Despite over 30 years of feminist research that has drawn attention to the moral judgements made about women who break the law, they are still being judged by who they are, rather than what they do.
Women tend to commit very little serious or violent crime: only 29 of the 362 people indicted for homicide in the England and Wales in 2013-14 were women. But, neonaticide (the killing of a child within its first 24 hours of life) is widely believed to be a female-only crime. In a recent case in Sussex, a mother was arrested and charged with murdering her newborn.
Based on homicide statistics and police recorded incidents of parents who have concealed a birth, about eight cases occur each year – although this is likely to be an underestimate of the true figures.
Our recent research demonstrates that these very complex and sad situations, involving some of the most vulnerable women in our society, are simplified in the courtroom to fit into narratives of “good” or “bad” women.
Moral judgements about these women are often made irrespective of evidence of these women’s difficult lives. As most women in these cases plead guilty to the charges against them, the evidence of their alleged criminal conduct is never tested. At sentencing, the courts focus on evidence of their moral character as women, such as their sexual history or whether they demonstrate motherly behaviour, rather than on the nature of their criminal conduct and the degree of their criminal culpability.
Vulnerable and alone
The death of newborn children often happens within the context of “crisis pregnancies”. This is a pregnancy usually kept secret from the wider world due to denial or the woman’s fear of reaction of those around her. These women commonly lead chaotic lives in difficult personal domestic circumstances, experiencing emotional abuse, domestic violence and rape. Many are unprepared for the birth, give birth alone and experience a considerable level of shock, confusion and distress. The infant may die during birth, or shortly after due to lack of medical care.
Recent convictions of women who have experienced this level of personal crisis have demonstrated that the criminal justice system is failing to understand the context of these cases.
One such woman, who we will call Hannah, has been the focus of ongoing research by Emma. Hannah successfully kept her pregnancy a secret, despite living in the same house as her family, because she feared their reaction, and gave birth alone. Hannah claims she passed out following the labour and when she awoke the baby had died. She was convicted of child cruelty.
At her hearing, the prosecution focused on Hannah’s sexual history – not on the fear she had of her family. When sentencing her, the judge remarked that if she had “acted appropriately the baby’s life could have been saved”.
This claim was made despite Hannah’s assertion that she was unconscious for the entire time that the baby was alive and so was physically unable to “act appropriately”. Collapsing from exhaustion after birth is documented in research on neonaticide.
Hannah personified a “bad” woman – unmotherly and promiscuous. Rather than acknowledging her vulnerability and considering the very difficult situation Hannah faced being pregnant, the court condemned her. Hannah was sentenced to 26 weeks in jail, suspended for two years.
But not all cases are like this. Another woman, who we will call Tanya, was deemed to be a “good” woman, despite suffocating her newborn baby. Judgements of her good moral character were based on the fact that she became pregnant after being raped and it was the trauma of the rape that led her to hide her pregnancy. Tanya pleaded guilty to infanticide and received a two-year youth rehabilitation order with supervision – a lesser sentence than Hannah.
In the context of neonaticide, “good” translates as a woman who is deemed to be “worthy” of sympathy and support because she has not willingly participated in a sexual relationship and become pregnant.
Avoid unwanted pregnancies
While we continue to judge vulnerable women like Hannah as “bad”, and therefore undeserving of our sympathy and support, we ignore the underlying factors that result in women feeling they need to hide their pregnancy and so give birth alone – often with dire consequences for the child and themselves.
We need to remove these moral judgements on women’s characters by contextualising their acts within the courtroom. Judges should be allowed to hear evidence on the psychological condition that leads women to conceal or deny a birth. Schools should also provide better, state-regulated sexual education, focusing on making protective sex a concern for both men and women. Trying to avoid unwanted pregnancies would be a better way of preventing neonaticide than courts handing down moral judgements.
Labelling women as “good” and “bad” in these situations not only fails to appreciate the complexity of the trauma of a crisis pregnancy, but also does nothing to prevent other women from finding themselves giving birth alone on their bathroom floor.