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Infanticide in Australia and the US

Posted by Dr Mike O'Connor on 22 March 2023

I was recently in Orlando Florida for the 63rd Annual Conference of the American College of Legal Medicine.

The Australasian CLM has recently established strong links with the American counterpart and my invitation to talk was based on that nexus.

I talked about Infanticide laws in Australia which is something that American jurisdictions lack and hence many women are convicted of first degree murder for killing an infant. Four States in the US (Montana ,Utah, Kansas, and Idaho ) have no provision for insanity as a defence for homicide.

The rate of infanticide in the US is 4 fold greater than in Australia (8 per 105) births.

It is believed that up to 10% of SIDS-related deaths may be wrongly diagnosed and are really infanticides (Taylor & Emery 1982;Emery ,1993) who claimed that between one tenth and one fifth of children currently diagnosed as cases of sudden infant death syndrome are not natural deaths.

Smothering is almost impossible to prove as the infant will almost never show conjunctival haemorrhage (petechiae) or other signs that may be seen in strangulation. It is only if the mother has exerted excessive pressure that marks are left on the face or lips. These must be definite intradermal or deep bruises, abrasions or marks within the lips or mouth.

The precipitating factors include post partum psychosis especially where the child is killed after 24 hours (’filicide’) One series found that 42% of those mothers were mentally ill and of those 15% were psychotic (d’Orban ,1990) . By contrast none of the neonaticidal mothers in a 1999 series by the same UK author were mentally ill. No association has been found between progesterone, oestrogen or cortisol and postpartum mood disorders or psychosis. The mothers who are not mentally ill may nevertheless have factors such as extreme sleep deprivation, isolation; attachment disorders from their own childhood and what can be termed ‘Overwhelmed syndrome’ especially for the 35% of women who have no Australian grandparent to support them.

Under the NSW Crimes Act 1900, a woman can be found guilty of infanticide if she intentionally kills her baby because she has not fully recovered from giving birth to it. This offence is governed by Section 22A of the Crimes Act. The criteria for a verdict of infanticide are that :

The defendant was a woman, The victim was her child, The child was under the age of 12 months, and‘ At the time of the… [defendant’s] act or omission, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth… [ where the defendant has been prosecuted for murder}.
It remains open to the jury to find her not guilty by reason of ‘mental illness’ or to return a verdict of manslaughter for other legal reasons.


Further Reading:

1. Emery JL. Child Abuse, Sudden Infant Death Syndrome, and Unexpected Infant Death. Am J Dis Child. 1993;147(10):1097–1100.
2. Harris B ‘Biological and hormone aspects of postpartum depressed mood’ Brit J Psych 164:288-292 ,1994
3. D'Orbán, P. T. (1990). Female homicide. Irish Journal of Psychological Medicine, 7(1), 64–70.

Dr Mike O'ConnorAuthor:Dr Mike O'Connor
About: Dr Mike O'Connor is an obstetrician and gynaecologist based at Kogarah in Sydney's southern suburbs. Dr O'Connor is the current Chairman of the Medical Advisory Committee at St George Private hospital. He also has a Masters in Health Law and is a Fellow of the Australasian College of Legal Medicine and acts as an expert witness in medico legal issues.

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