From the star

Tuesday August 31, 2010

Is death for infanticide right?

IKIM VIEWS By Datuk Dr Zaleha Kamaruddin Deputy Director General

The killing of new-born babies is definitely a sign of a substantial social problem, the phenomenon demanding therapeutic intervention rather than punishment. NEWS of infanticide has been highlighted by the media recently, but it definitely is not a new phenomenon. It has been documented among the people of Mesopotamia, Greece, and Rome. The Vikings, Irish Celts, Gauls, and Phoenicians are no exception. Infanticide, especially of females, occurred among the pre-Islamic pagan Arab society during the sixth century just as it did in modern day China. From the Islamic perspective, the Quran (6:151) explicitly prohibits the practice of infanticide and regards it as a grave sin. Do not kill your children for fear of poverty; we give them sustenance and yourselves too; surely to kill them is a great wrong. In 81:7-10, it says: And when the infant girl who was buried alive is asked: For what crime was she killed? A number of factors have also been identified for contributing to this phenomenon such as illegitimacy, childhood disability, preference for males and poverty. In the context of society today, it is definitely a sign of a substantial social problem. And this calls for immediate and effective action. Looking at it from the legal perspective, one wonders whether proper research has been done before capital punishment for infanticide was proposed recently in Malaysia. In considering whether capital punishment is the best response to infanticide, the key question to ask is why are we punishing these women, and whether capital punishment can deter infanticide? If there is something that we can learn from the West relating to infanticide, it is that capital punishment for infanticide has not proven to be effective.

An overview of British legal history in the 300 years to 1922 provides a vivid illustration of that societys ambivalence in responding to infanticide. When Parliament passed a law in 1623 making infanticide a capital offence, it essentially reversed the presumption of innocence, requiring that unless the accused could produce an eye witness to testify that the infant was stillborn, the jury must find that she murdered the infant. Given the high infant mortality rates of that era, it was inevitable that the law had the effect of condemning a large number of women to death. There is no evidence to suggest that the law had any deterrent effect on infanticide. One of the reasons for its failure is because they are not designed in such a way that will affect the decisions and actions of those most likely to kill infants. Instead, after several decades of enforcement of the law, juries began refusing to convict these women by adopting several widely accepted defences to the crime. The 20th century introduced a dramatic new perspective on that crime that of post-partum disorders and recognised infanticide as a distinct form of homicide. The British introduced the Infanticide Act in 1938 and that statute has been replicated in at least 22 nations around the world. These statutes have made infanticide a less severe crime than murder. In the Malaysian context, currently, there is no statute specifically addressing infanticide. Under the current Malaysian Penal Code, infanticide is addressed by section 309A which interestingly differentiates it from murder. It specifically mentions that when any 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 recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed, she shall not be guilty of infanticide. This provision seems to echo the spirit of post-partum disorders. Currently, the sentencing of infanticide ranges from therapy and parenting classes to imprisonment for more than 30 years. In the Malaysian context, Section 309b of the Penal Code provides punishment for infanticide, which is imprisonment for a term which may extend to 20 years, and shall also be liable to a fine. But, if it is considered as murder, the sentence would be death. Infanticide usually occurs quickly and with no premeditation, there is little deterrent value in imprisonment of these emotionally immature young women (mostly below 25).

Due to social isolation and their denial of the pregnancy, many of them do not even realise they are pregnant or experience labour until after they have given birth. Though most of us would readily agree that women who commit infanticide should be held accountable for their actions, they must also be equipped with the tools necessary to prevent future crises. Understandingly, these women are more in need of emotional and mental rehabilitation than they are of criminal rehabilitation. However, punitive responses like capital punishment, while punishing a woman for her actions, will also not likely affect decisions or events leading to infanticide. Some scholars have argued that while perpetrators of infanticide should doubtless be held accountable for their actions, their situations demand therapeutic intervention rather than punishment. Therapeutic intervention by parents, doctors, teachers, and social service providers are more effective than the law and they should be alert when young women, exhibit characteristics putting them at risk of committing infanticide. Action must be taken to warn the young of premarital sex, unplanned pregnancy, and if such a pregnancy does occur, continuous support before labour and delivery should be given. Because of the unique circumstances differentiating infanticide from other killings, it has been suggested that laws specific to this occurrence be developed. This would require extensive education of those in the criminal justice system about the underlying circumstances surrounding infanticide.