the traditional legal theorists. So traditional legal
and rational actor have similarities. The key thing is that both believe that we should retain our focus on the rationality of
the women in question. We should see their actions as rational. This connects to a fundamental view of what it means to
embrace the humanity of a person and thus the humanity of women. From these perspectives, to embrace one’s humanity
is to embrace their rationality. To say that women in some circumstances don’t have rationality is to insult pr diminish
-The psychologists (like Walker) don’t have the same view of what embracing humanity is at all. For them, embracing the
humanity of a person is about understanding how they function mentally, which is wrapped up in understanding the inner
workings of the mind. They also recognize that we don’t always understand why we do what we do and sometimes things
can go wrong. From that point of view, embracing humanity means embracing humanity mentally and its good and bad.
They don’t want us to put humans on a pedestal of rationality because they don’t think that’s what life is really life.
Historically, this leads to seeing men as more rational and women as more unstable. Thus, they aren’t talking about
women; they are talking psychologically about people.
-For the other side (feminist), it is important to say that we wont have depictions of women that render them as frail, we
will see them as responsible as men.
-Faigman (legal traditionists) want to see more convictions of women. They want to exclude psychological evidence
because they think its women getting away with murder.
-Schuller say psychological testimony doesn’t work and that sociological testimony can also be used. We don’t have much
evidence on this yet. However is the sociological evidence didn’t produce enormous gains in the convictions of women, it
wouldn’t be surprising how we should see women (more like Faigman)
-In infanticide, we see legal traditionists arguing that we should get rid of the psychological mitigation in infanticide for
similar reasons to BWS mitigation: women should be seen as rational and responsible and punishable.
-We also see rational actor feminists saying we should get rid of the mitigating framework, but in this case, many think the
women should be convicted. They think having the mitigation feeds into stereotypes about women. Some even want us to
do away with it.
-Thus, legal traditionists and rational actor feminists are similar in this. Their primary motivation is to restore culpability.
-So you have sociological critics of infanticide who see infanticide in the same way as BWS, but in this case, they are
pushing for conviction. Others aren’t, but some of the arguments for it are weaker***15:02. Part of the reason for that is
because the baby killed in an infanticide case isn’t acting violently against the woman in this case. The sociologist critics
are also forceful because infanticide law makes a connection between the normal process of motherhood and
psychological disturbance. So in the case of BWS, the psychologists say it is the normal reaction to repeated trauma, and
the sociologists are say that the effect is still that you are saying women are frail. In infanticide law, you are saying women
are more prone to instability and irrationality than men.
-Another strand says they are being normal and they reject the medaicalization and pathologization of deviance. They
object to it becoming legitimate through medical science ***. 17:00. This is seen as having authority behind the claim that
women are more emotionally unstable because they are women, and not because of any other reason.
-This claim that women in this circumstance should be regarded as rational and therefore punishable isn’t just a rational
actor argument because of what’s at stake, there’s a subjectification component to it. There’s an argument that the law
shouldn’t just be wrong because of how it sees women’s rationality, but because of that, it has implications for the view of
women, patriarchal culture, etc***19:36. It isn’t just that the science is wrong and claimed to be legitimate, it is that the
science appeared to be forward looking, but really it is backward looking because it reinforces traditional stereotypes
A female person commits infanticide when by a willful act or omission she causes the death of her newly-born child, if at
the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof
or of the effect of lactation consequent on the birth of the child her mind is then disturbed. R.S., c. C-34, s. 216.
s.237 Punishment for Infanticide
Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years. R.S., c. C-34, s. 220.
-Thus, all you have to know is that the women’s mind is disturbed because of child birth or lactation, and she can qualify. -You can see why sociologically minded feminists who are critical of psychologists find this more inflammatory than BWS
because of its biologically specific nature. It appears to be nothing more than psychiatry vindicating some old notion about
women being emotionally frail and lacking emotional resilience, and therefore unstable and irrational.
-There’s the question about mitigation as well. N terms of BWS, the psychologists and sociologists argue that partial
mitigation isn’t worth having because it is a defeat. In the infanticide case, that’s all you can have.
-The impact of a specifically psychiatric medicalization of women’s deviance in Canada is important through history. The
original legislation is derived from an act passed in 1922 in the UK. When the UK infanticide law was passed in 1922, it
came at an interesting time about the relationship between psychiatry in law. At this time, psychiatrists were making
presentations to law that were a threat to mens rea and other traditional legal aspects. After this time, many emphasized
therapy and such, but in the early 20 century to 1922, we are talking about an argument that was going on that
suggested that….30:12. Based on the idea that you can identify effective individuals and remove them from society, thus
you would solve crime by selective breeding.
-Here, there was an idea that certain kinds of women were likely to breed women, thus the goal was to yank them out,
sterilize them, and reduce crime. They were seen as having serial morality and morally deficient and needed to be
removed. Thus, it wasn’t about blame, but about removal.
-There was also the idea of habitual offenders as well. They were concerned about individuals who committed lots and
lots of burglaries for example. They were concerned about these people and allowed indefinite sentences for them.
-Prohibition is also connected to this by saying you can…
-So when the law passed in 1922, it was talking about women being unstable, irrational, at a time when psychiatry was
heavily involved in trying to turn the CJS into a different system than the ordinary rational actions and punishment system.
So you can see why contemporary feminists who knew the history, would read back into that something about the role of
psychiatry. There’s something about psychiatry that give legitimacy to these….
-Having a psychiatric definition for this takes away the context and located it inside you as a deficiency and as an
individual who is a member of a whole class (women). On the one hand, it individualized the cause, and
-From this POV, when in Canada we passed the act in 1948, modeled on the 1922 act, its as if the idea of overturning
criminal justice through science, you can see how commentators see it as exemplifying this attitude.
We also need to other aspects of Infanticide
Where a female person is charged with infanticide and the evidence establishes that she caused the death of her
child but does not establish that, at the time of the act or omission by which she caused the death of the child,
(a) she was not fully recovered from the effects of giving birth to the child or from the effect of lactation consequent
on the birth of the child, and
(b) the balance of her mind was, at that time, disturbed by reason of the effect of giving birth to the child or of the
effect of lactation consequent on the birth of the child,
she may be convicted unless the evidence establishes that the act or omission was not willful.
This section means that if the Crown charges infanticide and proves that she intentionally killed the child but doesn’t prove
mental instability, the jury can still find for infanticide even without the psychological proof. So the crown doesn’t have to
prove psychological disturbance. This on the one hand, means that it takes away the notion that this is psychiatric. On the
other hand, you could argue that it emphasizes the fact that the woman is psychiatrically disordered. ***41:00 because it
states that any woman in that situation can be assumed to be mentally disturbed
S.243 Concealing body of child
-Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has
been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
-Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under
section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as
the case may be, but guilty of an offence under section 243.
-You can charge the mother with concealing the body of a child, or concealment, can be a lesser included offence in an
infanticide or murder charge. Thus, she can be convicted of concealment instead if you aren’t sure about murder or
-A female person who, being pregnant and about to be delivered, with intent that the child shall not live or with intent to
conceal the birth of the child, fails to make provision for reasonable assistance in respect of her delivery is, if the child is
permanently injured as a result thereof or dies immediately before, during or in a short time after birth, as a result thereof,
guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years.
-Neglect wasn’t tied to infanticide, but they are saying that if in an attempt to conceal a child, but fails to take steps to gain
assistance, that it an offence.
-Concealment and Neglect: Before infanticide was passed, these were used in an attempt to secure convictions as a back
up for murder.
(1)Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner
that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to
imprisonment for life.
(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.
-This means that a mother cannot kill her child prior to it being completely delivered and in an attempt to escape
conviction for infanticide.
-Recording 2: We have gone through the different statutes and the fact that you don’t have to prove a mental problem to
get a conviction. Also, that concealing the birth of a child is illegal, and also law about killing a child during delivery. Now
we will tak about the history of the law, how it is used, and where we are going. For many contemporary feminist critics,
the time in which it was passed was a red flag that this was psychiatry coming in, distorting traditional criminal ustice
notions with a doctring that implied… we have also mentioned that this is rejected in favor of a rational actor approach and
in this case, it leads much more for conviction. Feminist women also argue lots of times that it is necessary to have more
convictions becaue they are treated as frail, irrational, and such which reinforces stereotypes them.