Explainer: The strange case of the law around infanticide

New Zealand Listener·

7 Aug, 2023 05:00 PM12 mins to read

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Few things inspire such an intense combination of sorrow and horror as cases of parents killing children, whether by accident, cold-bloodedly and deliberately or as a result of mental illness.

The ripples spread far, to involve not just the victim and perpetrator, but also the professionals who confront the reality and have to deal with it, the family members who will live with the memory for the rest of their lives, and the wider community which must question how such things can happen in a decent society.

How, we ask ourselves, could anyone ever come back from that? What will become of someone such as Lauren Dickason, currently on trial for killing her six-year-old and two-year-old twin daughters, and relying on the defences of infanticide and insanity.

Accompanying these feelings, however, there is a degree of understanding. Anyone who has ever had responsibility for the care of a baby knows that it is about the hardest thing you will ever have to do in your life. As Dr Josephine Stanton, honorary senior lecturer in psychological medicine at the University of Auckland, told Michele Hewitson in an earlier Herald article, “many mothers can identify with it and infanticidal urges are common”. Motherhood is “an incredibly stressful, quite an alone and unsupported role”.

Which may partly explain why the law around infanticide is such a compassionate one. In New Zealand, infanticide has been on the law books since 1961 but the justice system has always taken a lenient view of it.

Our version was based on English law that can be traced back centuries to the principle of “a concession for mothers who killed their babies, who would otherwise be liable for the death penalty,” wrote Auckland University of Technology professor of law Warren Brookbanks in the New Zealand Criminal Law Review in 2016. “The conditions surrounding infanticide attracted significant public sympathy and the motive of illegitimate mothers attempting to hide their shame was considered to ameliorate the heinousness of the crime.”

According to the relevant part of our Crimes Act, infanticide occurs: “Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation.” In other words, and oversimplifying considerably, killing is the result of postnatal depression or stress connected with breastfeeding.

Although the maximum penalty is three years imprisonment, offenders are likely to be sentenced to community service, supervision or mental health treatment.

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New Zealand law differs from most in extending the age of the victim up to 10 years.

“Most legislations specify a 12 month period,” explains Peter Dean, Waikato Hospital forensic service consultant psychiatrist and the director of area mental health services for forensic services in Waikato.

Also, he explains, “Infanticide in New Zealand has been interpreted as ‘any children of yours that you kill’. So you could have, for example, a mother who kills their baby, but also kills older children.” The point being those children may have been caught up in the postnatal depression the woman is experiencing. It’s also worth noting the definition is not confined to natural children but can cover stepchildren or adopted children.

It might be thought that the current New Zealand model better reflects modern social realities, writes Brookbanks, “whereby children are commonly fostered and subjected to the challenges of ‘merged’ families... in such socially complex environments the addition of a newborn infant often may add additional stresses.”

“Law societies have often got into discussion… about whether the defence should exist at all, or not,” says Dean. “Despite all that, no one has said it shouldn’t exist, because as a society, we don’t want to punish mothers who kill their children, because we actually feel sorry for them, and they must be unwell to do it.”

Another factor in the law’s attitude to infanticide, as Hewitson wrote, is that it “is an act which has a low rate of recidivism. The longest study, carried out over 50 years at Britain’s Broadmoor Prison, found only one recidivist.”

The law may be kind but it is also complicated. Postnatal depression as a defence is not straightforward. As Dean notes, if you have had depression before a birth and have a recurrence of your depression afterwards, that’s not necessarily postnatal depression. Someone who has had depression before might not have that defence available to them.

“There’s an assumption that postnatal depression is a very biological condition caused by childbirth. But it’s complex. There’s lots of social pressures [to be a good parent], you’ve got a child who’s crying, keeping you up all night, you might have had your partner run away from you, there’s all these other social things that happen.”

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Fortunately, postnatal depression at the level that can lead to infanticide is rare. Newshub quotes psychiatrist Dr Tanya Wright, Clinical Head - Perinatal and Infant, Child and Adolescent Mental Health Services at Counties Manukau Health: “Peripartum stresses probably occur in about 40% of the population... depression somewhere around 15-20%, anxiety about the same” and post-partum psychosis one in 1000.

Given our law dates back to 1961, and given our increased understanding of psychology and the evolution of thinking around gender roles in the interim, the question naturally presents itself: is the New Zealand law fit for purpose?

The late Otago University law professor Kevin Dawkins described the charge of infanticide as a “kind of an historic relic” inherited from English common law, and available in fewer than 5% of countries. He proposed replacing the defence with one of diminished responsibility for both female and male offenders.

Likewise, Brenda Midson, general editor of the New Zealand Law Journal, told the Listener: “I do not think we need a specific infanticide defence. What we do need is a general defence of diminished responsibility which could apply to cases which might currently be considered to fall within infanticide but which also might apply, for example, to defendants who kill their abusers, and other cases in which the defendant is not legally insane but nor should they be held fully culpable for murder.”

Her views are expanded on in her PhD thesis, Why did they do it? Moral sensibilities, motivating reasons, and degrees of moral blame in culpable homicide, which is accessible online.

The law around infanticide is also unusual in that it specifically refers to women. Men might be under the same social pressures as women, although not the hormonal ones.

As Dean notes, we tend to think of women who kill children as mentally ill, and men who kill children as violent. There may be some justification for that.

“Most mothers don’t kill their children,” says Dean. “And most mothers who kill their children, actually, in the cold light of day, don’t want to have killed their children. I think that there is something different about men and violence.”

As Brookbanks noted: “Feminist writers have argued that the infanticide defence is based on flawed assumptions of female inferiority and hormonal instability, and that it risks trivialising woman’s criminality while masking the true reasons why women kill their children…

“However, there does not appear to be strong support for the idea that the same humanity and compassion should be extended to fathers who kill children in their care. While there is some evidence that such fathers are often young, unemployed, socially isolated and inexperienced as parents and dealing with childcare pressures, their characteristics are generally significantly different from mothers who kill. Most have a criminal history and were twice as likely to kill in a physically violent way.”

Writing in World Psychiatry in 2007, Phillip J Resnick and Susan Hatters-Friedman – who has been a witness in the Dickason trial – listed five motives that lead mothers to kill children:

fatal maltreatment, when “death is usually not the anticipated outcome; it results from cumulative child abuse, neglect, or Munchausen syndrome by proxy”;
altruistic, when a mother kills her child out of love, believing death to be in the child’s best interest;
acutely psychotic, a psychotic or delirious mother kills her child without any comprehensible motive (for example, a mother may follow command hallucinations to kill);
unwanted child, where a mother thinks of her child as a hindrance;
and the rarest, spouse revenge, when a mother kills her child specifically to emotionally harm that child’s father.

With so much research into infanticide, how much do we now know about the warning signs and possible preventive measures?

Several warning signs have been known for some time. Consultant psychiatrist Michael Craig listed several themes in the Journal of the Royal Society of Medicine.

“The first theme related to women imagining acts of infanticide,” or daydreaming about ways of killing their child. Craig wrote that women often responded to such thoughts with horror.

“A distorted sense of responsibility occurred when women felt despondent and believed that the situation was hopeless.” They could see no way out of how bad they felt and had suicidal thoughts that “often occurred at the same time as the thoughts of infanticide. The associated meaning appears to be related to feelings of distorted responsibility toward their babies.”

For others there was a sense of “consuming negativity [that] reflected … anger and hate …”

Perhaps most importantly, all the women in Craig’s study had felt ashamed and unable to share their thoughts with people such as family members and health professionals who might have been able to help them. “All the women were afraid that they would be judged to be inappropriate mothers and their babies would be taken away if they told people about their thoughts of infanticide.”

Larger social factors and public health resources could also be at play. “Something that is likely to help is having good mental health care for mothers postnatally and during their pregnancy,” says Dean, “and having services that are friendly for people to come and seek help.” At the moment, there are good services in some areas but patchy services in others.

“In the perinatal period most women are under close medical surveillance, and in theory there is scope for identifying the mothers most at risk of killing their babies,” wrote Craig. “Important risk factors that should be picked up in the antenatal history are substance abuse and mental illness. The rarity of [children being killed by parents], coupled with the infrequent contact of perpetrators with health professionals, will continue to hamper identification of the children at greatest risk. In many cases, however, [deaths] probably represent the extreme end of the abuse spectrum. Detection of infants most at risk may consequently result in a more widespread reduction of fatalities.”

It seems to work a bit like crime in general: if you have the right social conditions in the first place, crimes won’t occur. Dean says people need to be understanding and willing to get help but “we’re often a disconnected society, aren’t we? We don’t have the village that raises the children anymore.”

So, what can be done for mothers who did not get help and did the unthinkable? What prospects do they have apart from a lifetime of remorse?

As Brookbanks observed: “Judicial concern and compassion in these cases typically reflects a desire on the part of judges that offenders should be rehabilitated, not criminalised.”

“A number have been found insane by the court, and they become a special patient and come to a hospital for treatment,” says Dean. “Those women will commonly have a mental illness that may be a psychotic illness. So, they need treatment with anti-psychotic medications, anti-depressant medications. Part of our rehabilitation would involve lots of other types of therapies [such as] talking therapy.”

And if that works, there is still more to be done. “When they’ve recovered from their psychosis, it’s a very traumatic experience to know that your children are no longer there, and you’ve killed them. So, psychological treatment is an important part of coming to terms about what happened.”

Dean says he and other professionals are not immune to emotional reactions to the crime: “It creates that emotional response, even from us that deal with these people every day. You still get that strong emotional connection to the sadness of the whole thing. It’s just sad.”