Manslaughter, Concealment of Birth and Infanticide, 1900-37

The Infanticide Act 1922 originated as one of a series of proposals to downgrade most cases of neonaticide from murder to manslaughter, but was redrafted by the Lord Chancellor’s Department to create a separate offence which was also a defence to murder. Thus, manslaughter verdicts could still be returned, as in a number of cases in the years leading up to the Act, where the prosecution could not prove the mens rea for murder, and infanticide would be available where the mens rea for murder was present but there were extenuating circumstances that could be described as the balance of the defendant’s mind being disturbed. Within a few years, however, infanticide was being treated as a very minor offence, with Swift J stating in one case that he considered it less serious than concealment of birth – the offence a mother was convicted of where it could not be proved that the baby was born alive and died as a result of the mother’s act or omission.
This chapter explores the relationship between the four offences for which conviction was possible in cases of suspected neonaticide and considers in particular infanticide can, as Emma Milne has suggested, be regarded as introducing a form of ‘reproductive justice’ into the courtroom in the guise of a mental condition defence.