The Need for Judicial Interpretation of the Infanticide Act 1938

The Infanticide Act 1938, which replaced the 1922 Infanticide Act, provides for a homicide offence as well as a partial defence to murder or manslaughter. Infanticide is committed if a woman kills her infant within a year of birth and at the time of the killing ‘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’. ¹ The importance of the Infanticide Act is that it allows for flexible sentencing – almost always leading to a non-custodial sentence ² – and has reduced stigma attached to the crime compared to murder. Compared to diminished responsibility, with which it is often aligned, infanticide also offers the benefit of not placing the burden of proof on the defendant when raised as a partial defence at trial. ³

Ask any legal scholar or practitioner the meaning and scope of the Infanticide Act 1938, and they will almost certainly tell you it is to offer leniency to women who kill their infants. However, probe a little to understand the circumstances in which that leniency should be granted, and you will elicit unclear and mixed responses. One of the reasons for this uncertainty is that there is limited judicial interpretation of the basis of the mitigation in the 1938 statute. ⁴ Academic analyses, however, offer differing views of the meaning of the legislation. One strand of scholarship classes infanticide as similar to diminished responsibility, but more specifically as a bio-psychiatric doctrine that requires a mental disorder based on the hormonal consequences of pregnancy, birth and lactation. ⁵ Feminist scholars, in particular, have embraced this view, strongly criticising the law on that basis. They claim that the 1938 Act medicalises infanticide by adopting sexist nineteenth century medical theories that linked women's reproductive functions to ‘madness’, consequently ignoring the structural causes of this crime. ⁶ On the other side of the debate are those who argue that the Infanticide Act provides for a non-medical offence/partial defence based on social mitigation that does not require a mental illness and that is capable of taking into account mitigating social factors connected with pregnancy, childbirth and the mothering of a young child, and thus is more akin to the doctrine of provocation/loss of control than diminished responsibility. ⁷ These social mitigation analyses, with which we agree, view the infanticide law in its broader context and in particular look at the historical development of this law.

The two differing interpretations of the nature of the doctrine – bio-psychiatric or social mitigation – have significant implications for the applicability of this law. The lack of judicial interpretation of infanticide, however, means that it is left to lawyers, trial judges, juries and medical experts to decide in individual cases what this law means, with little or no guidance. The fact that infanticide is rarely used further exacerbates this problem of uncertainty regarding its meaning and scope. The few academic studies focusing on the application of the infanticide law, however, demonstrate that the statute has been interpreted by prosecutors, medical experts and trial judges to take account of social mitigation and to allow for women who do not have a diagnosed mental illness to rely on infanticide, thus reflecting the social mitigation interpretation of the law. ⁸ These studies indicate that (at least until recently) there was a common accepted understanding of the sort of case in which infanticide should be used. Indeed, the language itself appears to have been secondary to that shared understanding of the appropriate cases deserving lenient treatment. In particular, Mackay's studies show that up to the 2000s, the Crown Prosecution Service (CPS) seems to have consistently managed these cases through infanticide pleas. Few cases went to trial, including cases of neonaticide where girls/women killed their baby at birth and where there was little evidence of a psychiatric illness, albeit that there was evidence of psychological distress/trauma. ⁹ He argues that the law was used as a ‘legal device’ to ensure lenient outcomes in appropriate cases. ¹⁰ In its review of homicide in the mid-2000s, the Law Commission, who relied on Mackay's research, recommended that, despite problems with the infanticide law, it should remain unchanged, noting that it ‘caused very few problems in practice’. ¹¹

In the last two decades, however, there has been a discernible shift in the approach to prosecuting these cases, with the CPS proceeding to trial on murder charges, and women and girls finding it increasingly difficult to make use of the infanticide defence, particularly in cases of newborn victims. ¹² The recent case of Paris Mayo, the 15-year-old girl who killed her newborn son after a ‘crisis pregnancy’, ¹³ found guilty of murder and imprisoned for a minimum term of 12 years, is a striking example of the difficulties that currently surround the infanticide legislation. In his sentencing remarks, His Hon Mr Justice Garnham highlighted a number of significant vulnerabilities experienced by Paris, including that the ‘emotional and physical effect of … giving birth alone and unassisted was profound’, and he ‘accepted that [she] experienced acute stress and anxiety at the time of the offence, which affected [her] conduct and [her] judgment, even though it fell short of what is required to satisfy the partial defence of infanticide’. ¹⁴

The judge's remarks raise the question of what is needed to satisfy the infanticide requirements because, as we will outline in this paper, when infanticide legislation was first enacted there was little doubt that a defendant like Paris would have been able to avail of the offence/partial defence. Indeed, the situation that Paris faced reflects the ‘classic’ case of infanticide that the law was enacted to cover. As we explain in this article, the commonly held understanding of the statute when it was first enacted in 1922 meant that ‘desperate’ women and girls who killed newborn children due to extreme distress, following a crisis pregnancy and unassisted birth, would not have faced the prospect of a murder conviction. Further, as we have just outlined, evidence of how the law had been used, at least until the mid-2010s, strongly indicates that Paris is the sort of accused woman/girl who would previously have been able to rely on this law. ¹⁵

Conversely, infanticide seems to have been used without difficulty in recent cases involving women who kill their older babies within a year of birth while suffering from a diagnosable mental health condition – such as Natasha Sultan ¹⁶ and Hayley MacFarlane. ¹⁷ These cases illustrate the assumed (and, as we will argue, incorrect) interpretation of infanticide that is purported today: that it is a psychiatric defence only applicable in situations where there is a diagnosis of a specific mental health condition related to giving birth such as postnatal depression or postpartum psychosis.

Our monitoring of infanticide cases in England and Wales over the last 20 years leads us to conclude that successful convictions of infanticide over the past 15 years have been in cases similar to Natasha and Hayley – older infants, with the woman experiencing a diagnosable mental health condition. ¹⁸ However, women and girls such as Paris – who experience a crisis pregnancy, kill newborn children and, although demonstrating clear signs of significant mental distress, may not have a diagnosable mental health condition – have increasingly found it difficult to make use of the law, and so are convicted of murder. ¹⁹ Thus, it appears that the Infanticide Act is being pigeon-holed as a psychiatric defence, the assumption being that it is akin to diminished responsibility. ²⁰ Indeed, in Hayley's case both counsels submitted to the judge that for the purpose of sentencing she should take into account the diminished responsibility sentencing guidelines as it is ‘analogous to the offence of infanticide’. ²¹ We argue that this is not the correct interpretation of the infanticide law, and that currently the law is being misunderstood and thus misapplied.

Given the significant adverse implications for women/girls convicted of murdering their infants in circumstances where in the past they would have been able to rely on infanticide, it is crucial that the meaning and scope of the Infanticide Act 1938 is clarified by the courts. In this article we provide a framework for how that judicial task, which must focus on the language of the law, could and should be completed. No existing academic analyses consider in detail the wording in the statute, but rather assume that the words, which speak of a disturbance in mental balance in the context of the biological processes of birth and lactation, convey a bio-psychiatric meaning. The work that does support infanticide as a social mitigation doctrine is based on the historical roots of the law but not its language. We argue that taking account of both the language and the purpose of the statute means the Infanticide Act 1938 can and should be interpreted as an offence/partial defence that does not require diagnosis of a mental disorder and that includes social mitigation. To date, no one has done this work and so we are filling a significant gap in the scholarship.

Our interpretive analysis draws on the ‘rules’ of statutory interpretation, specifically the literal and purposive rules. In doing so, we conclude that, correctly interpreted, the Infanticide Act 1938 provides for both a medical and a non-medical defence, the latter of which can take account of social mitigation. In other words, it is broad enough to capture cases that range from the situation of a crisis pregnancy, as with Paris Mayo, through to a woman who experiences the rare condition of postpartum psychosis, such as Hayley MacFarlane. Specifically, we argue that the requirements for infanticide could be met with or without medical evidence of a mental disorder: a ‘disturbance in the balance of the mind’ denotes significant emotional or mental distress/agitation/anguish, rather than a mental health condition. Further, we argue that the effect of giving birth/lactation consequent upon birth should not be read as being limited to the biological/physiological aspects of those events, isolated from their social, emotional and psychological aspects: the social meaning and the wider social context of a woman's pregnancy, birthing and mothering experience are part of the doctrine. In this respect we argue that the statute should be interpreted to embody a holistic understanding of birth/lactation that includes the wider social context of pregnancy and birth, especially the impact of a crisis pregnancy and the environmental pressures of being a new mother caring for an infant. Such an interpretation is possible when we read the language of the statute, particularly with reference to the purpose of this law when enacted.

A further argument made in this paper is that the common understanding of cases of infanticide and their causes, and thus the purpose and nature of the Infanticide Acts 1922/1938, has been eroded over time, particularly as perceptions of women and children have changed. Historically, the vulnerability of women who killed their babies particularly in the context of a crisis pregnancy was understood, and consequently for this particular group of homicide offenders punishment for murder was considered inappropriate. However, this understanding has been lost, resulting in the collective meaning behind the law and the interpretation of the statute that Parliament held no longer being at the fore of legal, medical and academic thought. Consequently, when the language is read by contempories, and interpreted without this essential historical information and an understanding of the context of these cases, and alongside modern narratives of the meaning of sex equality and considering the rights of children, the law is easily misunderstood and thus misapplied. Essential to our argument, therefore, is the need to understand the complexities of a crisis pregnancy and mothering, and the impact of the circumstances of such a pregnancy and experience of parenting on a woman's mental state.

In this regard, we argue that for old legislation such as the Infanticide Act 1938, which is rarely used and relates to women's reproductive function and the experiences of pregnancy and birth, an historically informed and gender-sensitive approach to statutory interpretation is essential to prevent injustice. In this respect, a judicial approach to interpreting the infanticide statute must be informed, not only by the words used and Parliament's intention when creating this offence/partial defence, but also by the lived experiences of women who need the mercy the Act was designed to provide. This is particularly important in the context of a criminal law where women often struggle – whether as victims or offenders – due to the difficulties the ‘male’ law ²² has in accommodating their experiences of harm and their own acts of violence, such as in the context of sexual violence, coercive control, and the use of partial defences when women kill their abusers. ²³ Thus, an interpretation of the Infanticide Act – a law that was enacted specifically to deal with a ‘woman's crime’ and with a situation experienced as a consequence of pregnancy, birth and mothering – that judicial understandings of this law take account of these lived female experiences.

Finally, while a question arises about whether there is a need to re-consider the language in the Infanticide Act 1938 through legislative reform to offer clarity on the meaning of the law, we argue that judicial interpretation can offer at least some clarification, at least to the extent of preventing girls like Paris Mayo from being convicted of murder. It is unlikely that a judicial interpretation will solve all problems with the infanticide law, and, therefore, we will offer some observations on law reform in the penultimate section of this article, particularly with respect to the recently announced Law Commission review of infanticide and other homicide laws. Further, although there is a risk that judges too will incline towards assuming a bio-psychiatric doctrine, we argue that a more considered and gender-sensitive reflection on the language contained in the law shows that such an interpretation is not inevitable, and, particularly when Parliament's purpose is taken into account, would result in an incorrect interpretation of the offence/partial defence of infanticide.

In the following section, we briefly discuss some contextual factors that may be relevant to judicial interpretation of the Infanticide Act 1938. Following this, we put forward our argument for a statutory interpretation, drawing on the literal and purposive approaches, which adopts a broad definition of infanticide reflecting the historical roots of this law. We then consider the relevance of a purposive approach to the infanticide law in the twenty-first century, over 100 years after infanticide was first legislated for as a specific criminal offence/partial defence. Following this we offer some reflections on how an appeal court is likely to consider the issue of statutory interpretation, and highlight the importance of adopting an approach that is sensitive to the history of this law and the context of this crime. Before concluding, we briefly provide some thoughts on the potential for law reform to address issues with this law.

The Context for Interpreting the Infanticide Act

Before we begin our statutory interpretation of the Infanticide Act 1938 there are some contextual factors to be considered. First, we briefly outline the existing, though limited, judicial interpretation of the Infanticide Act, highlighting that there is nothing in existing judicial commentary on the law that prevents the wider social mitigation interpretation we argue for. Second, we outline research on the nature of maternal infant killing and the vulnerabilities of infanticidal women. As we indicate in the introduction, a gender-sensitive approach is needed when interpreting laws such as the Infanticide Act, and the lived experiences of women is crucial in this respect. Indeed, a lack of appreciation of the unique features of these cases, the gender-based difficulties that infanticidal women experience and their vulnerabilities in this context, can lead to this crime and thus the law itself being misunderstood, and consequently lead to more punitive inclinations in these cases. ²⁴ Thus, we argue that an important contextual factor for interpreting this law is a deeper appreciation of the crime at which it is directed.

Third, the Infanticide Act is not without its critics. Concerns about the legislation include: its limitation to biological mothers and the exclusion of fathers and other parents/caregivers; that the law undermines child protection and rights of the child; and, the question of whether a sex-specific offence is appropriate in the twenty-first century. ²⁵ In light of these and other criticisms, many object to the existence of this legislation on principle, and point to diminished responsibility as a better option. ²⁶ It is not the purpose of this article to justify the existence of the Infanticide Act, rather we are taking the Act as it is. Elsewhere we have argued that an infanticide offence that provides solely for women is justified, ²⁷ though we acknowledge that further research is needed to provide a comprehensive assessment of the contemporary need for the Infanticide Act. For the purposes of statutory interpretation of the law as it stands, these matters have no direct bearing on the statute. However, they are issues that may influence how this law is understood, and so may consciously or unconsciously impact judicial interpretation of the law. Consequently, we briefly offer responses to these criticisms to support our interpretation of the law.

A Literal Interpretation of the Infanticide Act

When determining the meaning of a statutory provision, judges must exercise their interpretive function within constitutional parameters and have less freedom than academics in how they approach the task. ⁶⁹ They are bound by constraints such as parliamentary sovereignty and the separation of powers, with an obligation to give effect to the ‘will of Parliament’ in enacting the law. ⁷⁰ ‘Rules’ on statutory interpretation operate to keep judges within ‘constitutional limits’, ⁷¹ and there are practical constraints including resources and time. ⁷² Nevertheless, statutory interpretation entails a degree of creativity. The ‘rules’ do not necessarily bind judges to adopt a particular method, but rather are approaches to be drawn on that may assist with determining what Parliament intended the words of the provision to mean. ⁷³ Consequently, we cannot provide an exhaustive account of how judges may approach this issue or predict the outcome of judicial interpretation of the Infanticide Act 1938. However, we provide an outline for how the statute could be interpreted, firstly from a literal or plain meaning approach ⁷⁴ to statutory interpretation, and then from a purposive approach. ⁷⁵ We conclude that it is not only possible to justify an interpretation of the Infanticide Act that supports inclusion of the wider social circumstances of birth and motherhood as key factors of the offence/partial defence, but that the interpretation we present here is the correct interpretation to keep the legislation true to Parliament's intent.

In practice, judges are unlikely cognitively to treat the literal and purposive approaches discretely in the interpretive task. ⁷⁶ Notwithstanding this, we have focused exclusively on the words themselves as the starting point for our analysis of the language of the Infanticide Act 1938, before moving on to separately consider the purpose behind the law and the impact of this on how it may be interpreted. Although this approach may seem somewhat artificial when compared to how judges interpret the law, we chose to separate the two approaches as no one has probed in detail the meaning of the words of the 1938 statute in previous analyses, resulting in assumptions as to meaning. Thus, we provide the first analysis of what the statute actually says – what the words themselves could be taken to mean – and so assess whether the language used in the statute is capable in and of itself of being interpreted in a way that reflects our understanding. Focusing solely on the language highlights the fact that the view that the law only provides for a psychiatric/bio-psychiatric offence/partial defence may be challenged. As we will now go on to demonstrate, the language of the current Infanticide Act is, at the very least, ambiguous, and in fact, as we outline, could support our interpretation of the law.

A Purposive Approach to the Infanticide Act

As the CA has noted, ‘the purpose of the [Infanticide Act] was to ameliorate the potential harshness of the law of murder by recognising that in a period after birth a mother's balance of mind may be affected’. ⁹⁸ This understanding of the purpose behind the infanticide law supports the wider literal interpretation we argued above, though it is possible that some may take the view that the merciful purpose only supports a medicalised interpretation. However, we will now demonstrate that in delving further into the history and purpose of the Infanticide Act, the social context explanation of this law emerges as the proper interpretation.

In adopting a purposive approach to statutory interpretation, the courts may explore the history and purpose of a provision in more detail to discover the intention of Parliament when enacting it, and thus discern the meaning of the words used. Previous examination of the history of this law by scholars, including us, ⁹⁹ shows that the provision of mercy per se was not the purpose behind the enactment of the 1922/1938 Acts. ¹⁰⁰ Rather, for almost 100 years prior to the adoption of the 1922 Act, mercy was already being shown to accused women. Judges, jurors, medical experts and successive Home Secretaries ensured no woman sentenced to death for killing her infant was executed, and many were not convicted of murder, ¹⁰¹ regardless of the weight of evidence against them. ¹⁰² Thus, the purpose of the 1922/1938 statutes was to bring the law in line with the public's humanitarian responses to accused women and ensure justice was done in such cases through an appropriate homicide conviction and punishment. ¹⁰³ Specifically, Parliament aimed to prevent the mischief of women being unjustly acquitted or convicted of non-homicide offences, and to ensure a suitable punishment considering that executing such women was generally considered unacceptable.

A purposive understanding of the law requires appreciation of the origins of humanitarian sentiment towards infanticidal women in the latter half of the 19th century and into the 20th century; this helps us understand why this category of offender was considered deserving of lenient treatment and the mitigation the Infanticide Act was intended to incorporate. First, in relation to the 1922 Act, humanitarian sentiment for woman who killed their newborn children was due to awareness of the social circumstances of their crime, as well as gendered understandings of their supposed mental state in such circumstances, specifically in the context of a concealed birth. Indeed, it was widely understood that an unmarried pregnant woman could be driven through shame and fear of the consequences of an ‘illegitimate’ child to conceal the pregnancy, give birth alone, and kill the baby. ¹⁰⁴ Women in such circumstances were not viewed as cold-blooded killers, but understood to have acted at a time of intense emotional/mental anguish or distress. ¹⁰⁵ Crucially, her mental state was perceived as the product of the pain and trauma of childbirth and the pressure of the wider social circumstances involved, particularly the intensely shameful experience of pre-marital pregnancy and abandonment by the man who impregnated her. ¹⁰⁶ Furthermore, her ‘madness’ was not necessarily understood as a form of quasi-insanity, and analogies were sometimes drawn with provocation in terms of explaining the basis of mitigation for infanticide. ¹⁰⁷ For example, it was argued that a proposed partial defence contained in the 1874 Bill to codify homicide law put infanticide cases ‘on the same footing as other violent excitements like fear or anger’, and in the context of the pain and shame that a woman may experience at birth, she ought to be entitled to ‘some kind of indulgence to human weakness, just as man is when under a passion of a different kind’. ¹⁰⁸ Notwithstanding this, perceptions of infanticidal women were informed by sex-based stereotypes that espoused women as the weaker, gentler sex, more closely linked to and controlled by biology than men, and more emotional and irresponsible. ¹⁰⁹

Humanitarian sentiment for infanticidal women resulted in a refusal to convict them of murder or a reprieve of the death sentence in the small number of cases where murder convictions were obtained. The tradition of judges sentencing such women to death knowing they would never be executed became known as the ‘black-cap farce’ or ‘solemn mockery’. ¹¹⁰ Judicial consternation at sentencing a woman to death knowing full well the sentence would be reprieved played a crucial role in the enactment of the 1922 Act. ¹¹¹ In this regard there was concern both about the criminal law being brought into disrepute, and also the distress it caused to women who were sentenced to death not knowing that the sentence would certainly be commuted.

Thus, the 1922 Act created a new homicide offence/partial defence: infanticide, so formalising humanitarian responses that were playing out in the courtroom by officially facilitating a merciful response to infanticidal women, while also acknowledging the seriousness of the crime she committed by ensuring a homicide conviction was obtained, with a maximum sentence of life imprisonment. ¹¹² To achieve its purpose, however, the infanticide law had to capture cases where popular sympathy meant murder was not the appropriate outcome; such cases did not involve mental illness, and the basis of sympathy lay in awareness of the social circumstances of the crime. While there is no explicit reference to social factors, they were the foundation of the mitigation the 1922 Act provided women, as illustrated in parliamentary debates on the 1922 enactment:

… taking all the circumstances of the birth, taking the immense emotional and physical strain in combination under these circumstances, those elements in the human mind which lead to action at its decisive moment have been so deranged that there is not a free decision as between the forces of right and the forces of wrong …. ¹¹³

While Birkenhead's use of the term ‘deranged’ may indicate a mental disorder/illness, and inability to freely choose between right and wrong suggests an insanity-type defence, the context of the passing of this legislation does not support such interpretations. Enactment of the infanticide law involved walking a fine line between ensuring sympathetic and just outcomes, so removing the solemn mockery, and not undermining the deterrent effect of the law, the value of infant life, or violating criminal justice norms relating to individual responsibility. ¹¹⁶ Thus, during the debates, Birkenhead was keen to explain that the law would not apply simply because a woman had given birth in difficult circumstances and wanted to be rid of her child ¹¹⁷ – there had to be an ‘exceptional derangement and disturbance’. ¹¹⁸ As Ward argues, the language adopted in the 1922 Act (and subsequent 1938 law) with its veneer of medical legitimacy, was in fact a compromise between the pragmatic necessity of changing the law and ensuring that the controversial aspects to it did not lead to its failure. ¹¹⁹ Thus, with the broader context in mind, it is more convincing that Birkenhead was referring to the need for extreme mental distress, rather than a mental illness. During the debates, he highlighted the difficulty of expressing this concept in a statute, especially considering ‘the obvious expediency of not using words which acquire a different atmosphere and intention in the Law Courts’, ¹²⁰ and concluded that ‘disturbance’ was the best that could be adopted. ¹²¹

When the infanticide law was re-enacted in 1938, the doctrine was extended to incorporate women who killed their infants within the first year of life. Parliament re-legislated following two high-profile cases of women killing infants while suffering from mental ill-health, ¹²² but where neither could rely on infanticide as it was ruled that their victims could not be considered to be ‘newly-born’ due to age. ¹²³ Humanitarian sentiment for the two women meant there was no desire to subject them to a capital conviction, or insanity verdict. ¹²⁴ Thus the purpose behind the 1938 Act was, as with the 1922 Act, focused on marrying humanitarian sentiment for infanticidal women with criminal justice objectives: specifically preventing this new version of the solemn mockery ¹²⁵ and reliance on insanity in cases where women killed older babies. ¹²⁶

Unlike with the 1922 statute, medical professionals were directly involved in the drafting of the 1938 Act, ¹²⁷ which may suggest that the statute embodies a medical defence. However, the medical-based changes made to the original offence/partial defence need to be seen as an addition to the understanding encapsulated by the language in the original infanticide doctrine, rather than a replacement of it; as noted, the foundation of the 1922 Act underpinned the 1938 Act. ¹²⁸ Thus, the purpose of the 1938 Act was to extend the application of the 1922 law to cover a different kind of infanticide, the killing of older babies where the mother may have had a diagnosis of puerperal/lactational insanity, while still providing leniency for the ‘traditional’ infanticidal woman who killed her newborn child. There is no suggestion that the original purpose of the 1922 law was to be replaced, such that infanticide would only apply in situations involving a medical diagnosis of a specific illness related to childbirth/lactation. ¹²⁹

Further, a suggestion was made by a Peer during the second reading of the 1938 Bill to widen the scope of infanticide to include ‘mental disturbance due to distress and despair arising from solicitude for the child and extreme poverty, or either of these’, as well as to increase the maximum age of the victim to further mitigate against the solemn mockery. ¹³⁰ This proposal was rejected by Dawson (who introduced the Bill), but his disinclination to frame the re-enacted law to specifically include the socio-economic causes of infanticide was based on political considerations: he, like Birkenhead, was fearful of making the Government more ‘nervous’ than they already were. ¹³¹ The fact that the medical consensus at the time also recognised the role of socio-economic factors in puerperal and lactational insanity further supports a conclusion that Parliament intended the law to include social factors. ¹³²

The history and the purpose behind the Infanticide Act 1938 illustrate that the interpretation that gives effect to the will of Parliament is that which allows for consideration of the social context of birth/lactation. Therefore, although infanticide may be satisfied through diagnosis of a mental illness related to childbirth/lactation, particularly for women who kill older infants, this is not necessary. The original infanticide doctrine found in the 1922 Act was supposed to cover situations involving extreme mental distress and could be met without evidence of a mental illness; this remained a fundamental principle of the 1938 statute.

Relevance of the Purposeful Interpretation to Understanding the Infanticide Act Today

From both a literal and purposive interpretation we conclude that this law is not bio-psychiatric in nature. Indeed, if Parliament had intended to enact a bio-psychiatric offence/partial defence in either 1922 or 1938, the law they created would have done very little to address the mischief that these statutes were aimed to resolve, namely preventing the solemn mockery and other inappropriate criminal justice outcomes in cases of maternal infant killing. Nor would a bio-psychiatric offence/partial defence have fulfilled the purpose of the law to formalise existing merciful practices that provided for mitigation based on social circumstances. A bio-psychiatric offence/partial defence would have significantly limited the reach of the law, particularly in cases of newborn killings where the woman was rarely mentally unwell due to the birth or suffering from any sort of hormonally induced mental disturbance.

Much has changed since the enactment of the 1922/1938 laws; consequently, the extent to which the original purposes behind the law remain relevant may be questioned. It may be said that the reasons for the infanticide law have all but disappeared, and that therefore the ‘purpose’ of the law may have limited value in telling us how the language should be interpreted today. We argue, however, that the core reasons for an infanticide offence/partial defence remain relevant.

The criminal law context is undoubtedly different now to what it was in 1922/1938. The death penalty has been abolished, but murder still carries significant stigma as a conviction label and is punished with a mandatory life sentence and a minimum jail term, whereas women convicted of infanticide are usually not imprisoned. ¹³³ The defence of diminished responsibility has been created, providing mitigation from the stigma and mandatory life sentence for murder. ¹³⁴ However, contemporary cases illustrate that infanticidal women struggle to rely upon diminished responsibility, and many cases of infanticide are not captured under the partial defence, notably women who kill newborn children. ¹³⁵ Belief that diminished responsibility offers a suitable defence in these cases assumes a false understanding of the Infanticide Act, which, as we have argued above, does not exclusively provide for a psychiatric defence.

The social context has also changed considerably: women now have greater control over their fertility, with improved access to contraception and legal abortion; there is greater awareness and understanding of postnatal depression, although arguably insufficient care; the stigma of unmarried motherhood has lessened, though not vanished; and there is better social and financial support for single mothers, although not necessarily good support. ¹³⁶ However, although women arguably do have better options in terms of choosing or refusing pregnancy/motherhood, there are still significant barriers for many women in both areas, and some are particularly vulnerable in this respect, as outlined above. For many reasons, mothers sometimes struggle to make ‘good’ choices for themselves and their babies due to the situations of vulnerability in which they are living. ¹³⁷ Consequently, a purposeful interpretation of the Infanticide Act still has value in terms of the contextual meaning it can offer.

Appeal Courts and the Role of Purpose in the Infanticide Act?

For an appeal court drawing on a purposive approach to interpreting the Infanticide Act the task would be tackled somewhat differently to how we have considered this issue. Despite the recognised importance of historical context, ¹³⁸ judges are restricted by time/cost considerations, and, linked with this, the evidence presented by counsel, as well as by rules on which external sources may be legitimately considered in evidence. ¹³⁹ In particular, judges are cautious about using legislative history to construe the language of a statutory provision, and specifically, there is a prohibition on relying on ministerial statements from parliamentary debates on the Bill to identify the intention of Parliament and to interpret the meaning of words. ¹⁴⁰ The limited exception to this rule ¹⁴¹ is rarely used and there remains strong judicial resistance to relying on Hansard. ¹⁴² However, although there is a particular reluctance to rely on ministerial statements to determine the meaning of the statutory language, consulting the legislative history – including official reports from committees and commissions that form a background to the development of the law, as well as Hansard – to identify the context and thus the mischief/purpose of the law is considered less problematic. ¹⁴³ Judges may also rely on Hansard to confirm they have reached the correct interpretation using a literal approach. ¹⁴⁴ Regardless, we contend that the nature of the Infanticide Act and the cases it relates to provide a specific reason as to why parliamentary debates play a crucial role in judicial interpretation.

One of the critical factors of maternal infant killing that comes to bear on an interpretation of the Infanticide Act 1938 is that it is thankfully a very rare crime. Generally, as we have outlined, women commit very little violence and the nature of their violent acts are qualitatively different to men's. ¹⁴⁵ Furthermore, over the 20th and 21st centuries, there has been a dramatic decrease in the number of cases of maternal killing of infants. ¹⁴⁶ When rates of infanticide were significantly higher (for example, in 1968, 26 women were convicted of infanticide, ¹⁴⁷ while only 7 were convicted of the offence between April 2013 and March 2023), ¹⁴⁸ the Infanticide Act was regularly used, and thus a common understanding of the nature of cases and infanticidal women, and the purpose and meaning of the statute, was shared, as the offence/partial defence was regularly employed throughout the criminal justice system. Furthermore, there was collective understanding of the need for leniency in such cases and so no broader questions arose as to the appropriateness of an infanticide conviction and the subsequent (lenient) sentences handed down. ¹⁴⁹ However, now that infanticide occurs so infrequently, it is unsurprising that the meaning and purpose of the Act has disappeared from collective knowledge and understanding. In the broader context, there has been a general hardening of the criminal justice system, with a growth in penal popularism, ¹⁵⁰ and the sentiment of leniency embodied in the Infanticide Act is now out of place with general approaches to violent offenders. As noted above, changing approaches to child abuse and arguments about equality of the sexes before the law likely further exacerbate this issue.

In this context, it is crucial for the Infanticide Act to be interpreted considering its socio-historical roots. On this basis we argue that, notwithstanding judicial reservations about relying on Hansard, what was said during parliamentary debates on the 1922/1938 Infanticide Acts are an essential source for judges to employ to understand and interpret this law. In arguing this, we are not claiming that the statements in Hansard should be considered decisive, that they carry any particular weight, or that there are no risks involved in relying on parliamentary debates. ¹⁵¹ Rather it is to highlight that these debates contain crucial insights for helping judges to understand the purpose of the law, the intention of Parliament and the meaning of the language employed.

Furthermore, the need for reliance on sources such as Hansard to understand legislation has notable significance for historical pieces of legislation that relate to women's offending, such as the Infanticide Act. Other offences relating to women's reproductive function and experiences of pregnancy and birth would also benefit from such an approach to statutory interpretation; namely, sections 58 through 60 of the Offences Against the Person Act 1861, which relate to the criminal offences of procuring a miscarriage ¹⁵² and concealment of birth, ¹⁵³ and the Infant Life (Preservation) Act 1929, which relates to child destruction. ¹⁵⁴ These offences are rarely used but have all been misinterpreted over the last ten years, ¹⁵⁵ being applied in ways that fail to reflect the fundamental principles, meanings and purposes that Parliament intended to capture when enacting these laws, ¹⁵⁶ and thus resulting in unjust outcomes for women. As we have illustrated with the Infanticide Act, to ensure justice for women in instances of criminality where they are likely to be the primary offender/defendant, and where the legislation is old and thus the purpose is no longer part of common public, legal and criminal justice knowledge, the courts must recognise the need for a gender-sensitive approach to statutory interpretation.

The need for a gender-sensitive approach notwithstanding, statements made during parliamentary debates require interpretation and there is a risk of misunderstanding when these statements are taken out of context or if too much weight is placed on them. ¹⁵⁷ For example, as outlined above, in the debates on the Infanticide Act 1922, Viscount Birkenhead's statement that an ‘exceptional derangement or disturbance’ was required to fall under the proposed infanticide legislation could lead modern readers to misunderstand the purpose and language of today's Infanticide Act if they were unaware of the context we have outlined. As this example illustrates, drafters of legislation may deliberately employ vague language to avoid drawing parliamentary attention to contentious aspects of a proposed law; ¹⁵⁸ a further point that judges need to bear in mind when employing a purposive approach to interpreting older, lesser used pieces of legislation. Given the potential resource implications for lawyers and judges in terms of delving into the history of statues such as the Infanticide Act, collaboration with legal scholars could provide important insights and should be further encouraged.

The Question of Law Reform

Judicial interpretation could not solve all the problems found in the Infanticide Act 1938, and it is arguable that reform is a better option for addressing issues with the meaning and scope of the law. ¹⁵⁹ The recent announcement by the Law Commission, following a request from the Ministry of Justice, of a review of homicide law and sentencing, including infanticide, ¹⁶⁰ offers some hope that the current Government is interested in legislative reform, though at this stage we do not know whether or when this may happen, nor whether infanticide would be included for any legislative change. ¹⁶¹ When reform was last considered, almost 20 years ago, the Law Commission examined many of the problems identified with the Infanticide Act 1938, including the question of whether social circumstances should be specifically included in the law. Ultimately, however, it recommended no change to the doctrine on the grounds that it worked well in practice, providing ‘a practicable legal solution to a particular set of circumstances’. ¹⁶² In 2009, following the Law Commission report, when Parliament amended diminished responsibility and abolished provocation, creating the new defence of loss of control, it did not alter the basis of mitigation for infanticide. ¹⁶³ Indeed, in their position paper, the Government acknowledged the desire by some to abolish infanticide, but concluded the law worked well and that diminished responsibility could not ‘provide an appropriate response to all of these cases; in particular, those mothers (often themselves very young) who kill their babies after a clandestine birth might struggle to meet the evidential requirements of diminished responsibility (where the burden of proof rests with the defendant)’. ¹⁶⁴

The conclusion that reform of infanticide was not needed arguably rested on pragmatic rather than principled grounds. Reading the Law Commission report, one wonders if the potential controversies that could arise should social mitigation be explicitly included as the basis of the doctrine was balanced against the fact that on a practical level the law as it stood was working well: women/girls who deserved lenient treatment were getting it through the infanticide law despite not being diagnosed with a bio-psychiatric, or in some cases any psychiatric, disorder. ¹⁶⁵ Our analysis of the history of the 1922/1938 statutes shows that this tension between being explicit about what infanticide is supposed to do, and the controversies a more candid expression of this would give rise to, are what lead to the somewhat equivocal language contained in the law in the first place. However, whilst in the past this ambiguity facilitated just outcomes in cases deemed appropriate for a sympathetic response, recent examples of how infanticide is being used reveal that problems emerge if we shy away from a more explicit expression of the meaning and scope of the infanticide law and the true rationale for treating such women leniently. Arguably, the space created by the ambiguity in the language has allowed for shifting attitudes, misconceptions and biases to limit the remit of this statute such that the women who were supposed to be able to rely on this law no longer appear to be able to do so.

In the current context – where the Infanticide Act is no longer working well and where there are strong objections to the law – the Law Commission and Government must take this opportunity to meaningfully engage with the fundamental issues that lie at the heart of the infanticide doctrine. Piecemeal reform to address specific problems with the statute (such as, updating the language to reflect contemporary psychiatric thinking on postpartum mental ill-health) will likely not suffice in a context where the law itself may be viewed as indefensible due to concerns about sexism, child protection, and inequality/unfairness of treatment as against other parents. Thus, the parameters of the Law Commission review, and any potential reform that follows, must enable consideration of the arguments that challenge the very existence of the infanticide offence/defence and must not elide the difficult questions that underlie it.

In the remainder of this section, we will briefly identify and outline some of the essential questions that any review of the law and potential re-legislation should address. Much of this analysis reflects our discussion of criticisms of the statute in the second section of the article and other observations we have made in the course of our analysis of the meaning of the current law, but here we illustrate the direct implication for potential law reform. As we have outlined above and elsewhere, we support an infanticide law that applies only to the biological mother of the victim, and on the basis of a defence that does not require a mental disorder and that includes the impact of social mitigation. ¹⁶⁶ Our hope is that the outcome of this review and any possible reform of the law will be in line with our position. Nevertheless, our aim here is not to argue for a particular approach to law reform, nor to answer the difficult questions raised by the infanticide law, ¹⁶⁷ but to highlight the important issues that must be engaged with for a full consideration of the law and offer some reflections on these matters. In particular, we wish to emphasise the importance of understanding the nature of this crime and the factors distinctive to it as crucial to any review of the need for a specific infanticide law and the parameters of the mitigation framework it provides for. Essentially, the review must move beyond the approach taken by the Law Commission in the mid-2000s, which placed significant emphasis on whether the 1938 Act was supported by contemporary medical thinking on postpartum mental illness, to engage with other explanations of this crime and potential rationales for retaining this unique law.

As we indicate above, at the heart of the infanticide law is the fundamental question of whether it is necessary and justifiable to offer a lenient criminal justice response to a mother who kills her baby that is not available to other killers. Thus, the review must ask whether we should have an infanticide law in the first place (and, if so, why), in addition to how such a law should be framed in the 21st century, particularly regarding who should be able to rely on it, and in what circumstances. ¹⁶⁸ However, specifically in relation to the basis upon which mitigation should be granted in the case of infanticide, and reflecting on the existing infanticide law and criticisms of it, the questions to consider would include whether:

childbirth and/or lactation play a role in partially excusing this crime, and, if so, why, and specifically whether it is the biological impact of childbirth (or lactation) that is relevant, or whether there is a broader impact these experiences may have on a woman's mental state that serves to mitigate the crime;

Related to this complex issue of the basis of mitigation, is the question of whether infanticide should also be available to fathers and other parents/carers, and, if not, the grounds upon which their exclusion is justified.

Focusing on the grounds for mitigation, undoubtedly, the link to women's biological function – the fact that she has given birth to and/or is breastfeeding the child she kills – is crucial to justifying infanticide and limiting it to mothers under the existing law. Indeed, many discussions around the current law seem to presuppose that the only way to limit infanticide to biological mothers is to base the law on her biological experiences of childbirth/lactation and/or because of the psychiatric vulnerabilities that motherhood can bring. ¹⁷⁰ A bio-psychiatric approach to mitigation is also attractive because it respects traditional criminal law norms of individual responsibility: ¹⁷¹ such a defence locates responsibility for the killing within the woman as it is her faulty pathology that is to blame. However, as we have outlined above, mitigation directly connected to reproductive function has raised concerns and criticisms, notably that it pathologises women and that medical science does not support a purely bio-psychiatric explanation for infanticide. ¹⁷² Thus, in considering how an infanticide law should be framed in the future, it would clearly be indefensible to have a law that relies purely on biological mitigation. Therefore, bearing in mind our argument that the law already implicitly includes social mitigation and is not bio-psychiatric, if infanticide is retained this would have to be on the basis that environmental stressors are unambiguously part of the offence/defence. ¹⁷³

However, as was the case historically, a frank exposition of what the infanticide doctrine includes (social mitigation, no mental disorder required), raises difficult questions and risks defeat of the law. It is essential therefore, if an infanticide offence/partial defence is to be retained, that a defensible rationale for exceptional treatment of biological mothers is articulated, one that is appropriate in light of current legal and social norms. ¹⁷⁴ In this respect, similar to what we have argued as essential to a judicial interpretation of the existing law, understanding women's experiences as mothers/women who have birthed a child – as opposed to the experiences of other parents – will be crucial to the review of infanticide. It is through identifying the factors unique to maternal infanticide that a rationale for lenient treatment of mothers via an infanticide law may be revealed, as well as a justification for excluding others from the ambit of such a law. Furthermore, falling in line with what we have argued in relation to the meaning of the law as it is currently framed, it may not be necessary to abandon childbirth as the core of the infanticide doctrine simply to avoid the risk of it being viewed as a bio-psychiatric offence/defence. Providing childbirth and its impact is viewed in an holistic way, as a life – not a biological – event, it may still provide a suitable rationale for restricting infanticide to the mother of the baby, without denying that social mitigation connected to the fact of having given birth to that child is part of the doctrine.

Engaging with women's experiences also connects to the matter of the differences between types of maternal infanticide, specifically the distinctions between the killing of newborn children as opposed to slightly older infants. To start with, as we have noted above, women who kill newborn children generally do not have a diagnosable mental illness, whereas women who kill older infants more often do, such as postnatal depression. Furthermore, the nature and circumstances of the killing of these groups of victims differ: it is the circumstances of giving birth that are significant in explaining (and partially excusing) the crime in the case of newborn victims, whereas it is the circumstances of mothering that are usually more pertinent in cases involving older babies. However, this is not to say that childbirth is irrelevant in the older-victim cases: the fact that she gestated and gave birth to the child may still be a relevant factor and something that helps to distinguish these cases from those involving other parents who kill in similar circumstances. This is not an issue we can explore in detail here, but we note, for example, that in their review of infanticide, the Victorian Law Reform Commission concluded one reason for limiting the infanticide offence/defence to the biological mother was the ‘unique’ relationship she had with her young child, the victim: it was observed that this relationship is a ‘symbiotic’ one, with both mother and baby being ‘interdependent for at least the first 12 months of the child's life’. ¹⁷⁵

It is the newborng child killing cases that are most problematic in terms of the law as it stands, as it is these women who are struggling to make use of infanticide (and diminished responsibility). As we have argued above, it was this type of maternal infanticide that the law was enacted to deal with in the first place, and so one of the crucial questions for the Law Commission review is whether we should continue to provide for a partial defence/offence in such cases. If so, then there needs to be an honest appraisal of the real circumstances of mitigation, including the fact that women who kill their babies at birth are not usually mentally ill and certainly not suffering from conditions such as postnatal depression or psychosis, which usually arise sometime after birth takes place. What these women do experience is trauma, denial, dissociation, acute stress and extreme emotions, particularly fear, all of which are connected to the pregnancy and that they have recently given birth to the victim. ¹⁷⁶ Further, it is the circumstances in which birth takes place, not the fact of birth itself, that is usually key in explaining the disturbed psychological state. If we are to provide for a partial defence in newborn child killing cases (and we strongly argue that we should), then a defence based on mental capacity/psychiatric disorders alone would not be effective, nor would a defence that cannot take account of the circumstances in which birth take place.

A further question to then consider is whether both types of maternal infanticide can and should be catered for within the same mitigation framework (as is currently the case), or whether it would be more appropriate to have separate provision for these different types of maternal infanticide in the law – one that does not require a mental disorder and is limited to the context of newborn child killings, specifically recognising the unique features of those cases, and one that caters for the case of older infant-victims where there usually is a mental disorder. ¹⁷⁷ One consideration is that in the latter case the defence of diminished responsibility would likely apply as there usually is a psychiatric diagnosis, and so there may be no need for additional provision in the law to facilitate a lenient outcome. Such an approach may be appealing particularly in addressing concerns about sexism and equality with regard to cases where fathers/other parents kill in very similar situations of mitigation – that is, where they kill as a consequence of a mental disorder connected with the particular strains of parenting a young child. Treating cases involving older victims under diminished responsibility would also challenge arguments about the value of infants/infant protection in that there is no special provision being made that potentially suggests that infants are less valued in the criminal law than other victims who are killed by those with mental disorders. ¹⁷⁸ However, in practical terms, it may prove difficult to separate out these two forms of maternal infant killing, particularly when we recall the problems that arose under the 1922 Act around the meaning of ‘newlyborn’ and thus the parameters of the law. ¹⁷⁹ Furthermore, as we indicate above, there may still be good reason for having a special infanticide law for the older cases too – a law that distinguishes these cases from when other parents kill, with mitigation that bears a clear connection to the fact of having given birth to and mothering the child.

Turning to the language of a future infanticide law, even if there is judicial interpretation of the existing law in line with our approach (that it includes social mitigation and does not require a mental disorder), and assuming the Law Commission and Government agree with this, it may nonetheless be useful to take the opportunity to amend the statute's language to minimise the risk of misconstruction in the future. To start, although, as we have argued in this article, the phrase ‘not fully recovered from the effect of giving birth to the child’ could be interpreted to consider the overall impact of childbirth on a woman in the context of the circumstances involved, the statute could be framed to be more explicit about the fact that it is giving birth in the circumstances at hand, rather than childbirth per se, that is relevant. For example, ‘the balance of her mind was disturbed by reason of the impact of giving birth taking account of all of the circumstances involved’ or ‘the impact of giving birth in all of the circumstances involved caused her to have a disturbance in the balance of her mind’ might offer more clarity on the scope of the law, particularly with regard to capturing cases of newborn child killings and the particular circumstances usually involved in those cases.

Following from this, the specific reference to lactation is odd in the contemporary context and arguably presents the biggest challenge in terms of interpreting the existing law to reflect the approach we argue for. It is difficult to see how ‘lactation’ could be interpreted in a way that captures something other than breastfeeding (even if we are to consider the impacts of this to be more than biological). However, the reality is that many women do not breastfeed but may nonetheless suffer from mental ill-health connected with the difficulty of mothering in the first year after giving birth; indeed, current medical explanations for postpartum medical disorders do not convincingly support the lactation limb of the doctrine. ¹⁸⁰ Thus, it is not contentious to say that lactation should be removed from the statute and replaced with more suitable language that conveys the reality of the basis of mitigation in situations involving older victims where their mothers are suffering from mental ill-health that is connected with the strains of mothering the child they have borne. ¹⁸¹

However, language that focuses only on the impact of childbirth may struggle to encapsulate cases involving older infants, even (or possibly especially) if emphasis is placed on the circumstances of giving birth. Consideration thus needs to be given to how to capture cases where the immediate impact of birth and the circumstances in which birth took place are no longer relevant, but where the circumstances of mothering following birth are. As with the existing law, two different limbs will arguably be needed, one that covers newborn cases and the other older infants, but which does not base the latter on lactation. Consideration would also need to be given to ensuring that cases that do not neatly fit into either category but nonetheless deserve a lenient response do not fall between the cracks, and, conversely, that cases that do not warrant lenient treatment (e.g. cases of child abuse) are excluded.

Finally, if a mental disorder is not required (as we have argued is the case with the existing law) but something more significant than an everyday psychological or emotional upset is, ¹⁸² then consideration should be given to what language would best express this concept. Arguably the existing language of ‘a disturbance in the balance of her mind’ may suffice to convey a mental state that is significantly agitated or distressed so as to reduce responsibility for the crime. However, it may be beneficial to be more explicit about the fact that a mental disorder is not necessary in order to establish a disturbance in the balance of her mind.

Some insights may be gained from the experiences of other jurisdictions with similar infanticide laws where amendments have been made to the language of the traditional mitigation framework in recent decades. Interestingly, such reforms have not entirely discarded the wording in their existing laws. For example, both Victoria, Australia, ¹⁸³ and Ireland ¹⁸⁴ reformed their respective infanticide provisions in the mid-2000s. In both cases the reference to lactation was dropped and replaced with a reference to a mental disorder consequent upon giving birth, but the language of a disturbance in the balance of mind, and the effect of giving birth were retained. These reforms suggest that there are two separate and distinct grounds upon which infanticide may be used in those jurisdictions, neither of which appear to stray far from the original basis for mitigation contained in the previous versions of the law: the first, which does not require a mental disorder and that remains unchanged from the original infanticide provision, applies where the balance of her mind is disturbed by reason of the effect of giving birth; the second, alternative, is where a mental disorder caused her disturbed mental state and where this disorder is connected with – ‘consequent upon’ – childbirth. One of the potential benefits of this approach is that it seems to reflect the reality of infanticide cases, most importantly in relation to the distinction between newborn cases (where there is no mental disorder but where the balance of mind was disturbed due to the more immediate impact of giving birth) versus older babies (where there is a mental disorder that is connected with having given birth to and mothering the child). The amendment with respect to mothers who kill older babies provides a solution to the issue of how to catch those cases where it would be a stretch to base the defence on the impact of childbirth (even if broadly conceived), given that lactation is no longer an appropriate option.

In addition to the fundamental issues of principle we have just outlined, there are several other points that the Law Commission may wish to consider in its review of the law should infanticide be retained but reformed, including whether: ¹⁸⁵

the offence/defence should be limited to children aged under one year; ¹⁸⁶

Any proposed revision of the Infanticide Act will need to carefully weigh the balance of fundamental elements of the law and the nature of maternal infant killing with popular opinion, something politicians often (and understandably) struggle to do. Although infanticide offers only a partial defence based on partial excuse, recognising reduced culpability, the mere fact that such a defence exists (being available only in cases where children aged under 12 months are killed by their mothers) undeniably raises uncomfortable questions about what this law conveys in terms of societal attitudes towards babies and women. Indeed, while statutory reform presents the opportunity to provide for a workable offence/partial defence, and particularly to explicitly adopt the interpretation we argue for in this article, such an outcome is not inevitable. Instead, review leading to reform may result in the abolition of infanticide or the law being reframed into a defence with more exacting psychiatric requirements. Therefore, as we have highlighted in our above observations on reform, it is crucial that any review of this law is rooted in research about the nature of infant killing by parents and carers, with specific attention paid to the sex of the preparator, the nature of the relationship, and context of the killing. We advocate that such work should occur before embarking on any form of legislative review of the law due to the risk that popularist arguments may result in a knee-jerk repeal of infanticide based on misguided notions of fairness and equality, and indeed child protection.

In conclusion, as we noted above, one of the original purposes of the 1922 statute was to reaffirm the seriousness of maternal infanticide. Over one-hundred years later, we hope that this opportunity to re-legislate on infanticide could also play an important communicative function in terms of restating the need for a compassionate response in the vast majority of cases where women kill their babies, whilst also recognising that their conduct – the killing of a vulnerable baby – is nonetheless worthy of a homicide conviction. In the meantime, judicial interpretation remains crucial. In particular, should an appropriate case come before the appeal courts, it may be a speedier way to resolve at least some of the more immediate issues surrounding the Infanticide Act as it stands, particularly with regard to the question of whether it is a bio-psychiatric defence or something broader, and specifically, given the issues we have highlighted in recent cases, the question of its availability where women kill their babies following an unassisted secret birth. Judicial interpretation could do much to counteract the increasingly dominant attitude towards this crime, which seems to be linked with punitive inclinations and a misunderstanding that the law is only available to women who are psychiatrically unwell. A judicial interpretation that is sympathetic to the roots of this law and the intentions behind it could also be valuable in reasserting the purpose of infanticide, something that would be an important contextual factor for any future reform. Finally, given the lack of clarity about what the law currently means, judicial interpretation would also be useful in reconsidering whether infanticide should be retained, amended, or left alone. Indeed, we cannot consider the current law's value and weaknesses, or whether infanticide should continue as an offence/partial defence, if we do not know the true meaning and scope of the infanticide law as it currently stands.

Conclusion

With this article we hope to reintroduce the infanticide law into legal consciousness so that its true meaning may be realised. The clarification of the meaning of the statute we advocate will benefit appellate judges if called upon to interpret the law in future. In the meantime, the arguments we make, and the evidence provided will support CPS prosecutors in charging decisions for relevant cases, as well as decisions around plea acceptance; defence lawyers in defending their client; medical experts in identifying factors relevant to mitigation under the Infanticide Act in their pre-trial reports and in trial testimony; and trial judges in how they direct the jury on requirements for infanticide. Our hope is that a better-informed understanding of the Infanticide Act 1938 will result in more just outcomes for women who, due to the significant vulnerabilities they experience, are not deserving of a murder conviction and the subsequent punishment.

One of the key points from the analysis presented here is that it is important for legislation to be kept alive by the courts, in terms of the understanding and meaning of a statute. This point is particularly salient for laws that are old and infrequently used. As is evident from our interpretation of the Infanticide Act, when we lose the history of the law – by this we mean the collective understanding that was once widely shared – we lose the meaning of the law. The consequence is that laws can become misunderstood and potentially misused. In making this point we are not proposing that the meaning of law should never change, nor that statutes can never be reinterpreted to meet contemporary needs – it would be unworkable if Parliament needed to constantly re-legislate to keep law relevant. However, there is a clear distinction between legislation such as the Infanticide Act, which is rarely used, and a statute that is employed regularly and so consequently a contemporary interpretation has developed; for example, sections 18 and 20 of the Offences Against the Person Act 1861. The archaic vocabulary of these non-fatal offences against the person has long been criticised, ¹⁹⁴ but these sections of the statute have remained in regular use since enactment and thus the courts have provided interpretation of the contemporary meaning of the terms. Consequently, there is little to no doubt of the meaning or purpose of this law, as illustrated by the fact that in recent years few point of law appeals have been raised, despite the frequency with which these crimes are charged and convictions obtained. In contrast, the Infanticide Act has remained dormant, hardly used. And, as we have argued, in the small number of cases where the law is relevant, such as Paris Mayo's case, lack of judicial interpretation and the forgotten purpose and meaning of the legislation hinders its effective use as a partial defence for women accused of murder.

As we have outlined, the misunderstanding of the Infanticide Act is apparent in academic analysis of the law. ¹⁹⁵ Recent case outcomes also indicate that infanticide is no longer applied as intended. ¹⁹⁶ At the time of enactment of the 1922/1938 Acts, medical professionals giving evidence, prosecutors and defence lawyers, judges and juries understood the aim and function of the Infanticide Act: they has been applying the principles that the legislation enshrined in law long before the offence/partial defence of infanticide existed. Therefore, at this time the vague and non-specific language did not hinder the application. In fact, the imprecision in the language was arguably needed to ensure the law passed by gliding over potential controversies, and proved to be a benefit of the law in respect to its subsequent use. Indeed, possibly the statute was consciously drafted with vague language to allow for a ‘deliberate delegation of discretion’, ¹⁹⁷ enabling flexible application to ensure just outcomes.

However, we cannot ignore the fact that obscure language that leaves mercy to be determined by those in the courtroom not only provides space for misunderstandings to develop, but also lends itself to gendered assumptions and subjective assessment of who is deserving of mercy and who is not. The risk is that interpretations are based on who women are and not what they do; feminists have long argued that perceptions of women's criminal culpably are closely connected to whether they are perceived to conform to gender norms of femininity. ¹⁹⁸ Research demonstrates that sexist assumptions of what it means to be a ‘good’ mother surround cases of infanticide, and those women perceived to be ‘bad’ mothers, and thus ‘bad women’ receive harsher outcomes. ¹⁹⁹ Such biased treatment is potentially a growing concern the further we move away from the historical understanding of the law. However, the potential sexist interpretation of the Infanticide Act is not inevitable, providing there is an understanding of the social context of infanticide cases and its role in applying this law. As we have already noted, women's criminal acts are not the same as men's, and questions continue to be raised about the appropriate response to the differing nature of offending between the sexes. ²⁰⁰ Specifically, infanticide is a product of the society in which a woman lives. ²⁰¹ Across different cultures and times, including in England and Wales, it has been recognised that women should not bear the full and sole culpability for their homicidal acts towards their infants. ²⁰² The Infanticide Act specifically reflects this understanding. Consequently, as we have illustrated, what we need is a contextualised, contemporary interpretation of the law, where the rules of statutory interpretation are employed in a way that is sensitive to the history of the law and the lived experiences of women who kill their infants. As we have outlined, similar conclusions can be drawn about other rarely used, historical offences that largely relate to the conduct of women, as the history of these offences have also been lost and so the risk of misinterpretation and misapplication is great. ²⁰³

We recognise that the words in a statute are ‘always speaking’, and that judges will interpret the law in accordance with contemporary rather than historical conditions to meet current needs. ²⁰⁴ However, they must also respect the ‘will of Parliament’ in how they approach the task of interpreting the language contained within the statute. ²⁰⁵ How far into the history of the 1938 Act a court would be willing to traverse is unclear, and it seems unrealistic to expect a detailed consideration of the various points of note that we have presented. However, as we have argued, for a laws such as infanticide, which deals with a rare crime of women and where so much is at stake in terms of the outcome for the accused, the history of the law is essential to understanding its meaning. This point is particularly salient as the history of infanticide as a crime is still relevant: the act of a woman killing her infant has not changed all that much over the last century. While the specific social factors that cause a woman a crisis may now be different compared to 100 years ago, the reality that pregnancy and motherhood are a time of crisis for many women, and a small number of those will go on to kill their child in a moment of desperation has not changed. The law should continue to reflect this reality experienced by a small number of vulnerable and desperate women, acknowledging that a murder conviction, mandatory life-sentence and minimum jail term is generally not appropriate. In this regard, we hope that the Law Commission's review of the Infanticide Act 1938, and any legislative reform that follows, takes the opportunity to reaffirm the need for this law and the reasons for providing special lenient treatment to this group of offending women, as well as to offer clarity on the circumstances in which the law applies.