26 October 2023 - 26 October 2023
5:00PM - 6:30PM
TLC 116, Durham University
Teaching and Learning Centre, Durham.
Also available online through Zoom
The Centre for Criminal Law and Criminal Justice welcomes Dr Karen Brennan and Dr Emma Milne.
Durham Law School
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.
Dr Karen Brennan is a Senior Lecturer in Law at the University of Essex.
Her research and teaching interests are in the area of criminal justice, with a particular focus on socio-historical and gendered issues connected with reproductive rights/justice. Her research primarily focuses on criminalisation in the context of pregnancy/childbirth and motherhood. She has published extensively on the law on infanticide, adopting socio-legal, historical and feminist approaches to this topic. Her research interests also include abortion and obstetric violence.
Dr Emma Milne is Associate Professor in Criminal Law and Criminal Justice at Durham University.
She is a socio-legal scholar and a feminist criminologist. Emma’s research is interdisciplinary, focusing on criminal law and criminal justice responses to women who are considered to have broken the law. Emma’s monograph Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother was published in 2021 (Emerald Publishing Limited).