Infanticide

Infanticide was common in Australia in the early 1900s because an illegitimate birth and lack of child care would lead to dire social and economic consequences for a woman. The danger and cost of illegal abortion added weight to the mother’s decision. Today, the offence is viewed through the lens of post-natal mental illness, recognising that a new mother who kills their child while in this state is less culpable than someone who kills in other circumstances.

What Is Infanticide?

The offence of Infanticide in Victoria involves the killing of a child aged under 2, and is found in section 6(1) of the Crimes Act 1958. The Act states that a woman will be guilty of Infanticide, and not murder, if at the time she caused the death of the child she had a mental disturbance due to:

• not fully recovering from the birth or;
• a disorder as a consequence of giving birth.

The mother will be liable to a maximum penalty of imprisonment for 5 years. Courts rarely impose prison terms for the offence, however, opting for less severe penalties such as a Community Corrections Order.

For a woman to be found guilty of the offence, it must be proved beyond a reasonable doubt that:

• she was the natural mother of the child;
• she carried out the conduct that caused the death of the child;
• the child was aged under 2;
• her mind was disturbed due to not fully recovering from the child’s birth or due to a disorder as a consequence of giving birth.

What Actions Could Constitute Infanticide?

Examples of when a woman may be charged with Infanticide include where:

• she has been unable to sleep for weeks and is mentally unwell as a result, and gives the child a lethal dose of sleeping medication;
• she is suffering from post-natal depression and smothers her child because the child won’t stop crying;
• she fails to seek medical help for her seriously ill child because she is too depressed to leave her home.

Which Court Will Hear the Matter?

Infanticide is an indictable offence and must be heard and determined in the Supreme Court. 

Possible Defences to Infanticide

The following defences may be available for an Infanticide charge:

• 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.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.