INFANTICIDE ACT (Act No. 27 of 1990) (Chap. 9:12)

AN ACT to create the offence of infanticide and provide for the punishment therefor; and to provide for matters connected with or incidental to the foregoing.

1. Short title

This Act may be cited as the Infanticide Act .

2.Infanticide

(1) A woman who, within six months of the birth of her child, unlawfully and intentionally causes the child's death at a time when the balance of her mind is disturbed as a result of giving birth to the child, shall be guilty of the offence of infanticide and liable to imprisonment for a period not exceeding five years.

(2) Where a woman is charged with the offence of infanticide referred to in subsection (1) and it is proved that, within six months of the birth of her child, she unlawfully and intentionally caused the child's death, it shall be presumed unless the contrary is proved that she did so at a time when the balance of her mind was disturbed as a result of giving birth to the child.

3. Verdict on charge of murder where balance of woman's mind disturbed

Where a woman is charged with the murder of her child within six months of the child's birth and it is proved that she caused the child's death at a time when the balance of her mind was disturbed as a result of giving birth to the child, she shall not be found guilty of murder but may be found guilty of the offence of infanticide referred to in section two if the evidence establishes that she committed that offence.

4. Considerations in regard to disturbance of mind

For the purposes of this Act, in determining whether or not the balance of a woman's mind was disturbed as a result of giving birth to a child, regard shall be had to any pressure or stress from which she suffered arising out of any one or more of the following circumstances or considerations-

(a) the effects which the birth had, or which she believed it would have, on her social, financial or marital situation;

(b) the difficulties which were created, or which she believed would be created, in caring for the child in the social, financial or marital situation in which it was born;

(c) the difficulties which she had, or which she believed she would have, in caring for the child due to her inexperience or inability;

(d) any other relevant circumstance or consideration, whether based on the psychological effects on the woman's mind arising from the birth itself, or otherwise.

5. Competent verdicts on charge of infanticide

A person charged with the offence of infanticide referred to in section two may be found guilty of and punished for any one of the following offences-

(a) culpable homicide;

(b) assault with intent to murder;

(c) any offence of which a person may be found guilty on a charge of culpable homicide;

(d) exposing or abandoning or ill-treating a child in contravention of section 7 of the Children's Protection and Adoption Act [Chapter 5:06];

(e) concealing the birth of a child in contravention of section 2 of the Concealment of Birth Act;

if the evidence establishes that she committed such an offence:

Provided that she shall not be liable to greater punishment than that to which she would have been liable had she been convicted of the offence of infanticide.

6. Charge of murder and special verdict not precluded

For the avoidance of doubt it is declared that nothing in this Act shall be construed as precluding-

(a) a woman from being charged with the murder of her child and, subject to section three, from being convicted of and punished for that offence; or

(b) a court from returning a special verdict in terms of section 28 of the Mental Health Act in respect of a woman charged, whether in terms of this Act or any other law, with causing the death of her child.