10. Kidnapping or Concealing an Infant, etc

The question is discussed whether to constitute this offence a specific intent to outrage public decency or morals is essential, According to Pincherle this specific intent is requisite: an obscene act if committed by way of a joke or caprice or for some similar motive would not constitute this offence. Impallomeni is of the contrary opinion: if the act is voluntary, it is not necessary to prove that the intent of the doer was to injure or outrage public decency: “offende il pudore e il buon costume colui che volontariamente agisce il modo da offenderlo, e non e’ necessario che si voglia offenderlo”376 . Maino makes a distinction having regard to the nature of the act itself. Acts of lewdness and other acts which, though not committed for a lewd purpose, are intrinsically obscene, always outrage decency and good morals and, if committed in public, constitute this offence: the agent must be held to have intended the effects which are natural to them. But there are other acts, such as the exposure of the naked body, which, having regard to the intention with which they were committed, may constitute a mere contravention (e.g. the contravention under Section 352 (q) of our Criminal Code) or this crime according as to whether they were done with the deliberate purpose of outraging the moral sense of others, or to procure sexual satisfaction or to offend others and so on. In all these cases the specific intention directed to the commission of an obscene act in public excludes the element of negligence which is a marked characteristic of contraventions377 .

In Criminal Appeal The Police vs Fenech378 our Court seems by implication to have held that the crime under discussion subsists, as has already been said, notwithstanding that the purpose of the agent may not have been that of indulging his passion but, for instance, that of giving offence to or insulting another379 .

If the outrage on public decency is committed by printed matter, then the provisions of the Press Ordinance apply.

376 Cod. Pen. It. al. 111., Vol. Ill, p. 44 377 Loc. cit., para. 1496 378 4/11/1902 379 Vide also Maino, loc. cit.

Section 224 deals with the offence of kidnapping or concealing an infant, or of suppressing its birth or substituting one infant for another, or of supposititiously representing an infant to have been born of a woman who had not been delivered of a child.

As the heading under which this provision is contained expressly shows, the purpose of the legislator in creating this offence is to ward off acts tending to, prevent or destroy the proof of the status of a child. Such acts are usually committed from motives of lucre, the desire to appropriate property devolving on the child or, by making a birth appear, to enjoy the property which in j the name of the child is thereby secured. As Jameson pointed out the offences tending to prevent or destroy the proof of the civil status of an infant were derived from the Neapolitan and French Criminal Codes, in which they had been found necessary to enforce the law of registration of "births and prohibit society from the consequence of the fraudulent concealment or supposition of infants380 .

Every man has the right to the establishment of his true status, and the State also has the right of not being deceived as to the genuineness thereof, civil status being the basis of the family. All those facts whereby such status is maliciously altered are consequently considered as offences affecting the good order of families; not only that of families founded on the legitimate bond of matrimony, but also that of illegitimate children, because even the status of an illegitimate child involves rights which ought to be respected and protected381 .

The provision above quoted determines the modes in which the offences may be committed; these are:

(a) kidnapping or concealing an infant

(b) suppressing the birth of an infant

(c) substituting an infant for another

380 Report, p. 113 381 Pessina, op. cit., p. 334; Carrara, op. cit., Parte Speciale, Vol. II, para. 1955; Maino, op. cit., art. 361, para. 1559

(d) supposititiously representing an infant as having been born of a woman who had not given birth to a child.

The law here speaks of “infant” and not, as for instance in Section 261 of “newly born child” or, in Section 258A “a child under the age of twelve months”. It is commonly held that for the purpose of the crime under discussion the word "infant" does not necessarily mean newly born or recently born child382. Puccione thus wrote: “La parola infante qui si prende NON come nell’infanticidio, ma nel suo lato senso, e comprende cosi ogni bambino che non ubbia compito il settenio” . And Arabia writes: “Pino & che dunque non si esce di fanciullezza, cioè, non si arriva per lo meno all’ età di sette anni, quando incomincia la coscienza che un Uomo può avere di se’, vi può essere sempre il reato”383 . This, of course, does not refer to the modes of perpetration of the offence at (d) above: “poiché dalla natura del reato e' chiaro che questo può' avere luogo qualunque sia l'età del fanciullo supposto”384 .

The first three modes of perpetration regard the suppression or alteration of civil status; suppression, where the infant is deprived of his true state without giving him any other, so that it is not known to which family he belongs; alteration where the infant is given a different status from that which belongs to him. The concealment or suppression occurs when the birth of the infant is kept concealed from those who would have to register it, so that every proof of his true state is suppressed385; alteration takes place when an infant is substituted for another so that the one for which the other is substituted loses his status and the other takes his place in the family. The case of suppression or concealment presupposes that an infant is alive at the time of the commission of the offence and who, therefore, by having a life independent of that of his mother, would have enjoyed a civil status386: “Se un fanciullo nascesse morto, non vi sarebbe reato a sopprimerlo ed occultarne la nascita, perchè ne vi può essere questione di stato civile, ne può ricevere o transmettere diritti. Vi sarebbe reato a sostituirgline uno vivo perchè’ sarebbe lo stesso come sopporre un

382 Impallomeni, Cod. Pen. Ital. 111. Vol. III, p. 121; Puccioni, Cod. Pen. part 111, Vol. IV, p. 159; Arabia, op. cit., Part III, art. 346, p. 248; contra Pessina, op. cit., p. 353 383 Dell'art. 326, Codice delle Due Sicilie 384 Arabia, ibid. 385 Marchetti, Compendio di Diritto Penale, p. 252 386 Carrara, op. cit., para. 1953