I write about the past. I look for patterns. Specifically, I write about archaeology, infant death and infanticide, including how lawmakers in the past criminalised mothers for both perceived crime and sin, and how archaeologists’ and historians’ personal attitudes towards morality and the social order have framed their interpretations of events and social practices around infant death. I have, therefore, an interest, you might say. And I’ve recently had words jumping off the pages of the press towards me and watched the Crown Prosecution Service in my county Hampshire re-enact its own notably retrograde period drama around neonatal deaths - while judges and magistrates, fortunately, apply the actual law.

These days, prosecutions for neonatal concealments and infanticides, let alone murders, are very rare, being largely disposed of judicially via the mental health conduit of the justice system. Yet Hampshire has proved to be an exception.

In the main there are three women involved, real woman who have faced or are facing charges of murder and the archaic ‘concealment of the birth of a child by the secret disposition of the dead body’ in the past couple of years: Babita Rai, Silipa Keresi and Lisa Blagden. (The story of Lisa Bladgen and how she was inappropriately prosecuted by the CPS is one of the saddest and most upsetting things I’ve ever read.) There’s also the troubling case of Chelsea Cuthbertson.

Infanticide and the Law

In my book The Archaeology of Infancy and Infant Death, I noted how by 1803 our forebears had begun to lose their appetite for charging and executing desperate women with murder for the deaths and the killings of their stillborn, perinatal and new-born infants. Instead, new charges around infanticide were sequentially introduced; and eventually the Infanticide Act of 1938 codified this greater understanding of the medical and social forces at play in vulnerable women’s lives. This wasn’t simply a matter of ending the unedifying and unpopular practice of the hangings of mostly poor, unmarried, younger women – it acknowledged that the particular circumstances of pregnancy and birth, often in conditions of deprivation, had affected the balance of their minds. Additionally it further separated the ‘sin’ from the crime.

The introduction of infanticide charges negated the need for murder charges. This was precisely what the Infanticide Act was designed and intended to do. Prior to the abolition of the death penalty in the 1960s this meant that the sentence of hanging was replaced, in the very particular circumstances of a neonatal killing by a disturbed mother, with a short or non-custodial sentence and psychiatric intervention; and after the abolition of the death penalty the mandatory life sentence would also not apply.

The Hampshire Infanticides, 2017-2021

These changes to the legal and social landscape of England & Wales served this jurisdiction increasingly well for two centuries. But in the past few years in Hampshire, since 2017 in fact, something changed. Something – or someone – in the Crown Prosecution Service (CPS) with a responsibility for the county of Hampshire (within the CPS Wessex region) decided to push for the charge of murder for these most desperate types of neonatal killings.

In one 2021 case in Portsmouth, that of Lisa Blagden, where a murder charge would have been ludicrous given there wasn’t even a killing but rather a perinatal death of indeterminate cause, the bewilderingly punitive Wessex CPS went full steam ahead for a Victorian ‘concealment’ charge and prosecution. This was the prosecution of a groomed, abused, mentally unwell, poor and bereaved young woman who had been deprived in pretty much every way. When the case finally came to court, the judge quite rightfully and mercifully ordered that the accused be given an absolute discharge.

This seems a strange and unjustified return by the Crown to the days of ‘Women: beware!’, a policy perhaps more befitting of colonial New England whereby a woman could be charged and punished for any infant death deemed suspicious by someone in a position of authority over her. (Being in a position of greater authority over an unhappily pregnant woman can be in the gift of pretty much anyone in a society other than those at the bottom of the ladder - and those who are female, poor, unmarried and young are frequently down on the lowest rungs anyway, as Lisa Blagden’s case demonstrates.)

The Cases Of Lisa Blagden, Silipa Keresi and Babita Rai, and, to some extent, Chelsea Cuthberton read as morality tales brought to bear on modern-day Hampshire. I’ll be writing more about their cases in the future, especially as Silipa Keresi’s case comes to a full murder trial next month. (The trial date is slated as 16th November 2021 in Winchester.)

Themes and Conclusions

It’s not that difficult to find some concerning themes running through just the recent Hampshire cases. The first is obviously the mental distress that runs though them like a torrent of misery. Two of the women were young; two are foreign; all three were allegedly under social and financial pressure. They are working class. One gave birth on a floor, two in woodland in the dark. All three gave birth alone, at night. All three were scared, in pain, and frightened.

Why is the Wessex Crown Prosecution Service taking this vindictive and over-punitive approach? These infant deaths are tragedies, from which the families involved need the time and the space from which to recover. There are many victims here. These long drawn out murder trials, spanning the years from 2017-2021 in one case, are punishment for not only the mentally disturbed and distressed mothers but their families too.

Given the judgements to date - no actual murder convictions - the Crown’s judges thankfully do not seem to be at ease with the Wessex CPS’s retrograde attitudes, and I personally think it’s time for this CPS team to take a look around, and appreciate the fullness of the law, and decide whether it’s concerned about sin or crime, wrath or justice.

There is another public interest issue here. There are many commentators who like to lump the infanticide statistics in with general homicide statistics to ‘prove’ that ‘women kill too’ and that ‘women are just as bad as men’. This is a really dangerous agenda for the CPS to be perceived as being associated with, when it knows how male violence against women and children is endemic and overwhelming and how its own record in tackling it needs to improve. A clear statement would be welcome from Wessex CPS that it understands that men’s violence is about power and control; whereas women’s infanticide is about powerlessness and poverty. They cannot and must not be equated or the data merged. This is not ‘letting women of the hook’ - even lawmakers over 200 years ago knew this.

But that’s not to say that laws from over 200 years ago are appropriate to punish poor, abused and mentally unwell women today. Crucially, Wessex CPS and the CPS leadership need to decide more transparently on its attitudes towards the law and the law’s care for vulnerable pregnant and post-partum women, and ease up on its promotion of stereotypes of conniving females moving stealthily though social spaces to reach the mythical forbidden fruits of the tree. The poor women the CPS is pursuing are more likely to give birth under a tree, alone, in anguish, than to steal from it.

More to follow …

Sources

Eleanor Scott 1999 The Archaeology of Infancy and Infant Death. BAR International Series 819, Oxford; Archaeopress

Ann Jones 1991 (new edition) Women Who Kill. London; Victor Gollancz Ltd

Emma Milne 2019 ‘Concealment of birth: time to repeal a 200-year-old '“convenient stop-gap”?’ Feminist Legal Studies 27 (2) pp 139-162 (Open Access, Middlesex University)

Emma Pengelly 8th April 2021 Hampshire Chronicle ‘Mother who hid baby's body in bush cleared of wrongdoing after court hears harrowing details’ https://www.hampshirelive.news/news/hampshire-news/mother-who-hid-babys-body-5273345

Alex Boyd 27th July 2021 Hampshire ‘ “A tragedy for all involved”: Timeline of Baby M case in Aldershot after mother sentenced’ https://www.hampshirelive.news/news/hampshire-news/a-tragedy-involved-timeline-baby-5702372

Images

Eustace le Sueur, painting of lady justice, Museum of Strasbourg; and photograph of London law courts Lady Justice: both Wiki Commons

Victorian women on trial for infanticide: Southwark News