Plain language law

New Zealand law explained for everyone

Crimes Act 1961

Crimes against the person - Murder, manslaughter, etc

178: Infanticide

You could also call this:

“A mother who kills her young child while mentally unwell due to childbirth can be charged with infanticide instead of murder.”

If you are a woman who causes the death of your child under 10 years old, and your mind was disturbed because you hadn’t fully recovered from childbirth or were affected by breastfeeding, you might be charged with infanticide instead of murder or manslaughter. This means you could go to prison for up to 3 years.

When you’re on trial for murder or manslaughter of your child under 10, the jury can decide it was infanticide if there’s evidence to support it. They can also decide it was manslaughter.

If the jury thinks you were insane because of childbirth or breastfeeding when the offence happened, they can say you’re not guilty because of insanity caused by childbirth.

If the jury says you’re not guilty because of insanity, the judge will ask two doctors to check you. While waiting for the doctors’ reports, you’ll stay in a hospital, a special facility, or a prison. If both doctors say you’re not insane anymore and don’t need care, the judge will let you go. If not, the judge will follow special rules to decide what happens next.

Even if you’re not found guilty of murder or manslaughter because of infanticide, other people involved in the death can still be found guilty of murder or manslaughter.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM329332.

Topics:
Crime and justice > Criminal law
Health and wellbeing > Mental health
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Part 8 Crimes against the person
Murder, manslaughter, etc

178Infanticide

  1. Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.

  2. Where upon the trial of a woman for the murder or manslaughter of any child of hers under the age of 10 years there is evidence that would support a verdict of infanticide, the jury may return such a verdict instead of a verdict of murder or manslaughter, and the defendant shall be liable accordingly. Subsection (2) of section 339 shall be read subject to the provisions of this subsection, but nothing in this subsection shall affect the power of the jury under that section to return a verdict of manslaughter.

  3. Where upon the trial of a woman for infanticide, or for the murder or manslaughter of any child of hers under the age of 10 years, the jury are of opinion that at the time of the alleged offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she was insane, the jury shall return a special verdict of acquittal on account of insanity caused by childbirth.

  4. If the jury returns a special verdict under subsection (3), the Judge must order that the woman be examined by 2 medical practitioners and the following provisions apply:

  5. pending the receipt by the Judge of certificates from the medical practitioners, the woman must be detained in a place that the Judge thinks appropriate, and that place must be one of the following:
    1. a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992:
      1. a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
        1. a prison:
        2. if each of the medical practitioners certifies that the woman is no longer insane and that she is in no need of care and treatment in a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, the Judge must order that the woman be discharged from custody immediately:
          1. unless each of the medical practitioners certifies in accordance with paragraph (b), sections 23 to 29 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 apply, so far as they are applicable, as if the references in those sections to the court were references to the Judge.

            1. If, under subsection (4)(c), the Judge makes an order that the woman be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies.

            2. Repealed

            3. Nothing in this section shall affect the power of the jury, upon the trial of any woman for infanticide or for murder or manslaughter, to return a verdict, otherwise than under this section, of acquittal on account of insanity; and where any such verdict is returned the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 shall apply accordingly.

            4. The fact that by virtue of this section any woman has not been or is not liable to be convicted of murder or manslaughter, whether or not she has been or is liable to be convicted of infanticide, shall not affect the question whether the homicide amounted to murder or manslaughter in the case of any other party to it.

            Compare
            • Infanticide Act 1938 s 1 (UK)
            Notes
            • Section 178(2): amended, on , by section 6 of the Crimes Amendment Act (No 4) 2011 (2011 No 85).
            • Section 178(4): replaced, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 178(4)(a)(iii): amended, on , by section 206 of the Corrections Act 2004 (2004 No 50).
            • Section 178(5): replaced, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 178(6): repealed, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 178(7): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).