Wednesday, 2 March 2011

INFANTICIDE: Ontario appeals court upholds the legal concept

KIRK MAKIN  Mar. 02, 2011

The Ontario Court of Appeal has ruled that mothers who kill their infants while in the grips of a mental disturbance deserve leniency and should not be subjected to an automatic life sentence for murder.

The ruling this morning turned back a determined attempt by the Ontario Crown to remove infanticide as a shield in baby slayings.
The rarely used lesser offence usually results in sentences of a few months at most compared to the automatic life sentence that accompanies a murder conviction.
The decision meant the difference between a year in jail and life imprisonment for a young woman, identified only as L.B., who had admitted to killing two of her children and was convicted of infanticide.
On appeal, prosecutor Jennifer Woollcombe argued that it should not have been open to L.B.’s trial judge to acquit the young woman of first-degree murder and find her guilty only of the lesser offence.
“Choosing between the two characterizations of infanticide has profound importance in a case like this one where a mother is charged with murdering her child,” Mr. Justice David Doherty observed Wednesday, writing on behalf of Mr. Justice Michael Moldaver and Madam Justice Eleanore Cronk.
Judge Doherty concluded that, after a rigorous survey of legislation since the 1940s, Parliament introduced the infanticide to exist as a safety valve in the case of new mothers who become unbalanced.
“That introduction was precipitated by the perceived need to give juries trying murder cases involving mothers who killed their children an alternative to a murder verdict that more accurately reflected the jury’s sense of the true culpability of the mother,” he said.
“It would take strong evidence to satisfy me that Parliament intended to abandon the very purpose behind the infanticide legislation less than six years after enacting that legislation, and that it intended to give to the prosecutorial authorities, through their charging discretion, the exclusive power to determine whether a mother who killed her newborn child could be convicted of infanticide and not murder,” he said.
“Whether the infanticide provision should continue to so operate, and if so under what terms, raises difficult policy questions,” Judge Doherty said. “Those questions are for Parliament and not the court.”
The ruling was a victory for defence counsel Timothy Breen and James Fleming, as well as a legal intervener, the Women’s Legal Education and Action Fund.
L.B. was not charged until a couple of years after the morning her baby was found dead in his crib. The death was presumed to be accidental. However, L.B. admitted in 2005 that she had killed not just that baby, but another infant who had died two years earlier under similar circumstances.
L.B., who had already served two and a half years in pretrial custody, was ultimately convicted of infanticide and sentenced to a total of 18 months in jail with three years on probation. She was also to notify child-welfare agencies if she became pregnant any time in the next 20 years.
Ms. Woollcombe argued at the appeal that it mocks a child's death for her killer to be spared a life sentence for murder. She said that an out-and-out psychopath could murder her infant and get off with a relative slap on the wrist simply by exaggerating her “baby blues.”
In another scenario, the prosecutor offered the court, any woman with a pre-existing mental disorder can simply claim that it was exacerbated by giving birth. “It is going to be extraordinarily difficult, if not impossible, for the Crown to charge or convict women who kill babies under a year old, of murder,” she said.
Ms. Woollcombe argued that infanticide should considered only when a judge or jury first concludes that the Crown has failed to make out the essential ingredients of a murder prosecution. She said that this would allow mothers who suffer from genuine mental disturbances to be acquitted of murder, while at the same time making intentional killers serve an appropriate penalty.
However, Mr. Breen insisted that infanticide serves as a vital outlet for judges and juries who realize that a mother overwhelmed by post-partum depression can do the unthinkable – take her own child's life.
The infanticide law evolved decades ago because juries stubbornly refused to convict young mothers of murder, knowing that they might be led away to the scaffold, he said.
“Infanticide can be seen as the leading edge of legal reform that came before the abolition of the death penalty,” Mr. Breen argued. “It is a concession to human frailty; to mental disorders that can result from childbirth. The death penalty is the elephant in this room. It explains the development of infanticide's proper interpretation as a defence.”
Punishable by up to five years in jail, only a handful of infanticide sentences are handed out each year. However, the profound questions of culpability, mercy and maternal love that they raise loom far out of proportion to their number.
Judge Doherty emphasized that mothers who kill their babies will not walk away unscathed. If there is no evidence of a mental disturbance capable, he said, she will be open to a murder or manslaughter conviction.

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