Infanticide law must die

The Calgary Sun, COMMENT, by Mindelle Jacobs, September 25, 2010

For six decades, women who have killed their babies have typically benefited from reduced sentences under our infanticide law because of the belief their minds were disturbed from giving birth.

University of Alberta law professor Sanjeev Anand wonders why only mothers who kill their infants get a break.

Fathers and adoptive parents should have a shot at judicial compassion as well, he argues in a provocative article in the Alberta Law Review.

There is little evidence of a direct connection between the physical effects of childbirth or lactation and the onset of mental disturbances in women, he declares.

Rather, poverty, isolation and other social stresses are more likely causes of the mental illness some women experience after childbirth, Anand argues.

And if mothers are vulnerable to mental breakdowns because of the socio-economic burden of child-rearing, surely fathers and adoptive parents risk the same stress and should also be able to use the defence of infanticide, he says.

"Once the law recognizes biological mothers who kill their children may commit these acts because of the effects of mental disorders caused by social stresses, the law must also acknowledge all parents are susceptible to such influences," Anand writes.

"Therefore, when adoptive parents and biological fathers succumb to these pressures and kill their children, they may be as deserving of lenient treatment as biological mothers."

Anand says our antiquated infanticide law should be ditched and replaced with a broader defence of diminished capacity which could apply to parents in general.

"It is the adjustment to child-rearing, rather than the biology of childbirth, that seems to be principally responsible for most instances of postnatal mental illness, including many of those instances linked to infant homicides," he writes.

Anand adds that postpartum psychosis, which affects only 0.2% of women, usually emerges 60 to 90 days after the birth of a child.

Even the more common postpartum depression typically takes weeks to develop, he explains.

Consequently, it would be hard for a woman who killed her newborn within 24 hours of giving birth to claim the defence of infanticide based on a disturbance of the mind caused by a postpartum mental disorder, Anand argues.

As it happens, the Ontario Court of Appeal is currently hearing the case of a woman who smothered her first two children.

She was charged with first-degree murder but the trial judge convicted her of infanticide. In its written submission, the Crown argues the decision "cheapened" the lives of the two babies and infanticide shouldn't be permitted as a defence when the prosecution proves murder.

The Crown is pitching the same argument Anand makes - that there's no clear biological link between postpartum hormones and violence.

Also coming up, early next year, is the appeal of Alberta teen Katrina Effert, who was convicted by a jury of second-degree murder for strangling her newborn son with her thong. If the conviction stands, it means a minimum 10-year sentence.

Effert's lawyer will have a tough time arguing it was an unreasonable jury verdict, predicts Anand.

"A jury's verdict is not to be lightly tampered with," he said.

A century ago, juries refused to convict women of murder for killing their babies.

But the death penalty existed back then and social conditions were vastly different.

I hope these two cases signal the demise of our outdated infanticide law and reasoned debate over what - if anything - should replace it.

mindy.jacobs@sunmedia.ca