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Manifest MadnessMental Incapacity in the Criminal Law$

Arlie Loughnan

Print publication date: 2012

Print ISBN-13: 9780199698592

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199698592.001.0001

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Gender, ‘Madness’, and Crime: the Doctrine of Infanticide

Gender, ‘Madness’, and Crime: the Doctrine of Infanticide

Chapter:
(p.202) 8 Gender, ‘Madness’, and Crime: the Doctrine of Infanticide
Source:
Manifest Madness
Author(s):

Arlie Loughnan

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199698592.003.0008

Abstract and Keywords

This chapter takes up the issue of the relationship between gender, ‘madness’, and crime via an examination of the specific case of the infanticide doctrine. It suggests that a dense network of meanings about the interrelationship between gender, ‘madness’, and crime has sustained what is widely regarded as a peculiar or strange legal doctrine into the current era, permitting women who rely on infanticide to slide between the categories of offence and defence, or, more precisely, between charge and plea. A particular social type — the infanticidal woman — has come to determine the legal issue of the defendant's criminal responsibility, and the act of infanticide has come to be read as an instantiation of abnormality for criminal law purposes. In the current era, the doctrine of infanticide is sustained by a lay or nonexpert knowledge about the interrelation of gender, childbirth, and ‘madness’, which over-determines the legal evaluation of infanticidal women and their acts in criminal law.

Keywords:   infanticide doctrine criminal law, infanticidal women, criminal responsibility, infanticide

This chapter addresses the gender dimension of ‘madness’ and crime via a study of the infanticide doctrine. The subject of gender, ‘madness’ and crime has been of most interest to feminist scholars. Like feminist studies of law more generally, the subject of gender, ‘madness’, and crime has been approached with a critical eye on the distribution of power.1 Feminist scholars have pointed out the ways in which women offenders are depicted as doubly‐deviant, transgressing gender norms as well as legal norms.2 As my analysis of infanticide shows, gender norms are crucial for understanding this part of the mental incapacity terrain.

As I discuss in Chapter 2, infanticide is a mental incapacity doctrine on my account of the mental incapacity terrain in criminal law. Infanticide is distinctive in that it is both a partial defence to a charge of murder or manslaughter, as well as a distinct homicide offence, and it applies exclusively to women who kill a biological child where the child is under the age of 12 months.3 In its restriction to women, infanticide is thus a rare instance of the overt gendering of the legal subject—gender differences, which are more often implicit in legal doctrines and practices, are made explicit on the face of the law of infanticide.4 In addition to providing a specific focus for consideration of the wider and more nebulous flow of currents of meaning around gender, ‘madness’, and crime, my study of infanticide exposes the gendered character of abnormality as it is constructed within criminal law.

The two main arguments advanced in this chapter concern the broad continuities in the meanings given to women's ‘madness’ at the point of intersection with (p.203) crime. The first of these arguments is that these broad continuities permit the doctrine of infanticide to slide between the categories of offence and defence, or, more precisely, between charge and plea, meaning that the doctrine itself is most accurately understood as both/either partially exculpatory and/or partially inculpatory. The second main argument is that a particular gendered social type—the infanticidal woman—has come to determine the legal issue of an infanticide defendant's criminal responsibility, and the acts of infanticide have come to be read as an instantiation of abnormality for criminal law purposes. In the current era, the doctrine of infanticide is sustained by a lay or non‐expert knowledge about the interrelation of gender, ‘madness’, and crime, which, when overlaid with the social meanings accorded to childbirth and motherhood, over‐determines the legal evaluation of infanticidal women and their acts in criminal law.

Proscribing Infanticide: ‘Lewd Women’ and ‘Bastard’ Children

Infanticide has a longer history as the practice of killing unwanted children—of various ages, and by men and women—than as legally proscribed conduct. Historians suggest that the practice of infanticide was a familiar part of pre‐modern and early modern social life. These periods were ones in which the social landscape was marked by the sexual vulnerability of women employed as servants, heavy stigma attached to unwed mothers, a lack of options for fertility control, and high infant mortality.5 In the second half of the sixteenth century, concern with women's sexual activity, the criminal activities of the poor, and the financial burden of illegitimate children on parish resources combined to move prosecutions for fornication, bastardy, and similar crimes from church courts to royal courts.6 Parliament passed a series of personal control laws, which reflected concern about social disorder. One such law was the ‘poor law’ of 1576,7 under which women with illegitimate children faced imprisonment on the basis that they were defrauding the parish of the funds that were used to support such children (and that should have been used to relieve the ‘true poor’). Under this law, unmarried women faced social and legal pressure to reveal the name of the fathers of illegitimate children so that local authorities could try to ensure that the fathers supported them. Peter Hoffer and N E H Hull have speculated that the severity of the ‘poor law’ (p.204) ‘counselled the poor to conceal bastardy pregnancy and perhaps murder their bastard newborns’.8

Concern with women's sexual ‘immorality’, illegitimacy, and poverty coalesced in a statute dealing specifically with newborn child murder by single women, enacted in 1624.9 The 1624 Act created a species of constructive crime, an offence paralleling murder and a legal presumption that a woman concealing the death of her illegitimate child had murdered it. The Act provided that, where ‘lewd women’ concealed the death of a ‘bastard child’, ‘the said mother so offending shall suffer death as in the case of murther’.10 With a presumption of murder on evidence of concealment of death, the 1624 Act introduced special evidential rules to apply to cases in which single women were alleged to have killed their children. The presumption was designed to avoid the problems that beset murder trials at common law, where it was necessary to prove that the child was born alive and then killed.11 In murder trials where there were no witnesses to the birth, the prosecution had to rely on ‘presumptive or circumstantial evidence’ that a child had been born alive.12 Character evidence and circumstantial evidence were sometimes sufficient to obtain a conviction, but, in general, murder convictions under the common law proved difficult to secure.13 The 1624 Act provided that, if a woman could produce a witness to testify that the child had been born dead, she could avoid conviction and death. However, as several writers point out, it was often difficult for unmarried women to secure a witness to the birth because of the secrecy of the affair or seduction that led to it.14

As it reflects extant structures of liability and responsibility (then incompletely separated from each other), the offence created in the 1624 Act—a constructive crime, paralleling murder, which was based on a presumption that a woman concealing the death of her illegitimate newborn had murdered it—is helpfully (p.205) understood via Fletcher's pattern of ‘manifest criminality’.15 This structure of criminal liability was, according to Fletcher, the dominant ‘pattern of criminality’ until the end of the eighteenth century.16 One of the features of liability under ‘manifest criminality’ is that the commission of a crime is ‘objectively discernible at the time that it occurs’: as a crime, ‘the act must manifest, on its face, the actor's criminal purpose’.17 The concealment of the birth of a ‘bastard child’ fits here because the act of concealing is treated as an act that, to borrow Fletcher's words, ‘meets an objective standard of liability’.18 A single woman's act of ‘murthering’ an illegitimate child and concealing its death was constructed as intelligible and purposeful behaviour.19 Further, under this law, a woman's actions were accorded a particular significance for the purposes of determining criminal liability. While the individual mental states that might accompany the act of infanticide—intent or perhaps motive to preserve reputation and status—are obliquely countenanced in the Act, liability is grounded in the lethal action itself. As Fletcher writes, when liability is structured according to the principles of ‘manifest criminality’, the ‘criminal act is treated as a substantive condition of liability’.20

To refute the allegation of concealment and the attendant presumption of murder, those charged under the 1624 Act could raise a ‘benefit of linen’ or ‘preparation’ plea, in which a woman demonstrated that she had prepared for the arrival of her baby, or a ‘want of help’ plea, in which she claimed that she had unsuccessfully sought assistance in childbirth.21 An illustration of the successful use of these informal pleas is provided by the record of Mary Campion's trial for killing her newborn:

The Prisoner said, that she was not near her time; and no proof was made that the Child was Born alive; and she being found to make good Provision for the Child against the Birth, she was deemed to be out of the Statute and so she was Acquitted.22

Conversely, the absence of evidence that the defendant had sought help or had prepared for the baby could inculpate her:

(p.206) The Prisoner could say little in her Defence, it did not appear that she made any Provision for the Birth of the Child, nor was she heard to cry out, or us’d any endeavour to discover it, as the Statute of King James I [the 1624 Act] in such Cases requires. The Fact being clear, upon the whole the Jury found her Guilty of the Indictment.23

In the absence of sophisticated conceptions of proof and formal rules of evidence, these informal pleas were designed to challenge the authenticity of the manifest meaning of the act of concealment. As the act of concealing the death of an illegitimate baby was, prima facie, indicative of having killed it, evidence of preparation or ‘want of help’ undercut this manifest meaning by casting doubt on it (why would a woman kill a baby when she had prepared for it or sought help to ensure it was born alive?).

Indicating the strength of concerns with immorality and the economic and social problems posed by single women and illegitimate children, prosecutions and convictions under the 1624 Act were initially high, but the Act came to be observed with less and less strictness and, eventually, it was ‘largely disregarded’.24 The radical change from the first decades after 1624 was the result of developments both within and beyond the criminal justice system. Within the criminal justice system, the first of two sets of developments concerned changes in the mode of criminal trial. As I discuss in detail in Chapter 6, up to 1700, criminal trial process was changing such that ‘truth was becoming internal to the trial procedure’,25 and changes from 1700 were associated with the rise of the adversarial trial process. With greater emphasis on proof, concealment of an illegitimate birth came to be regarded as an insufficient basis for a capital charge.26 The second, connected set of changes related to the status of the Bloody Code, which came to be criticized both for the severity of the law on the books and the unpredictability of punishment that, in practice, accompanied it. Against a backdrop marked by these legal developments, eighteenth-century judges seem to have worked to avoid the imposition of capital punishment in infanticide cases.27

(p.207) Beyond the bounds of the criminal courtroom, the eighteenth century saw changes in attitudes to women, illegitimacy, and poverty, each of which was an ingredient in infanticide trials. As Mark Jackson argues, as a result of these changes, a ‘humanitarian’ approach to infanticide rose to the fore, affecting the social meanings of infanticide.28 According to this ‘humanitarian’ approach, unmarried women who were alleged to have concealed, abandoned, or murdered their illegitimate newborns did so because of their modesty and virtue, and not because they were cruel and unnatural. The ‘humanitarian’ approach emphasized the social pressures unmarried women faced, and also criticized the lack of responsibility shown by men—the ‘seducers of women’—for their sexual behaviour: although ‘neither the actions nor the criminality of men’ featured in legal investigations, infanticidal women came to be regarded as ‘passive, compassionate, pitiable and innocent’.29 While on the face of the law, their conduct remained criminal, social meanings changed such that women who were charged with killing their newborns were to be pitied, and punishment avoided if possible.

The aggregate effect of the changes both within and beyond the criminal justice system in this era was to pave the way for the appearance in criminal courtrooms of informal pleas to newborn child killing based on mental incapacity. In this era, claims to exculpation on the basis that a defendant woman was not in her ‘senses’,30 or did not know what she was ‘about’,31 were made alongside other informal claims to exculpation such as the ‘benefit of linen’ plea.32 Such claims already had a history of success as bases for an informal insanity plea in the common law murder trials of married women charged with killing their newborns.33 These types of claims based on mental incapacity came to enjoy greater prominence over the course of the 1700s.34 An illustration of their successful extension to single women is provided by the trial record of Isabella Buckham, who was acquitted of the murder of her ‘male bastard child’ in 1755. In her defence, she is recorded as saying:35

I was not in my senses; I do not know what I said or did. Had I been in my senses I should have been very loth to have parted with it.

Over the course of the eighteenth century, judges and juries became increasingly aware of ‘the physical and mental distress associated with labour’ and the idea that this led women to act ‘irrationally’.36 This meant that claims to exculpation on the (p.208) basis of mental stress at the time of giving birth and in the period following it came to have greater probity. Overall, the increasing prominence of claims to exculpation based on ‘phrenzy’ at the time of childbirth over the course of the eighteenth century heralded the profound shift in the legal meaning of infanticide (as it would later be called).37

The greater probity these claims to ‘phrenzy’ enjoyed in the eighteenth century was both a part of and fed into broader, social dynamics around gender. The rise of informal exculpation based on mental incapacity around the time of childbirth has been interpreted by Dana Rabin as a product of the intellectual culture of the eighteenth century, which had particular gender inflections.38 However, neither the degree nor the pace of change in the legal meaning of killing a newborn over the seventeenth and eighteenth centuries should be overstated. An element of continuity between these centuries is revealed when taking into account the situation of married women who killed their newborn children. Even though the ‘vast majority’ of trials of women alleged to have killed their newborns took place under the 1624 Act,39 properly conceptualized, the history of the law of infanticide includes the treatment of married women tried for the common law offence of murder of their newborns. When looking at these cases, something of the deep roots of an association between the mental distress of childbirth and child killing (and thus the genesis of the current construction of infanticide as abnormality) becomes evident. While unmarried women were charged with concealing their dead newborns under the 1624 Act, married women alleged to have killed their newborns continued to be charged with murder under the common law.40 Some married women charged with child murder drew on an informal insanity plea in responding to charges. Such claims were likely to be successful because, as Rabin acknowledges, while the criminal explanation for an unmarried woman killing her newborn was readily cognizable (she was ‘treacherous, threatening and active’), the possibility that a married woman could have committed the same act was ‘so shocking and so unlikely’ that it could only be the product of insanity.41

(p.209) ‘Out of her usual senses’:42 Infanticide and Incapacity

By 1800, the practice of treating leniently women alleged to have killed their newborns contrasted starkly with the severe treatment prescribed under the 1624 Act. Dissatisfaction with what was at least formally a severe law led to calls for the repeal of the 1624 Act and there were several reform attempts in the last decades of the eighteenth century.43 The successful bill was proposed by Lord Ellenborough and passed into law in 1803. This Act provided that women acquitted of the murder of their children, and thus spared the death penalty, could be charged in the alternative with an offence of concealment of birth of the dead baby, for which the maximum penalty was two years’ imprisonment.44 The alternative offence of concealment was designed to mitigate the difficulties of proof in baby death cases, as it provided an alternative charge where there was insufficient proof of a live birth or killing. The new Act made few concessions to changing social attitudes to women who killed their children, however, or to the case made by those advocating criminal law reforms. As several commentators note, it was designed not to reduce the harshness of the previous statute, but to ensure more convictions of women who killed their children by reigning in the latitude of the courts in dealing with suspects.45 Like the 1624 Act, the 1803 Act (initially) applied exclusively to unmarried women.46

While the introduction of an alternative offence of concealment in the 1803 Act reflected the older structure of criminal liability referred to above (whereby the act of a mother concealing the birth of her dead baby constituted liability as per ‘manifest criminality’47), the conditions, such as those relating to proof, which underpinned this liability structure were changing. Under the 1803 Act, there was no presumption of murder where a woman had concealed her dead baby, and so it was necessary for the prosecution to show that the child died after birth. A number of prosecutions failed because the possibility that the baby was born dead could not be conclusively ruled out.48 Even if there was some evidence that the baby had been killed, a woman might still be convicted of concealment and avoid a murder (p.210) conviction. Where a trial resulted in a conviction of concealment rather than murder, evidence of preparation, ‘want of help’, and good character seemed to work in the prisoner's favour. The 1832 trial record of Maria Poulton, alleged to have killed her illegitimate baby by strangulation, provides an illustration.49 In her defence, the defendant stated that: ‘In the state of mind I was in, I was unconscious of what I said or did’. One acquaintance testified that the prisoner had ‘uniformly borne the character of an inoffensive mild woman’, and another stated that Poulton had prepared for the birth. She was convicted of concealment rather than murder and sentenced to two years’ imprisonment. As this case suggests, after the passage of the 1803 Act, leniency continued to feature in the courts’ treatment of women charged with killing their newborns, and the 1803 Act had patchy success in facilitating prosecutions and convictions of women who killed their infants.

Something of the modern character of infanticide—structured around an explicit association of infanticidal conduct and mental incapacity—can be detected from the first decades of the nineteenth century. The appearance of a diagnostic entity of puerperal insanity (also known as puerperal psychosis or puerperal mania) boosted change in this direction. Reflecting the increasingly strong cultural association between childbirth, danger, and risk, puerperal insanity was thought to be one of a number of ‘unfavourable medical occurrences’ that could follow the intense strain of childbirth.50 This diagnostic entity, which was affiliated with another novel construct, ‘moral insanity’, entered the medical arena in the 1820s and 1830s, and reflected the emergence of a body of ‘alienists’ identifying and treating mental conditions.51 Puerperal insanity readily gained currency among ‘alienists’ and, by mid‐century, it had established a firm place in the insanity discourse. It was regarded as a discrete disease, characterized by depression, hallucinations, and acute anxiety.52 While the causes of puerperal insanity were disputed, it was widely accepted as a serious condition, which, in particular cases, resulted in self‐harm and violence directed towards the infant and others. In Joel Eigen's words, ‘puerperal insanity was not mere confusion: its natural result was an impulse to destroy one's new‐born child’.53 This feature of puerperal insanity implicated it in the question of criminal liability for child killing by mothers because the disorder was understood to cause such criminal conduct. The belief that there was a causal relationship between puerperal insanity and child killing was central to the way in which, over the second half of the nineteenth century, the law of infanticide would develop.

(p.211) The development of an expert psychiatric language connecting ‘phrenzy’ to the physical process of childbirth meant that a variety of professionals could all be called to give evidence in trials of women accused of killing their newborn children—to include obstetric practitioners, midwives, general practitioners, and alienists.54 Indeed, what would now be identified as expert evidence seems to have been a prominent feature in infanticide trials since this time. The broad acceptability of expert evidence about infanticide was the product of several interrelated factors. It was due in part to the distinctive status of midwives, who possessed specialist knowledge about childbirth and related matters such as the death of newborn children,55 but who were also members of the defendant's local community. The acceptability of expert evidence about newborn child murder was also the result of the difficulty of determining whether a child had been born alive, an issue on which surgeons and others were called to give evidence. In addition, the entry of expert evidence in trials where mothers were charged with killing their children was facilitated by the fact that the offence was a form of homicide. As Roger Smith notes, because medical experts had been required to give evidence in contexts such as coronial inquiries, there was an ‘established institutional framework’ into which medical evidence linking ‘lunacy’ and infanticide could be placed.56 The factors that ensured the ready acceptance of expert evidence pertaining to child killing by women also grounded the increasing social acceptability of psychological and psychiatric knowledge about, and clinical diagnosis of, the phenomenon.57

The rise to prominence of psychiatric and psychological knowledge in courtroom assessment of a mother's act of killing her newborn child over the course of the nineteenth century reflected in part the strategic utility of such knowledge. A clinical diagnosis based on such knowledge provided a means of accommodating the variety of exculpatory narratives that featured in the criminal trials of such women. Facilitated by the open‐textured character of psychiatric labels such as puerperal insanity, ‘the plea of mental disorder extended to cases where the accused was clearly not insane but was very upset, behaving oddly, facing the distress of destitution or was feeble‐minded’.58 As a result, and in a way that pre‐figures the current debate about the relevance of context to a defendant's responsibility (evidenced in the judgment in Kai‐Whitewind, discussed in the final section of (p.212) this chapter), the plea of mental disorder encompassed consideration of a defendant woman's lethal acts, her conduct or behaviour more generally as well as her broader circumstances. In Smith's words, jury decisions in cases involving women charged with child killing reveal ‘a willingness to associate distressful circumstances with distress of reason’.59 Such a ‘willingness’ both depended upon and reproduced a porous boundary between women's mental state and their circumstances, resulting in a long‐lasting legal construction of women offenders such as those alleged to have committed infanticide as over‐determined or hyper‐contextualized.60

The blurred line between distressing circumstances and distress of reason, or between ‘sad’ and ‘mad’ women, reflected ordinary or non‐specialist understandings of ‘madness’, rather than a desire on the part of medical professionals to prescribe the significance of the acts of women killing their newborns.61 The rise of an expert knowledge of mental incapacity and childbirth—possessed and espoused by ‘medical men’—has been interpreted as the ‘medicalization’ of infanticide. The reference to the ‘medicalization’ is a reference to the notion that any special status at law is dependent on pathologization: thus, infanticide defendants are depicted as most properly the subjects of medical rather than legal attention, and treatment rather than punishment.62 However, this approach, with its specific focus on the advent of expert medical (and specifically psychiatric and psychological) knowledge, fails to grasp thoroughly what my analysis suggests is the long and strong association between gender, childbirth, and ‘madness’ relating to child killing by mothers, and its currency beyond the bounds of a professionalizing elite. In addition, the argument about ‘medicalization’ does not pay sufficient attention to what has been referred to as the way in which medicine ‘became much more important as a source of intellectual resources for understanding the world’ in the Victorian era.63 While in this period there were increasing points of interconnection between medicine and deviance, this was a complex development—reflecting in part a re‐articulation of humanitarian concerns within ‘scientific’ language. The particular associations between gender, ‘madness’, and crime were taken up and amplified by, rather than invented within, expert medical (p.213) discourse.64 Viewed in this way, the changing meanings of infanticide would seem to reflect something more complex than an idea that medical knowledge overstepped a pre‐existing and solid boundary beyond which it might not go.65

The interaction between an emergent expertise about gender, ‘madness’, and crime and ordinary people's attitudes and beliefs was dynamic. At this time, ordinary people's understanding of ‘madness’ was ‘growing into’ medical conceptions. As Roy Porter argues in relation to ‘madness’ in general, and as I discuss in Chapter 6, the development of expert medical knowledge ‘emerged on the basis of “natural beliefs” about madness already well entrenched within common culture’.66 Such beliefs had a strong moral dimension. According to Martin Wiener, moral issues were ‘starkly clear’, and, with their basis in this shared morality, penal and medical discourse had ‘many points of contact’, up to the mid‐Victorian era.67 This meant that expert discourses shared moral precepts with generalized social discourses, around responsibility, for instance. The effect of the close connection between non‐expert and expert knowledge about insanity following childbirth was that moral‐evaluative decisions about women's (attenuated) responsibility for killing their young children were underscored by both lay and scientific knowledge. Although the relevant body of scientific knowledge would later fragment, at least until the end of the nineteenth century, it formed a solid under layer for the lenient practices that would be formalized in the infanticide doctrine.

In a way that parallels the developments in knowledges brought to bear on other mental incapacity doctrines, as the development of an expertise about mental incapacity and childbirth emerged out of common knowledge, the process created a lay or non‐expert knowledge of the same. As I discuss in Chapter 3, this type of knowledge is most accurately understood as lay because it is defined by its non‐expert quality. As it concerns socially ratified attitudes and beliefs about the interaction of gender, ‘madness’, and crime, this lay knowledge has a significant impact of legal evaluation and adjudication of women who killed their young children. The strength of these gender meanings—initially common to both expert and non‐expert knowledges—has come to determine the legal issue of a defendant's criminal responsibility, and to mean that the acts of infanticide have come to be read as an instantiation of abnormality for criminal law purposes.

(p.214) Liability, Responsibility, and the ‘Infanticidal’ Type

A common set of gender constructions formed the central plank of both emergent expert psychiatric and psychological knowledge and lay or non‐expert knowledge about women killing their newborn children. The Victorian era was marked by what Smith calls a ‘network of correspondences between woman, nature, passivity, emotion and irresponsibility’.68 On the one hand, the effect of these correspondences was that ‘all women were seen to be closely bound to their biology, and the psyche was thought to be intimately connected with the reproductive cycle, the health or pathology of which directly determined their mental health’.69 This meant that ‘with women, madness lay in essential constitutional weakness’—women were in effect predisposed to insanity.70 Beliefs that women's mental conditions were closely related to or determined by biology were common to expert medical and lay discourses.71 The diagnostic entity of puerperal insanity fitted neatly here because, as discussed above, the mental disorder was thought to flow from the physical strains of childbirth. On the other hand, this network of gendered meanings involved the construction of women as passive subjects, ‘heavily determined by social forces, the antithesis of the autonomous, rational masculine self’.72 As a result of these gender constructions, during the Victorian era, a compassionate view of a woman's act of killing her newborn solidified—based on sympathy for her weak physical and moral state, for the physical pain a woman suffered giving birth without assistance, and on a conception of the ‘fallen woman’ who was not a fully independent agent.73

By the end of the nineteenth century, these gendered constructions coalesced to create a particular social type, the infanticidal woman. The combination of the strength of the expert psychological and psychiatric discourse, and the fact that an impulse to kill the child was thought to be a particular feature of puerperal insanity, meant that, according to this social type, a woman's conduct was caused behaviour, for which she had at most limited moral responsibility. This idea formed the basis for the practice—which preceded the reformation of the law—of treating infanticide defendants as having attenuated legal responsibility. By this point, the early Victorian emphasis on denunciation and deterrence of criminal offenders had given way to a view whereby they were thought to be ‘less wicked, but also less (p.215) rational and less autonomous than formerly’.74 The infanticidal woman was just such an offender. While on the face of the law, the action of child killing by mothers remained straightforwardly criminal, leniency and mercy gave ‘practical expression’, to borrow Smith's phrase, to a different set of meanings.75 Although the law was not amended until 1922,76 the particular social type on which it would be formulated—the infanticidal woman, with circumscribed personal responsibility for her acts—was established by the end of the 1800s.

As well as creating a particular social type, the dense network of meanings around gender had the effect of over‐determining the legal significance of the infanticidal woman's act of killing her child. The network of meanings, shared by experts and non‐experts, combined in a particular way to ensure that the act of a mother killing her child came to be understood as an instantiation of abnormality for both moral and criminal law adjudication purposes. By this idea that the act of infanticide became an instantiation of abnormality, I mean to suggest something other than what might be called evidence or proof of abnormality: as the instantiation of exculpatory abnormality, the infanticidal act itself comprises rather than merely evidences the abnormality that characterizes the defendant woman, linking her lethal act (as caused) to her legal responsibility (as attenuated). As the instantiation of abnormality, a ‘mad’ defendant's conduct has a thick significance in legal evaluation and adjudication practices, permitting ‘madness’ to be ‘read off’ her conduct in legal processes. As I discuss in Chapter 3, the thick significance of a ‘mad’ defendant's conduct arises from the intimate connection between the conceptual and the evidentiary on the mental incapacity terrain—what counts as ‘madness’ for criminal law purposes is what is manifest as ‘madness’ within criminal doctrines and practices.77 On my analysis, even as the meanings given to the acts themselves changed (such that infanticide came to be illustrative of ‘manifest (p.216) madness’ rather than ‘manifest criminality’), the acts of infanticidal woman defendants retained this thick significance in law.78

Until this point in time, it was still accurate to regard a claim of mental incapacity as a claim for exculpation of a defendant woman charged with killing her child. But the effect of the social type, the infanticidal woman, was such that, when the law comprising the current doctrine of infanticide developed in the first decades of the twentieth century, infanticide would crystallize as both an offence and a defence. That is, mental incapacity would operate to (partially) exculpate a defendant woman (who might otherwise be liable for murder of the infant), but also (partially) inculpate her (in that she would be liable for conviction of a manslaughter‐equivalent offence, if charged with infanticide). Broad continuities in the meanings given to gender, ‘madness’, and crime sustain this dual nature of infanticide in the criminal law of the current era, something that evidences the multiple roles mental incapacity doctrines have in criminal law.79

Of Imbalance and Disturbance: the Current Law of Infanticide

The social and legal dynamics assessed above found their full expression in the formulation of the current law on infanticide. It appeared in two stages in the first decades of the twentieth century. In the first stage, the Infanticide Act 1922 created a new offence, called infanticide, which was subject to the same penalty structure as manslaughter, and which constituted a defence to a charge of murder. The novel nomenclature—infanticide—applied to a novel legal formulation.80 The Act stipulated that, to be liable for infanticide, a woman must have caused the death of a ‘newly born’ child, when her ‘balance of mind’ was ‘disturbed’ by the effect of childbirth. The reasons for this particular formulation of the infanticide provision are not clear.81 In the second stage of the formulation of the current law, there was an expansion of the scope of ‘newly born’. After the courts took a strict view of the (p.217) reach of that part of the new provision,82 and critics pointed out ‘the gap between the medical view of maternal mental disorder and its legal reconstruction’,83 a parliamentary proposal to broaden the scope of infanticide was drafted in 1936.84 The Bill that became the Infanticide Act 1938, however, was a later one, proposed by Lord Dawson of Penn. By contrast with the 1922 Act's reference to ‘newly born’, the 1938 Act set a 12‐month age limit for the child and introduced an additional clause providing that a defendant mother's mind could be disturbed by ‘the effects of lactation’ (breastfeeding) as well as by ‘the effect of giving birth’. The current law of infanticide is contained in Section 1(1) of the Infanticide Act 1938, which makes infanticide an independent homicide offence, and Section 1(2) of the Act, which makes infanticide available as an alternative verdict when a defendant is charged with murder or, since 2009, with manslaughter.85

The current law of infanticide may be broken into three components. First, the infanticide doctrine is available only to a woman who kills her own child. This component encodes what was, by the time of the 1922 and 1938 Acts, the long‐standing special status accorded to women who kill their infants. This special status meant that the creation and maintenance of a specific category of homicide for women in the first decades of the twentieth century was regarded as a legitimate and uncontroversial legal development. The second component of the infanticide doctrine is the requirement that the ‘balance’ of the defendant woman's mind must have been ‘disturbed’ at the time of the act or omission leading to the death of her child. As I discuss below, significantly, a mere temporal connection between mental disturbance and actus reus suffices for infanticide.86 The third component of the current law is the requirement that the disturbance of the defendant's mind be caused ‘by reason of her not having fully recovered from the effect of giving birth’ or from ‘the effect of lactation’. These physiological processes form the aetiological basis for the diminished mental capacity that is central to the doctrine.

(p.218) In my analysis, the three components of the infanticide doctrine raise three points of scholarly interest. The first of these relates to the mens rea required for the offence (or impliedly admitted if infanticide is raised by the defence). The mens rea or fault element is not clear on the face of the infanticide provision. Although the statutory provision states that a woman charged with or pleading infanticide would, ‘notwithstanding that the circumstances were such that but for the provisions of this Act’, have been liable for murder, it had not been clear until recently if an infanticidal woman had to have the mens rea for murder. Recently, both the issue of the mens rea of infanticide and the precise relationship between infanticide and murder has been resolved. In Gore, the Court of Criminal Appeal determined that the inclusion of the term ‘wilful’ in the infanticide provision was wide enough to cover both intent and recklessness, and found that Parliament had intended to create an offence that covered situations wider than those covered by murder.87 The Court stated, obiter, that there was no requirement that all the ingredients of the offence of murder be proved before a defendant could be convicted of infanticide.88 To me, it is striking that, before it was resolved, uncertainty about the mens rea of infanticide did not stand in the way of either convictions or pleas of infanticide, hinting that, in relation to infanticide, the centre of gravity for criminal law adjudicative purposes lies elsewhere (as I discuss below).

The second point of interest regarding the current law relates to the relationship between the requirement that the defendant woman's mind be ‘disturbed’ and the actus reus of killing, the external element of infanticide. The relationship between the specified mental incapacity and the actus reus looks different from other such relationships elsewhere in criminal law. As a number of commentators note, the connection required is merely temporal—the infanticide law does not specify that a defendant woman's mental disturbance must cause her to kill her child.89 Requiring a mere temporal coincidence between the defendant's incapacity and her lethal act obscures the de facto relation between mental disturbance and the killing under the law of infanticide: based on my analysis of the social type, the infanticidal woman, I suggest that infanticide operates via an implicit assumption that the defendant woman's actus reus of killing is caused or determined behaviour. It is this that is behind the ‘simplified’ relationship between mental incapacity and the actus reus of the offence in the Infanticide Acts 1922 and 1938, which created what Nigel Walker refers to as a ‘virtual presumption’ that the woman actor was not fully responsible by reason of mental illness.90 This ‘virtual presumption’ forecloses the question of the defendant's responsibility for her offence. In foreclosing the (p.219) question of the defendant's criminal responsibility, the infanticidal woman is in effect decreed to have attenuated responsibility for her actions. This idea of partial responsibility is encoded both in infanticide as a plea and as a charge, that is, it is present when infanticide operates to partially inculpate or partially exculpate.91 On this reading, the infanticidal woman's partial responsibility flows from the generalized social construction of an infanticidal type, which substitutes for an individualized inquiry into a defendant's mental capacities at the time of the offence.92

The third point of interest regarding the current law of infanticide relates to the precise significance of its external element, the act of killing. Here, it seems that the act of killing is the key to the ‘virtual presumption’ of partial responsibility encoded in the provision. Thus, the external element of infanticide is more significant than the Latin term actus reus itself implies—it operates as more than a mere threshold for liability. As I discuss in Chapter 3, in my thinking, the ‘mad’ defendant's act is a part of the broader picture of his or her conduct, and the significance of that conduct lies in the enmeshment of the conceptual and evidentiary aspects of ‘madness’.93 In relation to infanticide, the centre of gravity of the doctrine is its external element, the killing, and the law of infanticide rests on the manifest meaning of this conduct, the act of a mother killing her child. By eliding a distinction between the descriptive aspects of infanticide (a woman kills her infant at the same time as having a mind disturbed by childbirth or lactation) and its evaluative aspects (this action under these conditions warrants partial liability), a finding of partial responsibility for killing (whether in conviction for a charge or in the acceptance of a plea) flows straightforwardly from the construction of the act of infanticide as an instantiation of abnormality.

In addition, there is a further consequence of this construction of abnormality for the purposes of the law of infanticide. Because the mental disturbance underpinning infanticide is dependent on giving birth or lactating, it is necessarily a time‐bound condition. This presents a potential problem for the task of assessing criminal responsibility, because, like ‘temporary insanity’, the exculpating condition may no longer be present by the time of the criminal trial. Concern about ‘temporary insanity’ has shadowed the law of insanity since its formalization in the M'Naghten Rules.94 However, the physiological basis of the infanticide doctrine seems to have provided a neat justification for legal acceptance of the temporary nature of mental disturbance following childbirth or lactation.95 Because the (p.220) physical processes leading to the mental disturbance are themselves temporary, so too is the defendant woman's abnormality. Stretching above this, the physiological basis of infanticide in the effects of childbirth or lactation is significant for another reason: in providing that women's mental disturbance has a physical base in common reproductive practices (giving birth and breastfeeding), the doctrine of infanticide naturalizes women's abnormality. As feminist theorists argue, the physiological basis of this abnormality means that abnormality is simultaneously exceptional and unexceptional.96 The result is that, as Hilary Allen suggests, assertions of women's ‘feminine normality’ can either ‘shore up or undercut’ the ascription of criminal responsibility: thus, it is equally possible for women to come to rest on either side of the non‐responsibility/responsibility divide,97 or, via the specific legal form of infanticide, on both sides. And, indeed, as a successful infanticide charge or plea results in a conviction and sentence as if the defendant had been convicted of manslaughter, it seems that such women come to rest in a half‐way house of partial responsibility.98

It is in light of this assessment of abnormality that the role of expert psychiatric and psychological evidence in infanticide trials should be understood. As is the case in trials involving claims of diminished responsibility, expert evidence about a defendant's disturbed mental state is a practical necessity for the doctrine of infanticide.99 Beyond its practical role, my reflections on the potentially normal abnormality, or unexceptional exceptionality, of women who kill their children suggests that expert evidence is one of the ways in which infanticidal women are constructed as abnormal for the purposes of the criminal law: by interpreting women's actions in the psychiatric language of disorder and disturbance, they are constructed as exceptional and pathological legal subjects. Writing about (p.221) infanticide, insanity, and diminished responsibility, Alan Norrie argues that ‘psychiatry was the means of introducing a satisfactorily circumscribed compassion into the legal rules’: this ensures that the criminal law achieves a contextualization of the defendant that falls short of subsuming the law's voluntarist inquiry about criminal behaviour beneath a determinist medical account of behaviour.100 Norrie's argument is compelling and it is clear that the separation of infanticide from murder and its presentation in ‘medical terms’ has enabled the law to ‘maintain a general punitive stance to a social problem, laced with an unthreatening show of compassion in the individual(ised) case’.101

‘[T]his sad case’:102 What Legal Actors Know about Infanticide

In the recent decision of Kai‐Whitewind, the Court of Appeal rejected the appeal brought by a woman convicted of the murder of her three‐month‐old baby, Bidziil.103 Kai‐Whitewind had not admitted the killing—her counsel had adduced evidence to the effect that the baby died of natural causes—and the possibility of an alternative homicide charge and/or conviction—infanticide—was not raised by either the prosecution or defence, at trial or on appeal. However, prompted by the unusual facts of the case, the Court of Appeal considered it appropriate to offer some comments, obiter, on whether infanticide should have been raised in the appellant's case. Lord Justice Judge, delivering the judgment of the Court, observed:

The appellant was a woman of good character with two children. She had apparently given them natural maternal love and affection before she gave birth to Bidziil. He was conceived in the course of an alleged rape.…Immediately after the birth she underwent some unspecified level of depression…Within a very short period, for understandable reasons,…[Bidziil] was cared for by her mother, and not by her. All this inevitably weakened the natural bonding process…It was in those circumstances that the baby was killed, less than three months after the appellant had given birth to him.104

These aspects of the facts of the case led Lord Justice Judge to question ‘whether, as a matter of substantive law, infanticide should extend to circumstances subsequent to the birth, but connected with it, such as the stresses imposed on a mother by the absence of natural bonding with her baby’.105

(p.222) The Court of Appeal expressed further concern about the law of infanticide as it relates to the case of a mother ‘who has in fact killed her infant [but] is unable to admit it’, observing that:

This may be because she is too unwell to do so, or too emotionally disturbed by what she has in fact done, or too deeply troubled by the consequences of an admission of guilt on her ability to care for any surviving children. When this happens, it is sometimes difficult to produce psychiatric evidence relating to the balance of the mother's mind. Yet, of itself, it does not automatically follow from denial that the balance of her mind was not disturbed; in some cases, it may indeed help to confirm that it was.106

In his judgment, Lord Justice Judge concluded that ‘the law relating to infanticide is unsatisfactory and outdated. The appeal in this sad case demonstrates the need for a thorough re‐examination.’107

Lord Justice Judge's comments suggest that circumstantial factors affect a woman's responsibility for the act of killing, and, further, that the meaning of the acts of a ‘mother who has in fact killed her infant [but] is unable to admit it’ is evidently that she is mentally disturbed. These comments rely on and encode a particular set of apparently self‐evident ‘truths’ about the interaction of gender, childbirth, and mental illness that clearly engaged the sympathies of the Court in Kai‐Whitewind. These ‘truths’ represent what I have been calling lay knowledge about child killing by mothers. Even though it is espoused by legal actors, it is a non‐expert form of knowledge. As I discuss above (and also in Chapter 3 and Chapter 6 in relation to insanity), legal actors rely on lay knowledge in relation to mental incapacity—legal expertise is mixed with lay knowledge or non‐expertise.108 This type of knowledge is enlisted in support of the current law of infanticide elsewhere in legal debates.109 Indeed, the longevity of infanticide law is in significant part due to continuity in the particular social meanings given to infanticidal women and infanticidal acts, which I discussed above and which underpin the responsibility‐attribution practices. The social meanings given to infanticidal (p.223) women and infanticidal acts have proved remarkably durable: they are now sustained without consensus among expert medical professionals regarding the idea of mental disturbance following childbirth or lactation.110

In its 2005 multi‐stage review of the law of homicide, the Law Commission gave serious consideration to Lord Justice Judge's comments, both about the scope of infanticide and the situation of a defendant ‘who has in fact killed her infant [but] is unable to admit it’. In its consultation paper, the Law Commission considered an abolitionist position, and three options (minimal, moderate, and radical) for retaining but reforming infanticide law. The Commission made a provisional proposal in favour of minimal reform, retaining infanticide in its current form but removing the statutory reference to lactation, and raising the age limit of the child victim to two years.111 In rejecting the moderate and radical reform proposals, the Commission rejected a requirement that the act or omission leading to the infant's death be causally connected to the defendant's ‘disturbance of mind’, reasoning that, without a causal requirement, environmental factors which may influence a defendant's state of mind may be taken into account.112 In general, the Law Commission's proposal to retain the doctrine reflects the broad and continuing acceptability of infanticide as a distinct category of homicide, and the special status accorded to women who kill their infants that the law encodes.

In addressing the issue raised by Lord Justice Judge of a defendant not being able to admit to the acts comprising the offence, the Law Commission noted that, as also applies to diminished responsibility, a procedure exists whereby such a defendant can make a case that his or her illness itself prevented disclosure to doctors and counsel. The Commission suggested that, if the evidence is unopposed, it will be in the interests of justice for such evidence to be received by an appeal court.113 Despite concluding that the existing procedure was satisfactory, the Law Commission went on to make a proposal that a different procedural rule should apply in infanticide trials.114 By way of justification for a special procedural rule for infanticide trials, contra diminished responsibility trials, the Law Commission (p.224) Consultation Paper referred to the ‘chasm’ between the mandatory penalty for murder and an ‘appropriate’ sentence in infanticide cases.115 The special procedural rule was not implemented when changes were made to infanticide by the Coroners and Justice Act 2009, and, in my view, the Commission's proposal would have represented an unfortunate development. While ostensibly motivated by the disparity between a life sentence for murder and what would be likely to be a non‐custodial sentence for infanticide, the now-rejected proposal was founded on a particular set of attitudes and beliefs about gender, ‘madness’, and crime, which are more usually naturalized in law.

The sympathy for infanticidal women, which is palpable in Lord Justice Judge's judgment and in the Law Commission report, has an analogue in sentencing practices relating to infanticide. Statistics relating to infanticide convictions reveal the virtual abandonment of custodial punishment for one species of homicide offence.116 Studies conducted in England and Wales show that infanticide convictions attract lenient penalties.117 For instance, in Sainsbury, the Court of Appeal quashed the trial judge's 12‐month custodial sentence and substituted it with a three‐year probation order. The Court of Appeal stated that, far from the welfare of society demanding a custodial sentence, this course would ‘risk’ the welfare of society.118 Similarly, although in relation to a defendant charged with manslaughter for killing her infant, in Lewis, the Court of Appeal again quashed a 12‐month custodial sentence and substituted it with a three‐year probation order. The Court emphasized that Lewis needed treatment, making this a condition of the order.119 The leniency following a conviction for infanticide (spilling over to manslaughter where the facts are comparable) strongly suggests that defendants are viewed with a high level of sympathy and compassion, and that the infanticide defendant is regarded as less dangerous than other killers.

There is an interesting coda to the lenient sentencing practices attendant to the law of infanticide. It is commonly acknowledged that infanticide is rare, as either a charge or a plea,120 but, in those sentencing decisions available, it is possible to (p.225) detect a faint idea that ‘madness’ (and its product, the act of infanticide) is its own punishment. This seems to be the import of Lord Russell's comments in Lewis, where he stated that the defendant's behaviour was ‘wicked, and a young life has been lost. That must never be forgotten. We imagine it will not be forgotten by her.’121 Depicting the defendant's ‘madness’ (and its product, the act of infanticide) as its own punishment again exposes legal emphasis on the defendant's act—as an instantiation of abnormality. The significance of the infanticidal woman's act of killing is such that it can act as a punishment, replacing formal penal sanction. Assessed together with the absence of custodial penalties for what is a homicide offence, it seems that, in infanticide, the actual or forecast realization of what a defendant woman has done is punishment enough.

Notes:

(1) In this respect, feminist legal theory and critical legal studies have shared concerns. As Nicola Lacey argues, there are strong continuities between strains of feminist legal theory and critical legal studies, in that both share a strategy of what she calls ‘recontextualisation as critique’: see N Lacey Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart, 1998) ch. 7.

(2) See K Kendall ‘Beyond Reason: Social Constructions of Mentally Disordered Female Offenders’ in W Chan et al (eds) Women, Madness and the Law: A Feminist Reader (London: GlassHouse Press, 2005) 41–57. Women's biology has featured prominently in these ideas of deviance. See for discussion, L Seal Women, Murder and Femininity: Gender Representations of Women Who Kill (Basingstoke: Palgrave Macmillan, 2010) 50–1.

(3) See Infanticide Act 1938 (1 & 2 Geo. VI c.38), s 1(1) and 1(2) as amended by Coroners and Justice Act 2009.

(4) For discussion, see C Smart ‘The Woman of Legal Discourse’ in K Daly and L Maher (eds) Criminology at the Crossroads: Feminist Readings in Crime and Justice (Oxford: OUP, 1998) 21–36; and Lacey Unspeakable Subjects ch. 7.

(5) See generally S Shahar Childhood in the Middle Ages (New York: Routledge, 1992) 126–7. Even after infanticide became legally proscribed, prosecutions, and certainly convictions, represented only a small slice of all acts of infanticide that took place: R Dickinson and J Sharpe, ‘Infanticide in Early Modern England: The Court of Great Sessions at Chester, 1650–1800’ in M Jackson (ed) Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000 (Aldershot: Ashgate, 2002) 43.

(6) See P Hoffer and N E H Hull Murdering Mothers: Infanticide in England and New England 1558–1803 (New York: New York University Press, 1984) 12. As these authors discuss, and in a way that also reflects extant anxieties about gender, accusations of witchcraft also became the object of royal law and royal prosecution at about this time (28–31).

(7) 18 Eliz. I c. 3.

(8) Hoffer and Hull Murdering Mothers 15.

(9) 21 Jac. I. c.27. The Act was titled ‘An Act to Prevent the Destroying and Murthering of Bastard Children’ and is known as the ‘Concealment of Birth of Bastards’ Act 1624.

(10) Extracted in Hoffer and Hull Murdering Mothers 20. The reference to ‘lewd women’ connoted unmarried women. At this time, marriage was not regulated by the state. As a result, as C Smart writes, ‘the condition of being married or not married was more fluid’ than in the current era: ‘The Woman of Legal Discourse’ 29. Married women, as well as married and unmarried men, and any individuals accused of killing children other than newborns, were excluded from the reach of the 1624 Act, but could still face murder charges: see M Jackson New‐Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth Century England (Manchester: Manchester University Press, 1996) 43–5.

(11) J M Beattie Crime and the Courts in England 1660–1800 (Oxford: OUP, 1986) 113.

(12) Such evidence included accounts of the defendant woman's behaviour and reputation, and a variety of physical signs, such as signs of violence on the child's body and estimates of whether the child had gone to full term. Other physical signs included the amount of air in a dead baby's lungs—if a baby's lungs floated, it was thought to have breathed and therefore to have died after birth—and the form of the dead baby's hands—if clenched in a fist, this was taken to indicate that the baby had been born dead: see, for example, OBP, Maria Jenkins, 18 September 1765 (t17650918‐40) and OBP, Ann Mabe, 27 February 1718 (t17180227‐25) respectively.

(13) M Jackson New‐Born Child Murder 32.

(14) J M Beattie ‘The Criminality of Women in Eighteenth Century England’ in D K Weisberg (ed) Women and the Law: A Social History Perspective (Cambridge MA: Schenkman Publishing, 1982) 202–3.

(15) See my Chapter 3 for detailed discussion.

(16) G P Fletcher Rethinking Criminal Law (Oxford: OUP, 2000) 61.

(17) Rethinking Criminal Law 116, 232. So, when criminal liability is structured according to ‘manifest criminality’, ‘thieves could be seen thieving; they could be caught in the act’: Rethinking Criminal Law 80.

(18) Rethinking Criminal Law 89.

(19) As Dana Rabin argues, a single woman's act of killing her baby was seen as a ‘reasoned, premeditated (though immoral and criminal) act’: see Identity, Crime and Legal Responsibility in Eighteenth Century England (Basingstoke: Palgrave Macmillan, 2004) 97.

(20) Fletcher Rethinking Criminal Law 232. Fletcher illustrates this aspect of ‘manifest criminality’ with reference to larceny, where, under ‘manifest criminality’, the ‘primary inquiry was the act of larceny’ and intent is a ‘subsidiary issue’ (86). Regarding mental states, the 1624 Act is also notable for the elision between what would now be identified as separate phenomena with distinct legal significance, motive and intention: a motive for concealing a dead illegitimate baby (loss of reputation and status, for example) substituted for intention to kill it.

(21) See R W Malcolmson ‘Infanticide in the Eighteenth Century’ in J S Cockburn (ed) Crime In England 1550–1800 (London: Methuen, 1977) 198 and Rabin Identity, Crime and Legal Responsibility 95–6 for discussion.

(22) OBP, Mary Campion, 11 December 1689 (t16891211‐26).

(23) OBP, Ann Gardner, 15 January 1708 (t17080115‐1).

(24) Malcolmson ‘Infanticide in the Eighteenth Century’ 197. In her study of Old Bailey trials from the 1700s, Rabin finds that there were no convictions under the Act after 1775: see Identity, Crime and Legal Responsibility 99. As Mark Jackson notes, the decline of the 1624 Act was accompanied by a trend to try women accused of killing their newborns (even single women) for murder under the common law, where such trials continued to be beset by problems of proof, and women tended to be discharged or acquitted of murder: New‐Born Child Murder 151.

(25) See A Duff et al The Trial on Trial (Vol 3): Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007) 40.

(26) See Beattie Crime and the Courts in England 124. As Beattie suggests, William Blackstone's Commentaries on the Laws of England (1775) suggests that the severity of the 1624 statute was mitigated in practice by shifting the burden of proof to the Crown: see Crime and the Courts in England 122.

(27) Crime and the Courts in England 203. In the absence of an alternative verdict to conviction under the 1624 Act, the majority of single women accused of killing their newborns were acquitted: see M Jackson ‘The Trial of Harriet Vooght: Continuity and Change in the History of Infanticide’ in M Jackson (ed) Infanticide: Historical Perspectives on Child Murder and Concealment 1550–2000 (Aldershot: Ashgate, 2002) 6.

(28) See Jackson New‐Born Child Murder 113–23.

(29) New‐Born Child Murder 118.

(30) OBP, Sarah Hunter, 28 June 1769 (t17690628‐27).

(31) OBP, Diana Parker, 17 September 1794 (t17940917‐46).

(32) The ‘benefit of linen’ claim was raised in the trial of Diana Parker, for example. OBP, Diana Parker, 17 September 1794 (t17940917‐46).

(33) See Rabin Identity, Crime and Legal Responsibility 98.

(34) Rabin argues that the rise of informal exculpation based on mental incapacity around the time of childbirth is a discrete product of the broader intellectual culture of the eighteenth century. According to Rabin, ‘in the context of a culture of sensibility’, an explanation for killing a newborn ‘that pointed to a temporary “phrenzy” brought on by a single women's illegitimate pregnancy was received as sincere, inevitable and exculpatory:’ Identity, Crime and Legal Responsibility 108–9.

(35) OBP, Isabella Buckham, 4 December 1755 (t17551204‐27).

(36) M Jackson ‘Infanticide: Historical Perspectives’ (1996) 146 New Law Journal 416, 417.

(37) Rabin concludes that the strength of this explanation for the act of killing a newborn was such that, by the end of the 1700s, ‘the crime itself became evidence of madness that required little or no supporting testimony about marital status or mental alienation’: D Rabin ‘Bodies of Evidence, States of Mind: Infanticide, Emotion and Sensibility in Eighteenth‐Century England’ in M Jackson (ed) Infanticide: Historical Perspectives on Child Murder and Concealment 1550–2000 (Aldershot: Ashgate, 2002) 73, 79. It seems to me, however, that this is somewhat precipitous: my analysis suggests that the emergence of these ideas and their rise to prominence took place gradually over the eighteenth and nineteenth century.

(38) See Rabin Identity, Crime and Legal Responsibility. In Rabin's words, ‘in the context of a culture of sensibility’, an explanation for killing a newborn ‘that pointed to a temporary “phrenzy” brought on by a single women's illegitimate pregnancy was received as sincere, inevitable and exculpatory’ (108–9). Thus, according to Rabin, the eighteenth-century image of women who killed their newborns as passive agents of the crime is in stark contrast with the seventeenth-century image of unmarried women as ‘treacherous, threatening and active’: Identity, Crime and Legal Responsibility 102.

(39) Beattie Crime and the Courts in England 114.

(40) Crime and the Courts in England 113.

(41) Rabin Identity, Crime and Legal Responsibility 98.

(42) OBP, Jane Harrington, 18 September 1854 (t18540918‐1068).

(43) For discussion, see Jackson New‐Born Child Murder 158–68.

(44) 43 Geo. III c.58. The Act was entitled ‘An Act for the Further Prevention of Malicious Shooting and Attempting to Discharge Loaded Fire‐arms’…and for repealing ‘An Act to Prevent the Destroying and Murthering of Bastard Children’’.

(45) See, for example, Jackson New‐Born Child Murder 177.

(46) In 1828, the concealment provision became an offence in itself and the reach of the statute was extended to married women. For discussion, see R Smith Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981) 145. A concealment offence, which applies to men and women, still exists in England and Wales. Section 60 of the Offences Against the Person Act 1861 provides that ‘any person’ can be charged with concealment, and the offence will apply whether or not the child had been born alive or dead. The maximum penalty is two years in prison.

(47) See further A Loughnan ‘The Strange Case of the Infanticide Doctrine’ (2012) 32(4) Oxford Journal of Legal Studies.

(48) See, for example, OBP, Julia Barry, 8 December 1825 (t18251208‐16).

(49) OBP, Maria Poulton, 17 May 1832 (t18320517‐65).

(50) H Marland ‘At Home with Puerperal Mania: The Domestic Treatment of the Insanity of Childbirth in the Nineteenth Century’ in P Bartlett and D Wright (eds) Outside the Walls of the Asylum: The History of Care in the Community 1750–2000 (London: Athlone Press, 1999) 46.

(51) See ‘At Home with Puerperal Mania’ 45–6. See my Chapter 6 for discussion of the development of an expert knowledge of ‘madness’.

(52) J P Eigen ‘Criminal Lunacy in Early Modern England: Did Gender Make a Difference?’ (1998) 21(4) International Journal of Law and Psychiatry 412.

(53) ‘Criminal Lunacy in Early Modern England’ 413.

(54) An example of reliance on experts in infanticide trials is provided by the trial of Harriet Farrell: see OBP, Harriet Farrell, 19 February 1829 (t18290219‐62).

(55) See G Böhme ‘Midwifery as Science: An Essay on the Relationship between Scientific and Everyday Knowledge’ in N Stehr and V Meja (eds) Society and Knowledge: Contemporary Perspectives in the Sociology of Knowledge and Science (New Brunswick: Transaction Publishers, 2005) 379–85.

(56) R Smith Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981) 148.

(57) As Joel Eigen writes, it seems that ‘specialist witnesses believed their pronouncements would resonate intuitively with the court and the jury for whom puerperal mania was hardly an esoteric, clinical discovery whose features had to be explained’: see J P Eigen Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore: Johns Hopkins University Press, 2003) 83.

(58) H Marland ‘Getting Away with Murder?: Puerperal Insanity, Infanticide and the Defence Plea’, in M Jackson (ed) Infanticide: Historical Perspectives on Child Murder and Concealment 1550–2000 (Aldershot: Ashgate, 2002) 168, 186.

(59) Smith ‘Trial by Medicine’ 149.

(60) As hyper‐contextualized or over‐determined by social forces, women offenders are less autonomous than the archetypal subject of the law: thus, it is not so much that infanticidal defendants are depicted in legal doctrines and practices as ‘mad’ as opposed to ‘bad’, but rather that they are ‘sad’: see T Ward ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder 1860–1938’ (1999) 8(2) Social and Legal Studies 163.

(61) Ward ‘The Sad Subject of Infanticide’ 166.

(62) Several feminists and critical scholars have argued that infanticide is marked by ‘medicalization’: see, for example, H Allen Justice Unbalanced: Gender, Psychiatry and Judicial Decisions (Milton Keynes: Open University Press, 1987) 56–7; D Nicolson ‘What the Law Giveth, it Also Taketh Away: Female‐Specific Defences to Criminal Liability’ in D Nicolson and L Bibbings (eds) Feminist Perspectives on Criminal Law (London: Cavendish Press, 2000) 171; and F Raitt and M S Zeedyk The Implicit Relation of Psychology and Law: Women and Syndrome Evidence (Philadelphia: Routledge, 2000) 9.

(63) C Lawrence Medicine in the Making of Modern Britain, 1700–1920 (London: Routledge, 1994) 71. The development of an elite or specialist knowledge about mental incapacity and childbirth was part of a broader development of medical specialisms in the nineteenth century. For discussion of the development of the medical profession, see Medicine in the Making of Modern Britain 55–83.

(64) As Lucia Zedner argues, ‘psychiatric diagnoses were built on traditional, exculpatory legal discourse to provide a formidable case for acquitting the infanticidal mother’: see L Zedner Women Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991) 89.

(65) See N Rose ‘Beyond Medicalisation’ (2007) 369 The Lancet 700–2 for a critique of the idea of ‘medicalization’.

(66) See R Porter Mind‐Forg’d Manacles: A History of Madness in England from the Restoration to the Regency (London: Athlone Press, 1987) 33.

(67) M J Wiener Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: CUP, 1990) 21, 123.

(68) R Smith Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981) 143.

(69) L Zedner ‘Women, Crime and Penal Responses: A Historical Account’ (1991) 14 Crime and Justice 336.

(70) Eigen ‘Criminal Lunacy in Early Modern England’ 414–16. Exculpatory narratives, loosely based in ideas of women's constitutional weakness, also feature in cases in which women were charged with other offences: see, for example, OBP, Emily Newbar, 5 February 1894 (t18940205‐246).

(71) ‘Criminal Lunacy in Early Modern England’ 412.

(72) T Ward ‘Legislating for Human Nature: Legal Responses to Infanticide, 1860–1938’, in M Jackson (ed) Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000 (Aldershot: Ashgate, 2002) 251.

(73) ‘Legislating for Human Nature’ 251.

(74) Wiener Reconstructing the Criminal 307.

(75) Smith Trial by Medicine 154. The increasingly popular idea that a woman's actions in killing her child were not properly her acts, and that she deserved sympathy rather than condemnation, seems to lie behind the empirical data that indicates that, after a mid‐Victorian panic about infanticide in the 1860s, prosecutions for concealment fell and sentences grew shorter: see Wiener Reconstructing the Criminal 269. There is also evidence to suggest that infanticide defendants were particularly likely to be found unfit to plead in this period: see Eigen Unconscious Crime 83.

(76) Proposals to amend the 1803 Act were first introduced in the parliamentary session of 1872, and then again in 1880, 1908, and 1909. Each Bill proposed attempted to introduce a specific homicide offence for all women who killed their newly born babies. Each of the unsuccessful Bills faced problems derived from larger issues such as concern with the dilution of the law of murder and judicial‐versus‐Home Office discretion over capital punishment and none was successful: see N Walker Crime and Insanity in England (Vol 1: The Historical Perspective) (Edinburgh: Edinburgh University Press, 1968) 129–31. As Walker discussed, the evidence before the Capital Punishment Commission (1866) indicated that lay and professional opinion opposed a law that did not distinguish between murders by mothers of infants and other types of murders. The Commission acknowledged that it was ‘established practice’ for the Home Office to advise that the death penalty be commuted in infanticide cases.

(77) This is part of what I suggest is the persistence into the current era of older ideas about the way in which ‘madness’ becomes known and is proved for criminal law purposes. See Chapter 3 for discussion.

(78) See further Loughnan ‘The Strange Case of the Infanticide Doctrine’ (2012) 32(4) Oxford Journal of Legal Studies.

(79) See Chapter 2 for a discussion of these roles—inculpation, imputation, and a procedural role, as well as exculpation.

(80) As Nigel Walker suggests, the ‘new and technical’ label, infanticide, by contrast with murder, lacked emotional association: see Walker Crime and Insanity in England (Vol 1) 134. The Bill that became the Act had initially provided that, if the defendant woman had not recovered from ‘the effect of giving birth to the child’ when she killed it, she could be convicted of manslaughter rather than murder. However, in the course of debate in the House of Lords, Lord Birkenhead criticized the Bill on the basis that the alternative verdict of manslaughter was already available, and on the basis that the phrase ‘the effect of giving birth to the child’ was too wide: see Ward ‘Legislating for Human Nature’ 264.

(81) Walker suggests that this phraseology, which was the result of an amendment proposed by Lord Birkenhead, may have been drafted so the provision would be ‘self‐justifying’ in that it made the basis of giving special treatment to this particular species of homicide (the mother's state of mind) clear on the face of the statute: Crime and Insanity in England (Vol 1) 131. By way of an alternative interpretation, Ward suggests that the reference to a defendant's disturbed mind was intended to cover women whose knowledge of right and wrong was affected: ‘Legislating for Human Nature’ 264. On this interpretation, the infanticide provision represents a parallel to the law of insanity that artfully succeeded in encoding lenient treatment for defendants but avoided the indefinite detention that followed a successful insanity plea: see more generally Ward ‘The Sad Subject of Infanticide’ 174.

(82) In the case of R v O'Donoghue ((1927) 20 Cr App Rep 132), the Court of Criminal Appeal confirmed a trial judge opinion that a 35‐ day old baby was not ‘newly born’. O'Donoghue was applied in Hale (R v Hale, The Times, 22 July 1936), a case in which a married, middle class woman with a history of depression killed her three‐week old baby.

(83) See Ward ‘The Sad Subject of Infanticide’ 174.

(84) The Infanticide Bill 1936 covered the killing of children up to the age of eight and expanded the definition of a defendant mother's state of mind to include ‘distress and despair arising from solicitude for her child or extreme poverty or other causes’: extracted in Ward ‘The Sad Subject of Infanticide’ 172–3. According to Walker, the breadth of this provision meant it would have had little chance of passing through Parliament but, in any event, it lapsed before it could be considered: Crime and Insanity in England (Vol 1) 132.

(85) The provision was amended by the Coroners and Justice Act 2009, which extended the reach of infanticide by providing that it function as an alternative charge to a charge of either murder or manslaughter, and act as a partial defence to either of these offences.

(86) Unlike the defence of insanity, for example, the Infanticide Act 1938 does not require that the defendant show that her knowledge of the nature and quality of her act was affected by a ‘defect of reason’ resulting from a ‘disease of the mind’: see M'Naghten Rules as discussed by the House of Lords in Bratty v Attorney‐General for Northern Ireland [1963] AC 386 and my Chapter 5.

(87) See R v Gore (Lisa Therese) (Deceased) [2007] EWCA Crim 2789.

(88) See R v Gore (Lisa Therese) (Deceased) [2007] EWCA Crim 2789, [33]–[34]. This has now been confirmed by the amendments to the Infanticide Act 1938 contained in the Coroners and Justice Act 2009, which extend the reach of infanticide as a defence to a charge of either murder or manslaughter.

(89) Allen Justice Unbalanced 27.

(90) Walker Crime and Insanity in England (Vol 1) 135. In Walker's words, ‘if a mother kills her last‐born child in its first year of life, the law more or less invites us to treat her as having done so in an abnormal state of mind’. Walker refers to this as the ‘unique feature of infanticide’ (136); see also R D Mackay Mental Condition Defences in the Criminal Law (Oxford: OUP, 1995) 211.

(91) See further Chapter 2.

(92) See further Loughnan ‘The Strange Case of the Infanticide Doctrine’.

(93) By this reference to the connection between the conceptual and evidentiary, I suggest that meaning resides in conformity between the thing itself and the idea of the thing. See further Chapter 3.

(94) See K J M Smith Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800–1957 (Oxford: OUP, 1998) 223–32 for discussion.

(95) The physiological basis of infanticide has been subject to sustained and heavy criticism. Many legal commentators have expressed doubt about the validity of a clinical foundation for the infanticide doctrine and most contemporary scientific studies reject the notion that there is a distinct mental disorder following childbirth or connected to lactation: by way of example of legal commentary, see, Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244, 1975) (‘Butler Report’) para 19.23; in relation to scientific commentary, see, for example, V Dobson and B Sales ‘The Science of Infanticide and Mental Illness’ (2000) 6 Psychology, Public Policy and Law 1098. In addition, it is now widely accepted that physiological factors related to childbirth and lactation are ‘much less important’ than the psychological stresses of child‐care: See A Wilczynski ‘Mad or Bad? Child‐Killers, Gender and the Courts’ (1997) 37(3) British Journal of Criminology 432. In particular, the reference to the ‘effects of lactation’ in the Infanticide Act 1938 has been heavily criticized. It has been argued that this clause in the infanticide doctrine had no scientific basis even at the time of the passage of the 1938 Act and was included merely to make the 12‐month age limit of the child victim ‘plausible’: see Walker Crime and Insanity in England (Vol 1) 132.

(96) According to Allen, an ‘exclusive legal exemption’ for the new mother who kills her child conjures up two contradictory conceptions of maternal attachment. On the one hand, exempting a new mother from responsibility for killing her child makes the mother's attack ‘unthinkable’ unless it is the result of some pathology. On the other hand, connecting the woman's violent act with her physiology suggests a ‘natural maternal violence’ which cannot be subject to the usual legal restraints: Justice Unbalanced 28.

(97) Justice Unbalanced 50.

(98) I suggest that the kind of difference invoked at this half‐way house point is most accurately understood as one of kind. See Chapter 9 for a discussion in relation to diminished responsibility.

(99) Mackay argues that expert reports are ‘vital’ as to how a plea progresses. Although there is no requirement that a defendant suffer from a recognized mental disorder in order to be charged with or plead infanticide, most of the expert reports reviewed by Mackay included clinical diagnoses (such as postnatal depression): see R D Mackay, ‘Infanticide and Related Diminished Responsibility Manslaughters: An Empirical Study’, Law Commission for England and Wales Murder, Manslaughter, and Infanticide (Law Com No 304, 2006) Appendix D: paras 23–5.

(100) A Norrie Crime, Reason and History: A Critical Introduction to Criminal Law (London: Butterworths, 2001) 191. Norrie argues that medical knowledge permits some consideration of the defendant's social context without exposing the connection between social context and criminal behaviour that the criminal law attempts to obscure: Crime, Reason and History 190.

(101) Crime, Reason and History 191.

(102) R v Kai‐Whitewind (Chaha'oh Niyol) [2005] 2 Cr App R 457, 484.

(103) R v Kai‐Whitewind (Chaha'oh Niyol) [2005] 2 Cr App R 457.

(104) R v Kai‐Whitewind (Chaha'oh Niyol) [2005] 2 Cr App R 457, 482‐3.

(105) R v Kai‐Whitewind (Chaha'oh Niyol) [2005] 2 Cr App R 457, 484.

(106) R v Kai‐Whitewind (Chaha'oh Niyol) [2005] 2 Cr App R 457, 484.

(107) R v Kai‐Whitewind [2005] 2 Cr App R 457, 484.

(108) See Chapter 3 in general, and see Chapter 6 in relation to insanity and Chapter 7 in relation to intoxication.

(109) This reliance on such lay knowledge is evident in law reform proposals. For instance, unlike the Butler Report, which had concluded that there were no advantages gained by a separate infanticide provision, the Criminal Law Revision Committee (CLRC) recommended retaining and extending the doctrine of infanticide: see Fourteenth Report: Offences Against the Person (Cmnd 7844, 1980) para 102. The Committee acknowledged that the ‘medical principles’ underlying the Infanticide Act 1938 are ‘not proven’ but considered that the ‘types of situations’ that the courts are currently taking into account in cases of infanticide, such as family stress and poverty, ‘should continue to fall within the ambit of the offence’ (para 105). According to the CLRC, each of these considerations ‘rests on a mental disturbance resulting in a real sense from childbirth’ (para 105). In its report, the CLRC stated that ‘in cases now dealt with as infanticide it is a matter of human experience that the mental disturbance is connected with the fact of birth…even where it is primarily related to environmental or other stresses consequent upon the birth’ and, to ensure such matters could genuinely be considered, proposed that the infanticide provision should be broadened to provide that the balance of a woman's mind was disturbed ‘by reason of the effect of giving birth or circumstances consequent upon that birth’ (para 105).

(110) For a well‐known account of one set of expert views in favour of the law, see D Maier‐Katikin and R Ogle ‘A Rationale for Infanticide Laws’ [1993] Criminal Law Review 903–14. Despite the absence of scientific consensus, the legal doctrine of infanticide remains closely wedded to its physiological basis. Some evidence of this is provided by the response the Law Commission received to its question, included in its Consultation Paper, about whether the doctrine of infanticide should be available to all carers of infants: A New Homicide Act for England and Wales? (Law Com No 177, 2005) paras 9.87–9.92. In its final report, the Commission noted that there was little support for making infanticide available to ‘other carers’ and concluded that the doctrine should continue to be restricted to biological mothers (paras 8.29, 8.31).

(111) A New Homicide Act for England and Wales? An Overview (Law Com No 177, 2005) paras 9.75–9.78.

(112) The Commission stated that the cause of the mental disturbance should have only an ‘evidential relevance’, that is, going to whether or not the mind was disturbed or disordered. The Commission concluded that this approach ensures that evidence supporting infanticide can evolve as medical practice evolves: see A New Homicide Act for England and Wales? An Overview para 9.63.

(113) Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006) para 8.45, referring to Criminal Appeal Act 1968, s 23(2).

(114) The Commission proposed that, in cases where a defendant mother is convicted of the murder of her child of one year or less, the judge should have the power to order a ‘medical examination of the defendant’ within 28 days after the end of the trial: Murder, Manslaughter and Infanticide para 8.46. This proposal has since been rejected by the government.

(115) Law Commission A New Homicide Act for England and Wales? An Overview para 9.105.

(116) As the Law Commission noted, sentencing practices in infanticide cases are in sharp contrast with sentencing provisions contained in recent legislation: A New Homicide Act for England and Wales? An Overview para 9.73.

(117) Of the infanticide convictions reviewed by Mackay in the study commissioned for the Law Commission, the vast majority of defendants were given non‐custodial sentences: Murder, Manslaughter and Infanticide, Appendix D, [20]. Of the 59 cases decided in 1979–1988, to which the Court referred in Sainsbury, there were no custodial sentences handed down: see R v Sainsbury (1989) 11 Cr App R (S) 533, 534.

(118) R v Sainsbury (1989) 11 Cr App R (S), 535.

(119) R v Lewis (1989) 11 Cr App R (S) 577, 579.

(120) In his empirical study, conducted for the Law Commission, R D Mackay found that there were 49 convictions for infanticide between 1990 and 2003: see Murder, Manslaughter and Infanticide, Appendix D para 7. Reflecting the large number of cases in which a plea of infanticide is accepted in the course of pre‐trial negotiations, only two of these verdicts resulted from jury trials (Appendix D paras 17–18).

(121) R v Lewis (1989) 11 Cr App R (S) 577, 579.