OFFENCES  AGAINST THE  PERSON: INFANTICIDE AND SUICIDE

CONTENT

1. Introduction
2. Objectives
3. Main Content
   • Infanticide

• Killing an Unborn child
• Concealing the birth of a Child
• Suicide
• Duells
• Abortion

1. Conclusion
2. Summary
3. Tutor Marked Assignment
4. References/Further Readings

INTRODUCTION

We have been learning about homicide which we defined as killing of a human being by another human being. We have distinguished unlawful homicide form those that are unlawful. In the last unit, we looked into unlawful homicide which fall short of the elements of murder. Among  this category and in conclusion of homicide are infanticide and suicide pact to which we shall now turn.

OBJECTIVES

When you have read this unit, you should be able to:

1. Define or explain
2. Define or explain suicide, suicide
3. Identify the elements constituting the
4. Critique the criminalization of conduct leading to infanticide or suicide.

MAIN CONTENT

• Infanticide

• Literal Meaning:

1. the killing of a newborn child especially by the parents or with their
2. the practice of killing newborn children

• one who   kills   a   newborn        Also   called   destruction, neonaticide.
• Statutory Definition

1. where a woman by any willful 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, notwithstanding, that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as it she had been guilty of the offence of manslaughter of the
2. A woman commits infanticide if she causes the death of her child, being a child under the age of twelve months, by a willful act (e.g. stabbing it with a knife) but at the time of such act, she had not fully recovered form the effects of giving birth to such a child, (or form the effect of lactation consequent upon the birth of the child), and by reason thereof the balance of her mind was then disturbed.

c). Three important elements required emphasis

1. The age of the child killed: the child killed must be under 12 months. If it is 12 monts or over, consider othe possible offnces eg. Murder, manslaughter, wounding, causing grievous harm or other
2. Killer: the child must be killed by its mother
3. Circumstances of killing: the mother has not fully recovered from the effect of the child birth or effects of lactation
   • Killing an unborn Child
4. any person when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of felony and liable to imprisonment for life. (section 328 )

Refer to Section 307 once again. Once a child has a separate existence, it becomes a person capable of being killed. If it is killed, death occurring within 366 days, it is either murder or manslaughter, depending on the circumstances. If the killing is by its mother, consider other elements to see if the crime  is infanticide. If death arises in the course of surgical operation performed in goodfaith and with reasonable cae and stall, for purpose of preserving its mother’s life the killing may be excusable.

What conform, the medical partition or to sacrifice the life of the infant for the life of its mother is beyond our enquiry. But see R. v Bourne (1939).

Killing an unborn child covers cases where a person kills or destroys a child before it has a separate existence of its mother.

In this context, the fact that a woman has at any material time  been pregnant for a period of twenty-eight weeks or more, shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.

If Okon, with intent to destroy the life of a child capable of being borne alive, willfully inserts an instruments into the womb of Martha and causes the death of her child before it had an existence independent of her, Okon may be indicted for killing unborn child. Some question you need to ask and answer for purpose of establishing criminality are:

1. Is the pregnancy 28 weeks or more?
2. Is the child capable of being born alive?
3. Is the act of destruction willful?
4. Is the child dead?
5. Is there an intent to destroy the life of the child?

Concealing the Birth of a Child

 Definition

Any person, who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, whether the child died before, at or after its birth, is guilty of concealing the birth of the child.

The offence is a misdemeanour punishment with attention.

• What then may be evidence of concealment? Let us look at few cases where the accursed had been convicted of concealment/secret disposition for guide.
• R v Brown.

W put the dead body of her child over a wall, which was foru and a half high and divided a yard form a field. The yard was at the back of  a  public house, and entered form the street by a narrow passage. W did  not live at the public house and must have carried the body form the street up the passage to the yard. The field way grazed by the cattle of a butcher, and the only entrance to it was through a gate leading from the butcher own yard. There was no path through the field and a person in the field council through the field and a person in the field council see  the body only in case he went up to the wall, close against which the body lay. These was nothing on or over the body to conceal it.

R v Hughes

W placed a living child in a place of concealment. On her return, the  child had died. W left the body where it lay, replacing the materials by which the concealment was affected.

What we may deduce from these illustrations are:

1. The accused must be delivered of a child. It is enough that the foetus has the shape of a child
2. The child must be dead at the time of secret disposition of the body
3. The dead body must be found and identified
4. These must be a positive act of concealment or secret disposal of the body after the child was born two years imprisonment

A person charged with murder, or infanticide, may be convicted of concealing the birth of a child.

Any person who assists in concealing a birth is also liable.

The child would have spent such a time in the mother’s womb that it would in the ordinary course of things when born, have had a fair chance of live, and that under seven months, it might fairly be presented it  would not be born alive.

• what may not be an act of concealment or secret disposition;

1. W was delivered of a child: its dead body was found in a bed among the There was evidence that its mother had sent for a surgeon at the time of here confinement and had prepared the childs clothes. There was no evidence of who killed it. R v Higley

1. W had previously allowed the birth to be known to some persons: R v Douglas
2. Denial of birth without more: R v Turner
3. W put the dead body of her child upon her bed, covered it with a petticoat, where it was subsequently found by a policeman who entered the room: R v. Rosenberg
4. W placed the body of the child in an open box in her bedroom. Or put this box in larger box, closed but not locked or fastened and placed the box in such a position as to
   • Suicide

Suicide is the act of taking one’s own life it is also called self-killing, self destruction, self-slaughter, self-murder, felony de se. it is an offence to aid suicide or attempt to commit suicide.

• Aiding Suicide

A   person   is   guilty   of      a   felony   of   Aiding   suicide   and   liable   to imprisonment for life if he/she:-

1. procures another to kill himself/herself;
2. councils another to kill himself and thereby induces him/her to do so, or
3. aids another in killing himself/herself.

When a person successfully commits suicide, the matter ends as far as the principal offender is concerned.

But any person who aided, abetted, counseled or procured the suicide of the person in question is criminally liable.

• Duels

A duel is trial by combat. A pre-arranged combat with deadly weapons fought between two or more persons under prescribed rules usually in the presence of at least two witnesses to resolve a previous quarrel or avenge a dead.

A duel is carried out with some formality; it is:

a.) feature of a duel.

It is a result of a design. It is carried out with some formality. It has none of the elements of sudden heat and passion.

The survivor of the fighters is a principal offender who did the act or made the omission. (see 7 (a)).

The seconds did aid and assist the commission of the offence by their presence, countenance and encouragement (in this regard, there are divided opinion)

• Abortion
  • Internal Meaning

Abortion is the spontaneous or artificially induced expulsions, of an embryo or foetus, before it is capable of living

It is an intentionally induced miscarriage as distinguished from one resulting naturally or by accident.

• Common Law

At Law, it is the misdemeanour of causing a miscarriage or premature delivery of a foetus by means of an instrument, medicine, doing or other means.

• Statute

A person commits a felony of ‘Attempt to procure abortion” punishable with 14 years imprisonment if “with intent to procure miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses  any force of any kind, or uses any other means whatever.”

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison  or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her is guilty of a felony and liable to imprisonment for 8 years.

illustration

a.) JAtto administers poison to Doris, whether she be with child or not with intent to procure miscarriage, Jatto may be indicted for an attempt to procure abortion punishable with a maxium punishment of 14 years imprisonment.

b.) Jumoke administers poison to herself, whether she is with child or not with intent to procure her own miscarriage. Doris is to be charged with attempt to procure abortion and may be liable to imprisonment for seven years.

In some jurisdictions, Jumoke can only commit the offence if she is with child. Under the Nigerian Law, Doris may be with or without child.

At that is required to be shown are:

1. That the woman takes or the accused administers to or causes to be taken, poison etc mentioned or any other substance or thing ejusdem genris
2. that the substance in question was administered unlawfully and with intent to procure miscarriage of Doris

It does not matter that the substance in fact is likely or calculated to procure a miscarriage. It suffices that there was an intent and the substance was in fact a poison or other noxious thing;

Medical Termination of Pregnancy

In relation to abortion, a pregnancy may be terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in goodfaith:

1. that the countenance of the pregnancy would involve risk to the life of the pregnant woman or injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or
2. that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously

Where a woman in respect of whom this offence is alleged to have been committed is a witness, corroboration of her evidence, though not essential in law is, in practice required.

If the woman dies in consequence of the attempted abortion, the person who committed or may be indicted for murder or manslaughter depending on the facts of the particular case.

CONCLUSION

Infanticide is essentially murder. It is reduced to manslaughter where a woman kills her child before ti reaches 12 months of age by reason of her being seriously affected by post-natal depression. However, you need to note that the offence may be murder if the victim were an older child.  But Why? In such circumstance, you may consider the partial defence of diminished responsibility. Also note an overlap between infanticide and child destruction. It is a defence to the latter that the act causing death was done in goodfaith and to preserve the life of its mother. The complicity in suicide is a criminal act if it consist of procuring, assisting, and encouraging one to take him or her own life. It is murder if a party  to a suicide pact kills another party to the pact or procures, assists or encourages a third person to kill a party to that pact. In a situation of duel, the criminal responsibility of seconds is unsettled unlawful administration of any poison, or drugs ejusdem generic or unlawful use of instrument to cause a miscarriage of a woman with or without child is abortion. It involves three culprits: the woman, one who administer the drug and the supplier of the drug and they are liable to imprisonment for 7, 14, and 3 years respectively.

SUMMARY

Infanticide is killing by a mother of its child under 12 months in certain circumstances. Suicide is a crime but no one has ever nor will ever be tried for the offence. At common law, victim of abortion must be with child. Under the Nigeria Law, she may or may not be with child. Medical termination of pregnancy is lawful under restrictive guidelines. In this regard there is a noticeable conflicts between the rights of a child and of its mother. You may also wonder why the killing by a mother of her child of 12 months of age is infanticide and one of 13 months of age is murder.

TUTOR MARKED ASSIGNMENT

REFERENCES/FURTHER READINGS

Jefferson , M G (2003), Criminal law 6^th Ed. Longman, London

Butler  T.  and Garsia M:     (1969),    Archbold, Pleading, Evidence and Practice, Sweet and Maxwell, London.

Madarikan C and Agada T, (1974) Brett and Mclean’s: The Criminal Law and Procedure of the Six Southern States of Nigeria, Sweet and Maxwell.

Ormord  D  (2005),  Smith  and  Hogan Criminal Law.      11^th Ed . oxford University , Press ,London

Molan M (2003) Criminal law 4^th Ed . Old Bailey Press, London