CC BY
60Khudaykulov Feruzbek,
Lecturer of Criminal Law, Criminology and Anti-corruption Department
of Tashkent State University of Law ORCID: 0000-0002-4940-3762 E-mail: dr.profi114@gmail.com
OFFENCE OF INFANTICIDE: NATIONAL AND FOREIGN
EXPERIENCES
Abstract: The Article analyzes the problems of qualification crime connected with infanticide. The terms used in the formulation of crime under consideration, which demands unambiguous and luminous exposition, are defined. This Article illustrates the objective side of the crime structure and its facultative signs along with their criminal legal significances related to the offense ofinfanticide, including the theoretical andpractical problems of facultative signs of the objective side of the crime structure, which are specified in the Criminal Code of the Republic of Uzbekistan. In addition, it includes proposals and recommendations for further improvement of criminal legislation. The author analyzes the offense of infanticide in national and foreign experiences. This Article illustrates that the facultative signs of the crime's objective side of the offense of infanticide are specified in the Criminal Code as extenuating (qualifying) signs at the qualification of a criminal offense, and Objective signs of this crime consist in the unlawful deprivation of life of a newborn child. On the objective side, the crime under Article 99 of the Criminal Code of the Republic of Uzbekistan has a material structure. It can be committed either through action or inaction. A socially dangerous consequence must be in the necessary cause-and-effect relationship with the mother's act.
Keywords: infanticide, criminal law, privileged formal element of a definition of crime, facultative signs of the objective side of the crime; the time, socially dangerous act; socially dangerous consequences; causal link.
One of the types of murder with extenuating circumstances under the Criminal Code of Uzbekistan is the murder of a newborn child by a mother. Article 99 of the Criminal Code provides for three situations in which the murder of a newborn child by a mother can be qualified under this Article:
1. the murder of a newborn child by a mother during childbirth;
2. the murder of a newborn child by a mother immediately after childbirth;
In essence, we are talking about three separate elements of the crime and three circumstances that mitigate the punishment. The reasons for the selection of compositions are the following signs: time, situation, mental state of the mother. The first two are related to the objective side of the crime while the third to the subject of the crime.
This type of crime is quite common in recent years. However, a significant proportion of newborn murders are presented as abortions and remain undetected by law enforcement agencies. One of the reasons for this is that the corpus delicti provided for in Article 99 of the Criminal Code of the Republic of Uzbekistan is
new and insufficiently studied by law enforcement. When considering this crime, many controversial issues arise. On the one hand, many of them are the subject of criminal law and the doctrine of criminal law; on the other hand, they are related to the field of medicine.
Objective signs of this crime consist of the unlawful deprivation of life of a newborn child.
On the objective side, the crime under Article 99 of the Criminal Code of the Republic of Uzbekistan has a material structure. It can be committed either through action or inaction. A socially dangerous consequence must be in the necessary cause-and-effect relationship with the mother's act.
The victim of this crime is a newborn child who was born and did not die. In this regard, the definition of the beginning of human life is important for the existence of this corpus delicti.
Various opinions have been expressed in the Russian legal literature on this issue. Thus, M.D.Shargorodsky associated the beginning of human life with the onset of independent infant breathing. O.V.Lukichev defined the moment of the beginning of the criminal law protection of human life as the time when any part of the child's
body appeared outside the mother's womb during childbirth [1]. A.B.Saraev and some other researchers associated with the moment of the eruption of the baby's head [2].
However, not any destruction of the fetus at the beginning of labor should be considered murder. In such a situation, the correct assessment of what was done depends on the period of pregnancy. In medicine, premature termination of pregnancy after 22 weeks is called early delivery, termination of pregnancy for a period not exceeding 22 weeks is called artificial termination of pregnancy or abortion.
If a person is pregnant for more than 22 weeks, the fetus is already capable of extrauterine life. Based on this, the beginning of the criminal law protection of life should be recognized from the moment of delivery during pregnancy over 22 weeks.
On the objective side, this crime includes two situations: murder of a child during childbirth and murder of a child immediately after it. Understanding the first situation involves understanding the question of what it means to commit an act "during childbirth". The concept of "birth" is broader than the term "birth of a child".
A.N.Popov identifies the following stages of labor: "the beginning of labor (the appearance of regular contractions of the uterine muscles-contractions; discharge of the mucous plug; discharge of water); birth periods ( first period - opening of the cervix; second period-expulsion of the fetus and birth of a child: this period begins after the full opening of the cervix and ends with the appearance of the child and its independent breathing; the third period occurs after the birth of the child and includes the separation of the placenta from the walls of the uterus and the expulsion of the placenta, the placenta includes: placenta, fetal membranes, umbilical cord) [3]."
Birth can be natural, natural premature, or artificial premature. In the scientific literature, it is reasonably stated that the deprivation of life of a child born as a result of natural childbirth or natural or artificial termination of pregnancy should be considered murder. The viability of the child does not affect the qualification of the act.
In the scientific literature, there are proposals for a somewhat broad understanding of the murder of a newborn child. So, for example, T.A.Plaksina and T.V.Kondrashova suggest that in case of spontaneous abortion with a pregnancy period of up to 22 weeks, if the fetus appeared with signs of life, the destruction of the born should be qualified as murder [4].
Such proposals unreasonably expand the boundaries in the understanding of premeditated murder and make
it difficult to distinguish crimes under Article 99 and Article 98 of the Criminal Code from illegal abortion (Article 114 of the Criminal Code). Therefore, they are unlikely to find broad support in the scientific literature and will be in demand in the process of law enforcement.
Currently, the literature suggests established sustainable approaches that are accepted by judicial practice in distinguishing murder from an illegal abortion. They are as follows: causing the death of a live child born as a result of any birth (natural, temporary, artificial premature) during pregnancy of more than 22 weeks is considered murder, and the destruction of the fetus during pregnancy up to 22 weeks or the killing of the child in the womb during pregnancy over 22 weeks before the start of labor, if there are other relevant conditions, is qualified as illegal abortion.
Understanding the second situation, which relates to the objective side of the act described in Article 99 of the Criminal Code, implies understanding the question of what it means to kill a child "immediately after birth". Various opinions have been expressed in the literature regarding the interpretation of this criminal law concept. So, some authors under this period of time understand, first, a day from the moment of birth of the child. Others believe that setting a predetermined time limit is unacceptable and suggest that this time limit should be determined on a case-to-case basis. According to third parties, the period of time "immediately after delivery" is the period of time after the birth of the child and before the separation of the placenta (children's place).
It seems that the most acceptable solution to this issue was proposed by A. N.Popov. It is logical that the period "immediately after delivery" can not be significantly removed from the time of delivery; it must be specific to all situations, otherwise, it may lead to differences in the qualifications and responsibilities of the perpetrators; it should not relate to the previous birth period.
This understanding of this phenomenon, firstly, takes into account the current reality in medical practice (2-4 hours after birth in medicine is called the early postpartum period). Secondly, it does not contradict Article 99 of the Criminal Code since such a period of time is not long and directly follows childbirth without any break. The subject of this crime is special: the mother of a newborn child who reached the age of 16 and killed her child.
On the subjective side, the crime in question is characterized by intentional guilt. The moment of intent does not affect the qualification of the act. In such a situation, it is important that its implementation occurs during childbirth or immediately after it, in
the conditions of a special mental state of the culprit, and not earlier or later than this time frame. Partial implementation of intent outside these time limits (for example, performing preparatory actions) excludes the responsibility of the guilty party under Article 99 of the Criminal Code of the Republic of Uzbekistan.
According to Article 99 of the Criminal Code, the murder of a child by a mother occurs not just during childbirth or immediately after it, but in a psychotraumatic situation caused by childbirth.
In such a case, the law indicates an unusual situation in which the crime was committed. The concept of "psychotraumatic situation" is used when describing the reason for the occurrence of a special mental state of the perpetrator: strong emotional excitement (affect), when the person could not fully understand the meaning of their actions or direct them.
It seems that in relation to Article 99 of the Criminal Code of the Republic of Uzbekistan, it is necessary to consider the "psychotraumatic situation caused by childbirth" as the cause of a special mental state of a woman in labor, when she could not fully understand the meaning of her actions or direct them. If the perpetrator was in a special mental state caused by childbirth, but at the same time could fully understand the significance of their actions or direct them, then all the actions can not be assessed under Article 99 of the Criminal Code but must be qualified under Article 98 of the Criminal Code.
B. N. Almazov and M. I. Kovalev characterize the state of limited sanity in this way: "In some cases, mental illness, oligophrenia, or other painful condition, in particular psychopathy, although they do not indicate complete insanity of the subject, but they play a significant role in the etiology of criminal behavior. The subject of the crime may not be fully aware of his actions and may not always be able to fully construct his behavior."
In this situation, it is necessary to conduct a forensic psychiatric examination, which can give an answer to the question of the presence of a mental disorder that does not exclude sanity. This condition of the mother may serve as a basis for prescribing compulsory medical measures.
In relation to Article 99 of the Criminal Code of the Republic of Uzbekistan, we are talking about a painful mental disorder that does not completely limit the ability of a woman in labor to be aware of and direct her actions. In such a situation, a violation of mental activity manifests itself in a distortion of the brain, which allows you to partially understand your actions and guide them.
For example, in England the offence of infanticide is:
(1)Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but 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 or by reason of the effect of lactation consequent upon the birth of the child, then, if the circumstances were such that but for this Act the offence would have amounted to murder or manslaughter, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.
(2)Where upon the trial of a woman for the murder or manslaughter of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that 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 or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, if the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder or manslaughter , return in lieu thereof a verdict of infanticide.
(3) Nothing in this Act shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter, or a verdict of guilty but insane[5].
The Infanticide Act 1922 effectively abolished the death penalty for a woman who deliberately killed her newborn child, while the balance of her mind was disturbed as a result of giving birth, by providing a partial defence to murder. The sentence that applies (as in other partial defences to murder) is the same as that for manslaughter. This act was repealed by section 2(3) of the Infanticide Act 1938.
The Infanticide Act 1938 extended this defence to cases where «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 or by reason of the effect of lactation consequent upon the birth of the child.»
Before the partial murder defence of diminished responsibility became part of English law in the Homicide Act 1957, this provided other than referral for possible insanity, the main means of lenient sentencing for a mother found guilty of deliberate killing of her infant than the mandatory life sentence or death sentence applying to murder.
In the 21st century it has become common for a severely post-natally depressed mother who kills her infant child not to receive a prison sentence, except in exceptional circumstances. Where a less extreme or no condition is suffered by the mother, then causing or allowing a child (under 15) to die (under the Domestic
Violence, Crime and Victims Act 2004, s.5) carries as of 2019 an effective sentence recommendation, unless the seven influential steps of sentencing determine otherwise, of 1-14 years' custody. Offender's responsibility substantially reduced by mental disorder or learning disability or lack of maturity will mean the lowest of three culpabilities applies, «Lesser culpability», and in that instance the starting point is taken as two years' custody setting a possible range of 1 to 4 years' custody.
In a report the terms of which were agreed on 1 November 2006, the Law Commission recognised the difficulties facing the court when a defendant is in denial and unwilling to submit to psychiatric examination, as she perceives the purpose of such examination as an attempt to prove her guilt. In such cases, the mother is unlikely to have any other defence and is, therefore, more likely to be convicted of murder or causing a child to die.[6]
Article 99 of the Criminal Code of the Republic of Uzbekistan provides for liability for murder under extenuating circumstances related to a certain mental state of the perpetrator caused by childbirth. In the theory of criminal law, it is recognized that a person who is not the subject of a crime specifically specified in the relevant Article, who participates in the Commission of a crime under this Article, may be criminally liable for this crime as an organizer, instigator or accomplice.
Complicity in a crime under Article 99 of the Criminal Code of the Republic of Uzbekistan is impossible, since the actions of other persons do not fall under this Article. The circumstances on the basis of which the responsibility of the mother is mitigated do not apply to accomplices in infanticide.
If the murder of a newborn child is committed by the woman who gave birth to it together with other persons, then their joint actions have different qualifications. Most authors believe that the actions of accomplices should be qualified as simple or qualified murder.
If the mother herself performs the role of organizer, instigator or accomplice in the murder of a newborn, her actions, as well as the actions of the performer, are proposed to qualify as complicity in the murder, pointing to the obvious unfairness of the qualification: for causing the death of a child with her own hands, the mother is responsible for the privileged composition of the murder, and in the case of causing death by someone else's hands - for the qualified one.
Based on this, it can be concluded that complicity will occur if the persons taking part in this act are aware that the woman is in a special mental state caused by childbirth when she is not fully aware of the significance of her actions or directs them. If the persons who assist the woman do not realize this fact, their assessment as
accomplices in the crime described in Article 99 of the Criminal Code of the Republic of Uzbekistan is excluded altogether. Complicity in this crime in reality can occur in rare cases since it is not given to any person to be aware of the special mental state of a woman during childbirth, but only to those who have certain knowledge or special training (for example, a doctor or psychologist).
Complicity in this crime in reality can occur in rare cases, since it is not given to any person to be aware of the special mental state of a woman during childbirth, but only to those who have certain knowledge or special training (for example, a doctor or psychologist).
One of these controversial issues is the definition of the moment of the beginning of life. This question is important for the qualification of an act under Article 99 of the Criminal Code of the Republic of Uzbekistan. The difficulty is that it is not clearly defined in medicine, so researchers of criminal law have to answer this question themselves. Most modern researchers agree that the moment of the beginning of life should be recognized as the beginning of physiological childbirth.
In the development of the disposition of Article 99 of the Criminal Code of the law, the legislator drew attention to the following cases:
1. First of all, it is aimed at the person of the javbranist: it is necessary to qualify the murder of the mother at the time of giving birth to her baby, or even at the time of giving birth, according to Article 99 of the Criminal Code. According to Article 99 of the Criminal Code, when calling a newborn, usually a baby up to 4 weeks after birth in Pediatrics is understood. If the criminal offense is directed at a child born dead, as a rule, it is considered liquid to an unsuitable object;
2. In the development of the norm of disposition of Article 99 of the legislative Criminal Code, attention was paid to the signs of the object of the crime, in particular, the time of committing the crime. Studying the results of practice under this Article and study the criminal law of foreign countries (Article 106, Part 2 of the Criminal Code of the United States, Canada, Germany, France, Russia, Article 100 of the Criminal Code of Kazakhstan, Article 133 of the Criminal Code of Kyrgyzstan, Article 105 of the Criminal Code of Tajikistan) analysis shows that in our legislation, the state of committing a crime is not provided for by the law by the legislator at the disposition of Article 99 of the Criminal Code. A study of the results of the practice under this Article shows that the intentional killing of a mother at the time of childbirth or birth still occurs in conditions of mental disorder or trauma (injury) in a way that does not exclude insanity.
In particular, the factors that cause cases of mental trauma in the mother - pregnancy as a result of rape, missed gestation period for abortion, anxious behavior of the newborn (crying a lot, not being quiet for a long time), the mother is deprived of the opportunity to sleep and rest for a long time (due to prolonged labor), the existence of a demand from the father of the baby, consisting of any price offer to get rid of the baby, the father's refusal to acknowledge the baby as a child, the refusal to formalize the marriage, the persecution of the baby's mother by close relatives.
Under the criminal law of England and Wales, infanticide is both an offence in its own right and a partial defence to the charge of murder. Only a biological mother who kills her own child within 12 months of the birth can be charged with infanticide or rely on it as a defence. The death can be by either act or omission. Under s 1 of the Infanticide Act 1938, (as amended by s 57 of the Coroners and Justice Act 2009), infanticide can apply where a woman:
by any wilful act or omission; causes the death of her child who is aged under 12 months; but 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; or by reason of the effect of lactation caused by the birth of the child then; notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder; she shall be guilty of an offence of infanticide; and may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.
R v Gore (2007) EWCA Crim 2789 established that there is no need for all the ingredients of murder to be proved before a defendant could be convicted of infanticide. The case confirmed that the aim of Parliament was to create a new offence of infanticide which covered circumstances much wider than offences that would
otherwise be murder. The mens rea for infanticide, therefore, does not require any intention to kill or cause serious bodily harm. In a case where infanticide is claimed for an offence that otherwise would have been framed as murder or manslaughter the burden of proof is on the prosecution to disprove a claim of infanticide beyond a reasonable doubt. The possibility that infanticide could be found in cases whereby a homicide could not be established was an issue which has been highlighted by the Law Commission. For example, the interpretation of 'wilful act', could include a negligent act which falls below the standard of gross negligence which is necessary for the offence of manslaughter to be established. Following this, the Coroners and Justice Act 2009 clarified the position that infanticide cannot be charged in circumstances which would not lead to a homicide [7].
A state of mind that does not exclude insanity - it is the case that the mother is a sane person who, due to her mental state being disturbed at the time of the crime, is unable to fully understand or control the significance of her actions (inactions). Mental disorders, which do not exclude mental retardation, are often expressed in the form of physiological affect.
In order to improve legislation in the field of newborn life protection. I propose to state Article 99 of the Criminal Code of the Republic of Uzbekistan in the following wording.
Article 99 « Murder of a newborn child»
1. Murder by a woman in labor Of her child during pregnancy more than 22 weeks before, during or immediately after delivery (during the subsequent period of delivery), as well as in a psychoanalytic situation, is punishable...
a) the murder of two or more children by a woman in labor;
b) with special cruelty - is punished ...».
References
1. Lukichev O. V. Detoubijstvo: ugolovno-pravovaja kriminologicheskaja harakteristika [Infanticide: criminal-legal criminological characteristics]. Saint Petersburg, 2000, P. 32.
2. Saraev A. B. Otvetstvennost' za prestuplenija protiv zhizni i zdorov'ja [Responsibility for crimes against life and health]. Ashgabat, 1973. P. 18.
3. Popov A. N. Prestuplenija protiv lichnosti pri smjagchajushhih obstojatel'stvah [Crimes against the person under mitigating circumstances]. SPb., 2001. P. 29.
4. Plaksina T. A. Ugolovnaja otvetstvennost' za ubijstvo: Ch. 1.Obshhie voprosy otvetstvennosti za ubijstvo [Criminal liability for murder: Part 1. General questions of responsibility for murder]. Barnaul, 1998. P. 12.
5. Infanticide Act 1938. Available at: https://www.legislation.gov.uk/ukpga/Geo6/1-2/36
6. Infanticide Act. Available at: https://en.wikipedia.org/wiki/Infanticide_Act
7. Infanticide and the criminal law. Available at: https://www.inbrief.co.uk/court-proceedings/infanticide-and-criminal-law
