Innocent Victims and Vulnerable Offenders: Defending Impaired Adults Who Kill Children
| Date | 01 October 2019 |
| DOI | 10.1177/0022018319858505 |
| Published date | 01 October 2019 |
| Author | Brenda Midson |
| Subject Matter | Articles |
The Journal of Criminal Law
2019, Vol. 83(5) 352–369
Innocent Victims and Vulnerable
ª The Author(s) 2019
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Offenders: Defending Impaired
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DOI: 10.1177/0022018319858505
Adults Who Kill Children
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Brenda Midson
University of Waikato, New Zealand
Abstract
There are few societies in which child abuse is not a serious issue, with homicide being the
extreme form of such victimisation. Child homicide occurs in a wide array of circumstances but
there is enough anecdotal evidence to suggest that many offenders who kill children are suffering
from sometimes quite acute mental distress. There may also be other factors impacting on an
offender’s ability to think rationally, which may not amount to any recognised disorder. While it
is imperative that we prosecute and prevent child homicide, in doing so we must avoid over-
looking the realities of other vulnerable people. In rejecting a binary approach to victims and
offenders, this article argues that sometimes offenders may also be vulnerable due to an impaired
ability to reason or to act in a truly voluntary way. New Zealand has repealed the defence of
provocation and, apart from infanticide, offers no mitigation by way of diminished responsibility.
Offenders who commit child homicide, but who do not meet the legal definition of insanity, will
be liable for murder even though their capacity may have been impaired or overborne by cir-
cumstances. While, in this regard, New Zealand law is particularly deficient, there is an argument
that other jurisdictions also fail to adequately respond to vulnerable offenders who kill children.
This article seeks to outline the failures in existing legal frameworks to assign legal responsibility
for these vulnerable offenders in a way that corresponds with their moral culpability. The article
will then identify and evaluate proposals for reform. As Ulbrick and others observe, in the
context of arguments about defensive homicide and mentally impaired defendants, it is critical
that we ‘advocate for a greater range of legal responses to cover the nuance and complexities of
lethal violence’ (Madeleine Ulbrick, Asher Flynn and Danielle Tyson ‘The Abolition of Defensive
Homicide: A Step Towards Populist Punitivism at the Expense of Mentally Impaired Offenders’
(2016) 40 Melb Univ Law Rev 324, 330).
Keywords
Child homicide, diminished responsibility, infanticide, New Zealand, vulnerable offenders
Corresponding author:
Brenda Midson, Te Piringa Faculty of Law, University of Waikato, Hamilton, New Zealand.
E-mail: midsonb@waikato.ac.nz
Midson
353
Introduction
There are few societies in which child abuse is not a serious issue, with homicide at the extreme end of
such victimisation. When adults kill children it is usually presumed that because the victim is vulnerable,
the offender is not. Yet there is anecdotal evidence to suggest that many offenders who kill children are
also vulnerable either by state of mind or circumstance. This vulnerability may be due to acute mental
distress or other factors impacting on an offender’s ability to think rationally, even where no recognised
mental disorder exists. While it is imperative to prosecute and prevent child homicide, in doing so we
must avoid overlooking the vulnerabilities of others. In rejecting a binary approach to victims and
offenders, this article argues that sometimes offenders may also be vulnerable due to an impaired ability
to reason or to act in a truly voluntary way. The case of Sharon Harrison-Taylor is apposite.
In 2005, Harrison-Taylor was convicted of the murder of Gabriel, one of her eight-month-old twins,
by smothering and strangulation. At her trial, one expert gave evidence that Harrison-Taylor suffered
from borderline personality disorder. Another expert claimed she had dissocial personality disorder.
Regardless of the precise classification, it was clear that she had a history of psychological problems.
Harrison-Taylor reported sexual abuse by family members and drug abuse during her teenage years, and
at the time of the killing she was suffering from chronic pain, taking painkillers and was exhausted from
lack of sleep.1 The defence raised infanticide, which was not accepted by the jury, who also found that
the killing was murder and not manslaughter. Harrison-Taylor was sentenced to life imprisonment with a
minimum parole period of 12 years.2
There are many offenders like Harrison-Taylor, whose vulnerabilities mean they do not act in a
fully voluntary or rational way. Nonetheless they are often held fully accountable for their actions via
convictions for murder—the most serious of criminal offences. This article considers the New Zealand
experience and approach in relation to vulnerable offenders who kill children. New Zealand has
repealed the defence of provocation and, apart from insanity and infanticide, offers no mitigation
by way of diminished responsibility. While, in this regard, New Zealand law is particularly deficient,
there is an argument that other jurisdictions also fail to adequately respond to vulnerable offenders
who kill children.
This article begins by identifying the various contexts in which child homicide usually takes place. It
will then focus on those contexts in which it can be said that offenders may themselves also be
vulnerable. In general, these fall into two broad categories: first, where the vulnerability is seen as
arising from factors internal to the offender; and secondly, where the vulnerability arises from external
circumstances. The ‘internal’ category includes where defendants are insane or psychotic; where the
killing is characterised as ‘infanticide’; or there is some other internal impairment operating on the
offender. The ‘external’ category includes where offenders kill for some ‘altruistic’ reason; some cases
in which the child is ‘unwanted’3; and where offenders themselves are victims of violence or coercive
control exerted by some other person.
The article then seeks to outline how criminal justice systems can assign legal responsibility for these
vulnerable offenders in a way that corresponds with their moral culpability. This is not to suggest that
there ought to be no responsibility for the harm caused by offenders who kill children. Holding offenders
accountable for harm is an important function of the criminal law. However, that accountability must be
commensurate with moral blameworthiness and give sufficient recognition to the impact of different
vulnerabilities on an offender’s ability to fully exercise rational choice. The article reviews ‘absence of
mens rea’ arguments and the defence of extreme mental or emotional disturbance (EMED) but
1. R v Harrison-Taylor HC Auckland CRI-2004-092-001510, 12 September 2005.
2. Ibid.
3. Although these cases may involve an element of intention, there is evidence to suggest that a number of these cases are not truly
voluntary.
354
The Journal of Criminal Law 83(5)
ultimately concludes that a defence of diminished responsibility best captures the essential element of
impaired rationality.
Contexts in Which Child Homicide Takes Place
A number of researchers have attempted to identify a range of ‘motives’ associated with child homicide.
For example, Friedman and others4 identified the following contemporary motives:
1.
Fatal child maltreatment, whereby the child dies as a result of abuse, neglect or Munchausen
Syndrome by Proxy (MSBP).
2.
Partner/spouse revenge, which treats the homicide as an expression of the perpetrator’s anger at
his or her partner/ex-partner.
3.
Where the child is unwanted.
4.
Altruistic, where the child is killed in the belief that he or she would be ‘better off dead’. This is
common in murder–suicide cases.
5.
Where the perpetrator is acutely psychotic.
Other researchers have identified different categories and cases do not always conform neatly to just
one—there is significant overlap.5 For example, in the following discussion, cases of neonaticide (the
killing of a newborn) could either be characterised as infanticide or ‘unwanted’ children. Equally, some
cases may be prosecuted as infanticide but could also be defended on the grounds of insanity.
It can immediately be seen that a number of the ‘motives’ identified above correlate with the state of
mind of the offender or the circumstances in which they exist. The problem for criminal justice is that in
ensuring that those who offend against children are held accountable, there is a risk that offenders may
be presumed to have capacity that they do not actually have. This is problematic because to be morally
blameworthy, individuals must have the capacity to make moral judgments about their actions.6 Yet, as
Blumoff argues, ‘[s]ometimes making the right choice is beyond the grasp of many damaged individ-
uals’.7 In this sense, ‘damage’ is given a broad definition—the impairment of an offender’s decision-
making capacities, whether that impairment is internal to the offender, or arises from the circumstances
in which they find themselves.
Internal Factors
Psychosis and Insanity
Evelyn Sen killed her four-year-old daughter, Maggie, by giving her an overdose of antidepressants.
Psychiatrists testified that Sen was psychotic, paranoid and depressed, and she believed Maggie to be
possessed by ‘unclean spirits’. Sen was found not guilty of murder by reason of insanity under s 23 of the
Crimes Act 1961 (NZ) and an order was made that she be detained indefinitely as a special patient.8
Section 23 creates a...
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