Dr Felicity Gerry QC, at Crockett Chambers in Melbourne, discusses the need to update prosecution guidance regarding women suspected of endangering or harming their infants. She calls for serious action that needs to be under taken to better understand the plight of these women and consequently where the current laws let them down.
There is an urgent need to revise prosecutorial guidance on women suspected of endangering, harming, or causing the death of their infants, particularly now that research is available to develop such a policy that will focus minds on opportunities to be merciful. To ensure justice for women, it is vital to examine the typology of such cases, and work to comprehend why a woman might endanger or harm her child and to what extent this may involve any criminal responsibility at all.
The recent decision of DPP v Deakin  VSC 719 brought these issues to the fore: Justice Hollingworth, sitting in the Supreme Court of Victoria, sentenced a woman to a non-conviction outcome for endangering the life of her 2-year-old child by placing his face in the bathwater for approximately 5 seconds. She was originally charged with attempted murder, a plea to a lesser offence was accepted and a community corrections order was imposed, albeit after she had served many months in custody. The court accepted that the conduct was in the context of a mental health crisis where the mother had self-reported and sought help. This was held to reduce her culpability, and the sentencing judge exercised her discretionary power not to record a criminal conviction. It is worth reading the sentencing remarks here.
It was a relatively merciful approach by the prosecution to accept alternative pleas, but, given that she was known to child protection services and she sought their help, it seems a shame she was prosecuted at all. Ultimately, she had suffered a background of domestic violence, she was unwell, the child was not harmed, there is merit in differentiating women who self-report and she suffered the removal of her children and home insecurity. This is not to minimise the harm that can occur to children by family members but to consider whether criminal justice responses are appropriate at all in such cases where families need support. In Deakin, the defendant was represented by the Law and Advocacy Centre for Women who brought their considerable experience of women in crisis to the case and relied on research on women who cause the deaths of their infants from Dr Emma Milne from Durham University, UK and Professor Lorana Bartels from ANU. It is plain from this expert research of cases of this type that, whilst the potential risks to a child can be shocking, the courts need to understand the context in which a woman would harm the child she loves. The research shows that these are nearly always loving but acopic parents, often suffering multiple traumas.
The research from both Australia and the UK shows there are two distinct forms of infant killing, with similar characteristics in terms of the nature of the women and the situation they find themselves in. The first is a child killed around the time of birth – in the perinatal period. The second is the killing of older infants. It is important we understand both – how they manifest and the key aspects – to ensure the criminal justice system and the criminal law are responding correctly. Sadly, prosecuting authorities in Australia do not appear to publish guidance on how such cases are being approached. It is likely that prosecutors have a strategy to tackle violence against women and girls (VAWG) but guidance on women in crisis who endanger or harm their children, for example where there is a background of domestic violence, is lacking. This means that it is not clear if prosecutors making a distinction between those who act with criminal culpability and those who act in crisis and seek help or need to be encouraged to seek help.
What is key is to understand is that women who are suspected of endangering, harming, or even killing their infants are incredibly vulnerable. They are often living in situations of poverty, within violent and abusive relationships with family or a partner, have experienced trauma and abuse, and have little to no social support. This is the context of “crisis”. Lack of social support and/or fear of the consequences as well as other traumas do not mean women are acting callously but instead out of fear, shock, panic, and often in a dissociative state with limited social support or assistance and commonly in the context of post-natal depression, severe sleep deprivation, and difficulties feeding and/or settling the infant. These events often happen after a woman “snaps” in the moment – taking sometimes fatal action against the child that she instantly regrets.
The reality of cases of infant killing – whether of a newborn or an older infant – is that they do not occur unless the woman is vulnerable. Generally, women commit very little violent crime, and specific forms of violence against infants induced by the social situations in which women become pregnant or care for their children requires us to ask what is and should be the role of criminal justice and the criminal law.
Dr Milne has stated that “judging women next to unachievable standards of motherhood has the impact of amplifying the supposed “unnaturalness”, “evilness”, and “selfishness” of her conduct. Within this context of “natural and responsible mother” the accused woman is cast as irresponsible, a failure, and entirely to blame for the death of the foetus/child”. She recommends that “we need to step back from these narratives of the idealised mother and stop using them as the basis of the criminal justice responses to suspected women. Instead, we need a contextualised view of their conduct – to consider the crises they face and the lack of support that has surrounded their desperate actions”.
Hollingworth J captured the essence of the issues in Deakin as follows:
- The main area of dispute between the parties is as to whether or not I should record a conviction against you. Section 8of the Sentencing Act 1991 provides that, in exercising the discretion whether or not to record a conviction, the court must have regard to all the circumstances of this case, including:
(a) The nature of the offence;
(b) Your character and past history; and
(c) The impact of the recording of a conviction on your economic well-being, social well-being or employment prospects.
- You have no prior criminal history. Despite your mental health and substance addiction issues, and other challenging aspects of your childhood, you managed to complete your education and hold down steady employment until you had your son. At the time of offending, you had experienced, and not recovered from, several years of post-natal depression and domestic violence. Your mental health had been deteriorating in the months leading up to the offending. Your two young children had been returned to your care, only a month before this incident. You were isolated, in the midst of the pandemic, and clearly not coping with the children on your own. In a fragile mental state, you had contemplated taking your own life, before contemplating ending theirs instead. However, after a few seconds of holding your son underwater, you came to your senses. Your son has suffered no physical or mental injury as a result of your actions. The next morning, you contacted the authorities, confessed freely to what you had done, and sought help.
- As Coghlan JA observed at the hearing of your bail application, “This is a case that is at the very edge of the criminal justice system.”
- You are still only 23 years old. You have a lot of work to do to before you will be able to regain greater access to your children; I accept that your prospects of achieving that may be adversely affected by the recording of a conviction. As discussed earlier, I believe that you do have reasonable prospects of rehabilitation, if you continue to stay away from dangerous substances and comply with mental health treatment. I accept that your prospects of obtaining future employment and accommodation may also be adversely affected if a conviction was recorded against you.
- Having regard to all those matters, I am minded to exercise mercy, and not record any conviction in this case.
- Had you not pleaded guilty, I would have sentenced you to a total effective sentence of imprisonment of 1 year, plus a community correction order of 24 months.
When viewing these cases in the light of these wider circumstances and in acknowledgment of the women’s vulnerability, it is realistic to conclude that women who endanger, harm or kill their infants are often not truly criminally culpable at all. Ultimately, some parents need more support than others and prosecutors should be engaged in appropriate support networks for women rather than punitive reactions, taking opportunities to acknowledge that people with mental health issues form relationships and have children and, whilst the outcomes may be shocking, the context is all important and in some cases like Deakin are capable of not being a crime or recorded as a crime.
(Title Notes): Taken in part from Felicity Gerry and Emma Milne, ‘Why the CPS should revise its guidance on women suspected of causing the death of their infants’, Libertas Chambers (online, 12 November 2021) <https://www.libertaschambers.com/wp-content/uploads/Why-the-CPS-should-revise-its-guidance-on-women-suspected-of-causing-the-death-of-their-infants.pdf>.
 E Milne, Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother (Emerald Publishing Limited 2021
 Bartels, L., Easteal, P., ‘Mothers Who Kill: The Forensic Use and Judicial Reception of Evidence of Postnatal Depression and Other Psychiatric Disorders in Australian Filicide Cases’ Melbourne University Law Review, 37: 297-341, 2013. ‘Guidance is needed on women in crisis who harm their children’, The Times (online, 2 December 2021) <https://www.thetimes.co.uk/article/guidance-is-needed-on-women-in-crisis-who-harm-their-children-fdqmtg7pc>.
 E Milne and J Turton, ‘Understanding Violent Women’ in Milne, Brennan, South and Turton (eds), Women and the Criminal Justice System: Failing Victims and Offenders? (Palgrave Macmillan 2018).
Dr Felicity Gerry QC regularly appears in in the Supreme Court of Victoria and the Victorian Court of Appeal in contested hearings and conviction and sentence appeals. She has also appeared in the High Court of Australia. She largely defends in criminal matters, often with an international element. Since taking silk her practice has increasingly had an overlap with Administrative, Constitutional and International Law and she is often briefed to advise on legislative operation and transnational strategic litigation. She is admitted to the list of counsel for the International Criminal Court (ICC) and the Kosovo Specialist Chambers and in England & Wales and in Victoria and had ad hoc admission in Hong Kong and Gibraltar. She has advised and appeared in major terrorism, international fraud and money laundering matters, multi claimant and multi defendant cases, administrative action to heritage list Aboriginal land, a Federal challenge for women and children in Syrian camps and in a potential class action relating to illegal logging. She has also advised on a range of death penalty matters in ASEAN, including assisting in a successful reprieve. Felicity is also Professor of Legal Practice at Deakin University where she lectures in Contemporary International Legal Challenges including Terrorism, Modern Slavery and Climate Change Litigation. She is a member of International Bar Association (IBA) and the Commonwealth Lawyers Association (CLA). Felicity is on the Executive Committee for ICJV Victoria and is appointed a Member of the Legal Practitioners Disciplinary Tribunal in the Northern Territory of Australia. You can speak with Felicity on LinkedIn.