Special psychophysical condition as a circumstance that mitigates punishment in Art. 117 of the Criminal Code of Ukraine

The article is devoted to elucidating the essence of a special psychophysical condition as a circumstance that mitigates the punishment in Art. 117 of the Criminal Code of Ukraine «Intentional murder by the mother of her newborn child.» It has been established that this type of murder is a privileged murder. It has been proven that it has an extremely powerful effect on the psycho-emotional state of a woman giving birth and the process of giving birth to a child, which is recognized as a stressful factor, as a result of which she may lose the ability to behave adequately. Emphasis is placed on the presence of certain features of the psychophysical state in a woman during the commission of a murder, which are caused by a combination of emotional tension caused by pregnancy and childbirth and the mental processes that accompanied them, which weaken the mother’s ability to be aware of her actions and control them. The factors that can cause disorders of the psycho-emotional state of a woman are singled out: the coincidence of difficult personal and family circumstances; divorce from the child’s father; unwanted pregnancy; difficult financial situation; negative microenvironment. It was established that there is no indication in the disposition of Art. 117 of the Criminal Code on the presence of a special psychophysiological condition of a woman as a mandatory feature of this criminal offense, which creates some problems in the qualification of criminal offenses. It has been proven that a mitigating circumstance in the case of a mother committing the murder of her newborn child during childbirth or immediately after it should be recognized precisely the psychopathic state that led to a mental disorder, which does not exclude the sanity of the person, but significantly weakens the possibility of realizing such actions and manage them. It was found that a woman in the process of childbirth cannot be considered as fully aware of her actions and in control of them. At the same time, it is not excluded that a woman at the time of childbirth or immediately after it may be in a state of morbid mental disorder, that is, be of limited sanity, in connection with which it is concluded that in such a case a special psychophysical state may coincide with limited sanity. It was concluded that the existence of a privileged type of murder provided for in Art. 117 of the Criminal Code, caused only by the possibility of the existence of a special psychophysiological state of a woman during childbirth or immediately after it. It is proposed to improve the current wording of Art. 117 of the Criminal Code by means of a legally defined indication of the need to establish the fact that a woman is in a special psychophysiological state.