Sun, April 26, 2009

Might be time to ditch archaic infanticide law

Should the stress of knowing your boyfriend didn't want kids win leniency in an infanticide case?


There is so much disturbing about the Ottawa woman who smothered her newborn baby and threw his body in the trash, it's hard to know where to begin.

The sordid facts were read out in court Tuesday and it seems that Angela Kuehl, now 27, killed her baby son in 2007 because she wanted to keep her common-law boyfriend, not because she was mentally ill.

Her boyfriend came from an affluent family and she saw the relationship as a good opportunity. But the boyfriend (they have since broken up) had repeatedly made it clear he didn't want children.

Furthermore, she'd had an abortion in a past relationship, found the experience traumatic and feared her new man would force her to have another one.

So what's a panic-stricken woman with an unwanted pregnancy to do? Carry the child to term, of course, and then wrap a plastic bag around his head until he's dead.

This is the 21st century, not the 19th, for heaven's sake. We're not talking about a scullery maid raped by the lord of the manor who feels she has no way out.

After one abortion, one would think Kuehl would have zealously used birth control, knowing that her boyfriend wanted a kid-free relationship.

OK, some women have really bad luck with birth control. But surely another abortion would have been preferable to hiding the pregnancy, giving birth in secret and then killing the baby.

Keeping her boyfriend was obviously so important to her that extinguishing her newborn's life was necessary. It was cold and calculating -- killing for the sake of love. But there's always a psychiatrist around to conclude such behaviour is the result of a "disturbed" mind.

And so it came to be that a judge accepted Kuehl's guilty plea to infanticide last week. She will be sentenced in August and both the Crown and defence have suggested a one-year conditional sentence.

That's quite a difference from the mandatory minimum 10-year sentence she would have received if she'd been convicted of second-degree murder.

The strange thing about it is that, despite the wording in the infanticide law about a disturbance of the mind as a mitigating factor, the law had nothing to do with mental illness historically.

A century ago, juries were reluctant to convict (and execute) women for killing their babies. So an infanticide law, with its more lenient penalties, was introduced in England in the 1920s as a way of acknowledging the social conditions that prompted women to kill their newborns.

In a sense, the law (adopted by Canada in 1948) was a smokescreen to conceal the fact that women were committing these crimes because of social stressors, not because of a mental disturbance.

"It's a way to bring in the social (milieu) as a mitigating factor," says Kirsten Johnson Kramar, a University of Winnipeg sociologist and an expert on infanticide.

But should the stress of knowing your boyfriend didn't want kids win leniency -- as in no jail -- in an infanticide case? It's hard to have sympathy for Kuehl.

I think there's a good argument to be made for ditching our archaic infanticide law and replacing it with a gender-neutral third-degree murder provision with no minimum penalty. Such a law could be a catch-all for homicides that don't easily fit in neat legal boxes, such as euthanasia and assisted suicide.

Meanwhile, I hope Kuehl, who has a new boyfriend, has grown up.