Reinterpreting the Infanticide Act 1938

The Infanticide Act 1938 operates as an alternative charge/conviction in cases where women kill their biological children aged under 12 months, and where the “balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth or the effect of lactation consequent upon birth”. The law is rarely used and has received little judicial attention since its enactment. The meaning of key language in the statute, particularly a “disturbance in the balance of her mind” and “not having fully recovered from the effect of giving birth or the effect of lactation consequent upon birth”, has never been clarified by the courts through judicial interpretation. Often infanticide is understood as providing for a bio-psychiatric defence, akin to diminished responsibility, but other interpretations which view the law as providing for a defence based on social mitigation have also been offered in academic scholarship. The law has been applied flexibly, without the need for a bio-psychiatric diagnosis, though more recent cases indicate that the courts are taking a more restrictive approach and murder convictions have resulted where, in the past, women would have been able to avail of the infanticide law, particularly in situations involving newborn victims.

Such recent cases indicate that the infanticide law is misunderstood and that there is an urgent need for judicial interpretation to clarify the meaning of the basis of mitigation and ensure justice in cases where vulnerable women in situations of crisis kill their babies. We argue that the Infanticide Act is not a bio-psychiatric defence and that it should be interpreted to reflect the social mitigation view of this law. Our interpretation draws on principles of statutory interpretation, and so focuses on the language used in the statute as well as on the purpose of the law. In particular, our analysis draws on the historical origins of the legislation and the social context of infanticide. We argue that a judicial interpretation of the Infanticide Act could reach a similar conclusion. In this respect, we highlight the crucial role of the socio-historical context of legislation such as the Infanticide Act – an historic law that applies only to women and is rarely used. Where an historic law is used infrequently and where social and legal conditions have evolved, the collective understanding of a law may be lost, and in this context, the history of that law becomes essential to understanding its meaning.