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Seanad Éireann debate -
Thursday, 7 Jul 1949

Vol. 36 No. 17

Infanticide Bill, 1949—Second and Subsequent Stages.

"I move that the Bill be now read a Second Time." This is a short Bill, which to a large extent implements the recommendations of a committee of judges which, at the request of one of my predecessors in the office of Minister for Justice, considered and reported on the law and practice relating to capital punishment. The committee consisted of the then Chief Justice (the late Hon. Timothy O'Sullivan), the President of the High Court (who is now the Chief Justice), Mr. Justice O'Byrne and the late Mr. Justice Hanna. The committee recommended, amongst other things, that the crime of infanticide should be dealt with by legislation in similar terms to the British Infanticide Act of 1938.

While the Government have accepted the judges' recommendation in principle, they have not, in the Bill which is now before the House, followed the British legislation in every particular. I shall have a word to say later about this departure from the literal recommendation of the judges, but I think it best to give, first of all, a brief outline of the present law and practice in this matter.

Under the existing law an unmarried mother (to take the most usual type of case) who wilfully kills her child is guilty of murder and liable to be sentenced to death, unless she establishes a defence on the ground of insanity. Modern medical opinion strongly favours the view, however, that a woman, although not insane in the sense that would enable her to establish a defence on that ground to a charge of murder, might suffer from such disturbance of mind in the circumstances attendant or following on the birth of the child that she would not be fully responsible for her actions. I understand that in the majority of these cases the charge of murder is reduced to one of concealment of birth and in the few cases in recent years in which women have been convicted of the murder of their infants the sentence of death has been commuted. For many years now no woman has been hanged, either here or in Britain, for the murder of her infant child.

Now, everyone will, I think, be agreed that it is desirable that the law should be altered so as to eliminate all the terrible ritual of the black cap and the solemn words of the judge pronouncing sentence of death in those cases where a woman, if not technically insane, was undoubtedly not sane at the time she killed her infant—in those cases, in short, where it is clear to the Court and to everybody, except perhaps the unfortunate accused, that the sentence will never be carried out. But, in dealing with the situation, we must, I submit, be careful to avoid any suggestion that the Legislature of this country has become less conscious of, or less concerned about, the sanctity of human life. Accordingly, the wilful killing of a human being, whether that human being be a newly-born infant or a man or woman in the prime of life, must remain an offence that will, prima facie, constitute murder and will be capable of being punished as such by the infliction of the death penalty. The Bill has been framed so as to achieve this object. While ensuring that the sanctity of human life is preserved and the seriousness of the offence not lessened, we aim in this Bill at achieving a position in which, in appropriate cases, it will no longer be necessary to subject unfortunate girls to the strain of undergoing all the horrors of the trial for murder and of being sentenced to death.

The main difference between the Bill and the British Act of 1938 is that the British Act contented itself with creating and defining the crime of infanticide and then making the necessary consequential provisions. The Bill, on the other hand, clearly implies that the charge initially against a woman who wilfully causes the death of her infant child will be a charge of murder. Sub-section (1) of Section 1 of the Bill provides that it will be for the District Court in the first instance, on the preliminary investigation of the charge, after having heard all the evidence including the evidence as to the mental state of the woman at the time of the offence, to decide whether or not the accused shall be sent forward for trial on a charge of murder or on a charge of infanticide.

Sub-section (2) of Section 1 provides a safeguard for the case in which the justice may decide to return the accused on the major charge of murder by enabling the jury, at the trial, to return a verdict of infanticide if they are satisfied on the evidence that she is guilty of that offence and not of murder.

Sub-section (3) of Section 1 defines the crime of infanticide and provides that it shall be an offence which may be tried and punished in the same way as manslaughter. This, in practice, will mean that when a district justice, in pursuance of his powers under sub-section (1) of Section 1, alters a charge of murder to one of infanticide, he may return the accused for trial by the Circuit Criminal Court and not by the Central Criminal Court. I do not think that I need dwell on the definition of infanticide contained in sub-section (3), which is, I think, self-explanatory.

Sub-section (4) of Section 1 is a necessary and obviously desirable consequential amendment of Section 60 of the Offences Against the Person Act, 1861, which at present enables a jury to return a verdict of concealment of birth in the case of a woman charged with the murder of her recently born infant child. The effect in practice of sub-section (4) will be to empower the jury similarly to return a verdict of concealment of birth when the charge is one of infanticide.

As the Minister has pointed out, the main principle of the Bill has been recommended by a committee of judges set up by the former Government to examine and report on the law and practice relating to capital punishment. It seems to me that what we are really doing here is what has already been done in relation to other cases where the charge of murder can, under certain circumstances, be reduced to one of manslaughter. As the Minister has pointed out, it is very important that it should not be taken from the passing of this Bill that any less value is placed on human life and great care should be taken in examining any such cases.

I should like to draw the Minister's attention to a further matter in which I am interested. When the justice decides that the charge is to be reduced from murder to infanticide I think it is unreasonable that, in such circumstances, a person should be put to the expense of having to go before the Criminal Court. It should be sufficient that the district justice would deal with cases of this kind.

I think also that it would be well if less publicity were given to such cases —either local publicity or publicity of the trials in the courts.

I think this measure proposes a very desirable and much-needed change in the criminal law. It does not, as the Minister has already pointed out, mean that murder, as such, of an infant will be treated as other than murder in the future any more than in the past. It saves the deplorable necessity of going through the solemn procedure of a trial for murder in cases where, through high mental stress and abnormal circumstances of the accused, it is evident that it is not murder in the ordinary sense of the word. The suggestion by Senator Hawkins that the district justice might deal with the case once he decides that it is one of infanticide is not practicable, as the justice is not in a position to deal with a manslaughter case and dispose of it. It seems to me that, in all circumstances, he must return the accused for trial to the Criminal Court—not to the Central Criminal Court, which is an improvement also.

These are extremely painful cases. It is still a protection for human life when the district justice may return the accused for trial on the capital charge if he so desires. In that case, there is the still further protection that the jury can bring in a verdict of manslaughter or something less than murder. In any event, the accused is assured of justice to the extent that justice can be done and at the same time the whole community and all immediately concerned will be saved from the very unpleasant circumstances under which trials of the present day are conducted. Everybody knows, except the accused, that the execution will not take place, and it is most undesirable that the judge should have to go through the solemnity of passing sentence, and the accused in the dock have to stand up and hear that sentence. In the interest of humanity, without in any way interfering with the strict course of justice, this is a very desirable Bill and one which will commend itself to the House.

This Bill comes in under very good auspices. It embodies a principle laid down by judges with the highest sense of moral values and is presented by the Minister who has not only adhered to those principles but has also distinguished himself by a sense of pity. We have here a fine mixture of pity and justice. We are all glad that this Bill has been introduced and, as a woman Senator, I want to say that we are grateful for it.

I have a little trouble about the phrasing, from a lawyer's point of view. I cannot see the virtue of paragraph (c) of Section (3):

"(c) at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child..."

That is the usual defence put up which invariably mitigates the sentence, when the woman is convicted, and it seems to be sensible and proper. But then it goes on:

"or by reason of the effect of lactation consequent upon the birth of the child..."

I think that is an unnecessary further provision. The first part of the sub-section seems to cover the ground and the second portion is merely giving an example of one effect amongst, in my experience, many others which might just as well be set out one after the other.

Knowing the complexity of the law, I know it may at some later stage lead to a defect which is not intended in the Bill. I would be interested to hear the Minister on the reason for putting in one instance of the many complications that are known to exist where this occurs, where the people, who are usually in poor circumstances, are frequently under great stress. I think the Bill would be improved by the omission of that second clause.

From the medical point of view, I would like to support Senator Sweetman. I did not rise earlier, as I had not a copy of the Bill at hand. A possible reason for the paragraph would be to prolong the period during which infanticide could be considered to have occurred. I do not know whether the legal definition of infant is in accord with the medical statistical one, the first year of life. If that were true, one could not claim pregnancy as being responsible for infanticide in the case of an infant nine months, whereas one might blame the effect of lactation. If it were possible to leave it out, it would be desirable to do so.

I am pleased with the way the Bill has been received here. On the question of the district justice trying the case, that would mean regarding it as a minor offence, whereas we regard it as one for judge and jury.

On the question raised by Senators Sweetman and Bigger, I am advised by the Attorney-General that this is necessary. I do not pretend to know the reasons, but I am advised by him that it would be a good defence and it would mean removing a very important defence if it were left out. It does appear that this is one of the things sometimes neglected and by its inclusion here it is being emphasised. I have no hesitation in saying I will consult the Attorney-General again, in view of the opinions expressed. I presume I will not get all the stages of the Bill to-day and it will take some time to amend it. I will consult the Attorney-General before the Committee Stage.

It is a question of this being the only defence being specifically mentioned, as there would be other matters.

This is one that has been excluded for a considerable time.

Question put and agreed to.

When is it proposed to take the Committee Stage?



This is the Attorney-General's approved draft on the point just mentioned. I have already consulted him, but as there was a strong point raised, I will consult him again on the matter if the Senator wishes. If not, there is no need to consult him again.

As far as I am concerned, I see the answer now. It is rather the reverse to what I imagined. The reason this is put in is not because it is the only one, but the only one that up to this has been left out. If the Minister assures me it is not the only defence, but is specially included so that it may be made a defence, I am satisfied.

My only point is to clear up my own ignorance on this, which should not exist. I am not sure up to what age it can be infanticide.

Twelve months.

If so, the point about lactation is better left in.

Agreed to take the remaining stages to-day.

Bill passed through Committee and reported without amendment.
Bill received for final consideration and passed.
Ordered: That the Bill be returned to the Dáil.