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Infanticide Notes

Infanticide is a form of homicide defined under Section 208 of the Penal Code. It recognizes that factors surrounding childbirth, such as mental imbalance, can impact a woman's state of mind and behavior towards her child. The accused bears the evidential burden to prove this imbalance of mind on a balance of probabilities. Key factors that courts consider in infanticide cases include the circumstances of birth, the emotional state and age of the mother, previous births, the manner and motive of killing, and whether the mother has shown contrition. If convicted, sentencing is in line with manslaughter under Section 201, ranging from no punishment up to life imprisonment.

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472 views2 pages

Infanticide Notes

Infanticide is a form of homicide defined under Section 208 of the Penal Code. It recognizes that factors surrounding childbirth, such as mental imbalance, can impact a woman's state of mind and behavior towards her child. The accused bears the evidential burden to prove this imbalance of mind on a balance of probabilities. Key factors that courts consider in infanticide cases include the circumstances of birth, the emotional state and age of the mother, previous births, the manner and motive of killing, and whether the mother has shown contrition. If convicted, sentencing is in line with manslaughter under Section 201, ranging from no punishment up to life imprisonment.

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Doreen Aaron
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INFANTICIDE

Reading material

Section 208 of the Penal Code- Creates the offence (Prerequisites of elements).
Infanticide is murder but for the provisions of s.208 of P.C
Section 10 of the Penal Code- Presumption of Sanity
Section 189 of the CP& E- Discretion of Court to convict murder accused with
infanticide though not charged therewith.
State v Mangole 2006 (2) BLR 135 (Threw baby into pit latrine and it later died)-
The law recognises the reality of factors that impact on the mind of the accused person
and their behaviour, primarily the state of mind of a woman who has just given birth.
State v Sefelani 1996 BLR 259- Evidential burden lies on accused to prove
imbalance of mind, on a balance of probabilities- not as high as insanity which is
beyond reasonable doubt.
State v Othusitse 2001 (2) BLR 394- Where state of mind of an accused person
may give rise to a key defense it is essential for the accused to be sent for psychiatric
examination as soon after the offence as possible- In the case the person was taken 3
months after the offence- Not ideal.
NB- The accused person only bears the evidential burden in relation to her state of
mind. The prosecutions still bears the burden of proving all the other elements of the
offence. Critically, the state must prove that the child was born alive and was therefore
a person capable of being killed in terms of Section 210 of the Penal Code. The
Prosecution must also prove that the accused person is the one who caused the death
of the baby and that she did so through a willful act or omission as required by Section
208 of the Penal Code.
Factor to be taken into account:
Discussed in S v Ramatlhaka 1989 BLR 265- *Circumstances surrounding the birth
*Time and place of birth- Was she alone? Did she carry the baby full term?
*If the mother loses a lot of blood at the time of delivery this may result in temporary
mental disturbance.
In S v Rufaro 1975 (2) SA 387- Most important factor to be taken into account is the
emotional state of mind of the mother at the time she killed the child.
Other factors- * Age of the mother (Young mothers more likely to be upset and
disturbed by child birth as opposed to more mature mothers)
*Number of previous births may also be a factor. - See State v Mbaiwa 2007 (3)
BLR 488
*Manner of killing- This will often indicate the extent to which the mother was
disturbed. Refer to Sefelani case where the mother decapitated the baby, completely
severed the trachea, there was an injury to the heart- chest was split open exposing
the heart and liver)
*Motive of killing.
*Whether the mother has shown contrition.
The sentencing for infanticide, as it is akin to manslaughter, is in accordance with
Section 201 of the Penal Code- ie from anything up life imprisonment.

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