MCGREGOR
In last week's article we looked at the crime of infanticide. This week, we will discuss the related offence of concealment of birth.
MOTHER, FATHER responsible for registering birth. Whether a child is born alive or dead (stillbirth), the mother and father of that child, or the person in charge of a public institution or private hospital where the child was born, are responsible for giving the particulars of that child to the Registrar-General. In the case of a stillbirth, an entry will be made in the Register of Stillbirths in accordance with section 31 of the Registration Births and Deaths Act.
The failure to notify the Registrar-General of the death prior to burial attracts no more than a paltry fine of $20.
If the provisions of the Registration of Births and Deaths Act are strictly adhered to, the Island Records Office should have an accurate record of all births and deaths within Jamaica. However, there have been breaches of the Act.
HOW IS THE OFFENCE COMMITTED?
Where the body of a dead baby is discovered, any person who had attempted to conceal the birth of that child by secretly disposing of the body may be guilty of the offence of concealment of birth pursuant to section 74 of the Offences Against the Person Act. The phrase 'concealment of birth' is somewhat misleading, given the fact that it is not intended to address the failure to disclose the fact of birth. One may even argue that it really deals with the concealment of death.
For the crime to be committed, the following facts must be proved:
That the woman delivered something which could properly be called a child. This means that the foetus must have been sufficiently developed so that it might have had a fair chance of survival when born. The distinction is made in the very old English cases between a premature miscarriage and an object which had the appearance of a child, and there is no criminal sanction for failure to disclose the fact of a premature miscarriage.
There must be proof that the mother or some other person attempted to hide the fact of birth from the world by secretly disposing of the dead body in an area where it was unlikely to be found. For this reason, leaving the body on a public street may not amount to concealment, as the body is likely to be found.
If the child was alive when it was hidden, and subsequently died, the offence would not be committed. However, if the person who hid the child visited the area where the child was placed, discovered that it had died and left it in the concealed area, the offence will be committed.
Whether the child died prior to birth, at the time of birth or shortly thereafter is irrelevant, as long as there was an attempt to hide the fact that it had been delivered.
CONCEALMENT VERSUS BIRTH AND INFANTICIDE
Infanticide is distinguished from concealment of birth in a number of ways. In particular, infanticide can only be committed by the mother of the child, while concealment of birth may be committed by any person who conceals the fact that a newly-born baby has died. Further, the person charged for infanticide must have committed an act which caused the child's death, while the child who is the subject of the charge for concealment of birth might have died from natural causes.
If a woman is charged for the murder of her child, she may be found guilty of the lesser offence of concealment of birth if the facts so prove, and face a maximum two-year prison term.
The questions to be asked are whether the penalty fits the crime and whether the fines which currently exist under the Registration of Births and Deaths Act are any deterrent to the breach of that Act.
Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
