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Heath, Jessie Elizabeth Susan --- "Aotearoa's approach to infanticide: ahead of its time or antiquated?" [2023] UOtaLawTD 12

Last Updated: 11 April 2024

Aotearoa’s Approach to Infanticide: Ahead of Its Time or Antiquated?

Jessie Elizabeth Susan Heath

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) University of Otago - Te Whare Wananga o Otago

October 2023

Acknowledgments

To my supervisor, Professor Margaret Briggs, for your guidance throughout the year. Your patience, encouragement, and knowledge were invaluable.

To my parents, Louise and Julian, for your endless support and unabated faith in my abilities.

To my friends - old and new, near and far - for countless laughs and treasured memories.

Contents
Introduction

Infanticide cases capture public interest because they contradict the presumed sanctity of maternal love. Aotearoa New Zealand’s infanticide provision was first introduced with the enactment of the Crimes Act 1961.¹ Although many decades have passed since the introduction of s 178, the most recent published review of our provision was in 1991.² Section 178 is distinct from the United Kingdom’s infanticide law upon which it was based.³ Additionally, Aotearoa’s approach to infanticide is materially different from other commonwealth jurisdictions that we ordinarily compare ourselves to, such as Australia. Although infanticidal killings are rare, s 178 is still in use today as evidenced by the recent highly publicised trial of Lauren Dickason for the murder of her three daughters in Timaru.⁴

Infanticide is an unusual crime because it involves the collision of two different disciplines: medicine and law. Since the 1960’s, research on the relationship between postpartum illnesses and infanticide has grown increasingly complex and conflicting. Western Australia abolished its infanticide provision on the basis of findings that the biological relationship between mental impairment and childbirth required by infanticide law is completely artificial.⁵ Other jurisdictions such as the United Kingdom believe there is sufficient medical evidence to justify the defence/offence of infanticide.⁶ It is extremely difficult to assess the appropriateness of s 178 when the biological assumptions underlying the provision have not been conclusively proved or disproved.⁷ I will argue that Aotearoa’s infanticide law should not be amended or abolished until a scientific consensus regarding the role of postpartum illnesses in infanticidal killings is formed. Recommending the abolition of s 178 when the science surrounding postpartum illnesses and infanticide is still developing would be hasty and imprudent.⁸

¹ Crimes Act 1961, s 178.

² Crimes Consultative Committee Crimes Bill 1989: Report of the Crimes Consultative Committee (1991) at 54.

³ Crimes Act 1961, above n 1, s 178; and Infanticide Act 1938 (UK).

⁴ Crimes Act 1961, above n 1, s 178; and “Triple murderer Lauren Dickason to be sentenced in December following gruelling trial over killing three little daughters” (31 September 2023) New Zealand Herald <www.nzherald.co.nz>. ⁵ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report (Project 97, 2007) at 108.

⁶ Law Commission of England and Wales Murder, Manslaughter and Infanticide (LAW COM No 304, 2006) at [8.25].

⁷ Crimes Act 1961, above n 1, s 178.

⁸ Section 178.

Chapter I provides background into the history of infanticide in ancient times and explains how infanticide law developed in England and Wales. I will outline early English statutes that prohibited infanticide and discuss the current infanticide provisions in the United Kingdom. This jurisdiction acts as a useful comparison that emphasises the unique nature of s 178.⁹

Chapter II presents a comprehensive discussion of Aotearoa’s infanticide provision.¹⁰ I will discuss the history of our provision, how our provision operates, reviews of our provision, infanticide cases and sentencing trends, and advantages and criticisms of s 178.

Chapter III analyses scientific studies on the biological relationship between postpartum illnesses and infanticide. I will explain different types of postpartum illnesses, discuss sources and research supporting or opposing the existence of the biological relationship, and explain common methodological issues/limitations of such research.

Chapter IV sets out options for reform, broadly categorised as: replacing infanticide with the partial defence of diminished responsibility, abolishing infanticide, extending the infanticide provision, and retaining infanticide without amendment. I ultimately concluded that s 178 should be retained without amendment.¹¹

⁹ Crimes Act 1961, above n 1, s 178.

¹⁰ Section 178.

¹¹ Section 178.

CHAPTER I

A Infanticide in Ancient Times

Infanticide has occurred across cultures and centuries.¹² Many primitive societies practised culturally sanctioned infanticide.¹³ Potts and Selman described 350 groups that used infanticide as a tool to practice sex selection, space children, and reduce the burden on the tribe.¹⁴ Culturally sanctioned infanticide was especially prevalent in nomadic or hunter-gatherer tribes in which young children had to be carried during lengthy annual treks.¹⁵ When tribes struggled with overpopulation, poorly or malformed children were at the highest risk of being disposed of by their parents.¹⁶

Infanticide was also common practice in ancient societies that are viewed as distinctly advanced.¹⁷ In ancient Greece, newborns would be inspected by elders and the infants deemed to be weak or deformed were abandoned or killed.¹⁸ In Athens, a father was permitted to dispose of his infant any time preceding the five day ‘amphidromia’ naming ceremony.¹⁹ This patriarchal right to practice infanticide was not restricted by the state.²⁰ Additionally, Ancient Roman law gave the father ‘patria potestas’: the right to decide whether his children lived or died.²¹

Infanticide was restricted and condemned with the emergence of Christianity.²² The Christian religion vehemently renounced all unnatural interference with birth such as abortion, and the

¹² Susan Friedman, James Cavney and Phillip J. Resnick “Mothers Who Kill: Evolutionary Underpinnings and Infanticide Law” (2012) 30(5) Behav.Sci.& L. 585 at 586.

¹³ Jackie Pearse “The Infanticide Defence: Keeping Up Pretences” (LLB (Hons) Dissertation, University of Otago,

1995) at 7; and Malcolm Potts and Peter Selman “Society and Fertility” (1979) 59(1) Social Forces 321 at 321.

¹⁴ Pearse, above n 13, at 7; and Potts and Selman, above n 13, at 321.

¹⁵ Potts and Selman, above n 13, at 321.

¹⁶ At 321.

¹⁷ Friedman, Cavney and Resnick, above n 12, at 586.

¹⁸ At 586.

¹⁹ Pearse, above n 13, at 8; and Mary Warren Gendercide: The Implications of Sex Selection (Rowman & Allanheld, New Jersey, 1985) at 40.

²⁰ Warren, above n 19, at 40.

²¹ Friedman, Cavney and Resnick, above n 12, at 585.

²² Judith Osborne “The Crime of Infanticide: Throwing Out the Baby With the Bathwater” (1987) 6 Can J Fam.L. 47 at 49.

strong belief of the sanctity of all life condemned infanticide.²³ In 318 AD, Christian emperor Constantine first declared that fathers slaying their child was a crime.²⁴ This crime was viewed as a crime against God because it damned the victim’s soul to purgatory, and a crime against mankind because it was the elimination of human life.²⁵ The Christian Church sanctioned severe punishments, like the death penalty, for parents committing infanticide in hopes of eliminating the practice.²⁶

B Early English Statutes Prohibiting Infanticide

1. The infanticide epidemic, poor law penalties and social stigma

In spite of Christianity’s strong objection to infanticide, the practice continued to be used as a tool to limit population in the United Kingdom and in wider Europe.²⁷ By the 17th century, the prevalence of infanticide was nearing epidemic level.²⁸ In England, the prevalence of infanticide was heightened by the ‘Poor Law’ of 1576.²⁹ The ‘Poor Law’ established obligations on the mother and putative father of the bastard child for ‘the payment of Money Weekly, or other sustentation for the Relief of such Child’.³⁰ If the parents failed to satisfy this obligation they could be punished by imprisonment.³¹ The ‘Poor Law’ prompted mothers to conceal pregnancies and murder their bastard newborns to evade penalties.³²

²³ Osborne, above n 22, at 49; and M W Piers Infanticide (New York: Norton, 1978) at 45.

²⁴ Friedman, Cavney and Resnick, above n 12, at 587.

²⁵ Constance Backhouse “Desperate Women and Compassionate Courts: Infanticide in 19th Century Canada” (1984)

34 U.T.L.J. 447 at 448.

²⁶ Backhouse, above n 25, at 448. For example, in 1532 the ‘Carolina’ criminal code enacted in the Holy Roman Empire declared that infanticide was a capital crime. See Margaret Lewis Infanticide and Abortion in Early Modern Germany (1st ed, Routledge, London, 2016) at 15.

²⁷ Stephen G Post “History, Infanticide and Imperiled Newborns” (1988) 18(4) The Hastings Centre Report 14 at 17.

²⁸ Post, above n 27, at 17.

²⁹ This law introduced punitive measures for the parents of bastard children because the State believed bastardy hindered the parish from helping the ‘true’ poor because destitute bastard children were offloaded onto local charities. See Thomas Nutt “Illegitimacy, paternal financial responsibility, and the 1834 Poor Law Commission Report: the myth of the old poor law and the making of the new” (2010) 63(2) The Economic History Review 335 at 336; and Act for the Setting of the Poor To Work and for the Avoiding of Idleness 1576 (UK).

³⁰ Nutt, above n 29, at 336; and An Act for the Setting of the Poor To Work and for the Avoiding of Idleness, above n 29, s 1.

³¹ Nutt, above n 29, at 336; and An Act for the Setting of the Poor To Work and for the Avoiding of Idleness, above n 29, s 1.

³² Peter Hoffer and NEH Hull Murdering Mothers: Infanticide in England and New England 1558 - 1803 (1st ed, New York University Press, New York, 1981) at 15.

Another factor that motivated women to commit infanticide was the sexual vulnerability of young domestic servants. It was commonplace for domestic servants to be preyed upon by their master and his sons, their overseers, and other domestic workers.³³ Another common class of offenders were rural women who had been abandoned and left destitute.³⁴

Furthermore, the most important value of a woman was considered to be her chastity.³⁵ Thus women bearing illegitimate children feared the associated social prejudice, loss of familial support, the health risk and expense of abortions, reduced prospects for marriage, immediate dismissal without references, and/or the desire to terminate a child of rape.³⁶ Another acting force behind a woman’s decision to commit infanticide was the economic stress associated with raising a child alone.³⁷ A woman’s wage was insufficient to support her alone, much less a dependent child.³⁸ Perpetrators tended to be young, naive, and denying their pregnancy, therefore, when they were faced with a live infant they had little motivation or resources to cope.³⁹ Thus it is unsurprising that many mothers killed their infants out of desperation.⁴⁰

2. The common law

English common law did not distinguish between murder and infanticide, however, concealment of pregnancies meant conviction of infanticidal mothers was near impossible.⁴¹ It was challenging to prove that a baby was born alive and it was even more difficult to prove that the killing was premeditated.⁴² As cases of infanticide increased in late Tudor and early Stuart England, concerned

³³ Russ Scott “Infanticide and Infanticide Statutes in Australia and New Zealand” (2020) 27(4) JLM 1014 at 1014. ³⁴ Scott, above n 33, at 1014; and Peter Laslett, Karla Oosterveen and Richard Michael Smith Bastardy and Its Comparative History (Harvard University Press, 1980).

³⁵ Scott, above n 33, at 1015.

³⁶ Hoffer and Hull, above n 32, at 15. Dr. Caroline Ingram described similar factors driving infanticide in early 18th and 19th century Australia: vulnerability of working class women, economic concerns, and social stigma and shame. See Caroline Ingram “‘How is this not murder? Infanticide and the Law in Australian History’ (2 October 2018) Australian Policy and History <https://aph.org.au>.

³⁷ R Sauer “Infanticide and Abortion in Nineteenth-Century Britain” (1978) 32(1) Population Studies 81 at 85.

³⁸ Pearse, above n 13, at 11.

³⁹ At 11.

⁴⁰ At 11.

⁴¹ At 11; and Josephine Billingham Infanticide in Tudor and Stuart England (Amsterdam University Press, Amsterdam, 2019) at 79.

⁴² Pearse, above n 13, at 11; and Billingham, above n 41, at 79.

legislators took action.⁴³ In 1623, An Act to Prevent the Destroying and Murthering of Bastard

Children’ (the Stuart Act) came into force.⁴⁴

3. The Stuart Act (1624)

This Act appeared to be equally concerned with unmarried women’s sexual promiscuity as it was with the killing of children. The Stuart Act declared that if a “lewd” (unmarried and pregnant) woman concealed the birth of her child, and the child was later found dead, the woman was presumed to have killed the child and would be hanged unless she could prove the child was stillborn.⁴⁵ The real crime appeared to be concealment of birth, rather than the murder of the child.⁴⁶ The Act contained two presumptions that differed from the pre-existing law. Firstly, the Act presumed that the woman was guilty of murder and thus the burden of proof of innocence lay with the mother, rather than the State having the burden to prove guilt (a reverse onus of proof).⁴⁷ Secondly, the Act presumed the baby was born alive.⁴⁸

A mother under this legislation was at greater risk than if she was indicted on a charge of murder.⁴⁹ Medical evidence suggesting the child was stillborn or died of natural causes was often insufficient.⁵⁰ In order to escape liability a mother needed an eyewitness to the birth who could prove that the child was stillborn.⁵¹ Most unmarried women gave birth in secret, therefore, if their child died they were extremely vulnerable to being convicted of infanticide and thus being hanged.⁵² This Act was entirely unreasonable as it permitted the courts to establish guilt based on circumstantial evidence of concealing a birth and sexual promiscuity, which has minimal causal connection.⁵³

⁴³ Pearse, above n 13, at 11; and Billingham, above n 41, at 79.

⁴⁴ Pearse, above n 13, at 11; and An Act to Prevent the Destroying and Murthering of Bastard Children (the Stuart Act) (1624) (UK).

⁴⁵ Scott, above n 33, at 1027; and Stuart Act, above n 44.

⁴⁶ Pearse, above n 13, at 12; and Stuart Act, above n 44.

⁴⁷ At 12; and Stuart Act, above n 44.

⁴⁸ At 12; and Stuart Act, above n 44.

⁴⁹ At 13; and Stuart Act, above n 44.

⁵⁰ At 13; and Stuart Act, above n 44.

⁵¹ Ingram, above n 36; and Stuart Act, above n 44.

⁵² Ingram, above n 36.

⁵³ Pearse, above n 13, at 13.

The Stuart Act’s unreasonably high threshold and corresponding death sentence meant juries were reluctant to convict a mother when a live birth could not be proved.⁵⁴ Juries were sensitive to the social stigma associated with bastardy and extreme poverty that unmarried mothers experienced.⁵⁵ Furthermore, during this time infant mortality rates due to natural causes were high. The medical profession challenged the Act’s presumption of live birth ‘vigorously [and publicly]’ which further encouraged jurors to acquit where the cause of death was unknown.⁵⁶

Parliamentary debates discussing the Act showed concern surrounding the high acquittal rates for infanticide and how judges seemingly stretched the law/evidence to escape sentencing women to hanging.⁵⁷ Lord Ellenborough proposed that the Stuart Act be repealed in hopes of successfully punishing women who disposed of their illegitimate children.⁵⁸

4. ‘Lord Ellenborough’s Act’ (1803)

The Offences Against the Person Act (‘Lord Ellenborough’s Act’) reinstated the common law presumption of stillbirth (requiring evidence that the child was born alive in order to convict the mother of this offence).⁵⁹ Additionally, Lord Ellenborough’s Act declared concealment of birth to be an alternative verdict to murder that carried a maximum penalty of two years’ imprisonment.⁶⁰ This Act required pre-meditation or intent and declared that the mother is presumed innocent until proven guilty.⁶¹

⁵⁴ Ingram, above n 36. Juries regularly acquitted women who maintained that they were unconscious/in a faint while giving birth, did not realise they were pregnant, or did not realise they had given birth.

⁵⁵ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and Osborne, above n 22, at 49–50. Most juries also recognised these perpetrators to be victims of their class and acknowledged that their seducers escaped punishment. See Pearse, above n 13, at 13.

⁵⁶ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and Mark Jackson “Infanticide: Historical perspectives” (1996) New Law Journal 416 at 417.

⁵⁷ Pearse, above n 13, at 14; and Backhouse, above n 25, at 453.

⁵⁸ Pearse, above n 13, at 14; and Hoffer and Hull, above n 32, at 87.

⁵⁹ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105;

and The Offences Against the Person Act (Lord Ellenborough’s Act) (1803) (UK).

⁶⁰ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105;

and Lord Ellenborough’s Act, above n 59.

⁶¹ Pearse, above n 13, at 15; and Lord Ellenborough’s Act, above n 59.

Even in cases where there were strong arguments that the appropriate conviction was murder, juries continued to exercise compassion for these mothers by acquitting them or convicting them of the lesser offence of concealment.⁶² The Capital Punishment Commission’s 1866 Report showed the growing frustration of the judiciary regarding the mismatch between the law and public sympathies towards infanticidal mothers, and the resulting ridicule of the judicial process.⁶³

A large contributor to the regular acquittal of infanticidal mothers was medical testimony.⁶⁴ Medical science and evidence was still poorly developed, and professionals struggled to determine if a child died during or after birth.⁶⁵ Therefore, doctors were hesitant to conclusively state that a child was born alive, and the mother murdered it.⁶⁶

This Act proved to be completely ineffective in reducing the rate of infanticide.⁶⁷ There continued to be a strong divide between juries’ moral compasses and the law. During the late 18th and early 19th centuries, law reformers attempted to draft lesser offences for infanticide.⁶⁸ These attempts were fruitless, and infanticide continued unabated.⁶⁹

5. The Infanticide Act 1922

The Infanticide Act 1922⁷⁰ was the foundational statute that laws in Aotearoa and other Commonwealth countries were based on. Therefore, the construction, merits, and subsequent reviews of this Act are discussed below.⁷¹

⁶² Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105. ⁶³ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and Minutes of Evidence of Justice Keating before the Capital Punishment Commission (England) Report of the Capital Punishment Commission (1866) 625. The 1886 report stated, “It is in vain that judges lay down the law and point out the strength of the evidence, as they are bound to do; juries wholly disregard them and eagerly adopt the wildest suggestions which the ingenuity of counsel can furnish ... Juries will not convict while infanticide is punishable capitally.”

⁶⁴ Pearse, above n 13, at 16; and Sauer, above n 37, at 84.

⁶⁵ At 16; and Sauer, above n 37, at 84.

⁶⁶ At 16; and Sauer, above n 37, at 84.

⁶⁷ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105. ⁶⁸ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and Nigel Walker “Crime and Insanity in England” (Edinburgh: Edinburgh University Press, 1968) at 129–30.

⁶⁹ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and David Seaborne Davies “Child Killing at English Law” (1937) 1(3) MLR 203 at 223.

⁷⁰ Infanticide Act 1922 (UK).

⁷¹ Infanticide Act, above n 70.

The Infanticide Act 1922 abolished the death penalty for infanticide and established infanticide to be a separate offence/defence carrying the same penalties as manslaughter.⁷² Although the original promoters of this Act were motivated by economic and social factors that tended to influence juries, the statute legitimised the compassionate treatment of infanticidal mothers by endorsing a biological rationale instead.⁷³

The Act applied to mothers who killed their newly born child when they ‘had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed’.⁷⁴ Like s 178, only a temporal relationship between the mental disturbance and the actus reus was required.⁷⁵ This Act did not define what constituted a ‘newly born’ child and there was uncertainty surrounding the length of time which may elapse before a child ceased to be ‘newly born’.⁷⁶ In the 1927 case O’Donoghue, the Criminal Court of Appeal held that a child of 35 days was not ‘newly born’, therefore the mother was convicted of murder.⁷⁷ The accused was immediately reprieved, however, the decision was widely criticised.⁷⁸ David Seaborne Davies, a Welsh law professor and political figure, stated that the decision ignored the mischief the statute aims to address and failed to recognise legislative history.⁷⁹ The strict outcome of O’Donoghue led to this Act⁸⁰ being replaced by the Infanticide Act 1938.⁸¹

⁷² Section 1(1); and Ingram, above n 36.

⁷³ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and Seaborne Davies, above n 69, at 223; and Infanticide Act, above n 70.

⁷⁴ Section 1(1); and Ingram, above n 36.

⁷⁵ Scott, above n 33, at 1029; and Infanticide Act, above n 70.

⁷⁶ Andrew Ashworth Principles of Criminal Law (5th ed, Oxford University Press, Oxford, 2006) at 280; and Infanticide Act, above n 70.

⁷⁷ R v O’Donoghue (1927) 20 Cr App Rep 132 at 303.

⁷⁸ Peter Dean “Child homicide and Infanticide in New Zealand” (2004) 27(4) Int’l J.L.& Psychiatry 339 at 340; and Pearse, above n 13, at 25.

⁷⁹ Seaborne Davies, above n 69, at 214; and Pearse, above n 13, at 25. Seaborne Davies stated that “the draftsmen never intended that the age of the child should be the determining factor in deciding if the case comes within the Act. [T]he vitally important matter was the mother’s mental derangement post and propter the birth.”

⁸⁰ Infanticide Act 1922, above n 70.

⁸¹ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105; and Infanticide Act 1938, above n 3.

There were a number of reasons given to justify why infanticide should be considered less reprehensible than other killings.⁸² For example, it was argued that the loss to the victim’s family was lesser and that child was incapable of the kind of suffering undergone by adult murder victims.⁸³ These justifications are contestable and would likely be repudiated in modern society.⁸⁴

6. The Infanticide Act 1938 (the current law in the United Kingdom)

The Infanticide Act 1938⁸⁵ was enacted to address the aforementioned uncertainty in the 1922 Act.⁸⁶ Section 1(1) of the Infanticide Act 1938 is reproduced below:

(1) Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, [if] the circumstances were such that but for this Act the offence would have amounted to murder [or manslaughter], she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.⁸⁷

The new provision included children of up to one year old.⁸⁸ To justify this extension, the Infanticide Act 1938 included ‘the effect of lactation’ as a further basis upon which the woman’s balance of mind may be disturbed.⁸⁹ Prior to this amendment, the ‘typical’ infanticide was still

⁸² Brian Hogan and John Smith Smith and Hogan’s Criminal Law (13th ed, Oxford University Press, New York, 2011) at 593.

⁸³ At 593.

⁸⁴ For example, a recent study conducted by the University of Oxford suggests that babies feel pain like adults and may even be more sensitive to pain. Therefore, the argument that a child is incapable of the kind of suffering undergone by adults should be disregarded. Additionally, the argument that the loss to a victim’s family is lesser because the victim is a baby is absurd because grief is not a science. Grief is an individualised experience and cannot be quantified using the age of the person that has passed. See “Babies feel pain ‘like adults’” (21 April 2015) University of Oxford <www.ox.ac.uk>.

⁸⁵ Infanticide Act 1938, above n 3.

⁸⁶ Infanticide Act 1922, above n 70; and Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105.

⁸⁷ Section 1(1).

⁸⁸ Section 1.

⁸⁹ Section 1(1); and Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 105.

largely concealment and disposal of illegitimate children within the first day of life.⁹⁰ The 1938 amendment significantly changed the scope of infanticide law and allowed it to apply to substantially different types of homicides.⁹¹ However, this Act still restricted the provision to mothers who killed the child to which she most recently birthed.⁹² Like in the Infanticide Act 1922, the victim must have been a natural child of the mother.⁹³ The penalty for infanticide is the same as any case of manslaughter.⁹⁴ The main effect of conviction for infanticide rather than murder was to enable the judge to have full sentencing discretion from supervision through to life imprisonment.⁹⁵ Although life imprisonment is the maximum penalty, almost all cases are addressed non-custodially, commonly by a community sentence.⁹⁶ The Infanticide Act 1938⁹⁷ is the current law in England, subject to minor amendments actioned through the Coroners and Justice Act 2009.⁹⁸

If the Crown charges the defendant with murder, there is an evidential burden on the defendant to present evidence of her disturbance of mind, which the Crown must then disprove.⁹⁹ Conversely, if the Crown charges infanticide they bear the burden of proving that the balance of the defendant’s mind was disturbed, which is unlikely to be contested.¹⁰⁰

⁹⁰ Pearse, above n 13, at 27.

⁹¹ At 27.

⁹² Section 1; and Ashworth, above n 76, at 281.

⁹³ Section 1; and Dean, above n 78, at 342.

⁹⁴ Section 1; and Ashworth, above n 76, at 280.

⁹⁵ Michael J Allen Textbook on Criminal Law (13th ed, Oxford University Press, Oxford, 2015) at 376.

⁹⁶ Ashworth, above n 76, at 281.

⁹⁷ Infanticide Act 1938, above n 3.

⁹⁸ Coroners and Justice Act 2009 (UK), s 57. This Act added “or manslaughter” to both section (1)(1) and 1(2), and provided the current versions of section 1(1) and (2) that are in force, which is reproduced below. According to the consultation paper Murder, Manslaughter and Infanticide: Proposals for Reform of the Law, the purpose of the amendments was to ‘make clear that infanticide cannot be charged in cases that would not currently be homicide at all’. See Ministry of Justice Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (CP 19/08, 2008) at 3.

⁹⁹ Hogan and Smith, above n 82, at 593; and Infanticide Act 1938, above n 3.

¹⁰⁰ At 593; and Infanticide Act 1938, above n 3.

CHAPTER II

A The History of Aotearoa’s Infanticide Provision

Before the Crimes Act 1961 came into force, an offender who killed a child would be prosecuted for murder or manslaughter.¹⁰¹

The first mention of a specific provision for infanticide appears in the first reading of the Crimes Bill 1959.¹⁰² The proposed provision contained in clause 188 is based on the United Kingdom’s Infanticide Act 1938.¹⁰³ Clause 188 used substantively similar wording to our current s 178.¹⁰⁴ However, it is important to note that this first drafting proposed to protect a woman who caused the death of any child of hers under sixteen if the balance of her mind was disturbed, by reason of the effect of childbirth.¹⁰⁵ Clause 188 carried a maximum penalty of three years’ imprisonment.¹⁰⁶ The upper age limit was reduced to ten years old at the second reading of the Crimes Bill 1960.¹⁰⁷ Additionally, the Crimes Bill 1960 extended the provision to cover mothers who killed any child of hers by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation.¹⁰⁸ The Crimes Bill 1961 moved the infanticide provision from clause 188 to clause

178.¹⁰⁹ Clause 178(1) and (2) in the Crimes Bill 1961 was substantively the same as our current provision.¹¹⁰ Each subsection of the current s 178 are explained in detail below.

An examination of newspaper articles published between 1950 and 1960 has suggested that the New Zealand public strongly supported distinguishing infanticide and murder. A 1958 article published in The Press exhibits the public's disgust towards Aotearoa’s failure to make such a distinction:

¹⁰¹ Pearse, above n 13, at 32; and Crimes Act 1908, s 182 and 183.

¹⁰² Crimes Bill 1959 (61-1).

¹⁰³ Clause 188.

¹⁰⁴ Section 178.

¹⁰⁵ Crimes Bill 1959, above n 102, cl 188(1).

¹⁰⁶ Clause 188(1).

¹⁰⁷ Crimes Bill 1960 (61-2), cl 188(1).

¹⁰⁸ Crimes Bill 1960, above n 107, cl 188(1).

¹⁰⁹ Crimes Bill 1961 (82-1), cl 178.

¹¹⁰ Sub-clauses (2) and (3).

“Most persons will be aghast at the sight of a girl of 15 (with a mental age of 13, according to the evidence) charged with the most grievous crime in the criminal calendar in circumstances such as those disclosed. No doubt the law required that she be so charged, but a civilised community has reason for shame rather than satisfaction in such a law.”¹¹¹

An article titled ‘The Crimes Bill’ published by The Press in 1960 declared that it would be regrettable if New Zealand’s government chose not to proceed with the Crimes Bill during the current session of Parliament.¹¹² This article cites the infanticide provision as a specific example of how the Bill improves the code of criminal law in light of modern conditions and views.¹¹³ The law of infanticide is even referred to as an anachronism.¹¹⁴

Since the Crimes Act 1961 was introduced, s 178 has seldom been amended.¹¹⁵ All amendments to s 178 have been relatively minor and generally purport to correct references to statutes that are being repealed.¹¹⁶ For example, s 8(1) of the Criminal Justice Amendment Act (No 2)¹¹⁷ amended s 178 by substituting any reference to the Criminal Justice Act 1954¹¹⁸ with the Criminal Justice Act 1985.¹¹⁹

B How s 178 Operates

As aforementioned, infanticide is covered by s 178 of the Crimes Act 1961¹²⁰ as both a substantive

offence and a ‘defence’ (in the sense that it acts as an alternative conviction of less gravity) to

¹¹¹ “Infanticide” The Press (Christchurch, 15 May 1958) at 12.

¹¹² “The Crimes Bill” The Press (Christchurch, 27 September 1960) at 12.

¹¹³ At 12.

¹¹⁴ At 12.

¹¹⁵ Section 178.

¹¹⁶ Section 178. More amendments include: s 5(1) of the Criminal Justice Amendment Act 1969 (NZ) amended s 178 by incorporating new disposition options consistent with that enactment for women acquitted on the grounds of insanity caused by childbirth. Furthermore, s 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ) updated how women acquitted on the ground of insanity caused by childbirth are to be examined, detained, discharged (if eligible). The latest amendment to s 178 was by the Crimes Amendment Act (No 4) 2011 (NZ) which omitted the word “accused” from subsection (2) and replaced it with “defendant”.

¹¹⁷ Criminal Justice Amendment Act (No 2) 1985, s 8(1).

¹¹⁸ Criminal Justice Act 1954 (NZ).

¹¹⁹ Criminal Justice Act 1985 (NZ).

¹²⁰ Section 178.

charges of manslaughter and murder.¹²¹ Our infanticide provision is broader than the United Kingdom’s Infanticide Act 1938¹²² in three main respects.¹²³ Firstly, our Crimes Act provides that the child killed by the mother must be under the age of 10 years (rather than 12 months in the Infanticide Act¹²⁴).¹²⁵ Secondly, s 178 stipulates that the child killed need not be the child whose birth caused the woman’s mental disturbance.¹²⁶ Thirdly, the child killed need not be the woman’s natural child.¹²⁷ I will discuss how each subsection of s 178 operates and elaborate on the differences between New Zealand and the United Kingdom’s infanticide provisions. Highlighting the differences between the two jurisdictions will assert how unique our approach to infanticide is, even though it was modelled off the United Kingdom’s laws.

I have reproduced s 178 of the Crimes Act 1961 below.¹²⁸

(1) 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, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.¹²⁹

(2) Where upon the trial of a woman for the murder or manslaughter of any child of hers under the age of 10 years there is evidence that would support a verdict of infanticide, the jury may return such a verdict instead of a verdict of murder or manslaughter, and the defendant shall be liable accordingly. Subsection (2) of section 339 shall be read subject to the provisions of this

¹²¹ Andrew Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at 590.

¹²² Infanticide Act 1938, above n 3.

¹²³ Simester and Brookbanks, above n 121, at 591.

¹²⁴ Infanticide Act 1939, above n 3, s 1(1).

¹²⁵ Crimes Act 1961, above n 1, s 178(1); and Simester and Brookbanks, above n 121, at 591.

¹²⁶ Section 178(1); and Simester and Brookbanks, above n 121, at 591.

¹²⁷ Section 178(1); and Simester and Brookbanks, above n 121, at 591.

¹²⁸ Section 178.

¹²⁹ Section 178(1).

subsection, but nothing in this subsection shall affect the power of the jury under that section to return a verdict of manslaughter.¹³⁰

(3) Where upon the trial of a woman for infanticide, or for the murder or manslaughter of any child of hers under the age of 10 years, the jury are of opinion that at the time of the alleged 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, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she was insane, the jury shall return a special verdict of acquittal on account of insanity caused by childbirth.¹³¹

Subsection (1) sets out the offence of infanticide.¹³² Additionally, ss (1) signifies the elements of the offence that should be considered and the maximum sentence the offence carries. This subsection states that where a woman satisfies the elements of this offence, she is not guilty of manslaughter or murder. If a charge of infanticide under ss (1) is laid against the defendant, the prosecution will have the burden of proving all of its requirements beyond a reasonable doubt.¹³³ This can be a challenging burden, and if an infanticide charge is to be defended, one may need to consider charging manslaughter or murder in the alternative.¹³⁴

Subsection (2) covers the circumstance where a woman is charged with manslaughter or murder and infanticide is presented as a defence, if the evidence would support a finding of infanticide, the jury can return that alternative verdict.¹³⁵ This subsection does not establish a presumption, it is merely a possibility that is left to the jury. The woman shall be entitled to this alternative finding if there is sufficient evidentiary foundation for the finding that leaves the jury in reasonable doubt.¹³⁶ The prosecution carries the legal burden of negativing the defence beyond a reasonable doubt.¹³⁷

¹³⁰ Section 178(2).

¹³¹ Section 178(3).

¹³² Section 178(1).

¹³³ Section 178(1); and Simester and Brookbanks, above n 121, at 591.

¹³⁴ Simester and Brookbanks, above n 121, at 591.

¹³⁵ Section 178(2).

¹³⁶ Simester and Brookbanks, above n 121, at 591.

¹³⁷ Warren Brookbanks “Case Note: Unpacking The Elements Of Infanticide - A Canadian Approach: R v

Borowiec” (2016) NZCLR 92 at 98.

A defendant’s mind being disturbed as a result of childbirth or lactation will not usually mean the defendant is insane.¹³⁸ However, subsection (3) allows for a finding of not guilty by reason of insanity caused by childbirth.¹³⁹ Subsections (4)-(8) are less relevant to the scope of this dissertation but can be viewed in Appendix B.¹⁴⁰

C The Elements of s 178

To enhance understanding of how s 178 operates, the elements of the provision are discussed below.

1. The Defendant Must Have Caused the Death of Any Child of Hers

This element is significantly broader than the English and Australian infanticide provisions as it recognises that a woman whose balance of mind is disturbed can be dangerous to all of her children, not solely the child she most recently birthed.¹⁴¹ Furthermore, ‘any child of hers’ is not restricted to the natural children of the defendant.¹⁴² In R v P, the New Zealand High Court stated that s 178 will apply to the death of a child that is “treated in all respects as a member of the family and has the status of such to all outward appearances, confirmed in all respects by an order of the Court, and may be as old as 10 years of age.”¹⁴³ In R v P, P was a single parent with natural children aged six months and 2.5 years old.¹⁴⁴ P also had a foster child aged 5 that she was granted custody and guardianship over.¹⁴⁵ The foster child had been living with P for 2.5 years at the time of the offence.¹⁴⁶ P was actively breastfeeding her youngest child at this time.¹⁴⁷ Heron J ruled that the infanticide provision

¹³⁸ Simester and Brookbanks, above n 121, at 591.

¹³⁹ Section 178(3).

¹⁴⁰ Section 178(4)-(8). Subsection (6) previously contained a provision concerning the special patient’s right to leave

when detained, however, this subsection has been repealed.

¹⁴¹ Adams Francis Boyd (ed) Criminal law and practice in New Zealand (2nd ed, Sweet & Maxwell NZ, Wellington, 1971) at [1341].

¹⁴² Simester and Brookbanks, above n 121, at 591.

¹⁴³ R v P [1991] NZHC T112/90, [1991] 2 NZLR 116 at 121.

¹⁴⁴ At 116.

¹⁴⁵ At 116.

¹⁴⁶ At 116.

¹⁴⁷ At 117.

was available and therefore extended ‘child of hers’ to include foster children.¹⁴⁸ The Court contemplated the fact that New Zealand does not have the defence of diminished responsibility therefore, it is sensible that the law should recognise the lesser offence of infanticide as an alternative offence to murder in these circumstances.¹⁴⁹

Additionally, the New Zealand High Court stated that the child must have been alive when the woman caused their death.¹⁵⁰ Furthermore, R v G stated that a mistaken belief that the child was dead may preclude an infanticide finding because the defendant would not have the requisite mens rea for assault or likely culpable homicide (and therefore infanticide).¹⁵¹

2. In a Manner that Amounts to Culpable Homicide

The act or omission the Crown relies upon as causing the child’s death must amount to culpable homicide as defined in s 160(2)(a) of the Crimes Act 1961.¹⁵² Garrow and Turkington declared that “culpable homicide is murder if the killing is accompanied by the types of intent specified in ss 167 and 168, otherwise it is manslaughter unless it falls within the special provisions of s 178 relating to infanticide.”¹⁵³ The child must have become a human being in order to amount to culpable homicide.¹⁵⁴ Section 159(1) of the Crimes Act 1961 states that “a child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.”¹⁵⁵

¹⁴⁸ At 121. Additionally, at 119 Heron J declared that “any other extension would be largely a question of fact depending on social and family customs at the time.”

¹⁴⁹ At 118.

¹⁵⁰ Neil Cameron, Kevin Dawkins, Jeremy Finn, Don Mathias, Neville Trendle and Adam Francis Boyd Adams on Criminal Law Offences and Defences (Thomson Reuters, Wellington, 2014) at [CA178.02.]; and R v G (1984) 1 CRNZ 275 (HC).

¹⁵¹ Cameron, Dawkins, Finn, Mathias, Trendle and Adams, above n 150, at [CA178.02.]; and R v G, above n 150.

¹⁵² Section 160(2)(a).

¹⁵³ JME Garrow and Gary L Turkington Garrow and Turkington’s Criminal Law (Butterworths, Wellington, 1991) at 250.

¹⁵⁴ Boyd, above n 141, at [1342].

¹⁵⁵ Section 159(1). If the child has not become a human being as per s 159(1), the offence of killing an unborn child (s 182) applies. See Crimes Act 1961, above n 1, s 182.

There is significant uncertainty surrounding whether attempted infanticide is an offence.¹⁵⁶ Section 178 does not appear to accommodate attempted infanticide when applied literally as it explicitly states the defence applies only “where a woman causes the death of any child of hers”.¹⁵⁷ However, the High Court is divided on the question of whether attempted infanticide is a legitimate offence.¹⁵⁸ The following cases are examples of High Court decisions that held that an attempted infanticide charge may lie where the child survives: R v Paterson,¹⁵⁹ R v L,¹⁶⁰ and R v M.¹⁶¹ However, the accuracy of those decisions was questioned in R v X due to the wording of the statute.¹⁶² Furthermore, Heath J cautioned that “it is not open for Courts to create offences nor indeed to create partial defences. The provisions of the Crimes Act that operate to codify our criminal law prevent the Courts from taking on that role.”¹⁶³ However, Kevin Dawkins argued that applying the law of attempt to infanticide does not create an offence, rather it applies a general doctrine of inchoate liability to a preexisting offence.¹⁶⁴ Whether attempted infanticide is an offence awaits a ruling from a superior court.

3. Psychiatric Considerations

Section 178 requires that at the time of the offence, the balance of the woman’s mind must

be disturbed by reason of not having fully recovered from:

• - the effect of giving birth
• - the effect of lactation
• - any disorder consequent upon childbirth or lactation

¹⁵⁶ Abigail van Echten and Jamie O’Sullivan Garrow and Turkington’s Criminal Law in New Zealand (online looseleaf ed, LexisNexis) at [CRI178.4].

¹⁵⁷ Section 178(1); and Echten and O’Sullivan, above n 156, at [CRI178.4].

¹⁵⁸ Echten and O’Sullivan, above n 156, at [CRI178.4].

¹⁵⁹ R v Paterson HC Wellington T1215/01, 4 December 2001.

¹⁶⁰ R v L HC Invercargill CRI-2009-025-329, 24 November 2009.

¹⁶¹ R v M [2014] NZHC 778.

¹⁶² R v X [2016] NZHC 840 at [25]; and Echten and O’Sullivan, above n 156, at [CRI178.4].

¹⁶³ R v Sutherland [2005] 22 CRNZ 126 (HC) at [22]; and Crimes Act 1961, above n 1, s 9.

¹⁶⁴ Kevin Dawkins and Margaret Briggs “Criminal Law” (2010) 2010(4) NZ L Rev 761 at 762; and Ministry of Justice Criminal Defences Reform: Necessity and Partial Defences (Provocation and Infanticide) (POL (03) 367, 2003) at 767.

There is no requirement that the woman’s mental disturbance has any causal relationship with the actual killing of the child.¹⁶⁵ Rather, there is an implicit assumption that if a woman who has a disturbed mind kills her child, it is that disturbance that led to the killing.¹⁶⁶ Section 178 only requires a temporal connection between the actus reus and the mental disturbance.¹⁶⁷

“Disturbance of the mind” sets a lower threshold than that of “abnormality of mind”¹⁶⁸ defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992.¹⁶⁹ Some women convicted of infanticide showed no evidence of any persisting psychiatric disturbance.¹⁷⁰ New Zealand courts rarely discuss the meaning of ‘disturbance of the mind’ because the applicability of the infanticide defence is rarely contested.¹⁷¹ However, guidance for the meaning of this phrase can be drawn from the Canadian Supreme Court in R v Borowiec¹⁷² because Canada’s infanticide provision uses similar wording.¹⁷³ The Supreme Court held that the phrase “mind is then disturbed” does not require any defined psychological problem/diagnosis to be identified.¹⁷⁴ The issue is whether the woman was “mentally unstable”, “mentally agitated” or in a state of “mental discomposure” at the time.¹⁷⁵

The main contention in infanticide law is whether scientific studies support a biological relationship between postpartum mental illnesses and infanticide.¹⁷⁶ Research into whether this relationship exists is scarce and inconsistent, therefore, drastic reform of s 178 would be hasty. Analysis of this relationship is discussed in Chapter III.

¹⁶⁵ Brookbanks, above n 137, at 99.

¹⁶⁶ At 99.

¹⁶⁷ At 99.

¹⁶⁸ Dean, above n 78, at 345.

¹⁶⁹ Mental Health (Compulsory Assessment and Treatment) Act 1992.

¹⁷⁰ Dean, above n 78, at 345.

¹⁷¹ Cameron, Dawkins, Finn, Mathias, Trendle and Adams, above n 150, at [CA178.03.]

¹⁷² R v Borowiec (2016) SCC 11; and Cameron, Dawkins, Finn, Mathias, Trendle and Adams, above n 150, at [CA178.03.]

¹⁷³ Criminal Code 1985 (CA), s 233; and Cameron, Dawkins, Finn, Mathias, Trendle and Adams, above n 150, at [CA178.02.]

¹⁷⁴ At [35]; and Cameron, Dawkins, Finn, Mathias, Trendle and Adams, above n 150, at [CA178.03.]

¹⁷⁵ At [35].

¹⁷⁶ Ashworth, above n 76, at 281.

4. Reviews of s 178

According to my research, the most recent published review of s 178 was by the Crimes Consultative Committee in 1991.¹⁷⁷ The Committee concluded that there was no compelling reason to abolish s 178 because that would significantly increase the potential penalty for the narrow class of offender it is designed to protect.¹⁷⁸

In 2007 the New Zealand Law Commission published a report titled The Partial Defence of Provocation in 2007.¹⁷⁹ While this published report did not examine infanticide, an earlier unpublished draft of the report contained a brief review of infanticide.¹⁸⁰ Any opinions, conclusions or recommendations contained in this draft were preliminary and cannot be interpreted as the Commission’s final views.¹⁸¹

The draft paper reproduces policy work from the Ministry of Justice (MOJ) that identified anomalies of this defence.¹⁸² First, the MOJ highlights that the defence does not take into account socio-economic factors associated with raising children that could similarly exacerbate/trigger mental disorders in young parents.¹⁸³ Second, a woman under the same mental distress that could allow her to rely on infanticide for killing a “child of hers” would be charged with murder for killing another person’s child.¹⁸⁴ The MOJ sees this as illogical because the woman’s mitigating circumstances do not change depending on the identity of the child she kills.¹⁸⁵ Third, the age limit is criticised because if a woman killed her three children aged 1, 9 and 12 years while suffering from a disorder consequent on the birth of the one year-old, she could not rely on the defence in

¹⁷⁷ Crimes Consultative Committee, above n 2, at 54.

¹⁷⁸ At 54.

¹⁷⁹ Law Commission The Partial Defence of Provocation (NZLC R98, 2007).

¹⁸⁰ Law Commission Partial Defences: Provocation and Infanticide (unpublished consultation draft of report NZLC R98, April 2007).

¹⁸¹ Law Commission Partial Defences: Provocation and Infanticide, above n 180. This draft was distributed to key stakeholders for their feedback, it was not a published consultation paper. The chapter discussing infanticide was removed from the final report to allow the Commission to contemplate the issue further before making any conclusions about the need for law reform.

¹⁸² Criminal Defences Reform: Necessity and Partial Defences (Provocation and Infanticide), above n 164; and Law Commission Partial Defences: Provocation and Infanticide, above n 181, at 92.

¹⁸³ At 92. Examples of these factors include poverty, lifestyle changes, overcrowding and lack of support.

¹⁸⁴ At 92.

¹⁸⁵ At 92.

relation to the oldest child (even though the age of the child killed is irrelevant to her culpability).¹⁸⁶ Fourth, the MOJ criticises the Court’s rejection of attempted infanticide.¹⁸⁷ A woman suffering from postpartum depression that attempted to kill her baby will likely be charged with attempted murder (maximum penalty of 14 years’ imprisonment).¹⁸⁸ The mother’s mental state would only be considered in sentencing.¹⁸⁹ Conversely, if the child died she could have been convicted of infanticide (3 year maximum penalty).¹⁹⁰

The Commission agreed with the above anomalies but stated that the provision also offers some advantages.¹⁹¹ First, the provisions hybrid role as an offence/partial defence allows the prosecution to charge the mother with infanticide rather than homicide, which may elicit some guilty pleas.¹⁹² Additionally, this hybrid role has implications for the burden of proof because it amounts to the prosecution conceding on the issue of mental state (alternatively, the defendant would need to establish this issue on the balance of probabilities).¹⁹³ Furthermore, it provides the guarantee of a mitigated sentence.¹⁹⁴ Key stakeholders had no appetite to abolish infanticide.¹⁹⁵ The Commission met with serious opposition to the idea that these mothers should be convicted of murder.¹⁹⁶ Although there is widespread recognition of the anomalies of infanticide law, few jurisdictions have recommended complete abolition.¹⁹⁷ Jurisdictions that recommended repeal, like New South Wales, noted that diminished responsibility was still available to these women.¹⁹⁸

The Commission stated that there is arguably scope for reform of our infanticide section.¹⁹⁹ They outline how every other jurisdiction they are aware of has a much lower age limit for the victim.²⁰⁰ Furthermore, the Commission acknowledges the body of opinion claiming there is no sound

¹⁸⁶ At 92.

¹⁸⁷ At 92.

¹⁸⁸ At 92.

¹⁸⁹ At 92.

¹⁹⁰ At 92.

¹⁹¹ Law Commission Partial Defences: Provocation and Infanticide, above n 181, at 92 and 93.

¹⁹² At 93.

¹⁹³ At 93.

¹⁹⁴ At 93.

¹⁹⁵ At 93.

¹⁹⁶ At 93. Key stakeholders significantly opposed the idea that these women should be convicted for murder.

¹⁹⁷ At 93.

¹⁹⁸ At 93.

¹⁹⁹ At 93.

²⁰⁰ At 94.

medical basis for retaining references to lactation.²⁰¹ To rebut this, the Commission points out that the English Law Commission recently contemplated the lactation issue and concluded that medical evidence was sufficiently inconclusive to support an amendment.²⁰² The Commission also discussed how the English Law Commission concluded that the English provision should be retained without amendment.²⁰³ The Commission valued the English Law Commission's conclusion due to their comprehensive and careful approach which involved convening a panel of legal and medical professionals to debate the issues.²⁰⁴ Consequently, the Commission recommended that 178 be retained without amendment.²⁰⁵

For completeness, the aforementioned MOJ cabinet paper recommended that infanticide be repealed.²⁰⁶ The MOJ believed judicial sentencing discretion was a better way of acknowledging these factors.²⁰⁷ This paper describes the infanticide defence as ‘arbitrary’ and unfair to deserving defendants that fall outside its narrow scope.²⁰⁸

E Infanticide Cases and Sentencing Trends in Aotearoa

In the majority of infanticide cases, women are initially charged with murder or manslaughter and infanticide becomes a defence to such a charge or the charge is amended to infanticide.²⁰⁹ Consequently, most infanticide cases in Aotearoa are jury trials meaning sentencing decisions are the main source of primary legal material on infanticide. Sentencing decisions are of limited use

²⁰¹ Law Commission Partial Defences: Provocation and Infanticide, above n 181, at 94.

²⁰² At 94; and Law Commission of England and Wales, above n 6, at [8.26]. ²⁰³ At 94; and Law Commission of England and Wales, above n 6, at [9.27]. ²⁰⁴ At 94; and Law Commission of England and Wales, above n 6, at [8.19]. ²⁰⁵ At 95.

²⁰⁶ Criminal Defences Reform: Necessity and Partial Defences (Provocation and Infanticide), above n 164, at [1.1]. The MOJ notes that repeal is not meant to undermine the validity of postpartum illnesses or disregard that infanticidal offenders pose a low/non-existent risk to overall public safety.

²⁰⁷ At [13].

²⁰⁸ At [12]. The following parameters of the defence were described as arbitrary: being limited to children of the defendant, physiological effects of childbirth, children under 10 years old, and murder only.

²⁰⁹ Dean, above n 78, at 342. In almost all circumstances, murder charges have a trial by jury in New Zealand. Additionally, manslaughter is a category 4 offence meaning there is usually a trial by jury, however, a judge-alone trial can be ordered in rare cases. See Courts of New Zealand “New Zealand Court Process For Murder Charges” (September 2019) Courts of New Zealand <www.courtsofnz.govt.nz>; and Community Law “Criminal & Traffic Law” (26 July 2021) Community Law <https://communitylaw.org.nz>.

because they are often brief and fail to detail all the legal arguments presented at trial. There is limited substantive appellate material on infanticide in Aotearoa.

Recent sentencing decisions illustrate that Aotearoa’s infanticide law is still used. In July 2009, a mother referred as H, was sentenced to two years intensive supervision for killing her child.²¹⁰ 28- year-old H killed her fourth-born child immediately after giving birth.²¹¹ H concealed and ignored this pregnancy.²¹² H delivered the baby herself at her home and then placed a pillow over the infant’s face.²¹³ H put the body in a shoe box and buried it in the garden.²¹⁴ H did not tell anyone about the birth and returned to work the next day.²¹⁵ Thereafter H would regularly visit the burial site and tell her baby what she had done during the day.²¹⁶ Mallon J stated “...the need for the sentence to be directed to your rehabilitation is at the forefront. Your successful rehabilitation will best serve to curb any danger there might be of re-offending in this manner.”²¹⁷ A psychiatric report declared that during H’s pregnancy and with the birth of this child she slipped into a Major Depressive Episode.²¹⁸ The symptoms of this episode included sleep disturbances, low mood, and accentuated feelings of despair and hopelessness.²¹⁹ Mallon J stated that intensive supervision with special conditions would best encourage the continuation of the progress H had made in treatment, which will in turn reduce risk of further offending.²²⁰ The special conditions of the sentence were that H would undertake psychiatric/psychological treatment/counselling as directed by her probation officer (in consultation with her treating clinician) and would immediately inform her probation officer if she became aware she may be pregnant.²²¹

²¹⁰ R v JRH HC Wellington CRI-2007-032-2799, 31 July 2009 at [23].

²¹¹ At [4].

²¹² At [8].

²¹³ At [8] and [9].

²¹⁴ At [9].

²¹⁵ At [9].

²¹⁶ At [9].

²¹⁷ At [11].

²¹⁸ At [16].

²¹⁹ At [16].

²²⁰ At [20].

²²¹ At [23].

In 2006, an infanticide case took place at the University of Otago.²²² Ms Golovale-Siaosi was an international student on a prestigious scholarship.²²³ Ms Golovale-Siaosi kept her pregnancy a secret and did not seek any medical attention for the pregnancy.²²⁴ She gave birth in the toilets of her residential hall, placed the infant and placenta in a bag and placed it outside the bathroom window.²²⁵ The Crown accepted a plea to infanticide, thereby accepting that “the balance of your mind was disturbed by reason of not having fully recovered from the effect of giving birth, and by reason of a disorder subsequent to childbirth, in this case severe anaemia due to rapid loss of blood, to such an extent that you should not be held fully responsible.”²²⁶ A psychiatrist informed the Court that Ms Golovale-Siaosi was psychologically overwhelmed and completely unable to cope.²²⁷ Hansen J stated that under the Sentencing Act 2002, the Court has to take into account rehabilitation, promoting a sense of responsibility and accountability for harm.²²⁸ His Honour noted that Ms Golovale-Siaosi was 22 years old at the time of sentencing with no previous convictions and an outstanding background.²²⁹ Before sentencing, Ms Golovale-Siaosi voluntarily completed 124 hours of community work.²³⁰ Hansen J sentenced Ms Golovale-Siaosi to an additional 130 hours of community work and placed her on supervision for 12 months on condition that she attend a psychiatric assessment and undertake counselling/treatment identified by the assessor.²³¹

R v Metuatini provides an example of a mother killing a child that is not the child she most recently birthed.²³² Ms Metuatini was originally charged with murdering her two-year-old daughter Shannon.²³³ Approximately seven months into her fourth pregnancy, Ms Metuatini fell into severe depressive moods.²³⁴ On 5 December 2002 Shannon pulled her younger sister’s hair, which caused Ms Metuatini to snap and lose control of her emotions - she hit Shannon so hard that she fell out

²²² R v Golovale-Siaosi HC Dunedin CRI-2006-012-2533, 11 December 2007 at [3].

²²³ At [3] and [8].

²²⁴ At [3].

²²⁵ At [4].

²²⁶ At [2].

²²⁷ At [2].

²²⁸ At [5].

²²⁹ At [6].

²³⁰ At [10].

²³¹ At [11].

²³² R v Metuatini HC Auckland T025795, 18 November 2003.

²³³ At [1].

²³⁴ At [7].

of her chair.²³⁵ Ms Metuatini then struck her once more.²³⁶ Shannon died the following day due to serious head injuries.²³⁷ Three highly regarded psychiatrists were of the opinion that Ms Metuatini was suffering from serious depression resulting from the effects of childbirth.²³⁸ Crown counsel and Harrison J agreed that control of Ms Metuatini’s condition and rehabilitation must be the main purpose of sentencing.²³⁹ Harrison J concluded that Ms Metuatini should be sentenced to two years of supervision with the following special conditions: that she undertake psychological counselling and psychiatric treatment as directed by her probation officer, and that she complete a parenting programme.²⁴⁰

R v E demonstrates a circumstance in which the jury found that a mother was not entitled to an infanticide finding.²⁴¹ The jury also rejected a finding of murder and instead found that E was guilty of the manslaughter of her son.²⁴² E was at home with her two children: B (five years old) and A (13 months old) on the day of her offending.²⁴³ E sat A in a bath and left him unattended whilst she made his breakfast.²⁴⁴ When E returned approximately 15 minutes later, A was floating face down in the water.²⁴⁵ E picked A up, assessed him as being dead and did not try to revive him.²⁴⁶ E wrapped A in a towel and put him on the bed and did not call emergency services or her husband.²⁴⁷ Brewer J stated that E was an experienced mother and knew A was not stable in the bathtub unsupervised.²⁴⁸ Crown and defence experts agreed that at the time of E’s offending, she was suffering from a major depressive disorder.²⁴⁹ However, these experts disagreed on the cause of this disorder.²⁵⁰ The Crown expert believed the disorder was consequent “upon a range of

²³⁵ At [11].

²³⁶ At [11].

²³⁷ At [12].

²³⁸ At [1].

²³⁹ At [16]. Crown counsel also stated that any need for punishment had been met by Ms Metuatini’s suffering as a result of her being separated from her surviving children, her sense of guilt for the loss of Shannon, and the fact that she faced a murder charge.

²⁴⁰ At [21].

²⁴¹ R v E HC Auckland CRI-2009-090-12059, 28 September 2010 at [1].

²⁴² At [1].

²⁴³ At [7].

²⁴⁴ At [9].

²⁴⁵ At [10].

²⁴⁶ At [10].

²⁴⁷ At [10].

²⁴⁸ At [12]. Evidence was presented that the week prior to A’s death, A had fallen forwards in the bath and E

accepted that if she had not been present to sit him up he could have drowned in that instance.

²⁴⁹ E v R (2011) 25 CRNZ 411 at [3].

²⁵⁰ E v R, above n 249, at [3].

psychosocial adversities acting upon a probable biological disposition”.²⁵¹ The defence expert believed the disorder was related to childbirth/lactation.²⁵²

I found a total of 13 sentencing decisions for infanticide convictions.²⁵³ The judgment dates of these sentencing decisions span 1979²⁵⁴-2012.²⁵⁵ That is not to say that there have only been 13 infanticide convictions total, that is simply the number I could find. I found evidence of more cases where infanticide was argued however, I could not find whether the jury accepted the infanticide defence.²⁵⁶ Infanticide cases and sentencing decisions are often unreported.

F Summary Table of Sentencing Trends

²⁵¹ E v R, above n 249, at [3].

²⁵² At [3].

²⁵³ The 13 decisions are: R v CRS [2012] NZHC 709, R v T HC Dunedin CRI 2008-012-005987, 18 December 2008, R v JRH HC Wellington CRI-2007-032-2799, 31 July 2009, R v A HC Wellington S27/28, 4 September 1987, R v Golovale-Siaosi HC Dunedin CRI-2006-012-2533, 11 December 2007, R v Henry CA 187-78, 21 March 1979, R v H HC AK TO23428, 19 March 2004, R v Metuatini HC Auckland T025795, 18 November 2003, R v Moke HC Wellington T 46-97, 12 September 1997, R v Stefano HC Wellington S 6-91, 8 March 1991, R v S HC Wellington S 112-94, 11 November 1994, R v Tokona HC Wanganui T 992039, 11 February 2000, and R v M HC Christchurch T 65-89, 4 April 1990. These decisions were found through extensive searches on Lexis Advance and Westlaw.

²⁵⁴ R v Henry, above n 253.

²⁵⁵ R v CRS, above n 253.

²⁵⁶ Examples of such cases include R v M HC New Plymouth T5/01, 19 November 2001; and R v Marshall HC New Plymouth T 5-01, 30 October 2001. Peter Dean reviewed New Zealand Police Records of child homicide and Ministry of Justice records on successful prosecutions with an outcome of infanticide for the period of 1990 to 1999. In this period, Dean identified 15 women who were sentenced under infanticide provisions. I was only able to find four infanticide sentencing decisions in this time period. See Dean, above n 78, at 344. The four decisions are: R v M, above n 253; R v Stefano, above n 253; R v S, above n 253; and R v Moke, above n 253.

Further details about how these averages were reached are contained in Appendix A.

There are no guidelines for sentencings for infanticide, as noted by Chisholm J in R v CRS.²⁵⁷ However, after examining the 13 infanticide cases, judges tend to consider/balance the following factors in sentencing: rehabilitation, harm to victims, psychiatric factors underlying the offending, the mother’s age, the mother’s remorse, character evidence, whether infanticide is the mother’s first offence, and the mother’s guilty plea. Rehabilitation was identified as being at the forefront/an important issue of infanticide sentencings by judges in R v JRH,²⁵⁸ R v H,²⁵⁹ and R v Moke²⁶⁰ and R v Metuatini.²⁶¹ It is common for judges to refer to infanticide having a low risk of re-offending.²⁶²

²⁵⁷ At [20].

²⁵⁸ At [11].

²⁵⁹ At [4].

²⁶⁰ At 5.

²⁶¹ At [16].

²⁶² For example, Panckhurst J stated that “...the risk of repetition [of infanticide], and therefore any threat that an

offender might post to the community, is not ongoing because it is an offence which is linked to a particular mental

I found four cases where infanticide was argued but rejected by the jury: R v B,²⁶³ E v R,²⁶⁴ R v Sharon Anne Harrison-Taylor,²⁶⁵ and R v Ngawhika.²⁶⁶ In R v B, a mother that killed her young baby was found not guilty of infanticide by reason of insanity.²⁶⁷ Three psychiatrists concluded that B was suffering from severe postpartum major depression, and two of the psychiatrists observed possible psychotic symptoms.²⁶⁸ One pattern emerged after analysing the remaining cases:²⁶⁹ in all three cases, psychiatric evidence presented did not tie the mother’s illness to the effects of childbirth/lactation. The Crown and defence experts disagreed on the cause of the mother’s disorder in E v R: the Crown expert believed the disorder was consequent upon a range of psychosocial adversities, whereas the defence expert related the mother’s disorder to giving birth and lactation.²⁷⁰ In R v Sharon Anne Harrison-Taylor, psychiatric evidence deemed Taylor to have borderline personality disorder that was not linked to childbirth/lactation.²⁷¹ Similarly, in R v Ngawhika, expert evidence deemed Ngawhika to be suffering from a major depressive episode attributed to post-traumatic stress.²⁷² This pattern was also present in three manslaughter cases where mothers killed their young child: R v Wright,²⁷³ R v Pene²⁷⁴ and R v Myra Paea.²⁷⁵ Infanticide was not put to the jury to consider in these cases. In all three cases, the mother’s disorder was not related/linked to the effects of childbirth/lactation. Wright was diagnosed with Munchausen’s syndrome by proxy,²⁷⁶ Pene was diagnosed with a depressive illness and anxiety,²⁷⁷ and Paea was diagnosed with a personality disorder triggered partly by abuse.²⁷⁸ Overall, Aotearoa’s courts place significant value on psychiatric evidence in infanticide cases or cases

condition and one which, thankfully, is capable of treatment.” See R v B HC Nelson CRI 2019-009-1908, 4 August 2020, at [11].

²⁶³ R v B, above n 262.

²⁶⁴ E v R, above n 249.

²⁶⁵ R v Sharon Ane Harrison-Taylor HC Auckland CRI 2004-092-001510, 12 September 2005.

²⁶⁶ R v Ngawhika HC Rotorua CRI-2021-63-2590, 15 March 2023.

²⁶⁷ At [1].

²⁶⁸ At [6]-[10].

²⁶⁹ E v R, above n 249; R v Sharon Anne Harrison-Taylor, above n 265; and R v Ngawhika, above n 266.

²⁷⁰ At [3].

²⁷¹ At [5].

²⁷² At [13].

²⁷³ R v Wright [2001] NZCA 138; [2001] 3 NZLR 22.

²⁷⁴ R v Pene [2010] NZCA 387.

²⁷⁵ R v Myra Paea [2016] NZHC 822.

²⁷⁶ At [28].

²⁷⁷ At [6].

²⁷⁸ At [7].

where infanticide could be argued. Medical opinion on the role of postpartum illnesses in infanticide is scattered, therefore, whether reform of s 178 is necessary depends on what scientific consensus is reached.

It is important to reiterate that the thought-process behind the Jury’s decision is uncertain, these

are merely patterns found in these unsuccessful infanticide cases.

G Advantages of Aotearoa’s Approach to Infanticide

One argument for why s 178 is appropriate for Aotearoa is because it accommodates our biculturalism.²⁷⁹ Whangai is a Māori customary practice in which a child is raised by kin members other than their birth parents.²⁸⁰ Because “any child of hers” includes non-natural children, our provision theoretically protects whangai mothers that kill their whangai child when their mind is disturbed by childbirth.²⁸¹ To my knowledge, there have not been any infanticide cases where whangai have been killed. One potential issue of applying infanticide law to the killing of whangai is that the whangai practice does not hold any legal status in Aotearoa.²⁸² In R v P, Heron J stated that s 178 will apply to the death of a child that is “treated in all respects as a member of the family and has the status of such to all outward appearances, confirmed in all respects by an order of the Court.”²⁸³ Many whangai arrangements do not have court orders for guardianship or custody because those are western concepts not recognised in tikanga.²⁸⁴ Whether s 178 would apply to mothers that kill their whangai child even if the parenting arrangement was not confirmed by a

²⁷⁹ Most other jurisdictions’ approach to infanticide does not accommodate their country’s biculturalism. For example, Ireland, Australian states, and Canada’s infanticide provisions are restricted to natural children of the perpetrator. Therefore, their respective infanticide provisions do not accommodate the customary adoption practices of Celtic peoples (indigenous people of Ireland), Aboriginal Australians (indigenous people of Australia), and Inuit (indigenous people of Canada). See Infanticide Act 1949 (Ireland), s 1; Crimes Act 1900 (NSW), s 22A; Criminal Code Act 1924 (Tasmania), s 165A; Crimes Act 1958 (Victoria), s 6; Criminal Code 1985 (CA), s 233; Peter Parkes “Celtic Fosterage: Adoptive Kinship and Clientage in Northwest Europe” (2006) 48(2) Comparative Studies in Society and History 359; “Aboriginal People and Adoption” (24 September 2019) NSW Government Communities & Justice <www.facs.nsw.gov.au>; and Victoria Craine “Customary Adoption – What Is The Law In Your Province” (8 February 2017) Nelligan Law <https://nelliganlaw.ca>.

²⁸⁰ Karyn Okeroa McRae and Linda Waimarie Nikora “Whangai: remembering, understanding and experiencing”

(2006) 1 MAI Review 1 at 1.

²⁸¹ Crimes Act 1961, above n 1, s 178(1); and Simester and Brookbanks, above n 121, at 591.

²⁸² Erica Newman “Challenges of identity for Māori adoptees” 3(2) Australian Journal of Adoption 1 at 11.

²⁸³ R v P, above n 143, at 121.

²⁸⁴ Newman, above n 282, at 20.

court order would have to be decided by a court if the case arose. The infanticide provisions in England and Wales,²⁸⁵ New South Wales,²⁸⁶ Tasmania,²⁸⁷ and Victoria²⁸⁸ limit the offence/defence to mothers who kill their natural children.

Warren Brookbanks considered that Aotearoa’s approach better reflects modern social realities where fostering children is more common and ‘nuclear’ families are no longer the norm.²⁸⁹ There are unique challenges for “merged families” where step-parents acquire new parenting roles for children that are not biologically their own.²⁹⁰ This is a socially complex environment and the addition of a newborn can add further stress to the family dynamics and in extreme cases, can become a causal factor for intrafamilial violence.²⁹¹ In these environments, our approach is better at mitigating the risk of over criminalising women who have given birth, are mentally impaired, and face these stressors.²⁹²

Another advantage of s 178 is that it avoids the absurdity of restricting the offence/defence to mothers that kill their most recently born child.²⁹³ If a mother suffering from severe postpartum depression kills her two-month-old and three-year-old, it would seem manifestly unjust if she could only argue infanticide for the younger child. The effects of such mental illness could not logically be restricted to the youngest child.

²⁸⁵ Infanticide Act 1938, above n 3, s 1.

²⁸⁶ Crimes Act 1900, above n 279, s 22A. In 1951, New South Wales added an infanticide offence into the Crimes Act 1900. If a woman is found guilty of infanticide under this provision, she will be punished as if she was guilty of the offence of manslaughter. A conviction of infanticide in New South Wales generally results in only a community service order or a good behaviour bond. See Scott, above n 33, at 1034.

²⁸⁷ Criminal Code Act 1924, above n 279, s 165A. Interestingly, s 165A does not refer to lactation and only provides for infanticide as an offence. It does not specifically provide for the provisions use as a defence to a charge of murder. See Dean, above n 78, at 342; and s 165A.

²⁸⁸ Crimes Act 1958, above n 279, s 6. In 1949, Victoria adopted the Infanticide Act 1938 (UK)’s provisions with

minimal alterations. See Scott, above n 33, at 1036.

²⁸⁹ Brookbanks, above n 137, at 99.

²⁹⁰ At 99.

²⁹¹ At 99.

²⁹² At 99. The Victorian Law Reform Commission touched on the argument that it is unjust not to extend the infanticide defence to other carers such as adoptive parents in its 2004 review of homicide defences. See Victorian Law Reform Commission Defences to Homicide Final Report (2004), at [6.12].

²⁹³ Section 178.

The United Kingdom,²⁹⁴ New South Wales,²⁹⁵ and Tasmania’s²⁹⁶ infanticide provisions create the anomaly where a mother that kills two or more of her children would face murder charges for the older children and infanticide for the child under 12 months despite both killings being committed in a state of mental disturbance.²⁹⁷ The Victorian Law Reform Commission argued that this anomaly is “unjust and illogical” and recommended that the infanticide offence include the killing of older children at the same time as the killing of a child under two years.²⁹⁸

Furthermore, infanticide provisions with an upper age limit of twelve months have been criticised as being arbitrary.²⁹⁹ In some jurisdictions, a mother who otherwise would satisfy the elements of infanticide cannot claim the protection of infanticide law if the child killed is one day over 12 months.³⁰⁰ A difference of one day in the child’s age creates a significant difference in the punishment the mother could face.³⁰¹ However, it is important to acknowledge that there is a sense of absurdity to any age limit³⁰² and similar anomalies could arise in Aotearoa if a mother killed one child under the age of 10 and another over the age of 10. The arbitrary nature of a 12 month upper age limit was noted by the Law Commissions of England and Wales,³⁰³ Western Australia,³⁰⁴ and Victoria.³⁰⁵ The Victorian Law Reform Commission reviewed evidence suggesting that the majority of infanticide cases take place within two years of birth, therefore, the age limit was extended from 12 months to two years in 2005.³⁰⁶ New South Wales’ infanticide provision still contains a 12 month upper age limit.³⁰⁷

²⁹⁴ Infanticide Act 1938, above n 3, s 1.

²⁹⁵ Crimes Act 1900, above n 279, s 22A

²⁹⁶ Criminal Code Act 1924, above n 279, s 165A.

²⁹⁷ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 110. ²⁹⁸ Victorian Law Reform Commission, above n 292, at [6.13]. This recommendation was not implemented. See Law Reform Commission of Western Australia Review of the Law of Homicide An Issues Paper (Project 97, 2006) at 4.

²⁹⁹ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 109. ³⁰⁰ At 109; and Daniel Maier-Katkin and Robbin Ogle “A Rationale for Infanticide Laws” (1993) Criminal Law Review 903 at 913.

³⁰¹ At 109.

³⁰² Law Commission of England and Wales, above n 6, at [8.13].

³⁰³ At [8.13].

³⁰⁴ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 109.

³⁰⁵ Victorian Law Reform Commission, above n 292, at [6.13].

³⁰⁶ Law Reform Commission of Western Australia Review of the Law of Homicide An Issues Paper, above n 5, at 4.

³⁰⁷ Crimes Act 1900, above n 279, s 22A.

H Criticisms of Aotearoa’s Approach

The most common criticism of s 178 is the key criticism of infanticide law generally: that the biological rationale of the law is unfounded. This criticism has been addressed in Chapter III.

Another criticism of s 178 is that it is too generous. A South African news outlet recently referred to Aotearoa’s infanticide laws as “lenient” when discussing the Lauren Dickason trial.³⁰⁸ Similarly, the Canadian Infanticide Act has been criticised as being too lenient because the mother’s burden of proof is very low; the law allegedly only requires her word.³⁰⁹ Conversely, Aotearoa appears to have a higher threshold regarding proof of the mother’s mental state. As explored earlier, our courts generally have one or two psychiatric reports about the mother’s balance of mind being disturbed in successful infanticide cases. Furthermore, R v Gordon examined whether a judge ought to have directed the jury that infanticide was a possible verdict even though the defendant was not charged with infanticide and neither counsel raised the issue.³¹⁰ The defendant’s mental state gravely concerned nurses and caused them to arrange for the mother to be admitted to a psychiatric ward for four days.³¹¹ During this stay, the defendant reported feeling unable to cope as a mother and disclosed having suicidal thoughts.³¹² Additionally, senior and student midwives reported the defendant being “at the end of her tether” and “possibly depressed”.³¹³ However, the Court of Appeal concluded that if psychiatric evidence had been before the jury, the possibility of a verdict of infanticide should have been left to the jury.³¹⁴ Evidently, s 178 requires more than the mother’s ‘word’.

Infanticide law has been heavily criticised for being discriminatory towards men. Although there is some evidence that fathers are often suffering from similar social, economic, mental and physiological stresses as mothers, the characteristics of fathers who kill tend to be significantly

³⁰⁸ Jehran Naidoo “Lauren Dickason trial: New Zealand’s lenient law on infanticide may be in favour of defence”

(28 July 2023) IOL <www.oil.co.za>.

³⁰⁹ Heather Leigh Stangle “Murderous Madonna: Femininity, Violence, and the Myth of Postpartum Mental Disorder in Cases of Maternal Infanticide and Filicide” (2008) 50 Wm.& Mary L.Rev. 699 at 732; and Criminal Code 1985, above n 279, s 233.

³¹⁰ R v Gordon (2004) CA726/04 at [3].

³¹¹ At [5].

³¹² At [5].

³¹³ At [10].

³¹⁴ At [26].

different from mothers who kill.³¹⁵ For example, most fathers that kill have a criminal history and are twice as likely to kill their children in a physically violent manner.³¹⁶ Female offenders rarely use weapons, instead means of drowning or suffocation are common.³¹⁷ Conversely, male offenders use guns or knives more often and tend to use means that subject the victim to wounding violence.³¹⁸ Additionally, when the Police Federation was consulted by the Law Commission of England and Wales about extending infanticide law to fathers, the Federation feared “it would be used repeatedly by men...when the real issue had been failure to control their temper”.³¹⁹ The strength of this criticism will depend on what scientific conclusion is reached in relation to the biological relationship between infanticide and postpartum mental illness. If it is found that the real trigger for infanticidal killings is a range of social factors related to caring for a young child, infanticide law should be extended to fathers as well.³²⁰ However, if a biological relationship between infanticide and postpartum mental illness is found, infanticide law can reasonably be restricted to mothers.

Feminist jurists argue that infanticide law is a reflection of chivalric justice: an aversion to holding women legally accountable for their actions.³²¹ When men kill they are often labelled as ‘bad’, whereas when women kill they are labelled as ‘mad’.³²² Infanticide law has been criticised for perpetuating societal ideologies surrounding female passivity and female aggression being the rare result of a mental disorder.³²³ Some scholars attribute the persistence of this paternalistic view of women to society’s deep-rooted concept of women as devoted mothers, so that even killing is interpreted as an expression of love to the child.³²⁴ Critics argue infanticide law conveys women

³¹⁵ Brookbanks, above n 137, at 101.

³¹⁶ At 101; and M Marks and R Kumar “Infanticide in England and Wales” (1993) 33 Med Sci Law 329 at 331. ³¹⁷ Josephine Stanton and Alexander Simpson “Filicide: a review” (2002) 25(1) Int’l J.L.& Psychiatry 1 at 8; and Marks and Kumar, above n 316, at 331.

³¹⁸ Stanton and Simpson, above n 317, at 8; and M Mendlowicz, G Jean-Louis, M Gekker and M Rapaport “Neonaticide in the city of Rio de Janeiro: forensic and psychological perspectives” (1999) 40 Journal of Forensic Sciences 741 at 743.

³¹⁹ Law Commission of England and Wales, above n 6, at [8.30].

³²⁰ Hogan and Smith, above n 82, at 594.

³²¹ Theresa Porter and Helen Gavin “Infanticide and neonaticide: a review of 40 years of research literature on incidence and causes” (2010) 11(3) Trauma Violence Abuse 99 at 107.

³²² Friedman, Cavney and Resnick, above n 12, at 592.

³²³ Stangle, above n 309, at 732. Academic Heather Leigh Stangle argues that “the denial of female aggression prevents attempts to understand and prevent such [infanticidal] acts in the future.”

³²⁴ Stanton and Simpson, above n 317, at 10.

as inherently unstable due to their biology thereby reinforcing an image of women being pitiable, weak, and not responsible for their violent actions.³²⁵

Other critics of infanticide law highlight how these laws originated when options and access to contraception and abortion were limited.³²⁶ Additionally, there was significant social stigma and economic implications attached to illegitimate children.³²⁷ In the majority of modern Western countries contraception and abortion are easily accessible and the social stigma of illegitimate children has lessened.³²⁸ Consequently, modern developed societies usually offer options for addressing unwanted pregnancies thus some critics argue that infanticide provisions are obsolete.³²⁹

Another common criticism of infanticide law is that it diminishes the value of the child victim.³³⁰ Critics taking this view argue that infanticide law is harmful to the child’s dignity and converts the child into a second-class citizen.³³¹

³²⁵ NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide (R 83, 1997) at [3.31].

³²⁶ Ingram, above n 36.

³²⁷ Ingram, above n 36.

³²⁸ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 110. ³²⁹ NSW Law Reform Commission People with cognitive and mental health impairments in the criminal justice system (R 138, 2013) at [5.26].

³³⁰ H Archibald Kaiser “Borowiec: Exploring Infanticide, “a particularly dark corner” and Providing Another Reminder of the Need for Reforming Homicide Sentencing” 65 (2017) Crim LQ 242 at 258.

³³¹ At 259.

CHAPTER III

The biological relationship between childbirth and mental impairment so severe as to cause the killing of a child has been widely criticised.³³² Whether this relationship exists is of the utmost importance because s 178 is justified on biological grounds. Without critically examining the underlying science of infanticide and postpartum illnesses, it is impossible to know whether the premise of infanticide law is sound. There is significant uncertainty about the relationship between childbirth/lactation and mental illnesses.³³³ A key issue in this area is that research exploring whether this relationship exists is scarce. Some critics suggest that social, economic, and psychological factors play a more important role in infanticide than the biological events of childbirth/lactation.³³⁴ This chapter explains the different types of postpartum illnesses, discusses research supporting or opposing the existence of the biological relationship, and explains common methodological issues/limitations of such research.

A Different Types of Postpartum Illnesses

Some sources report that the postpartum year is the time period with the highest risk of developing mental illness in a woman’s lifetime.³³⁵ There are three mental disturbances associated with the period after childbirth: postpartum ‘blues’, postpartum depression and puerperal psychosis.³³⁶

Postpartum blues are often referred to as the ‘baby blues’.³³⁷ The baby blues is a transitory, mild mood disorder that affects 50-80% of all women in the days immediately after birth.³³⁸ Symptoms include despondency, hostility towards the child’s father, anxiety, tiredness, concentration difficulties, tearfulness and suicidal thinking.³³⁹ The cause of this illness is generally attributed to

³³² Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 108. ³³³ Karen Brennan “Beyond the Medical Model: A Rationale for Infanticide Legislation” (2007) 58(4) NILQ 505 at 508.

³³⁴ At 514.

³³⁵ Friedman, Cavney and Resnick, above n 12, at 590.

³³⁶ Brennan, above n 333, at 507.

³³⁷ Porter and Gavin, above n 321, at 102.

³³⁸ Brennan, above n 333, at 507.

³³⁹ At 507; and Friedman, Cavney and Resnick, above n 12, at 590.

significant and sudden hormone fluctuations after childbirth.³⁴⁰ This condition is typically resolved within approximately two weeks.³⁴¹

Postpartum depression is less common than the baby blues, however, it causes more severe disturbances in mood.³⁴² Postpartum depression is estimated to affect approximately 10% of all women following childbirth.³⁴³ Symptoms include unusual irritability, anxiety, fatigue, despondency, inability to cope with the baby and feelings of inadequacy.³⁴⁴ This illness generally emerges within the first six months of childbirth.³⁴⁵

Puerperal psychosis is the most severe of the three illnesses and is estimated to affect only one to two mothers out of every thousand births.³⁴⁶ Symptoms include confusion, visual or auditory hallucinations, severe depression, disorientation, and agitation.³⁴⁷ Puerperal psychosis is characterised by a break with reality.³⁴⁸ This illness often has a sudden onset of delirious, depressive and manic symptoms, as well as psychosis.³⁴⁹ Puerperal psychosis almost always requires hospitalisation.³⁵⁰ The onset of puerperal psychosis symptoms usually appear within the first 3 months following childbirth.³⁵¹

Postpartum depression is the illness most commonly associated with infanticide; the baby blues do not persist for an extended period of time after the childbirth and usually are not severe enough to be involved in infanticidal killings.³⁵² Furthermore, puerperal psychosis is exceptionally rare.³⁵³

³⁴⁰ Brennan, above n 333, at 507.

³⁴¹ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 107.

³⁴² Brennan, above n 333, at 507.

³⁴³ At 507.

³⁴⁴ At 507.

³⁴⁵ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 107.

³⁴⁶ At 507.

³⁴⁷ At 507.

³⁴⁸ At 507.

³⁴⁹ Friedman, Cavney and Resnick, above n 12, at 590; and Susan Friedman, Phillip Resnick, and Miriam Rosenthal

“Postpartum psychosis: Strategies to protect infant and mother from harm.” 8 Current Psychiatry 40.

³⁵⁰ Brennan, above n 333, at 507.

³⁵¹ Rachel L Carmickle “Postpartum Illness and Sentencing: Why the Insanity Defence is Not Enough for Mothers with Postpartum Depression, Anxiety, and Psychosis” (2017) 37(4) J Leg Med 579 at 584; and BN Gaynes, N Gavin, S Meltzer-Brody, K Lohr, T Swinson, G Gartlehner, S Brody, and W Miller “Perinatal depression: Prevalence, screening accuracy, and screening outcomes: Summary” (2005) AHRQ Evidence Report Summaries. ³⁵² Brennan, above n 333, at 508.

³⁵³ At 508.

Untreated puerperal psychosis is estimated to carry a 5% risk of suicide and a 4% risk of infanticide.³⁵⁴ However, infanticide has rarely been applied in puerperal psychosis cases because the insanity defence is typically regarded as more appropriate in these circumstances.³⁵⁵

B Evidence in Support of a Biological Relationship or Temporal Relationship

1 Evidence that the incidence of specific mental illnesses is higher following childbirth (temporal relationship)

As part of their investigation into the reform of infanticide law the Law Commission of England and Wales organised a consultation meeting with a range of legal and medical experts on the subject of infanticide.³⁵⁶ Contrasting views were presented in this meeting, with some experts arguing that the Infanticide Act is no longer considered to have “any basis in medical science”.³⁵⁷ However, the meeting concluded there is sufficient medical evidence on which to justify the Infanticide Act as it stands.³⁵⁸ This conclusion was supported by Professor Brockington’s work.³⁵⁹ Professor Brockington found that no psychiatric disorders are specific to childbirth.³⁶⁰ However, the incidence of specific disorders is higher after childbirth.³⁶¹ Therefore, there is a temporal connection suggesting some women have increased vulnerability to psychiatric disorders in the postpartum period.³⁶²

The Law Commission’s final recommendations were also informed by Professor Mackay’s

research.³⁶³ Professor Mackay reviewed a sample of Crown Prosecution Service files from 1990

³⁵⁴ Friedman, Cavney and Resnick, above n 12, at 590; and Friedman, Resnick and Rosenthal, above n 349.

³⁵⁵ Julia Tomie Principles of Criminal Law in Aotearoa (LexisNexis NZ Limited, Wellington, 2022) at 265; and Dean, above n 78.

³⁵⁶ Law Commission of England and Wales, above n 6, at [8.24].

³⁵⁷ At [8.24]. The Commission commissioned Professor Brockington’s work which categorised different psychiatric

disorders associated with infanticide and different categories of infanticide.

³⁵⁸ At [8.25].

³⁵⁹ At [8.25].

³⁶⁰ At [8.25].

³⁶¹ At [8.25].

³⁶² At [8.25].

³⁶³ At [8.20].

to 2003 and found that the most frequent diagnosis cited in connection with infanticide was postnatal depression (28.6%), depression (14.3%) and puerperal psychosis (12.2%).³⁶⁴

Margarita Poteyeva and Margaret Leigey’s study provided further support for the idea that biology could play a role in the relationship between infanticide and mental illness because infanticidal women reported significantly higher rates of mental health problems (temporal connection).³⁶⁵ Poteyeva and Leigey studied the mental health histories and pre-incarceration negative life events of 55 women incarcerated in America for killing their stepchild or child.³⁶⁶ These infanticidal women were compared to two other groups: men incarcerated for killing their child/step child (filicidal men), and women incarcerated for killing someone other than their stepchild/child (non- infanticidal women).³⁶⁷

Half of the infanticidal women reported having some kind of mental health problem, which was a significantly higher percentage than the other two groups.³⁶⁸ This result can be interpreted in two different ways. First, it could be a reflection of the fact that offenders with severe illnesses are likely confined in mental institutions rather than prisons, and were therefore excluded from the sample.³⁶⁹ On the other hand, this result could reflect the idea that mental illness contributes to some cases of infanticide.³⁷⁰ Infanticidal women also had more extensive treatment histories than filicidal men because they were significantly more likely to admit to going to counselling, taking medication, or being hospitalised overnight for an emotional/mental problem.³⁷¹

Dobson and Sales’ article deemed it important to separate neonaticide (killing an infant in the first

24 hours after delivery) and filicide (killing an infant between 24 hours and 12 months after

³⁶⁴ Law Commission of England and Wales, above n 6, at [D.38]

³⁶⁵ Margarita Poteyeva and Margaret Leigey “An Examination of the Mental Health and Negative Life Events of Women Who Killed Their Children” (2018) 7(9) Social Sciences 1 at 12.

³⁶⁶ At 364.

³⁶⁷ At 7.

³⁶⁸ At 12. Recent data from the National Institute of Mental Health suggested that approximately 21.7% of women from the general population have a mental health issue. See National Institute of Mental Health “Mental Illness” (2017) National Institute of Mental Health <www.nimh.nih.gov>.

³⁶⁹ At 12.

³⁷⁰ At 12.

³⁷¹ At 13.

delivery).³⁷² This article examined available empirical data on the mental health status and demographic characteristics of women who commit infanticide.³⁷³ Dobson and Sales’ found minimal evidence that neonaticidal mothers suffer from childbirth-related mental illnesses, thus it would be inappropriate to charge these women with infanticide.³⁷⁴ In a group of 24 women who committed neonaticide and 88 who committed filicide, psychosis was diagnosed in 17% of the neonaticidal mothers and 67% of the filicidal mothers.³⁷⁵ This article concluded that puerperal psychosis increases significantly in prevalence in the first two months after delivery and continues to show increases into the second postpartum year.³⁷⁶ This illness is frequently identified in filicidal women before and at the time of the offence.³⁷⁷

2. Evidence of the neurohormonal aspects of postpartum illnesses

Margaret G Spinelli writes that a large percentage of infanticide cases occur in the context of postpartum illnesses.³⁷⁸ Spinelli explained that the neurochemical changes relating to childbirth include the rapid fluctuation in levels of progesterone, oestrogen, and other gonadal hormones released during pregnancy and their abrupt loss at birth.³⁷⁹ These fluctuations then act as triggers for central nervous system transmitter changes.³⁸⁰

A plethora of studies have shown that gonadal steroids have multiple effects on mood modulators.³⁸¹ The physiological processes of childbirth starts with some hormone levels that have increased 200-fold throughout gestation, swiftly declining within 24 hours.³⁸² Furthermore, the

³⁷² Velma Dobson and Bruce Sales “The Science of Infanticide and Mental Illness” (2000) 6(4) Psychology Public

Policy and Law 1098 at 1100.

³⁷³ At 1102.

³⁷⁴ At 1100.

³⁷⁵ At 1102; and PJ Resnick “Murder of the newborn: A Psychiatric review of neonaticide” (1970) 126 American

Journal of Psychiatry 1414.

³⁷⁶ Dobson and Sales, above n 372, at 1107.

³⁷⁷ At 1104.

³⁷⁸ Margaret G Spinelli “Maternal Infanticide Associated With Mental Illness: Prevention and the Promise of Saved Lives” (2004) 161(9) American Journal of Psychiatry 1548 at 1548.

³⁷⁹ At 1551.

³⁸⁰ At 1551. Russ Scott similarly believed that fluctuations in cortisol levels and reproductive hormones after delivering a child may mediate brain changes, causing mood instability. See Scott, above n 33, at 1016.

³⁸¹ Spinelli, above n 378, at 1551.

³⁸² At 1551.

placenta (the source of many pregnancy hormones) is lost.³⁸³ Some studies have proposed that estradiol (an oestrogen steroid hormone) contributes to the pathophysiology of postpartum illnesses and could be therapeutic in treating postpartum affective states.³⁸⁴ Ahokas’ study supported this hypothesis using 10 mothers with puerperal psychosis who had baseline oestrogen levels consistent with ‘gonadal failure’.³⁸⁵ In a different study, the relapse rate of psychiatric symptoms in women with histories of puerperal psychosis and postpartum depression reduced significantly when treated with estradiol.³⁸⁶

A recent study provided support for the role of reproductive hormones in the development of postpartum depression.³⁸⁷ The study induced a hypogonadal state (where the body produces little/no gonadal hormones) in non-pregnant women by administering leuprolide.³⁸⁸ The researchers then added back doses of progesterone and estradiol for 8 weeks.³⁸⁹ These steroids were then withdrawn to simulate childbirth.³⁹⁰ Five of the eight women with histories of postpartum depression developed mood symptoms.³⁹¹ Conversely, women without this history did not develop mood symptoms.³⁹²

The Law Commission of England and Wales also used neurohormonal arguments to support the lactation theory.³⁹³ A study by Dr Marks suggested that lactation can increase some women’s sensitivity to dopamine, which could trigger psychosis.³⁹⁴

³⁸³ Spinelli, above n 378, at 1551.

³⁸⁴ At 1551.

³⁸⁵ At 1551; and A Ahokas, M Aito and Rimon R “Positive effect of estradiol in post-partum psychosis: a pilot

study” (2000) 61 Journal of Clinical Psychiatry 166.

³⁸⁶ At 1551; and DA Sichel, LS Cohen, LM Robertson, A Ruttenberg and JF Rosenbaum “Prophylactic estrogen in recurrent postpartum affective disorder” (1996) 38 Biological Psychiatry 814.

³⁸⁷ At 1551; and M Bloch, PJ Schmidt, M Danaceau, J Murphy, L Nieman and D R Rubinow “Effects of gonadal steroids in women with a history of postpartum depression” (2000) 157 American Journal of Psychiatry 924.

³⁸⁸ At 1552; and Bloch, Schmidt, Danaceau, Murphy, Neiman and Rubinow, above n 387.

³⁸⁹ At 1552; and Bloch, Schmidt, Danaceau, Murphy, Neiman and Rubinow, above n 387. These doses were higher than what is normally found in the body.

³⁹⁰ At 1552; and and Bloch, Schmidt, Danaceau, Murphy, Neiman and Rubinow, above n 387.

³⁹¹ At 1552; and Bloch, Schmidt, Danaceau, Murphy, Neiman and Rubinow, above n 387.

³⁹² At 1552; and and Bloch, Schmidt, Danaceau, Murphy, Neiman and Rubinow, above n 387. Spinelli concluded that there was sufficient clinical research illustrating the role of neurophysiological mechanisms in the aetiology of childbirth-related mental illnesses to reconsider introducing infanticide law in America.

³⁹³ Law Commission of England and Wales, above n 6, at [8.26].

³⁹⁴ Law Commission of England and Wales, above n 6, at [8.26]. The Commission acknowledged that this evidence was not conclusive but recommended retaining references to lactation.

3. Evidence relating to filicide-suicide

Maternal suicide is the leading cause of death among women within a year of giving birth.³⁹⁵ Cases of maternal filicide-suicide support the argument that women can suffer from mental disturbances during the postpartum period, and these women that go on to kill their child are undoubtedly mentally ill. Approximately 5% of young mothers who commit suicide kill their child before doing so.³⁹⁶ One study of filicide-suicide found that in cases where a mother killed one infant, 16% of the mothers committed suicide after.³⁹⁷ Furthermore, a study consisting of 57 filicidal women admitted to a New York psychiatric hospital stated that 65% of the women who killed a child over one years old were severely depressed and had a high rate of attempted suicide after the killing.³⁹⁸

4. Evidence of the unique nature of puerperal psychosis

In 2020, Naviaux, Janne and Gourdin undertook a literature search based on electronic bibliographic databases to investigate recent data on child murder and infanticide.³⁹⁹ This study provided evidence to negate puerperal psychosis being indistinguishable from other types of psychosis that are not in the postpartum period.⁴⁰⁰ Puerperal psychosis has extremely specific clinical and biological parameters that are not present in non-postpartum psychosis such as dysregulation of the immune system and neurohormonal reactors.⁴⁰¹

³⁹⁵ Scott, above n 33, at 1014; and M Oates “Suicide: The Leading Cause of Maternal Death” (2003) 183 British

Journal of Psychiatry 279.

³⁹⁶ At 1026; and L Appleby “Suicidal Behaviour in Childbearing Women” (1996) 8 International Review of

Psychiatry 107.

³⁹⁷ At 1026; and JC Batt “Homicidal Incidence in the Depressive Psychoses” (1948) 94 Journal of Mental Science

782.

³⁹⁸ At 1027; and MK Krischer, Michael H Stone, Kathrin Seveke and Eckhard M Steinmeyer “Motives for Maternal Filicide: Results from a Study with Female Forensic Patients” (2007) 30 International Journal of Law and Psychiatry 191.

³⁹⁹ Anne-Frederique Naviaux, Pascal Janne and Maximilien Gourdin “Psychiatric Considerations on Infanticide: Throwing the Baby out with the Bathwater” (2020) 32(1) Psychiatria Danubina 24 at 24.

⁴⁰⁰ Naviaux, Janne and Gourdin, above n 399.

⁴⁰¹ At 26; and V Bergink, KM Burgerhout, K Weigelt, V Pop, H de Wit and RC Drexage “Immune system dysregulation in first onset postpartum psychosis” (2013) 73 Biological Psychiatry 1000.

C Evidence rejecting the biological relationship

1. Evidence negating the claim that incidence of specific mental illnesses is higher following childbirth (temporal relationship)

In 2007, the Law Reform Commission of Western Australia completed their review of homicide law, including infanticide.⁴⁰² Western Australia’s infanticide provision stipulated that the child killed had to be a natural child of the mothers’ under the age of 12 months.⁴⁰³ The Commission’s final recommendation was that Western Australia’s infanticide provision should be repealed.⁴⁰⁴ In 2008, Western Australia abolished its infanticide provision.⁴⁰⁵ One factor they considered in this review was the biological rationale underlying the provision.⁴⁰⁶ In relation to postpartum depression, the Commission cited studies that demonstrated that the quality and incidence of this illness is no more pronounced following childbirth than in the general population.⁴⁰⁷

2. Evidence that postpartum illnesses cannot be distinguished from other mental illnesses

The Law Reform Commission of Western Australia argued that no official diagnosis of puerperal psychosis exists because it does not have sufficiently unique characteristics to justify a separate diagnosis.⁴⁰⁸ The Commission states that nowadays it is usually recognised that puerperal psychosis is just like any other psychoses, and childbirth is merely a precipitating, but not causal, factor.⁴⁰⁹

⁴⁰² Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5. Western Australia was the last of the four Australian states to introduce an infanticide provision in 1986. See Criminal Code 1902 (Western Australia), s 277 and 281; and Ingram, above n 36.

⁴⁰³ Criminal Code 1902, above n 403 s 277 and 281; and Ingram, above n 36. Additionally, s 277 carried a

maximum penalty of seven years’ imprisonment.

⁴⁰⁴ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 117. ⁴⁰⁵ Scott, above n 33, at 1041; and Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 117.

⁴⁰⁶ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 117.

⁴⁰⁷ At 106; and Maier-Katkin and Ogle, above n 300, at 906.

⁴⁰⁸ At 107; and J Manchester “Beyond Accommodation: Reconstructing the insanity defense to provide an adequate remedy for postpartum psychotic women” (2023) 93 The Journal of Criminal Law and Criminology 713 at 722.

⁴⁰⁹ At 108; and Katherine O’Donovan “The Medicalisation of Infanticide” (1984) Criminal Law Review 259 at 262.

Porter and Gavin reviewed and summarised incidence statistics, judicial and clinical outcomes, and research from over 40 years of work.⁴¹⁰ This review concluded that although postpartum depression may be temporally associated with childbirth, a range of studies have demonstrated that this illness is not specific to postpartum mothers.⁴¹¹ For example, a study by Cox, Murray and Chapman compared 232 women 6 months after childbirth with a matched control group that had not given birth in the year prior.⁴¹² This study found no significant difference in prevalence of depression between the two groups.⁴¹³ Furthermore, Dobson and Sales’ data analyses suggested that postpartum depression does not have different symptomatology or rates of prevalence to depression at other periods in a woman’s lifetime.⁴¹⁴

3. Evidence negating neurohormonal aspects of postpartum illnesses

The Victorian Law Reform Commission concluded that there is minimal evidence suggesting emotional disturbances resulting in a mother killing her child are principally due to hormonal/chemical changes from childbirth.⁴¹⁵ The Commission claimed that social, economic, and other stressors have become recognised as playing as much (and possibly even more) of a role in infanticidal killings.⁴¹⁶

Similarly, Karen Brennan’s work concluded that endocrine research into postpartum mental

illnesses has not been encouraging.⁴¹⁷ Brennan believes the majority of medical opinion supports

⁴¹⁰ Porter and Gavin, above n 321, at 99.

⁴¹¹ At 102.

⁴¹² At 102; and J L Cox, D Murray and G Chapman “A controlled study of the onset, duration and prevalence of postnatal depression” (1993) 163 British Journal of Psychiatry 27.

⁴¹³ At 102; and Cox, Murray and Chapman, above n 412. Research suggests that an episode of clinical depression in women that are predisposed to this kind of mental illness are likely to experience future episodes regardless of their puerperal status.

⁴¹⁴ Dobson and Sales, above n 372, at 1107. Similarly, in 2004, the Victorian Law Reform Commission reviewed their infanticide provision and explained that some experts argue postpartum depression is no different to other forms of depression. See Victorian Law Reform Commission, above n 292, at [6.33].

⁴¹⁵ Victorian Law Reform Commission, above n 292, at [6.37].

⁴¹⁶ Victorian Law Reform Commission, above n 292, at [6.11]; and Ania Wilczynski Child Homicide (Oxford University Press, London, 1997) at 150.

⁴¹⁷ Brennan, above n 333, at 509; and A George and M Sandler “Endocrine and Biochemical Studies in Puerperal Mental Disorders” in R Kumar and I F Brockington (eds) Motherhood and Mental Illness 2: Causes and Consequences (John Wright, London, 1988) 78 at 104.

an aetiology consisting of psychological and social factors including poor spousal support and a prior history of mental illness.⁴¹⁸

Furthermore, Porter and Gavin’s review found there is a limited number of studies investigating hormonal fluctuations in the postpartum period.⁴¹⁹ The studies that have been conducted tend to suggest hormone fluctuations do not have a significant effect on a mother’s mental health.⁴²⁰ A 1994 review found there was no association between cortisol, oestrogen, or progesterone and postpartum psychosis or mood.⁴²¹

Poteyeva and Leigey also found significant differences in the recent economic hardships and abuse histories of infanticidal women, filicidal men and non-infanticidal women.⁴²² Infanticidal women were significantly more likely to identify as victims of sexual or physical abuse as compared to filicidal men.⁴²³ Additionally, economic measures for the month preceding the offence indicated that infanticidal women dealt with greater fiscal struggles than the other two groups: they were significantly more likely to report receiving public assistance and communicated lower monthly mean income.⁴²⁴

D Limitations and Methodological Issues of Research on Childbirth/Lactation and Postpartum Mental Illnesses

Poteyeva and Leigey’s study discussed common limitations and methodological issues of research on childbirth/lactation and postpartum mental illnesses.⁴²⁵ Research looking at maternal filicide is characterised by small, unrepresentative, clinical samples.⁴²⁶ There are few large-scale studies, and

⁴¹⁸ Brennan, above n 333, at 509; George and Sandler, above n 417, at 104.

⁴¹⁹ Porter and Gavin, above n 321, at 102.

⁴²⁰ Porter and Gavin, above n 321, at 102; and K Wisner and Z Stowe “Psychobiology of postpartum mood disorders” (1997) 15 Seminars in Reproductive Medicine 77.

⁴²¹ Porter and Gavin, above n 321, at 102; and Brian Harris “Biological and hormonal aspects of postpartum depressed mood” (1994) 164 British Journal of Psychiatry 288.

⁴²² Poteyeva and Leigey, above n 365, at 12.

⁴²³ At 12. The reported rates of sexual abuse were significantly higher than estimates from the general population. ⁴²⁴ At 12. These results are consistent with the wider corpus of literature arguing that financial pressures play an important role in infanticide cases.

⁴²⁵ At 4.

⁴²⁶ At 1.

these studies often examine a narrow scope of victim, offender and offence characteristics.⁴²⁷ Before Poteyeva and Leigey’s study there were massive gaps in existing research.⁴²⁸ For example, very little was known about childhood experiences infanticidal women had.⁴²⁹ Additionally, there was minimal research comparing maternal filicide to paternal filicide or women committing other homicides.⁴³⁰

This study offers an explanation for why there are inconclusive findings about the psychiatric considerations and mental health histories of infanticidal mothers.⁴³¹ Studies disagree on the prevalence of mental illnesses, distribution of certain psychiatric diagnoses, and their relative role in the offence.⁴³² The varying study designs could be contributing to these inconclusive findings.⁴³³ Studies that include a high proportion of neonaticides in their sample find a lower prevalence of mental disturbances.⁴³⁴ Conversely, studies that include filicide-suicide cases note a higher rate of mental disturbances.⁴³⁵

Another explanation for the contrasting findings relates to the sample populations used in the studies.⁴³⁶ Some studies examined offenders in forensic or psychiatric facilities in place of serving a custodial sentence, or awaiting psychiatric evaluation before trial.⁴³⁷ Studies that use samples from national registers or medical examiners/coroners files are better representative of the general population of filicidal mothers.⁴³⁸ Studies that rely on correctional populations often find lower

⁴²⁷ Poteyeva and Leigey, above n 365, at 1; and Shane Dixon, Jessie L Krienert and Jeffrey Walsh “Filicide: A Gendered Profile of Offender, Victim, and Even Characteristics in a National Sample of Reported Incidents” (2014) 37 Journal of Crime and Justice 339.

⁴²⁸ Poteyeva and Leigey, above n 365, at 2.

⁴²⁹ At 2.

⁴³⁰ At 2.

⁴³¹ At 4.

⁴³² At 4.

⁴³³ At 4.

⁴³⁴ At 4. See Catherine F Lewis and Scott C Bunce “Filicidal Mothers and the Impact of Psychosis on Maternal Filicide” (2003) 31 Journal of the American Academy of Psychiatry & Law 459.

⁴³⁵ Poteyeva and Leigey, above n 365, at 4. This is unsurprising considering mothers that attempt to take their own life after killing their child are clearly suffering from severe mental disturbances.

⁴³⁶ At 4.

⁴³⁷ At 4. See Krischer, Stone, Seveke and Steinmeyer, above n 398; and Marieke Liem and Frans Koenraadt “Filicide: A Comparative Study of Maternal versus Paternal Child Homicide” (2008) 18 Criminal Behavior and Mental Health 166; and Lewis and Bunce, above n 434.

⁴³⁸ At 4. These national registers and/or medical examiners/coroners files inspect every filicide occurring in a certain region over a specific time period. See Peter Sidebotham and Ameeta Retzer “Maternal Filicide in a Cohort of English Serious Case Reviews” (2018) 22(1) Archives of Women’s Mental Health 139; and Suzanne Leveillee,

rates of mental disturbances.⁴³⁹ This is likely due to the inherent selection bias within this type of sample.⁴⁴⁰ Offenders with severe mental disturbances may have been deemed not fit to stand trial, or they may have been adjudicated not guilty by reason of insanity.⁴⁴¹ Furthermore, convicted infanticidal women may be in mental institutions instead of prisons.⁴⁴²

Overall, the science surrounding whether the years following childbirth represent a distinct time when biological and psychological factors interact to cause serious mental illness is conflicting. Research on this topic is often plagued with methodological issues and limitations. It is exceedingly difficult to examine the appropriateness of infanticide law when the assumptions underlying this area have not been conclusively proved or disproved. If the biological relationship were to be definitively disproved, this would challenge the foundational jurisprudence of infanticide law.

Jacques D Marleau and Myriam Dube “Filicide: A Comparison by Sex and Presence or Absence of Self-Destructive Behaviour” (2007) 22 Journal of Family Violence 287.

⁴³⁹ Poteyeva and Leigey, above n 365, at 4. See Susan Crimmins, Sandra Langley, Henry H Brownstein and Barry J Spunt “Convicted Women who have Killed Children: A Self-Psychology Perspective” (1997) 12 Journal of Interpersonal Violence 49; and Michelle Oberman and Cheryl L Meyer When Mothers Kill: Interviews From Prison (New York University Press, New York, 2008).

⁴⁴⁰ Poteyeva and Leigey, above n 365, at 4.

⁴⁴¹ At 4.

⁴⁴² At 4.

CHAPTER IV

A Possible Reform Options

This chapter assesses possible approaches to reforming s 178 and evaluates what approach is best in light of the contradictory scientific research on postpartum illnesses and infanticide. The following reform options are discussed: replacing s 178 with the partial defence of diminished responsibility, abolishing s 178 and replacing the provision with nothing, extending the provision, and retaining s 178 without amendment.

1. Replace the infanticide provision with the partial defence of diminished responsibility

A successful diminished responsibility defence reduces murder to manslaughter by reason of the defendant suffering such abnormality of mental functioning as substantially impaired their mental responsibility.⁴⁴³ The rationale for diminished responsibility is that if total mental incapacity absolves all blame under the insanity defence, serious mental incapacity should reduce culpability.⁴⁴⁴ The partial defence generally includes transient disordered states and failure to resist impulses (where the ability to resist is significantly less than that of a ‘regular’ person).⁴⁴⁵ Diminished responsibility provisions generally interpret ‘abnormality of the mind’ broadly as to include conditions like epilepsy, chronic anxiety, endogenous and reactive depression, post- traumatic stress disorder, hypoglycaemia and personality disorders.⁴⁴⁶

Diminished responsibility was considered by the New Zealand Law Commission in two separate reports published in 2001⁴⁴⁷ and 2007⁴⁴⁸. In the 2001 report the Commission considered criminal

⁴⁴³ Simester and Brookbanks, above n 121, at 591.

⁴⁴⁴ Law Commission Battered Defendants of Victims of Domestic Violence Who Offend (NZLC PP41, 2000) at [109].

⁴⁴⁵ Morgan Reiner M (ed) Oxford Handbook of Criminology (Oxford: University Press, 1994) at 1139.

⁴⁴⁶ Law Commission Battered Defendants of Victims of Domestic Violence Who Offend, above n 444, at [114]; and NSW Law Reform Commission Provocation, Diminished Responsibility and Infanticide: DP 31 (NSWLRC DP 31, 1993) at [4.11].

⁴⁴⁷ Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001).

⁴⁴⁸ Law Commission The Partial Defence of Provocation, above n 179.

defences in the context of battered defendants.⁴⁴⁹ The Commission did not recommend introducing diminished responsibility for multiple reasons including difficulties defining the concept of diminished responsibility.⁴⁵⁰ Circumstances leading to diminished responsibility were said to be more appropriately considered at sentencing.⁴⁵¹ In the 2007 report the Commission considered how diminished responsibility related to the defence of provocation.⁴⁵² The Commission reaffirmed that diminished responsibility should not be introduced.⁴⁵³

The main strength of enacting a diminished responsibility defence to replace the infanticide provision is that diminished responsibility is significantly broader.⁴⁵⁴ Diminished responsibility is not restricted to a specific group of victims or offenders, or to a specific type of mental disturbance.⁴⁵⁵ Consequently, diminished responsibility would be available to a much wider range of offenders.⁴⁵⁶ In my view, the broadness of diminished responsibility is only an advantage if the biological relationship between childbirth/lactation and postpartum mental illnesses is disproved. If this relationship is shown to be non-existent, diminished responsibility replacing infanticide would resolve issues of alleged gender discrimination and arbitrary age limits in infanticide law.

Diminished responsibility also allows killers with less culpability to evade the stigma of being labelled a ‘murderer’ and infuses community standards, by way of a jury, into decisions surrounding culpability/blameworthiness.⁴⁵⁷ However, diminished responsibility often avoids the need for a trial because the prosecution can accept the plea of guilty to manslaughter which drops the murder charge.⁴⁵⁸ Avoiding a trial deprives the jury of their role and prevents the victim’s family from having their day in court.⁴⁵⁹ Diminished responsibility has also been praised for

⁴⁴⁹ Law Commission Some Criminal Defences with Particular Reference to Battered Defendants, above n 447, at [121].

⁴⁵⁰ At [137].

⁴⁵¹ At [137].

⁴⁵² Law Commission The Partial Defence of Provocation, above n 179, at [12].

⁴⁵³ At [12].

⁴⁵⁴ NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide, above n 325, at [3.23].

⁴⁵⁵ At [3.23].

⁴⁵⁶ At [3.23].

⁴⁵⁷ Law Commission Some Criminal Defences with Particular Reference to Battered Defendants, above n 447, at [126].

⁴⁵⁸ John Dawson “Diminished responsibility: the difference it makes” (2003) 11(1) J Law Med 103 at 106.

⁴⁵⁹ At 106.

representing sanity, and as a corollary, responsibility, on a continuum.⁴⁶⁰ The insanity defence is applied categorically; a person is deemed to be sane or insane. Diminished responsibility acknowledges the middle ground between someone being completely responsible and culpable or not responsible and blameless.⁴⁶¹ Additionally, diminished responsibility relieves pressure off self- defence, insanity and infanticide by allowing these defences to be applied in a purer and more principled way.⁴⁶² Enacting diminished responsibility may prevent defences from being stretched to accommodate hard cases, resulting in a more balanced set of defences to manslaughter/murder.⁴⁶³

The largest criticism of diminished responsibility was outlined in the New Zealand Law Commission’s 2001 report.⁴⁶⁴ Namely, all diminished responsibility provisions from jurisdictions examined by the Commission were unclear, complex and challenging to apply in a uniform manner.⁴⁶⁵ Additionally, the outcome of diminished responsibility defences in England have been said to depend on which psychiatrists are approached because the view amongst psychiatrists on what abnormality of mental functioning should meet the defence’s threshold varies significantly.⁴⁶⁶ The vague elements of the defence mean psychiatrists interpret the requirements differently resulting in unpredictable and inconsistent applications of the law.⁴⁶⁷ Although aspects of the mind/‘mental functioning’ concepts are within psychiatrists expertise, the legal concept of ‘mental responsibility’ requiring moral judgements is not.⁴⁶⁸ Nonetheless, medical experts routinely offer their opinions on this legal/moral concept.⁴⁶⁹

⁴⁶⁰ Kitaj Woodward “In Defence of Diminished Responsibility: Considering Diminished Responsibility in the New Zealand Context” [2009] AukULawRw 7; (2009) 15 Auckland U L Rev 169 at 180.

⁴⁶¹ At 190.

⁴⁶² Dawson, above n 459, at 106.

⁴⁶³ At 106.

⁴⁶⁴ Law Commission Some Criminal Defences with Particular Reference to Battered Defendants, above n 447, at [132].

⁴⁶⁵ At [132]. Professor Ronnie Mackay criticised England’s diminished responsibility provision for operating in a “pragmatic and unprincipled manner” and being “riddled with discrepancies and conceptual confusion.” See R D Mackay “Diminished Responsibility and Mentally Disordered Killers” in Andrew Ashworth and Barry Mitchell (eds) Rethinking English Homicide Law (Oxford University Press, Oxford, 2001) at 60.

⁴⁶⁶ Dawson, above n 459, at 107.

⁴⁶⁷ Law Commission Battered Defendants Victims of Domestic Violence Who Offend, above n 444, at [132]; and E

Griew “The Future of Diminished Responsibility” (1988) 75 Crim LR 79.

⁴⁶⁸ Woodward, above n 460, at 175.

⁴⁶⁹ Law Commission Battered Defendants Victims of Domestic Violence Who Offend, above n 444, at [116]; and Susanne Dell Murder into Manslaughter (Oxford University Press, Oxford, 1984) at 33.

Additionally, it would be challenging to construct a diminished responsibility provision precise enough to cover the broad range of deserving cases without opening the floodgates to cases that should be excluded.⁴⁷⁰ Submitters to the Law Commission’s 2001 report feared that diminished responsibility would be available to ‘undeserving accused’.⁴⁷¹

There have also been concerns about whether diminished responsibility would be a useful alternative to the infanticide defence. Some critics argue diminished responsibility is not wide enough to encompass all infanticide cases.⁴⁷² d’Orban studied the disposition of a group of women convicted of infanticide and found no support for the idea that diminished responsibility would safely include infanticide cases covered by the Infanticide Act 1938.⁴⁷³

Although diminished responsibility does not always require a permanent or severe psychiatric disorder, it requires a causal connection between the defendant’s mental impairment and the killing.⁴⁷⁴ The defendant’s mental impairment must have substantially impaired their responsibility for their actions.⁴⁷⁵ As aforementioned, infanticide does not require this causal connection and instead relies on a temporal connection.⁴⁷⁶ The etiology of postpartum illnesses, and therefore their causal connection to infanticidal killings, remains unclear. Until the status of this causal connection has been confirmed it would seem hasty and dangerous to subsume infanticide into diminished responsibility when there is a risk of lots of infanticide cases being excluded.

⁴⁷⁰ Law Commission Some Criminal Defences with Particular Reference to Battered Defendants, above n 447, at [133].

⁴⁷¹ At [133].

⁴⁷² NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide, above n 325, at [3.21]. See Criminal Law Revision Committee 14th Report: Offences Against the Person (Cmnd 7844, 1980) at [102]-[103]; and P T d’Orban “Women Who Kill Their Children” (1979) 134 British Journal of Psychiatry 560 at 570; and R D Mackay “The Consequences of Killing Very Young Children” (1993) Criminal Law Review 21 at 29. ⁴⁷³ d’Orban, above n 472, at 570.

⁴⁷⁴ NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide, above n 325, at [3.25].

⁴⁷⁵ At [3.25].

⁴⁷⁶ At [3.25].

Realistically speaking, diminished responsibility is not likely to be enacted soon given the ‘tough on crime’ narrative present in our political climate and the Law Commission’s opposition to the defence.⁴⁷⁷

There are diminished responsibility provisions in England,⁴⁷⁸ New South Wales,⁴⁷⁹ the Australian Capital Territory,⁴⁸⁰ Queensland,⁴⁸¹ the Northern Territory⁴⁸² and some American jurisdictions. However, England and Australia have reconsidered the status of diminished responsibility in their legal system. Interestingly, different conclusions have been drawn about whether diminished responsibility should be retained/introduced. In 2007, the Law Reform Commission of Western Australia recommended against the introduction of diminished responsibility because their sentencing process is flexible enough to assess the accused’s culpability.⁴⁸³ In 1997, the New South Wales Law Reform Commission considered that diminished responsibility was sufficient to cover all deserving infanticide cases coming within their infanticide provision.⁴⁸⁴ In 2013, the New South Wales Law Reform Commission acknowledged the deficiencies of their substantial impairment defence (previously called diminished responsibility) but recommended the provision be retained with amendment.⁴⁸⁵ In 2006, the Law Commission of England and Wales examined the possibility of merging infanticide with diminished responsibility.⁴⁸⁶ Consultees were split between those who preferred to retain the separate infanticide provision and those who advocated for infanticide to be merged with diminished responsibility.⁴⁸⁷ The Commission ultimately recommended the infanticide provision be retained without amendment.⁴⁸⁸

⁴⁷⁷ Woodward, above n 460, at 194. See Roberts "Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002" (2003) 3 ANZJ Crim 249 at 251-253.

⁴⁷⁸ Homicide Act 1957 (UK), s 2.

⁴⁷⁹ Crimes Act 1900, above n 279, s 23A.

⁴⁸⁰ Crimes Act 1900 (Australian Capital Territory), s 14.

⁴⁸¹ Criminal Code Act 1899 (Queensland), s 304A.

⁴⁸² Criminal Code Act 1983 (Northern Territory), s 159.

⁴⁸³ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 259. ⁴⁸⁴ NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide, above n 325, at [3.18].

⁴⁸⁵ NSW Law Reform Commission People with cognitive and mental health impairments in the criminal justice system, above n 329, at [4.65].

⁴⁸⁶ Law Commission of England and Wales, above n 6, at [8.35]. ⁴⁸⁷ Law Commission of England and Wales, above n 6, at [8.18]. ⁴⁸⁸ At [8.3].

2. Abolish infanticide and replace the provision with nothing

If Aotearoa’s infanticide provision were to be abolished infanticidal mothers would have to rely on the insanity defence or judicial sentencing discretion to show them mercy. Academics who argue for infanticide law to be repealed, such as Velma Dobson and Bruce Sales, tend to support their recommendation by asserting that there is no biological relationship between infanticide and postpartum mental illnesses.⁴⁸⁹

The Law Reform Commission of Western Australia believed there was no specific reason to retain their infanticide provision when the insanity defence is available to relieve accused suffering from a relevant mental impairment from criminal responsibility.⁴⁹⁰ Additionally, the Commission reviewed cases of mothers killing their children and found that “in many of the cases there was sufficient psychiatric evidence for an accused to raise the defence of insanity”.⁴⁹¹ Aotearoa’s insanity defence is contained in s 23 of the Crimes Act 1961.⁴⁹² One difficulty with relying on the insanity defence to protect infanticidal mothers is that insanity has a high threshold of requiring proof of ‘natural imbecility’ or ‘disease of the mind’.⁴⁹³ Commentators criticise Aotearoa’s insanity defence for reflecting a ‘nineteenth century view of mental illness’ in which lots of serious mental illnesses/disorders do not reach the high threshold.⁴⁹⁴ Like in Western Australia, it is likely that puerperal psychosis would qualify for the insanity defence, however, postpartum depression might not meet this high threshold.⁴⁹⁵

A common justification for abolishing infanticide provisions or arguing against the introduction of diminished responsibility is that partial defences should be dealt with as sentencing

⁴⁸⁹ Dobson and Sales, above n 372, at 1107.

⁴⁹⁰ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 117.

⁴⁹¹ At 115.

⁴⁹² Section 23.

⁴⁹³ Andrew Simester and Warren Brookbanks A to Z of New Zealand Law (online ed, Thomson Reuters) at [20.10.3.1].

⁴⁹⁴ Fran Wright “Does New Zealand Need a Diminished Responsibility Defence?” (1998) 2 Yearbook Zealand Jurisprudence 109 at 115. The former Minister of Justice, Honourable Jim McLay, acknowledged that a serious problem with the defence of insanity is that it has not kept up with developments in medical and psychiatric knowledge. See Woodward, above n 460, at 188.

⁴⁹⁵ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 117.

considerations.⁴⁹⁶ Aotearoa’s approach to sentencing underwent significant reform at the hands of the Sentencing Act 2002.⁴⁹⁷ However, the Sentencing Act 2002 has been subject to significant criticism.⁴⁹⁸ Critics argue the Act provides minimal guidance for the crucial question of the purpose of sentencing.⁴⁹⁹ Section 7(1) lists eight purposes a judge can draw on when deciding a sentence.⁵⁰⁰ Section 7(2) clarifies that none of the listed purposes should be attributed greater weight than others.⁵⁰¹ Some people argue that fewer purposes should have been listed to promote clarity, or alternatively, the sentencing goals should have been presented in a hierarchy.⁵⁰² Section 7(1) allows judges to ‘pick and mix’ purposes from the list in accordance with their individual preferences.⁵⁰³ Consequently the Act does not promote consistency among sentencing decisions.⁵⁰⁴ Kitaj Woodward believes that Aotearoa inadvertently assumed a “harsh and punitive approach towards sentencing mentally disordered offenders by failing to provide for them adequately in its sentencing scheme.”⁵⁰⁵ Consideration of mental health is only referred to in the Act in section 9(2)(e). Section 9(2)(e) declares that if the offender “has, or had at the time the offence was committed, diminished intellectual capacity or understanding”, that is a mitigating factor courts must take into account during sentencing.⁵⁰⁶ Woodward believes this mitigating factor does not encompass diminished responsibility/culpability as a result of mental disorders.⁵⁰⁷ Therefore, the judiciary can choose not to consider diminished responsibility/culpability in sentencing.⁵⁰⁸

There is no longer mandatory life sentences for murder in Aotearoa.⁵⁰⁹ Section 102 of the Sentencing Act 2002 set out a presumption in favour of life sentences for murder “unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be

⁴⁹⁶ Woodward, above n 460, at 185.

⁴⁹⁷ Sentencing Act 2002.

⁴⁹⁸ Julian V Roberts “Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002” (2003) 36(3)

The Australian and New Zealand Journal of Criminology 249 at 254.

⁴⁹⁹ Roberts, above n 498, at 267.

⁵⁰⁰ Sentencing Act, above n 497, s 7(1). Examples of listed purposes include ‘to provide for the interests of the victim of the offence’ and ‘to assist in the offender’s rehabilitation and reintegration’.

⁵⁰¹ Section 7(2).

⁵⁰² Roberts, above n 498, at 256.

⁵⁰³ At 256.

⁵⁰⁴ At 267.

⁵⁰⁵ Woodward, above n 460, at 197; and Warren Brookbanks “The Sentencing and Disposition of Mentally Disordered Offenders” in Warren Brookbanks (ed) Psychiatry and the Law (Brookers Ltd, Wellington, 2007) at 199. ⁵⁰⁶ Woodward, above n 460, at 197; and s 9(2)(e).

⁵⁰⁷ At 197.

⁵⁰⁸ At 197.

⁵⁰⁹ Dawson, above n 459, at 108.

manifestly unjust.”⁵¹⁰ Critics often argue that partial defences like infanticide and diminished responsibility are unnecessary when the death penalty and mandatory life sentence have been repealed.⁵¹¹ The Court of Appeal in R v Van Hemert stated that a “compelling case” would need to be presented for the accused to be considered for a sentence less than life imprisonment in murder cases.⁵¹² Exceptions to the presumption are extremely rare because the threshold of ‘manifest injustice’ is notably high.⁵¹³ Since the presumption was introduced in 2002, only a handful of cases have displaced the presumption.⁵¹⁴ These cases can be split into three categories: mercy killings, victims of abuse that kill their abuser, and cases where the defendant had a minimal role in the killing.⁵¹⁵ If s 178 were to be abolished, the only infanticidal killings that have a chance of displacing this presumption would be altruistic infanticides. Altruistic infanticides are only a portion of infanticidal killings currently protected by our infanticide provision. Therefore, without s 178 some mothers would be labelled as ‘murderers’ rather than the gentler label of infanticidal.

In 1997, the NSW Law Reform Commission recommended that infanticide be abolished, however, this recommendation was conditional on there being a diminished responsibility defence.⁵¹⁶ Their main justification for abolishing infanticide was that the offence is very rarely charged.⁵¹⁷ The Law Reform Commission of Western Australia also recommended infanticide be abolished and supported this recommendation by arguing that extreme infanticide cases will be eligible for the insanity defence and “there is sufficient room within [the Commission’s] recommended sentencing and defences framework to appropriately show mercy” to infanticidal mothers.⁵¹⁸ This may be the

⁵¹⁰ Section 102.

⁵¹¹ Dawson, above n 459, at 108; and Woodward, above n 460, at 188; and R D Mackay “Diminished Responsibility- Some Observations Arising from Three Case Studies” (1986) 26(1) Medicine, Science and the Law 60 at 63.

⁵¹² R v Van Hemert [2023] NZSC 116 at [44]; and Professor G Hall Hall’s on Sentencing (online looseleaf ed, LexisAdvance) at [SA102.1].

⁵¹³ Hall, above n 512, at [SA102.1].

⁵¹⁴ Tim Conder “Manifestly unjust” (2017) NZLJ 177.

⁵¹⁵ Conder, above n 514.

⁵¹⁶ NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide, above n 325, at [3.13].

⁵¹⁷ At [3.7]. For the period 1990 to 1996, only two convictions for infanticide were recorded. Similarly, the Law Reform Commission of Western Australia supported their recommendation of abolishing infanticide by highlighting that the provisions disuse. Their provision had existed for 20 years yet there have been no indictments for infanticide. See Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 115.

⁵¹⁸ Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report, above n 5, at 117. The Commission also justified its recommendation on the grounds of gender bias, the discrediting of the biological link between childbirth and mental impairment.

case for Western Australia’s sentencing framework and insanity defence, however, I do not believe Aotearoa’s counterparts would be as accommodating.

Overall, it appears that abolishing s 178 and hoping the insanity defence or discretions of the Sentencing Act 2002 would offer compassionate outcomes to infanticidal mothers would be foolish. Such extreme reform is particularly rash given the inconsistent science surrounding infanticide and postpartum illnesses.

3. Extend the infanticide provision

Another reform option mooted by other jurisdictions is extending infanticide provisions to encompass ‘circumstances consequent upon birth’. This expansion would recognise the various social and economic stressors mothers are confronted with after birth. It appears that non- biological factors are already taken into account by the judiciary in infanticide cases. In R v P, the High Court seemingly recognised our provision as operating to protect circumstances that may confront a woman following childbirth which may be “a mixture of social, economic, mental and physiological stresses.”⁵¹⁹

In 1980, the English Criminal Law Revision Committee (CLRC) reviewed their infanticide provision with input from practicing lawyers, women’s groups, and police.⁵²⁰ The CLRC concluded that if the mandatory life sentence for murder was not repealed, infanticide should be extended to encompass ‘circumstances consequent upon birth’.⁵²¹ The CLRC felt this extension was valuable because it would take into account non-biological stressors.⁵²² This recommendation was not implemented.

⁵¹⁹ R v P, above n 143, at 118.

⁵²⁰ Criminal Law Revision Committee, above n 472, at 82.

⁵²¹ At 82.

⁵²² At 82. Specific stressors they named included incapacity to cope, failure to bond with the child, poverty, and social and economic pressures so heavy that they caused a disturbance of balance of the mind.

In the Law Commission of England and Wales’ review of infanticide in 2006, the Commission proposed three options for reform: minimal, moderate and radical.⁵²³ The moderate option would extend the provision to encompass disturbance of the mind arising from circumstances consequent upon birth, and require a causal nexus between the killing and the disturbed mind.⁵²⁴ The Commission felt this extension would provide a more accurate reflection of the existing approach taken by courts.⁵²⁵ However, there was limited support for this extension.⁵²⁶ The Commission ultimately recommended the minimal option for reform: removing references to lactation and raising the victim age limit to two years.⁵²⁷

In 2004, the Victorian Law Reform Commission also heard suggestions that the State’s infanticide provision should link the disturbance to ‘circumstances following childbirth’ instead of the physical act of childbirth.⁵²⁸ However, the Commission instead opted to extend the provision to include ‘any disorder consequent upon childbirth’ in hopes of better reflecting the ‘complex range of factors which can be related to a mother killing her young child’.⁵²⁹

In 2013, the Law Society of New South Wales cited the Law Commission of England and Wales’ moderate reform proposal in favour of extending the infanticide provision to consider circumstances consequent upon childbirth.⁵³⁰ However, in 2013 the NSW Law Reform Commission preferred an extension to include ‘mental health impairment consequent on or exacerbated by her having given birth to that child.’⁵³¹ The Commission stated that this amendment retains the relationship between childbirth and mental illness that is central to infanticide law

⁵²³ C M V Clarkson and Heather M Keating Clarkson and Keating Criminal Law: Text and Materials (7th ed, Sweet & Maxwell, London, 2010) at 699; and Law Commission of England and Wales, above n 6, at [8.15].

⁵²⁴ Clarkson and Keating, above n 523, at 699; and Law Commission of England and Wales, above n 6, at [8.29].

⁵²⁵ At [8.29].

⁵²⁶ At [8.29].

⁵²⁷ Clarkson and Keating, above n 523, at 699; and Law Commission of England and Wales, above n 6, at [8.15]. This recommendation was never implemented.

⁵²⁸ Victorian Law Reform Commission, above n 292, at [6.35].

⁵²⁹ At [6.37]. The State enacted this amendment, and its current infanticide provision includes this wording. See Crimes Act 1958, above n 287, s 6(1).

⁵³⁰ NSW Law Reform Commission People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, above n 329, at [5.45].

⁵³¹ At [5.52]. The Commission recommended this amendment due to the alleged lack of scientific evidence supporting the biological link between the effects of childbirth and lactation with mental impairment. See Scott, above n 33, at 1036; and NSW Law Reform Commission People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, above n 329, at [5.47].

whilst acknowledging consequences of childbirth beyond the physical act of birth.⁵³² The NSW

legislature did not follow the Commission’s recommendations.⁵³³

If the provision were to be extended to consider these wider factors, it would be hard to argue that fathers should still be excluded from infanticide law. However, it would be imprudent to extend the provision when scientific evidence of the role of biology versus other social and economic factors in infanticide is ambiguous. If a scientific consensus is formed asserting that non-biological factors play a more significant role in infanticide than biological factors, this extension would seem prudent.

4. Retain the infanticide provision without amendment

I believe reform should be delayed until large-scale, methodologically-sound research investigating the biological relationship between postpartum illnesses and infanticide has been undertaken, and a scientific consensus has been formed. The validity of criticisms of infanticide law depends on the outcome of this research. Therefore, it would be rash to repeal one of the few murder defences Aotearoa has left and leave this finite category of perpetrators vulnerable. For example, whether s 178 is discriminatory on the grounds of gender depends on the role of biological and non-biological factors (like social and economic factors) in infanticide.⁵³⁴ Additionally, infanticide provisions will only perpetuate chivalric justice if they unjustly excuse mothers from legal accountability and falsely label them as ‘mad’.⁵³⁵

Our provision is not applied so generously as to circumvent justice. As demonstrated in Chapter II, juries can look past the tragic circumstances and reject the defence when they see fit. The trial of Lauren Dickason and her subsequent murder conviction exemplifies that the mere existence of an infanticide provision does not mean it will be applied leniently. Juries seemingly demand much

⁵³² NSW Law Reform Commission People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, above n 329, at [5.52] and [5.53]. The New South Wales legislature implemented these amendments and the state’s infanticide provision currently contains this liberal wording. See Crimes Act 1900, above n 279, s 22A.

⁵³³ See Scott, above n 33, at 1036; and NSW Law Reform Commission People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, above n 329, at [5.47]. ⁵³⁴ Section 178.

⁵³⁵ Friedman, Cavney and Resnick, above n 12, at 592.

more than the ‘mother’s word’ regarding her mental state to allow s 178 to apply. Aotearoa’s specific legal formulation of infanticide avoids the absurdity of restricting the offence/defence to mothers who kill their most recently born child. In 2004, the Victorian Law Reform Commission recommended that Victoria’s provision be extended to apply to the killing of older children (like in Aotearoa).⁵³⁶ However, this recommendation was not implemented.⁵³⁷ Furthermore, s 178 accommodates Aotearoa’s biculturalism by theoretically protecting the killing of whangai children and better reflects modern social realities where fostering children is more common.⁵³⁸ The 2007 draft report by the New Zealand Law Commission discussed in Chapter II preliminarily recommended that section 178 be retained without amendment.⁵³⁹ Similarly, in the Law Commission of England and Wales’ 2006 report, they recommended their infanticide provision be retained without amendment because it is a “practicable legal solution to a particular set of circumstances”.⁵⁴⁰

In theory, diminished responsibility is a feasible replacement for infanticide. However, diminished responsibility is notoriously hard to define, and the defence has garnered significant criticism in other jurisdictions.⁵⁴¹ The New Zealand Law Commission should complete a report that is solely focused on whether to introduce diminished responsibility and how it would operate in a New Zealand context. Furthermore, the Commission would need to consider whether diminished responsibility would be a useful alternative defence for mothers who kill their children. In the absence of such a report, I believe section 178 should be retained without amendment.⁵⁴²

⁵³⁶ Victorian Law Reform Commission, above n 292, at [6.41].

⁵³⁷ Law Reform Commission of Western Australia Review of the Law of Homicide An Issues Paper, above n 5, at 4.

⁵³⁸ Section 178(1); and Simester and Brookbanks, above n 121, at 591; and Brookbanks, above n 137, at 99.

⁵³⁹ Law Commission Partial Defences: Provocation and Infanticide, above n 181, at 95. It is important to note that any opinions, conclusions, or recommendations contained in this draft were preliminary and cannot be interpreted as the Commission’s final views.

⁵⁴⁰ Law Commission of England and Wales, above n 6, at [8.3].

⁵⁴¹ Law Commission Some Criminal Defences with Particular Reference to Battered Defendants, above n 447, at [132].

⁵⁴² Section 178.

Conclusion

Aotearoa’s approach to infanticide being vastly different from other Commonwealth jurisdictions is mystifying at first glance. Whether our unique approach proves to be antiquated or ahead of its time remains to be seen. Infanticide law is an area of great contention. However, the validity of criticisms of infanticide law depends on the outcome of research that is yet to be conducted. The corpus of literature on the aetiology of infanticide is scarce and inconsistent. Furthermore, the minimal research that is available is plagued with methodological issues.

Drastic steps to reform s 178 should be avoided until a scientific consensus regarding the role of postpartum illnesses in infanticidal killings is formed.⁵⁴³ Consequently, I recommend that s 178 should be retained without amendment.⁵⁴⁴ Significant reporting and research will also need to be conducted regarding the relationship between social and economic stressors and infanticide. I hope that the attention garnered by the Lauren Dickason trial will prompt further scientific research on infanticide in the New Zealand context. Once the role of postpartum illnesses and other stressors in infanticide has been clarified, an informed approach to reform can be taken and policy aiming to reduce infanticidal killings can be developed.

Retaining s 178 whilst we await this scientific consensus is sensible because our provision is not applied so generously as to circumvent justice.⁵⁴⁵ Infanticidal killings are tragedies that are hard to comprehend. However, the discomfort elicited by a mother killing her child should not eclipse the need for scientific advancement in the aetiology of infanticide.

⁵⁴³ Crimes Act 1961, above n 1, s 178.

⁵⁴⁴ Section 178.

⁵⁴⁵ Section 178.

Appendices

Appendix A

⁵⁴⁶ R v CRS, above n 253, at [1].

⁵⁴⁷ R v T, above n 253, at [1].

⁵⁴⁸ R v JRH, above n 210, at [8].

⁵⁴⁹ R v A, above n 253.

⁵⁵⁰ R v Golovale-Siaosi, above n 222, at [3].

⁵⁵¹ R v Henry, above n 253, at [1].

⁵⁵² R v H, above n 253, at [3].

⁵⁵³ R v Metuatini, above n 232, at [1].

⁵⁵⁴ R v Moke, above n 253, at 3.

⁵⁵⁵ R v Stefano, above n 253, at 2.

⁵⁵⁶ R v S, above n 253, at 1.

⁵⁵⁷ R v Tokona, above n 253, at [2].

⁵⁵⁸ R v M, above n 253. The original sentencing decision is not available, and the case summary does not specify the paragraph that the ‘psychiatrists’ were discussed in. Linxplus (NZ) R v M HC Christchurch T 65-89, 4 April 1990 (online looseleaf ed, LexisNexis).

⁵⁵⁹ R v CRS, above n 253, at [4].

⁵⁶⁰ R v T, above n 253, at [3].

⁵⁶¹ R v JRH, above n 210, at [8].

⁵⁶² R v A, above n 253, at [1].

⁵⁶³ R v Golovale-Siaosi, above n 222, at [4].

⁵⁶⁴ R v Henry, above n 253, at 1.

⁵⁶⁵ R v H, above n 253, at [2].

⁵⁶⁶ R v Metuatini, above n 232, at [3].

⁵⁶⁷ R v Moke, above n 253, at 2.

⁵⁶⁸ R v Stefano, above n 253, at 2.

⁵⁶⁹ R v S, above n 253.

⁵⁷⁰ R v Tokona, above n 253.

⁵⁷¹ R v M, above n 253.

⁵⁷² R v CRS, above n 253, at [5].

⁵⁷³ R v T, above n 253, at [3].

⁵⁷⁴ R v JRH, above n 210, at [4].

⁵⁷⁵ R v A, above n 253.

⁵⁷⁶ R v Golovale-Siaosi, above n 222, at 1.

⁵⁷⁷ R v Henry, above n 253, at [2].

⁵⁷⁸ R v H, above n 253, at [5].

⁵⁷⁹ R v Metuatini, above n 232, at 2.

⁵⁸⁰ R v Moke, above n 253, at 1.

⁵⁸¹ R v Stefano, above n 253.

⁵⁸² R v S, above n 253, at 1.

⁵⁸³ R v Tokona, above n 253, at 1.

⁵⁸⁴ R v M, above n 253; and Linxplus (NZ), above n 558.

⁵⁸⁵ R v CRS, above n 253, at [9].

⁵⁸⁶ R v T, above n 253, at [14].

⁵⁸⁷ R v JRH, above n 210, at [16].

⁵⁸⁸ R v A, above n 253.

⁵⁸⁹ R v Golovale-Siaosi, above n 222, at [2].

⁵⁹⁰ R v Henry, above n 253, at 3.

⁵⁹¹ R v H, above n 253, at [3].

⁵⁹² R v Metuatini, above n 232, at [1].

⁵⁹³ R v Moke, above n 253, at 3.

⁵⁹⁴ R v Stefano, above n 253, at 2.

⁵⁹⁵ R v S, above n 253, at 2.

⁵⁹⁶ R v Tokona, above n 253, at [2].

⁵⁹⁷ R v M, above n 253. The original sentencing decision is not available, and the case summary does not specify the paragraph that the diagnosis was discussed in. See Linxplus (NZ), above n 558.

⁵⁹⁸ R v CRS, above n 253, at [26].

⁵⁹⁹ R v T, above n 253, at [17].

⁶⁰⁰ R v JRH, above n 210, at [23].

⁶⁰¹ R v A, above n 253, at 3.

⁶⁰² R v Golovale-Siaosi, above n 222, at [10] and [11].

⁶⁰³ R v Henry, above n 253, at 5.

⁶⁰⁴ R v H, above n 253, at [7].

⁶⁰⁵ R v Metuatini, above n 232, at [21].

⁶⁰⁶ R v Moke, above n 253, at 5.

⁶⁰⁷ R v Stefano, above n 253, at 3.

⁶⁰⁸ R v S, above n 253, at 2.

⁶⁰⁹ R v Tokona, above n 253, at [4].

⁶¹⁰ R v M, above n 253. The original sentencing decision is not available, and the case summary does not specify the paragraph number that contained the final sentence. See Linxplus (NZ), above n 558.

⁶¹¹ R v T, above n 253, at [3].

⁶¹² R v Henry, above n 253, at 1.

⁶¹³ R v Metuatini, above n 232, at [3].

⁶¹⁴ R v Moke, above n 253, at 2.

⁶¹⁵ R v Henry, above n 253, at 1.

⁶¹⁶ R v Metuatini, above n 232, at [11].

⁶¹⁷ R v Moke, above n 253, at 2.

⁶¹⁸ The following four cases did not state what the mother was initially charged with: R v A, above n 253; R v S, above n 253; R v Tokona, above n 253; and R v M, above n 253.

⁶¹⁹ R v CRS, above n 253, at [1].

⁶²⁰ R v T, above n 253, at [1].

⁶²¹ R v JRH, above n 210, at [2].

⁶²² R v Golovale-Siaosi, above n 222, at 2.

⁶²³ R v Henry, above n 253, at 1.

⁶²⁴ R v H, above n 253, at [3].

⁶²⁵ R v Metuatini, above n 232, at [1].

⁶²⁶ R v Moke, above n 253, at 2.

⁶²⁷ R v Stefano, above n 253, at 2. ⁶²⁸ R v CRS, above n , at [15]. ⁶²⁹ R v JRH, above n 210, at [19].

⁶³⁰ R v A, above n 253, at 2.

⁶³¹ R v Golovale-Siaosi, above n 222, at [13].

⁶³² R v Metuatini, above n 232, at [16].

⁶³³ R v Moke, above n 253, at 5.

⁶³⁴ R v S, above n 253, at 2.

Appendix B

Section 178(4)-(8) of the Crimes Act 1961 is reproduced below:

(4) If the jury returns a special verdict under subsection (3), the Judge must order that the woman be examined by 2 medical practitioners and the following provisions apply:⁶³⁵

(a) pending the receipt by the Judge of certificates from the medical practitioners, the woman must be detained in a place that the Judge thinks appropriate, and that place must be one of the following:

(i) a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992:

(ii) a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(iii) a prison:

(b) if each of the medical practitioners certifies that the woman is no longer insane and that she is in no need of care and treatment in a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, the Judge must order that the woman be discharged from custody immediately:

(c) unless each of the medical practitioners certifies in accordance with paragraph (b), sections 23 to 29 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 apply, so far as they are applicable, as if the references in those sections to the court were references to the Judge.

(5) If, under subsection (4)(c), the Judge makes an order that the woman be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies.⁶³⁶

(7) Nothing in this section shall affect the power of the jury, upon the trial of any woman for infanticide or for murder or manslaughter, to return a verdict, otherwise than under this section, of acquittal on account of insanity; and where any such verdict is returned

⁶³⁵ Section 178(4).

⁶³⁶ Section 178(5).

the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 shall apply accordingly.⁶³⁷

(8) The fact that by virtue of this section any woman has not been or is not liable to be convicted of murder or manslaughter, whether or not she has been or is liable to be convicted of infanticide, shall not affect the question whether the homicide amounted to murder or manslaughter in the case of any other party to it.⁶³⁸

⁶³⁷ Section 178(7).

⁶³⁸ Section 178(8).

Bibliography

A Cases

1. New Zealand

E v R (2011) 25 CRNZ 411.

R v A HC Wellington S27/28, 4 September 1987.

R v B HC Nelson CRI 2019-009-1908, 4 August 2020.

R v CRS [2012] NZHC 709.

R v E HC Auckland CRI-2009-090-12059, 28 September 2010.

R v G (1984) 1 CRNZ 275 (HC).

R v Golovale-Siaosi HC Dunedin CRI-2006-012-2533, 11 December 2007.

R v Gordon (2004) CA726/04.

R v H HC AK TO23428, 19 March 2004.

R v Henry CA 187-78, 21 March 1979.

R v JRH HC Wellington CRI-2007-032-2799, 31 July 2009.

R v L HC Invercargill CRI-2009-025-329, 24 November 2009.

R v M [2014] NZHC 778.

R v M HC New Plymouth T5/01, 19 November 2001.

R v M HC Christchurch T 65-89, 4 April 1990.

R v Marshall HC New Plymouth T 5-01, 30 October 2001. R v Metuatini HC Auckland T025795, 18 November 2003. R v Moke HC Wellington T 46-97, 12 September 1997.

R v Myra Paea [2016] NZHC 822.

R v Ngawhika HC Rotorua CRI-2021-63-2590, 15 March 2023.

R v P [1991] NZHC T112/90, [1991] 2 NZLR 116.

R v Paterson HC Wellington T1215/01, 4 December 2001.

R v Pene [2010] NZCA 387.

R v S HC Wellington S 112-94, 11 November 1994.

R v Sharon Ane Harrison-Taylor HC Auckland CRI 2004-092-001510, 12 September 2005.

R v Stefano HC Wellington S 6-91, 8 March 1991.

R v Sutherland [2005] 22 CRNZ 126 (HC).

R v T HC Dunedin CRI 2008-012-005987.

R v Tokona HC Wanganui T 992039, 11 February 2000.

R v Van Hemert [2023] NZSC 116.

R v Wright [2001] NZCA 138; [2001] 3 NZLR 22.

R v X [2016] NZHC 840.

2. Canada

R v Borowiec (2016) SCC 11.

3. England and Wales

R v O’Donoghue (1927) 20 Cr App Rep 132.

B Legislation

1. New Zealand

Crimes Act 1961.

Crimes Amendment Act (No 4) 2011.

Criminal Justice Act 1954. Criminal Justice Act 1985.

Criminal Justice Amendment Act 1969. Criminal Justice Amendment Act (No 2) 1985.

Criminal Procedure (Mentally Impaired Persons) Act 2003. Mental Health (Compulsory Assessment and Treatment) Act 1992. Sentencing Act 2002.

Crimes Bill 1959 (61-1).

Crimes Bill 1960 (61-2).

Crimes Bill 1961 (82-1).

2. Australia

Crimes Act 1900 (Australian Capital Territory). Crimes Act 1990 (NSW).

Crimes Act 1958 (Victoria).

Criminal Code Act 1983 (Northern Territory). Criminal Code Act 1899 (Queensland).

Criminal Code Act 1924 (Tasmania). Criminal Code 1902 (Western Australia).

3. Canada

Criminal Code 1985.

4. Ireland

Infanticide Act 1949.

5. United Kingdom

Act for the Setting of the Poor To Work and for the Avoiding of Idleness 1576.

An Act to Prevent the Destroying and Murthering of Bastard Children (the Stuart Act) (1624). Coroners and Justice Act 2009.

Homicide Act 1957.

Infanticide Act 1922.

Infanticide Act 1938.

The Offences Against the Person Act (Lord Ellenborough’s Act) (1803) (UK).

C Books and Chapters in Books

Michael J Allen Textbook on Criminal Law (13th ed, Oxford University Press, Oxford, 2015). Andrew Ashworth Principles of Criminal Law (5th ed, Oxford University Press, Oxford, 2006). Josephine Billingham Infanticide in Tudor and Stuart England (Amsterdam University Press, Amsterdam, 2019).

Warren Brookbanks “The Sentencing and Disposition of Mentally Disordered Offenders” in

Warren Brookbanks (ed) Psychiatry and the Law (Brookers Ltd, Wellington, 2007).

C M V Clarkson and Heather M Keating Clarkson and Keating Criminal Law: Text and Materials (7th ed, Sweet & Maxwell, London, 2010).

Susanne Dell Murder into Manslaughter (Oxford University Press, Oxford, 1984).

Adams Francis Boyd (ed) Criminal law and practice in New Zealand (2nd ed, Sweet & Maxwell NZ, Wellington, 1971).

Neil Cameron, Kevin Dawkins, Jeremy Finn, Don Mathias, Neville Trendle and Adam Francis Boyd Adams on Criminal Law Offences and Defences (Thomson Reuters, Wellington, 2014). JME Garrow and Gary L Turkington Garrow and Turkington’s Criminal Law (Butterworths, Wellington, 1991).

A George and M Sandler “Endocrine and Biochemical Studies in Puerperal Mental Disorders” in R Kumar and I F Brockington (eds) Motherhood and Mental Illness 2: Causes and Consequences (John Wright, London, 1988) 78 at 104.

Peter Hoffer and NEH Hull Murdering Mothers: Infanticide in England and New England 1558 - 1803 (1st ed, New York University Press, New York, 1981).

Brian Hogan and John Smith Smith and Hogan’s Criminal Law (13th ed, Oxford University Press, New York, 2011).

Peter Laslett, Karla Oosterveen and Richard Michael Smith Bastardy and Its Comparative History (Harvard University Press, 1980).

Margaret Lewis Infanticide and Abortion in Early Modern Germany (1st ed, Routledge, London, 2016).

R D Mackay “Diminished Responsibility and Mentally Disordered Killers” in Andrew Ashworth and Barry Mitchell (eds) Rethinking English Homicide Law (Oxford University Press, Oxford, 2001).

Michelle Oberman and Cheryl L Meyer When Mothers Kill: Interviews From Prison (New York University Press, New York, 2008).

M W Piers Infanticide (New York: Norton, 1978).

Morgan Reiner M (ed) Oxford Handbook of Criminology (Oxford: University Press, 1994).

Andrew Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012).

Julia Tomie Principles of Criminal Law in Aotearoa (LexisNexis NZ Limited, Wellington, 2022).

Nigel Walker “Crime and Insanity in England” (Edinburgh: Edinburgh University Press, 1968). Mary Warren Gendercide: The Implications of Sex Selection (Rowman & Allanheld, New Jersey, 1985).

Ania Wilczynski Child Homicide (Oxford University Press, London, 1997).

D Journal Articles

A Ahokas, M Aito and Rimon R “Positive effect of estradiol in post-partum psychosis: a pilot

study” (2000) 61 Journal of Clinical Psychiatry 166.

L Appleby “Suicidal Behaviour in Childbearing Women” (1996) 8 International Review of

Psychiatry 107.

H Archibald Kaiser “Borowiec: Exploring Infanticide, “a particularly dark corner” and Providing Another Reminder of the Need for Reforming Homicide Sentencing” 65 (2017) Crim LQ 242.

Constance Backhouse “Desperate Women and Compassionate Courts: Infanticide in 19th Century Canada” (1984) 34 U.T.L.J. 447.

JC Batt “Homicidal Incidence in the Depressive Psychoses” (1948) 94 Journal of Mental Science

782.

V Bergink, KM Burgerhout, K Weigelt, V Pop, H de Wit and RC Drexage “Immune system dysregulation in first onset postpartum psychosis” (2013) 73 Biological Psychiatry 1000.

M Bloch, PJ Schmidt, M Danaceau, J Murphy, L Nieman and D R Rubinow “Effects of gonadal steroids in women with a history of postpartum depression” (2000) 157 American Journal of Psychiatry 924.

Karen Brennan “Beyond the Medical Model: A Rationale for Infanticide Legislation” (2007)

58(4) NILQ 505.

Warren Brookbanks “Case Note: Unpacking The Elements Of Infanticide - A Canadian

Approach: R v Borowiec” (2016) NZCLR 92.

Tim Conder “Manifestly unjust” (2017) NZLJ 177.

J L Cox, D Murray and G Chapman “A controlled study of the onset, duration and prevalence of

postnatal depression” (1993) 163 British Journal of Psychiatry 27.

Susan Crimmins, Sandra Langley, Henry H Brownstein and Barry J Spunt “Convicted Women who have Killed Children: A Self-Psychology Perspective” (1997) 12 Journal of Interpersonal Violence 49.

Kevin Dawkins and Margaret Briggs “Criminal Law” (2010) 2010(4) NZ L Rev 761.

John Dawson “Diminished responsibility: the difference it makes” (2003) 11(1) J Law Med 103

at 106.

Peter Dean “Child homicide and Infanticide in New Zealand” (2004) 27(4) Int’l J.L.& Psychiatry

339.

Shane Dixon, Jessie L Krienert and Jeffrey Walsh “Filicide: A Gendered Profile of Offender, Victim, and Even Characteristics in a National Sample of Reported Incidents” (2014) 37 Journal of Crime and Justice 339.

Velma Dobson and Bruce Sales “The Science of Infanticide and Mental Illness” (2000) 6(4)

Psychology Public Policy and Law 1098.

P T d’Orban “Women Who Kill Their Children” (1979) 134 British Journal of Psychiatry 560 at 570.

Susan Friedman, James Cavney and Phillip J. Resnick “Mothers Who Kill: Evolutionary Underpinnings and Infanticide Law” (2012) 30(5) Behav.Sci.& L. 585.

Susan Friedman, Phillip Resnick, and Miriam Rosenthal “Postpartum psychosis: Strategies to protect infant and mother from harm.” 8 Current Psychiatry 40.

Catherine F Lewis and Scott C Bunce “Filicidal Mothers and the Impact of Psychosis on Maternal Filicide” (2003) 31 Journal of the American Academy of Psychiatry & Law 459. BN Gaynes, N Gavin, S Meltzer-Brody, K Lohr, T Swinson, G Gartlehner, S Brody, and W Miller “Perinatal depression: Prevalence, screening accuracy, and screening outcomes: Summary” (2005) AHRQ Evidence Report Summaries.

E Griew “The Future of Diminished Responsibility” (1988) 75 Crim LR 79.

Brian Harris “Biological and hormonal aspects of postpartum depressed mood” (1994) 164

British Journal of Psychiatry 288.

Mark Jackson “Infanticide: Historical perspectives” (1996) New Law Journal 416.

MK Krischer, Michael H Stone, Kathrin Seveke and Eckhard M Steinmeyer “Motives for Maternal Filicide: Results from a Study with Female Forensic Patients” (2007) 30 International Journal of Law and Psychiatry 191.

Rachel L Carmickle “Postpartum Illness and Sentencing: Why the Insanity Defence is Not Enough for Mothers with Postpartum Depression, Anxiety, and Psychosis” (2017) 37(4) J Leg Med 579.

Heather Leigh Stangle “Murderous Madonna: Femininity, Violence, and the Myth of Postpartum Mental Disorder in Cases of Maternal Infanticide and Filicide” (2008) 50 Wm.& Mary L.Rev.

699.

Suzanne Leveillee, Jacques D Marleau and Myriam Dube “Filicide: A Comparison by Sex and Presence or Absence of Self-Destructive Behaviour” (2007) 22 Journal of Family Violence 287. Marieke Liem and Frans Koenraadt “Filicide: A Comparative Study of Maternal versus Paternal Child Homicide” (2008) 18 Criminal Behavior and Mental Health 166.

R D Mackay “Diminished Responsibility- Some Observations Arising from Three Case Studies”

(1986) 26(1) Medicine, Science and the Law 60.

R D Mackay “The Consequences of Killing Very Young Children” (1993) Criminal Law Review

21 at 29.

Daniel Maier-Katkin and Robbin Ogle “A Rationale for Infanticide Laws” (1993) Criminal Law

Review 903.

J Manchester “Beyond Accommodation: Reconstructing the insanity defense to provide an adequate remedy for postpartum psychotic women” (2023) 93 The Journal of Criminal Law and Criminology 713 at 722.

M Marks and R Kumar “Infanticide in England and Wales” (1993) 33 Med Sci Law 329.

M Mendlowicz, G Jean-Louis, M Gekker and M Rapaport “Neonaticide in the city of Rio de Janeiro: forensic and psychological perspectives” (1999) 40 Journal of Forensic Sciences 741. Anne-Frederique Naviaux, Pascal Janne and Maximilien Gourdin “Psychiatric Considerations on Infanticide: Throwing the Baby out with the Bathwater” (2020) 32(1) Psychiatria Danubina 24 at 24.

Erica Newman “Challenges of identity for Māori adoptees” 3(2) Australian Journal of Adoption

1.

Thomas Nutt “Illegitimacy, paternal financial responsibility, and the 1834 Poor Law Commission Report: the myth of the old poor law and the making of the new” (2010) 63(2) The Economic History Review 335.

M Oates “Suicide: The Leading Cause of Maternal Death” (2003) 183 British Journal of

Psychiatry 279.

Katherine O’Donovan “The Medicalisation of Infanticide” (1984) Criminal Law Review 259 at

262.

Karyn Okeroa McRae and Linda Waimarie Nikora “Whangai: remembering, understanding and experiencing” (2006) 1 MAI Review 1.

Judith Osborne “The Crime of Infanticide: Throwing Out the Baby With the Bathwater” (1987) 6

Can.J.Fam.L. 47.

Peter Parkes “Celtic Fosterage: Adoptive Kinship and Clientage in Northwest Europe” (2006)

48(2) Comparative Studies in Society and History 359.

Theresa Porter and Helen Gavin “Infanticide and neonaticide: a review of 40 years of research literature on incidence and causes” (2010) 11(3) Trauma Violence Abuse 99.

Stephen G Post “History, Infanticide and Imperiled Newborns” (1988) 18(4) The Hastings Centre Report 14.

Margarita Poteyeva and Margaret Leigey “An Examination of the Mental Health and Negative Life Events of Women Who Killed Their Children” (2018) 7(9) Social Sciences 1.

Malcolm Potts and Peter Selman “Society and Fertility” (1979) 59(1) Social Forces 321.

PJ Resnick “Murder of the newborn: A Psychiatric review of neonaticide” (1970) 126 American

Journal of Psychiatry 1414.

Roberts "Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002" (2003) 3 ANZJ Crim 249.

R Sauer “Infanticide and Abortion in Nineteenth-Century Britain” (1978) 32(1) Population

Studies 81 at 85.

Russ Scott “Infanticide and Infanticide Statutes in Australia and New Zealand” (2020) 27(4)

JLM 1014.

David Seaborne Davies “Child-Killing in English Law” (1937) 1(3) Modern Law Review 203. DA Sichel, LS Cohen, LM Robertson, A Ruttenberg and JF Rosenbaum “Prophylactic estrogen in recurrent postpartum affective disorder” (1996) 38 Biological Psychiatry 814.

Peter Sidebotham and Ameeta Retzer “Maternal Filicide in a Cohort of English Serious Case Reviews” (2018) 22(1) Archives of Women’s Mental Health 139.

Margaret G Spinelli “Maternal Infanticide Associated With Mental Illness: Prevention and the Promise of Saved Lives” (2004) 161(9) American Journal of Psychiatry 1548.

Josephine Stanton and Alexander Simpson “Filicide: a review” (2002) 25(1) Int’l J.L.&

Psychiatry 1.

Julian V Roberts “Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002”

(2003) 36(3) The Australian and New Zealand Journal of Criminology 249.

K Wisner and Z Stowe “Psychobiology of postpartum mood disorders” (1997) 15 Seminars in

Reproductive Medicine 77.

Kitaj Woodward “In Defence of Diminished Responsibility: Considering Diminished Responsibility in the New Zealand Context” [2009] AukULawRw 7; (2009) 15 Auckland U L Rev 169.

Fran Wright “Does New Zealand Need a Diminished Responsibility Defence?” (1998) 2

Yearbook Zealand Jurisprudence 109.

E Government and Parliamentary Materials

Crimes Consultative Committee Crimes Bill 1989: Report of the Crimes Consultative Committee

(1991).

Criminal Law Revision Committee 14th Report: Offences Against the Person (Cmnd 7844, 1980).

Law Commission Battered Defendants of Victims of Domestic Violence Who Offend (NZLC PP41, 2000).

Law Commission The Partial Defence of Provocation (NZLC R98, 2007).

Law Commission Partial Defences: Provocation and Infanticide (unpublished consultation draft of report NZLC R98, April 2007).

Law Commission Some Criminal Defences with Particular Reference to Battered Defendants

(NZLC R73, 2001).

Law Commission of England and Wales Murder, Manslaughter and Infanticide (LAW COM No 304, 2006).

Law Reform Commission of Western Australia Review of the Law of Homicide An Issues Paper

(Project 97, 2006).

Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report

(Project 97, 2007).

Ministry of Justice Criminal Defences Reform: Necessity and Partial Defences (Provocation and Infanticide) (POL (03) 367, 2003).

Ministry of Justice Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (CP 19/08, 2008).

Minutes of Evidence of Justice Keating before the Capital Punishment Commission (England) Report of the Capital Punishment Commission (1866) 625.

NSW Law Reform Commission Partial Defences to Murder: Provocation and Infanticide (R 83, 1997).

NSW Law Reform Commission People with cognitive and mental health impairments in the criminal justice system (R 138, 2013.

NSW Law Reform Commission Provocation, Diminished Responsibility and Infanticide: DP 31

(NSWLRC DP 31, 1993).

Victorian Law Reform Commission Defences to Homicide Final Report (2004).

F Internet Resources

“Aboriginal People and Adoption” (24 September 2019) NSW Government Communities &

Justice <www.facs.nsw.gov.au>.

“Babies feel pain ‘like adults’” (21 April 2015) University of Oxford <www.ox.ac.uk>. Victoria Craine “Customary Adoption – What Is The Law In Your Province” (8 February 2017) Nelligan Law <https://nelliganlaw.ca>.

Caroline Ingram “‘How is this not murder? Infanticide and the Law in Australian History’ (2

October 2018) Australian Policy and History <https://aph.org.au>.

Community Law “Criminal & Traffic Law” (26 July 2021) Community Law

<https://communitylaw.org.nz>.

Courts of New Zealand “New Zealand Court Process For Murder Charges” (September 2019)

Courts of New Zealand <www.courtsofnz.govt.nz>.

Jehran Naidoo “Lauren Dickason trial: New Zealand’s lenient law on infanticide may be in favour of defence” (28 July 2023) IOL <www.oil.co.za>.

National Institute of Mental Health “Mental Illness” (2017) National Institute of Mental Health

<www.nimh.nih.gov>.

Jackie Pearse “The Infanticide Defence: Keeping Up Pretences” (LLB (Hons) Dissertation,

University of Otago, 1995).

“Triple murderer Lauren Dickason to be sentenced in December following gruelling trial over killing three little daughters” (31 September 2023) New Zealand Herald <www.nzherald.co.nz>.

G Other Resources

“The Crimes Bill” The Press (Christchurch, 27 September 1960).

“Infanticide” The Press (Christchurch, 15 May 1958).

Professor G Hall Hall’s on Sentencing (online looseleaf ed, LexisAdvance) at [SA102.1]. Linxplus (NZ) R v M HC Christchurch T 65-89, 4 April 1990 (online looseleaf ed, LexisNexis). Andrew Simester and Warren Brookbanks A to Z of New Zealand Law (online ed, Thomson Reuters).

Abigail van Echten and Jamie O’Sullivan Garrow and Turkington’s Criminal Law in New

Zealand (online looseleaf ed, LexisNexis).