Infanticide - Charges, Penalties, Sentencing and Defences (NSW)

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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Infanticide (NSW)


In New South Wales it is an offence for a mother to cause the death of her infant child. This offence is known as infanticide and is closely related to the offences of murder and manslaughter.

In NSW an act or a failure to act that results in the death of another person is a homicide. Homicides offences are divided into two main categories; murder and manslaughter. Infanticide is similar to the offence of murder in that it involves intentional killing. However, it only applies where the person killed was a child under the age of 12 months and the offender was the child’s mother and she was suffering mental illness associated with the birth of the child, such as post-natal depression.

Infanticide is a much less serious offence than murder, because the law recognises that new mothers can go through some very serious mental illnesses associated with the birth of a child and that killing a child while in this state carries a lower level of culpability than killing a person under other circumstances.

Legislation

The offence of infanticide is contained in section 22A of the Crimes Act.

The section states that where the mother of a child who is aged under 12 months causes the death of the child at a time that ‘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’ then she is guilty of infanticide and not of murder or manslaughter.

The provision further states that where a woman is tried for the murder of a child under the age of 12 months, the jury may find her guilty of infanticide as an alternative verdict if it believes that at the time of the act her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child. The woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child.

What actions might constitute infanticide?

A woman may be charged with infanticide where:

  • She is suffering from post-natal depression smothers her three-month-old daughter because she won’t stop crying;
  • She fails to take her newborn back to the hospital for several days despite a very high fever and visible rash because she is depressed and can’t bear to get out of bed;
  • She fails to feed her 10-month-old baby causing it to die because she is suffering from a psychosis that has her believing that the child is the devil.

What must be proven?

To find a woman guilty of infanticide the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That she is the natural mother of the child;
  • That the child was less than 12 months old;
  • That she did an act or failed to do an act;
  • That she did the act or failed to act because she had not recovered from giving birth or was mentally ill from the effects of lactation post-birth;
  • That the act, or failure to act, resulted in the death of her child.

Possible defences

A charge of infanticide can validly be defended by arguing:

  • To argue that you did not do the acts alleged (factual defence);
  • To argue that your act or failure to act did not cause the death of the child.

Jurisdiction

Infanticide is a strictly indictable offence and must be finalised in the Supreme Court.

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