UNWLLING MOTHERS, UNWANTED BABIES: INFANTICIDE IN CANADA

Vol. 15 No.8 (August 2005), pp.766-769

UNWLLING MOTHERS, UNWANTED BABIES: INFANTICIDE IN CANADA, by Kirsten Johnson Kramar. Vancouver and Toronto: University of British Columba Press, 2005. 238pp. Hardcover. $85.00. ISBN: 0-77-48-1176-5.

Reviewed by Greg Marquis, Department of History and Political Science, University of New Brunswick, Saint John, New Brunswick, Canada, gmarquis@unbsj.ca .

This study is a book version of sociologist Kirsten Johnson Kramar’s 2000 PhD dissertation, which examines legal discourse surrounding the crime of infanticide in 20th-century Canada. Canada followed the British legal approach to dealing with maternal neonaticide (birth mother’s causing the wrongful death of infants), as opposed to that of the United States, where infanticide is not a separate charge but a legal defence in murder and manslaughter prosecutions. The charge of infanticide, modelled on the English Infanticide Act of 1922, was added to the Canadian Criminal Code in 1948. Until that year, Canadian Crown attorneys and police had a number of charge options in the case of neonaticide: murder, manslaughter, concealment and neglect to obtain assistance in childbirth. The current punishment for infanticide, which is an indictable offence, is a prison term not exceeding five years (Canadian Children’s Rights Council, 2005).

Kramar utilizes a feminist, interdisciplinary approach, informed by her reaction to the recent tendency to target adolescent women with child abuse charges, a development she associates with the “new quasi legal status” of the baby, which supposedly is linked with “the anti-abortion movement’s attempt to assert foetal rights claims in law”(p.14). She also argues that late 20th century feminist historiography, with a focus on textual analysis of the medicalization of women’s deviance, is ahistorical. Prominent in this approach is the early work of Carol Smart, who depicted infanticide prosecutions as repressive regulation of sexuality and reproduction by the state. As infanticide became ‘medicalized’ by the late nineteenth century, Smart argued, women’s deviance was explained in terms of biology and psychology, not patriarchy. In contrast, Kramar concludes that Canada’s infanticide law was “a pragmatic, even artful, solution to the problem of securing convictions faced by the prosecuting authorities” (pp.4-5). Far from being victims of a patriarchal justice system, accused women were understood according to their “unique experiences of pregnancy, childbirth and lactation” (p.5). The author also questions the “Anglo Foucauldian” critique of infanticide with its emphasis on law as a way of disciplining ‘bad’ mothers and deviant single women. As Kramar explains, one reason that juries were so sympathetic to young single women who abandoned, concealed or killed their newborn babies was that the women were motivated by propriety—the need to avoid the shame of giving birth to an illegitimate child. Many of the women charged were married or widowed. She writes: “In Canada the killing of these babies was sometimes [*767] openly backed by the women’s lovers, families and friends, who wanted to avoid stigma for themselves and the babies” (p.7).

Despite the title, the bulk of the primary evidence is drawn from Canada’s largest province, Ontario. In addition to a number of reported cases, the Ontario evidence consists of nine verdicts of coroner’s juries from 1980-98, twelve coroner’s investigation case files from 1986 to 1998, and fifty six cases drawn from criminal prosecution records in the Archives of Ontario. Ontario was one of the last provinces to retain grand juries, which were abolished in the late 1960s. Grand juries of lay persons from the community, as the author explains, were important in mitigating charges of murder into lesser offences, such as indictments for concealment of birth. Petit or trial juries did the same thing, a situation that eventually prompted the change of 1948. Prior to the medicalization of childbirth, when many babies were not born in hospitals, it was easier for women to assert innocence when babies “died at home following a concealed pregnancy” (p.97).

As in other jurisdictions, infanticide was considered a “social” crime that was difficult to detect, under-prosecuted and met with considerable ambivalence from the community, politicians, the press, and legal officials. First, there had to be legal proof of live birth, and of wilful intent. Second, conviction on a murder charge meant an automatic death sentence (although the federal cabinet tended to commute death sentences for women). Juries in the late Victorian and Progressive eras reflected a chivalrous attitude that viewed “wronged” women, particularly if young and working-class, as victims of male seducers and an unjust economic system. On the other hand, English research suggests that “good character” was a key determinant in trial outcomes, as in the case of female victims of sexual assault. A minority of women convicted of murder were those who confessed to the police.

Perhaps a deliberate choice of prosecutors, the result of jury sympathies, or the result of plea bargains, the concealment charge became the main Canadian instrument for regulating infanticide. In the period, 1912 to 1919, for example, there were 86 concealment charges nationally, resulting in 60 convictions. Between 1920 and 1948, when the new law was introduced, more than 350 concealment charges were laid (fourteen against men), with a conviction rate of 85%.

The early twentieth-century medical understanding of neonaticide, as revealed in the English parliamentary debate of 1922, combined awareness of the patient’s poverty as well as the biological/psychological pressures on recently pregnant and now lactating mothers. According to Kramar, the incorporation of infanticide into the Canadian Criminal Code was not accompanied by much discussion or understanding of the medical and psychological aspects of the issue. It was a crime control response: infanticide was an attempt to avoid the emphasis on auxiliary charges. Because the Crown (the prosecution) faced two evidentiary burdens, intent and reproductive mental disturbance, the law was amended in 1955. The chapter that discusses infanticide case law notes that after 1955 decisions focused on the questions of live birth and willful intent. Reported [*768] cases that dealt with sentencing indicate a trend towards stronger sanctions in cases of violent death. This was most evident by the 1980s when many prosecutors were abandoning infanticide charges for second-degree murder.

Kramar is alarmed at the rise of political interest in the rights of the infant, alive or dead, at the expense of the mother. She cites the federal government’s interest in replacing the offence of infanticide with “death by child abuse/neglect” and in legislating longer prison terms for abandonment. In an era of “gender neutrality” and individual accountability, prosecutors and judges are less likely to accept psychiatric evidence and to account for women’s social economic vulnerability. According to Kramar, neonaticide by mothers is different from child abuse murder, which tends to follow “prolonged physical abuse” (p.100) and should not be punished as harshly. She dismisses a judge’s comments in the case of a twenty-one year old woman who killed her concealed newborn with scissors as “ahistorical,” “moralistic” and “puritanical,” and representative of “right-to- life rhetoric” (p.128).

Kramar’s suggestion that political and legal pressures on the traditional charge of infanticide are simply the result of a conservative agenda within the justice and child welfare system is more asserted than proven. The issue is historically complex; infanticide was the creation of a conservative, patriarchal legal-political system reacting to social forces. The anti child abuse movement, as explained in the American case by Nelson (1984), was the result of a rediscovery of social problem. The “battered child syndrome” emerged from professional concerns of pediatricians, radiologists and social workers in the 1960s, and from politicians who supported a safe “motherhood” issue. Political interest in enacting legislation that required reporting suspected abuse was fuelled by high-profile cases detailed in popular magazines and influential newspapers. In both the United States and Canada, the children’s rights movement owes more to social workers and academics than anti-abortionists and evangelical Christians (the latter often object to state intervention in family life). Like the anti-smoking movement, the protection of children has become central to middle class norms. Infanticide, a fitting legal category for the Victorian or Progressive era, does seem out of place in an age when parents can be arrested for spanking a child. Other things have changed since the late 1800s and early 1900s: birth control is legal and available in Canada, abortion is somewhat available, and there is less stigma surrounding “illegitimate” children and single parenthood. In this context, lawmakers, courts, and the media are inclined to be less charitable towards women who abandon or kill their babies. And it is difficult to view the anti child abuse movement as simply a modern way to repress women. Shaken baby syndrome, whose victims tend to be less than six months old, has concerned such mainstream organizations as Health Canada (the federal health agency), the Canadian Association of Chiefs of Police, the Canadian Pediatric Society and the Canadian Bar Association. Media reports of child abuse tend to blame fathers or male partners as much as mothers, and with regard to murder of children and youth during the period, [*769] 1974 to 1999, the number of mothers and stepmothers who killed (400) nearly equalled the number of fathers and stepfathers (460) (Canadian Broadcasting Corporation 2005). Many of the front-line workers in child welfare, education and medicine, who are most likely to report child abuse, are women who would not see themselves as “anti women.”

REFERENCES:

Canadian Broadcasting Corporation. 2005. “Indepth: Missing Children,” CBC News website, http://www.cbc.ca/news/background/missingchildren/childmurders.html (date visited: 29/07/2005).

Canadian Children’s Rights Council. 2005. “Killing children/infanticide.” Canadian Children’s Rights Council website, http://www.canadiancrc.com/killing_children.htm (date visited: 29/07/2005).

Nelson, Barbara J. 1984. MAKING AN ISSUE OUT OF CHILD ABUSE: POLITICAL AGENDA SETTING FOR SOCIAL PROBLEMS. Chicago: University of Chicago Press.

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