MCGREGOR
A PERSON who is criminally responsible for the death of another is likely to stand trial for murder or manslaughter. It therefore stands to reason that a woman may be charged for murder if she is responsible for killing her child. For example, in 2001, Andrea Yates was charged for murder in Texas in connection with the drowning death of her five children aged six months to seven years, and in 1998, Evonne Rodriguez faced a similar charge in Buffalo, New York, for beating and strangling her four-month-old baby before throwing his body in the river.
JAMAICAN LAW
The law creates a special type of offence for which women who are accused of killing or causing the death of their children who are less than 12 months old may be charged. That offence is infanticide, and exists by virtue of Section 75 of the Offences Against the Person Act.
A woman who is on trial for the murder of her child under the age of 12 months, may seek to rely on Section 75 in her defence. In this regard, if it is found that at the time of committing the act which caused the child's death, the mother was mentally disturbed because she had not fully recovered from the effects of giving birth; or, due to the effects of lactation, a jury may convict her of the lesser offence of infanticide, rather than murder. The mother would be punished as if she were guilty of manslaughter, and could face a maximum penalty of life imprisonment.
It is important to note that the crime of infanticide can only be committed by the mother of the child and only during the child's first year of life. For this reason, if Yates had committed the crime in Jamaica, she could only have been charged for the offence of infanticide in relation to one of her five children. In respect of the four other children, she might still have been charged for murder.
HISTORICAL PERSPECTIVE
Some countries define infanticide more broadly than we do in Jamaica to include the killing of a child less than one year of age by any person. By adopting this definition, it could be said that infanticide was recorded in the Bible when Herod ordered the death of all male children one year or younger in the town of Bethlehem. Still other examples date as far back as the Middle Ages when children were given up as human sacrifice or eliminated in the name of population control or in attempts to alleviate poverty and starvation during extreme droughts or famine.
As early civilisations evolved, society's tolerance for acts perpetrated against infants by those who ought to have protected them eroded to the extent that the actions were criminalised. When it was first introduced, infanticide was punishable by death. Still later, it was enacted in statutes such as the Offences Against the Person Act and other specific legislation (e.g., the Infanticide Act in England), which prescribe a maximum penalty of life imprisonment.
CRITICISMS
When one considers the hapless victims of the crime, it sparks criticism against legislators who appear to create an artificial distinction between murder and infanticide. The critics are usually unsympathetic to mothers who suffer from post-partum depression due to hormonal changes associated with giving birth. This is especially so because in many cases, the mother obtains treatment and makes a complete recovery before she has to appear before a jury. Still other critics assert that the offence is archaic, and is begging for revision.
Despite these sentiments, none of the bills, which have been published to amend the Offences against the Person Act, have proposed an amendment to Section 75. So, it seems that, at least for now, a mother who kills her baby may plead insanity and rely on medical evidence to show that she was suffering from post-partum depression at the time when the crime was committed.
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com. Do you think women who commit infanticide should be charged for or treated as mentally unstable? Send feedback to: Lifestyle@gleanerjm.com.
