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Law and Punishment for Infanticide

In the late 1990s a surge of abandoned infants in the United States prompted law makers to enact Safe Haven laws in which each state allowed parents to relinquish unharmed infants to the authorities, “no questions asked”, within seven days of birth without fear of legal action being taken against them. It is not uncommon to see a sign with a stylized illustration of an infant and the words “Safe Haven” in the vicinity of hospitals, police precincts, and firehouses to promote this law. Unfortunately, infanticide still occurs at the rate of about eighty-five per year.

The Safe Haven law is a counterpoint to the Basil decree in which, in the fifteenth century, a woman abandoning her child at a town hall (or another public place) would be thrown into the Rhine. Presumably this punishment was given because of the lack of wet nurses at orphanages, which might have ultimately caused the child’s demise anyway.8 Other laws established to punish women actually encouraged mothers to kill their newborns. For example, King Frederick William I of Prussia issued an edict in 1723 against unmarried women who had concealed their pregnancies. If they then claimed to have given birth to a stillborn child, the concealment was considered a sign of intentional murder.9

Preceding their present iteration, laws on infanticide in both England and New England emerged between 1558 and 1803. While the act was condemned, little was done to stifle it. As in Prussia, concealment of a pregnancy, which ultimately resulted in a stillbirth, indicated intent to murder a child. It was not a felony, however, if the birth of a stillborn child to an unwed mother were concealed to avoid penalties or social isolation. Comparing court cases of infanticide in the sixteenth and seventeenth centuries with those in the eighteenth century, Hoffer and Hull traced the development of laws against infanticide within the context of changing perspectives of children, parents, and sex. Eventually, these laws resulted in very low conviction rates and brief prison sentences.10

Infanticide was common among poor, unwed mothers. The authorities looking down at these women, perceived them as having loose sexual morals. In Colonial America giving birth to an illegitimate child was a crime, and was punished with a lifetime of indentured servitude, which encouraged women to give birth secretly and, if a child were stillborn, bury the body surreptitiously. If the birth and subsequent secret burial were revealed, the woman was automatically assumed guilty of infanticide.11 Unsurprisingly, the social and economic environment compelled these unmarried mothers to get rid of unplanned children. Therefore, social inequality, perceptions of sexuality, and standards propagated by religious leaders and lawmakers, in part, caused the epidemic of child murder which they simultaneously prosecuted. Further, in England cases of infanticide and witchcraft were often conflated. Sometimes one crime would be invented to explain the other.12

In medieval England few cases of infanticide were prosecuted by the courts, and when they were, rarely did coroner inquests lead to the determination of infanticide as a cause of death. One notable case involved the “one hundred of Chippenham”, who were fined for letting Basilia ofWroxhall escape after she had thrown her infant son in a ditch only to have a dog retrieve the body, dragging it through the town. Other western European societies reacted differently to infanticide. For example, between 1500 and 1750 Nuremburg put eighty-seven women to death for the crime.13

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