Kris
Gledhill, Auckland
University of Technology
After
protracted deliberations, the jury in the Lindsay Clancy
trial in Massachusetts has failed to reach a verdict and the
judge
has declared a mistrial.
In a case that
captured attention in the United States and around the
world, Clancy had admitted killing her three children before
trying to end her own life in 2023. She remains in hospital
until a decision is made on whether
there will be a retrial.
The prosecution argued
it was a deliberate and calculated murder, evidenced by her
arranging for her husband to be out of the house. That would
likely lead to life imprisonment (as Massachusetts is not a
death penalty state).
The defence argued she
suffered a postpartum
psychosis at the time and so was not in control of her
actions. This should mean she is not guilty because she was
insane at the time, or at worst guilty of manslaughter.
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Maternal mental health was a focus of the trial
and much of the wider
public debate surrounding the case.
There are
obvious factual similarities between the Clancy case and the
Christchurch trial
of Lauren Dickason in 2023. She also killed her three
children when her husband was absent, and then took an
overdose.
She was eventually found guilty of
murder and given an 18-year prison sentence. An appeal
will be heard in February next year.
The
prosecution had argued it was a deliberate killing amounting
to murder. The defence relied on mental health evidence
about a major depression and argued for a verdict of not
guilty due to insanity. But the defence also had an
additional line to argue: infanticide.
The separate offence of
infanticide
The infanticide option is a central
difference between the criminal law in Massachusetts and in
New Zealand – but also a number of other places, including
Australia, Canada, and England and Wales.
Infanticide laws started as a way of avoiding a
conviction for murder when the death penalty was still an
available outcome.
The British parliament
introduced an Infanticide Act in 1922 and then replaced
it in 1938. Still in force, it allows the jury to
convict a woman of infanticide rather than murder or
manslaughter if she kills her child, the child is less than
a year old, and a medico-legal test is met.
This
test refers to whether “the balance of [the mother’s]
mind was disturbed” from childbirth or lactation. The
judge then sentences as if the accused is convicted of
manslaughter, which need not involve a prison sentence.
Similar provision is made for Northern Ireland in the
Infanticide Act (Northern Ireland)
1939.
Infanticide laws spread to some other parts
of the English-speaking world, though not the United States.
Section 233 of the Canadian Criminal Code of 1985 has
similar wording to the English law, except that it covers a
“newly-born” child and the maximum sentence is five
years.
Examples in Australia include section 6 of
the Crimes Act 1958 in Victoria. This covers a child up to
two years old and also has a maximum sentence of five
years’ imprisonment.
In New South Wales, section
22A of the Crimes Act 1900 states infanticide involves a
victim no more than 12 months old, but the medico-legal test
has updated language. It refers to “a mental health
impairment […] consequent on or exacerbated by giving
birth to the child”. The woman convicted of infanticide is
sentenced as for manslaughter.
In some other
countries, there would also be an additional line of defence
called “diminished responsibility” which leads to a
manslaughter conviction. This is the case in Scotland, which
does not have an infanticide law.
The idea of
diminished responsibility is that, short of insanity, the
law should recognise that mental health difficulties might
play a role in killing that should be recognised by not
labelling the person as a murderer.
These laws are
wider than infanticide because they are not limited to women
killing children.
New Zealand’s expanded
infanticide law
Clearly, legislators have various
ways of drafting the relevant language. New Zealand law
reveals an independent streak.
It does not have
the more general defence of diminished responsibility –
this was rejected when the Crimes
Act 1961 was being drafted. However, it has a much
broader infanticide provision.
In the first place,
it extends to a child under ten and is not limited to the
child whose birth led to the relevant disorder. In addition,
as the maximum sentence is a relatively low three years’
imprisonment, a prison sentence is less likely.
It
still rests on a disturbed balance of the mind being caused
by birth, lactation or a consequent disorder. The jury has
to conclude the disorder is sufficiently bad that the woman
is not fully responsible.
In the Lauren Dickason
trial, she was convicted of murder. The jury concluded her
depression did not meet the New Zealand test for insanity.
They also rejected the partial defence of
infanticide.
New Zealand law has an extra nuance.
It allows judges to return to medical evidence at sentencing
to ask whether a life sentence would be manifestly unjust
despite the conviction for murder.
The presiding
judge, Justice Mander, decided it was unjust in light of the
mental health factors. The result was a sentence of 18
years’ imprisonment instead of life.
No one can
doubt the criminal law should view with horror the
deliberate killing of a child, including by a mother. At the
same time, the criminal law should take into account the
circumstances of the defendant, because criminal law is
about moral fault, and that may vary.
Laws such as
infanticide and diminished-responsibility manslaughter allow
the jury to decide the level of fault.
Importantly, such laws should also be welcomed by
those who prioritise accountability for a killing, even by
someone who is mentally unwell. This is because they allow
the jury to convict the mother of something, rather than
find her not guilty.
The Lindsay Clancy trial
illustrates how a jury can have difficulty when its choices
are limited.
Kris
Gledhill, Professor of Law, Auckland
University of Technology
This
article is republished from The Conversation
under a Creative Commons license. Read the original
article.
z/mother-suffering-from-major-depressive-order-avoids-life-imprisonment-for-murder-of-three-daughters/”>trial
of Lauren Dickason in 2023. She also killed her three
children when her husband was absent, and then took an
overdose.
She was eventually found guilty of murder
and given an 18-year prison sentence. An appeal
will be heard in February next year.
The
prosecution had argued it was a deliberate killing amounting
to murder. The defence relied on mental health evidence
about a major depression and argued for a verdict of not
guilty due to insanity. But the defence also had an
additional line to argue: infanticide.
The
separate offence of infanticide
The infanticide
option is a central difference between the criminal law in
Massachusetts and in New Zealand – but also a number of
other places, including Australia, Canada, and England and
Wales.
Infanticide laws started as a way of avoiding a
conviction for murder when the death penalty was still an
available outcome.
The British parliament introduced
an Infanticide Act in 1922 and then replaced
it in 1938. Still in force, it allows the jury to
convict a woman of infanticide rather than murder or
manslaughter if she kills her child, the child is less than
a year old, and a medico-legal test is met.
This test
refers to whether “the balance of [the mother’s] mind
was disturbed” from childbirth or lactation. The judge
then sentences as if the accused is convicted of
manslaughter, which need not involve a prison sentence.
Similar provision is made for Northern Ireland in the
Infanticide Act (Northern Ireland) 1939.
Infanticide
laws spread to some other parts of the English-speaking
world, though not the United States. Section 233 of the
Canadian Criminal Code of 1985 has similar wording to the
English law, except that it covers a “newly-born” child
and the maximum sentence is five years.
Examples in
Australia include section 6 of the Crimes Act 1958 in
Victoria. This covers a child up to two years old and also
has a maximum sentence of five years’
imprisonment.
In New South Wales, section 22A of the
Crimes Act 1900 states infanticide involves a victim no more
than 12 months old, but the medico-legal test has updated
language. It refers to “a mental health impairment […]
consequent on or exacerbated by giving birth to the
child”. The woman convicted of infanticide is sentenced as
for manslaughter.
In some other countries, there would
also be an additional line of defence called “diminished
responsibility” which leads to a manslaughter conviction.
This is the case in Scotland, which does not have an
infanticide law.
The idea of diminished responsibility
is that, short of insanity, the law should recognise that
mental health difficulties might play a role in killing that
should be recognised by not labelling the person as a
murderer.
These laws are wider than infanticide
because they are not limited to women killing
children.
New Zealand’s expanded
infanticide law
Clearly, legislators have various
ways of drafting the relevant language. New Zealand law
reveals an independent streak.
It does not have the
more general defence of diminished responsibility – this
was rejected when the Crimes
Act 1961 was being drafted. However, it has a much
broader infanticide provision.
In the first place, it
extends to a child under ten and is not limited to the child
whose birth led to the relevant disorder. In addition, as
the maximum sentence is a relatively low three years’
imprisonment, a prison sentence is less likely.
It
still rests on a disturbed balance of the mind being caused
by birth, lactation or a consequent disorder. The jury has
to conclude the disorder is sufficiently bad that the woman
is not fully responsible.
In the Lauren Dickason
trial, she was convicted of murder. The jury concluded her
depression did not meet the New Zealand test for insanity.
They also rejected the partial defence of
infanticide.
New Zealand law has an extra nuance. It
allows judges to return to medical evidence at sentencing to
ask whether a life sentence would be manifestly unjust
despite the conviction for murder.
The presiding
judge, Justice Mander, decided it was unjust in light of the
mental health factors. The result was a sentence of 18
years’ imprisonment instead of life.
No one can
doubt the criminal law should view with horror the
deliberate killing of a child, including by a mother. At the
same time, the criminal law should take into account the
circumstances of the defendant, because criminal law is
about moral fault, and that may vary.
Laws such as
infanticide and diminished-responsibility manslaughter allow
the jury to decide the level of fault.
Importantly,
such laws should also be welcomed by those who prioritise
accountability for a killing, even by someone who is
mentally unwell. This is because they allow the jury to
convict the mother of something, rather than find her not
guilty.
The Lindsay Clancy trial illustrates how a
jury can have difficulty when its choices are
limited.
