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Social norms and the law in responding to infanticide

Published online by Cambridge University Press:  18 July 2018

Karen Brennan
Karen Brennan*
Affiliation:
School of Law, University of Essex, Wivenhoe, UK
*
Author email: [email protected]
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Abstract

During the early and middle decades of the twentieth century, a number of jurisdictions introduced specific laws to deal with the crime of infanticide, following the English approach to this offence which allowed for a reduced conviction and flexible sentence in cases where women killed their babies aged under 12 months whilst in a mentally disturbed state. Taking the Irish experience, this paper explores the role of social norms in the criminal justice response to infanticide. It is argued that, irrespective of the existing legal framework in place, implicit shared social norms about the ‘appropriate’ outcome in cases where women killed their babies played a crucial part in how this crime has been dealt with by the courts. The criminal justice response will be assessed against shifting legal and social environments, in particular, the enactment of a specific Infanticide Act in 1949, and Ireland's transition from a conservative to a liberal society during the last decades of the twentieth century. In particular, the role of social norms in the interpretation of the medical rationale for this law is explored, and the impact of Ireland's social and cultural liberalisation on the criminal justice response to infanticide is examined.

Keywords

infanticidesocial normssocio-historical
Type
Research Article
Information
Legal Studies , Volume 38 , Issue 3 , September 2018 , pp. 480 - 499
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

*

Karen Brennan is a lecturer in law at the University of Essex. She wishes to thank Professors Lorna Fox O'Mahony and Sabine Michalowski, and the two anonymous reviewers, for their helpful and insightful comments on earlier drafts of this paper.

References

1 National Archives of Ireland (NAI): State File Central Criminal Court ID-51-2, Co Limerick, indictments no 1 & 2, 26 October 1953. Name withheld to preserve anonymity. The offence of infanticide was created by the Infanticide Act 1949.

2 See for example Farrell, E, ‘A Most Diabolical Deed’: Infanticide and Irish Society, 1850–1900 (Manchester: Manchester University Press, 2013)Google Scholar; Rattigan, C ‘What Else Could I Do?’: Single Mothers and Infanticide, Ireland 1900–1950 (Dublin: Irish Academic Press, 2012)Google Scholar.

3 This study focuses on the implementation of the Infanticide Act 1949 from charge to conviction. Sentencing under this Act is explored in K Brennan, ‘Murdering mothers and gentle judges: paternalism, patriarchy and infanticide’ (in press) Yale Journal of Law and Feminism, available at http://repository.essex.ac.uk/20863/.

4 Baier, M ‘Relations between social and legal norms’ in Baier, M. (ed) Social and Legal Norms: Towards a Socio-Legal Understanding of Normativity (Surrey: Ashgate, 2013) p 53Google Scholar.

5 R Cotterrell ‘Why must legal ideas be interpreted sociologically?’ (1998) 25 Journal of Law and Society 171. See also Norrie, A Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge: Cambridge University Press, 2nd edn, 2001), chs 1 & 2 and passimGoogle Scholar.

6 Brennan, K, ‘“A fine mixture of pity and justice”: the criminal justice response to infanticide in Ireland 1922–1949’ (2013) 31 Law and History Review 793CrossRefGoogle Scholar.

7 Brennan, K ‘Punishing infanticide in the Irish Free State’ (2013) 3 Irish Journal of Legal Studies 1Google Scholar.

8 Brennan, K ‘“Traditions of English liberal thought:” a history of the enactment of an infanticide law in Ireland’ (2013) 50 Irish Jurist 100Google Scholar.

9 Koller, P ‘On the nature of norms’ (2014) 27 Ratio Juris 155CrossRefGoogle Scholar; Baier, above n 4.

10 See for example Koller, above n 9; Svensson, M ‘Norms in law and society: towards a definition of the socio-legal concept of norms’ in Baier, M. (ed) Social and Legal Norms: Towards a Socio-Legal Understanding of Normativity (Surrey: Ashgate, 2013) p 39Google Scholar; Baier, above n 4.

11 Meyer, CL and Oberman, M Mothers Who Kill Their Children: Understanding Acts of Moms from Susan Smith to the ‘Prom Mom’ (New York/London: New York University Press, 2001) p 2Google Scholar.

12 For discussions on infanticide, Irish post-independence gender ideology, and the impact of this on women (eg in relation to restrictions on contraception, motherhood, sexuality and institutionalisation), see generally: Rattigan, above n 2; Luddy, M, ‘Sex and the single girl in 1920s and 1930s Ireland’ (2007) 35 Irish Review 79Google Scholar; Luddy, M Prostitution and Irish Society (New York: Cambridge University Press, 2007) pp 117–123, 194–197, 200–203, 235–237Google Scholar; Ryan, L ‘Irish newspaper representations of women, migration and pregnancy outside marriage in the 1930s’ in Ramblado-Minero, MC and Perez-Vides, A (eds) Single Motherhood in Twentieth Century Ireland: Cultural, Historical and Social Essays (Lewiston, NY: Edwin Mellen Press, 2006) pp 105–106Google Scholar; Valiulis, M ‘Neither feminist nor flapper: the ecclesiastical construction of the ideal Irish woman’ in O'Dowd, M and Wichert, S (eds) Chattel, Servant or Citizen: Women's Status in Church, State and Society (Belfast: Queen's University Institute of Irish Studies, 1995), pp 168–178Google Scholar; Earner-Byrne, L Mother and Child: Maternity and Child Welfare in Dublin, 1922–1960 (Manchester: Manchester University Press, 2007) ch 7Google Scholar; McAvoy, S ‘The regulation of sexuality in the Irish Free State, 1929–1935’ in Jones, G and Malcolm, E (eds) Medicine, Disease and the State in Ireland, 1650–1940 (Cork: Cork University Press, 1999) pp 253–265Google Scholar

13 See generally, Rattigan, above n 2, ch 1.

14 Central Statistics Office, 1927–1949; Garda Annual Reports on Crime, 1950–1975.

15 Brennan, above n 8, 122–133.

16 For further discussion, see Brennan, above n 3.

17 Ibid.

18 For further discussion, see below text at nn 47–50.

19 Brennan, above n 3.

20 For English and Canadian experiences, see generally Davies, D Seaborne ‘Child killing in English law’ in Radzinowicz, L and Turner, JWC (eds) The Modern Approach to Criminal Law (London: Macmillan, 1945) pp 301–343Google Scholar; Kramar, KJ Unwilling Mothers, Unwanted Babies: Infanticide in Canada (Vancouver/Toronto: UBC Press, 2005)Google Scholar.

21 Inglis, T Truth Power and Lies: Irish Society and the Case of the Kerry Babies (Dublin: University College Dublin Press, 2003) p 12Google Scholar.

22 Ibid.

23 Norrie, above n 5.

24 Ward, T ‘The sad subject of infanticide: law, medicine and child murder 1860–1938’ (1999) 8 Social and Legal Studies 163CrossRefGoogle Scholar; Brennan, above n 8, pp 126–127; Kramar, above n 20, p 95.

25 See below at Section 3(b).

26 Cotterrell, above n 5.

27 See above n 10, pp 47–48. See also Baier, above n 4, who discusses 12 relationships of influence between legal and social norms.

28 Director of Public Prosecutions Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (February 2010, updated 2014), available at http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.pdf.

29 Kennefick, L ‘Introducing a new diminished responsibility defence for England and Wales’ (2011) 74 Modern Law Review 750 at 758CrossRefGoogle Scholar.

30 Omerod, D and Laird, K Smith and Hogan's Criminal Law (Oxford: Oxford University Press, 2015) p 868CrossRefGoogle Scholar.

31 Norrie, above n 5, p 8.

32 The criminal justice response to this offence prior to 1949 has been explored in detail elsewhere: Brennan, above n 6. The analysis in this section presents a summary of this, and explicitly links the previous analysis, which focused on pragmatic and humanitarian influences, to the social norms framework used here. The offence of concealment of birth criminalises the concealment of the dead body of an infant following birth, whether the child died before, during or after birth: Offences Against the Person Act 1861, s 60 (24 & 25 Vic., cap. 100).

33 NAI, DJ 8/144/1, memo dated February 1949.

34 Brennan, above n 6, 811–818.

35 Brennan, above n 7.

36 Brennan, above n 6.

37 Infanticide Act 1949, s 1.

38 Infanticide Act 1949, s 1(1). For further discussion, see Brennan, above n 8, pp 117–120.

39 Infanticide Act 1949, s 1(2)

40 Infanticide Act 1949, s 1. The legislation was amended in 2006 when the lactation option was replaced with a reference to a mental disorder consequent upon childbirth: Criminal Law (Insanity) Act 2006, s 22. None of the cases in this sample were disposed of under the reformed legislation.

41 NAI: Department of Justice (file on infanticide) 8/144/1, letter address ‘Minister’, dated February 1949. See generally Brennan, above n 6, pp 823–826.

42 Brennan, above n 6, pp 824–825.

43 Ibid, pp 827–833; Davis, above n 20; Kramar, above n 20.

44 See generally Brennan, above n 6, pp 818–833, 836–841.

45 See sources cited above n 24.

46 For a discussion on the criminal law's requirement for individualised responsibility and the use of mental disturbance defences in this regard, see Norrie, above n 5, chs 1, 2, and pp 188–196. See Brennan, above n 8, pp 122–133, for further detail on the purpose and scope of the infanticide medical rationale.

47 Edwards, SSM Women on Trial: A Study of the Female Suspect, Defendant and Offender in Criminal Law and the Criminal Justice System (Manchester: Manchester University Press, 1984) pp 80–85, 91–100Google Scholar.

48 See Ward, above n 24; Kramar, KJ and Watson, WD ‘The insanities of reproduction: medico-legal knowledge and the development of an infanticide law’ (2006) 15 Social and Legal Studies 237CrossRefGoogle Scholar; Brennan, above n 8, pp 822–833; Loughnan, A ‘The strange case of the infanticide doctrine’ (2012) 32 Oxford J Legal Studies 685CrossRefGoogle Scholar.

49 Brennan, above n 8, pp 122–133.

50 Cotterrell, above n 5; Norrie, above n 5.

51 Dáil Debates, vol 115(2), 28 April 1949, cols 265–266.

52 Infanticide Act 1949, s 1(3)(b). The Irish law contrasts with its English counterpart in this respect. See R. v Gore (Lisa Therese) (deceased) [2007] EWCA Crim 2789; [2008] Crim. L.R. 388 (CA (Crim Div)); Ashworth, A ‘Infanticide: whether mens rea of infanticide consists of an intention to kill or cause grievous bodily harm’ (2008) 5 Crim LR 388Google Scholar.

53 See above text at n 40.

54 Infanticide Act 1949, s 1(2).

55 The findings are based on an analysis of data in the Garda Annual Reports on Crime (1950–2005; hereafter GARC), the Central Statistics Office crime statistics (2006–2015; hereafter CSO), and on data available in state book and state file records for the CCC and CrtCC (1950s to early 1970s). The GARC provide information on the number of reported crimes, and the outcome of any proceedings initiated. Between 1951 and 1975, the GARC also provided a brief account of the circumstances of the crime and further information on the outcome of the proceedings, including the sentence imposed (Appendix D). GARC can be accessed at the National Library of Ireland, and are also available at http://www.garda.ie/controller.aspx?page=90. Information on the number of reported ‘infanticide’ cases since 2005, whether criminal proceedings were taken, and the outcome of those proceedings, is provided by the CSO. See CSO, CJA01: Recorded Crime Offences by Type of Offence and Year, available at http://www.cso.ie/px/pxeirestat/Statire/SelectVarVal/Define.asp?maintable=CJA01&PLanguage=0 (last accessed 23 October 2015). The State Books for the CCC and CrtCC (hereafter SBCCC and SBCrtCC), held at the NAI, provide a record of criminal prosecutions at each court, including information on the outcome of proceedings and sentence. The State Files (hereafter SFCCC and SFCrtCC) contain documents relating to the state's case against the accused, most significantly the depositions of witnesses at the preliminary hearing of the case at the district court, as well as a copy of the accused's statement(s) at the time of arrest. The NAI does not have a complete holding of these records for the period under review and a systematic investigation of each case of infanticide during this period was unfortunately not possible. There is no State Book record for the CCC from 1964 onwards, and it was only possibly to get a State Book record for the CrtCC for two of the cases in the sample that were dealt with on indictment. It was only possible to get access to 15 state files for the 30 infanticide cases disposed of on indictment in either court in this sample.

56 Based on statistical information provided in GARC and by CSO. Between 1950 and 1996 murder was recorded as two separate categories – the murder of an infant aged under one year, and the murder of persons aged one year and over. There was also a separate category of infanticide. The figures given in the text are a combination of recorded infanticides and recorded infant murders; the majority of the latter category was either not prosecuted or were disposed of under the infanticide law. No information is available in the statistical sources consulted on the age of ‘murder’ victims since 1997, which means it is not possible to ascertain whether any of the recorded murders involved infant victims, and, consequently, the outcome of any such cases, unless it was ultimately recorded as infanticide. Therefore, there may be some additional cases where women were charged with murdering their infants since 1997 which I was unable to identify in the sources available.

57 Two of these cases involved joint charges against the mother of the infant and, in one case, the infant's father (who was convicted of murder), and in the other, the infant's grandmother (who was otherwise disposed of).

58 The Criminal Justice Act 1951, s 3 made provision for persons appearing at the district court for preliminary examination of an indictable offence (with some exceptions) to be tried summarily at the District Court with the consent of the Attorney General. The Criminal Justice Act 1967, s 13, makes similar provision.

59 See above at nn 40, 52.

60 Brennan, above n 3.

61 See Brennan, above n 6, for further detail on the reasons for the enactment of the infanticide statute.

62 See above text at nn 45–50.

63 Mackay, RD ‘The consequences of killing very young children’ (1993) 40 Criminal Law Review 21 at p 29Google Scholar.

64 The evidence available in state files is limited to what witnesses said in their depositions, or during cross-examination, at the district court, and any comments made by the medical officer while the accused was held on remand. However, in terms of what information was available to district justices when making a decision about whether to reduce the charge to infanticide, they were reliant on what witnesses said in their depositions. In cases where the accused was sent for trial for murder it is possible that other evidence was available by that time, supplied by the defence, which is not included in the state file.

65 NAI: SFCCC, ID/51/2 (Limerick, 1953: two cases); SFCrtCCC, IC/98/27 (Monaghan, 1953); SFCrtCC, V15/13/12 (Galway, 1953); SFCrtCC, IC/14/129 (Donegal, 1959); SFCrtCC V4B/12/17 (Louth, 1969).

66 NAI: SFCCC V15/14/47 (Kildare, 1954); SFCCC V15/14/45 (Carlow, 1954); SFCCC IC/17/58 (Donegal, 1966).

67 NAI: SFCCC V15/14/47 (Kildare, 1954).

68 SFCCC V15/14/45 (Carlow, 1954).

69 See Loughnan, above n 48, p 692.

70 NAI: SFCCC ID/2/162 (Dublin, 1964) (emphasis added).

71 Ibid.

72 NAI: SBCCC, ID/2/146A (1962–July 1964). In another case, where the state pathologist made the same comment and where the accused's own doctor indicated that she had been in a disturbed mental state, the charge was reduced. See NAI: SFCrtCC ID/2/162 (Tipperary, 1957).

73 NAI: SFCrtCC, V14/21/21 (Meath, 1961).

74 NAI: SFCrtCC, V7/16/6 (Kerry, 1957).

75 NAI: SFCrtCC, V6/32/6 (Galway, 1954).

76 Mayo, 1971. File not accessible at NAI; file obtained directly from CCC.

77 This has recently been recognised by the Canadian Supreme Court: R v Borowiec, 2016 SCC 11.

78 See above text at n 51.

79 See and accompanying text. It is possible that there have been instances of maternal infant murder during this period where proceedings were taken and the offender was disposed of under an offence other than infanticide, such as murder, manslaughter or concealment of birth; see above n 56.

80 Alder, C and Polk, K Child Victims of Homicide (Cambridge: Cambridge University Press, 2001) p 44Google Scholar.

81 Except with respect to the amendment made in 2006; see above n 40.

82 See generally Inglis, above n 21, chs 8–9.

83 See GARC, 1970–2005; CSO (2006–2015).

84 Between January 1980 and December 2014, 163,514 women and girls travelled from the Republic of Ireland to England and Wales to obtain an abortion: see website available at https://www.ifpa.ie/Hot-Topics/Abortion/Statistics (last accessed 3 September 2015).

85 See generally Hug, C The Politics of Sexual Morality in Ireland (London: Macmillan Press, 1999) pp 86–91CrossRefGoogle Scholar. For example, see Health (Family Planning) Act 1979, ss 4, 5, 13; the Health (Family Planning) Amendment Act 1985, s 2; The Health (Family Planning) Amendment Act 1992.

86 Social Welfare Act 1973, s 8.

87 Kilcommins, S, O'Donnell, I, O'Sullivan, E and Vaughan, B Crime, Punishment and the Search for Order in Ireland (Dublin: Institute of Public Administration, 2004) p 117Google Scholar.

88 Ibid.

89 Director of Public Prosecutions, Guidelines for Prosecutors (2010, revised), para 4.22(b), available at https://www.dppireland.ie/filestore/documents/GUIDELINES_-_Revised_NOV_2010_eng.pdf (last accessed 7 December 2015).

90 Inglis, above n 21, p 121; Kilcommins et al, above n 87, pp 67–68.

91 Dooley, E Homicide in Ireland, 1972–1991 (Dublin: Department of Justice, Dublin Stationery Office, 1995) p 28Google Scholar.

92 Ibid.

93 Dooley, E Homicide in Ireland, 1992–1996 (Dublin: Department of Justice, Dublin Stationery Office, 2001) p 18Google Scholar. Information in the GARC for this period indicates that no infanticide prosecutions were taken.

94 See generally Ferriter, D Occasions of Sin: Sex and Society in Modern Ireland (London: Profile Books, 2009) pp 524–525Google Scholar; Maguire, MJ ‘The changing face of Catholic Ireland: conservatism and liberalism in the Ann Lovett and Kerry Babies scandals’ (2001) 27(2) Feminist Studies 335CrossRefGoogle Scholar.

95 For an account of the investigation of this crime and the legal proceedings that followed, see Inglis, above n 21, chs 2–7.

96 Ibid ch. 10.

97 See generall, Inglis, above n 21, passim; Ferriter, above n 94, pp 524–527; Maguire, above n 94.

98 Maguire, above n 94, p 353.

99 Inglis, above n 21; Ferriter, above n 94, p 526; Maguire, above n 94, pp 348–351.

100 Ferriter, above n 94, p 526.

101 Inglis, above n 21, p 187.

102 Ibid, p 3, and passim.

103 There is a possibility that women have been proceeded against for other offences; see above nn 56, 79.

104 See above text at nn 21–22.

105 Law Reform Commission of Western Australia, Review of the Law of Homicide (Final Report, Project 97, 2007), pp 104, 112–113, available at http://www.lrc.justice.wa.gov.au/_files/P97-ch03.pdf (last accessed 4 December 2015).

106 RD Mackay ‘Infanticide and related diminished responsibility manslaughters: an empirical study’ in Law Commission Murder, Manslaughter and Infanticide (Law Com no. 304, 2006) Appendix D, pp 192–243 at p 196 Table 3b.

107 See website available at http://www.bbc.co.uk/news/uk-england-lancashire-40330268 (last accessed 27 June 2017).

108 Kramar, above n 20, chs 4–6.

109 Ibid.

110 Ibid, ch 4 and p 188.

111 Above n 77.

112 Article 40.3.3 of the Irish Constitution grants the ‘unborn’ an equal right to life to that of the pregnant woman, and abortion is only available where there is real and substantial risk to the life of the woman (including suicide: The Attorney General v X [1992] 1 I.R. 1), but not her health: see the Eight Amendment of the Constitution Act 1983, and the Protection of Life During Pregnancy Act 2013, s. 7, 8, 9.

113 R v Morgentaler [1988] 1 SCR 30. However, there are, in practice, numerous barriers to accessing medical abortions: see Downie, J and Nassar, C ‘Barriers to access to abortion through a legal lens’ (2007) 15 Health Law Journal 143Google ScholarPubMed.

114 See above n 40; Further detail in Brennan, K, ‘Beyond the medical model: a rationale for infanticide legislation’ (2007) 58 Northern Ireland Legal Quarterly 505 at pp 512–513Google Scholar.

115 See generally Victoria Law Reform Commission Defences to Homicide: Final Report (Melbourne, 2004)Google Scholar, paras 6.16–6.25, available at http://www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf; New South Wales Law Reform Commission People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences (report no. 138, 2013), paras 5.35–44, 5.47–50, available at http://www.lawreform.justice.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/report_83.pdf; Law Commission Murder, Manslaughter and Infanticide (Law Com no 304, 2006), paras 8.3, 8.7–12, 8.36–39, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228782/0030.pdf.

116 Ibid, para 5.49.

117 Above n 115, para 8.3.