Murders where mothers kill their babies are thankfully rare, however recent cases raise questions about the legal framework surrounding this offence, and whether laws concerning murder, manslaughter and infanticide are applied in a way that protects not only vulnerable children but also vulnerable women.
The Infanticide Act 1938 is a significant piece of legislation that can only be committed by a woman against her biological child which must be under 12 months old, and arises in circumstances where she is accused of causing the death of the infant by wilful act or omission at a time when the “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.”
Under Section 1(1) of the Act a woman may be charged with infanticide or raise it as a defence to murder under Section 1(2).
A woman found guilty of infanticide may expect the equivalent sentence to an offence of manslaughter, namely a maximum life sentence; although Mackay’s study of cases between 1990 and 2003 found most infanticide convictions resulted in a non-custodial sentence, frequently in the form of a hospital order.
In any circumstances where it appears a crime has been committed, the Crown Prosecution Service (CPS) determines which offence will be charged. Usually, they opt for the offence that is the most straightforward to prove on its facts. They have no obligation to choose a charge with a more favourable sentencing regime for the defendant or one which makes it easier to raise a defence.
After identifying a chargeable offence, they apply the Full Code Test. This is a two-stage test which requires the CPS to consider whether there is sufficient evidence for a realistic prospect of conviction, and whether it is in the public interest to pursue such a prosecution.
Offences where mothers kill their babies often have significant evidence pointing to the perpetrator to satisfying the first limb of the test; and the second limb is usually satisfied, even where there is a strong indication of the defendant’s vulnerability, due to the large public outcry these cases provoke.
Despite the availability of infanticide as a chargeable offence, the CPS seem to be charging women who kill their babies with an offence of murder or manslaughter.
The following cases reflect the current trend:
- In June 2017 Rachel Tunstill was convicted of murder after stabbing her baby with scissors shortly after giving birth. She appealed on the basis infanticide should have been left open to the jury as a defence. She was tried again and convicted of murder in 2019. She was sentenced to a minimum term of 17 years imprisonment and died in prison in August 2023.
- In June 2023 Paris Mayo was convicted of murder after assaulting her baby fracturing his skull and putting cotton wool into his mouth. She was 14 when she became pregnant and was unaware at the time. She gave birth alone and in silence while her parents watched TV downstairs and tried to dispose of the evidence without anyone knowing. She was sentenced to a minimum of 12 years imprisonment.
- In July 2023 Eloddie Goncalves-Taborda was convicted of murder and child-neglect following the death of her eleven-week old son. Emergency services were called after the child became unresponsive and injuries consistent with blunt force trauma and shaking were found on the child. She was 30 at the time with mental health and addiction issues. Her sentence hasn’t been published at the time of writing.
- In July 2023 Constance Marten was charged with gross-negligence manslaughter, concealing the birth of a child and perverting the course of justice. She hid her pregnancy and gave birth in a car, living outdoors in the middle of winter before being arrested and detained in custody following a publicised manhunt. Her baby died and was found in a shed. She is due to stand trial with her partner in January 2024.
The Infanticide Act 1938 was enacted to address the “black-cap farce” that had arisen of sentencing women to mandatory death for the murder of their babies only to have their sentences later commuted to a lesser sentence. Parliament replaced an earlier piece of 1922 legislation and introduced the terms “balance of her mind was disturbed” to give effect to the intention of the framers of the Bill that the physical and mental stresses of childbirth should be recognised in law.
While the pathologizing of childbirth and motherhood is considered problematic for some, it also offers protection and recognition of a specific set of circumstances affecting female offenders and that makes this legislation unique.
Still, this provision has remained largely unchanged since it came into force. Debate has arisen over certain elements of the offence such as the inclusion of lactation as a cause for the balance of a woman’s mind to be disturbed, and the arguably arbitrary cut-off for the age of the child at 12 months.
Where infanticide is raised as a defence, the burden of proof is on the prosecution to disprove it beyond reasonable doubt. The challenge however is providing sufficient medical evidence to demonstrate the balance of the woman’s mind is disturbed (a non-medical term) and that this was caused by factors relating to the birth of the child or lactation, rather than anything else.
Studies on why women kill their babies are few, with limited recent, UK-specific, research on the subject. In 2006 the Law Commission published a review of the law on homicide, manslaughter and infanticide. This included contributions from psychiatrists, including Professor Ian Brockington, who provided an outline of the mental disorders that may occur during childbirth and the post-partum period, and the different types of infanticide. The conditions that may arise include puerperal bipolar disorder, organic postpartum psychosis, mother-infant bonding disorders, and postpartum depression. This establishes a helpful psychiatric foundation for the offence/defence of infanticide but also refers to the rarity of many of these disorders.
Still, in instances where the woman’s psychological state may place her in denial about her behaviour, it can make it difficult to obtain instructions to allow such a defence to be advanced. In the case of Kai-Whitewind there appeared to be an indication that the defendant had caused fatal injury to her child which was born as a result of rape, but she denied responsibility, and it was therefore difficult to advance a defence of infanticide on her behalf. In such instances the Law Commission proposed the possibility of the judge ordering a psychological report to establish whether at the time of killing the requisite elements of a charge of infanticide were present.
Where there is limited evidence of a psychological disorder linked to childbirth or lactation, the infanticide defence is undermined. This difficulty is reflected in the Criminal Law Revision Committee’s recommendation in 1980 to amend the Infanticide Act to broaden disturbances of the mother’s mind to include the effect of giving birth or other circumstances consequent upon that birth.
That is significant bearing in mind other studies have considered the inherent personal and environmental trends in women who commit these offences. Some of this evidence shows that far from being outliers, many of the defendants charged with these offences fit a profile.
The following characteristics have been identified in cases involving denial of pregnancy, infanticide and neonaticide (deaths within the first 24 hours):
- Pregnancies and births unwanted
- Younger women
- Lack of education
- Single or not in a stable relationship
- Unable to reveal the birth due to shame or fear of rejection by their partner or family
- Late or no prenatal care
- First-time mothers
- Non-hospital births
- Personality characteristics marked by immaturity, impulsivity, passivity and low self-esteem
- Signs of pregnancy may not be evident - no significant weight gain or cessation of menstruation.
- A lack of economic and/or psychological resources
- A lack of premeditation
If the jury had to consider these factors as circumstances consequent upon the birth that may affect a woman’s mental state, then it’s possible it would be easier for a defence of infanticide to be made out. In any event, this list shows the importance of a psychological assessment of the defendant, with expert evidence outlining the broader context which might negate the prosecution’s argument that such actions are deliberate and calculated, rather than the result of panic and fear as is more usually the case.
Even if the Infanticide Act were to be used more extensively, it still only covers the period when the child is born. The lack of protection for women in the pre-natal period is reflected in the recent outcry over the outdated provisions of section 58 of the Offences Against the Person Act 1861, which led to the imprisonment of Carla Foster for procuring an abortion beyond the legal limit.
The Infanticide Act also doesn’t offer any protection in cases where the child survives. In 2020 I was instructed with Katy Thorne KC in a case where a young woman, “P”, gave birth unexpectedly in a hospital toilet and left her baby in a bin. The child survived and P was reunited with him, but later charged with child cruelty under section 1 of the Children and Young Persons Act 1933. She struggled to explain her actions at the time and had a limited memory of the event. We managed to argue a defence of automatism/ insanity but the scope of those provisions is very narrow and not well suited to circumstances of post-natal trauma. The prosecution were fortunately persuaded to offer no evidence against P before trial, but the US case of Alexee Trevizo is an eerie reminder of what might have been. Trevezio similarly gave birth in a hospital toilet and placed her baby in the bin, but her baby died and she is now facing a charge of first-degree murder in New Mexico.
It is easy to dismiss women who kill or harm their children as mad, bad, sick or selfish. The prevailing image of motherhood is one of limitless love and tenderness, which this offence violently disrupts. It is more challenging, but more correct to look at the circumstances in which these offences are arising and the vulnerabilities of the women committing them, to ask whether whether they need to be charged at all. The legal regimes under which they are prosecuted and may defend themselves must also be examined to see if they are still fit for purpose. In the words of Dame Victoria Sharp in Carla Foster’s appeal, this is a case “that calls for compassion, not punishment.”
Karlia Lykourgou is a barrister at Doughty Street Chambers specialising in crime and professional discipline.
Law Commission “Murder Manslaughter and Infanticide,” (2006), Annex E: Infanticide Disorders and Classification; see also I Brockington, Motherhood and Mental Health (1996).
Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person
(1980), Cmnd 7844, para 105.
Meyer and Oberman, “Mothers Who Kill their Children” (2001) New York University Press, p.42 - 45
R D Mackay, “Infanticide and related Diminished Responsibility Manslaughters – An Empirical Study” (2006) para.21.