Infanticide defence review

By HELEN TUNNAH

Mothers who kill their children may not be able to argue post-natal depression to avoid a murder conviction after a Government-ordered review of infanticide laws.

Justice Minister Phil Goff has asked the Law Commission to consider whether infanticide should be repealed, because sentencing laws now allow judges to consider mitigating factors for murder and vary sentences.

Any change to the law will spark an emotional debate about whether a mentally ill woman who kills her child should carry the stigma of being called a murderer.

There are also concerns the penalty for murder can be far greater than for infanticide, which carries a maximum penalty of three years' jail.

Mr Goff would not talk to the Herald, but prominent defence lawyer Barry Hart said he was "reasonably passionate" infanticide should be retained.

"You don't get that many cases so it's not as if there's a social ill that needs to be addressed."

He said affected women might be suffering a quite significant psychiatric illness.

There have been seven convictions for infanticide in the past decade, and 59 cases between 1979 and 1998. The women have generally not been jailed after conviction.

The 1961 Crimes Act allows infanticide to be raised as a partial defence to murder or manslaughter, or laid as a charge in itself.

The law covers a woman who kills her child, who could be up to 10 years old.

It must be proved that she has not recovered from the birth of a child, which is not necessarily the one she has killed, and cannot be held fully responsible for her actions.

Mr Hart last year defended a 21-year-old Auckland mother of five who killed her toddler daughter while suffering a severe case of post-natal depression.

An earlier charge of murder had been dropped, and in sentencing the judge criticised an interfering mother-in-law and accepted the young woman had felt "wrecked" by events leading up to the killing.

Mr Hart said he was concerned about a mentally-ill woman having to carry a murder conviction for life.

He said if infanticide was repealed there was a risk of women being subject to harsher sentences because the penalty for murder is usually much stiffer.

The 2002 sentencing laws allow a judge to consider handing down a reduced sentence for murder, including no custodial term if going to jail would be "manifestly unjust".

The review is part of a larger Law Commission inquiry, which will also consider whether the defence of insanity needs to be changed.