‘How is this not murder?’ Infanticide and the Law in Australian History

By Caroline Ingram*

Overview

Until abortions and contraception became readily accessible to women, infanticide was a relatively common solution to the birth of unwanted illegitimate children.
The formulating of laws relating to infanticide began in 1624 in an attempt to counter the killing of illegitimate children by their mothers.
Today infanticide, which carries a less severe penalty than murder, is a separate offence in the States of Tasmania, New South Wales and Victoria.

‘Whereas many lewd Women that have been delivered of Bastard Children, to avoyd their shame and to escape punishment, doe secretlie bury, or conceale the Death of their Children…….’

An Act to prevent the Destroying and Murthering of Bastard Children 21 Jac. I, c. 27

In March 2016 a news article appeared on an internet news site. Under the title The law of infanticide in Victoria: How is this not murder?, it told a story which, to some people, was both shocking and incomprehensible. On 15 March 2016, Sofina Nikat, charged with murder, admitted in a Melbourne court to killing her 14-month-old daughter and disposing of her body in a nearby creek. She did not, however, plead guilty to murder. How was this possible? Nikat’s lawyer claimed that his client had committed infanticide, not murder.

Memorial for baby Sanaya Shaib at Darebin Creek.Source: News Corp Australia

Laws relating to infanticide stretch back to 1624 and the English statute, An Act to Prevent the Destroying and Murthering of Bastard Children. This law applied only to illegitimate children and was based on the assumption that any unwed mother who tried to conceal the body of her child must be guilty of murder. It meant that mothers who tried to hide the body of their child could be found guilty of murder even if it could be medically proved that the child was stillborn or died of natural causes. To avoid conviction a mother needed an eyewitness to the birth who could prove that the child was stillborn. As most unmarried women naturally tried to give birth in secret, this meant that they were extremely vulnerable to being found guilty, and therefore to the death penalty, if their child died. It is interesting to note that the Act did not specify an age limit to define the category of ‘children’.

The harshness of the Act to Prevent the Destroying and Murthering of Bastard Children was not welcomed by juries who were often reluctant to commit on a capital charge when a live birth could not be proved. In 1803, the law was replaced with a new Act, which made it necessary to prove that a child had been born alive before a mother could be charged with murder and introduced the alternative and lesser charge of concealment of birth. Women acquitted of murder could now be charged with concealment of birth and sentenced to two years imprisonment. As with the previous Act, the new legislation applied only to unwed mothers.

In the newly settled colonies of Australia, as in Britain, infanticide was not an uncommon solution for a problem that many women must have found overwhelming. For example, using data recently published on the Prosecution Project’s website, it is possible to see that in Western Australia, between the years of 1830 and 1921, 50 per cent of homicide or homicide-related offences by women tried in the Supreme Court, were for the killing of infants by their mothers. However, these figures do not reflect the true extent of infanticide during that time. This was a hidden crime, taking place in private and domestic spaces, with the tiny bodies easily disposed of.

Infanticide continued seemingly unabated during the nineteenth century. In 1866 the Perth Gazette and Western Australian Times wrote the nipping of children in the bud -in other words infanticide, is a fashionable crime just now. Our quiet squares, the dark corners of our streets, our door steps, and sundry other localities, are the public depositories selected by travailling maids and unnatural mothers for the abandonment and desertion of their infants.

The bodies of tiny babies were discovered in water closets, parcels, sacks and boxes. They were secreted in ships, dropped down wells and discovered in earth closets. Often, they were wrapped in the feminine trappings of domesticity: petticoats, chemises, shawls or pillow cases. In 1859 in South Australia, Hannah Tetley, a domestic servant, sewed the body of her baby, into a black apron and dropped it into the water closet. She said she had concealed the birth from her employers as she was afraid that if they knew of it they ‘would not take me back’.

The birth of a child at that time could spell both social and economic disaster for unmarried women. Infanticidal mothers were often young women working as domestic servants. In the early years of the colonies, many of these women were alone and without support: their family and friends left behind in Great Britain. Additionally, the shame of an illegitimate child, in a society which demanded modesty and chastity of women, was immense. Some women living in urban areas turned to the services of an abortionist, a risky and illegal operation, but this option was often not available to women living in rural areas or small towns.

It was not uncommon for young women working as domestic servants to be pressured into sexual relations by the master of the house and yet the birth of a child would often mean, not only instant dismissal, but also very little chance of finding another position. In 1874, nineteen-year-old Elizabeth Bilham, from Essendon in Victoria, was dismissed from her position as a general servant after her employer noticed that she was pregnant. She left to live with her Aunt and Uncle where her child was born. Elizabeth was subsequently charged with concealment of birth after the body of her baby was discovered in a cess pit.

Many women also claimed to have been seduced and then abandoned by the father of their child. In 1867 Elizabeth Westlake’s lawyer told the Supreme Court of Victoria that Elizabeth had been seduced by a young man who had made ‘many great promises to her, all of which he had broken’. It seems clear that juries, which at that time consisted only of men, sympathised with these women, who they saw as victims of their ‘seducer’. Newspapers would often print articles that condemned men who ‘seduced’ and then abandoned young women. In 1884 the Argus, writing about women accused of killing their children, stated that the average citizen realises her miserable and unhappy position; he knows that possibly she was cruelly abandoned herself, and it seems to him monstrous that the mother should be ordered to an ignominious death on the gallows, while the father should go scot-free.

In Australia, as in England, there continued to be a divide between public sympathies and the law. Young women brought before the courts for the crime of infanticide were viewed more as passive victims than as criminals. Mothers who committed infanticide were seen by juries as ‘respectable’ women who had committed a desperate and despairing act in order to maintain that respectability. These women were considered, not as criminals, but as victims of circumstance and juries did not see them as a danger to society. In the case of Jane Green, a 17-year-old domestic servant and the first woman in Western Australia to be tried for the murder of a child, newspapers were clearly sympathetic to her case. The Perth Gazette referred to Jane’s ‘unfortunate situation’ and, in a clear broadside at her employer, Francis Whitfield, wrote ‘such deeds of darkness are seldom unaccompanied with sneaking villainy and base seduction’.

This empathetic response meant that juries were often reluctant to convict women for killing their new born children. Juries routinely acquitted women who claimed to have given birth while unconscious or in a faint, who claimed that they did not know they were pregnant or even that they did not realise they had given birth. Jane Green’s lawyer claimed that the nine cuts and puncture wounds to her baby’s neck could have been the result of attempts to cut the umbilical cord ‘while in a delirium’. Jane was subsequently acquitted of murder and instead found guilty of concealment of birth. In 1866 the Herald wrote ‘as a rule, jurors will not convict a woman of a capital charge. In the face of the clearest evidence of violent death, they bring in a verdict of “concealment of birth” only’.

Motivated by the social and economic concerns which clearly influenced juries’ verdicts, in 1922 Britain brought in the Infanticide Act, making infanticide a separate offence. This meant that infanticide was no longer punishable by the death penalty, but instead carried the same penalties as manslaughter. The Act, which applied only to mothers and was defined as the killing of a woman’s new born child, only applied if the mother ‘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’.

Sixteen years later, the act was amended to include children of up to one year old and, as a justification for this extension, also included ‘the effect of lactation’ as a rationale for a disturbance of the balance of the mind. Following this example, a separate infanticide Act was brought in by four Australian States: Tasmania, Victoria, New South Wales and Western Australia. Western Australia was the last of the four States to make infanticide a separate offence. The Act was created in 1986 but was repealed in 2008 after a recommendation by the Law Reform Commission. Amongst the reasons given was that laws should not be applied only to specific groups of people based on their gender and that women should not be able to rely on a defence that claims a biological link between childbirth and mental impairment based on discredited or unproven concepts. In the Commission’s opinion, there is sufficient room within its recommended sentencing and defences framework to appropriately show mercy.

The retention or otherwise of the infanticide offence in Victoria, Tasmania and New South Wales has been the subject of some controversy over the years. In 1997 the New South Wales Law Reform Commission recommended the abolition of the infanticide offence; however, this recommendation was not put into effect. In 2004 the Victorian Law Reform commission reviewed the offence of infanticide and recommended that the offence should be retained but that the upper age limit of the child should be extended to two years. This recommendation was implemented in 2005.

The laws of infanticide originated at a time when women’s options for abortion and contraception were limited and the birth of an illegitimate child considered shameful. For unwed mothers the birth of a child had serious social and economic implications and it was not uncommon for young women to kill their new born baby out of sheer desperation. Today contraception and abortion are easily accessible and the social stigma of having children outside marriage has disappeared. Only a very small number of women are indicted for infanticide in Australia but cases like R v Nikat have the capacity to reignite the debate as to the relevance of infanticide laws in a modern society.

*Caroline Ingram works in the museum sector and has recently completed her Bachelor of Arts (Honours) at Deakin University. Her thesis won the Vice-Chancellor’s award and is titled Flirting with the Hangman’s noose? Gender constructions of women accused of killing in Western Australia, 1829 – 1929.