Revisiting Canada's infanticide law

A safeguard for women? An insult to women? Canada's infanticide law, like the crime itself, ignites strong emotions on both sides. Just how did the legislation evolve and why do some legal experts want it scrapped?

The Edmonton Journal, David Staples, Sunday, November 12, 2006

"You heartless bastards!"

The words rang out in a Wetaskiwin courtroom, Ryan Effert's verbal attack on the eight-woman, four-man jury that had just found his 20-year-old sister, Katrina, guilty of murdering her newborn baby.

Ryan Effert was the first to lash out at the jury, but his angry words have been echoed by many others. Defence lawyers, legal experts, pundits and members of the public have all expressed upset and bewilderment at the decision on Sept. 26.

Katrina Effert, entering the courthouse in Wetaskiwin last September. Her conviction for second-degree murder, rather than infanticide, surprised many legal observers.

One letter writer to The Journal summed up the prevailing criticism. "I was appalled by the verdict and sentence," C.R. Carter of Leduc wrote.

"What she needs is a lot of counselling, not hard time. Sending her to prison will not serve as a deterrent for other mothers in the same situation either, as they would be too 'mentally disturbed' at the time to consider the consequences, just like Effert was."

One of Edmonton's top defence lawyers, Peter Royal, has come to Effert's assistance, taking over the appeal of the case. On Thursday, Royal made a successful motion that Effert be granted bail pending her appeal hearing. He has told the court he is still assessing the case, and may argue the jury's decision was without merit and should be struck down.

The Effert verdict has been called an extreme departure in how the courts treat women who take the lives of their newborns, a crime known as neonaticide, the killing of a child within 24 hours of birth. Compassion, rather than extended jail time, is the norm for a neonaticidal mother, or for a mother who commits infanticide, defined in Canadian law as the killing of a child less than one year of age.

"Effert's second-degree murder conviction is completely out of step with jurisprudence in other provinces," University of Winnipeg criminologist  [ error noted by CanadianCRC editor: she's a feminist sociologist ] Kirsten Kramar, a Canadian expert on infanticide, has said. "It wasn't a just outcome."

Effert's life sentence with no parole for 10 years -- the mandatory minimum sentence for second-degree murder -- is unprecedented for a case of infant homicide, in modern times at least. No Canadian woman has gone to jail for longer than a year for this crime since a legal provision for infanticide was enacted in 1948. Instead, convicted mothers usually get no jail time at all, Kramar says.

But as radical a departure as Effert's sentence was, the verdict itself is part of a trend that has seen many Canadians put the right to life of newborn children ahead of any sympathy for infanticidal mothers. The change in attitude has grown out of decades of social change that has improved the lot of single mothers.

In the past, single mothers gave birth in shame and isolation to what were then called bastard children. For a woman to keep the child was to throw herself and the child into poverty and disgrace.

But such social circumstances no longer exist for most single mothers. Contraception, abortion, foster care and adoption agencies are all available. Emergency care is only a 911 call away.

As Supreme Court Chief Justice Beverley McLachlin noted in her 1991 report Crime and Women -- Feminine Equality and the Criminal Law: "Women faced with an unwanted pregnancy now have a number of less desperate alternatives available to them."

Such developments have led some people -- and likely some of those on the Wetaskiwin jury -- to no longer regard the killing of a newborn as the justifiable act of an utterly desperate woman, but as the ultimate form of child abuse.

Just as the Effert case generates fierce debate, so does the infanticide statute itself. Academic, medical and legal experts say the 1948 law is based on discredited science and the outdated notion that women are frail, irrational creatures. As McLachlin put it, Canada's infanticide law is "based on the questionable premise that the experience of childbirth temporarily reduced a woman's moral capacity and responsibility."

Such doubts have fuelled demands to axe the statute.

At the heart of the social and legal debates over infanticide are several vexing questions: are the women who commit infanticide rational? Or are they unbalanced by hormonal changes associated with giving birth?

If these women are rational, but still driven to kill by desperate psychological and socio-economic factors, should the court show them compassion? Or should they be treated like every other intentional killer?

In ancient times, infanticide was seen as a rational and acceptable practice. "Infanticide was morally and legally acceptable as a means of controlling the population size in pre-Christian and non-Christian societies, societies as admired as ancient Greece and Rome," McLachlin has written.

In hunter-gatherer societies, where people struggled to survive, infanticide was regarded as a necessity, says University of Toronto criminologist Rosemary Gartner, author of a new study on infanticide.

"It was almost your obligation, not just to your other children, but also to the group, not to introduce another mouth to feed if there's been drought or unsuccessful hunting seasons."

The first great challenge to the acceptance of infanticide came from early Jewish and Christian prophets, who preached that all human beings, including newborns, were equal under God.

"The Christian religion was firmly set against any unnatural interference with pregnancy and birth, notably contraception and abortion. This, combined with its emphasis on the sanctity of life, created a moral censure of infanticide," University of British Columbia criminologist Judith Osborne wrote in her 1987 report The Crime of Infanticide.

In 16th-century England, religious fervour led to harsh laws against infanticide, with many infanticidal mothers put to death. By the 1700s, however, juries became reluctant to convict. By then, the infanticidal mother had become an object of some pity.

Many of these women were domestic servants impregnated by their employer or the employer's son, McLachlin wrote. "If their pregnancy was discovered, not only would they face severe social ostracism and lose all prospects of marriage, but they would also lose their job and then be unable to secure other domestic work.... It was the horrible but inescapable result of such conditions that young women were driven to terminate the lives of their newborn."

In Canada, stringent laws also existed. But, as in England, Canadian juries often found women not guilty even in the face of overwhelming evidence. It was seen as acceptable for a single mother to kill her illegitimate child, Kramar says. "They (jurors) would say, 'Of course she would want to hide her shame.' "

In one typical case, 19-year-old Annie Rubletz of Yorkton, Sask., was found guilty in June 1940 and sentenced to death, after being seduced by her sister's husband, for whom she worked as a farm labourer, Kramar reports in her 2005 book, Unwilling Mothers, Unwanted Babies.

Rubletz admitted she had intentionally smothered the baby. The judge handed out the mandatory death sentence, but urged clemency for her due to the sordid circumstances of her life. An uproar ensued, with many saying it was the father, not Rubletz, who was the real culprit.

"It is high time the men in these cases were punished, too," one letter writer to the Regina Leader-Post wrote. "They go on leaving girls to bear the shame of it all, probably ruining many more unknown to anybody."

In the end, Rubletz's death sentence was reduced to a year in jail.

A key reason for sympathy for infanticidal mothers, Osborne writes, is that the victims were infants and, in the traditional view of things, were considered less than fully human.

As the noted British legal expert James Fitzjames Stephen (1829-1894) said about the killing of infants: "You cannot estimate the loss to the child itself, you know nothing about it at all. With regard to the public, it causes no alarm, because it is a crime which can be committed only by mothers upon their newly born children."

Until recent decades, children were viewed as the virtual property of the parent. "People understood it as a practice that women always engaged in, and they just didn't see it as a crime," Kramar says. "If you have the responsibility of looking after children it should be up to you to decide what to do with them. Women had much more autonomy."

A radical departure in thinking about infanticide came in the 19th century, when an argument arose that the crime wasn't an entirely rational act, but was caused by mental imbalances related to giving birth and to breastfeeding. By the 1920s, talk of "lactational insanity" and "exhaustion psychoses" dominated the literature of infanticide, as male practitioners in the newly formed fields of psychology and psychiatry began to hold sway, Gartner says.

"There was a belief that men are the rational people linked to the mind and women were much more tied to their reproductive cycles and to their biology," she says. "So with changes in hormones, women were supposed to get crazed during their menstrual periods, pregnancy and lactation. Any condition that caused shifts in hormone levels in women was assumed to be closely linked to their rational abilities."

It was thought, for instance, that women were much more influenced by the moon, as they had fluids in their bodies that ebbed and flowed with the tides, Gartner says. "There were just all kinds of theories."

In England, Canada, Australia, New Zealand and more than a dozen other countries, the importance of female biology as a cause for infanticide became accepted and was encoded into law, first in England in 1922. Canada's infanticide law of 1948 provided for a maximum five-year sentence, as opposed to the maximum death penalty or life sentence for manslaughter and murder.

The Canadian statute reads: "A female person commits infanticide when by a wilful act or omission, she causes the death of her newly born child, if at the time of the act or omission she has not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed."

The law's focus on female biology arose partly out of expediency. Lawmakers were aware that women who killed their newborns were often reacting rationally to their poverty and shame, but in a court of law a mother who killed for rational reasons could not get a lighter sentence.

However, if a woman's mind was clouded by biological factors, then a legal way out could be found for the offending mother.

"It was a legally acceptable way to package this that might covertly recognize that we should be having sympathy for the social circumstance in which women are killing their children, but we can't explicitly say it," says Australian infanticide researcher Ania Wilczynski.

Adds Gartner: "They recognized if they started to draw on social factors in court, that wasn't going to go very far. After all, most male defendants in courts are poor and discriminated against. Suddenly, everyone would get off because they were socially deprived and the legal system just isn't going to allow that."

Some women immediately spoke out against the new law, seeing it as a double-edged sword. Women convicted of infanticide rather than murder would benefit, but the law nonetheless suggested women are irrational due to their biology, Gartner says.

"By attributing so many violent acts of women to their biologies or their psychologies, you are essentially arguing that women are less rational than men as a group, and you're justifying all the old reasons for why we shouldn't let a woman be president because, 'Gosh, when she is menstruating she's just going to be ready to push that red button and bomb the world.' "

Discomfort with infanticide laws started to grow after a groundbreaking study by Dr. Phillip Resnick of Cleveland's Case Western Reserve University came out in 1970. It found that mothers who kill their newborns usually aren't psychotic, depressed or suicidal, but that mothers who kill their older children often are.

In 2006, Resnick and other Case Western researchers released a study that summarized data from dozens of previous research papers on infanticide. It confirmed that mothers who commit neonaticide are more likely to be rational than mothers who kill older children, says co-author Dr. Susan Hatters Friedman.

Neonaticidal women tend to be young, to live with their parents, to be of low socio-economic status and to not see obstetricians, Hatters Friedman says.

Sometimes the women knew they were pregnant but concealed their pregnancies by wearing baggy sweaters. Sometimes the women didn't gain weight, had some monthly bleeding, and it never crossed their minds that they were pregnant. Others had missed their period but deluded themselves into thinking they weren't pregnant and everything would be all right.

There was little to no motherhood-related psychiatric illness in these women, Hatters Friedman says.

A first-time mother has a far greater chance of developing psychosis in the first month after delivery than at any other time in her life, but this psychosis doesn't hit mothers on the day of delivery, Hatters Friedman says.

"When the killing is within the first day of life, it's usually much too early to have developed a post-partum psychosis or post-partum depression, which usually takes days to weeks to develop."

The consensus scientific view on infanticide was summarized by Wilczynski in an article for The Encylopedia of Women and Crime. Only about half the women who commit infanticide are mentally ill, she wrote, and very few of them suffer from the extreme hormonally based disorder of puerperal psychosis -- which has a sudden onset within the first few weeks (usually the first 10 days) after childbirth -- that can lead to severe confusion and hallucinations.

"The medical basis for infanticide legislation -- the notion that female infant killing is caused by a mental disorder due to disturbed hormones at childbirth -- has been clearly discredited," Wilczynski wrote.

"It is now known that the causes are primarily social and psychological rather than hormonal. For example, the stresses of child care, lack of social support, unrealistic expectations of parenthood, and personality problems can lead to maternal infanticide.

"Fathers, too, kill very young children, often for similar reasons."

But some doctors, researchers and defence lawyers continue to argue that mental imbalance is at the root of most neonaticide and infanticide cases.

A number of essays supporting this proposition appeared in the 2003 book Infanticide. In one, New York lawyer Judith Macfarlane argued, "Many infanticides are committed not by women who are intent on callously ridding themselves of their children but rather by women who are experiencing a psychosis precipitated by gross post-partum mental illness. That a woman suffered some form of mental illness at the time of killing calls into question her criminal culpability."

In the past, it was taken as proof of guilt when a woman would conceal she was pregnant, then kill her baby. More recently, however, there has been an attempt to reclassify such women as mentally ill. The pregnant woman isn't seen as concealing her child, but as denying its existence, even to herself, because of her tragic social circumstances and confused mental state.

The killing of newborns is strongly linked to such a denial of pregnancy, wrote Dr. Laura Miller in Infanticide. "Sometimes, confronted with a baby for whom she was not emotionally prepared, the mother actively kills her newborn. In other cases she does nothing to prevent the baby from dying. The most common way babies die after denied pregnancies is being delivered into toilets and drowning."

In many cases, Miller said, the mothers appear to have killed their babies while in something called a dissociative or near-dissociative state: "Memory for the act is often hazy. Many women make little or no effort to conceal their acts."

There is a push by defence lawyers to have these women accepted in court as suffering from "neonaticide syndrome," which would greatly reduce or eliminate their culpability for their actions. However, in the most recent test case in the United States, both the trial judge and appeal court judges ruled the theory of neonaticide syndrome could not be introduced in court because it was untested by the scientific community.

No federal government has tinkered with Canada's infanticide law, though pressure has been building to do so. In the 1970s and 1980s, three major commissions in England looked at infanticide and came to a broad agreement that the medical reasons for infanticide are unfounded, Wilczynski reports.

The British findings led the Law Reform Commission of Canada in 1984 to call for the government to drop the infanticide statute. The law is based on antiquated medical opinion and perpetuates inequality between male and female parents, who could both face stress from caring for an infant that might contribute to their killing a child, the law commission said. "Medical evidence no longer justifies restricting such special treatment for these (female) defendants only while denying it to fathers acting under related stresses."

Both women and men who killed their children should be charged with murder, the law commission said, adding that the mandatory minimum sentence for murder should be axed, so judges could hand out lighter sentences in infanticide cases when warranted.

Another reason the infanticide statute was no longer necessary, the law commission said, was that in the decades after the 1948 law was enacted, Canadian courts were more likely to rule that a woman with a mental disturbance who killed her infant was guilty of manslaughter, as she lacked the high level of intent needed to be found guilty of murder. "Most appeal courts in Canada would now look at a mental disturbance which falls short of ... insanity as nonetheless preventing a defendant from forming a specific intent to kill and so from actually committing murder."

At the time of the law commission's Homicide report, the infanticide provision was rarely used -- only about five cases per year. It is now used even less often than that.

University of Alberta law professor Sanjeev Anand, a former Crown prosecutor, would like to see the infanticide law axed altogether and infanticidal killers tried for murder, but with the concept of "diminished responsibility" written into the Canadian law.

This would mean if a person had a diagnosable mental disorder, such as depression, and a murder they committed was largely attributable to this disorder, they could be found guilty of manslaughter rather than murder. This diminished responsibility statute already exists in England. Such a law would recognize frailties in both women and men, Anand says.

The current statute is problematic on many levels, he says. Not only is it a misogynistic throwback and based on uncertain science, but it's a dangerous precedent to let off people who intentionally commit a crime simply because they had a somewhat disturbed mind, caused by hormonal changes.

"Imagine if we started doing that, we'd have individuals who killed in a bar fight, they could say, 'Listen, I felt this rush of testosterone and it led to a disturbed mind.' "

But Kramar says the existing statute should be preserved because it keeps women who deserve help from being aggressively prosecuted and harshly punished. "It's the only thing that provides a mitigation framework for these kinds of killings, which legitimately should be mitigated."

Kramar views the women who commit neonaticide as rational but under unbearable stress with few viable options. These are mitigating factors that should be considered at their trials.

"They understand the impact that the infant will have on their lives and the lives of their families," she writes. "However, these same women do not necessarily act coolly without mental distress and confusion at a time when they are experiencing extreme pressures, not the least of which are the immediate pains of childbirth (especially in cases where the women may have denied the pregnancy, not just to others, but to themselves)."

The legal debate over infanticide has been propelled not just by concern over indeterminate science, but by vast improvements to the circumstances of most single mothers.

Since the infanticide law was enacted in 1948, contraception and abortion have been legalized. Foster care and adoption are readily available options for young mothers who can't care for their children, or don't want the job.

"In the past, if there was sympathy toward these women, it was because it was viewed they don't have options and their lives will be ruined by this, and we can understand why she killed the child," says Gartner, the University of Toronto criminologist.

"Nowadays, I think people would say, 'No, we can't understand it. She could give it up for adoption.' There are many other ways of dealing with this problem. It doesn't ruin a woman's life to give birth out of wedlock. People would ask, 'Why wasn't she using birth control? It was available. And why wasn't she getting an abortion?'

"All of these things combine to make it less understandable to people why a woman would kill her infant."

At the same time as conditions for most single mothers have improved, mortality rates have dropped in society, making the death of a newborn seem more tragic, Wilczynski says.

"A child's death is regarded as a very traumatic event."

Attitudes towards infanticide have changed for other reasons. Birth rates have dropped, while wealth has increased. Babies are now far more rare and there tends to be more re.sources to care for them. No longer are children seen in 19th-century terms as little adults who should be put to work in factories, fields or mines, Wilczynski says.

"We have a view of children as being much more special now."

Child abuse is no longer tolerated. Anti-spanking laws have become vogue. "Not only are children no longer viewed as quasi-property in the eyes of the law, but they are also seen as being entitled to nore rather than less, protection than adults," Chief Justice McLachlin has written.

As this new attitude towards children has taken hold, infanticide has become viewed by some as the ultimate form of child abuse.

"People see it as much more of a serious crime and reprehensible and it needs to be addressed," Wilczynski says.

The new, more damning attitude towards infanticide was highlighted in a 1995 case, R. vs. Peters, where an Ontario judge castigated a 26-year-old woman with a history of psychiatric problems who had fatally stabbed her newborn with scissors. The defendant pleaded guilty to manslaughter, Kramar reports.

After sentencing the woman to two years of psychiatric incarceration, the judge scolded her: "The killing of newborns offends the laws of mankind and nature.

"It is beyond the outer limits of perversity and shame. Universal denunciation is the instinctive response. The aggravating factors are the gravity of taking a human life and the absolute vulnerability and dependency of the victim."

Such a rebuke is part of the "moral panic" that has arisen against infanticide, Kramar argues. A preoccupation to protect the "victim-baby" has replaced earlier compassion for the mother, she says.

It also needs to be recognized, Kramar says, that the stigma around unmarried pregnancies still persists in pockets of our society.

In the 1990s, the Canadian criminal justice system started to take a harsher stance against women who kill their infants, charging them with murder and manslaughter rather than infanticide.

The Effert case "certainly reflects efforts on the part of the Crown to charge heavily and to punish harshly because we think it will deter others from doing it," Kramar says.

She hopes no other jury will act as harshly as the one in Wetaskiwin, which she says was caught up in a retributive model of justice. "There's this idea that if you commit a crime, then you have to pay, sort of that eye-for-an-eye, very conservative approach that is more popular in the United States and in Alberta because of the dominance of conservative, law-and-order governments."

But Anand doesn't see the Wetaskiwin verdict as out of line.

During the trial, two expert witnesses told the jury that Effert was suffering from a mental disturbance at the time of the attack, but the jurors were under no compulsion to accept that expert testimony, Anand says. Instead, they could judge Effert's state of mind themselves by reviewing the conflicting statements she gave to the police shortly after the homicide.

"It's always open for the jury to say, 'We don't believe this expert.' "