Infanticide

Expert Evidence and Testimony in Child Murder Cases, 1688–1955

Rachel Dixon

• Publisher: Routledge
• Year: 2023
• eBook ISBN: 9781000474176
• Topic: History
• Subtopic: Women in History
• Index: History

Infanticide examines medical expert evidence in infanticide cases, focusing specifically on the shifting notion of "certainty" in medical testimony. Beginning in the Early Modern period and concluding in the mid-twentieth century, it considers how courts determined whether an infant died from natural causes or other reasons, including violence.

The book explores expert evidence in cases of infanticide and examines the extent of certainty created by medical specialists who founded their testimony on anatomical exploration and science. As the book progresses, it becomes clear that medical specialists were unable to scientifically establish cause of death and in doing so conveyed uncertainty in court proceedings. Rather than being regarded as a professional failing, Dixon argues that the uncertainty created by medical specialists redirected the outcomes of infanticide cases. The combination of uncertainty and the changing perceptions of infanticidal women by the court lead juries to find infanticidal women not guilty of a capital offence in many cases.

This book will be of great interest to students and scholars of Criminology, Law and History.

1 A historiography of infanticide and the use of medical experts in criminal trials

DOI: 10.4324/9781003006299-1

Whilst endeavouring to explore two areas of research – the history of infanticide and the use of medical experts in criminal trials, particularly during infanticide trials, this chapter locates the research question within the broader existing literature. By drawing on published research, a history of infanticide is revealed, providing crucial insight into how women came to be accused of infanticide: the process the women would have experienced, public perception towards the crime and the accused, and the punishment they received.¹ This has allowed legal historians to piece together a history that is not merely crucial to one’s understanding of the historical context of infanticide but essential to one’s comprehension of how medical men became involved in such cases. These published historical studies, however, tend to either concentrate on medical expert opinion, or focus more generally on the mental health element of the infanticidal woman.² This has led to a deficiency within the literature in terms of addressing the testimony of medical experts during infanticide trials, and the weight attached to such evidence. This research will therefore address medical testimony and specifically the element of doubt, which in turn led to uncertainty.

The first part of this chapter focuses on the history of infanticide, a timeline that will begin in 1624, and the introduction of “An Act to Prevent the Destroying and Murthering of Bastard Children,” and continue in 1803, and the implementation of Lord Ellenborough’s Act, an “Act for the Further Prevention of Malicious Shooting etc.” It will then move onto the nineteenth century, before introducing the reforms of the twentieth century. The second section of this chapter will begin with a historiography of medical experts and continue with an examination into how the role of the medical expert transpired within the English courtroom.

Historical aspects of the crime of infanticide

Infanticide has been described as a crime as “old as human society” and a crime that has been viewed in varying degrees of severity by the English courts.³ In medieval England, for example, infanticide, like many other crimes, was considered to be a sin rather than a crime and dealt with by the ecclesiastical court, punishable with a “form of public humiliating penance.”⁴ A form of humiliating punishment or atonement that was selected by societal and ecclesiastical members, which not only aimed to punish the promiscuous behaviour of women within the parish but also a form of punishment that emphasised the stigma attached to illegitimate infants.⁵ This act of punishment placed greater importance on the compliance of parochial or narrow-minded, normative values of society, as opposed to punishing the act or crime of infanticide per se.

It was during the seventeenth century that the criminalisation for the offence of infanticide occurred for unmarried women, with the passing of “An Act to Prevent the Destroying and Murthering of Bastard Children” in 1624. The Act was also referred to as the “Concealment of Birth of Bastards Act”⁶ and the preamble of the Act reads:

many lewd Women that have been delivered of Bastard Children, to avoid their Shame and to escape Punishment, do secretly bury and conceal the Death of their Children and after, if the Child be found dead, the said Women do alledge, that the said Child was born dead; whereas it falleth out sometimes (although hardly it is to be proved) that the said Child or Children were murthered by the said Women, their lewd Mothers, or by their Assent or Procurement.⁷

Whilst the 1624 Act specified bastard children as special victims,⁸ it is also interesting to note the emphasis that the preamble places on “lewd women” and one of the fundamental reasons for its implementation. Hoffer and Hull have identified the emphasis placed on “lewd women” to be “accusatory and unrelenting.”⁹ An issue they believe constituted the Act’s true objective: to target and punish the sexual promiscuity of unmarried women and, in particular, to deter women from entering into marriage-less relationships, which in turn could impose financial burdens on the local parish.¹⁰ The term “lewd” from the fourteenth century was used as an expression of condemnation, such as “bad, vile, evil or wicked”; during the eighteenth century, it was used to refer to behaviour that was considered “lascivious and unchaste.”¹¹ It also became a gender-related term, associating the aberrant sexual behaviour of women considered to be culturally unacceptable.¹²

Not only did the 1624 Act portray the infanticidal woman as lewd; it also portrayed her as promiscuous and unmarried, thus providing a strong association between illegitimacy and infanticide;¹³ Arnot has suggested that this is substantiated with previous court records.¹⁴ Married women were unable to face prosecution under the 1624 Act, and court records show a large number or over-representation of unmarried women were charged with cases of infanticide. In reality, many married women also committed infanticide, but they were more likely to escape the watchful gaze of the community. Married women were more likely to succeed in concealing a birth, hide a cadaver (corpse), and escape criminal proceedings for murder.¹⁵ Jackson had highlighted this point, identifying that, before the implementation of the 1624 Act, women were tried for killing both legitimate and illegitimate infants equally; however, following the implementation of the Act, there were significantly more women tried for murdering illegitimate infants.¹⁶ Jackson suggests that the reason for this anomaly in conviction rates either relates to the efforts made by the courts to ensure the successful implementation of 1624 Act, or the increased vigilance of the neighbours,¹⁷ a significant point which supports the fact that married women may also have been committing infanticide, but were less likely to be caught and face a charge of murder. As motive made a significant contribution to the implementation of the 1624 Act, it was generally believed that married women had no motive, and if a married woman should commit infanticide, it was “so shocking and so unlikely that the only motive assigned to it was insanity.”¹⁸ As the Act only applied to unmarried women, marriage was a defence under the 1624 Act, implying unmarried women had a stronger motive for killing their infant and were therefore more likely to do so.¹⁹ Very few men committed the offence, but for those who did, they faced charges at common law along with married mothers who were accused of killing their infants.²⁰

Although the 1624 Act portrayed infanticidal women as “lewd,” it seems that in reality this was not the case, but instead these women were of good character, concealing the infant corpse in an attempt to conceal their shame. Beattie showed that the unmarried women indicted for murder under the 1624 Act were far from “lewd.”²¹ He stated that, between 1660 and the end of the eighteenth century, there were 62 indictments in the 95-year period at the Surrey Assizes; three-quarters of these were of good character, committing infanticide to hide their shame and save their reputation.²² Malcolmson has also suggested that the unmarried women who were “lewd” would have brazenly given birth to the illegitimate child, without a care of the repercussions of rearing an illegitimate child in a society with strict normative morals.²³

The 1624 Act created the legal presumption that, if the mother had concealed the death of the infant, she had murdered it. In this respect, concealment was evidence of murder,²⁴ and the woman was expected to provide evidence to the contrary.²⁵ In seventeenth-century England, the presumption of innocence was not only “absent from, but antagonistic to the whole system of the penal procedure.”²⁶ There was a need for a recognised principle of presumption of innocence, a recognition that was championed by the influential English jurist, Matthew Hale. He believed that “rather through ignorance of the truth of the fact or the unevidence of it, acquit ten guilty persons than condemn one innocent.”²⁷ Writing in the 1670s, Hale argued that if the “scales are even … it is safer to err on the side of sympathy than severity?” and “where the evidence is obscure innocence is presumed.”²⁸ It was not until the late eighteenth century that this principle was referred to as the presumption of innocence. It was the English lawyer, William Garrow, during the trial of George Dingler (accused of murder), who stated that it should be “recollected by all bystanders (for you do not need to be reminded of it) that every man is innocent until proved guilty.”²⁹ Regardless of this recognition, it widely remained an unaccepted principle at the time.³⁰ The presumption of innocence principle was therefore not firmly established until the case of Woolmington v DPP, when the House of Lords clarified that, under common law in criminal proceedings, the burden of proving beyond reasonable doubt for both the actus reus and the mens rea lies with the prosecution, with the exception of statutory provisions and cases of insanity.³¹ It was during this case that Viscount Sankey stated that “throughout the web of English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt.”³² A statement that is arguably a “misleading figure of speech” since at least 1762, on charges of murder, once it had been established the prisoner had murdered the deceased, the onus was on the prisoner to provide a defence.³³

The 1624 Act placed the burden of proof on the accused,³⁴ a fact that has led to suggestions that the defendant may have referred to or held up a few scraps of child bed linen. This demonstrated the material preparations she had made for the forthcoming delivery and also eliminated the possibility that she had intended to conceal the birth,³⁵ a defence which has been referred to as the “childbed linen defence.”³⁶ Alternatively, women were permitted to produce at least one witness willing to testify that the child had been stillborn. In the event of a woman failing to meet either requirement, ...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1 A historiography of infanticide and the use of medical experts in criminal trials
• 2 Midwifery evidence in infanticide cases
• 3 The role of medical men in infanticide cases
• 4 Medical evidence and mental state of the infanticidal woman
• 5 The expert evidence of the pathologist in infanticide cases
• 6 Conclusion
• Bibliography
• Index