Introduction
… I gave birth to a baby in a shed at the back of my house. I don't know if the baby screamed after birth … I thought the baby was dead[.] I remained in the shed about 10 minutes. There was no move from the baby and I came for a jug of water … and baptised the baby. I took the baby from the shed and put it into a small bag and left it between the river and the roadway at the back of my house. I didn't harm the child in any way. I put the bag on the floor and laid the baby in it. I folded the bag over it then but if the baby was alive I wouldn't do that no matter what happened. I came into the kitchen then and washed myself and powdered my face … I did not put the baby into the river. I didn't harm the baby in any way.
The above is the statement of an unmarried 22-year-old woman who, in 1953, was convicted of the recently enacted offence of ‘infanticide’ at the Central Criminal Court; she was discharged without sentence.Footnote 1 The case is a typical example of infanticide in Ireland during the twentieth century, involving a concealed ‘illegitimate’ pregnancy, a secret birth, and ultimately the death of the baby.
Whilst there has been much written in recent years, particularly by social historians, about infanticide in Ireland between 1850 and 1950, the more recent experience has yet to be explored.Footnote 2 This paper addresses this gap, focusing on the criminal justice response to infanticide in Ireland during the period 1924 to 2015.Footnote 3 This allows for an assessment of the impact of social and legal changes that occurred in the second half of the twentieth century on criminal justice practice in these cases, including the enactment of the Infanticide Act 1949, and Ireland's transition from a conservative to a liberal society from the 1970s onwards. Taking account of these changing social and legal contexts, it will be argued that the Irish approach to infanticide from the time of independence and up to the present day has been based on implicit shared social norms about the ‘appropriate’ outcome in cases where women killed their newborn infants; the criminal law itself, though it had the potential to either impede or enable this process, had little impact on the outcome. Social norms played a vital part in the legal adjudication of these cases.
The analysis in this study highlights the importance of taking account of social norms in assessing the law and its practice, something which is relevant not only to the issue of infanticide in Ireland and elsewhere, but also to other criminal offences.Footnote 4 It also demonstrates the importance of reading legal doctrine and practice through its historical, social and cultural context, showing how failure to take account of the wider non-legal context can leave us with a deficient understanding of the law, and may even obfuscate its meaning.Footnote 5
This paper builds on my previous work on the criminal justice and legislative response to infanticide from the 1920s to the 1940s, up to the enactment of the Infanticide Act 1949. This published research has explored: the role of humanitarian and pragmatic considerations in the criminal justice and legislative response to infanticide;Footnote 6 practical and ideological influences on sentencing;Footnote 7 the meaning of the medical mitigation framework in the 1949 Act; and the influence of the Irish Catholic Church and its teachings on the drafting of that law.Footnote 8 Whilst this earlier work indirectly touches on the issue of social norms in the response to infanticide, it does not explicitly address this matter; further, it does not consider the approach to infanticide following the enactment of the 1949 law. This paper, therefore, adds another strand to the narrative of infanticide in Ireland from the time of independence from Britain, exploring for the first time the criminal justice response to maternal infant killing from 1950 onwards and explicitly focusing on the impact of the wider social context and related social norms on infanticide law and practice from the 1920s and into the twenty-first century.
Section 1 outlines the relationship between the law and society, and explains the concept of social norms, as it applies in this study. Section 2 outlines the criminal justice response to infanticide in Ireland between 1922 and 1949, drawing on my previous research on this subject and demonstrating the significance of social norms in court responses to infanticide and the enactment of the infanticide law. Section 3 presents original data and analysis of the criminal justice response to infanticide after the enactment of the 1949 statute, focusing particularly on the 1950s, 1960s and early 1970s, the period when this law was most used, and demonstrating the role of social norms in the interpretation and implementation of this statute. Section 4 examines the approach to infanticide over the last four decades, a time when Irish society went through a significant liberalisation process, infanticide as a crime virtually disappeared, and prosecutions for infanticide (in the rare reported case) ceased. Section 5 concludes the paper.
1. The relationship between the social and the legal
The concept of ‘social norms’ has theoretical, as well as popular, usage, and there is no agreed upon definition of this concept.Footnote 9 It covers a broad spectrum from moral and political principles, to expectations that guide behaviour, to imperatives or requirements which may be coercive, binding and/or carry censure or sanction when breached.Footnote 10 In this study, the term ‘social norm’ denotes the influence of the wider social context on the criminal justice response to infanticide. It embraces the idea of a generally agreed upon expectation or understanding that women who killed their newborn illegitimate babies should be treated leniently relative to other killers, something which was informed by the social context in which this crime occurred and how women who killed their illegitimate babies were, within that context, understood.
In this regard, the social and cultural context is crucial to understanding the crime of infanticide and the criminal justice response to it. Meyer and Oberman have argued: ‘Infanticide is not a random unpredictable crime. Instead it is deeply imbedded in and is a reflection of the societies in which it occurs. The crime of infanticide is committed by mothers who cannot parent their child under the circumstances dictated by their unique position in place and time.’Footnote 11 This is true of the Irish experience during much of the period under review in this study. At least until the 1970s/1980s, infanticide was linked to patriarchal norms and related legal prohibitions that insisted on female virtue and on motherhood within marriage. Women were denied reproductive autonomy (there was no legal access to contraception or abortion), and unmarried women who became pregnant faced significant social stigma and economic deprivation. Some women were effectively institutionalised in religious establishments.Footnote 12 During this time, women prosecuted for killing their infants were usually unmarried women who had concealed pregnancy, given birth in secret and killed the baby at birth.Footnote 13 Infanticide was not an uncommon crime, with 195 cases reported between 1927 and 1975.Footnote 14
Despite punitive attitudes towards unmarried mothers, there was much sympathy for the infanticide offender who was treated leniently by the criminal justice system. I have previously argued that the response was based on a tacit understanding of the circumstances involved which included acknowledgement of the wider social inequalities at play, such as the fact that the woman alone was left to bear the burden of an out of wedlock pregnancy, the fact that the crime had taken place in the context of a concealed and unassisted birth, and the supposed (from a lay, as opposed to medical, perspective) impact of these circumstances on the woman's state of mind.Footnote 15 Thus, whilst women killed their babies because of the difficulties they faced as unmarried pregnant women in a conservative and religious patriarchal society, they were, paradoxically, viewed with sympathy due to the role of these social factors in the commission of this offence.
However, sympathy was also a reflection of those same gender ideologies that contributed to the crime in the first place, and, further, evidenced a commitment to these patriarchal norms.Footnote 16 Compassion, particularly when practised by prosecutors and judges, came from those in a position of authority and control over the infanticide offender, not only because of their professional status but also their gender and wider standing in society: as professional men they had the social privilege that allowed them to dole out mercy to ‘unfortunate’, ‘poor’, ‘wretched’ women and ‘young girls’ who killed their illegitimate newborn babies. However, whilst they may have had sympathy for the offender, they showed no interest in challenging the underlying gender norms that were the root cause of these inequalities; nor was there willingness to even openly acknowledge the role of such factors.Footnote 17 Indeed, the Irish infanticide law adopted in 1949, following the English model of 1938, partially excused infanticide on the ground that the woman had a ‘disturbance in the balance of the mind caused by the effect of childbirth or lactation’, and, therefore, on the face of it, explained infanticide as a product of mental disturbance caused by biological functions, disguising the role of wider social causes.Footnote 18 Overall, the approach to infanticide, both in criminal justice practice from the 1920s onwards and in the legislation enacted in 1949, reflected a sympathetic understanding of the offender which, on the one hand, acted to mitigate the harshness of social, cultural and legal norms on unmarried pregnant women, whilst, on the other hand, serving to reproduce and support the patriarchal values that contributed to those norms and this crime.Footnote 19
When considering the role and impact of social norms on criminal justice practice, distinctions must be drawn between the lay and professional actors involved in processing these cases. In this regard, the experience in Ireland and in other jurisdictions highlights the important function of jurors in injecting the criminal process with the socially normative view that this offender did not deserve a capital conviction. From at least the nineteenth century, juries showed reluctance to convict of murder unmarried women who killed their babies at a concealed birth.Footnote 20 It is jurors, therefore, their sensibilities, sense of fairness and understanding of this offender that is the starting point for understanding the role of ‘social norms’ in criminal justice practice in these cases.
Prosecutors and judges arguably had different perspectives and objectives given their position as professionals. Inglis notes there is a difference between ‘the law’ and those who operate it, whose own backgrounds affect their understanding and application of the law.Footnote 21 However, whilst criminal justice personnel are likely to ‘understand and interpret the world differently to most of those who appear before the court’,Footnote 22 it is also true to say that, as products of the culture and society in which they operate, they too likely acquiesced to some degree at least to wider ‘social norms’ regarding sympathetic treatment of this offender. However, as will be highlighted in the following analysis, they also operated in accordance with professional expectations of conviction and punishment. The 1949 reform, and criminal justice practice both before and after, was the product of a combination of wider social norms, which sought compassionate treatment, and professional norms, which sought efficiency in conviction and punishment but conceded to the socially normative expectation of lenience in this regard.
In the enactment of the infanticide statute legal norms also played a part. According to social norms lenient treatment was sought due to an understanding of the social circumstances of this crime. However, because the criminal law does not take the social context for offending into account when ascribing criminal responsibility,Footnote 23 the reasons for treating this crime differently to other murders had to be moulded into a suitable mitigation framework that adhered to criminal law principles regarding individualised responsibility.Footnote 24 As will be shown below, the implementation of this statute reflects the preferred response based on social norms.Footnote 25 Overall, there was an interplay between social, professional and legal norms. These blended together in the creation of the Infanticide Act, and in the way the law (on murder and infanticide) was practised. Thus, whilst the socially normative position is essential to understanding the infanticide law and criminal justice practice in these cases, it did not operate to the exclusion of other factors.
The argument that ‘the social’ influences the law (criminal and other laws) and its practice is of course not a new one. As Cotterrell has argued, there is no clear distinction between the legal and the social: law influences society and society influences law; we cannot understand law without taking its wider sociological context into account.Footnote 26 Or, as Svensson has argued: a ‘legal code by no means equals its intended practice in its implementation. The social, economic and cultural context that the law addresses in practice will also shape, contribute to and explain its outcome.’Footnote 27 Many examples in the criminal context spring to mind, such as the application of the law in cases of assisted dying, where prosecutions are not always taken,Footnote 28 or where criminal law doctrine with respect to the defence of diminished responsibility is stretched in a ‘benign conspiracy’ to facilitate a lenient outcome.Footnote 29 The fact that it is expected that prosecutions will not be taken against teenagers who engage in underage consensual and non-exploitative sexual activities, despite the fact that this is illegal,Footnote 30 is also another example of how social norms influence the practice of law.
This study seeks to demonstrate the application of socio-legal theory about the relationship between the social context, including social norms, and the criminal law in a specific example – that of infanticide in Ireland. It also highlights the importance of understanding the criminal law and its practice through its historic origins.Footnote 31 Both legal doctrine, notably the medical mitigation rationale adopted, and criminal justice practice in the courts were affected by the wider socio-historical context. To fail to understand the socio-historical element to infanticide is to fail to understand this law.
In the following section, the criminal justice response to infanticide prior to the introduction of the Infanticide Act 1949 is examined. It will be shown how legal practice was completely at odds with the law on murder, but reflected an agreed-upon lenient approach based on social norms, and how this eventually lead to legal reform to bring the law in line with practice.
2. Compassionate sanction and the enactment of an infanticide law, 1924–1949
From the 1920s to the 1940s, the Irish criminal justice system consistently adopted a lenient approach to those charged with murdering their newborn illegitimate children.Footnote 32 ‘For motives of humanity’, prosecutors avoided charging with murder, instead opting for concealment of birth, unless this was precluded by the evidence.Footnote 33 Further, although 160 women appeared at the Central Criminal Court (CCC) on a charge of murdering their babies between 1924 and 1949, very few were convicted. At trial, jurors usually refused to convict of murder: only eight out of 45 women tried before a jury for murder were convicted of that offence; 26 were acquitted; ten were convicted of a less serious offence such as manslaughter or concealment of birth; and one was found guilty but insane. Where a murder conviction did result, the death sentence was always commuted. However, most cases (70%) did not proceed to trial because the state accepted a plea of guilty to manslaughter or concealment of birth.Footnote 34 Sentencing of those convicted of manslaughter and concealment of birth saw very few women imprisoned, though many did, as a condition of probation or a suspended sentence, undertake a period of institutional residence at a Magdalen asylum or another convent institution.Footnote 35
Overall, it is evident that it was generally accepted that women who killed their illegitimate babies at or soon after a concealed birth deserved a compassionate criminal sanction involving conviction for a less serious offence and a non-custodial or a suspended custodial sentence, which may also have included a period of religious institutionalisation. This understanding of infanticide informed the criminal justice response to women charged with murdering their babies from the 1920s to the 1940s: the law was ignored to secure the preferred lenient outcome, and this ultimately resulted in the enactment of a specific infanticide law.Footnote 36
The Infanticide Act 1949 created the new offence of ‘infanticide’, which was to operate as an alternative to a murder charge or conviction, carrying a flexible sentencing regime, up to a maximum of life imprisonment.Footnote 37 The law did not allow for women to be charged with infanticide in the first instance, but implicitly required an initial murder charge, allowing for this to be altered to infanticide by a district justice at a preliminary hearing at the district court.Footnote 38 Where the charge was reduced, the accused would be sent to the Circuit Criminal Court (CrtCC) for trial; if she was forwarded to the CCC on the murder charge, she could be convicted of infanticide as an alternative to murder.Footnote 39 Under the provisions of the Act the offence was committed when: a woman committed a wilful act or omission that caused the death of her biological child; the child was aged under twelve months; the circumstances were such that, but for the infanticide provisions, the killing would have amounted to murder; and, finally, at the time of the killing ‘the balance of [the accused's] mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child’.Footnote 40
The infanticide law was enacted to facilitate lenient treatment of this offence. However, whilst criminal justice agents, and eventually legislators, accepted the socially normative position that this offender should not be convicted of murder, this was balanced against professional norms which sought conviction and punishment, and the effective administration of justice in this regard. One issue of particular concern was the waste of resources involved in sending ‘wretched’ women and ‘young girls’ to the CCC to face the ‘ordeal of trial and conviction’ and the ‘grim spectacle’ of a capital conviction which everyone, except the offender, knew would be reprieved.Footnote 41 Thus, the reliance on guilty pleas prior to 1949, which excluded jurors from the decision-making process, reflects a prosecutorial commitment to lenient disposals and a determination to secure convictions in an efficient way.Footnote 42 Further, as in other jurisdictions, practical issues concerning the administration of justice were an important factor in the Irish reform, particularly with regard to the efficient use of resources.Footnote 43 Nonetheless, the approach taken by criminal justice professionals, and ultimately by legislators, demonstrates an acceptance of the desired outcome in these cases based on social norms. Indeed, the evidence shows that there was a keen sense of compassion for this offender and a clear acceptance of the fact that she did not deserve a capital conviction.Footnote 44
Thus, the criminal justice response to women who killed their babies from the 1920s to the 1940s, and the enactment of the 1949 infanticide statute, involved a mix of both social and professional norms. When this led to legal change, however, the legislation was framed so as to comply with criminal law norms. The medical mitigation framework respected the criminal law's refusal to allow for mitigation based on social circumstances by ostensibly blaming the woman's imbalanced mental state and linking her crime to the effect of childbirth (or lactation).Footnote 45 However, whilst the medical mitigation framework contained in the infanticide statute met the legally normative requirement of individualised responsibility, it was always intended to cover the socially normative expectation that women who killed their babies because of stressful social circumstances would not be treated as murderers.Footnote 46 Indeed, whilst feminists argue that infanticide laws medicalise the offender, explaining infanticide as a consequence of women's biological susceptibility to mental illness, not broader social and political inequalities,Footnote 47 the history of infanticide statutes in England, Canada and Ireland reveals that legislators did not intend to require medical diagnosis of a specific mental disorder, let alone one that had been caused by the biological event of childbirth; they incorporated a lay understanding of mental disturbance which covertly took account of the wider social factors involved.Footnote 48
The background to the Irish reform shows that the mental disturbance rationale contained in the new law was supposed to cover extreme mental and emotional stress connected with giving birth to a child outside wedlock, particularly where this occurred in the context of an unassisted birth.Footnote 49 In this regard, the infanticide law embodied both social norms (namely that the woman who killed her baby at birth deserved lenient treatment in the light of the mitigating social circumstances involved), and legal norms (that the socially normative expectation of lenience had to be framed so as to meet the legally normative requirement of individualised responsibility). The history of infanticide legislation demonstrates the importance of taking a socio-historical reading of the criminal law in order to fully reveal its meaning.Footnote 50 The implementation of this statute, including how the disturbance in the balance of the mind requirement has been interpreted, will be explored in the following section.
3. Implementing the Infanticide Act 1949
The Minister for Justice stated, when introducing the bill to the Dáil, that the new law would ensure that ‘in appropriate cases, it will no longer be necessary to subject unfortunate girls to the strain of undergoing a trial for murder and of being sentenced to death’.Footnote 51 What was meant by appropriate cases was not explicated. However, it is evident that he was referring to the typical newborn infanticide case where, according to social norms, there was no desire to convict of murder. The law allowed for a more lenient option, but there were a number of hurdles to overcome before infanticide could be used. The requirements for murder, including live birth and mens rea, must be established,Footnote 52 in addition to the specific infanticide requirements outlined above.Footnote 53 Further, since the law denied prosecutors the option to charge infanticide, they were reliant on district justices reducing murder charges based on the evidence produced in depositions, although they could accept an infanticide plea at the CCC.Footnote 54 Arguably, the substantive legal requirements for infanticide and the procedural restraint imposed on prosecutors could have limited the extent of the application of this law. However, as will be shown in this section, the Infanticide Act operated as it was meant to – as a mechanism for facilitating lenient treatment of this offender. Further, it demonstrates the continued role of social norms in the application of the law.Footnote 55
There were 75 reported cases of infanticide / ‘infant murder’ between 1950 and 2015.Footnote 56 The majority of cases (60) and prosecutions took place between 1950 and 1974, inclusive. Overall, between 1950 and 1974, proceedings were taken in 38 cases. The offender was female in 37 cases,Footnote 57 36 of whom were disposed of under the infanticide law; the remaining offender was ‘otherwise disposed of’ on a murder charge, meaning that she was not convicted/acquitted of that offence (see Table 1). There have been no recorded convictions for infanticide since 1973. This is explained by the reduced incidence of this crime, and an apparent disinclination to prosecute it: out of the 15 cases recorded for the period 1975–2015 inclusive, only four involved criminal proceedings for murder/infanticide: in three of these cases (at least one of which involved a female perpetrator), the outcome is not known (1977, 1978, 1980); and in one case involving a female perpetrator (1984) the charge was withdrawn.
Disposals in cases where proceedings were taken against a woman* for the murder of an infant, 1950–2015 (information extracted from the GARC and CSO Crime Statistics)
Notes. * = summary disposal under the Infanticide Act 1949; note in two cases (1987, 1980) the gender of the perpetrator is not known, but these cases were included in the table to give a fuller picture of infanticide at a time when recorded offences had fallen.
(a) The disappearance of murder
Table 2 summarises the outcome in the 36 cases disposed of under the Infanticide Act 1949.Footnote 58 Due to gaps in the data it is not possible to say that no woman has been tried for or convicted of murdering her infant since the enactment of the infanticide statute. However, the statistical evidence available does indicate that murder was virtually abandoned as a trial and conviction option in these cases. All but two (94.7%) of the cases in this sample, where the outcome of the proceedings taken is known, were disposed of under the infanticide law, with 86% of these resulting in a conviction, thus indicating that the requirements contained in the law did not preclude its use.Footnote 59 Both district judges and prosecutors played an important role in ensuring that women were not put on trial for murdering their infants. Where the district justice did not reduce the charge (at least 11 cases), the prosecution proved willing to treat this crime as infanticide, appearing to have always (or at least virtually always) accepted a guilty plea. The system also depended on accused women pleading guilty, and possibly defence lawyers also played a significant role. There were very few jury trials, and, in this regard, the approach taken demonstrates a consolidation among criminal justice professionals of the socially normative expectation that women who killed their babies at birth should not be treated as murderers.
Infanticide disposals by court and outcome
This is not to say that social norms alone determined the outcome. As was the case prior to 1949, these filtered through the professional norms of criminal justice personnel. For example, prosecutors were probably also oriented to secure convictions, and to do so in an efficient manner, something which would have encouraged them to accept infanticide pleas where they anticipated juror reluctance to convict. District justices who reduced murder charges may have been similarly motivated. However, the fact that district justices did not always amend the charge indicates that, at least among that group of criminal justice professionals, it was not consistently agreed that ‘infanticide’ could never be ‘murder’. Nonetheless, the evidence demonstrates that the system as a whole operated on the basis that maternal infant murder was ‘infanticide’ not ‘murder’, and, as such, warranted a lenient outcome. Given that most of the cases in this sample involved newborn victims, arguably the ‘appropriate’ case that law reformers had in mind when the infanticide law was drafted and enacted, this is perhaps not surprising, but there were at least four cases involving the murder of older infants by married women (a 12-day-old; a four-month-old and two 11-month-old victims), where the Irish state was equally willing to use the infanticide law by accepting a plea.
As outlined in the previous section, even prior to the enactment of the infanticide legislation, criminal justice personnel had agreed, or at least accepted, that infanticide, especially of newborn infants, was not murder. After 1949, the label may have changed from ‘manslaughter’ or ‘concealment of birth’ to ‘infanticide’, but the 1949 law did not in essence affect the response. Sentencing practice also largely reflected the approach taken prior to the reform; the majority of women were given a suspended prison sentence.Footnote 60 It would seem from this analysis that social norms continued to influence legal practice, and that the infanticide law operated as intended – to gain a conviction for an offence other than murder through a more efficient, humane and rational process.Footnote 61 As will be demonstrated in the following section, the role of social norms in shaping the implementation of the infanticide statute is most evident in the way the medical rationale was construed and employed.
(b) Social norms in interpreting the medical rationale: ‘any woman giving birth alone and unaided is likely to be in a disturbed state of mind’
As outlined above, the infanticide statute was framed according to legal norms regarding the individualisation of criminal responsibility, which required mitigation based on mental illness, not social stress. However, the statute embodied mitigation based on social norms, involving an understanding of the social circumstances of infanticide and the likely mental state of the accused in the light of these circumstances. It was, therefore, never intended that the law would operate in a narrow way: social mitigation was to be considered.Footnote 62 In terms of how infanticide legislation has operated in practice, in England, the medical rationale has been widely interpreted to incorporate social mitigation and as such acts largely as a device to facilitate lenient treatment.Footnote 63 The data in this study show that the Irish courts have also taken a wide approach: the infanticide law was used in 95% of the cases in this sample where proceedings were initiated against a woman for the murder of her infant, and where the outcome of those proceedings is known. The evidence from the state files in a sample of 15 cases (the only cases where this record was available) further demonstrates the generous application of the medical rationale.Footnote 64
In six cases, the infanticide law appears to have been used without any medical evidence to support the mental disturbance requirement. The district justice reduced the charge in four and forwarded the accused for trial for infanticide, although none of the documents in the state file relating to the evidence given at the preliminary hearing make any reference to the accused's mental state. In the two other cases, an infanticide plea was accepted at the CCC. Each of the six cases involved an unmarried woman who had concealed her pregnancy and given birth in secret; all but one had given birth alone and none had given birth with medical assistance.Footnote 65 As such, these were the kinds of cases where the infanticide law was supposed to apply, and where a mental disturbance was likely to be presumed according to social norms in relation to how this offender was understood, and ought to be treated, in the light of the circumstances involved.
In three further cases, the file did include some reference to the accused's mental state, but the evidence did not support the infanticide requirements.Footnote 66 The charge was not reduced in any of these cases, but an infanticide plea was accepted at the CCC. One of these women had been diagnosed with depression, the only woman in the sample to be diagnosed with a specific mental disorder and to have received treatment for that condition. However, the medical witness at the district court refused to confirm that her illness was connected with childbirth or that she had been mentally disturbed at the time of birth.Footnote 67 The accused in that case had killed six newborn babies over a number of years to conceal an extramarital relationship. The two remaining cases did not involve newborn victims, though in one a woman had killed her 12-day-old son as a result of distress over the fact that her estranged husband denied paternity of the child.Footnote 68 Overall, none of the cases involved the typical infanticide facts, something which may explain the justice's decision to not reduce the charge. These cases were not those where social norms traditionally claimed a lenient response. Nonetheless, the decision to accept an infanticide plea arguably reflects both practical expediency (in anticipation that a jury would likely sympathise with the offender and reject murder), and a belief, or at least an acceptance, that these women also warranted a compassionate criminal sanction.
In the remaining six cases, medical evidence was given at the district court which tended to support the use of the infanticide law by at least making some reference to the requirements in the statute, though the evidence paid lip service to the infanticide criterion. This evidence often came from the state pathologist and/or a medical doctor who had examined the accused soon after birth, and who had been asked in cross-examination about her mental state at the time of birth. These witnesses provided rather generic and speculative responses, which is not surprising given that they were making a deposition on behalf of the state, were usually not a mental health expert, and sometimes had not had an opportunity to examine the accused. Many of these statements tended to evince a presumption of mental disturbance linked to the fact that the accused had given birth alone and had killed the child at birth – giving birth alone was itself sufficient to presume a mental disturbance, and killing the infant was the ultimate manifestation of this.Footnote 69 In four of these cases, the charge was reduced to infanticide at the district court.
For example, in one case the state pathologist said that ‘any woman giving birth alone and unaided is likely to be in a disturbed state of mind at the time and shortly afterwards’.Footnote 70 Interestingly, the charge was not reduced, despite the fact that the circumstances reflected those of other typical infanticide cases: the accused had given birth alone, following a concealed pregnancy, in the bathroom at her lodgings and had stuffed toilet paper into the baby's mouth to stop it from crying.Footnote 71 She pleaded guilty to infanticide.Footnote 72 In another case, where a domestic servant was found collapsed on her bedroom floor with her dead infant one morning, the state pathologist stated that he ‘would expect a girl like the accused to be in a frenzied state after giving birth alone’.Footnote 73 In another case, the accused had given birth in her bedroom at her parents’ home and thrown the baby out of the window. The doctor who examined her soon after birth said: ‘At the time of the birth of the child [her] mental condition … was probably abnormal. It is my opinion that she was probably mentally disturbed by reason of the birth of the child.’ A local midwife who had attended the accused shortly after the birth provided a rather vivid account of the accused's condition: ‘Her … eyes were standing outside her head … and her mouth was foaming.’ She later added on cross-examination: ‘It was one of the most terrifying experience[s] I ever witnessed … She was in a very overwrought condition and highly hysterical. I don't think she realised that she was to have a baby.’Footnote 74 In another case, involving an 18-year-old woman who gave birth alone in the toilet in the bathroom of her parents’ home and then stabbed the baby with scissors, a consultant gynaecologist who examined her said: ‘It is feasible that there would be mental disturbance after childbirth in such circumstances as this … The destruction of an infant within an hour or two of birth or even longer by its mother would lead one to conclude that her mental balance was disturbed.’Footnote 75
In the final case, medical evidence was given at the district court which could have been taken to justify a reduced charge, but the accused was sent for trial for murder. This case did not reflect the typical newborn scenario as it involved a married woman who had killed her 11-month-old son. One of the medical witnesses deposed that the accused had experienced a temporary mental disturbance at the time of the killing that was linked to the physical consequences of childbirth. However, another, more experienced witness, refused to give his views on her mental state without having the opportunity to further examine her. Again, the fact that this was an atypical case, one which did not fall within the category of cases where social norms tended to seek a lenient outcome, was likely a key factor in the decision to not reduce the charge. Nonetheless, the accused's plea of guilty to infanticide was accepted, and, like most of the other women in this sample, she was given a short suspended prison sentence.Footnote 76
Overall, despite adopting the legally normative approach of individualised responsibility which allowed for mitigation based on mental illness, not social stressors, the law operated in practice according to social norms which expected mitigation based on the circumstances involved, including that of recent childbirth. Particularly in the context of the typical concealed birth scenario, the legislation applied on the basis of a presumption of mental disturbance in the circumstances involved. Medical diagnosis of a specific mental disorder, particularly one that was linked to childbirth or lactation, was not required.Footnote 77 When medical ‘expertise’ was called on, these witnesses themselves often employed lay assumptions rather than medical knowledge. It was social, rather than medical or legal, norms that determined the scope of the infanticide law.
In summary, this section has demonstrated that the infanticide offence effectively replaced murder in the second half of the twentieth century. The 1949 infanticide law operated as it was meant to, and criminal justice agents worked to ensure that it was used in ‘appropriate cases’.Footnote 78 However, it was not the law that established this virtual separation of maternal infant murder from other murders. The history of the response to this crime in the decades prior to the enactment of the 1949 statute shows that the criminal justice system had long treated the killing of infants by their mothers as something other than murder. In this sense, the infanticide law did not shape the criminal justice response, though it may have further entrenched the disposition to view this crime as falling outside the scope of ‘ordinary’ murder. Social norms required a lenient conviction, and the infanticide law, which embodied these norms, was generously employed to facilitate this.
4. The disappearance of infanticide: a disinclination to prosecute
Whilst not prosecuting this offence has always been a significant part of the response to it (44% of all reported cases since 1950 were not prosecuted), it is apparent that this approach has become the more prevalent in recent decades. Since the 1970s/1980s, prosecutions against women in reported incidents of infanticide have declined, and there appear to have been no prosecutions against women for murder/infanticide since 1984.Footnote 79
Although there may be evidential issues which preclude prosecution, particularly in cases of newborn infanticide,Footnote 80 the consistent unwillingness to prosecute in recent decades indicates that other factors are involved. It appears that there has been a shift in practice whereby state authorities, who in the past sought a compassionate criminal sanction, now do not favour criminal prosecution at all. This change in practice has taken place despite the fact that the criminal law with respect to infanticide has remained largely unaltered.Footnote 81 What has changed, however, is the social context.
From the 1960s, and particularly during the 1970s and 1980s, Ireland slowly began to liberalise,Footnote 82 something which had an impact on the incidence of newborn infanticide. Since the 1970s, the offence of infanticide has diminished to the extent that it is now practically non-existent: there were 12 recorded cases in the 1970s, and five cases each during the 1980s and 1990s. Only one case of infanticide is recorded for the period 2000 to 2015, inclusive.Footnote 83 Given the historical link between infanticide and illegitimacy, a number of factors, all of which are connected with improvements in women's rights in recent decades, plausibly account for this decline, including: the availability of legalised abortion in Britain since 1967, at least for those who could afford it;Footnote 84 increasing access to contraception and contraceptive advice, and the eventual legalisation of contraception;Footnote 85 the introduction of the unmarried mother's allowance in 1973;Footnote 86 and a significant shift in cultural attitudes to unmarried motherhood.Footnote 87 Kilcommins et al observe that the ‘disappearance of infanticide reflects a changing social and moral environment’, noting in particular the fact that unmarried motherhood no longer attracts social disgrace nor the prospect of institutional confinement.Footnote 88
The fact that infanticide is now an exceptionally rare event may have affected the criminal justice response, particularly with regard to the perceived need to prosecute. Whereas in the past the relatively frequent occurrence of infanticide arguably created an incentive to pursue criminal charges to protect and vindicate infant life, on a symbolic level at least, and to deter others from this crime, where the crime is committed infrequently possibly there is more scope to exercise discretion to not initiate proceedings. It may not be in the ‘public interest’ to prosecute, particularly where sympathy for the perpetrator indicates that she should be treated leniently. More recent guidance for prosecutors indicates that one factor to consider when determining public interest is the prevalence of the offence and the need for both general and specific deterrence.Footnote 89 Finally, it is also worth noting that the decline in infanticide and infanticide prosecutions took place at a time when other kinds of violent crime increased, particularly in the context of the conflict in Northern Ireland.Footnote 90 With this rise in violent and dangerous offending, possibly infanticide appeared to warrant less attention. However, in cases of homicide, particularly where the victim is a child, it seems unlikely that pragmatic calculations of public interest based on the incidence of the crime and the need to deter would be decisive factors in the decision to prosecute.
Dooley, in his (2001) study of homicide in Ireland between 1972 and 1991, also observed a hesitancy to prosecute infanticide.Footnote 91 Out of nine infanticide cases in his sample, seven were not charged, or a nolle prosequi was entered, despite the fact that there was no apparent dispute that the mother had a mental disorder which would have met the infanticide criterion.Footnote 92 In a subsequent study covering the period 1992 to 1996, he refers to two infanticide cases (the only two cases during that period) where the prosecution authorities and the Gardaí were ‘sympathetic to the indication that the precipitator of the event was acute panic surrounding an unexpected and unsupported birth’.Footnote 93 Thus, whilst humanitarian sentiment for women who killed their infants at a concealed birth in the past led to lenient criminal disposals, this now seems to manifest itself in a disinclination to prosecute this offender at all. The question is, why does sympathy now result in a non-criminal response? In this regard, there were two incidents in 1984 which, in the context of a wider cultural transition away from traditional and conservative ideologies, may help to explain this shift away from criminalising women who kill their infants. Both events publicly exposed in an uncompromising way the experiences of women who conceal their pregnancies and give birth alone, and may have affected social norms with regard to how women who kill their babies in the context of a concealed birth should be treated under the law.
In January 1984, Ann Lovett, a teenage girl, was found in a Grotto of the Virgin Mary in Granard, County Longford. Ann had given birth to an infant in the Grotto that afternoon, following a concealed pregnancy. Both Ann and her baby died as a consequence of this unassisted birth.Footnote 94 Some months later, in April, a newborn baby was found with several stab wounds washed up on a beach in Cahirciveen, County Kerry. The Garda investigation led to the arrest of Joanna Hayes, a local unmarried woman, already mother to one child, and who was suspected of having recently given birth to a second baby. Hayes and her family signed confessions admitting that the baby found on the beach was Joanne's, that she had killed it, and that her siblings had then thrown the body into the sea. However, Joanne had originally confessed to giving birth to a baby and disposing of the body on the family farm. Scientific tests eventually established that Hayes was not the mother of the baby found at Cahirciveen, and the murder charge against her was withdrawn. The mother of that baby has never been identified. Hayes was not charged with any offence connected with the baby found on the farm.Footnote 95
The Lovett and Hayes cases occurred at a time of significant social turmoil as the nation grappled with liberalisation – a socialisation process involving a battle between the old Catholic conservative Ireland and the newly emerging secular and liberal society.Footnote 96 These cases generated much media coverage, drawing public attention to issues that in the past had remained hidden, helping to challenge the nation's own idealised image of itself, and they had a significant impact on Irish society, including wider attitudes towards unmarried mothers.Footnote 97 Maguire argues that these cases ‘contribute[d] to a change in public attitudes towards unmarried motherhood’ and that they ‘forced Irish society to confront in a very public and self-conscious way, issues that had long been considered unsuitable for public discussion’.Footnote 98 In particular, both cases highlighted concealed pregnancy, the vulnerability of women in these situations, and the risk posed to both mother and baby. The Kerry Babies case also demonstrated the potentially oppressive consequences of the misuse of state power against vulnerable women in this situation. A Tribunal of Enquiry established to investigate the Garda handling of the Kerry Babies case resulted in much public sympathy for Joanne Hayes, who broke down on several occasions under the intensity of the examination and at one point required sedation.Footnote 99 As Ferriter observes, the case ‘was one of the most emotive episodes of modern Irish history, evoking sympathy and anger about the dissection of a woman's private life by an all-male inquiry …’.Footnote 100
Inglis notes that the harsh treatment of Hayes by the Tribunal of Enquiry, which contrasted with the outpouring of public support and sympathy that she received, demonstrated a gap between the state and the public will.Footnote 101 He argues that the case reflects the confrontation between the ideologies of old conservative Catholic Ireland, and the new liberal, modern and secular culture that had begun to emerge.Footnote 102 The public support that Hayes received, albeit not in the context of a criminal trial, may have indicated that there was little public appetite for criminal proceedings in infanticide cases. In this regard, although prosecutions for infanticide had already begun to decline prior to 1984, it is telling that there appear to have been no prosecutions against women for infanticide since the murder charge against Joanne Hayes was withdrawn.Footnote 103 Is it possible, in the wider context of liberalisation, that the lasting impact of the Kerry Babies and the Ann Lovett cases on the Irish psyche meant that it became wholly objectionable to use the potentially oppressive force of the law against women who killed their infants at a concealed birth? As already observed, whilst criminal justice actors are likely to hold different viewpoints in their professional capacity compared to the rest of the lay population,Footnote 104 it is unlikely that Gardaí and prosecutors were wholly untouched by the significant cultural changes that took place in Ireland from the 1960s onwards, and by the dramatic incidents of 1984. Certainly, the history of infanticide shows that wider social norms will impact on criminal justice practice, whether because professionals agree with normative expectations about the appropriate response or accept that it is impractical to act contrary to this.
5. Conclusion
This analysis has demonstrated the vital role of social norms in the legal response to infanticide in Ireland from the time of independence from Britain and into the twenty-first century. Prior to the enactment of a specific infanticide law, lenient treatment of women who killed their illegitimate babies, usually in the context of a concealed birth, was the expected response according to social, rather than legal, norms, and the law was ignored or manipulated to secure the desired outcome. The wider social context and how infanticide, and the infanticide offender, was understood in that context, determined the outcome. This entailed a general agreement that ‘unfortunate’ women and ‘young girls’ who concealed their pregnancies and killed their illegitimate babies at or soon after birth should be given a compassionate criminal sanction.
The social understanding of infanticide was embedded in the 1949 Act, which formalised and rationalised the agreed preference for lenient treatment, allowing for conviction for ‘infanticide’ not ‘murder’ and granting judges much flexibility as to sentence. The infanticide law adopted a mitigation framework which did two things. First, it embodied the socially normative understanding of infanticide which sought lenient treatment due to the social circumstances of the crime and the presumed impact of these circumstances on the mother's mental state, particularly in the context of a concealed ‘illegitimate’ pregnancy and unassisted birth. Secondly, it transcribed this socially normative conception of infanticide into legal doctrine, which allowed for lenient treatment whilst adhering to criminal law norms regarding individualised responsibility. The evidence in this study shows that the law was applied according to social norms, though professional expectations with regard to securing punishment in an efficient manner also likely played a part. The law was effectively a device to allow for a compassionate criminal sanction where professional norms sought conviction but where social norms expected lenience due to the circumstances involved. It did not require a medically diagnosed mental illness; nor did it restrict consideration of mitigation to the impact of the biological or physical effects of birth on the mental state of the woman. This history of the infanticide legislation, and how it has been implemented in the courts, demonstrates the importance of taking account of the sociology of legal provisions, particularly a socio-historical view of the law. The history of the crime of infanticide, the social context in which it took place, the criminal justice response to it, and the enactment of the infanticide legislation, allow for a fuller understanding of the true meaning, purpose and scope of infanticide laws.
This study also shows how, as the social context shifts, so too may the legal response to the crime of infanticide. A more liberal, tolerant and open Irish society may have contributed to the effective decriminalisation of the now rare crime of infanticide. However, this is not to suggest that a more liberal society will necessarily produce more lenient treatment of women who kill their newborn babies. Thus, whilst the Law Reform Commission of Western Australia recently observed that cases of newborn infanticide are regularly not prosecuted in that jurisdiction, noting empathy among prosecutors for this type of offender,Footnote 105 prosecutions for newborn infanticide have been taken in England in recent decades.Footnote 106 Indeed, in 2017 in Preston, England, a woman was convicted of murdering her newborn infant in the context of a concealed birth, and sentenced to a minimum of 20 years in prison.Footnote 107 Kramar has suggested that in recent decades a more punitive attitude to infanticide has emerged in Canada. She identifies a number of factors that contributed to this shift in approach, including a change in attitude to the offender.Footnote 108 Kramar argues that whereas in the past Canadian women who killed their newborn illegitimate babies following a concealed pregnancy were viewed sympathetically, social changes in the second half of the twentieth century which granted women greater control over their fertility and which de-stigmatised unmarried motherhood challenged the idea of the unwanted baby and helped to shift humanitarian sentiment away from the mother in cases of infanticide.Footnote 109 In other words, a woman's failure to exercise her supposed autonomy to control her fertility and to prevent or end an unwanted pregnancy before the point of birth means she may be viewed as being more blameworthy for her situation (and ultimately for her crime) than she was in the past, when killing a newborn baby in the context of a concealed birth may have been viewed as an ‘understandable’ reaction to an unwed pregnancy.Footnote 110 This is not to say that offenders in Canada are never treated sympathetically. Indeed, the recent Supreme Court decision in Borowiec on the meaning of the medical rationale would indicate that the courts still view infanticide as being different to other killings.Footnote 111 It can be suggested, however, that the experience in Canada indicates that attitudes to this offence may vary, and that liberalisation does not necessarily equate with increased lenience.
The reasons for differences in approach between jurisdictions are undoubtedly complex, but socially and culturally specific factors, including the timing, nature, pace and degree of liberalisation, and women's equality and reproductive rights, may play a part in how modern societies respond to newborn child killing. Where women have gained significant reproductive rights, they may no longer be viewed sympathetically when they kill their newborn illegitimate infants. However, whilst Ireland has left behind much of its conservative past, in the context of women's reproductive rights it has, for the moment at least, an exceptionally restrictive abortion regime. Indeed, in the context of understanding the impact of social norms on the legal response to infanticide, it is worth noting that current restrictions on abortion in Ireland are due to a constitutional amendment that was introduced by referendum vote in 1983, months before the Ann Lovett and Kerry Babies cases. This amendment, which was introduced to prevent any liberalisation of the law as had occurred elsewhere, granted the ‘unborn’ an equal right to life to the ‘mother', and thus prevented the Irish legislature from allowing for legal abortions except in cases where the pregnant woman's life was at risk.Footnote 112 In other words, the Irish criminal justice response to infanticide since the mid-1980s has been in a context where, except in cases involving a risk to life, women have no legal access to an abortion in Ireland, but where tens of thousands of women have travelled abroad to obtain legal abortions in other jurisdictions, notably England, and where there was no possibility, without constitutional reform, of the legislature liberalising Irish abortion law. In Canada, women seem to have lost their status as sympathetic victim as a consequence of achieving reproductive rights, including the decriminalisation of abortion.Footnote 113 Following a referendum on 25 May 2018, the Irish public voted to remove the constitutional provision which essentially prohibited the legalisation of abortion. The legislature now has the authority to provide for abortion in wider circumstances, without the constraints previously imposed on it by the ‘unborn's' constitutional right to life. When Irish law on abortion is liberalised, will attitudes to the infanticide offender shift?
This story of infanticide in Ireland, which sees this crime change from being a not uncommon occurrence that was punished, but not harshly, to an exceptional event which has not been punished in over four decades, provides a good example of how, as society changes, so too will the nature of criminality and ideas about the ‘appropriate’ response to certain behaviours. The criminal law will either be practised according to prevailing social norms, or it will be modified, repealed or replaced to accommodate social expectations about the role of the criminal law and appropriate punishment. There are many other examples which highlight the criminal law's susceptibility to changing social conditions, such as the decriminalisation of homosexuality, the criminalisation of marital rape, and changes in the scope of sexual offences.
In conclusion, the Infanticide Act 1949 was enacted in a particular socio-historical context to deal with a specific kind of killing, that of newborn child murder. The changed social, cultural and legal context, the consequent disappearance of infanticide, and the fact that this crime has not been prosecuted in recent decades, raise the question: has the time come to re-evaluate the need for this unique and gendered law? This is a question, not only for Ireland, but also other jurisdictions with a similar history and law. This paper does not propose to explore this question, except to note that the Irish legislature appears to see a continued need for the 1949 law, having amended the medical mitigation framework in 2006, supposedly to reflect current medical thinking.Footnote 114 Elsewhere, a number of law reform bodies have recently recommended retention of their infanticide statutes. Justifications for retaining this law have generally focused on its practical benefits, the risk that, if abolished, women would be convicted of murder where this is not warranted, and the unique nature of this offence.Footnote 115 For example, the New South Wales Law Reform Commission noted that the infanticide law allows for an ‘appropriate and compassionate criminal law response to the complex and tragic set of circumstances that may result in a mother killing her infant’.Footnote 116 The Law Commission in England and Wales recently concluded that the Infanticide Act 1938, which poses few problems in practice, is ‘a practicable legal solution to a particular set of circumstances’.Footnote 117 Bearing in mind the history behind infanticide statutes, particularly the difficulties that arose in criminal justice practice when infanticide was dealt with as ordinary homicide, the conclusions of these law reform bodies suggest that the practical benefits of this law mean that we should not hasten to abandon it.
