Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code’s Child Homicide Offence

Abstract

This article involves a discussion of the proper scope and interpretation of the Criminal Code provisions relating to the offence of infanticide. A review of the legislative history indicates that the biological rationale for the offence did not appear to have been scientifically established. Thus, despite the wording of the provision, the law of infanticide developed not from medical science, but instead as a way of dealing with unsatisfactory outcomes of homicide litigation directed at new mothers. In recent years, the medical rationale for infanticide has become less accepted and the trend has been to charge more mothers accused of killing their newborns with murder. This may be attributed, in part, because the conditions that created a sympathetic response to young women facing unwanted children in the past no longer exist. Nevertheless, it is asserted that the stress of child rearing should serve to reduce the culpability of some individuals who kill their children. Consequently, the author recommends a repeal of the current infanticide provisions, to be replaced by a more generally applicable defence of diminished responsibility applicable to not just biological mothers, but fathers and adoptive parents as well.