New-Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth Century England.
A young, poor, single woman becomes pregnant. She is so frightened of the reaction of her parents or community that she contrives to conceal the pregnancy, perhaps by wearing loose clothing, or explaining her swollen belly by `water retention'. Alone, unprepared and terrified, she gives birth. The baby is later found dead, ineffectually hidden. It may be difficult for medical experts to determine whether the baby was born alive. Or the mother may have seized the nearest sharp object to hand and cut her child's throat.
Such a case is equally typical of Mark Jackson's study of Northern England in the eighteenth century and of one category of child-killing documented in Ania Wilczynski's study of present-day England and Australia. In the eighteenth century it would be a case of murder. If the woman were tried (she might well be freed by the Grand Jury) she would probably be acquitted, but might be hanged. Today if she were prosecuted at all it would be for infanticide, which invariably results in a non-custodial sentence. The US legal system, as Jackson reminds us by his allusion to the cause celebre of Caroline Beale, remains closer to the eighteenth century in some respects. Two recent cases in which atypically wealthy high school students have been charged with killing new-born babies `promise a discussion of OJ proportions' as to whether `these teenagers deserve mercy and a second chance, or a lethal injection' (Coles 1998).
The history of the legal response to child-killing, and the development of the striking differences in the treatment of male and female offenders which Wilczynski analyses, involves a complex interplay between legal, medical and lay knowledge about women. Jackson provides a subtle analysis of this interplay in his account of the debate which led to the replacement of the draconian Act of 1624, which created a rebuttable presumption that a woman who concealed the death of her new-born illegitimate child had murdered it, with the seemingly more humane Act of 1803 which abolished the presumption and created an alternative verdict of concealment of birth where it was not proved that the child was born alive. Jackson traces the increasing prominence in the eighteenth century of humanitarian accounts of the circumstances which led mothers to kill their babies. These accounts wove a combination of specialized medical knowledge (emphasizing the difficulty of determining whether a baby was born alive), social criticism of the plight of expectant single mothers, and moral condemnation of male cruelty, into compassionate narratives which drew on both medical and lay assumptions about the biological frailty of women. Their effect was, Jackson argues, to promote an alliance of the medical profession and the `party of humanity' at the expense of the power of women who had traditionally policed female chastity and brought suspected cases of illicit pregnancy and baby-killing to the attention of the authorities, and more particularly of the female midwives whose expert evidence was sometimes treated with respect before they were marginalized by the male monopoly on post-mortems. While the Act of 1803 was a response to these humanitarian narratives, it was designed to overcome the reluctance of juries to convict and to ensure that more women would be punished, if not for murder then at least for concealment of birth.
Although Jackson places considerable emphasis on the role of medical experts in the debate, it is clear that the 1803 Act was neither based directly on medical views nor was it an unequivocally humanitarian measure, but rather attempted to overcome the reluctance of lay juries to convict. Much the same could be said of the Infanticide Act 1922. Before the Act was passed, women who killed their new-born babies were rarely convicted of murder, as sympathetic juries continued to give them the benefit of the doubt as to whether their babies were born alive. The 1922 Act made it possible for a woman to be convicted of infanticide rather than murder where she killed her `newly born' child while `the balance of her mind' was `disturbed' as a result of giving birth. In 1938 this was extended to cover the killing of babies up to a year old where the mother's mind was disturbed either by the birth or by lactation.
As Ania Wilczynski's book shows, the 1938 Act helps to ensure that mothers who kill their babies are much more leniently treated by the courts than are fathers. Wilczynski's attitude to this legislation is ambivalent. She supports its retention on pragmatic grounds, and argues against either imprisoning women in the name of a spurious `equality' or treating `the over-burdened mother who has cared for her child almost single-handedly since birth in the same way as the father who lashed out after an hour of child-care' (p. 222). But she also finds the legislation `distasteful at an ideological level' and argues that its medical basis is outdated.
One could argue, however, that the Infanticide Acts come about as close as criminal law ever comes to the ideal which Wilczynski (rightly, in my view) supports that offenders should be `perceived as on the one hand, rational, conscious beings, and on the other hand as deserving of pity and compassion, and subject to multiple stresses' (pp. 222-3). The 1922 Act sought to ensure that mothers who killed new-born babies could be dealt with leniently but could nevertheless be held criminally responsible for the babies' deaths, as before the Act they rarely were. The Act did not really have a medical basis at all, except in its use of a vaguely medical-sounding phrase to avoid explicitly recognizing social and emotional stress as a defence, although this is not to deny that, as in Jackson's period, medical and biological assumptions about women helped to legitimize a relatively non-punitive response to their actions. The 1938 Act sought to rectify the anomaly that the 1922 Act, being limited to `newly born' children, actually excluded most cases of what was then called `puerperal insanity'. Even the reference to lactation is not quite the crude piece of biologism Wilczynski takes it for. `Lactional insanity' was believed to result from the physical exhaustion endured by often malnourished women as a result, inter alia, of prolonged breast-feeding (see, for example, Hopwood, 1927). Even here, medical-humanitarian rhetoric recognized social factors alongside biological ones.
The sentencing of homicidal parents, whether or not they fall within the Infanticide Act, still reflects the stereotypes summed up in one of Wilczynski's chapter-headings: `Crazy Mothers and Evil Fathers'. But as Wilczynski shows, the reasons for this are complex. Part of the disparity is explained by `standard sentencing factors'. Men, for example, are more likely to kill for revenge (against the mother) or in the course of discipline, and are more likely to have previously abused the child. While psychiatry colludes with law in portraying women as passive victims of circumstance and men as active agents, defendants themselves contribute to this by the vocabulary they use to describe their own actions. Being a `good' father counts for less than being a `good' mother. Remorse may be punishment enough for a woman, but not for a man. Wilczysnki's careful analysis of these factors makes a useful contribution to the growing literature on gender and sentencing, in which the simplistic debate over `chivalry' has been left far behind.
This is not just a book on sentencing, but aims to show how the risk of child death can be reduced through measures such as setting up interdisciplinary review teams, while also arguing that making the world safe for children will involve profound changes in the behaviour and attitudes of both men and women. Wilczynski's title is a little misleading, since she deals only briefly with the currently topical issue of non-parental child homicide, but as a study of filicide her work, like Jackson's, can be highly recommended.
COLES, J. (1998), `A casual kind of death', Guardian, 12 March.
HOPWOOD, J. S. (1927), `Child murder and insanity', Journal of Mental Science, 73: 95.
Tony Ward De Montfort University Leicester
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|Publication:||British Journal of Criminology|
|Article Type:||Book Review|
|Date:||Sep 22, 1998|
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