The law of infanticide is supposed to provide merciful treatment for vulnerable mothers

Legal support. Shutterstock

Rachel Tunstill was convicted of the murder of her newborn baby girl, Mia, in June 2017. Tunstill had given birth alone in the bathroom of her home. After stabbing the baby, Tunstill wrapped the body in a plastic bag and put it in her kitchen bin.

At her murder trial, forensic psychiatrists gave evidence. One psychiatrist concluded that giving birth had caused Tunstill to experience an “acute stress reaction”. The other defence expert said that her pre-existing mental health condition had been “exacerbated” by the labour.

The trial judge ruled that the psychiatric evidence supported a possible defence of diminished responsibility – but not of infanticide. He interpreted the law to mean that infanticide (an alternative to murder or manslaughter for women who kill their babies aged under 12 months while in a mentally disturbed state) only applies where the disturbance in the balance of the woman’s mind is caused solely by the effects of childbirth. If there are also pre-existing mental health problems that contributed to her disturbed mental state at the time of the birth, the law could not apply.

Rejecting diminished responsibility, the jury then found Tunstill guilty of murder. She received a life sentence, with a minimum term of 20 years imprisonment.

Now, just over a year later, the Court of Appeal has ruled that infanticide should be available as a conviction for women who kill their infants, even if the disturbance in the balance of the mind experienced at the time of the killing is not solely due to the effect of giving birth. Women convicted of infanticide rarely receive a prison sentence, unlike those convicted of murder. And the requirements for infanticide are much easier to meet than those for diminished responsibility manslaughter.

The ruling in July 2018 followed Tunstill’s appeal against her murder conviction and recognises the merciful intent behind the infanticide legislation. Specifically, it ensures that the Infanticide Act 1938 can be used in cases where women have mental health conditions that predate the birth, providing the birth made a sufficient contribution to her mentally disturbed state.

The infanticide law is commonly viewed as a defence for postnatal depression or psychosis. But women who kill their babies at birth rarely suffer from these conditions. However, the experience of concealing a pregnancy due to fear and shame can contribute to a significant mental disturbance when a woman gives birth.

The Court of Appeal in London. Shutterstock

When it was first introduced in 1922, the legal concept of infanticide was not intended to be limited to situations where women had been diagnosed with specific mental illnesses caused solely by the effect of giving birth. The aim of the law was broader, to allow for merciful treatment of women who killed their newborn children in a state of significant mental distress following a concealed pregnancy and unassisted labour. It was to take into account the wider social circumstances and the effects of this on the woman’s mental state.

A fair ruling

Research has shown that the infanticide law was intended to be used (and has been applied) flexibly. Infanticide allows for compassionate treatment of women who are charged with murdering their babies, but whose mental disturbance is insufficient to allow for a defence of diminished responsibility. This could be particularly important for women who, like Tunstill, kill their newborn infants.

We welcome the recent ruling by the Court of Appeal. Most women who kill their newborn infants, especially those following a concealed pregnancy, are in vulnerable positions and see the pregnancy as a crisis. Pre-existing circumstances, such as the woman’s social, personal, emotional and mental health vulnerabilities, will often affect her state of mind before and after the birth – her pre and post-birth mental state cannot necessarily be separated.

If the Court of Appeal in Tunstill had adopted the approach taken by the trial judge and the Crown Prosecution Service, in our view, this would have involved an incomplete understanding of the mental health experiences of some women. Those who experience a mental disturbance following birth, who also had pre-existing mental health conditions that contributed to this, would not be able to draw on the leniency provided by the Infanticide Act. Vulnerable women would be in a worse position than women who had no mental health problems prior to the birth and killing of the child.

The women who most need this law would have been at risk of a murder conviction and a mandatory life sentence, and the entire purpose of the legislation would have been thrown on its head.

Tunstill now faces a retrial. However, following the Court of Appeal ruling, the jury will not be prevented from considering the option of convicting her of infanticide instead.

Double your gift to the The Conversation. For a limited time, your donation of up to $1000 will be matched dollar-for-dollar.