It is widely accepted that the purpose of the Infanticide Act 1938 is to offer mercy for women who kill their infants while ‘the balance of her mind was disturbed’ due to birth/lactation. However, to date there is limited judicial interpretation of the statute and debate continues as to whether the disturbance of mind must be based on medical evidence of a bio-psychiatric illness. Recent cases indicate women are now finding it difficult to make use of infanticide, especially where the victim is newborn, thus clarification on the meaning of this law is urgently needed. Drawing on statutory interpretation and supported by in-depth historical analysis of the law and Parliament's intent, we argue that the Infanticide Act can and should be interpreted to include social factors that lead women to fatally harm their infants in early motherhood, and should not require a mental disorder diagnosis. In this regard, we highlight the need for a gender-sensitive approach to statutory interpretation which takes account of the history and context of this crime, and lived realities of women who kill their babies. Such an interpretation not only provides just outcomes in these cases, but also re-establishes the purpose of the legislation and clarifies interpretation. In applying the rules of statutory interpretation, we identify the significant role of the socio-historical context of legislation, particularly for older statutes that are rarely used. The article finishes with a brief exploration of the potential for statutory reform.
Brennan et al. (Tue,) studied this question.