Crime and Mind
October 27, 2011
-We will reprise, and build on last week’s info,
-Last week we covered material in the historical articles. This week we will look at Bauman who wants to get rid of insanity
law. And we will also look at O’Donovan, who summarizes the feminist objection.
-The 3 core infanticide sections were talked about last week (penalties and what has to be proven to convict). We also
discussed other parts of the framework that are connected to it. We talked about the technical one that is designed to
prevent mothers with assistance killing the baby in delivering and avoiding infanticide because it isn’t a living being. We
also talked about concealment of birth (where the child has died and you conceal the birth in those circumstances) and
neglect to obtain assistance, which is where the attempt is to kill the child, but you fail to get proper assistance in
childbirth, is an offence. These are uniquely gender specific crimes.
s.233 A female person commits infanticide when by a willfull 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.
-The courts brought the 1-year limit in 1938 in England. It was assumed from the beginning in
s.237 Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term
not exceeding five years.
-So a homicide is registered, but in relation to a murder conviction, it is strongly mitigated with a
punishment maximum of 5 years.
-So a woman commits to killing a child under 1 year. She isn’t mentally disturbed enough for inanity, but is disturbed
because of childbirth or lactation. This section ha been attacked. It singles out women as capable of getting this mitigation
(unlike dads who kill the kid in the first year which is more common) and it links the idea that childbirth and lactation
(normal processes) cause women to become mentally unsound. It is criticized as an extreme example in law of the
Medicalization (psychiatrization/pathologization) of women’s deviance. Feminist critics think that when it comes to
women’s deviance (similar to BWS), that people need the psychiatric notion to understand why women would do this
terrible thing. It is lined to the **idea that women aren’t as rational as men. Their nurturing and maternal functions make
them emotionally wobbly. Thus there is rationality (men) and irrationality/nature (women), which is a cultural stereotypes.
-Critics of the medicalization of women’s deviance and its dangers are alerted to that because the idea of infanticide (with
mental dithurbance) came in 1922 in the UK. That time frame is important because it is the end of the 19 and beginning
of the 20 , where we see the development of an idea within psychiatric and psychological circles that criminal justice is
itself somehow wrong. This has changed somewhat. Thus it lends to the idea that people who commit crimes are
psychiatrically disturbed, and we need experts to help with that **16:03.
-The idea was that these families weren’t teaching people to misbehave but they were biologically inferior. So the idea
was that you can blame and punish, but that’s not why people commit crimes. They commit crimes not because they are
blameworthy, but because they are defective. **17:31. This has led to unacceptable controls like forced sterilization. Thus,
women aren’t committing so many of the crimes, but they identified the mothers as the carriers of this bad seed and they
are likely to breed criminal males. Thus, you should sterilize them and they wont be able to have kids. This notion led to
the identification of women as mentally and morally deficient. They would be seen as a threat to social order. This is
linked to other movements like the idea that juvenile delinquents weren’t bad and can be fixed by taking them out of the
-So when you look at the 1922 act, they thought it was psychiatry trying to distort the notions of criminal justice. It fed into
an idea that it had sexist views of women that it took to be scientific at the time.
-When people look back at the passage of this in 1922, they see this as an example of the notions of science and
psychiatry being dangerous. The idea that women’s deviance should be understood in psychiatric terms is a double edge
sword (on the one hand, leniency with infanticide law, but also it subjects women at risk of hurting kids to intense
psychiatric scrutine). Thus psychiatry os often seen as a fierce surveillance and control of women. From that point of view,
people argue we don’t need that law anymore.
s.663 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 wilful.
- All you have to show is tht she intentionally wanted to kill the child. This seems to dismiss
psychiatrization because this section suggests you don’t need to bother with it. On the other hand,
since mental disturbance is written in the original section, if you show that she kills the kid in the first
12 months, you simply assume she is disturbed, which may be more powerful.
-Thus, those who make the critique that the 1922 act brings psychiatry into the law, they recignize that the reson for
passing this law is that they couldn’t get convictions in these cases. The typical scenario is a woman who was seduced by
a superior, he got off scott free, and she has her reputtion ruined. The kid is seen as having a horrible life ahead of it, It
also appears clear that they didn’t regard the loss of a child as negative as they do not. Thus, they wouldn’t convict for
murder, concealment, or neglect to obtain assistance. The reason is that the medial evidence that the kid was orn alive
was very uncertain. Rthey did a floating lung test, etc. However, there is no doubt that even though the juries had every
right to find that the case wasn’t proven, but they just weren’t likely to convict. From that pov, the critics say psychiatry was brought in by the Crown to medicalize women’s deviance, in order to overcome the problem of juries who had a
social understanding of what the women were doing. They saw it as rational in the circumstances.
-We spoke about the evidence against that interpretation of the history, but Ward shows that this is wrong. Psychiatry was
gaining more respect, but it hasn’t played much part in the passage of the act. Ward says it was a cultural idea at the time
that women were distressed during child birth, thus is made sense to people that child birth could explain the situation and
thus they could mitigate these instances. So it wasn’t bringing psychiatry into the law, it was codifying the intuitoion they
-Psychiatrists also pushed for changes in the law, and the law was amended make reference to lactation, which seems to
be even more offensive. Childbirth is an extraordinary experience, so saying that lactation causes the mental instability is
absurd. It is the normal process of child birth that makes them distressed **36:02. It was poor women with more than one
child, who were struggling to care for the kids, and the poverty caused real malnutricion. Psychiatrists said that the fact
that the body was producing extra strain on the body which produced a break down. Thus psychiatry is saying they have
knowledge about certain kinds of insanity (exhaustion psychosis) and such that were relevant to the law. At the time they
were concerned about other kinds of insanity (septicemia- an infection due to child birth), thus other bio-physical and
psychological disturbances were dentified. In the 1938 ammendment, was the idea of these very poor women who were
exhausted and thus have a breakdown. When it was brought in in the UK, it ws brought in as a defence (the charge was
murder, it was a defence, and it could result in manslaughter).
-When Canada brought it in, in came in in an odd way. They brought it in as it originally was (the 1922 wording) ignoring
the fact that there had been amendments. Also instead of it being a defence to a murder charge, it is brought in as a
different charge. Thus, it is either infanticide or murder, but because the fact pattern is the same, if you are acquitted of
one, you cant be charged with the other. Afetr it is brought in, a jufge ruled that since it is a charge, the onus os on the
Crown, which gives rise to situations where the Crown has charged with infanticide becaue it can’t get murder, but
***39:23. They bring it in as a possible lesser included. They tidy it up with s.663, so that ….
-It is still not operating as a defence. In the revent case of r.v.L.B, they said it actually can be used as a defence. Since the
mid 1950’s, things have changed. The cultural tolerance for illegitimate kids and premarital sex has changed considerably,
access to contraception and abortion, etc. So the pressures of women have changed.
-You can also argue that the pressures f exhaution are no longer useful because of welfare.
-There has also been a dramati concern with child abuse. Neglectful and abusive parents are regarded very negatively. It
is a concern of pathologuists and coroners too as they find evidence of abuse more frequently. They also constructed the
category of child abuse homicide where there’s evidence that a child was being abused, no one helps, then it persists,
and they are killed. Thus, they describe it in that way. However, they begin to use the category where the evidence
doesn’t even suggest that.**43:30
-Within that context, apart from the fact that we have these arguments, proesecurots befin to stop [referring infanticide and
instead prefer murder here. In that context, we see that r.v.LB is important, because if Crowns will press for murder
charges an if you cant have infanticide as a defence, it is harder for the defence to account for what’s going on. Thus,
because crowns press for muder, the judges have said that it has to be available as a defence.
-Though the prosecution is concerned about not getting murder convictions, it is probably easier to get murder
-In r.v.Effert and R.v. LB ***48:00
-Psychiatrists keep talking about there being specific post partum mental illness. Exhaustion psychosis and such were
described as different mental illnesses, but a consensus developed that said they are just ordinary psychoses, though
these things caused them. So the idea that there was special lactation child birth psychoses isn’t really accepted
-Doctors talk about 3 levels of post partum disorders (baby blues, post-partum depression, and post-partum psychosis. )
the first two of these aren’t likely to give rise to an insanity verdict type symptom).
-She wants to show that we should move forward. The history is more negative. If someone is making a specific historical
point about psychiatry and the Medicalization of feviance, it is wrong****53:20. She wants us to move on and get rid of the
whole finding of infanticide for good reasons.
-She gives a precisely traditional legal-traditional critique of infanticide law. She is concerned not just that the law is
wrong, but that there’s still a reluctance to find that parents (mostly mother) have intentionally killed their kids. We still
don’t want to face up to the fact that parents kill their kids. She frames this in terms of other assault cases, sentencing,
etc. The crucial thing is that she said juries and judges are reluctant to conclude that the mom intended to kill the child.
She says that juries wont even see the intent when they can avoid it. This is exactly what the traditional model is about.
She killed the child, but can you infer that she had it in mind and intended it. Often, it is obvious what someone’s intent it.
In most murder cases, the intent is obvious. When someone shoots another in the head, you know they intended to kill
them. She is saying that in this instance (infanticide) they wont make that leap.
-She said that SIDS may be intentional homicides and ordinary killings. She talks about shaken baby syndrome.
Pathologists sai they could detect when it had been shaken so violently that it caused dea