WDW365 20 October 2011.docx

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WDW365 Infanticide 20 Oct, 2011-10-20
-infanticide is the only sex specific crime in the criminal code
Battered Woman Recap
-legal traditionalists argue for more convictions of women, psychologists argue for less
-rational actor sociologists have some arguments in common with legal traditionalists
-both believe we should retain our focus on the rationality of the women in question; not product of capacities for
reason, but specifically that when we think about the action, it is a rational action
-embrace women’s humanity is to embrace their rationality
-to say that women don’t have rationality at some times whereas men always do is to degrade them
-women traditionally are seen as less rational and more emotional
-see women as just as rational and therefore just as responsible as men
Returning to Infanticide
-legal traditionalists argue we should get rid of psychological aspects of infanticide mitigation; women should be seen as
completely rational and responsible and punished accordingly
-infanticide mitigation feeds into stereotypes of women; legal traditionalists/some rational actor feminists
-legal traditionalists say they are embracing feminism, although they still want to convict them more
-infanticide law states that women are biologically more prone than men to instability and irrationality
-pathologization of women’s deviance; not just that women are being described irrational through biology, but that it
somehow connects to psychiatry there is a legitimacy stating that it is correct, this is suspicious
-science proving that women are more emotionally unstable precisely because they are women; due to childbirth and
lactation
-critique of impact of having an infanticide law due to its social effects
-science appears to be forward-looking but is actually not because it reinforces statements of women; like racist science
-s.233 infanticide law
-maximum penalty for infanticide is 5 years
-do not need to make reference to insanity law to have this offence; woman can be convicted of a much less offence
than murder; a woman can raise insanity if they meet the criteria instead
-question of mitigation? for battered woman syndrome, psychologists argue that partial mitigation is not enough
-psychiatric medicalization of woman’s deviance
-original legislation of infanticide is derived from a 1922 act in the UK (what is current UK act?) in 1948
-infanticide law takes away the social circumstances; locates deficiency inside the individual as a member of a whole
class, not just social or economic class has a particular way of individualizing the mental disability, and also de-
individualizing it in the sense that certain women react in certain situations etc.
-if crown charges infanticide and proves intentional killing of child but does not prove mental disturbance or that it was
linked to child birth/lactation, the court can still convict for infanticide
-this could cut out the necessity that there was a mental disturbance involved or it could emphasize it, saying that we
assume that part even if there is no evidence, just because the act of the woman is so monstrous it cannot be rational
-s.243 concealing body of child; maximum 2 years penalty
-concealment can also be part of infanticide case if infanticide is uncertain
-concealment and neglect charges
-s.238.1 causing death before birth; life imprisonment?? mother or person doing it to or for the mother; killing not
completely delivered child (so as to avoid murder or infanticide charges); in the process of labour
-question of whether the child was fully delivered
History of Infanticide Law
-based on notion of mental disturbance due to childbirth and lactation could be criticized
-history is important to understand the full extent of issues at stake
-key history is in 50 years before the 1922 act in UK
-hostile approach to infanticide long predates 1922; murder charge would have been brought
-before this, infanticide had been marked out as a special crime 1624 act UK, concealment act which said concealing
body of a child was a capital offence woman’s onus to prove the child had been born dead
-intended to protect illegitimate children from murder- women should not get away with reputations
-in late 19th centuries, severe laws with infanticide existed; system whereby sexual wrongs would haunt woman
-hard to get murder convictions in these cases; particular case (maternal neonaticide) young unmarried woman has a
child out of wedlock being seduced by a social superior; juror refuse to convict for murder (capital offence)
-jurors were sympathetic to the woman for being left by the man and to keep their good reputations, also understood
child’s life would be miserable, as it would be marked out as illegitimate; so didn’t think women deserved capital verdict
-woman’s actions enforced morality that having children out of wedlock is bad, and so less punishment
-infanticide law in 1922 is a mitigation from murder but is a prosecutorial strategy; trying cases in which there has been
a homicide and no conviction can be found; infanticide registers a homicide conviction that is reasonable
-UK law is a defence to murder; conviction of manslaughter ; woman’s disturbance is not seen as fully exonerating; but
mitigation is only partial; they are still somewhat guilty in 1922
-concept of diminished responsibility
-Ward; 1922 act only focused on newly born in neonaticide cases; idea of emotional reaction to childbirth fit into
common sense perspectives of what people thought; that it was a stressful event, especially for women in these
circumstances, and that they might experience irrational thought as such
-exhaustion psychosis in 1920’s, occurred in women who usually had other children already who were poor,
malnourished and became exhausted from breastfeeding and from birth and that another child would overwhelm them
and cause exhaustion psychosis
-1922 act was not a way of medicalizing the situation, but of creating a new framework for what jurors had sympathy for
previously; it psychologises their behaviour, but does not involve psychologists
-amendment in 1938 in reference to up to first year of life and lactation
-before 1948; just psychosis, not related to birth and lactation
-Canada enacts the unamended act of 1922 instead of later acts after practice
-also do not bring it in as a defence to murder, but bring it in as a separate charge, new offence
-the crown has to charge murder or infanticide, can’t choose both
-fact pattern for murder or infanticide is identical so double jeopardy attaches; if you are convicted for murder, you have
to keep the conviction; it cannot change
-3 years after act is passed; Marchello case, if prosecution brings in infanticide as a charge, the crown has to prove
mental disturbance and that it was a result of childbirth/lactation
-use of getting infanticide convictions in order to easily get convictions backfires
-lactation issue was amended in after
-R. v. L.B. crown attempted to argue that a woman couldn’t offer infanticide as a defence; she was charged with murder
and court of appeal allowed her to use defence, as in UK
-there is much less sympathy nowadays for cases of infanticide because of reputation change, ability of woman to be a
single mother, rights of women, abortion, contraception, child mortality rate lower
-child abuse homicide, sudden infant death syndrome
-R. v. Effert; prosecution pushed for murder where there is clear evidence for infanticide; 2 juries found guilty, on
appeal, overturned verdict and substituted infanticide on the grounds that murder convictions are unreasonable
strange that 2 juries worth opinion is overturned and found unreasonable
-1940s; psychosis of postpartum is not a special psychosis induced by child birth or lactation but is just a psychosis
induced by a number of factors that may include child birth/lactation