Infanticide and the Criminal Law


What is meant by Infanticide?

Under the criminal law of England and Wales the partial defence of infanticide provides a defence for both murder and manslaughter.

The fact that the defence is only a partial defence means that someone convicted of infanticide will not be convicted of the initial charge of either murder or manslaughter but they will still face some form of criminal prosecution.

The Infanticide Act 1938

The defence is framed in the Infanticide Act 1938 which provides as follows:

  • Where a woman by any willful act or omission causes the death of her child being a child under the age of 12 months, but at the time of her 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. Notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder or manslaughter will be convicted of manslaughter.

Accordingly the following elements must be apparent for the partial defence of infanticide:

  • The death was caused by a willful act or omission

  • The baby was less than twelve months old

  • The balance of her mind was disturbed due to having given birth to the child – mental disorders such as post-natal depression will fall within this category

Burden of proof on prosecution

Beyond a reasonable doubt

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.

What will be the punishment for a mother convicted of infanticide?

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.

Has the Coroners and Justice Act 2009 made any amendment to the law concerning infanticide?

The Coroners and Justice Act 2009 has made significant amendments to the other partial defences to murder namely that of diminished responsibility and provocation (now completely amended to loss of control) but the impact on the partial defence of infanticide has been minimal.

Problems with the law of infanticide

The possibility that infanticide could be established in cases whereby a homicide could not be established was an issue which has been highlighted by the Law Commission. For example due to the interpretation of willful act this 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 only real amendment made to the law by the Coroners and Justice Act 2009 was to clarify the position that infanticide cannot be charged in circumstances which would not lead to a homicide.

Infanticide versus diminished responsibility

There is a school of thought that thinks that 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.