Infanticide

spettatore, che consiste il motivo della scusa” . And Maino writes: “Riteniamo, coll'autorità del Carrara, che si debba stare piuttosto allo spirito della regola che alla corteccia delle parole; basterà che non vi sia stato fra il momento della scoperta e quello della strage un intervallo sufficiente per dar luogo alla calma: basterà che non siasi agito per meri dubbi o sospetto, ma per una fatale certezza, come sarebbe nel caso di sorpresa dell'adultero mentre esce sul mattino dal quartiere della donna o quando entra nella camera di questa”424 .

Finally, Arabia commenting on Article 388 of the Neapolitan Code identical, word for word, with our section, writes:

“Non si deve con rigorose interpretazioni restringere o annientare un beneficio di legge. Qualunque sia la situazione de' due complici, purché sia tale che non lasci verun dubbio che l'adulterio ossia avvenuto, o sia per commettersi, la scusa non si può negare senza dichiarare assurda la legge. Non per ottenersi la certezza dell'oltraggio avvenuto, ma la legge vuole la sorpresa in flagranza perchè suppone nella visita dell'atto una forza particolare di constringimento, che non saprebbe trovare nella semplice notizia che il marito […] ne possa avere: ma però. l'atto non deve essere veduto intero per forza”425 .

Infanticide

The crime of Infanticide is now treated by our law as a substantive crime separate from the crime of wilful homicide generally. Old Codes on the continent considered the killing of their children by mothers as an aggravated form of homicide. The doctrine then current was that the killing of so young an infant, in its first coming into the world and when it is absolutely incapable of offering any resistance, was particularly heinous: such killing was the effect of premeditation and its perpetration was difficult to discover: therefore, it was necessary to visit it with a sterner punishment than ordinary murder.

As time went on, that doctrine ceased to find any favour. In Italy, by the time the Code of 1889 came to be enacted, it had become the unanimous opinion of criminal writers that under certain circumstances the destruction of the life of a newly-born child was

424 Op. cit., art. 376, 377, p. 324, para. 1675 425 Op. cit., Vol. II, p. 154, para. 293

in some degree excusable. So section 369 of the said Code laid down that "when a wilful homicide was committed upon an infant not yet entered in the Registers of Civil Status and within the first five days after its birth, with a view to saving the reputation of one's self or of one's wife, mother, descendant, adoptive daughter, or sister, the punishment was detention from three to sixteen years".

In England also, more or less round the same time, “the widespread dislike of the application of the law of murder in all its severity to cases of infanticide by mothers led to such divorce between the law and public opinion that prisoners, witnesses, counsel, juries and even many of H.M. 's judges, conspired to defeat the law [..]. It was practically impossible to secure convictions for murder by mothers of young infants, largely because lay and professional opinions were out of sympathy with the law which drew no distinction between these and other types of murder. A ready method of avoiding it was discovered by taking advantage of the difficulties of proving live-birth for the purposes of the law of homicide”426 .

To appreciate the impulse for reform, it is relevant to mention some of the considerations which drove public opinion so strongly against the law on the subject.

There was a general feeling that child-murder is not so heinous as other forms of murder because of the nature of the victim. A child could not be regarded quite in the same light as a grown-up person; the loss to the child itself could not be estimated; “it was as if the child never came into the world rather than that, having come into it, it was murdered”427 .

It was contended that the killing of a child by its mother did not create the same feeling of alarm in society as other forms of murder did, and public opinion consequently did not insist on the death sentence as a deterrent. Generally, there was not that malignity in these cases which characterises other forms of murder. As the statistics showed, this crime was mostly committed by illegitimate mothers to hide their shame. The general opinion was that the motive of hiding a shame lessened the heinousness of the crime and that the execution of the law in its full severity would be barbarous. As Shee J. put it, “the severity of the social and family shame which attaches in this

426 D. Seaborne Davies, Child Killing in English Law in the Modern Approach to Criminal Law (1945), pg. 301 427 B.P.P., 1866, 21, pp. 5, 291

country to a girl's unchastity was a ground of exempting this form of murder from the operation of capital punishment” .

The malice was generally less in this class of murder because also of the general state of health and mind of the perpetrators of them. As we shall presently see this consideration played a decisive part in the subsequent reforms.

Proposals for reform differed widely at first, in the exact details. Most would limit the exemptive effects of the reform to mothers: a minority would extend it to other persons. Opinion was fairly divided on the question whether it should cover legitimate as rail as illegitimate mothers. On the time-limit of the exemption from the law of murder the suggestions ranged mainly, from a week to three months. Stephen enunciated very clearly the dominant consideration which should determine this particular feature: “The operation of the Criminal Law” , he said, “presupposes in the mind of the person who is acted upon a normal state of strength, reflective power, and so on, but a woman just after childbirth is so upset, and is in such a hysterical state altogether, that it seems to me you cannot deal with her in the same manner as if she was in a regular and proper state of health […] Besides that, there is a strong sympathy, which it is never safe to neglect and which will always exist, with the miserable condition of the woman; and there is a sort of feeling (I do not say it is reasonable, and I don't know how to connect it exactly with the fact) as a general rule against the father of the child, who goes unpunished, which makes its way with juries and with the public. It seems to me that that being so, and as you have to legislate for human nature you find it, it would be a very desirable thing to pass a special statute [...] enacting that any woman who killed her new-born child with the intent to conceal the birth, should be liable to the severest secondary punishment in the discretion of the judge [...] I do not know that I should wish to limit the time very nicely because the effect of child-birth upon a woman's nerves lasts for a considerable time in some cases. I would rather have a little indefiniteness in the law than run the risk of an encounter between the law and public sentiment”428 .

428 Cfr. D. Seaborne Davies, loc. cit., pp. 324 - 385

A series of attempts over a long number of years to have the offence of infanticide dealt with differently from ordinary murder culminated at last in the Infanticide Act of 1922 which provided as follows:-

"Where a woman by any wilful act or omission causes the death of her newly-born child, but at the time of the act or omission she had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall, notwithstanding that but for this Act the offence would have amounted to murder, be guilty of felony, to wit of infanticide and may for such offence be dealt with and punished as if she had been guilty of manslaughter of such child".

The Act provided also an alternative verdict of infanticide on an indictment for murder.

The Act of 1922 was in 1933 repealed and re-enacted with modifications by the Infanticide Act, 1938429. The main modifications consisted in this, that

(a) Whereas the Act of 1922 used the vague expression “newly-born child” , the Act of 1938 speaks of a “child under the age of twelve months” . The expression “newly-born” was not defined in the 1922 Act. Accouchers limited it to infants less than sixteen days old430. In R. v. O'Donoghere431, the Court of Appeal said: “We do not propose to undertake the task of defining the expression ‘newly-born child’. It is enough for the purposes of the present appeal to say that Mr. Justice Talbot made no error in law in holding, with reference to a child of more than a calendar month of age, that there was no evidence upon which he could invite or permit a jury to find that the child was newlyborn within the meaning of the Statute” . In R v. Hale, a case tried at the Old Bailey in 1936 which concerned the killing of a baby three weeks old, Lord Dawson of Penn who gave evidence for the defence that the mother was suffering from puerperal insanity was questioned as to the length of time it takes a mother to recover from the conditions of "birth and he replied;“I should say not less than three weeks, in many cases longer” .

Under these circumstances, the necessity was felt that Parliament should amend the law by defining a “newly-born child” . It was felt that the time-limit should not be the

429 l & II, Geo VI, ch. 36 430 Glaister, A Text Book of Medical Jurisprudence and Toxicology, 1932, p. 486 431 1927, 20 Cr. App. R. 132

determining factor in deciding whether a case comes within the scope of the Act; the vitally important matter was the mother’s mental derangement post and propter the birth. Hence in the 1938 Act the words "newly-born" were removed and a defined limit of one year was put, such limit being considered sufficiently wide to cover the majority of cases of puerperal insanity.

(b) The 1922 Act applied where the balance of the mind of the mother was, at the time of the wilful act or omission causing the death of the child, disturbed by reason of her not having fully recovered from the effect of giving birth to the child. To this the 1938 Act added the effect of lactation consequent upon the birth of the child.

Section 9 of Ordinance VI of 1947 which made special provision in respect of the crime of infanticide in our Criminal Code closely follows the English Act of 1938.

Before then opinions in Malta differed as to whether any such special provision was necessary. It was not questioned that the killing by a mother of her child at a time when her mind was deranged following and on account of parturition, deserved to be treated less severely than ordinary wilful homicide. But one school of thought had it that sufficient provision for the purpose existed already in section 241 (c) of the Criminal Code which excused wilful homicide committed by any person under the stress of instantaneous passion owing to which the agent was at the time incapable of reflecting. In substance, this theory put the effects of child-birth on the same footing as other violent excitements like anger or fear: women were entitled to that indulgence to human weakness generally shown by the law relating to provocation. And it appears that in some cases even our Criminal Court had adopted that view. Dr Albert Ganado in his paper on “Excusable Homicide” already quoted, thus writes; “The excuse of instantaneous passion or mental agitation was adopted in a case of infanticide in re R vs Giuseppa Sultana in 1861; the Court, composed of three judges (Sir Antonio Micallef, presiding), directed the jury to ACCEPT the excuse, the existence of mental agitation having been actually proved. In another case, R vs Maddalena Camilleri & Marianna Bartolo in 1890, the jury declared “essere l'accusata Marianna Bartolo rea del delitto imputatole nell'atto di accusa, colla circostanza, però, che Marianna Bartolo nel commettere il delitto, agiva sotto l'immediata influenza di una instantanea agitazione di mente per cui era incapace di riflettere”. It is undoubted that the same view was taken by the Law Officers of the Crown in Malta between 1922 and 1939.

But in 1944, in the case R vs. Vittoria Micallef432, H.M.'s Criminal Court consisting of three Judges took a different view. It directed the Jury that, as a matter of law, the excuse set out in section 241 (c) applies only when the passion or mental agitation pleaded by the accused has "been induced by provocation, i.e., by a cause from without and does not apply when it is merely the effect of the physiological fact of having given birth to a child. If the jury considered as a fact that the accused had acted under the stress of excitement they could, if they should find her guilty of the charge, recommend her for clemency. The jury returned a unanimous verdict of guilty but with a strong recommendation for clemency. The Court, thereupon, sentenced the woman to death, it having no option to inflict a lesser punishment but in their report to His Excellency the Officer Administering the Government, the Judges endorsed the recommendation for mercy made by the Jury. A reprieve was granted and the sentence of death was commuted.

Thereupon it became clearly necessary to introduce appropriate legislation concerning infanticide, if only to avoid the “solemn mockery” of passing sentences of death which, everybody knew, would, and felt should, be commuted by the Executive.

As already stated, legislative action was taken in 1947 and the model adopted was the English law which, from the ethical point of view and upon general principles of criminal responsibility, is obviously by far more defensible that the corresponding continental law. The ground of extenuation is not the often spurious motive to hide shame or to save a reputation which often is beyond saving from other causes, but the deranged state of mind of the mother arising from the parturition which necessarily reduces the moral responsibility for the act.

Our section 258A lays down:

“When a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effects of giving birth to the child or by reason of the effects of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for

432 25/7/1944

this section the offence would have amounted to wilful homicide, she shall be guilty of infanticide and shall be liable to imprisonment for a term not exceeding twenty years”. This section makes reference to wilful acts or omissions. Infanticide by omission means the neglecting to do such things connected with the continuance of the life of the child as may cause its death; as, for example, neglecting to tie the umbilical cord after severance, since by omitting to do this, the infant may bleed to death; or by omitting to remove such obstacles as would prevent it from breathing; or by omitting to feed it. Infanticide by commission is the performance of any act against a live-born child which prevents it from living or which destroys its life.

In order that the conditions of the said section may be fulfilled, there must be at least three co-existing circumstances: first-the child must be the child of that mother; secondly - the child must be a child under the age of twelve months; and thirdly - at the time of the act or omission she must not have fully recovered from the effects of giving birth to that child and by reason thereof, the balance of her mind must have been disturbed or the balance of her mind must have been disturbed by reason of the effects of lactation consequent upon the birth of the child.

Of course, if the woman, at the time of the act or omission was definitely insane within the strict legal meaning of the word, then the provisions regarding insanity will apply: but if her state of mind is disturbed through what is called "puerperal insanity” or other physical effects of child-birth or exhaustion from breast-feeding consequent, then subject to the concurrence of the other requisite conditions, this section will apply.

The basis of the extenuation of homicide being the disturbed state of mind of the mother, i.e., a purely personal circumstance, it does not seem that it can extend to any co-offender, co-principal or accomplice.

Also, it will “be noted that, in our law, like its model the English law, there is no distinction between legitimate and illegitimate children. It is true that, generally speaking, there is more cause for disturbing psychic factors for the mother where the child is illegitimate. As a matter of statistics, the mortality from infanticide among illegitimate children is very much greater than those born in wedlock. But, in the first place, a child born of a married woman would, front the legal point of view, as a rule, be deemed legitimate on the strength of the maxim “pater is est quern justae nuptiae demonstrant”: yet if, in point of fact, it is illegitimate, the mother is likely to be quite as