Infanticide


In NSW it is an offence for a mother to cause the death of her infant child.

The offence of infanticide is somewhat complicated, particularly because of its close relationship to the offence of murder and manslaughter.

In NSW an act or a failure to act that results in the death of another person is considered to be a “homicide”. Homicides are then divided into two main categories; murder and manslaughter. Infanticide is similar to the offence of murder and applies where the person killed was a child under the age of 12 months and by their mother who was suffering mental illness associated with the birth of the child – such as post-natal depression.

The maximum penalty for manslaughter is imprisonment for 25 years.

The Offence of Infanticide:

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

  1. Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve 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 consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child.
  2. Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but 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 such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child.
  3. Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth.

What Actions Might Constitute Infanticide?

Examples of infanticide may include:

  • Smothering your 3 month old daughter because you’re suffering from post-natal depression and she won’t stop crying;
  • Failing to take your newborn back to hospital for several days despite a very high fever and visible rash because you are depressed and can’t bear to get out of bed; or
  • Not feeding your 10 month old baby so that it dies because the psychosis that you’re experiencing has you believing that your child is the devil.

What the Police Must Prove:

To convict you of infanticide the prosecution must prove each of the following matters beyond reasonable doubt:

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

Possible Defences for Infanticide:

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you did not do an act or did not fail to act;
  • To argue that you were not the mother of the child;
  • To argue that the child was not under 12 months of age;
  • To argue that you did not cause the death of your child; or
  • To raise self defence, necessity or duress as the reason for your conduct.

Which Court Will Hear Your Matter?

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

 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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