‘The very antithesis of womanhood’: Edith Roberts and the Infanticide Acts

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By Jasmine Lalli


In 1921, Edith Roberts was a 21-year-old, unmarried, factory worker living in Hinckley, Leicestershire. Unbeknownst to her family – with whom she lived – she gave birth secretly in the attic room she shared with her sister. Her stepmother discovered the body of the baby three days later, stuffed in a wooden chest, obscured by blankets – two doctors later assessed the body. To prove murder, the prosecution had to establish the child had existed separately from its mother. The doctors demonstrated that the child’s lungs floated, and, therefore, concluded there had been separate existence from Edith, confirming the baby had been alive at birth. Later, medical evidence would ascribe the cause of death by strangulation, from a camisole being wrapped around the baby’s mouth.

Thus, she was charged with wilful murder, and held at Birmingham Prison to await trial. Leicester Assizes controversially permitted female jurors. However, each one was challenged by Edith’s defence counsel, on the belief that women would be less sympathetic than men, and she was instead tried by an all-male jury. Her counsel appealed to the jury that due to the emotional and physical pain she had experienced, she was not responsible for her actions.

After 15 minutes of deliberation, the jury found her guilty of murder, but made strong recommendations for mercy. Mr Justice Avory then sentenced her ‘to the only sentence the law allows’: death.

Thus, Edith’s plight was taken up by The Leicester Mercury, who dubbed her ‘The Hinckley-Girl Mother’. The campaign ran to instigate her release, and then to reform the law on child murder. The campaign included a letter written by Edith from within Birmingham Prison, a letter of compassion from a local mother, as well as testaments to her good character.  A month after her trial, 500 individuals gathered in Leicester Market Place to protest her conviction. Her sentence was first commuted to penal servitude for life and then appealed, resulting in her release.

Infanticide & the Law:

In order to understand the sympathy Edith received and the eventual reform, it is important to regard the wider national debate on infanticide –  in fact, infanticide was not an offence until 1922. The law maintained a conservative approach: that women who committed infanticide should be charged with murder, deserving of the mandatory death sentence. In the 19th century, infanticide was perceived as an epidemic, particularly due to ‘excessive’ press interest, and as a coroner’s ability to report increased.

However, the picture of infanticide becomes more nuanced, when considering the high number of acquittals and commuted sentences. Coroner Dr Edwin Lankester believed the law to be ‘criminally lenient’ in carrying out sentences – although convicted women were sentenced to death up until 1922, the last execution was carried out in 1849.

There are two key explanations for this leniency. Firstly, it was an acknowledgement of the harm already endured; relying on the characterisation of ‘the fallen woman’. This was the dominant portrayal the law subscribed to, that women who committed infanticide were young and unmarried, and therefore driven to murder by the shame of illegitimacy and loss of virtue. A charge of child murder would deprive a woman of her social status and livelihood. Her sexual immorality would be broadcast to her community, her reputation ruined. She was likely to be suffering economic hardship as the result of a lack of support from the man responsible. The view was also that fathers were partially ‘morally responsible’ for the death of their children. It was argued that no rational woman would allow herself to succumb to this fate; she must therefore be ‘temporarily insane or permanently weaker minded’, and therefore not wholly responsible.

This characterisation was employed in Edith’s portrayal in the press. The Leicester Mercury, depicted her case as one where ‘a girl momentarily goes wrong’, calling for the father of the child to ‘take his share of the responsibility’. Notably she was named the ‘girl-mother’, despite being 21 years old; by no means a young mother in 20th century England. This rhetoric was employed to emphasise her sexual immaturity and helplessness, which was ultimately successful in inspiring public support. Edith was portrayed as the perfect victim; when asked why she committed her crime she responded; ‘I was frightened and ashamed’.

A second explanation was gendered insanity. This had long been recognised in the courtroom, as a ‘gender-specific psychophysiological debility’ caused by the trauma of birth (puerperal insanity) and the exhaustion from constant breastfeeding (lactational insanity). In many cases, the notion of insanity was gratuitously applied to ‘fallen women’ – for example in the trial of Emily Wilson in 1893. Similarly to Edith, she concealed her pregnancy, suffocated the baby at birth and hid it in a box. The doctor had found her sane upon assessment and the judge stated that she was ‘in no sense a lunatic’. However, he did not believe she warranted the death sentence, and instead had her committed to Broadmoor Asylum.

This portrayal of women who committed infanticide, as either fallen or insane, mitigated their status as murderers in the minds of judges. The punishment was perceived as excessive and ultimately led to acquittals of the convicted.

The Infanticide Acts:

Despite these acquittals, amendments that sought to provide sentencing discretion for infanticidal women were fiercely opposed. Conservative politicians feared that inconsistency in the application of the death penalty would encourage further deaths. The law would rather label women murderers and not carry out the sentence, than construct a suitable alternative which exhumed them of their guilt. The view on infanticide was split, between those who felt infanticidal women deserved compassion, and those who felt ‘they represented the very antithesis of womanhood’.

In the wake of Edith’s case, the Lord Chancellor was instructed to construct a separate offence. This offence, outlined in the Infanticide Act 1922, applied to biological mothers who killed their ‘newly born’ children, as a consequence of having ‘not fully recovered from the effect of giving birth to such child’ so that the ‘balance of her mind was then disturbed’. This was clarified in the 1938 Act, which described the disturbance as insanity, either as puerperal; ‘her not having fully recovered from the effect of giving birth’, or lactational; ‘the effect of lactation consequent’. ‘Newly born’ was defined as children under 12 months. Infanticide can be either an offence, or a defence to murder, allowing for a manslaughter conviction, usually resulting in a non-custodial sentence.

Prior to the Acts, the ‘fallen woman’ portrayal could constitute an informal defence. This narrative placed women as the subject of abandonment by men, focusing on his disregard for his social obligation to provide. The woman is close to disappearing as a legal subject; she becomes merely a vessel for pregnancy. Ward argues that by placing women at the centre of the Act, she is no longer an abstract non-subject.

However, I would argue that this results in the loss of a woman’s ability to be considered as a rational legal subject. Moreover, the pathologisation for its time was gratuitously broad, whereas in the present-day case of Kai-Whitewind, the archaic notion of gendered insanity is ineffectual in fulfilling the law’s purpose of protecting vulnerable individuals. The current offence acts as an exposure of how the law understands female agency.

Infanticide & Present-Day Law:

The 20th century, and indeed present day, conception of a mother is assumed to be ‘nurturing, caring, altruistic’. By murdering her child, a mother violates society’s understanding of maternity. Infanticide is therefore an affront to the very notion of motherhood, and by extension ‘represented the antithesis of female nature’. Consequently, the law rationalises this behaviour by eradicating a woman’s agency and therefore her legal responsibility.

The offence is so broad, that there does not have to be a causal link between the mental disturbance and the killing itself. Theoretically, a mother could suffer from ‘temporary insanity’ at birth, recover; and then murder the infant up to 12 months later and still be in the remit of infanticide.

The consequence of this allows the law to pathologise women under a broader remit, forcing them to either admit they are insane, and thus reinforce the notion that no sane mother would kill her child, or accept a murder charge.

However, women must acknowledge their ‘insanity’. In Kai-Whitewind, the Court of Appeal considered whether a mother from Birmingham could rely on infanticide, when facing a murder charge for her son. Given her refusal to provide evidence of gender-specific insanity, she was unable to rely on infanticide. Helena Kennedy QC explained; ‘unless a woman says ‘I did it’, you can’t mount a psychiatric defence. You can’t go behind her back and get a psychiatric report’.

Therefore, there is a failure by the law to defend those who truly are suffering from mental illness. Unless women are willing to admit to their insanity, which the most vulnerable individuals are sometimes unable to do, they will not be afforded the protection they need.

Moreover, the ‘disturbance’ entailed in the act is related strictly to female biology. Puerperal insanity is represented as a standard consequence of childbirth, when in fact exceptionally few women were found to be insane at trial for infanticide, and today puerperal insanity is rarely considered to be the cause of infanticide.

The Court of Appeal strongly criticised ‘the medical principles on which the Infanticide Act is based’ as no longer relevant. For example, lactational insanity was demonstrated in one 19th century case, simply by the infanticidal woman having ‘breasts extremely full of milk’. The consequence of this discourse expresses that all women who have given birth, have at some point been ‘mad’ by virtue of them having given birth and lactated. The effect of this biological determinism reinforces the gender binary conception that women are enslaved by hormones and are automatically mentally weakened from giving birth. It further entrenches the view that women who kill must be insane and ergo are not autonomous, rational agents before the law.

However, the Law Commission stated that the law does not pathologise motherhood, but instead recognises the ‘psychiatric disorders’ that may result from childbirth. If the defence of infanticide does encompass the broader psychological impact of having children, then it is inconsistent to apply it only to biological mothers.

Ultimately, it marginalises the experience of other caregivers, as well as the experience of women like Edith and Kai. This current law highlights an inability to separate a woman’s actions from her biology, and is both symbolically problematic and practically flawed, when women fail to adhere to the law’s Victorian conception of a ‘disturbed’ woman.

Further Reading:

Dyer C, ‘Not Guilty as Charged’ (The Guardian, 14 May 2002) <https://www.theguardian.com/world/2002/may/14/law.gender> accessed 24 October 2017

Goc N, Women, Infanticide and the Press, 1822–1922 (Ashgate, 2003)

Marland H, ‘Getting away with murder? Puerperal insanity, infanticide and the defence plea’ in Mark Jackson (eds), Infanticide: Historical Perspectives on Child Murder and Concealment (OUP 2002)

The Law Commission, Murder, Manslaughter and Infanticide, (Law Com No 304) para 8.39.

Ward T, ‘Legislating for human nature: legal responses to infanticide, 1860-1938’ in Mark Jackson (eds), Infanticide: Historical Perspectives on Child Murder and Concealment (OUP 2002)

–The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938, (1999) 8 Soc. & Legal Stud. 163-198

Weare S, “The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill within the Criminal Justice System (2013) Laws, 2, 337–361