Desperate Measures: Rationalizing the Crime of Infanticide

Abstract

This article addresses the crime of infanticide and issues of statutory interpretation that are currently before the courts. Specifically, the comment examines the relationship between infanticide and murder and argues that the intent of the infanticide provisions in section 233 of the Criminal Code was to provide a mitigating regime for killings that would otherwise be murder. The article examines the recent trend towards charging women who kill their newly born children with murder, rather than infanticide, and the resulting judicial development of a defence of infanticide. While the article raises concerns about treating infanticide as a defence, it may be a necessary response to the tendency towards overcharging murder in cases where infanticide is a more appropriate verdict. Further, it is argued that infanticide must be interpreted in a way that acknowledges the unique role of women in pregnancy, childbirth, and child-rearing in our society and the reality faced by women who may be young, poor, socially isolated, or mentally ill and find themselves in desperate circumstances.

Keywords: Canada, Criminal Code, infanticide, murder, defences