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Wilson, Debra --- "The offence/partial defence of infanticide in New Zealand law: past, current and future use" [2022] OtaLawRw 7; (2022) 17 Otago LR 335

Last Updated: 9 March 2024

The Offence/Partial Defence of Infanticide in New Zealand Law


The Offence/Partial Defence of Infanticide in New Zealand Law:

Past, Current and Future Use

Debra Wilson

  1. Introduction
The offence/partial defence of infanticide was first introduced into United Kingdom law in 1922 in the Infanticide Act. Since then, it has been adopted in commonwealth jurisdictions including Australia (New South Wales, Tasmania, Victoria and Western Australia) and New Zealand. While these jurisdictions all claim that their provisions are based on the United Kingdom provision, there are notable differences, particularly in New Zealand, which has enacted the broadest provision of any of the commonwealth jurisdictions.

Infanticide has long been considered problematic, from its uncertain rationale to its elements and its use in court. Its continued existence has been questioned in several commonwealth jurisdictions, with concerns raised about its continued justification, its scope and its potential overlap with other offences or partial defences like insanity or diminished responsibility.

This article will consider the history of infanticide and the scope of the provision in the Crimes Act 1961. It will then evaluate arguments for reform of infanticide in the United Kingdom and Australian states, and conclude as to the future of infanticide in New Zealand.

2 History and Development of Infanticide Laws in the United Kingdom

Historically, the killing of unwanted children by their parents (either through direct action or through exposure or abandonment) was considered to be a socially and legally acceptable method by which to control the population.1 In the times of Plato and Aristotle, this practice was even encouraged for eugenic reasons.2 The rise of Christianity in Europe led to a change in approach and infanticide began to be recognised as murder, and punished by the death penalty.3 Successful prosecutions were, however, difficult to obtain, due to the definitional requirement that murder involve the killing of a “person”. To be a “person” one must satisfy the “born alive” rule and this created difficulties for the

  1. Katherine O’Donovan “The Medicalisation of Infanticide” [1984] Crim

LR 259.

  1. Bernadette McSherry “The Return of the Raging Hormones Theory: Premenstrual Syndrome, Postpartum Disorders and Criminal Responsibility” [1993] SydLawRw 25; (1993) 15 Syd LR 292 at 300.

3 At 300.

prosecution as it was often unclear whether the child had been born alive and then killed, or had been stillborn. To address this, the Stuart Bastardy Act 16244 introduced a presumption that a woman who concealed the death of an illegitimate child had killed the child and would therefore be guilty of murder, removing the need for the prosecution to satisfy the born alive rule. The presumption could be rebutted if the woman was able to produce one witness who could testify that the child had not been born alive. The law was clearly targeted at unwed females, both explicitly through the requirement that the child be a bastard, and implicitly through the need for a witness to rebut the presumption (given that at the time an unwed woman would likely conceal the pregnancy and give birth alone, whereas a married woman would likely have assistance at the birth).

Even given the moral and religious standards of the time, and the resulting stigmatisation that unwed mothers faced, this law was regarded as harsh by the public. Blackstone, for example, noted that it “savous pretty strongly of severity”.5 This public opinion was reflected in the high number of acquittals being recorded in the latter part of the 17th century, and by the fact that by the mid-18th century the law appeared to be almost entirely ignored.6 As a consequence, Lord Ellenborough’s Act of 18037 repealed the Bastardy Act, and the law reverted to the pre-1624 position that the mother would be charged with murder, and the prosecution would have the burden of proving that the child had been born alive. Recognising the difficulty for the prosecution that this burden had created previously, the Act introduced an alternative offence of concealment of birth.8

Public reluctance to convict women of murder continued.9 Lansdowne notes that juries would find the woman guilty of concealment instead of murder when there was the “slightest suggestion” that the child had been born alive, and that doctors would “routinely” give evidence that the child might have still been in the birth canal (and therefore not legally

  1. An Act to prevent the destroying and murthering of Bastard Children 1624 (Eng) 21 Jac I c 27, 4 Statutes of the Realm 1234.
  2. William Blackstone Commentaries on the Laws of England (Buffalo, William S Hein & Co, 1992) vol 4 at 198.
  3. Between 1674 and 1699 there were 65 trials for the murder of newborns at the Old Bailey. Of these, 36 resulted in convictions and 28 acquittals (with one uncertain outcome due to missing records). Between 1730 and 1774, only one of 61 infanticide trials saw the statute mentioned at all: Eric Vallillee “Deconstructing Infanticide” (2015) 5(4) Western Journal of Legal Studies 1 at 4–5.
  4. Lord Ellenborough’s Act 1803 (UK) 42 Geo III c 58.
  5. This became a separate offence in 1828 under the Offences Against the Person Act 1828 (UK) 9 Geo IV c 31.
  6. McSherry notes that between 1849 and 1864, there were 5,000 coroner’s inquests for children under the age of seven years, but only 39 convictions for child murder: McSherry, above n 2, at 301.

a person) when the act of strangulation or throat cutting had occurred.10 Brennan notes that judges felt “considerable annoyance”11 at the “solemn mockery” of being required to impose the mandatory death sentence following conviction for murder “with all the formality and solemnity required for the occasion”,12 when they knew that this sentence would be commuted by the Home Office on appeal.13

In 1922 the United Kingdom Parliament introduced a law dealing specifically with infanticide, recognising that charges of murder were “useless, “because invariably juries will not bring a verdict of guilty”,14 with juries “refus[ing] to convict, regardless of the evidence”15 and Judges were “not merely tacitly acquiesc[ing] ... but frequently play[ing] an active part” in this.16 The new law created a hybrid offence/partial defence, which stated that a woman who killed her newborn child at a time when her mind was disturbed by the effect of childbirth was guilty of manslaughter and not murder.

In 1938 the law was amended, with two key changes being introduced: the first replaced the requirement that the child be newborn with a requirement that the child be aged up to 12 months, and the second added “effects of lactation” to the reason why the woman’s mind might be disturbed. The increase of the age to 12 months appears to reflect several early cases where infanticide could not apply because the child was not newborn.17 It also reflected the practice of the Home Office to commute death sentences for women who killed their child when the child was aged up to 12 months.18 The expansion to include lactation as a source of the disturbance of the mind appears to be partially linked to this increase in age, with 12 months being the usual period of lactation

  1. Robyn Lansdowne “Infanticide: Psychiatrists in the Plea Bargaining Process” (1990) 16 Mon LR 16(1) 41 at 44.
  2. Karen M Brennan “‘A Fine Mixture of Pity and Justice:’ The Criminal Justice Response to Infanticide in Ireland, 1922–1949” (2013) 31 LHR 793 at 797.
  3. Keating J as cited in in D Seaborne Davies “Child-Killing in English Law” (1937) 1 MLR 203 at 220.
  4. Davies notes that the last person executed in an infanticide case was in 1849: D Seaborne Davies “Child-Killing in English Law: Part II” (1938) 1 MLR 269 at 284–285.
  5. (14 June 1948) 20th Parl, 4th Sess, vol 5 House of Commons Debates (Canada) 5185 per Hon James Lorimer Ilsley, Minister of Justice, quoted in Emma Cunliffe “Infanticide: Legislative History and Current Questions” (2009) 55 Crim LQ 94 at 96.
  6. (14 June 1948) 20th Parl, 4th Sess, vol 5 House of Commons Debates (Canada) 5184 per Hon John George Diefenbaker, quoted in Cunliffe, above n 14, at 99.
  7. Davies, above n 12, at 219.
  8. See, for example, Rex v O’Donoghue (1927) 28 Cox CC 461 (Crim App) (child was five days old) and R v Hale The Times, 22 July 1936 (court identifier) at 13 (child was three weeks old).
  9. Lansdowne, above n 10, at 47.

at the time. It also reflected a change in the demographics of the mothers being charged. Since the enactment of the 1922 Act, the proportion of older, married, women being charged with the killing of their young children had increased,19 suggesting that the disturbance of the mind was not solely due to stigmatisation and financial concerns resulting from having a child out of wedlock, but could also be due to some form of post-birth mental issues.20

There are two points worth noting about the infanticide provisions in both the 1922 and 1938 United Kingdom Acts. First, they make problematic assumptions about the mental state of all women following childbirth. This assumption reflects earlier opinions presented to the Capital Punishment Commission in 1866. As an example, Sir James Fitzjames Stephen had commented to the Commission that:21

... the operation of the criminal law presupposes in the mind of the person who is acted upon a normal state of strength, reflective power, and so on, but a woman just after childbirth is so upset, and is in such an hysterical state altogether, that it seems to me that you cannot deal with her in the same manner as if she was in a regular and proper state of health.

The fact that the 1922 and 1938 laws do not require a causal link between the offending and the childbirth (discussed further below) suggests an adoption of the Fitzjames Stephen comment, and an acceptance that all women go into this hysterical state for 12 months following childbirth.

The second point, which is also reflected in Fitzjames Stephen’s quote above, is that the infanticide law is given a psychological-medical rationale through its assumption that the disturbance of the mind was a consequence of childbirth or lactation. This was inconsistent with the generally accepted understanding of the public that the majority of infanticides occurred as a result of socio-economic factors.22

19 At 46.

  1. Daniel Maier-Katkin and Robbin Ogle note that the Criminal Statistics For England and Wales 1926–1987 (HMSO) show that the homicide rate for children under the age of 12 months is four times higher than the homicide rate of the general population: “A Rationale for Infanticide Laws” [1993] Crim LR 903 at 903.
  2. Report of the Capital Punishment Commission; Together with the Minutes of Evidence and Appendix (Her Majesty’s Stationary Office, 1866) at 290–291, quoted in Davies, above n 13, at 269, n 13.
  3. James Mason “The Myth of Madness: Murderous Mothers and Maternal Infanticide” (2021) 85 JCL 441. See also Brennan, above n 11, at 798, who comments:

... the real reasons were the desire to avoid the ‘solemn mockery’ of the death penalty ... and a desire to treat with leniency a group of offenders who, due to their pitiable social and economic cir- cumstances in which they committed their offences, demanded sympathy rather than severity.

3 Parallels with Australian and New Zealand Infanticide Laws

The socio-economic conditions that led to the enactment of United Kingdom laws were also mirrored in other commonwealth jurisdictions which subsequently followed the United Kingdom lead in enacting infanticide provisions. This section will briefly consider the background to the enactment of infanticide laws in four Australian states and in New Zealand before examining the New Zealand provisions in more detail.23

By the mid-19th century, the killing of young children by their parents in Australia was being recognised as a “part of everyday life”, but also as a “major social issue”.24 In a pattern similar to that seen in the United Kingdom, the relevant women could initially be described as poor unwed mothers, but by the 1920s-1930s this began to change and married mothers “predominated in those cases which went to trial”.25 Four Australian states followed the lead of the United Kingdom and enacted specific infanticide legislation: Tasmania, Victoria, New South Wales and Western Australia.

The first state to enact an infanticide law was Tasmania in 1934. Prior to this, the killing of a child by their mother was punishable as murder, and subject to the death penalty. As in the United Kingdom, judges and juries appeared uncomfortable with this punishment. This can be seen in the case of Mary McLauchlan, who was found guilty of the murder of her newborn child in 1830 and was sentenced to be “hanged and dissected”. The report of the trial commented:26

We cannot refrain from expressing our regret at this. We believe we do so in common with the whole Colony. ...


  1. For the Ireland experience see Brennan, above n 11, at 797. For Canada see Constance B Backhouse “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada” (1984) 34 UTLJ 477, and BM McLachlin “Crime and Women— Feminine Equality and the Criminal Law” (1991) 25 UBC Law Rev 1.
  2. New South Wales Law Reform Commission Provocation, Diminished Responsibility and Infanticide (Discussion Paper 31, August 1993) at [5.5], quoting Kathy Laster “Infanticide: A Litmus Test for Feminist Criminological Theory” (1989) 22 ANZJ Crim 151 at 152.
  3. New South Wales Law Reform Commission, above n 24, at [5.21], quoting Judith A Allen Sex & Secrets: Crimes Involving Australian Women Since 1880 (Oxford University Press, Melbourne, 1990).
  4. R v McLauchlan [1830] TASSupC 14, reported in the Tasmanian and Austral- Asiatic Review, 23 April 1830. Interestingly, it was stated in the report that a more fitting punishment would have been to confine her to the “Factory” for a period of time where she would be “clothed in some peculiar garb, by which her offence would have been pointed out to all present and future residents in that miserable abode”.

There is something more than ordinarily dreadful in the putting a woman to death at any time. We rejoice to perceive that in England, where the charge of infanticide is not very unfrequent, that in most cases Juries return a verdict for the minor offence, that of concealing pregnancy; and we believe that even when the dreadful crime of murder is proved, the last extremity of punishment seldom follows.

The 1934 amendment introduced a separate offence/partial defence of infanticide into the Criminal Code Act 1924 that adopted the language of the 1922 United Kingdom law,27 but imposed a penalty of 21 years’ imprisonment. It does not appear to have been considered until 1969, when the limitation of the requirement that the child be “newly born” became clear, and the law was subsequently amended in 1973 to allow the child to be aged up to 12 months.28

The second state to introduce an infanticide law was Victoria, in 1949.29 The new provision benefitted from the experience in the United Kingdom,30 and adopted the language of the 1938 Act that the child can be aged up to 12 months old, and included consequences of lactation as a reason for the disturbance of the mind. In terms of sentencing, it imposed a specific sentence of six years’ imprisonment. In 2005 the law was amended following a review by the Victorian Law Reform Commission, raising the age of the child to two years and removing the reference to lactation.31

The third state was New South Wales, in 1951.32 Interestingly, the law does not appear to have been motivated by socio-economic concerns.

  1. Section 165A of the Criminal Code Act 1924 (Tas).
  2. In Regina v Taylor [1969] TASStRp 2; [1969] Tas SR 1 (SC), the infant was aged three months. Taylor was initially charged with murder, but the charge was amended to infanticide (despite the age requirement not being met) and she pleaded guilty: at 1–2. The Court then advised her to withdraw her plea, and stated its expectation that the prosecution not proceed with the charge: at 7. This appears to have happened as there is no further reference to the case.
  3. Section 4 of the Crimes Act 1949 (Vic). This became s 6 of the Crimes Act 1958 (Vic).
  4. The parliamentary debates noted that this law adopted the United Kingdom law “without material alteration”: (30 March 1949) 229 Parliamentary Debates (Vic) Legislative Assembly 68.
  5. Victorian Law Reform Commission Defences to Homicide: Final Report (5 October 2004) at [6.32]–[6.41]. This was adopted in cl 5 of the Crimes (Homicide) Bill 2005 (Vic).
  6. Although it could be noted that in the parliamentary debates on the Crimes Bill 1900 (NSW), it was mentioned that a woman, Elizabeth Woodbridge, had been charged with “infanticide”: (11 September 1900) Parliamentary Debates (NSW) Legislative Assembly 2757. See also (25 July 1900) Parliamentary Debates (NSW) Legislative Assembly 1341, where one member refers to “the crime of infanticide” when this did not exist.

In 1905, during the Parliamentary debates on the Girls Protection Bill, it was noted:33

At one time there were a great number of illegitimate children born into the world, and there was an alarming amount of infanticide. In many cases, the young mother, unable to secure the father of the child and make him pay for the maintenance, was driven, under those circumstances, to dispose of her child, and in that way infanticide became rife. That has been met to some extent by the Infants Protection Act, passed last year.

In 1951, when the infanticide law was being debated, similar comments were made, noting that “[f]ortunately, the offence is not so common as to make this alteration of the law monumental”.34 The new law was, however, described as a “humanitarian amendment”,35 and in 2013 the New South Wales Law Reform Commission explained that it had been enacted in an attempt to “align law with the public sentiment that such crimes should be treated with greater leniency”.36 The law adopted the language of the 1938 United Kingdom Infanticide Act, and also adopted the United Kingdom approach to sentencing, that a woman found guilty of infanticide would be sentenced as if for manslaughter. In 2020 the language of the requirement that the woman’s mind be disturbed was altered to a requirement that there be a “mental health impairment”.37

The final Australian state to introduce infanticide legislation was Western Australia in 1986.38 It adopted the language of the 1938 United Kingdom law, but imposed a specific penalty of seven years’ imprisonment.39 It is not clear why the law was enacted at this time, and while there was some support for it40 this was not universal, with

  1. (19 September 1905) Parliamentary Debates (NSW) Legislative Assembly 2238.
  2. (27 September 1951) Parliamentary Debates (NSW) Legislative Assembly 3263.
  3. (26 September 1951) Parliamentary Debates (NSW) Legislative Assembly


  1. New South Wales Law Reform Commission People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences (Report 138, May 2013) at [5.6] (footnote omitted).
  2. Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW).
  3. Although, there was some discussion in 1955: (9 August 1955) Parliamentary Debates (WA) Legislative Council 15 where the Chief Secretary responded to a question about “indictable childbirth cases” by stating that “[t]he question of providing for a new offence of infanticide is under consideration.”
  4. Sections 281A and 287A of the Criminal Code Compilation Act 1913 (WA).
  5. See, for example, (16 October 1986) Parliamentary Debates (WA) Legislative Council 3152 per John Williams:

Why [infanticide] ever escaped from the code previously I will never know, because the revulsion against the crime of killing a child under 12 months where the mother is charged and convicted of murder swept through the whole of the United Kingdom in 1922. Reform is a very slow process.

concerns raised that this law could “cover the killing of a child whose parents might think is not quite up to standard”41 or might result in the importance placed on the value of human life under the age of 12 months being “demoted”.42 One Member of Parliament wondered whether a separate infanticide offence was necessary, or whether the factors relating to the woman’s mental state could more appropriately be addressed during sentencing.43 The law was not a success, and in 2008 it was repealed, with the Law Reform Commission of Western Australia noting that it was “fundamentally flawed” and had not been used in over 20 years.44

In relation to New Zealand, evidence suggests that the socio-economic conditions that motivated the United Kingdom law were also in existence, and the introduction in the late 19th century of alternative offences to murder for women who killed their children supports this. In 1867 the Offences Against the Person Act introduced an offence and partial defence of concealment “by any secret disposition of the dead body”.45 The Act also made it an offence to unlawfully abandon or expose any child under the age of two years.46 Infanticide was introduced into the Crimes Act in 1961. The parliamentary debates reflect recognition of societal discomfort with convicting these women of murder.47 During the first reading of the Crimes Bill, one member commented:48

At present, a mother who kills her child while in a state of mental disturbance as a result of childbirth must be charged, if she be charged at all, with murder. She is, of course, almost invariably acquitted but the jurymen surely have to strain their oaths in order to achieve that result.

41 At 3153.

42 At 3155–3156.

43 At 3154–3155.

  1. Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report (Project 97, September 2007) at 115. The law was repealed in cl 13 of the Criminal Law Amendment (Homicide) Bill 2008 (WA).
  2. Section 57 of the Offences Against the Person Act 1867. Concealment also operated as a partial defence, allowing a jury to convict a woman charged with murder under these circumstances of concealment of birth. The maximum penalty for breach of s 57 was imprisonment for two years, with or without hard labour. This subsequently became s 194 of the Crimes Act 1908, with the language broadening from “woman” to “[e]very one”.
  3. Section 24 of the Offences Against the Person Act. This made it an offence to unlawfully abandon or expose any child under the age of two years. It was subject to a maximum sentence of three years’ imprisonment with hard labour. This was reproduced as s 214 of the Crimes Act 1961.
  4. See Jan Robinson “Of Diverse Persons, Men and Women and Whores: Women and Crime In Nineteenth Century” (MA Thesis, University of Canterbury, 1983), who notes at 166 that the fact that all-male juries were reluctant to declare women guilty of infanticide demonstrated a societal perception that women were mentally weak and that hormonal imbalances could quickly precipitate a change from sanity to insanity.
  5. (3 October 1961) NZPD 2682–2683 per Hon JR Hanan MP.

Moreover, most people feel that it is quite wrong to charge a woman with murder in these circumstances.

In the second reading, another member added that:49

The penalty for infanticide has been altered and, in my submission, very properly. It was murder in the past but capital punishment was never imposed, and in the circumstances in which infanticide in most cases is carried out, it is very proper that it should not be.

The Crimes Act provision is described as being “based on” the 1938 United Kingdom Act.50 While it adopts the language of disturbance of the mind as a consequence of childbirth or lactation, it differs substantially in other requirements, most notably that the child can be aged up to 10 years, and the child killed does not need to be the same child whose birth or lactation led to the woman’s mind being disturbed. The language of the section will be discussed in more detail in the next section.

This brief survey of the history and background to infanticide laws in the United Kingdom, Australia and New Zealand identifies several key points. Firstly, infanticide laws generally tended to be introduced to address the situation where judges and jurors found themselves unwilling to convict a woman of murder in situations where it appeared that she had been so impacted by her socio-economic conditions and by concerns of societal stigma, that she had killed her newborn child. While it appears that this was known and accepted by the relevant Parliaments, infanticide legislation nevertheless tended to be drafted in psychological-medical language. This inconsistency between motivation and expression has caused ongoing problems for the coherence of the legislation and has led to considerations of reform or repeal in all jurisdictions with infanticide laws. Secondly, while infanticide laws were initially developed for the situation where a poor unwed mother kills her newborn child, as society addressed the socio-economic conditions that led to this situation, it became clear that infanticide should not be limited to just that situation. The laws were therefore amended to recognise different reasons why a woman might kill her child that were deserving of being treated as infanticide, and that these reasons could be operative in the first few years of the child’s life, not just at the newborn stage.

4 Infanticide in New Zealand Law

The infanticide provision in the Crimes Act is a hybrid provision, containing both an offence and a partial defence. The offence, contained in s 178(1) reads:

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

  1. (4 October 1961) NZPD 2774 per Daniel Riddiford MP.
  2. (3 October 1961) NZPD 2682–2683 per Hon JR Hanan MP.

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.

As infanticide operates as a separate offence, this permits the woman to be charged with either murder or infanticide. Despite this language, reported cases suggest that it is common practice to initially charge the woman with murder, and then to amend this to a charge of infanticide at a later date should the medical evidence warrant this.51

If the woman is charged with murder, s 178(2) contains a partial defence:

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.

The partial defence operates as a complete defence to the charge of murder or manslaughter, but results in an automatic conviction for infanticide. A jury may apply this partial defence and return a verdict of infanticide whether or not this is specifically pleaded by the prosecution or defence. In addition, the Court of Appeal has clarified that a judge can instruct the jury to consider infanticide if it feels that this is relevant.52

Section 178(3) permits a jury to return a special verdict of acquittal on account of insanity caused by childbirth when the woman is charged with infanticide, murder or manslaughter.

5 The Elements of Infanticide

A woman

The first element of infanticide is that the offence must be committed by “a woman”. In R v W53 a man was charged with the murder of his five- month-old daughter in a situation that could be described as a mercy killing.54 He applied for a stay of the charge of murder on the ground that it would serve no useful purpose. One reason given was that he was “not able to avail himself of the defence of infanticide because of

  1. See R v Metuatini HC Auckland T025795, 18 November 2003; R v T HC Dunedin CRI-2008-012-5987, 18 December 2008; R v CRS [2012] NZHC 709, (2012) 25 CRNZ 839; R v T (No 2) [2013] NZHC 2299; and R v B [2020] NZHC 1930.
  2. R v Gordon CA276/04, 16 December 2004 at [23].

53 R v W (No 1) (2004) 21 CRNZ 926 (HC).

54 On the day in question, W had learnt that his daughter’s brain had stopped developing at 13 weeks’ gestation, and she would never be capable of independent function: at [2].

his gender. Infanticide would otherwise be appropriate.”55 In relation to

this, the Court commented that:56

Little needs to be said about the non-availability of the defence of infanticide in the accused’s case because s 178 of the Crimes Act 1961 simply does not provide for men who kill infants ...

Causes the death

The second element is that the woman must “cause[ ] the death” of the child. The requirement that there be a “death” was considered in R v O’Callaghan.57 In this case, the child had survived and the woman was charged with attempted murder. The issue was raised as to whether she could raise the partial defence of infanticide under subsection (3) (which permits the jury to return a verdict of not guilty by reason of insanity). In determining whether this defence was available when there had not been a “death”, Quilliam J commented that it was a requirement of subsections (1) and (2) (the offence and the partial defence of infanticide) that the child be killed. The language of subsection (3), however, did not require there to be a killing. It was therefore available. A similar approach was taken in R v Sutherland (No 6), where the defendant pleaded guilty to assault and grievous bodily harm in relation to injuries caused to a six-week-old child, and argued that the starting point in sentencing should be equivalent to the maximum sentence for infanticide.58 Heath J commented that:59

... there is no defence or partial defence equivalent to infanticide when death does not result. It is not open for Courts to create offences nor indeed to create partial defences.

A change in approach occurred in 2009, in R v L.60 In this case, L was charged with attempted murder, and the Crown wished to amend the charge to attempted infanticide. In considering whether attempted infanticide was available, Fogarty J began by recognising that there is no offence of attempted manslaughter in the Crimes Act, as s 72 requires the establishment of intention before liability for attempts can be imposed.61 In relation to infanticide, however, the same conceptual problem did not arise. Provided that the woman had the mens rea required for culpable homicide under s 160, attempted infanticide would be available.62 Attempted infanticide was also accepted in 2014 in R v M which noted

55 At [3(6)].

56 At [31].

  1. R v O’Callaghan (1984) 1 CRNZ 185 (HC).
  2. R v Sutherland (No 6) HC Tauranga CRI-2004-070-6210, 23 September 2005 at [9].

59 At [22(a)].

  1. R v L HC Invercargill CRI-2009-025-329, 24 November 2009.
  2. At [8]. Section 72 of the Crimes Act requires there to be intention to commit an offence before they can be guilty of an attempt to commit that offence.
  3. R v L, above n 60, at [14]. At [22]–[25], Fogarty J noted that this approach

was consistent with the United Kingdom law.

that it was “realistic to acknowledge that Parliament had no discernible intention concerning the concept of attempted infanticide”63 but added that the scheme of the Crimes Act was to define the substantive offences in one section and then provide for attempts in a separate section. Attempted infanticide could therefore be available.64

Of any child of hers

The third element is that the child must be a “child of hers”. The 1938 United Kingdom Act uses the phrasing:

... causes the death of her child ... 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 ... (emphasis added)

In Australia, Victoria and Tasmania also use the wording “the child”, whereas New South Wales has altered it slightly to “that child”. The use of “the child” or “that child” suggests that the child killed must be the same child whose birth or lactation resulted in the woman’s mind being disturbed.

The New Zealand provision, on the other hand, uses different language:

... causes the death of any child of hers ... 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 ... (emphasis added)

The fact that the child killed can also be aged up to 10 years (as opposed to 12 or 24 months in the United Kingdom and Australia) suggests that the child killed does not need to be the same child whose birth has resulted in the disturbance of the mind.

This element received detailed discussion in R v P65 in which a five- year-old foster child was killed in circumstances where expert evidence suggested that the foster mother’s mind was disturbed by reason of the effect of breastfeeding her (biological) six-month-old baby. The Crown argued that infanticide could not apply, and that the language of “child of hers” required a genetic link between the woman and the child. Heron J disagreed, commenting that “[i]t would seem strange if the circumstances which would in part excuse an act of violence towards her own natural child would not apply to a child who in all other respects was a member of the family”,66 and that “questions of status which surround legitimacy and natural as opposed to adopted children are becoming blurred and of lesser importance in the structure of family life”.67

63 R v M [2014] NZHC 778 at [19].

64 The matter is still not settled, however. In R v X [2016] NZHC 840 at [25], Heath J “harbour[ed] doubts” that attempted infanticide was available, but on the facts this was not required to be determined.

65 R v P [1991] 2 NZLR 116 (HC).

66 At 118.

67 At 118.

Under the age of 10 years

The fourth element is that the child must be “under the age of 10 years”. Although in the majority of reported cases the child killed is under one year old, s 178 has been applied to a five-year-old child in R v P.68

This age limit is a major departure from the legislation in other countries, which tends to require that the child be either “newborn”, under 12 months or under two years of age. Indeed an attempted amendment in New South Wales to increase the 12 month age limit was rejected on the basis that the first 12 months of the child’s life was when infanticide was most likely to occur, and was also the common period for lactation.69

The reason for a 10-year age limit in New Zealand is not clear, and does not appear to have been discussed in the parliamentary debates. In R v P Heron J suggested that this expanded age limit might be due to the fact that there is no defence of diminished responsibility in New Zealand and therefore a broader interpretation of infanticide could be justified.70 While there is some logic to this, it does not appear to recognise that at the time the infanticide provision was being drafted, the Crimes Bill did contain a diminished responsibility provision (which was subsequently removed before enactment).

One reason for increasing the age limit might be that this reflected the changing nature of infanticide at the time of enactment. Countries or states which were first to enact infanticide laws tended to subsequently introduce amendments increasing the age in recognition that the demographics of the women being charged were changing from poor unwed mothers who concealed the pregnancy and killed the child immediately after the birth, to married women who suffered post- natal mental issues and killed the child at a later time. New Zealand, introducing its infanticide law almost four decades after the first United Kingdom law, may have simply chosen to reflect this change in demographics, by increasing the age. Why 10 years was chosen is, however, unclear.

Although it has not yet been considered by the New Zealand courts, the fact that the child killed can be aged up to 10 years and does not have to be the same child whose birth or lactation led to the woman’s mind being disturbed suggests that infanticide could apply in the situation where a woman kills several of her children. This was the situation in the Victorian case, R v Guode, in which a woman drove a car containing her four children into a lake. She was charged with (and pleaded guilty to) infanticide in relation to the 16-month-old child, but the age limit for infanticide of 24 months meant that she was charged (and pleaded guilty to) murder in relation to her four-year-old twins

  1. R v P, above n 65.
  2. (10 October 1951) Parliamentary Debates (NSW) Legislative Council 3499.
  3. R v P, above n 65, at 118.

and attempted murder in relation to her five-year-old son.71 The trial judge thought that this was the first time that a charge of infanticide had been laid alongside charges of murder and attempted murder but that “[c]learly, [the woman’s] mental state as I conclude it to be, affects all four charges”72 and that this operated to “reduce but not eliminate, [the [woman’s] moral culpability.”.73 She was sentenced to imprisonment for 26.5 years, with a non-parole period of 20 years, with the sentence for the infanticide accounting for one year of this total. On appeal,74 the sentence was reduced to 18 years with 14 years’ non-parole, with the Court of Appeal considering that the acceptance of the guilty plea by the prosecution effectively “acknowledged that all four offences were committed in circumstances arising from, or causally connected to, a disorder consequent upon the applicant recently having given birth”75 and was “not irrelevant”76 to the sentencing decision.77

The case was appealed to the High Court of Australia in 2020.78 The High Court of Australia also considered the Victorian Law Reform Commission recommendation but took a different approach to the Court of Appeal, stating clearly:79

The irrelevance of the plea to the charge of infanticide

The Crown’s acceptance of the respondent’s plea to the charge of infanticide was irrelevant to the sentences to be imposed on the other charges. By its rejection of recommendation 3(ii) of the Commission’s Report, Parliament signified that it is impermissible in a matter of this kind to view offences other than infanticide “in light of the statutory definition of infanticide in s 6(1) of the Crimes Act”. Consequently, where a woman, like the respondent, who, due to a disturbance of mind the result of childbirth, kills one of her children of less than two years of age and, at the same time, kills or attempts to kill another or others of a greater age, she stands to be sentenced on the charge of infanticide in accordance with s 6(1) but to be sentenced for the other offences without reference or regard to s 6(1), or to the mental condition that it describes.

The effect of this decision is therefore that the correct approach to sentencing in Guode was to take into account the state of mind of the

  1. R v Guode [2017] VSC 285. 72 At [56].

73 At [58].

74 Guode v R [2018] VSCA 205 at [58].

75 At [67].

76 At [65].

77 Interestingly, the Court of Appeal at [64] noted that the Victorian Law Reform Commission, above n 31, in 2005 had considered how infanticide might apply in this situation, and had concluded at 267 that “it is unjust that a woman who, due to a disturbance of mind, killed more than one child, can rely on infanticide for one child but not the other”. While the Commission had recommended amending the law to cover this situation this had not been adopted.

78 R v Guode [2020] HCA 8, (2020) 267 CLR 141.

79 At [20].

woman in relation to the killing of the 16-month-old, but then to disregard it in relation to the older children. The language of the New Zealand legislation avoids any logical inconsistency that results from this.

In a manner that amounts to culpable homicide

The fifth element is that the child must be killed “in a manner that amounts to culpable homicide”. Under s 158 of the Crimes Act, homicide is the “killing of a human being by another, directly or indirectly, by any means whatsoever”, with the born alive rule in s 159(1) providing a definition of “human being”:

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.

Section 160 then defines culpable homicide as:

(2) Homicide is culpable when it consists in the killing of any person—

(a) by an unlawful act; or

(b) by an omission without lawful excuse to perform or observe any legal duty; or

(c) by both combined; or

(d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his or her death; or

(e) by wilfully frightening a child under the age of 16 years or a sick


(3) Except as provided in section 178, culpable homicide is either murder or manslaughter.

The effect of this element therefore, is that the child must be born alive and then killed by the woman by one (or more) of the five forms of culpable homicide found in s 160.

Despite the requirement of “killing”, the potential for infanticide to apply in cases where the child does not actually die (attempted infanticide) has been discussed above.

The issue of whether “culpable homicide” could be established was considered in R v G.80 G provided evidence that she believed that her child had been stillborn. She testified that she had felt “cheated” by the loss of the child, and had cut the umbilical cord with scissors, then used the scissors to slash the baby.81 Medical evidence showed that the child had in fact been born alive, but had died from the scissor-inflicted injuries. The Court determined that infanticide was not available in this case as her actions were not “unlawful” as required under s 160(2) due to her belief that the child was dead at the time of her actions.

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

81 At 277.

At a time when the balance of her mind is disturbed ...

The final requirement is that the balance of the woman’s mind be 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.

The first part of this requirement is that there must be a “disturbance of the mind”. While this might appear to be a medical standard (similar to the “disease of the mind” requirement in insanity), the discussion above on the history of infanticide reveals that the United Kingdom Parliament phrased a socio-economic rationale for infanticide laws as a medical rationale. Seeking a medical definition for “disturbance of the mind” will not therefore be helpful. It is a legal term of uncertain definition.

The phrase first appeared in the 1922 United Kingdom Act, although it is interesting to note that the Bill as introduced did not contain this requirement. The provision had initially contained the requirement that “the woman had not fully recovered from the effect of giving birth to the child”. In the Committee stage, this was amended to “she 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”.82 The Lord Chancellor proposed the amendment and explained that this was intended to address the situation where the woman has “not been completely mistress of her faculties” and has been “distraught”. The phrase “disturbance of the mind” was not intended to have any more precise a definition than this, but was simply a “formula which might be the subject of reasonable judicial decision”. Overall, the Lord Chancellor concluded “the word I have used, ‘disturbance,’ is on the whole the best that can be adopted”. The only additional hints for interpretation in the debates were the clarifications that “you must establish some exceptional derangement and disturbance” and that infanticide was not intended to apply to:

... a normal healthy woman, who ... has gone through the ordinary physical suffering of a woman in childbirth, aggravated by such additional mental suffering as a woman who has an illegitimate child ...

Having a “disturbance of the mind” is clearly intended to be differentiated from a “disease of the mind” as found in the insanity defence, particularly since s 178(3) creates a separate option for a jury to find the woman not guilty on account of insanity. It is also a different standard to “abnormality of mind” as found in the United Kingdom partial defence of diminished responsibility.83 Its precise definition however, is not clear and has also been debated during the legislative process in other jurisdictions.

82 (25 May 1922) 50 GBPD HL 758.

  1. PT d’Orbán “Women who Kill their Children” (1979) 134 Brit J Psychiat 560 at 570.

In New South Wales, one member thought the provision could apply to a “distracted mother” and another described it as the equivalent to “insanity”.84 In Victoria, one member questioned whether the “disturbance” must have a medical reason, or whether “poverty or the unemployment of her husband” at the time of the childbirth might be sufficient.85 Another member concluded that “the definition is not as happy as it might be”.86

An interesting discussion has occurred in Canada in relation to their infanticide provision. In R v Coombs Veit J described the threshold for “disturbance of the mind” as being “very low ... , certainly far below that required for an individual to be regarded as not criminally responsible”.87 On appeal, it was thought that “anger” could meet the definition.88 Eight years later, Veit J concluded that the term “doesn’t mean mentally ill

... it means just what ordinary people mean when they say it”.89 The most important discussion has occurred in R v B(L).90 The trial judge explained that:91

... the disorder must not be so minimal that finding it crosses the threshold cheapens or disrespects the memory of the innocent victim. On the other hand, it must not be so severe as to be almost indistinguishable from [the insanity] defence, nor should it inject into the mix something which Parliament apparently decided to exclude, the element of causation.

On appeal, a different approach was taken.92 The Ontario Court of Appeal considered that because there was no requirement of a causative link between the disturbance of the mind and the killing, the disturbance of the mind was part of the actus reus and not the mens rea. There is therefore no threshold required.

There does not appear to have been a discussion in New Zealand as to the threshold required (or even if a threshold is required) for a disturbance of the mind. In practice, the question of whether the mind

  1. (3 October 1951) Parliamentary Debates (NSW) Legislative Assembly 3347. Note that in 2020 New South Wales amended this phrasing to one of “mental health impairment” in the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW).
  2. (28 April 1949) 229 Parliamentary Debates (Vic) Legislative Assembly 571–572.

86 At 576.

87 R v Coombs 2003 ABQB 818, 343 AR 212 at [14].

88 See also R v Gorrill (1995) 139 NSR (2d) 191 (CA) where it was thought that anxiety over family disapproval might be sufficient, and R v Del Rio [1979] OJ No 16 (SC) which referred to ordinary difficulties of motherhood.

89 R v Effert 2011 ABCA 134, 502 AR 276.

90 R v B(L) (2008) 237 CCC (3d) 215 (ONSC).

91 At [59].

92 R v B(L) 2011 ONCA 153, 270 CCC (3d) 208.

is disturbed tends to be treated as one of fact, and is determined based on the evidence of experts.93

The second part of this requirement that requires discussion is the link between the disturbance of the mind and the killing of the child. Section 178(1), adopting the phrasing of the United Kingdom Act, states that infanticide can apply where the woman kills the child and “at the time of the offence the balance of her mind was disturbed”. When this language is compared to that of the insanity provision (which requires that the relevant act occur “when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable

... of understanding”) this infanticide language takes on significance. Insanity requires that the disease of the mind was operating to such an extent as to render the person incapable of understanding what they were doing (in other words, it requires a causative link between the action and the disease of the mind) whereas infanticide merely requires there to be a disturbance of the mind at the time of the action (in other words, it does not require a causative link between the action and the disturbance of the mind). Infanticide therefore requires only a temporal link, not a causative link.94 This lack of causative link has been noted in the United Kingdom as being “quite foreign to English law”95 and “rather unusual” in comparison to the other mental condition defences in the United Kingdom.96

Why only a temporal link was chosen is unclear, but it could be suggested that this language reflects a level of recognition that infanticide tended to result from socio-economic issues, and was simply given a medical veneer to make it seem more acceptable. It might also have been intended to make it easier on the woman, who would otherwise have to prove this causative link. This would require medical evidence, which would likely have been beyond the means of the poor unwed mother.97 It does, however, have the undesirable consequence of

  1. While the evidence of experts will generally be accepted, see E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 in which two experts gave conflicting testimony as to the cause of the woman’s mind being disturbed, resulting in the jury rejecting infanticide.
  2. See Judith A Osborne “The Crime of Infanticide: Throwing Out The Baby With The Bathwater” (1987) 6 Can J Fam L 47, noting at 55 that the Act did not recognise the existence of a link between childbirth and infanticide, but in fact created it and Nigel Walker Crime and Insanity in England (Edinburgh University Press, Edinburgh, 1968) vol 1 at 134–135, that the law presumes that if the mind is disturbed there must be a causative link. Mason, above n 22, more subtly comments at 445 that the language “more than likely simplifies the association between childbirth and mental disorder”.
  3. Walker, above n 94, vol 1 at 133.
  4. Mason, above n 22, at 450.
  5. Helen Howard “The offence/defence of infanticide: A view from two perspectives” (2018) 82 JCL 470 at 476 also suggests that this might benefit a woman who is in denial about her mental state.

suggesting that all women suffer some level of disturbance of the mind following childbirth.98 One issue arising from this lack of a causative link is whether infanticide is available where the woman suffers from a pre-existing condition, and it is not clear whether one or both the pre- existing condition and/or the effects of childbirth or lactation has led to the killing.99 In the United Kingdom, R v Tunstill100 concerned an appeal against a decision of the trial judge that infanticide was not available (although diminished responsibility was) when the woman suffered from a pre-existing condition described as either paranoid schizophrenia or severe depression with psychotic symptoms, and the defence “could not definitively point to the mind being disturbed due to childbirth, as opposed to the pre-existing condition”.101 The appeal was allowed, with the Judge noting that “the intent behind the legislation was to be merciful” and that “as long as the failure to recover was an operative or substantial cause”102 of the disturbance of the mind, that would be sufficient to permit infanticide to apply. A similar approach has been taken in Canada, where in R v B(L) it was noted that the disturbance of the mind “can have a variety of causes ... it would appear that biological, social and psychological factors all intersect”.103 In this case, the woman’s pre-existing depression/anxiety and obsessive-compulsive disorder might have predisposed her to suffer post-partum mental disturbance. This was sufficient for infanticide to be available. This issue of pre- existing conditions does not appear to have been considered in New Zealand cases.

The final part of the requirement is that the mind must be disturbed by reason of her not having fully recovered from childbirth, or by reason of the effects of lactation. The reference to lactation was introduced in the 1938 United Kingdom Act, and it appears that this introduction was linked to the increase of the baby’s age from newborn to 12 months. Given that 12 months was the usual period of lactation at the time, this helped explain why the courts were seeing an increasing number of married women being charged with the killing of children in their first year of life, and not immediately on birth.

  1. At 474, although see Ogle and Maier-Katkin, above n 20, at 906, who disagree, stating that illnesses associated with childbirth are simply inevitably suffered by women.
  2. As an example of how common this might be, the New South Wales Law Reform Commission in 2013 referred to four reported infanticide cases in the period 2001–2011. The transcripts for one of these cases were destroyed, but in the other three cases the woman suffered from a pre-existing mental illness, and in two cases there was medical evidence that the circumstances of caring for the newborn child had exacerbated the pre-existing condition: New South Wales Law Reform Commission, above n 36, at [5.18].

100 R v Tunstill [2018] EWCA Crim 1696, [2019] 1 WLR 416. 101 At [16].

102 At [31].

103 R v B(L), above n 90, at [66].

The lack of scientific evidence linking lactation to a disturbance of the mind has troubled some jurisdictions and commentators,104 with Victoria and New South Wales subsequently removing this requirement.

To that or any other child

The final requirement in the New Zealand provision is that the disturbance of the mind can relate to either the child killed or any other child. As has been discussed above, this is a different approach to that taken in the United Kingdom and in the Australian states, which require the child killed to be the same child whose birth or lactation has resulted in the disturbance of the mind.

This language was applied in R v P where the victim was five years old and the mother’s mind was disturbed by breastfeeding a six-month-old baby, and also in R v CRS105 where the mother was suffering from a major depressive condition following giving birth to her fourth child (who had not been born alive) when she caused the death of her fifth child.106

6 Sentencing for Infanticide

While the Australian states and New Zealand adopted the language of the United Kingdom offence and partial defence of infanticide, there is some difference in the sentence imposed. The United Kingdom, New South Wales and Tasmania all sentence a woman convicted of infanticide as if for manslaughter. In comparison, Western Australia imposes a maximum of seven years’ imprisonment, and Victoria imposes a maximum of five years (reduced from the original six years). In New Zealand, under s 178(1), if the woman is charged with infanticide and found guilty, she is liable to imprisonment for a term not exceeding three years. Under subsection (2), if she is charged with murder or manslaughter the jury may return a verdict of infanticide or manslaughter.107

In the majority of reported cases in New Zealand the sentence imposed will generally be community based.108 In R v Wright109 the Court of Appeal noted that there were about 50 infanticide cases heard in the courts between 1979 and 1988, all of which resulted in community-

  1. Lorana Bartels and Patricia Easteal “Mothers Who Kill: The Forensic Use and Judicial Reception of Evidence of Postnatal Depression and Other Psychiatric Disorders in Australian Filicide Cases” [2013] MelbULawRw 15; (2013) 37 MULR 297 at 299.
  2. R v CRS, above n 51.
  3. She had in fact concealed the body of her fourth child, for which she was sentenced to supervision. She was pregnant with the fifth child during the trial: at [5]–[6].
  4. Under s 177 of the Crimes Act a person convicted of manslaughter is

liable to imprisonment for life.

  1. Although it was noted in R v Golovale-Siaosi HC Dunedin CRI-2006- 012-2533, 11 December 2007 at [6] that there was no tariff sentence for infanticide.
  2. R v Wright [2001] NZCA 138; [2001] 3 NZLR 22 (CA).

based sentences.110 The reported cases after this time appear to follow the same pattern.

In R v Moke,111 approved in R v Metuatini,112 it was noted that the sentencing purposes of denunciation and deterrence, which are usually considered relevant in child maltreatment cases, were not relevant to the offence of infanticide.113 Instead, rehabilitation should be considered the most relevant sentencing purpose. For this reason, the sentence imposed is “generally”114 two years’ supervision,115 although intensive supervision116 and/or community work117 might alternatively be imposed.118 A lesser sentence of conviction and come up for sentence if called upon119 was considered but rejected in R v CRS120 as an “unrealistic possibility” due to the need to impose “some form of sentence to reflect what has happened”.121

  1. At [27]. Although see R v Henry CA187/78, 21 March 1979 where a two- year sentence of imprisonment was set aside in favour of six months’ imprisonment and one year’s probation.
  2. R v Moke HC Wellington T46/97, 12 September 1997.
  3. R v Metuatini, above n 51, at [15].
  4. The sentencing purposes in New Zealand are found in s 7 of the Sentencing Act 2002.
  5. R v Golovale-Siaosi, above n 108, at [7].
  6. Supervision under ss 45–54A of the Sentencing Act is a community-based sentence imposed for between six and 12 months (s 45(2)) and involves the offender being monitored (s 49) and potentially assessed and treated for mental health issues (although this cannot include residential treatment): ss 50–51(b). In R v Golovale-Siaosi, above n 108, at [7] John Hansen J referred to multiple cases in which supervision was considered the appropriate sentence.
  7. Intensive supervision under ss 54B–54L of the Sentencing Act is a community-based sentence imposed for up to two years. It differs from supervision due to its length (s 54B(2)), and also the ability to impose residential treatment during this time: s 54H(a)–(b). In R v H HC Wellington CRI-2007-032-2799, 31 July 2009, Mallon J noted at [12] that either supervision or intensive supervision is “almost invariably imposed”. This can be subject to conditions: in R v CRS, above n 51, the woman had agreed to take birth control measures, but was required as a condition to inform the probation officer if she became pregnant again: at [26(c)].
  8. Community work under ss 55–69A of the Sentencing Act is a community- based sentence. It can require the offender to complete between 40 and 400 hours of community work: s 55(2).
  9. While community work is not often imposed, see R v Wright, above n 109, where the offender was sentenced to both supervision and community work.
  10. This sentence under ss 110–111 of the Sentencing Act, results in sentencing being deferred provided the offender meets certain conditions (often a good behaviour bond) for a period of up to one year.
  11. R v CRS, above n 51. 121 At [23]–[24].

The preference for community-based sentences is also seen in New South Wales. The 1997 Law Reform Commission report noted the normal sentence imposed was non-custodial.122 In Victoria, in all but one of the six convictions, a community corrections order was imposed.123 The one exception was R v Guode discussed above, in which the woman pleaded guilty to one count of infanticide, two counts of murder and one count of attempted murder.124 She was sentenced to 26.5 years’ imprisonment (reduced to 18 years on appeal), of which one year was allocated to the infanticide charge.

7 The Future of Infanticide

Since its enactment, s 178 has undergone only minor, non-substantive, amendments. Its continued relevance has, however, been considered on several occasions. In 1976 the New Zealand Criminal Law Reform Committee recommended the removal of partial defences for murder, although after further consideration thought that infanticide should be retained.125 In 1991, a new Crimes Bill was proposed. This would have replaced the infanticide provision with one of “[c]ulpable homicide by mother of child”.126 This Bill was not enacted. In 2000, the Law Commission in a preliminary paper considered adopting a partial defence of diminished responsibility, noting that if this occurred there would “[a] rguably” be no need for the infanticide provision.127 In its final report, however, it backtracked and removed infanticide from consideration for repeal on the basis that “it functions as an offence as well as a partial

  1. New South Wales Law Reform Commission Partial Defences to Murder: Provocation and Infanticide (Report 83, October 1997) at [3.45]. In addition, in R v TS NSWDC, 27 February 2008, where the mental illness was not as apparent as in the other cases, a suspended sentence was also imposed.
  2. Although it should be noted that in one of these cases, R v Nikat [2017] VSC 713, the seriousness of the offence meant that this was not appropriate. The woman had smothered her 15-month-old daughter and left the body in a creek: at [17]. She subsequently tried to claim that a man had taken the child: at [20]. She was sentenced to a community correction order (at [44]), but it was noted at [43] that this would have been nine months’ imprisonment if she had not already served that waiting for trial.
  3. R v Guode, above n 71; Guode v R, above n 74; and R v Guode, above n 78.
  4. New Zealand Criminal Law Reform Committee Report on Culpable Homicide (July 1976), referred to in Law Commission Battered Defendants: Victims of Domestic Violence Who Offend (NZLC PP41, 2000) at [99].
  5. Crimes Bill 1991 (152-1), cl 124. Sub-clause (1) of this provision stated:

Where, upon the trial of a woman for culpable homicide of any child of hers under the age of 10 years, the jury is of the opinion that at the time of the killing the woman was mentally disturbed, through not having fully recovered from the effect of giving birth to that child or any other child, or through any disorder consequent upon childbirth, to such an extent that she should not be held fully responsible for the killing, the jury may return a verdict of culpable homicide with mitigating circumstances.

  1. Law Commission, above n 125, at [127], n 189.

defence”.128 In 2005, the New Zealand Law Commission Annual Report referred to a Ministry of Justice Cabinet Paper recommending the repeal of infanticide, and this potential repeal was subsequently listed on the Law Commission’s work programme for 2008-2009. It was removed from the work programme in November 2009, leaving infanticide in place.129

A reconsideration of infanticide laws has also occurred in other jurisdictions, as part of wider reviews of homicide and/or partial defences (New South Wales,130 Victoria,131 and Western Australia132), or as part of a review of mental health impairments in the criminal justice system (New South Wales133).

Reviews of infanticide provisions tend to discuss two types of issues: practical and theoretical. These will be discussed below, before returning to the question of whether infanticide has a continuing place in New Zealand law.

Practical issues

The main practical issue that arises in other jurisdictions is with its lack of use, suggesting that it is out of date and no longer needed. The Australian states all report only a few reported examples of its use since enactment. Indeed, in 2005 the Law Reform Commission of Western Australia recommended its repeal on the basis that that its “most compelling criticism” was that it is very rarely charged, and that in over 20 years, there had been no indictments for infanticide.134 In the parliamentary debates on the Criminal Law Amendment (Homicide) Bill 2008 (WA), which would repeal the law, it was noted infanticide was an “old-fashioned” offence.135 Similarly, in the United Kingdom, in R v Kai-Whitewind, the Court commented that “[t]he law relating to infanticide is unsatisfactory and outdated.”136 The original infanticide laws were introduced in response to situations where socio-economic factors led to a woman killing her child shortly after birth. These factors often included stigmatisation and lack of financial support from society for unwed mothers. It can be suggested that society has developed significantly in the 100 years since the first law was enacted, with the social stigma associated with becoming pregnant out of wedlock being greatly reduced (although admittedly it remains present in some cultural/religious beliefs), and the availability of contraception and abortion have provided a woman with more options in relation to her

  1. Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001) at [155], n 127.
  2. Law Commission Annual Report 2009–2010 (NZLC R117, 2010) at 52.
  3. New South Wales Law Reform Commission, above n 24; and New South Wales Law Reform Commission, above n 122.
  4. Victorian Law Reform Commission, above n 31.
  5. Law Reform Commission of Western Australia, above n 44.
  6. New South Wales Law Reform Commission, above n 36.
  7. Law Reform Commission of Western Australia, above n 44, at 115.
  8. (19 March 2008) Parliamentary Debates (WA) Legislative Assembly 1211.
  9. R v Kai-Whitewind [2005] EWCA Crim 1092, [2005] 2 Cr App R 457 at [140].

reproductive autonomy. Further, social welfare benefits are now available to help with the financial aspects of raising a child, through Work and Income New Zealand and Oranga Tamariki. Taking these developments into account, infanticide could be seen as “old-fashioned” and no longer needed. However, this view appears too limited. Many of these changes were beginning to occur in the late 1930s when the second United Kingdom law was introduced, and while these did appear to reduce the number of unwed women killing their children, they also revealed that infanticide was not solely being carried out by that particular group in society. Married women began to be more frequently charged with infanticide. Since then, cases seem to suggest that the most common demographic of women using infanticide are those with underlying mental health issues (or perhaps suffering from abusive relationships) and that these issues have been exacerbated by the challenges of new motherhood. With this understanding, infanticide is not “old-fashioned”, but is simply being utilised by a different group of women.

The New South Wales report also noted that infanticide had been very rarely used in that jurisdiction. While this might suggest that this is evidence that infanticide is no longer needed, it could also indicate that it is playing an important role behind the scenes. Homicide statistics in most jurisdictions demonstrate that the most common victim age range for homicides is the zero to one year age range. These statistics also tend to suggest that the majority of killings in this age range are carried out by one of the child’s parents, usually the mother. What is happening in these cases then, if they are not being prosecuted under infanticide laws? Some will be charged with murder or manslaughter, but it appears that in the majority of cases no charges are brought. This might suggest that there is insufficient evidence to demonstrate culpable homicide beyond reasonable doubt, but it might also indicate the applicability of prosecutorial discretion, and that the presence of the infanticide provisions is sending a message to prosecutors about the appropriateness of prosecuting these women. If infanticide provisions are removed, this will also send a message to prosecutors, and the amount of women being charged with murder or manslaughter might increase.

Another practical issue with infanticide in overseas jurisdictions is its narrow scope. It is only available to a woman, who kills a child at a time when her mind has been disturbed from giving birth to, or lactating a child. As has been seen, in the United Kingdom and Australia the child killed must be the same child whose birth or lactation has caused the disturbance of the mind (although this is not required in New Zealand). The fact that the law cannot apply to men or the birth mother’s female partner, or to other caregivers (unless, in New Zealand, they can show a disturbance of the mind consequent to birth or lactation of a biological child as seen in R v K), can be seen as problematic. In New Zealand, it is arguable that the lack of ability to apply infanticide to a father can be seen as out of step with societal reality that the woman is not always the primary caregiver of the child. The Law Reform Commission of Western Australia used this gender restriction as a justification for repealing

their infanticide law, commenting that the law assumed an “artificial biological relationship between mental impairment and childbirth”137 and that one of the Commission’s guiding principles was that there should be no offences or defences that applied only to specific groups of people on the basis of gender or race.138 The Victorian Law Reform Commission considered broadening “woman” to include caregivers, but the “overwhelming response” of submitters was to not change this.139

In addition, the initial United Kingdom provision required the child to be newborn, which meant that the killing of children after a few days or weeks of life could not fall within its scope. For this reason the age was raised in the United Kingdom, and the Australian states adopted higher ages. The age limit is now one to two years in these jurisdictions (and 10 years in New Zealand). One consequence of this age limit and the requirement that the child killed be the same child whose birth or lactation caused the disturbance of the mind is that the law has no applicability where the woman kills an older child in these jurisdictions (see R v K in New Zealand where the law did apply) or where the woman kills several of her children (see R v Guode in Victoria). If it is accepted that the woman’s mind is disturbed, it seems strange that it can be disturbed in relation to the killing of one child but not another.

Theoretical issues

In addition to the practical issues described above, there are also some theoretical difficulties with infanticide. One theoretical objection is that, by not requiring a causation element, the infanticide provision creates a presumption that all women who have given birth suffer from a disturbance of the mind for the first several years of the child’s life (and in New Zealand, for the first 10 years). From a feminist or woman’s rights perspective, this is clearly an undesirable (and medically unsupported) distinction.

A second theoretical issue, and the one most commonly cited, is the medicalisation myth. As was demonstrated earlier, the United Kingdom Parliament adopted language suggesting a medical rationale despite recognising infanticide as a socio-economic problem. The lack of medical evidence to support the language that a woman’s mind can be disturbed by either giving birth or lactating has long been a criticism of the law, and has been used to argue that the law should be repealed (or the reference to lactation should be removed140). While repeal might appear to be justified on this basis, however, it should be recognised that repealing

  1. Law Reform Commission of Western Australia, above n 44, at 108. 138 At 108.
    1. Victorian Law Reform Commission, above n 31, at [6.28]–[6.31] and [5.29].
    2. See New South Wales Law Reform Commission, above n 36, at [5.54]. In Victoria this requirement was removed in 2005 as it “does not adequately reflect modern medical understanding of the unique and complex factors” that lead to infanticide: (6 October 2005) Parliamentary Debates (Vic) Legislative Assembly 1352.

infanticide without replacing it with a provision that more accurately reflects the issues faced by these women, will merely return the law to the pre-1922 United Kingdom position where these women would face murder charges.141 In 1975 when the Butler Committee suggested repeal, this was met by a “spirited defence” of the provision by police, lawyers and women’s right organisations. As Lansdowne comments, this was an example of “common sense and common knowledge triumphing over tidy scientific classification”.142 When infanticide was considered again in 1980, the United Kingdom Criminal Law Review Committee took the different approach of amending the language relating to the reasons for disturbance of the mind to include “circumstances consequent upon birth”, which would cover environmental and social stresses.143

A third, and broader, theoretical issue is whether subsequent criminal law reforms have left infanticide unnecessary, or an anomaly in the criminal law. At the time infanticide was introduced in the United Kingdom, the penalty for murder was the death penalty. It was this inflexible and unacceptably harsh penalty that led to the enactment of the infanticide provision. Since its enactment, however, a more flexible sentencing regime has been introduced in the United Kingdom. If infanticide was repealed and the woman was therefore convicted of murder, the harshness of the death penalty will no longer apply, with the sentencing judge having more discretion to determine a fair penalty.144 Since New Zealand also has a flexible sentencing regime,145 this might suggest that a separate provision for infanticide is not required (particularly given the fact that most infanticide cases in New Zealand are charged as murder cases anyway).

It has been noted in the United Kingdom that at the time the infanticide provision was enacted in the United Kingdom, there were no other partial defences available. This meant that if the woman could not satisfy the defence of insanity, she would be found guilty of murder. In 1957 the United Kingdom introduced the partial defence of diminished responsibility. Section 2 of the Homicide Act 1957 states:

  1. Osborne, above n 94, notes at 58 that:

Removing infanticide from the law on the basis of outmoded medical knowledge ignores the fact that the medical rationale was never in vogue or scientifically established. It was simply more conventional, conservative and less contentious than the reasons for the courts’ lenient treatment of murdering mothers.

  1. Lansdowne, above n 10, at 41 (footnote omitted).
  2. Criminal Law Revision Committee Fourteenth Report: Offences against the Person (Cmnd 7844, March 1980) at [105]–[106].
  3. See McSherry, above n 2, at 311.
  4. Flexible sentencing was introduced into New Zealand in the Sentencing Act. Law Commission, above n 125, explains at [125] that the removal of diminished responsibility occurred because the abolition of the death penalty was deemed to render this unnecessary.

(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised medical condition,

(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D’s conduct;

(b) to form a rational judgment;

(c) to exercise self-control

In 1975 the Butler Committee report suggested that infanticide cases could be subsumed under diminished responsibility.146 Similarly, Thomas notes that there were only five reported convictions for infanticide between 2012 and 2017 and suggests that this limited use was “due largely to the availability of diminished responsibility”.147

New South Wales introduced diminished responsibility in 1974. In its 1997 review of infanticide the Law Commission noted that there had been only two infanticide cases from 1990 to 1996, and that diminished responsibility could have been applied in both.148 It recommended the repeal of infanticide, conditional on diminished responsibility remaining part of New South Wales law. This recommendation was not acted on.

If it is the case that infanticide cases could be subsumed under diminished responsibility, this could justify the repeal of infanticide. Howard, however, argues that this is not the case. She argues that the requirements of diminished responsibility are narrower, and notably in the United Kingdom definition, require both the existence of a “recognised medical condition” and a causative link between that and the killing.149 This argument is, of course, of little relevance in New Zealand, given that New Zealand criminal law does not include a defence of diminished responsibility.150

  1. Home Office Department of Health and Social Security Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244, October 1975) at [19.22]–[19.26]. However, see Criminal Law Revision Committee, above n 143, which reached a different conclusion, considering that there were “obvious differences” between the two offences: at [D.5].
  2. Mark Thomas “Infanticide and Pre-Existing Mental Conditions: Disentangling the Causal Factors Relevant to a Jury’s Deliberations: R v Tunstill [2018] EWCA Crim 1696” (2018) 82 JCL 366 at 366. Although note that the more recent case of R v Tunstill, above n 100, casts doubt on whether diminished responsibility can be used when the elements of infanticide are met.
  3. New South Wales Law Reform Commission, above n 24; New South Wales Law Reform Commission, above n 122, at [3.7].
  4. Howard, above n 97.
  5. A partial defence of diminished responsibility was introduced at the same time as infanticide in cl 170 of the Crimes Bill 1961 (82-1), but was removed before enactment.

A final issue for consideration is the role of partial defences more generally. In 2003 the Minister of Justice recommended to the Cabinet Policy Committee the repeal of both partial defences of infanticide and provocation.151 Partial defences were described as “legally anomalous” and “singling out” some mitigating factors when others might be equally valid, and “increase the complexity of issues to be determined by the jury”. They developed historically in relation to murder due to the harshness of sentencing (capital punishment, then mandatory life imprisonment). With flexibility in sentencing being introduced under the Sentencing Act 2002, there was no longer a need for flexible sentencing.

Should the infanticide provision in New Zealand be considered?

While New Zealand has considered repealing infanticide in the past, it is arguable that the provision in the Crimes Act still has a valuable role to play, and should be retained. The practical problems identified with infanticide in other jurisdictions do not appear to apply to the same extent in New Zealand. Given the broader language used in s 178, this section has seen significantly more use than in Australia. That is not to say that amendments should not be considered, however. Changing societal approaches to parenthood should result in a reconsideration of whether it is appropriate that the section is restricted to women (who have recently given birth or are lactating) and not available to men or other caregivers. While such an extension was rejected by submitters to the Victorian Law Reform Commission 2005 project, this might not be the opinion of New Zealanders, given the passing of almost two decades in which men have become more visible as primary caregivers, and also given the growing recognition that the link between the disturbance of the mind and giving birth/lactating is not medically supportable. How the section could be broadened to include men and other caregivers will require significant thought, but could be achieved by adding an additional reason for disturbance of the mind relating to their role as caregiver.

In terms of the theoretical arguments, the lack of medical support for the language of the provision should also be considered. While it seems conceptually challenging to accept the presence of medicalised language that does not reflect medical understanding, it is not clear that there is an alternative phrasing that will achieve the desired results. The New South Wales amendment to “mental health impairment” is one option, but this language also appears to have the potential to cause problems. (Would the woman need to have a diagnosed mental health condition? How much must this “impair” the woman? And what must this impairment be in relation to?) While the current language is clearly flawed, this is at

  1. Cabinet Paper “Criminal Defences Reform: Necessity and Partial Defences (Provocation and Infanticide)” (18 November 2003) POL (03) 367. The partial defence of provocation was subsequently repealed in 2009 by s 5 of the Crimes (Provocation Repeal) Amendment Act 2009.

least recognised by all involved, and its use thus far does not indicate any fatal errors with its application.

The lack of a causation element does make infanticide an anomaly in the criminal law, and its implication that all women become disturbed following birth is highly problematic, but this must be balanced with the consequences of introducing such a requirement. Requiring causation between disturbance of mind, childbirth or lactation and the killing might make the partial defence too difficult for women to satisfy (particularly if there is an underlying mental health condition) and might reduce the likelihood of the prosecution considering a charge of infanticide (or the acceptance of a guilty plea to infanticide following a murder charge). Like the medicalisation myth, the lack of causation element and its consequences might remain as something New Zealanders are willing to live with, for the greater benefit of having a workable defence of infanticide.

The final reform consideration overseas, that infanticide could be subsumed into diminished responsibility has less relevance in New Zealand than in other countries. There is no partial defence of diminished responsibility in New Zealand, and it does not appear that there is any real support for its introduction. Even if this was introduced, it is not clear that all infanticide cases could satisfy the elements of diminished responsibility, placing women in a worse position for the sake of perceived coherence of the criminal law.

Overall, while the law of infanticide might benefit from a consideration of expansion of its gendered language, the otherwise broad nature of its language has resulted in it playing an important role in recognising the realities faced by women and the increased likelihood of mental health issues faced by women in the post-birth period.


Infanticide provisions internationally have long been recognised as serving an important purpose, but doing this through the use of wording that is medically inaccurate and conceals the nature of the real issues faced by women following childbirth. Most commonwealth jurisdictions which have enacted infanticide laws following the United Kingdom 1922 and 1938 Acts have subsequently reconsidered these provisions, including New Zealand. This article has discussed the scope of the law of infanticide in New Zealand, and its use in the courts, before turning to consider law reform options raised in other jurisdictions. While it might sound strange to recommend the continuation of a law that is drafted as a medical defence but is not supported by medical evidence, the offence/partial defence serves an important purpose that could not be easily met by other means. Infanticide should therefore be retained as an offence and partial defence in the Crimes Act, although consideration should be given as to how (or if) to provide a similar understanding of the stresses of parenthood for men and other caregivers.

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