Infanticide and Pre-Existing Mental Conditions: Disentangling the Causal Factors Relevant to a Jury’s Deliberations

Date01 October 2018
DOI10.1177/0022018318806426
Publication Date01 October 2018
AuthorMark Thomas
SubjectCase Notes
Case Note
Infanticide and Pre-Existing
Mental Conditions:
Disentangling the Causal
Factors Relevant to a Jury’s
Deliberations
Section 1(1) of the Infanticide Act 1938, as amended by s. 57 of the Coroners and Justice Act 2009,
provides that:
Where a woman by any wilful act or omission causes the death of her child being a child under the age of
twelve months, but at the time of the act or omission 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, then, if the circumstances were such that but for this Act the offence
would have amounted to murder or manslaughter, she shall be guilty of felony, to wit of infanticide, and may
for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the
child.
Section 1(1) operates to create an offence of infanticide to apply in circumstances where a mother would
otherwise be guilty of murder or manslaughter had it not been for the balance of her mind being
disturbed by reason of the effects of birth or lactation. While s. 1(1) creates an offence of infanticide,
which acts as an alternative to murder or manslaughter, s. 1(2) operates to provide a mother with a
defence of infanticide when charged with murder or manslaug hter. Infanticide is an offence rarely
charged, and thus one with few convictions; the Office of National Statistics (ONS) published its most
recent statistical data on Homicide in England and Wales in February 2018 and reported that in the past
five years (April 2012–March 2017), there were only five reported convictions of infanticide, one of
which in 2016–17. The rarity of this offence is due largely to the availability of the partial defence of
diminished responsibility contained in s. 2(1) of the Homicide Act 1957, as amended by the Coroners
and Justice Act 2009.
RvTunstill represents a new case involving the offence of infanticide and may have the result of
increasing the number of cases/convictions for infanticide. This will be explored below.
Rachel Tunstill gave birth to her daughter in the bathroom of her home on 14 January 2017. The baby
was born alive. Shortly thereafter, Tunstill killed the child by inflicting 14 stab wounds to the neck and
chest of the child by use of a pair of scissors. Tunstill proceeded to dispose of the child in a plastic carrier
bag which she put into a kitchen bin. A number of days later, she attended her local hospital claiming to
have suffered from a miscarriage; the police were called given the clear evidence that she had given birth
a number of days prior.
Upon interrogation, Tunstill continued to claim that she had suffered a miscarriage, alleging that the
child had been born dead and, as a result, that she had disposed of the body. The police examined her
iPad and discovered she had searched, in the days and weeks prior to the birth, for ‘late-term miscar-
riages at home’ and ‘inducing miscarriage’. Further investigation of the iPad found that on the evening of
The Journal of Criminal Law
2018, Vol. 82(5) 366–372
ªThe Author(s) 2018
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sagepub.com/journals-permissions
DOI: 10.1177/0022018318806426
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