‘Under the act… it was not necessary to put a girl on trial for murder’: The Infanticide Act (1922)
One hundred years ago today – 31 October 1922 – newspapers across Britain reported the outcome of a landmark child murder case, heard at Lincoln Assizes. [1] Emma Temple, a nineteen-year-old domestic servant had been brought to trial the day before, charged with the murder of her newly born daughter. [2] The infant’s body had been disposed of late at night in an outside lavatory, seven weeks previous to the October trial proceedings. [3]
A post-mortem examination by local doctor, C.W.T. Woods, confirmed that a tightly bound string ligature cut from the infant’s neck was the likely cause of asphyxiation and death.
The Temple case embodied many of the characteristics typically associated with infanticides in this period. The victim was a newly born, illegitimate baby, whose body had been hastily and poorly concealed following its delivery and murder. In addition, Temple too matched the defendant profile commonly associated with this crime. Although only in the employment of butcher James Goose and his wife Kate for little over three months, the accused had given a favourable impression (despite her poverty), as a young, single woman, who was: ‘willing and kind, and of a good character’. [4] As historian Daniel Grey has observed:
'Historical studies of infanticide have stressed that it has generally been those single or widowed women defined as 'respectable', and thus had the most to lose both socially and economically if an illicit pregnancy was discovered, who have traditionally been most likely to commit the crime.’[5]
What set this case apart was not the nature of the crime, nor the defendant in the dock, but rather the plea made by Emma Temple at trial. For this case was the first to come under the remit of the ‘wise and merciful provisions’ of the newly passed Infanticide Act (1922). [6]
The Infanticide Act (1922) (hereafter ‘The Act’) was one of two major pieces of legislation passed in England and Wales in the inter-war years that specifically attempted to reform the law’s response to women who murdered their children in the aftermath of childbirth. The Act determined that:
'Where a woman by any wilful act or omission causes the death of her newly-born child, but at the time of the act or omission she had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall … be guilty of …. infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child.'[7]
Significantly, The Act did not encroach upon a jury’s ability to return alternate verdicts of manslaughter, guilty but insane, or concealment of birth in child murder cases. [8]
Prior to the enactment of the new legislation on 20 July 1922, women found guilty of the murder of their newly born infants had been sentenced to death, the same as any other defendant found guilty of murder under English criminal law (until the eventual abolition of capital punishment in 1965). From the 1850s onwards however, such women were never hanged, despite the pronouncement of the ultimate sentence by judges. Instead, capital sentences in child murder cases were commuted to imprisonment. The reasons for this situation were complex.
Although it was widely accepted that child murder was an abhorrent crime that should be punished by the law, compassionate attitudes to mothers who killed – often in circumstances of personal, economic and psychological distress – prevailed in British courtrooms. [9] Proving ‘beyond a reasonable doubt’ that a mother had intended to murder her infant was especially challenging. In some cases, juries would find women ‘insane’ or guilty of the lesser offence of concealment of birth, even where evidence for the charge of murder appeared well-founded. The secretive nature of child murder, teamed with the limitations of early forensic medicine to prove foul play, made differentiating between accident, neglect and murderous intent, difficult. Moreover, medical and popular beliefs over the destabilising effect of birth upon the ‘vulnerable’ female mind and anger over the relative lack of punishment fathers received in such cases, encouraged jurors and judges to treat female defendants with sympathy and mercy. As scholars like Grey, Nigel Walker and Tony Ward have shown, the ensuing gap that existed between the criminal law as laid down, compared to how justice was practised in courts of law, sparked successive (though unsuccessful) attempts at legislative reform prior to 1922. [10] The reason for the passing of ‘The Infanticide Bill’ (formerly called the Child Murder (Trial) Bill) into law, remains a topic of significant debate among historians, and is a subject I plan to return to at length in a future blog. However, it is evident from these histories that multiple political, cultural and medico-legal factors coalesced at the opportune time to effect change in the handling of child murder cases in the summer of 1922.
For Emma Temple, the first beneficiary under The Act, her plea to the new felony of infanticide resulted in a sentence of four months imprisonment. [11] At the coronial inquest into her child’s homicide, it had been revealed by expert witness Dr Wood, that Temple had been: ‘in a highly strung, nervous condition’ when he had examined her on the night of the crime. [12] On asking her where her child was, Temple allegedly gave no answer to the doctor other than to state: ‘I wish I could die’. At her trial on the 30 October, in pleading guilty to infanticide, Temple maintained that ‘at the time [of the alleged offence] she did not know what she was doing’. [13] Given the evidence of Temple’s former good character and the clear connection Dr Wood posited between the accused’s recent delivery, disordered mental state and ensuing murderous actions, it is little surprise that the Crown accepted her plea of infanticide. Presiding judge, Mr Justice Lush, joined counsel in lauding the new legislation as ‘a fresh step in the improvement of criminal law’ and ‘a wise and humane piece of legislation’ that made it unnecessary ‘to put a girl on trial for murder’. [14]
In closing, it is worth highlighting the legacy of the 1922 Act across international borders. As psychiatrists Susan Hatters Friedman and Renée Sorrentino have observed:
‘Internationally, most infanticide laws are based on the 1922 British Infanticide Act (amended in 1938). Approximately two dozen nations have such laws, including Canada and Australia.' [15]
While undoubtedly influential, time would reveal myriad problems with the Infanticide Act (1922). Though the conclusion to the Temple trial would suggest The Act was positively received and beneficial for some women, the new legislation also had many critics. In particular, the vague terminology of The Act - especially phrases such as ‘newly born’ - sparked debate about who the new legislation applied to and whether its provisions were adequate (or even necessary given existing criminal law). [16] Almost sixteen years after its passage, in June 1938, the ‘wise and humane piece of legislation’ so praised by Mr Justice Lush, was repealed in England and Wales and replaced by the Infanticide Act (1938) [17]. This new legislation extended the offence of infanticide to include women who killed their own children up to the age of twelve months. It also extended to women who murdered their children while: ‘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’. [18] Northern Ireland passed its own legislation in 1939. [19] The problems posed by the 1922 Act, the push to draft a piece of legislation that could better avoid the pitfalls of its forbear, and the enduring critiques associated with laws based upon gender difference, are subjects I plan to return to in future blogs on this site.
NOTES
[1] The case was reported in newspapers across mainland Britain and Ireland, such as in the English Daily Mirror, the Edinburgh Evening Telegraph, County Antrim’s Northern Whig and the Glamorgan Western Mail. [2] 'Young Mother's Guilt. Judge Deals With Her Under New Humane Act', Birmingham Daily Gazette, 31 October 1933, p. 5. [3] 'Tattershall Murder Charge: Accused Pleads “Not Guilty"', Skegness Standard, 4 October 1922, p. 6. [4] Evidence of Kate Goose, reported in ibid. [5] Daniel J. R. Grey, 'Parenting, Infanticide and the State in England and Wales, 1870 - 1950', in Hester Barron and Claudia Siebrecht (eds), Parenting and the State in Britain and Europe, c. 1870-1950: Raising the Nation, Cham, Palgrave, 2017, p. 75. [6] As described in 'Infanticide and the New Act', Exeter & Plymouth Gazette, 31 October 1922, p. 7. [7] Infanticide Act (1922), c. 18. [8] Infanticide Act (1922), c. 18, s. 1 (2). [9] For a very useful overview of the history of infanticide, explanations for child murder or concealment, and problems in proving these offences in courtrooms, see: Anne-Marie Kilday, A History of Infanticide in Britain, c. 1600 to the Present, Basingstoke & New York, Palgrave Macmillan, 2013. [10] Daniel J. R. Grey, 'Women's Policy Networks and the Infanticide Act 1922', Twentieth Century British History, vol. 21, no. 4, 2010, pp. 441-463; Nigel Walker, Crime and Insanity in England: Vol.1 The Historical Perspective, Edinburgh, Edinburgh University Press, 1968, especially pp. 127-136; Tony Ward, 'The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938', Social & Legal studies, vol. 8, no. 2, 1999, pp. 163-173. [11] 'Young Mother's Guilt’, p. 5. [12] Evidence of Dr CWT Woods, reported in: 'Tattershall Murder Charge’, p. 6. [13] 'Young Mother's Guilt’ p. 5. [14] '"Most Wise New Act". Judge Glad Girl-Mother Need Not Be Tried for Murder', Daily Mirror, 31 October 1922, p. 2. [15] Susan Hatters Friedman and Renée Sorrentino, 'Commentary: Postpartum Psychosis, Infanticide, and Insanity—Implications for Forensic Psychiatry', Journal of the American Academy of Psychiatry and the Law Online, vol. 40, no. 3, 2012, p. 326. It should be noted however, that the USA uses the M’Naghten Rules/ALI Guidelines in establishing the parameters of mental competency in murder cases. [16] For two particularly good discussions of the passage of both Infanticide Acts and the problems this posed for English criminal law, past and present, see: Tony Ward, 'Legislating for Human Nature: Legal Responses to Infanticide, 1860-1938', in Mark Jackson (ed.), Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000, Aldershot & Burlington, Ashgate, 2002, pp. 249 – 269; R. Kumar and Maureen Marks, 'Infanticide and the Law in England and Wales ', in James Alexander Hamilton and Patricia Neel Harberger (eds), Postpartum Psychiatric Illness: A Picture Puzzle, Philadelphia, University of Pennsylvania Press, 2016, pp. 257-274, [17] Infanticide Act (1938), c. 6. [18] Ibid [19] Infanticide Act (Northern Ireland) 1939, c. 5.