Though news of infanticide has been highlighted by the media recently, infanticide is definitely not a new phenomenon. It has been documented among the people of Mesopotamia, Greece, and Rome. The Vikings, Irish Celts, Gauls, and Phoenicians are no exceptions. Resnick (1970) conducted a literature review of documented infanticide, dating from 1751 to 1968, from 13 different languages, illustrating recorded cases dating to the 18th century. Infanticide, especially of females occured among the pre-Islamic pagan Arab society during the sixth century just as it does in modern day China.
From the Islamic perspective, the Qur’an (6:151) explicitly prohibited the practice of infanticide and regarded it as a grave sin. “Do not kill your children for fear of poverty; we give them sustenance and yourselves too; surely to kill them is a great wrong.” In 81:7-10, it says,” And when the infant girl who was buried alive is asked:”For what crime was she killed?”
A number of factors have also been identified contributing to this phenomenon. Meyer and Oberman (2001) cited among others justifications for doing so such as; illegitimacy, childhood disability, preference for males and poverty. In the context of a modern society today, it is definitely a sign of a substantial social problem. And this calls for immediate and effective action.
Looking it from the legal perspective, one wonders whether proper research has been done before capital punishment for infanticide were proposed recently in Malaysia. In considering whether capital punishment is the best respond to infanticide, the key question to ask is why are we punishing these women and whether capital punishment can deter infanticide?
If there is something that we could learn from the West relating to infanticide, it is that capital punishment for infanticide has not proven to be effective. An overview of British legal history for the 300 years (1623-1922) provides a vivid illustration of that society’s ambivalence in responding to the crime of infanticide. When the Parliament passed a law in 1623 making infanticide a capital offence, it essentially reversed the presumption of innocence, requiring that unless the accused could produce an eye witness to testify that the infant is stillborn, the jury must find that she murdered the infant. Given the high infant mortality rates of that era, it is inevitable that the law had the effect of condemning a large number of women to death.
There is no evidence to suggest that the law had any deterrent effect on the crime of infanticide. One of the reasons for its failure is because they are not designed in such a way that will affect the decisions and actions of those most likely to kill infants. Instead, after several decades of enforcement of the law, juries began refusing to convict these women by adopting several widely accepted defenses to the crime.
The twentieth century introduced a dramatic new perspective on that crime – that of “post-partum disorders” and recognized infanticide as a distinct form of homicide. The British introduced Infanticide Act in 1938 and that statute has been replicated in at least 22 nations around the world. These statutes have made infanticide a less severe crime than murder.
In the Malaysian context, currently, there is no statute specifically addressing infanticide. Under the current Malaysian Penal Code, infanticide is addressed by section 309A which interestingly differentiate it from murder. It specifically mentions that when any woman by any willful act or omission causes the death of her newly-born child, but at the time of the act or omission she had not recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall not be guilty of infanticide.
This provision seems to echo the spirit of “post-partum disorders”. Oberman (1996) tried to understand the crime better by analyzing the allegations and sentencing of women accused of infanticide by examining the charges brought against them. She found that in cases of infanticide, usually there is no premeditation involved; rather, the killers react with panic and impulsiveness. She notes that there was a tendency toward more severe charges if the newborn was mutilated in any way and suggested that, preventing infanticide requires that society somehow reduce the vulnerability that is felt by women who commit this act of desperation.
Currently, the sentencing of infanticide ranged from therapy and parenting classes to imprisonment for over 30 years. In the Malaysian context, Section 309b of the Penal Code provides punishment for infanticide which is imprisonment for a term which may extend to twenty years, and shall also be liable to fine. But, if it is considered as murder, the sentence would be death.
Though imprisonment can serve to protect society as a deterrent and as rehabilitation, however, in the case of infanticide, Atkins and colleagues (1999) argue that those who commit infanticide are not in need of rehabilitation, and that they pose no risk to society or to their children.
Furthermore, the act of infanticide is said to be unlikely to take place again because the conditions surrounding the act are so distinctive, and, therefore, criminal rehabilitation and exclusion from society are usually unnecessary. As stated, as infanticide usually occurs quickly and with no premeditation, there is little deterrent value in imprisonment of these emotionally immature young women (mostly below 25). Due to social isolation and their denial of the pregnancy, many of them do not even realize they are pregnant or experiencing labor until after they have given birth.
In relation to imprisonment, Schwartz & Isser (2001) suggest that judges should take into consideration all the factors relating to an infanticide, such as fear and ignorance, when considering such punishment. They mentioned that long prison sentences will likely have negative impacts on mental health, which is already fragile for many women who commit infanticide.
Though most of us would readily agree that women who commit infanticide should be held accountable for their actions, they must also be equipped with the tools necessary to prevent future crises. Understandingly, these women are more in need of emotional and mental rehabilitation than they are of criminal rehabilitation.
However, punitive responses like capital punishment, while punishing a woman for her actions, will also not likely affect decisions or events leading to infanticide. Some scholars have argued that while perpetrators of infanticide should doubtless be held accountable for their actions, their situations demand therapeutic intervention rather than punishment.
Therapeutic intervention by parents, doctors, teachers, and social service providers are more effective than law and they should be alert when young women, exhibit characteristics putting them at risk of committing infanticide. Action must be taken to warn the young of premarital sex, unplanned pregnancy, and if such a pregnancy does occur, continuous support before labor and delivery should be given. Because of the unique circumstances differentiating infanticide from other killings, it has been suggested that laws specific to this occurrence be developed. This would require extensive education of those in the criminal justice system about the underlying circumstances surrounding infanticide.
