Should Mothers Who Kill Their Babies Ever Escape a Prison Sentence?

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Raising a newborn is a tough job for any mum, but for some it is a particularly difficult struggle.

Postnatal depression, also known as postpartum depression, is a condition that affects around 16% of Australian women after childbirth, manifesting in symptoms of sadness, sleep deprivation, social withdrawal, anxiety and exhaustion.

In most cases, postnatal depression can be managed and overcome through therapy and medication. However, in serious cases it can cause psychotic episodes, during which a mother may inadvertently harm or even kill her child.

It is estimated that postnatal mental health issues are the cause of around 8 out of 100,000 cases of infant homicide (infanticide) each year in the United States.

So what does the law say about infanticide where postnatal depression is a factor?

About Postnatal Depression

Like other depressive illnesses, the precise cause of postnatal depression is unknown and largely dependent on the individual.

Psychologists postulate that a family history of depression, marital issues and psychological and physical trauma can all increase a woman’s chances of developing postnatal depression.

Postpartum psychosis is a form of postnatal depression which may cause a mother to experience psychotic episodes after childbirth. Sufferers may exhibit delusions, irritability, violent tendencies and euphoria – and may lose the capacity to distinguish between right and wrong.

Statistics indicate that between 1 and 4 women out of every 1000 who give birth will experience postpartum psychosis.

Women suffering from this condition may lose their judgment when it comes to caring for their child – many describe feeling ‘paralyzed’ by fears that someone is out to harm their newborn – and in serious cases they can suffer a break from reality, during which they may harm themselves or their child.

But psychologists maintain that incidents of infanticide which can be attributed to postpartum psychosis are rare. It is estimated that 4% of those suffering from postpartum psychosis will go on to kill their children.

What Does the Law Say?

Like other crimes attributable to mental illness, infanticides that are linked to postnatal depression are often treated differently under Australian law.

Those accused of killing a child in ‘cold blood’ will normally face murder charges and a maximum penalty of life imprisonment, as well as a standard non-parole period (SNPP) of 25 years. An SNPP a reference point or guidepost for the judge when determining how long an offender should spend in prison before being eligible to apply for release.

Alternatively, a jury may find a person guilty of manslaughter where they kill a child accidentally or unintentionally in circumstances less serious than murder. This gives rise to a maximum penalty of 25 years imprisonment.

But where postnatal depression or psychosis comes into play, the penalties can be much lower. This is because there is a specific offence of infanticide under section 22A of the NSW Crimes Act.

Infanticide refers to the killing of a child under the age of 12 months by mother’s wilful act or omission, where there is evidence to prove that:

‘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 consequent upon the birth of the child.’

Essentially, section 22A (1) says that a mother might be convicted of infanticide instead of murder where there is evidence that she was suffering from a condition such as postnatal depression or psychosis at the time of the offence.

Alternatively, she can raise a partial defence to murder under section 22A (2), which if accepted will give rise to a finding of guilt for infanticide, which has the same 25 year maximum penalty as manslaughter.

Infanticide Cases

Some mothers convicted of infanticide have ended up escaping a prison sentence altogether.

The 2001 case of R v Cooper involved a mother who killed her 7-month-old daughter Chloe by suffocation. She received a four-year good behaviour bond after pleading guilty to infanticide.

While acknowledging the ‘obligation on the courts to signify its respect for the sanctity of life and to punish those who wrongfully take it,’ Justice Simpson deemed a non-custodial penalty appropriate due to Ms Cooper’s personal circumstances.

The court heard evidence that Ms Cooper had a disadvantaged childhood; that she was developmentally delayed, suffered ongoing mental health issues, and exhibited remorse after admitting to killing her child. In these circumstances, Justice Simpson found that ‘little real culpability could be attributed to the perpetrator.’

Indeed, all three offenders sentenced for infanticide offence between July 2000 and June 2007 received section 9 good behaviour bonds, according to the Judicial Commission,

Should We Change the Law?

There have been a number of calls to amend the law of infanticide over the years.

Critics of the current law point out that it was introduced back in 1951, at a time when little was known about postnatal depression, and that the section is outdated and in need of reform.

In 1997, the NSW Law Reform Commission recommended that the section be subsumed into a the more general defence of ‘substantial impairment by abnormality of the mind,’ which acts as a partial defence to murder, reducing it to manslaughter.

The Commission suggested that this may overcome issues where a range of mental health problems – rather than postnatal depression on its own – may have contributed to the death of an infant. However, these recommendations never eventuated.

The Commission tried to have the law changed again in 2013, recommending that section 22A be retained, but that amendments be made to bring it in line with contemporary medical knowledge and infanticide provisions in other states.

The recommendations were to ‘remove the biological nexus between childbirth and mental illness, remove the reference to lactation, replace the term ‘wilful act or omission’ with ‘carries out conduct,’ and redefine mental impairment, removing the requirement that the balance of the mother’s mind be disturbed.’

But as is often the case, none of the Commission’s recommendations have been adopted.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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