Infanticide and the criminal law

Under the criminal law of England and Wales, infanticide is both an offence in its own right and a partial defence to the charge of murder. Only a biological mother who kills her own child within 12 months of the birth can be charged with infanticide or rely on it as a defence. The death can be by either act or omission.

Under s 1 of the Infanticide Act 1938, (as amended by s 57 of the Coroners and Justice Act 2009), infanticide can apply where a woman:

• by any wilful act or omission;
• causes the death of her child who is aged under 12 months;
• but at the time of the act or omission 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 caused by the birth of the child then;
• notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder;
• she shall be guilty of an offence of infanticide; and
• may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.

R v Gore (2007) EWCA Crim 2789 established that there is no need for all the ingredients of murder to be proved before a defendant could be convicted of infanticide. The case confirmed that the aim of Parliament was to create a new offence of infanticide which covered circumstances much wider than offences that would otherwise be murder. The mens rea for infanticide, therefore, does not require any intention to kill or cause serious bodily harm.

In a case where infanticide is claimed for an offence that otherwise would have been framed as murder or manslaughter the burden of proof is on the prosecution to disprove a claim of infanticide beyond a reasonable doubt.

The maximum penalty for infanticide is life imprisonment. However, in practice a non-custodial sentence is usually the outcome. This non-custodial sentence will however, often be subject to a treatment or a hospital order.

The possibility that infanticide could be found in cases whereby a homicide could not be established was an issue which has been highlighted by the Law Commission. For example, the interpretation of ‘wilful act’, could include a negligent act which falls below the standard of gross negligence which is necessary for the offence of manslaughter to be established. Following this, the Coroners and Justice Act 2009 clarified the position that infanticide cannot be charged in circumstances which would not lead to a homicide.

Some feel the law surrounding infanticide should be abolished with the defence of diminished responsibility applying to this situation also. This has however, been rejected by both the Law Commission and the government as it is felt that in certain situations a mother who has killed her baby after giving birth in a clandestine environment – often very young mothers – would be unable to successfully plead diminished responsibility where the burden of proof rests with the defendant.