File142913 C A

15-6-2017
Master thesis
Victimology &
Murder by
Criminal Justice
parents
A comparative analysis of the Dutch, Australian and New Zealand

criminal justice approach to filicide
Katinka Ariëns LL.M.

U1245818 / 984489
Supervised by dr. mr. S. van der Aa
Second reader A.K. Bosma, MSc. LL.M.
“Life once conceived, must be protected with the utmost care; abortion and infanticide are
abominable crimes.”
-Pope Francis-
Preface
In order to graduate for the Master Victimology & Criminal Justice, I chose to write my thesis
on the topic of filicide. Victimology was an unknown area for me, and that was exactly what
triggered me to follow this master. Until today I have no regrets of this choice; this master
has been the perfect addition to my Master of Law. As a law-student, I learned to see merely
the side of perpetrators. However, as a victimologist I now know that there is more behind
this view. Whether it is a victim of a crime or the perpetrator who is the victim, victim’s rights
are equally as important and should not be under-appreciated. The interest in children’s
rights, which I gained during my Master of Law, has been one of my main interests in the
Master Victimology & Criminal Justice as well. This has led to the topic of vulnerable victims,
and in particular children. Children’s rights gain more and more importance in today’s
society, but despite that, many children have the most important right taken away: their right
to life. This fact becomes even more cruel, when considering that many lives are taken away
by (one of) their own parents.
I would like to show my gratitude towards my supervisor, dr. mr. S. van der Aa, for the
supervision, help, enthusiasm and the critical view with which she revised my written pieces.
Despite the fact that the chosen topic has had its difficulties, issues and frustrations, she kept
encouraging me to finish this research.
Furthermore I would like to show my gratitude to my parents, sister and other
important persons in my life for their support and their patience. Though stressful moments
have not always made me the loveliest person, they kept supporting and helping me when
needed. To everyone who helped me in the realisation of this thesis: thank you!
I
Contents
Preface ................................................................................................................................... I
Contents ................................................................................................................................ II
List of used abbreviations ..................................................................................................... IV
Chapter 1 Introduction and problem statement ................................................................. 1
§1.1 Introduction of the subject ....................................................................................... 1
§1.2 Research goals and research questions.................................................................. 3
§1.3 Methodology............................................................................................................ 5
§1.4 Outline of the research ............................................................................................ 6
Chapter 2 Filicide in context .............................................................................................. 7
§2.1 The history of filicide in general ............................................................................... 7
§2.2 Definitions of the killing of a child............................................................................. 9
§2.3 Statistics on filicide .................................................................................................10
§2.4 Classifications of filicide .........................................................................................12
§2.5 Conclusion .............................................................................................................13
Chapter 3 Dutch legal system ..........................................................................................15
§3.1 The Dutch history of filicide ....................................................................................15
§3.2 Dutch Penal Code ..................................................................................................17
§3.2.1 Child manslaughter and child murder in the Netherlands ................................17
§3.2.2 Participation in filicide ......................................................................................21
§3.3 Filicide in practice ...................................................................................................22
§3.4 Conclusion .............................................................................................................23
Chapter 4 Australian and New Zealand legal system .......................................................25
§4.1 The Australian and New Zealand history of filicide .................................................25
§4.2 Australia .................................................................................................................28
§4.2.1 The law of filicide in New South Wales ............................................................28
§4.2.2 The elements of section 22A Crimes Act 1900 ................................................29
§4.3 New Zealand ..........................................................................................................30
§4.3.1 The law of filicide in New Zealand ...................................................................30
§4.3.2 The elements of section 178 Crimes Act 1961 ................................................31
§4.4 Conclusion .............................................................................................................32
Chapter 5 Psychology of pregnancy and childbirth ..........................................................34
§5.1 Postnatal psychiatric disorders ...............................................................................34
§5.2 Paternal postnatal disorders ...................................................................................35
§5.3 Relevance of psychology to filicide .........................................................................36
II
§5.4 Conclusion .............................................................................................................37
Chapter 6 Victim’s perspective on punishment ................................................................38
§6.1 The relative punishment theory ..............................................................................38
§6.2 The absolute punishment theory ............................................................................40
§6.3 Conclusion .............................................................................................................41
Chapter 7 Conclusion & Recommendation ......................................................................42
§7.1 Research question .................................................................................................42
§7.2 Filicide in the Dutch, Australian and New Zealand legal system .............................42
§7.3 Psychology of pregnancy and childbirth .................................................................45
§7.4 Answer to the research question ............................................................................45
§7.5 Recommendation ...................................................................................................46
Bibliography .........................................................................................................................49
Case law ..............................................................................................................................57
Appendix ..............................................................................................................................58
III
List of used abbreviations
AD Anno Domini
DCC Dutch Civil Code
DPC Dutch Penal Code
DUHO Detention under a hospital order
ECHR European Convention on Human Rights
e.g. exempli gratia
EPDS Edinburgh Postnatal Depression Scale
HR Supreme Court
IVF In Vitro Fertilisation
NSW New South Wales
NZ New Zealand
Rb. Court
UK United Kingdom
IV
Chapter 1 Introduction and problem statement
This chapter contains a brief overview of the subject of this thesis. In paragraph 1.1, an
introduction to the subject is provided by summarizing some of the most known cases of
filicide in the Netherlands. The research aim and research questions are formulated in
paragraph 1.2. Paragraph 1.3 explains the methodology used for this research and finally,
paragraph 1.4 contains the outline of this thesis.
§1.1 Introduction of the subject

Child killing is not new. Evidence has been found of cases throughout the centuries, from the
oldest historical times to the present.1 This phenomenon appears to be timeless and
happens throughout the world in every culture.2 Though one would expect killing a child to be
a severe crime, this was not always the case. At some moments, killing one’s own child was
even permitted.3 Over the years, the approach towards child killing has, in chronological
order, shifted between not punishable, severely punishable and mildly punishable. This could
vary by the sex of the perpetrator.4 More on the historical background of child killing is
explained in paragraph 2.1.
In the Netherlands, there are ten to fifteen cases per year in which children are
murdered.5 Over the years, there have been some controversial cases. In the years between
2003 and 2009, Sietske H. from the Frisian village Nij Beets, killed four of her babies shortly
after their birth. The court sentenced her to the maximum prison sentence of twelve years for
child murder.6 However, in appeal it was decided that there was no premised plan. Sietske’s
sentence was reduced to three years in prison and detention under a hospital order
(DUHO)7.8
Beverwijk was shocked in 2005, when three baby bodies were found in a dumpster in
a garden belonging to Etta A. Another body was found in the basements of Etta’s mother’s
basement in Haarlem. The court decided that four times child manslaughter was proven and
sentenced Etta to three years in prison and detention under a hospital order.9
In 2006 and 2008, a young woman from Enschede killed her two newborn sons.
Marike H., only 24 years old, was able to hide both of her pregnancies from her environment.
1 Mosely 1986.
2 Pitt & Bale 1995.
3 Kellum 1974.
4 Kaye, Borenstein & Donnelly 1990.
5 Liem & Haarhuis 2015.
6 Rb. Noord-Nederland (location Leeuwarden) 3 May 2011, ECLI:NL:RBLEE:2011:BQ3315.
7 Terbeschikkingstelling (TBS) [Translation K.A.]
8 Hof Arnhem-Leeuwarden (location Leeuwarden) 11 October 2012, ECLI:NL:GHLEE:2012:BX9891.
9 Rb. Noord-Holland (location Haarlem) 24 October 2016, ECLI:NL:RBHAA:2006:AZ0774.
1
In 2009, she was sentenced to one and a half year in prison and detention under a hospital
order.10
Anita C. from Geleen hid three baby bodies in her backyard. However, when the
bodies were found, it could not be proven that the babies had ever been alive. Therefore she
was acquitted for both child murder and child manslaughter.11 In appeal in 2013, she was
found guilty for hiding the three bodies and was sentenced to eight months in prison. Anita
explained that she did not know she was pregnant and that, after the babies were born, they
did not show any sign of life. She declared to have hidden the bodies out of fear for losing
her boyfriend and her two children.12
In 2014, people found a baby body in a park in Alkmaar. For months, it was unknown
who its mother was. When in 2015 two other bodies were found in a house and its
accompanying shed in Heerhugowaard, researchers found a DNA-link with Yasmine M. with
all three of the bodies. She declared that one of them had lived for three days. She told the
court that the baby cried, but she did not do anything to take care of it. Since it could not be
proven that the other two babies had been alive, she was sentenced for the death of only
one of them. Even though research had shown that she was responsible, the court decided
that she killed the babies out of fear for the exposure of her pregnancy. She was sentenced
for child manslaughter, for which she received a prison sentence of three years (one year
conditional).13
Although at first sight these cases differ, they all have two things in common: the
perpetrators are all women and those women all killed their own child. In the Netherlands,
when one kills another person, he or she will be charged with homicide or murder as outlined
in the sections 287 and 289 of the Dutch Penal Code (DPC). However, in case of special
circumstances, the mother of a child (note: only the mother), can receive a lower sentence
when she killed her child due to her mental state. Child homicide (section 290 DPC) and
child murder (section 291 DPC) apply to the cases in which the mother killed her child during
or shortly after giving birth. One can question if it is just to apply lower sentences to
perpetrators, despite the fact that the consequences of their acts are the same as if they
were committed against an older victim. Society perceives women who kill their own child as
a monster, psychotic or both.14 However, this issue is not as straightforward as it seems. Is it
just to punish the mother when she committed the act due to her mental state? Is it just to
exclude the father from certain rules, just because he is from the opposite sex? Is it just for
the child when its killer receives a lenient sentence, while the child is as dead as other (older)
10 Rb. Overijssel (location Almelo) 30 November 2009, ECLI:NL:RBALM:2009:BK4760.

11 Rb. Limburg (location Maastricht) 27 September 2011, ECLI:NL:RBMAA:2011:BT2687.
12 Hof ’s-Hertogenbosch 12 December 2013, ECLI:NL:GHSHE:2013:6001.
13 Rb. Noord-Holland (location Alkmaar) 12 May 2016, ECLI:NL:RBNHO:2016:3947.
14 Ben-Noun 2017.
2
victims? Child killing is a painful problem that can confront society, it is worth taking a look at
this phenomenon.
§1.2 Research goals and research questions

Unfortunately, the above mentioned cases are only a few of many cases in which a child was
murdered by its own parent(s) or stepparent(s). Occasionally, cases similar like these show
up in the news. With this research, it is intended to show society the importance of research
on this issue. Generating more information about perpetrators’ motives, background and the
legal system can be a valuable contribution to prevent child homicide. Therefore, this
research aims to compare the approach of the Dutch criminal law towards filicide with the
approaches of other judicial systems, which are in this case New South Wales, Australia
(NSW) and New Zealand (NZ).
Research will be conducted on the Dutch criminal justice system and whether laws
should be added, removed or changed. In order to do so, a comparison will be made to the
criminal justice systems of Australia and New Zealand. These systems have been chosen
because of the fact that their approach towards filicide in their criminal law differs from the
Dutch approach. Although all of them included filicide as a separate offence along to murder
and manslaughter, the content of the provisions is slightly different. Aim of this research is to
investigate on which elements the Dutch provision(s) differ(s) from other jurisdictions and
which approach provides the most benefits from a victimological point of view. The above
leads to the following research question:
How does the Dutch criminal law approach to filicide compare to that of Australia (New South
Wales) and New Zealand and which approach should be preferred from a victimological point
of view?
This victimological point of view can be approached from two sides: the child (or its relatives)
as victim and the perpetrator as victim. The first point of view includes how the phenomenon
of filicide can be best approached. The application of harsher penalties might lead to (further)
prevention of filicide, which can be beneficial for the surviving victims. Moreover, since the
primary victim is dead, what are the best interests of the secondary victims such as their non-
perpetrating parent, grandparent(s) or sibling(s)? Victims might want retribution for the
offence and thus it could be expected that harsher penalties provide benefits for the surviving
victims. On the other hand, the perpetrator is part of the victims’ family as well. Therefore,
victims might not desire a harsh penalty, but other solutions to the problem.
3
On the other hand, one can regard the perpetrator as victim. This point of view
includes two different types of perpetrators. When the mother is the perpetrator -and when
she acted in a state of mental turmoil-, having a provision which includes a milder penalty
might be justified. However, to what extent can the mental state be included in such
provision? Within the DPC, the age limit of the victim is set to “during or shortly after birth”15,
but other jurisdictions go beyond this limit, and set the limit to several months or years.16
Research might show the underlying reasons for these age limits and whether or not these
can be justified.
When the father is the perpetrator, one can wonder if the provision(s) lead(s) to
inequality between the father and the mother since it is only the mother who can benefit from
such provision(s). The answer to this depends on the rationale behind the milder
punishment. So in order to provide a legitimate answer, five main questions will be
answered.
What is filicide and can different types of filicide be distinguished?

It is important to start with some basic information about filicide. Killing a child can be the
result of many forms of abuse. What might come to mind first is physical abuse or neglect,
but can other forms of filicide be distinguished? At least as important as that question is
when one can speak of filicide and what type of perpetrator this involves? Furthermore, what
motives can be thought of when speaking of filicide?
How is filicide being regulated in the Netherlands, Australia (New South Wales) and
New Zealand?
In the Netherlands, the main regulations involving filicide are the sections 290 and 291 of the
DPC. In Australia, the common way to punish filicide is a conviction through homicide. No
special regulations are applied to the mother of the child. However, some jurisdictions have
such regulations.17 New South Wales, Victoria and Tasmania are the only three Australian
jurisdictions which provide in special regulations concerning filicide. Western Australia used
to have such a provision but repealed it in 2008.18 For example, New South Wales provided
in the sentencing of filicide by including section 22A in the Crimes Act 1900. New Zealand
established a broad provision concerning filicide in section 178 of the Crimes Act 1961. Of all
three countries, the (historical) parliamentary background which led to the contemporary
15 Sections 290-291 DPC.

16 Section 22A Crimes Act 1900 (Australia, New South Wales), Section 178 Crimes Act 1961 (New
Zealand).
17 Crime and Misconduct Commission 2013.
18 New South Wales Law Reform Commission 2013.
4
provisions will be discussed. It is expected that this history provides the most information on
the rationale behind these provisions throughout the years.
Do differences exist in the penalties for mothers and fathers who kill their children?
Are there other important differences?
For instance, in the Netherlands, the penalty for a mother who kills her child (out of fear)
differs from the ‘regular’ murder. However, this section does not include the father.19
Furthermore, research has shown that jurisdictions make use of different age limits when it
concerns the child. This research will focus on distinctions like these and why these
distinctions are being made.
What psychopathology is related to filicide?

Not only in legislation is filicide related to a psychological rationale, also vernacularly one’s
relating those concepts. After all, a mother must be ‘crazy’ when killing her own child. In
literature, filicide is often devoted to maternal postpartum depressions. Little is known about
postpartum disorders among fathers and its relationship to filicide. By including this topic in
this thesis, it is tried to explain the medical rationale behind filicide and whether or not this
should be included in legislation.
What is the perspective of victims on punishment?

Victims of filicide do not only include the killed child, but also surviving relatives such as non-
perpetrating parents, siblings or grandparents. Each victim has its own desires and needs.
How does the theory on punishment justification approach these desires and needs and in
what way is this related to filicide?
§1.3 Methodology
This research contains different parts of information which require different approaches to
search for this information. For the information in chapter two, a literature study is conducted.
This is mainly empirical literature concerning the differences between used definitions,
history, nature and extent of filicide and the motives and types of the perpetrators. For the
information in chapter six, on the punishment theories, a literature study is conducted as well.
Although literature study is also conducted throughout the other chapters, that literature
mainly pertains to legislation, case studies and parliamentary documents. This information is
needed to analyse the specific provisions concerning filicide in the Netherlands, Australia
(New South Wales) and New Zealand. Parts of this research which investigate the
19 Compare sections 290 and 291 DPC to sections 287 and 289 DPC.
5
psychopathology behind filicide (chapter 5) are constructed by conducting an (empirical)
literature study.
The literature studies are limited by two reasons. First, existing research on filicide is
mainly conducted in the medical or psychological field of science. Legal studies are lacking,
in particular research on specifically filicide provisions in laws. Furthermore, research is
limited by the availability of documents. In particular literature -including parliamentary
history- or case law on filicide in the including foreign jurisdictions is often inaccessible.
§1.4 Outline of the research

This research is split into several chapters. First, the concept of filicide is explained (chapter
2). This chapter briefly describes the (European) history of filicide. Furthermore, the terms
filicide, infanticide and neonaticide are explained in order to provide a clear distinction within
child homicide. Statistics show the occurrence of filicide in the Netherlands and a well-known
classification system of filicide is discussed. In chapter 3, the Dutch legal system is
discussed. It contains an analysis of the most important regulations concerning filicide.
Furthermore, this chapter shows the application of certain regulations in practice. Chapter 4
contains, in general, the same matters as chapter 3. However, instead of focussing on the
Dutch legal system, the Australian (New South Wales) legal system and the legal system of
New Zealand are explained. Furthermore, these provision are compared to the Dutch legal
system. Chapter 5 includes a psychological view on filicide. This chapter focusses on the
postnatal disorders and what types can be distinguished. Furthermore, postnatal disorders
among fathers are discussed. Two current theories on punishment are discussed in chapter
6. Both theories are explained and applied to filicide. Finally, a conclusion and a
recommendation will be provided in chapter 7.
6
Chapter 2 Filicide in context
This chapter contains an overview of filicide in context. The first paragraph contains the
history of filicide. A variety of concepts within the killing of children is discussed in paragraph
2.2. The concepts of neonaticide, infanticide and filicide are defined in order to have full
clarity within this thesis. Paragraph 2.3 contains some statistics on filicide in the Netherlands,
which includes the age of victims, motives etc. One of the most influential classification
systems of filicide is outlined in paragraph 2.4. Paragraph 2.5 concludes on the content of
the complete chapter.
§2.1 The history of filicide in general

Filicide has been existing since the dawn of mankind. Classic Chinese texts have been
found, which include stories of filicide in the period of 2000 years before Christ. The Bible
has revealed the first story of the near slaying of Isaac by his own father, Abraham. In Greek
mythology, a reference is often made to the case of Medea, who killed her sons after she
was abandoned by Jason. These historical stories are proof that child murder has been
existing for ages.20
Filicide has a rich history, in which a variety of legal systems played a role.
Throughout the years, filicide has slowly taken the form of an independent offence. Mosaic
law, Roman law, Germanic law, Canonical law: all four of them had a different view upon the
phenomenon of filicide as we know now. Filicide was threatened with death penalty or
sometimes even left unpunished. Later, killing one’s own children was rebuked as killing
relatives in general. Although both Roman law and the Canonical law showed signs of harsh
penalties, remarkable is that the Canonical law approached filicide as a privileged offence.21
Neither the Mosaic law nor the Roman law considered filicide as an independent offence.
However, the approach of Roman Law towards filicide had an interesting feature. In ancient
Greco-Roman times, the act of killing one’s own child was neither illegal nor immoral.
Moreover, child murder was protected by the law. “Patria potestas” included the “Ius vitae
necisque”, the right of the father of the family to decide over his family’s lives. The father of
the (unborn) child had the control over his child’s fate, and it was up to him to decide whether
the child could live or had to be killed. Would one decide to kill the child, there were no legal
consequences. The mother did not have such right as the patria potestas. When she killed
her own child, she was punishable by death. Patria potestas must be distinguished from the
“Ius tollendi aut exponendi”. This right of the father was, unlike the patria potestas, not
derived from the legal authority of the father, but from the practice of killing defective and

21 Verdam 1909.
7
deformed children shortly after they were born. Romulus restricted these rights of the father
by introducing a new law. This law stated that the father was obligated to raise his sons and
his first-born daughter. Furthermore, he was not allowed to kill any of his children aged
younger than three years old. An exception to this age limit was when a “consilium
propinquorum”22, a Roman advisory council composed of friends of the family, decided that
the child was deformed. Violation of Romulus’ law was punished by loss of half of the capital
of the family. This law was eventually abandoned. However, during the imperial age more
attention was paid to newborn children. Various emperors such as Traianus and Constantine
made an effort to improve rights of the newborn, which led to inter alia the abolishment of the
patria potestas. Now, the parricidium (killing a family member) was applied to the father as
well, and the father was therefore punishable by death. Although the rise of Christianity
involved more respect for life, it did not have much influence on filicide.23 It was not until the
300’s (AD) that Christianity, under influence of the Judaic law, considered filicide as a crime.
In 374 AD, under the supervision of Valentianus, Valens and Gratianus, child homicide was
included in the parricidium and thus death penalty was applied to both parents who killed
their children. Finally, killing newborns was not punishable under an independent offence, but
as homocidium or parricidium.24 But despite this consideration, women received lenient
sentences when killing their children, which was enforced by church- and state laws.25 When
they accidentally killed their children by rolling over it while sleeping (overlying), they were
punished more leniently. This point of view might have reflected the awareness of the
problem of overpopulation in the society. 26
Many reasons for killing one’s own child can be given. Disability, gender, financial
status or illegitimacy can, for instance, be reasons to kill in particular newborns. However,
these reasons can vary from culture to culture. For instance in China, it was considered
normal to “sacrifice” newborn daughters, because they were not able to transmit the family
name. Besides, girls were assumed to be weaker and less useful for agricultural work or in
case of war. Eskimos killed their children when they showed signs of inborn malformations.
Furthermore, when a twin was born, one of them was killed as well. Mohave Indians were
known to have killed all “half breeds” at birth. Finally, Japan showed two main reasons for
filicide, which were population control and unwanted children.27
22 A. Steiner, ‘Consilium’, The Encyclopaedia of Ancient History, DOI:

10.1002/9781444338386.wbeah13053
23 Kellum 1974.
24 Verdam 1909.
25 Linzer Schwarts & Isser 2000.
8
From the sixteenth century onwards, the approach to ‘legal’ killing changed in Europe.
In particular England and France made the first steps towards a new attitude. Both countries
established laws which sentenced perpetrators to death when filicide was committed. The
mother’s position in this was slightly different than the position of the father when it
concerned evidence. When filicide was committed by a woman, she was presumed to be
guilty until she could prove that the child was not a victim of murder, whereas for the father
regular evidentiary rules applied.28 It was not until the twentieth century that England
established the Infanticide Act 1922 (UK), which made an exception with regard to the
sentence for women, up to twelve months after giving birth. Giving birth and raising a child
can possibly have a great impact on the woman’s mental health. Therefore, filicide was
assimilated with manslaughter instead of murder and thus not punishable with death.29
§2.2 Definitions of the killing of a child

Many terms are being used to define the killing of a child. Throughout this thesis, the
terminology as described below is used.
Child homicide is used when speaking of the killing of a child in general.30 No
distinction is made in type of perpetrator and therefore this definition includes both parents
and non-parents of the child. With “child” is meant any child under the age of eighteen. It
includes both manslaughter and murder.
Neonaticide is a concept which was first introduced by Resnick.31 It is defined as the
killing of a child within 24 hours after its birth.32
Infanticide is being referred to as the killing of a child older than 24 hours but
younger than twelve months old.33
One can speak of filicide when a child is killed by its own parents. Filicide can be
seen as an umbrella concept since it includes child homicide, neonaticide and infanticide, as
long as the offence is committed by a parent.34 Appendix 1 provides a clear image of the
distinction between neonaticide, infanticide and filicide. Filicide can be divided into two types:
maternal filicide and paternal filicide. Although the act itself remains the same, there is one
difference: the sex of the perpetrator.35
28 Wrightson 1997.
29 West 2007.
31 Resnick 1969.
32 Resnick 1970.
33 Resnick 1970.
34 Resnick 1970.
35 Liem & Koenraadt 2008.
9
Throughout this thesis, the concept filicide is used most often. When speaking of filicide, it
will include the killing of children younger than eighteen years old. This age is in accordance
with the Dutch definition of a minor.36 When discussing other literature or legislation, this
thesis mostly follows the definition as used in the concerning piece of literature.
§2.3 Statistics on filicide

Research has shown that in the period of 2009-2014, 74 different cases (an average of 14.8
per year) concerning child homicide –also including homicide by others than one of the
parents- occurred in the Netherlands. This number has risen when compared to the period of
1992-2008, in which there were 191 cases (an average of 11.9 per year). In those 74 cases,
a total of 86 children became a victim and 90 perpetrators were involved (Table 1).37
Table 1: Epidemiology child homicide, Netherlands 2009-2014 (N=74).38
Table 2: Victim characteristics child homicide in the Netherlands, 2009-2014(N=86).39
36 Section 1:233 of the Dutch Civil Code (DCC).

38 Liem & Haarhuis 2015. [Translation K.A.]
10
Out of the 86 victims, only 55 of them are classified as manslaughter or murder (30 for
murder, 25 for manslaughter), the rest of them are unknown. From the victims, 58% were
boys, 42% were girls (Table 2). The average age of male victims was lower than that of the
female victims: 5.9 years compared to 7.7 years. However, these differences are not
significant.40
In most cases (56%) the perpetrator is male and older than 40 years old (32%) (Table
3). Motives for killing were pathological reasons, altruistic reasons and homicide-suicide. In
one third of all cases, death was the result of an “accident”, e.g. the result of severe neglect
or abuse. Male perpetrators are as much represented as female perpetrator. However, 7
victims (9%) were killed within 24 hours, and thus classified as neonaticide. Furthermore, 6
victims (8%) were killed because of psychotic motives. In both groups, women are
overrepresented but not exclusive.41 Even though Anita C. explained she was afraid of losing
her boyfriend42, research of Liem and Haarhuis showed that this motive was only in case of
the male perpetrators. When homicide was committed because of revenge, anxiety of
abandonment or sexual motives, it was exclusively committed by male perpetrators.43 When
taking a closer look on the numbers of filicide in specific, it can be concluded that in most of
the above mentioned cases, there was an intra-familiar situation. A total of 92% (75) of the
victims was killed by a relative. This number can be split into biological parents, with a total
number of 65 (80%) victims the largest part, and parental figures (stepparents, foster parents
or adoptive parents), who made 10 (12%) victims.

42 Rb. Limburg (location Maastricht) 27 September 2011, ECLI:NL:RBMAA:2011:BT2687.
11
Table 3: Perpetrator characteristics filicide in the Netherlands, 2009-2014(N=86).44
§2.4 Classifications of filicide

Over the years, many researchers attempted to make a classification of the different types of
filicide. These classifications are often established in order to understand the perpetrator’s
motive(s). One of the most recognized and influential classification systems was created by
Resnick.45 In his theory, five types of filicide were distinguished: altruistic-, acutely psychotic-,
unwanted child-, accidental- and spouse revenge -filicide.46
Altruistic filicide is when parents believe it is in the best interest of the child to kill him
or her. Within this category, Resnick makes an even more fine-grained distinction. First, in
case of (real or imagined) disabilities, parents are convinced they relieve the child’s suffering
by killing it. Second, parents with suicidal thoughts believe the world is not the right place for
their child to be after the parent’s death. It would be cruel to leave them behind without (a)
parent(s). Resnick’s research showed that, with 49% of the investigated cases, altruism was
the (main) motive to kill.47

45 The theory of Resnick (1969) is one of the most influential and known theories and applicable to
both maternal- and paternal filicide. Therefore, only this theory will be discussed in-depth. Other well-
known theories are the theory of Guileyardo, Prahlow and Bernard (1999), which expands Resnick’s
theory, the theory of Scott (1973), which focusses on paternal filicide and the theory from Meyer and
Oberman (2001), which focusses on maternal filicide.
46 Resnick 1969.
47 Resnick 1969.
12
A second type of filicide is when a parent lost sense of reality. They suffer from a
psychosis and in order to “respond” to that psychosis, they kill their child. An example is
when a parent is hallucinating and someone (the hallucination) orders him or her to kill his or
her son or daughter. This type of filicide is being referred to as acutely psychotic filicide.48
Third, filicide can occur when a child is not wanted. Parents see their child as
inconvenient and a hinder. Killing a child might ever provide them (financial) benefits, for
example when they receive money from an insurance.49
Fourth, filicide might be an accident. Within this type of filicide, the parent(s) did not
intend to kill the child. However, due to neglect or heavy abuse, death can be the result.50
This type of filicide also includes “Munchausen syndrome by proxy”, a type of psychological
or physical abuse, where a child is made ill on purpose.51
Finally, spouse revenge might lead to filicide. Filicide is being committed by a parent
in order to emotionally harm the other parent. Revenge might be a motive because the other
parent abandoned him or her or was unfaithful.52 However, Resnick’s research showed that
this is the least common type of filicide.53
Resnick’s classification system provides a range of motives. One can notice that there
is overlap between these categories, since more motives have a psychopathological
background (e.g. Munchhausen syndrome by proxy). However, whether or not these motives
should be a reason for reduction of sentences can be argued.
§2.5 Conclusion
Although several names are given to child homicide up to a certain age (e.g. neonaticide and
infanticide) it can all be grouped under one concept when committed by a parent: filicide.
Filicide has been existing for ages and differed from time to time and from one culture to
another. The societal perception has changed from perceiving filicide as legal behaviour to a
crime punishable by death. The way the perpetrator was treated in the criminal law differed
between male and female offenders. Where the fathers had the right to decide over the fate
of their children without a sentence, the mothers were punished for this offence. A lot of
research has been conducted on the types of filicide, which includes the motives of the
perpetrators. These motives can be found again in research conducted on the filicide number
in the Netherlands. Although this research shows at first sight a small number of filicide
cases, this is only the tip of the iceberg. A dark number of cases exist on top of the known
48 Resnick 1969.
49 West 2007.
50 West 2007.
51 Verhulst, Verheij & Danckaerts 2000.
52 Hatters-Friedman & Resnick 2007.
53 Resnick 1969.
13
cases, which expands the problem. Every victim is one too much, therefore research on
filicide and its motives can be of great importance to prevent future filicide.
14
Chapter 3 Dutch legal system
This chapter contains an overview of how the Dutch criminal justice system deals with
parents who kill their children. This offence is included in the general DPC. Paragraph 3.1
explains the history of the concerning sections in the DPC. An analysis of the sections 290
and 291 DPC is outlined in paragraph 3.2. The three corresponding criteria and the one
additional criterion are discussed to extricate the underlying motives of the legislator, applied
in the modern world. Furthermore, participation in child homicide is briefly discussed. The
results of a study on Dutch case law are discussed in paragraph 3.3. The last paragraph, 3.4,
contains a conclusion on the content of this chapter.
§3.1 The Dutch history of filicide

Before 1809, in the Netherlands, the concept of filicide was influenced by German and
French law. On the one hand, German law interpreted filicide as an offence which could only
be committed by the mother towards her illegitimate child. The French law on the other hand
considered filicide as the homicide of newborns, regardless of the type of perpetrator and
whether or not the child was illegitimate. Child homicide was not considered as an individual
offence and thus penalized as murder or manslaughter. In the Dutch law, for the
interpretation of filicide, there was no distinction made between perpetrators and it was not
limited to newborns. The offence was considered the same as killing relatives and thus
punishable by death.54 When, in 1809, the ‘Crimineel Wetboek voor het Koningrijk Holland’55
was introduced, more unity was created in the way filicide was perceived. This law
compromised between French and German law and devoted a separate section to filicide.
On the one hand, filicide was perceived as an offence which required the parent being the
perpetrator. On the other hand, any accomplices could be included as well. The child being
legitimate or illegitimate was irrelevant.56 In section 10357, it was outlined that filicide was:
“The offence of a mother who kills her newborn or of the ones that have been helpful to the
mother in committing this offence”.58
54 Verdam 1909.
55 J.M. Kemper, Crimineel Wetboek voor het Koningrijk Holland, 1809 (online: books.google.nl).
56 Verdam 1909.
58 Eigenlijk gezegde kindermoord is de misdaad van eene moeder, die haar nieuw geboren kind om
het leven brenge, of van de genen, die haar daarin behulpzaam zijn. [Translation K.A.]
15
According to section 10759, it was assumed that there was no act of filicide unless it could be
proven that the child lived after its birth.60 In case it was proven, the offence was punished by
death (gallows).61 Thus, the offence was not privileged but au contraire punished harsher
than manslaughter and the same as regular murder. When one was not sure whether or not
the child had been alive, the offence was punished with prison sentence and/or banishment,
for the maximum time of ten years.62 An attempt to kill a child was punished in the form of the
scaffold, imprisonment or banishment.63
Although it seems at first that those section only applied to the mother of the child,
since it clearly outlined that it concerned the mother who killed her newborn, a violation of
this definition can be found in section 11164.
This section outlined that:

“The definitions made within this chapter will be followed in case a father is guilty of
committing one of the mentioned offences towards his own child, with or without complicity of
the mother”.65
Basically, this law incorporated not only the biological parents of the child, but also any
accomplices. There was no case of privileges for them since this offence was being punished
with a more severe sentence than homicide and the same as murder (which was at that time
death penalty). However, an attempt to succeed in this offence was, unlike murder, not
punished with death penalty but with a less severe sentence66.67
The ‘Crimineel Wetboek voor het Koningrijk Holland’ was eventually replaced by the
French Code Pénal. This document considered filicide as ‘every homicide committed towards
a newborn’, which was punishable by death. When in 1827 a draft for a new law was made,
the ‘Crimineel Wetboek voor het Koningrijk Holland’ was followed neatly and therefore the
definitions, methods, perpetrators remained the same. But, in contrast to the Code Pénal,
this draft knew only one form of death penalty: the scaffold68. However, this offence was in
60 De misdaad van kindermoord wordt niet verstaan aanwezig en volbragt te zijn, ten zij duidelijk
bewezen worde dat het kind na de geboorte geleefd heeft. [Translation K.A.]
61 Section 108.
62 Section 110.
63 Section 109.
65 De bepalingen, bij dit hoofdstuk gemaakt, zullen ook gevolgd worden, ingevalle een vader zich aan
eenige der genoemde daden mogt schuldig maken omtrent zijn eigen kind, het zij met of zonder
medepligtigheid van de moeder. [Translation K.A.]
66 The rationale of this difference is not known. Compare section 99 and 109.
67 Verdam 1909.
68 This was a way of execution in which a person was killed by cutting of the head. Oxford dictionaries,
scaffold, http://www.oxfordlearnersdictionaries.com (Search for: scaffold).
16
some way privileged for women, who could be punished with at least ten years in prison
when there was case of mitigating circumstances69.70
In 1842, a new draft was made. This draft did not resemble the former Code Pénal
and ‘Crimineel Wetboek voor het Koningrijk Holland’. This draft considered filicide as a
privileged offence towards the mother, since it outlined that it was ‘homicide by the mother
against her newborn’. When the offence was premeditated, it was punishable with the same
sentence as homicide. In case premeditation could not be proven, a less severe sentence
was imposed; imposing death penalty to the mother was not possible anymore. This was due
to the fact that abolition of death penalties received more attention. It was, in particular
towards mothers, found too severe.71
When, after another draft (of 1847), all attempts to create a new penal code failed, the
Code Pénal was partially changed. The act of 19th June 1854 outlined that, when filicide was
committed for the first time by an unmarried woman, she was imposed five to twenty years in
a house of correction instead of death penalty. A regulation to substitute the house of
correction by prison sentence was explicitly declared not to be applied to filicide. However,
this was changed by the act of 1870.72
§3.2 Dutch Penal Code

§3.2.1 Child manslaughter and child murder in the Netherlands
The Dutch Penal Code is the most important act regarding filicide. Though the filicide
provisions have been introduced in 1886, changes in its content have been made in the act
of 10 March 1984.73 Textual changes have been made two weeks after, in the act of 23
March 1984.74 Both laws started to work from 1 may of that year and still apply today. When
speaking of filicide, two sections can be distinguished. First, child manslaughter is being
regulated in section 290 DPC. Second, child murder is being regulated in section 291 DPC.
Although these provisions appear similar, they have some important differences. The
elements of both provisions are discussed hereafter.
Section 290 DPC outlines that:

‘The mother who, under the influence of fear that the birth of her child will be discovered,
intentionally takes the life of her child at birth or shortly afterwards, shall be guilty of child
69 It is unknown what the legislator had meant by such circumstances.

70 Verdam 1909.
71 Verdam 1909.
72 Verdam 1909.
73 10 March 1984, Stb. 1984, 91.
74 23 March 1984, Stb. 1984, 92.
17
manslaughter and shall be liable to a term of imprisonment not exceeding six years or a fine
of the fourth category.’75
Section 291 DPC outlines that:

‘The mother who, for the execution of a decision taken before her coming birth under the
influence of fear that the birth will be discovered, intentionally takes the life of her child at
birth or shortly afterwards, shall be guilty of child murder and shall be liable to a term of
imprisonment not exceeding nine years or a fine of the fifth category.’76
The DPC regards filicide as a privileged form of regular manslaughter and murder as
punishable under the sections 287 and 289 DPC. Manslaughter or murder, committed by the
mother under influence of her mental state is, according to the legislator, worth less
punishment. Whereas regular manslaughter and murder are punished with a maximum of
respectively fifteen years77 and lifetime in prison78 (or a fine of the fifth category), filicide is
punishable with a (small) part of it: respectively six years79 and nine years in prison80 (or a
fine of respectively the fourth and fifth category). Remarkable is that, in contrast to the
sections 287, 289 and 291 DPC, section 290 DPC provides the opportunity for the public
prosecutor to settle this offence, instead of going to court.81
Both the provision on child manslaughter and child murder consist of multiple
elements which distinguish them from regular manslaughter and murder. Three of those
elements apply to both section 290 and 291 DPC. One element can be allocated to only child
murder. The next subparagraphs will briefly explain those elements.
§3.2.1.1 Motherhood
In the DPC, child homicide is regarded as a certain offence in which a specific individual with
a special function kills a child. In case of filicide, this individual is the biological mother. One
can wonder why the legislator is more lenient towards the mother but not towards the father.
75 De moeder die, onder de werking van vrees voor de ontdekking van haar bevalling, haar kind bij of
kort na de geboorte opzettelijk van het leven berooft, wordt, als schuldig aan kinderdoodslag, gestraft
met gevangenisstraf van ten hoogste zes jaren of geldboete van de vierde categorie. [Translation
K.A.]
76 De moeder die, ter uitvoering van een onder de werking van vrees voor de ontdekking van haar
aanstaande bevalling genomen besluit, haar kind bij of kort na de geboorte opzettelijk van het leven
berooft, wordt, als schuldig aan kindermoord, gestraft met gevangenisstraf van ten hoogste negen
jaren of geldboete van de vijfde categorie. [Translation K.A.]
77 Section 287 DPC.
78 Section 289 DPC.
79 Section 290 DPC.
80 Section 291 DPC.
81 7 July 2006, Stb. 2006, 330 and 31 March 2015, Stcrt. 2015, 8971.
18
The sections 290 and 291 DPC originate from 188682. At that time, the goal was to protect
young, unmarried women who were often poor and dependant. These women often
committed the offence as a result of a moral conflict when they got pregnant by their
employers.83 In the act of 1854, a distinction was made between married and unmarried
women. In order to classify an offence as filicide, one requirement was that the mother of the
child was unmarried. A woman who was married and killed her illegitimate child was not able
to be prosecuted for filicide – instead she would be tried for regular murder or manslaughter-
, while a woman who was divorced and killed her legitimate child was able to be prosecuted
with filicide. This requirement led to objections and was therefore abandoned in the new
act.84
Historical interpretation of this concept leads to a strict interpretation of the mother as
perpetrator.85 New modern techniques such as in vitro fertilisation (IVF) and social
phenomena such as surrogate mothers provide other opportunities for motherhood.
Nevertheless, according to inter alia Cleiren and Schuyt, it is not likely to include these forms
of mothers in the interpretation of this section. Reason for this is that these forms of
motherhood are intended. Such pregnancies are deliberate and desired and therefore it is
not likely that ‘fear of discovery’ will occur.86
§3.2.1.2 During or shortly after birth

The legislator provides a timeframe within these sections. The offence must have been
committed during or shortly the birth. However, the law does not provide a fixed period. This
was due to the fact that setting a random period, for example 24 hours (Saxony law) or five
days (Italian drafts) was not recommended.87 Unfortunately, the parliamentary history does
not dwell on why exactly this was not recommended.88There are no indications which reveal
the thoughts of the Dutch legislator and what he had meant by this period. Therefore, filling in
this period is assigned to case law and doctrine. Machielse and Schuyt share the opinion that
the period of ‘shortly after birth’ lasts as long as the extraordinary frame of mind of the
mother is present.89 Another point of critique on one of the previous drafts was that this draft
(of 1847) spoke of the ‘newborn’. Incorporating this concept would mean that manslaughter
or murder during birth giving was not included.90
82 1 September 1886, Stb. 1881, 35.

83 Verheugt 2007, p. 49.
84 Verdam 1909.
85
Cleiren 2016 (A).
86 Schuyt 2009, p. 155, Cleiren 2016 (A).
87 Smidt & Smidt 1891, p. 462.
88 Smidt & Smidt 1891.
89 Schuyt 2009, p. 155.
90 Smidt & Smidt, p. 462.
19
Since the legislator did not provide any clues on the correct interpretation of ‘shortly
after birth’, it is likely to find a connection with the unusual mental state. Along to the fear of
discovery, the mental state could be used as determining factor. However, would one only
speak of the fear of discovery, this could mean that many women who already calmed down
could benefit the leniency of the provision. Remmelink argued that, as a directive, one should
use the length of the period the panic of the mother lasts.91 When the mother first responds
to the fact that a child has been born, the time of fear which influences the penalization of the
perpetrator is over. There must have been no time to consider the crime.92
§3.2.1.3 Fear of discovery of the childbirth

The legislator had not meant to include every case of child homicide in the filicide provision.
Exclusively in the situation that the mother committed the offence because she was afraid
that her pregnancy would be discovered, a lenient penalty will be applied. The reason to
include this fear is to prevent the dangers of casuistry and to demarcate the boundaries of
included and excluded cases.93 Regardless of the cause of the fear, the provision on filicide
is applied to every case in which the woman acted as a result of the fear of discovery of her
pregnancy. It is not important whether or not the birth giving is objectively secret. The
conviction of the mother that the pregnancy is secret can suffice.94 Moreover, keeping the
pregnancy a secret towards a selective group of persons can still be a valid reason to apply
the reduction of sentence.95 The court explained the concept of fear further by stating that,
when a mother considers herself not capable of caring because of psychological or financial
reasons, this does not result in fear as meant by the legislator.96
§3.2.1.4 Execution of a decision taken before the childbirth

Unique for the application of child murder is the presence of premeditation. It resembles
premeditation as in section 289 DPC, in which a person had the opportunity to consider the
offence but nevertheless commits the offence. Yet, the scope of section 291 DPC is slightly
different. The planning of the crime must precede the delivery. This is interesting, since,
according to this statement, it would mean that women who ‘plan’ the crime several days
after birth, could not be charged with child murder. Moreover, this plan must have been
connected to the fear of discovery of the coming birth giving.97 That the requirement of
planning is difficult to meet can be derived from the case of baby Jurgen and baby Alex. The
91 Lindenberg 2016.
92 Noyon & Langemeijer & Remmelink 1999.
93 Smidt & Smidt 1891, p461.
94 Noyon & Langemeijer & Remmelink 1999.
95 Lindenberg 2016.
96 Rb. Midden- Nederland (Location Utrecht) 12 July 2010, ECLI:NL:RBUTR:2010:BN0936.
97 Cleiren 2016 (B).
20
mother of both children was charged with section 291 DPC: child murder. For the first
charge, the killing of her first victim, the court decided that there was no evidence that the
mother decided in an early stage to kill the baby. This was different for the second victim.
There had been moments that the mother tried to end the pregnancy and she even made an
appointment for an abortion, to which she never went. Furthermore she declared that she
never had seen herself as a mother or as the mother of this specific child in the future.
Although the court had the opinion that the mother had some opportunities to consider the
offence, it was decided that this did not prove that the mother actually planned the killing of
the child. Therefore, the woman was convicted for child manslaughter on both of the
children.98
§3.2.2 Participation in filicide

The law is lenient towards the mother who commits homicide to her own child. However,
qualifying an act as child manslaughter or child murder is not always as straightforward as it
seems. This is different when it involves other persons than the mother. Participants of these
offences do not share the milder penalties with the mother.
Section 292 DPC outlines:

‘The offences as described in the sections 290 and 291 are qualified as manslaughter or
murder regarding others who participated in the offence.’99
The reason to exclude others than the mother from filicide is because the mental state, which
is reason for reduction of the penalty towards the mother, does not exist towards others. This
means that the father who kills his own child will be charged with manslaughter or murder,
even if he might have been afraid of discovery of the pregnancy as well.100
This was confirmed by the Supreme Court in 2007.101 In this case, a man was
convicted and received a prison sentence of nine years for the participation in the murder of
his child. In cassation he argued that the court should have applied child manslaughter or
child murder in this case. He appealed to the fact that he had experienced a fear of discovery
of the birth of his child. The defence argued that, by applying sections 290 and 291 DPC, the
mother was given the right to section 8 of the European Convention on Human Rights
(ECHR), which incorporates the right to family life. The defence argued that the same rules
98 Rb. Overijssel (location Almelo) 30 November 2009, ECLI:NL:RBALM:2009:BK4760.

99 De in de artikelen 290 en 291 omschreven misdrijven worden ten aanzien van anderen die er aan
deelnemen als doodslag of als moord aangemerkt. [Translation K.A.]
100 Cleiren 2016 (A), Cleiren 2016 (B).
101 HR 9 January 2007, NJ 2007/52 ECLI:NL:HR:2007:AZ3307.
21
should apply to fathers as well, otherwise there would be a violation of the prohibition of
discrimination (section 14 ECHR). The court explained the verdict clearly by stating that the
reasons for reduction of the penalty is the mental state of the mother, which can only exist at
the mother because of its nature and that it concerns a circumstance personally related to
her.102 After all, the rationale for reduced sentences is, according to sections 50 and 292
DPC, a personal rationale which can only be applied to the mother. However, the court also
argued that section 292 DPC does not affect the ability of the court to regard the mental state
as mentioned by the defendant as a factor to reduce the penalty. Yet, the court argued that
the special mental state as meant in the sections 290 and 291 DPC was not sufficiently
present at the defendant and therefore he had no interest in this specific defence. An appeal
on the sections 8 and 14 of the ECHR did not lead to any differences in the verdict. The
Supreme Court kept the verdict of the Appellate Court intact103. In his conclusion on this
case, Machielse shares the argument of the court that an appeal to section 14 ECHR can
only succeed when such right as in section 8 ECHR is on trial. It is questioned what this right
to family life should protect when the defendant obstructs himself from practising this right.
After all, the defendant could have had a family life, however, he chose to kill the child. 104
§3.3 Filicide in practice

Research has been conducted on the application of filicide provisions in practice. This
research includes 30 verdicts over the past fifteen years. The results show that case law
does not provide a clear answer of the interpretation of ‘during or shortly after birth’. In most
cases, the court spoke of ‘newborn’ or gave a description from which it can be interpreted
that the child had not been older than several hours. Thus, where the legislator left the
interpretation for doctrine and case law, a fixed age limit is still not provided. From the
included cases, there was only one case in which the age of (one of) the victim(s) appeared
to be more than one day.105 The defendant in this case, the mother of the victims, declared
that one child had been alive for three days. From this case it can be derived that the Dutch
interpretation of filicide extends beyond neonaticide, since the victim was older than 24 hours
(Appendix 2).
As expected, this research shows that men are not meant to be included in the
provisions of filicide in sections 290 and 291 DPC. Only two cases involved the father as the
102 De strafverminderingsgrond is gelegen in de bedoelde bijzondere gemoedstoestand, die uit zijn

aard slechts bij de moeder kan bestaan en die een uitsluitend haar persoonlijk betreffende
omstandigheid betreft. [Translation K.A.]
103 HR 9 January 2007, NJ 2007/52 ECLI:NL:HR:2007:AZ3307.
104 Parket HR, 9 January 2007, ECLI:NL:PHR:2007:AZ3307.
105 Rb Noord-Holland (Location Alkmaar) 13 may 2016, ECLI:NL:RBNHO:2016:3947.
22
perpetrator of child homicide106. However, the charges were, in both cases, complicity to the
homicide. One father was acquitted, the other one was convicted for complicity to regular
murder (not child murder). Though this last verdict was appealed, it was confirmed by both
the Appellant Court and the Supreme Court (which led to a raise of the prison sentence with
2 years) (Appendix 2).
Interesting is that in two cases, four children were killed by their mother.107 However,
for one of the mothers, the court decided that she should be punished with the maximum
sentence. Therefore, the mother was imposed twelve years in prison for three times child
manslaughter and one child murder.108 From the investigated cases, this case was the only
one in which the maximum sentence was given. Though the maximum sentences to both
child murder and child manslaughter are several years higher, only a minor part of it is often
applied (Appendix 2).
§3.4 Conclusion
Like the concept of filicide throughout the world, the concept of this phenomenon in the
Netherlands has changed over time. In particular the influence of German and French law
has made the approach towards filicide the way it is today.
Remarkable is that these provisions only concern the mother. Research on the
reasoning of the legislator has had a marginal contribution. The known history shows that the
legislator tried to protect the unmarried, young women who got pregnant by their employers.
One can say this rationale, which descents from 1886 and before, is outdated and wonder
whether or not the provision is still applicable in the way as meant those days. Although it is
quite obvious why motherhood by the use of modern techniques is excluded, this is not
obvious for the exclusion of the father. As mentioned, fear of discovery of the childbirth is not
likely to be present when you ‘choose’ to have a baby by using, for instance, IVF. However, it
is not clear why the father cannot be afraid of this discovery. Situations of adultery or
abdication of the family because of his culture come to mind. Despite this, the father (and
other participants) will, upon today, be charged with regular manslaughter or murder.
The timeframe in which the provisions are applicable are, even though it was not
recommended to set a random period, yet quite random. Parliamentary documents and other
documents which discusses the reasoning of the legislator provide no reasons why the
period of ‘during or shortly after birth’ has been chosen. It is up to case law and doctrine to fill
106 Rb. ‘s-Gravenhage 26 November 2004, NL:RBSGR:2004:AR6514, Rb. Noord-Holland (location

Haarlem) 24 October 2006, ECLI:NL:RBHAA:2006:AZ0775.
107 Rb. Noord-Holland (location Haarlem) 24 October 2016, ECLI:NL:RBHAA:2006:AZ0774, Rb.
Noord-Nederland (location Leeuwarden) 3 May 2011, ECLI:NL:RBLEE:2011:BQ3315.

108 Section 57(2) DPC raises the maximum penalty by one third of the highest individual maximum.
23
this in and thus it leads to more randomness than when the period would be fixed. However,
it is not necessarily a bad thing to leave the interpretation to case law and doctrine. This way,
the period can adapt to each new situation and each new vision. But despite the fact that
such freedom of interpretation is provided, the court has, until today, not given a concrete
answer to this question. As shown in the results of a case law study, the court used vague
terms such as ‘newborn’ or an explanation of the situation from which the age of the child
can be derived. Nevertheless, this period includes more than neonaticide, since one mother
was convicted for the homicide of her three days old baby.
The fourth criterion, only applicable to the situation of child murder, has been strictly
interpreted. One cannot suffice with having opportunities to consider the crime. An accurate
pre-birth planning must have proceeded the crime.
24
Chapter 4 Australian and New Zealand legal system
This chapter contains an overview of how the Australian and New Zealand legal system
approaches parents who kill their children. Australia is divided in eight states and territories.
Therefore, it has multiple levels on which law can be established: federal law, state/territory
law and local law.109 Filicide is generally not treated as an offence on its own. Throughout
Australia, this crime is preferred to be convicted as murder or manslaughter and thus
elements of these crimes must be established. However, in some jurisdictions laws have
been established, in which special offences related to filicide are created. New South Wales
is one of these jurisdictions and therefore this state is discussed in this chapter.110 In
comparison with the Netherlands and Australia (and many other countries over the world),
New Zealand has a unique provision concerning this phenomenon. Its main feature is that its
age limit extends much broader than most other jurisdictions.
Paragraph 4.1 contains the history of filicide in Australia and New Zealand. This
history mainly focusses on the development of filicide laws in England. As former colonies of
the British Empire, both Australia and New Zealand have the British law as its parental law.
In paragraph 4.2, the history is continued as from 1951, when the Australian state New South
Wales commenced with the introduction of filicide provisions.111 The rationale behind
contemporary provisions on filicide are discussed when possible.112 Paragraph 4.3
resembles the second paragraph. However, attention is given to the provisions on filicide in
New Zealand, which have been introduced in 1961.113 A conclusion is given in paragraph
4.4.
§4.1 The Australian and New Zealand history of filicide

The history of filicide legislation in New South Wales goes back to the seventeenth century in
England.114 As noted before, filicide was not unusual. It was used to control the size of the
population and therefore most societies condoned this offence. Life was one of the most
important things in Christian morality, but despite that, filicide remained widespread.115 Rules
concerning this offence existed, but were not always in favour of the mother. In fact, the first
rule as described in the 1924 statute (21 Jas I c.27), punished the mother more severe for
filicide than for regular murder. This rule was established to prevent ‘destroying and
murthering of bastard children’, as it says in its title, and was applied to the killing of only
109 The Australian Trade Commission (Austrade), 2016.

111 Crimes (amendment) act 1951 NSW.
112 Research was limited by the availability and accessibility of literature and case law.
113 Crimes Act 1961 (NZ).
114 Lansdowne 1987.
115 New South Wales Law Reform Commission 1997 (B).
25
newborns. Filicide was seen as a social problem: women killed their illegitimate child to avoid
shame and disgrace.116 However, the statute was not strictly applied. Because it was difficult
to prove murder to the woman, the statute outlined that it was the task of the woman to prove
she was not guilty. It was believed that, when the woman was not guilty until proven different,
this could lead to motivation to kill one’s own child, since it was likely not to get sentenced for
it. The statute was applicable to all women giving birth to illegitimate children, regardless of
the circumstances in which they got pregnant, such as rape or incest.117 Therefore, the
statute was repealed and replaced by Lord Ellenborough’s Act in 1803. This act dealt with
the concealment of birth by sentencing the offence with a maximum penalty of two years in
prison. Lord Ellenborough’s Act, together with its successors section 14 of the ‘Offence
Against the Person Act 1828 (UK) and section 60 of the Offence Against the Person Act
1861 (UK), have been the basis for the filicide provisions as we know them today.118
When it was the nineteenth century, filicide had become a social problem to a great
extent. Unwanted pregnancies had disastrous consequences both economically and socially
and therefore they must have seemed to be unavoidable.119 However, despite the fact that
this offence had become a major problem, this was not what the enforcement of the law
showed. The number of charges was very low, let alone a conviction, which was extremely
rare. This was due to the fact that evidence was often “stretched” in order to avoid a
conviction. One would explain the evidence in such way that it was (nearly) impossible to use
it for trials.120
At first, filicide was punished by death. Although this was, theoretically, the way to
sentence the offence of filicide, in practise it showed the opposite. Police and juries were
reluctant with prosecuting or convicting women, and in the cases where the verdict was
filicide, death penalty was often not applied. This reluctant attitude showed that both the
enforcers of the law and the community felt sympathy for the women and the poor conditions
in which they lived in. Besides, the rates of filicide were high and not uncommon and thus
probably more accepted.121 Moreover, the crime was specified to the mothers’ own children
and thus they were not a threat to the society.122 Also procedural problems played parts. It
was for instance difficult to prove whether or not a child had been alive or that death had
been an accident. Furthermore, juries shared the opinion that the mandatory death penalty
was too severe to be applied to these cases.123
116 Lansdowne 1987.

120 Allen 1982.
26
Since death penalty was no longer desired to be applied, reform of the law was
inevitable. This lead to the introduction of the Infanticide Act in 1922 (in the United Kingdom).
This Act made some important changes in the approach towards filicide. It was applicable to
the killing of newborns by the mother. A partial excuse was provided, which sentenced the
women for manslaughter instead of murder, based on the mental state they suffered. This
mental state was noted as a puerperal psychosis124 which, at that time, was the most severe
form of a mental disorder associated with childbirth. The use of a medical rationale to apply
filicide was remarkable, since it was more because of a social condition in which filicide was
committed. Poverty, abandonment and social stigma of illegitimacy, which all had shown to
be likely as a reason for filicide, made place for ‘the disturbance of the balance of mind’.
O’Donovan outlined this as:
‘The Act was the product, not of nineteenth century medical theory about the effects of
childbirth, but of judicial effort to avoid passing death sentences which were not going to be
executed. But medical theory provided a convenient reason for changing the law.’ 125
The Infanticide Act of 1922 led to problems. One major problem was that it was not clear to
what extent a child could be seen as newborn. In the case of R v O’Donoghue126, the age of
the victim was subject to discussion. The victim in this case was 35 days old, but it was
decided that a 35 days-old child could not be seen as newborn.127 This issue led to problems
with the application of the filicide provision. In order to avoid randomness and to clarify the
extent to which victims could be interpreted, the Infanticide Act of 1938 (UK) made two
important changes in the Act of 1922. First, newborn was expanded to children up to twelve
months. Furthermore, in order to provide a legitimate rationale for the extension of this age, a
new basis for mental disturbance was added, which extended the defence of filicide from the
first weeks to the period of lactation.128 Lactation is the medical term for breastfeeding the
child.129 However, the effects of lactation on the mental state of the mother are severely
doubted.130
124 Puerperal psychosis is, next to baby blues and postpartum depression, a mood disorder related to
childbirth. It is the most severe form of the three disorders. More on this type of mood disorder can be
found in chapter 5.
125 O’Donovan 1984.
126 O’Donoghue (1927) 20 Cr App R 132.
129 Oxford dictionaries, lactation, http://www.oxfordlearnersdictionaries.com (Search for: lactation).
27
§4.2 Australia
§4.2.1 The law of filicide in New South Wales
New South Wales did not deal specifically with filicide until 1951. That year, provisions based
on the Infanticide Act 1938 (UK) were introduced. The Crimes Act 1900 (NSW) was
amended by the Crimes (amendment) act 1951, which added section 22A. At that time,
murder could only be penalized by a mandatory sentence. By introducing this filicide
provision, the judges were able to apply the provision on manslaughter instead of murder.
The relevant provisions on filicide in New South Wales as applied today, are as following:
Section 22A (1) Crimes act 1900 outlines that:

‘Where a woman by any wilful 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 infanticide, and may for such offence be
dealt with and punished as if she had been guilty of the offence of manslaughter of such
child.’

‘Where upon the trial of a woman for the murder of her child, being a child under the age of
twelve months, the jury are of opinion that she by any wilful act or omission caused its death,
but that 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 such child or by reason of the
effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding
that the circumstances were such that but for the provisions of this section they might have
returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman
may be dealt with and punished as if she had been guilty of the offence of manslaughter of
the said child.’

‘Nothing in this section shall affect the power of a jury upon an indictment for the murder of a
child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity or
a verdict of concealment of birth.’
28
Now, a more humane sentence was applied to mothers who became “temporarily deranged”
as result of the birth and therefore killed their children. This provision was applied to a broad
range of cases, which could vary from a postnatal depression to severe social- and
economical stress and from a couple of hours after birth to several months after birth.
However, a directly visible connection between the childbirth or lactation and the mental
disturbance was apparently not required to be present, since this was not always
apparent.131
§4.2.2 The elements of section 22A Crimes Act 1900

Although the provision on filicide has been existing for many years, it is rarely used. In New
South Wales, there had been only four cases of filicide between 2001 and 2011. In all cases,
filicide was accepted as the proper charge.132
From the above mentioned provisions, one can derive three main elements which
must be met in order to apply the provision on filicide. First, the provision outlines that the
offence must be committed by the mother. The provision specifies that the offence can be
committed either by an act or an omission. This means that not just an active act, such as
suffocation, can result in filicide, but also a passive act such as not providing nutrition for the
child. This act or omission must be conducted by the mother. By mother is meant the
biological mother. Adoptive mothers and others, such as the father and other carers are not
included.133 Fathers who kill their own child cannot be charged with filicide. Instead, he will be
charged with murder. This is due to the recognition of the experiences and difficulties that
women had (and still have) to face after childbirth. Providing a beneficial provision was a
human way of dealing with women who, as a result of the childbirth, became temporarily
deranged. 134
The second element is that the child must not be older than twelve months. The
history of filicide in New South Wales shows that there had been difficulties in providing a
non-arbitrary age limit. Despite the fact that the age of the victim had been extended to
twelve months, it was still known that this age was arbitrary.135 When a mother killed her
child, who is 365 days old, as a result of a postnatal depression, she will be charged with
murder. The only defence which can reduce her sentence will be a plea for diminished
responsibility. However, even when this plea would be successful, she might receive a
harsher penalty than when she had killed the child one day earlier.136 Victoria created a,
131 R v Hutty [1953] VLR 338.

136The Law Commission 2005.
29
though still arbitrary, different response to this age limit. The Law Reform Commission found
evidence that most cases in which children are killed by one of their parents occur within the
first two years after birth.137 As a response to the recommendations of their report, in 2005,
the age limit of the victim was expanded to two years old.138
The third element is that the perpetrator suffered from a mental disturbance. This
disturbance is the result of not having been recovered from giving birth to the victim or
because of the effect of lactation. Since this provision has not changed for years and it was
derived from the Infanticide Act 1922, it is likely that this foundation is the result of the same
reasoning as used in the Infanticide Act 1922. Thus, social factors were replaced by a
medical factor, without much knowledge of its relation to filicide.
§4.3 New Zealand

§4.3.1 The law of filicide in New Zealand
Before 1840, there was no criminal law applicable to New Zealand residents. In 1840, the
British acquired sovereignty over New Zealand by signing the Treaty of Waitangi. By
becoming a British colony, the criminal law of England was applied to New Zealand. Over the
years, changes in the criminal law were made by implementing statutes of the United
Kingdom.139 With the implementing of the Infanticide Act 1938, England had provided a
model act for other filicide regulations, which led to the implementation of filicide provisions in
New Zealand.140
The approach towards filicide in New Zealand slightly differs from that of the
Infanticide Act 1938. New Zealand had not had laws concerning filicide until the Crimes Act
1961 passed. In this Act, filicide was regarded as a statutory offence (which is a crime,
described by the law and which is punishable by a court141). This specific section on filicide
was later amended by the Criminal Justice Amendment Act 1969 and the Crimes
Amendment Act (No. 2) 1985. This led to the provision as applied today.
Section 178 (1) Crimes Act 1961 outlines that:

‘Where a woman causes the death of any child of hers under the age of 10 years in a
manner that amounts to culpable homicide, and where at the time of the offence the balance
of her mind was disturbed, by reason of her not having fully recovered from the effect of
137 Victorian Law Reform Commission 2004, par. 6.39.

138 Crimes Act 1958 (Vic).
139 A.H. McLintock 1966.
140 Brennan 2007.
141 Oxford dictionaries, statutory offence, http://www.oxfordlearnersdictionaries.com (Search for:
statutory offence).
30
giving birth to that or any other child, or by reason of the effect of lactation, or by reason of
any disorder consequent upon childbirth or lactation, to such an extent that she should not be
held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is
liable to imprisonment for a term not exceeding 3 years.’

‘Where upon the trial of a woman for the murder or manslaughter of any child of hers under
the age of 10 years there is evidence that would support a verdict of infanticide, the jury may
return such a verdict instead of a verdict of murder or manslaughter, and the defendant shall
be liable accordingly. Subsection (2) of section 339 shall be read subject to the provisions of
this subsection, but nothing in this subsection shall affect the power of the jury under that
section to return a verdict of manslaughter.’

‘Where upon the trial of a woman for infanticide, or for the murder or manslaughter of any
child of hers under the age of 10 years, the jury are of opinion that at the time of the alleged
offence the balance of her mind was disturbed, by reason of her not having fully recovered
from the effect of giving birth to that or any other child, or by reason of the effect of lactation,
or by reason of any disorder consequent upon childbirth or lactation, to such an extent that
she was insane, the jury shall return a special verdict of acquittal on account of insanity
caused by childbirth.’
§4.3.2 The elements of section 178 Crimes Act 1961

As with the Australian and Dutch provisions, section 178 of the Crimes Act 1961 contains
specific elements which must be met. As noted before, though the Australian and New
Zealand provisions have the same parental law, they have important differences. The first
important difference is the type of perpetrator. Although the provision only included the
mother as possible perpetrator, the definition of ‘mother’ is not defined as only the biological
mother as in the parental Act. In the case of R. v. P, the definition of ‘any child of hers’ was
broadened. The court decided that there is no requirement of the child being biologically of
the defendant. Situations can occur in which the child is part of a family in which he or she is
under legal guardianship of the defendant. Filicide might be applicable to those situations as
well.142 This does not mean that all others can benefit the lenient sentences; they need to
fulfil the medical requirement, which has been extended to ‘any disorder consequent upon
childbirth or lactation’ as well. Furthermore, New Zealand is unique compared to the
142 R v P (1991) 2 NZLR (CA) at 116.
31
Netherlands and Australia in that it does limit the age of the child up to ten years. It is argued
that this huge difference in age limit is due to the fact that a limit of several months is illogical.
An example for illustration: a mother gave birth to her first child three years ago. Both
pregnancy and birth giving went well and did not lead to any problems. A few weeks ago, the
woman gave birth to her second child. However, now she is diagnosed with a postpartum
disorder. As a result of this disorder, she kills both of her children. Would she have been
living in Australia, the provision on filicide would only be applied to the youngest child. After
all, the mother killed that child, younger than twelve months, due to disturbance of the
balance of her mind. However, for killing her three-year old child, she would be charged with
manslaughter or murder. After all, this child is not younger than twelve months, even though
the child was killed because of the same medical reason. This problem is where the New
Zealand limit of ten years comes in. Having a broader age limit provides the opportunity to a
lenient sentence for two offences which are basically the same.
Moreover, the age limit of ten years could be explained by procedural problems.
Killing a person is not always cold blooded murder. In some situations, for instance to defend
oneself, the murder can be justified. However, this differs from case to case. For instance
New South Wales offers some defences for murder which could be brought up during a trial.
Filicide is one of them.143 One must make a distinction between filicide as an offence and as
a defence. The defence of filicide is regarded as a partial defence. Where full defences have
the ability to acquit a person from the charge, this is not the case for partial defences. If
partial defences are successful, they do not acquit the defendant, but instead the verdict for
the homicide will be manslaughter instead of murder. This results in a different sentence.
Diminished responsibility is another partial defence. Of all Australian jurisdictions, New South
Wales is the only jurisdiction which has the offence/defence of filicide along to the defence of
diminished responsibility.144 However, New Zealand does not offer such combination: filicide
is the only possible partial defence.145 Therefore, the age limit of this provision might be a
reason to compensate the lack of other defences based on medical health.
§4.4 Conclusion
The British Filicide Act as known today has a rich history. Over the centuries, the view upon
this phenomenon changed, and so did its legislation. Though legislation existed before, it
was often not applied in a way as meant by the legislator. This led, among others, to the
abolition of the mandatory death penalty. As former colonies of the British, Australia and New
143 New South Wales Law Reform Commission 1997 (A).

145 The Law Commission 2005.
32
Zealand have a short ‘own’ history in filicide. The Infanticide Act 1938 (UK), Crimes Act 1900
(NSW) and Crimes Act 1961 (NZ) resemble each other, but despite the fact that both the
Crimes Act 1900 (NSW) and the Crimes Act 1961 (NZ) descent from the British provision,
they both followed their own paths. The wording of the New South Wales provision is nearly
identical to the wording of the British Act. This in contrast to New Zealand, who substituted
the main elements of the act by new, broader concepts. It can be said that the provision on
filicide in New South Wales contains three important elements. First, the woman who
committed the crime is the biological mother of the child. Second, the age limit of the child is
set on twelve months. Therefore, the victim must be younger than this age limit in order to
apply the provision on filicide. Third, the offence of filicide must have been committed
because of the mental state of the mother. The mental disturbance is a result of giving birth
or lactation, from which the mother has not yet fully recovered. The main differences of this
jurisdiction compared to New Zealand are the extension of the age of the child to ten years
and the inclusion of others than the biological mother as perpetrators (though not including
fathers). The aim of the New Zealand legislator was to maintain a logical interpretation of the
provision.
33
Chapter 5 Psychology of pregnancy and childbirth
Though the discussed provisions in three different jurisdictions have many differences, they
have one important feature in common: a psychological rationale. In this, the Dutch provision
is slightly different, since it speaks only of ‘fear of discovery of childbirth’, but Australia and
New Zealand provide in the same legal basis. The psychological rationales of these provision
are the subject of this chapter. Since postnatal psychiatric disorders are often assumed to
have a connection with filicide, the main focus will be on this topic. The first paragraph, 5.1,
explains three forms of disorders which could follow childbirth. Whereas mothers are known
to be able to suffer postnatal disorders, this is less known when it concerns fathers.
Therefore, paragraph 5.2 briefly explains the prevalence and risk factors of postnatal
disorders among fathers. Paragraph 5.3 explains the relevance of postnatal disorders to
filicide. A conclusion is given in paragraph 5.4.
§5.1 Postnatal psychiatric disorders

The period following childbirth can be described as having three forms. The first form is the
postnatal ‘blues’, which is a mild form of a mood disorder. Approximately 50% to 80% of
women who gave birth suffer this form of disorder within the first days after the child has
been born. This disorder is the result of the changes in hormones after childbirth and leads
to, among others, anxieties, confusion and tearfulness.146 This light form of disorder can last
two weeks up to eighteen months and can vary in intensity. In a minority of the cases, 10% to
40%, postnatal blues develops itself into a postnatal depression, the second form of the three
distinguished disorders.147
Postnatal depression occurs in fewer cases, however, the disorder is more severe
when compared to the postnatal blues. This disorder affects approximately 10% of the
women after childbirth. Symptoms of this mood disorder are similar to that of the postnatal
blues. However, feelings of inadequacy or inability to take care of the child148 or hysteria149
might occur. Unlike the baby blues, postnatal depression can occur weeks after birth.
The third and most dangerous form of mood disorders is postnatal psychosis or
puerperal psychosis. Out of 2000 women, this severe disorder affects one to two of them.150
It usually appears after approximately six weeks after the child has been born.151 Symptoms
of puerperal psychosis resemble that of schizophrenia and therefore medical help
146 Brennan 2007.

147 Flick 1994.
148 Brennan 2007.
149 Flick 1994.
150 Brennan 2007.
151 Flick 1994.
34
(hospitalization) is often required. The psychosis is characterized by loss of sense of reality,
hallucinations or delusions and homicidal or suicidal thoughts.152
The question of what causes these postnatal disorders leads to a lot of controversy.
Despite that, it is said that most literature recognizes three causes which could be possibly
related to the disorders. The first cause is not specifically related to the childbirth. Women
might be vulnerable and, as a result of that, develop psychological disturbances and anger.
The second cause is due to a change in hormones. This change is a result of the pregnancy
and the childbirth. The third cause which is proposed is that becoming a mother causes
mental stress. The social effect of this stress possibly leads to the disorder. What is assumed
to be the most plausible cause of the development of postnatal disorders is a combination of
the three causes combined with other socio-economic or financial factors.153
§5.2 Paternal postnatal disorders

For centuries, postnatal depressions have been associated primarily with mothers. However,
with the medical knowledge of today, this assumption is slightly changing.154 Almost all
research conducted on postnatal disorders is focused on the mother. Research which
include postnatal disorders at the father is scarce, but more scientist are beginning to explore
this area.155 Research has shown that a maternal postnatal disorder is one of the strongest
predictors for a paternal postnatal disorder. However, it is unknown how the two are exactly
related.156
Research has shown that, although less than mothers, fathers can suffer postnatal
disorders as well. Research on the prevalence of postnatal disorders on couples has shown
that, based on the 13-item Edinburgh Postnatal Depression Scale (EPDS), 27.5% of the
mothers and 9% of the fathers developed a depression in the first six weeks after birth and
25.7% of the mothers and 5.4% of the fathers developed a depressions in the first six months
after birth. Fathers were significantly more likely to be a case, if their partners were also a
case.157 Researches from Paulson and Blakemore158 and Cameron et al.159 showed that the
prevalence of postnatal depression is significant: 8% to 13% of the fathers develop postnatal
depression, in particular three to six months after birth.160
152 Flick 1994.

153 Flick 1994.
154 Biebel & Alikhan 2016.
155 Don 2012.
156 Gao & Wai-chi Chan & Mao 2009, Goodman 2004, Paulson & Bazemore 2010.
157 Ballard et al. 1994.
158 Paulson & Bazemore 2010.
159 Cameron & Sedov & Tomfohr-Madsen 2016.
160 Molgora & Fenaroli & Malgaroli 2016.
35
Among others, history of depression, a lack of social support, low satisfaction with the
relationship and, as mentioned before, maternal postnatal depression are risk factors for the
development of postnatal depression among fathers.161
§5.3 Relevance of psychology to filicide

Filicide and the effect of postnatal disorders is a controversial topic. Supporters of this theory
state that suffering a postnatal disorder enhances the risk of committing filicide. However,
opponents of the theory state that there is not enough proof for this connection and that in
cases of filicide, it was not the effect of birth giving which led to the homicide.162 Yet in 1969,
Resnick conducted research on this issue and found that mothers who commit filicide often
suffered depression, psychoses, suicidal thought and other mental health problems.163 A
precise number cannot be provided, but it is estimated that approximately one in seven
mothers suffer from some lighter form of postnatal depression.164 For the severe form of
puerperal psychosis, this occurrence is one to four women on every thousand.165
Up to now, research has not shown enough evidence to identify the relationship
between the mental disturbance of mothers and the occurrence of filicide. This was noted by
the Victorian Law Reform Commission, which states that ‘some would argue that ‘postnatal
depression’ is no different to other kinds of depression. Statistics on postnatal psychosis also
reveal that in most cases the woman had some history of psychiatric illness. Others argue
that the clear temporal connection between mental conditions and childbirth would seem to
suggest there is an association between the condition and birth.´166
The use of postnatal disorders can lead to problems when it is used as evidence in
criminal trials. Not only is a postnatal depression not the only motivation for filicide, it is also
associated with other factors than childbirth. Hatters-Friedman and Resnick argued that
postnatal depression might originate due to genetic factors, history of psychiatric
predispositions or socio-economic factors in which the mother lives in.167 When using
postnatal depression in court, it can be questioned whether it was caused by the childbirth or
by other pre-existing mental conditions. There is little known about the relationship between
mental disturbances as a result of childbirth and the occurrence of filicide within the first day
161 Goodman 2004, Wee et al. 2011, Boyce et al. 2007, Condon, Boyce & Corkindale 2004, Buist,
Morse & Durkin 2003, Paulson & Bazemore 2010.
162 Flick 1994.
163 Resnick 1969.
165 Linzer Schwarts & Isser 2007.
166 Victorian Law Reform Commission 2004, Robertson Blackmore et al. 2013.
36
to the first years after the child has been born. Therefore, determining the impact of severe
mental disturbances related to co-occurring factors remains an obstacle. 168
§5.4 Conclusion
Postnatal disorders are often mentioned in relationship to filicide. Three forms, ranging from
mild to severe, are distinguished in literature. The postnatal blues or baby blues is the
mildest form, which occurs in 50% to 80% of the cases. Up to 40% of them develop the more
severe form of depression, which affect approximately 10% of all mothers. One to two in
every 2000 mothers develop the most severe form of puerperal psychosis. With a wide range
of symptoms, women are not only a threat to themselves, but also to the child. In the worst
case this leads to the killing of the child. Though the postnatal effects on fathers lack
research, literature has shown that 8% to 13% of the fathers develop some form of postnatal
disorder as well.
The effects of disorders on filicide are topic of controversy. Researchers state that the
childbirth is not necessarily the prime factor which leads to the homicide. Therefore, it is
important to bear in mind that one must be careful with relating medical disturbances to
crimes.
168 De Bortoli & Coles & Dolan 2013.
37
Chapter 6 Victim’s perspective on punishment
Committing a crime is nearly indissoluble connected to receiving a punishment. In the
legislators’ vision, filicide is worth punishment. After all, the offence is punishable by law. But
how does society, and in particular a victim, approach this offence? This chapter focusses on
the point of view of the victim(s). The primary victim in this offence, the child, is not able to
benefit from such provisions, but this does not mean that the effect of these provisions is
completely missing. Punishment in criminal law serves multiple goals. In the past, prevention
and retribution were seen as the two main goals of punishment. Nowadays, restorative
justice receives more attention as goal as well.169 Despite that, it is not included in this
chapter. Reason for this is that the restorative justice theory is more used when it concerns
the aftermath of criminal trials instead of the written law. Paragraph 6.1 explains the first
goal; prevention. The purpose of retribution is discussed in paragraph 6.2. Finally, paragraph
6.3 concludes on this chapter.
§6.1 The relative punishment theory

Finding justification of punishment is as old as the punishments themselves. Remmelink
states that literature concerning this issue can be split in two main theories: the absolute- and
relative punishment theories.170
The relative punishment theory explains the justification of punishment by stating that
mankind should be guided when it concerns crimes. The philosopher Bentham explained that
the aim of punishment is to prevent people from committing a crime in order to reduce pain
for the victims (as a result of these crimes). This goal can be achieved by the risk of pain
(sentence) for the perpetrator. Feuerbach stated that punishment was a form of
psychological coercion. Any benefits of committing a crime can be reduced or removed when
a crime is punishable. People will reconsider the crime, which can lead to withdrawal from
the idea.171
Prevention and deterrence are often assumed to have the same meaning. Yet, there
is a slight difference. Prevention is a more comprehensive concept, in which deterrence
plays a role.172 Prevention can be split in general prevention and specific prevention. When
the aim of punishment is to prevent others (society) from committing the crime, one can
speak of general prevention. The punishment deters them when they consider committing a
crime. When taking a look at recidivism (committing an offence from the second time and
onwards), punishment can have a positive effect as well. By punishing the perpetrator, one
169 De Hullu 2015.

170 Remmelink, 1996, p. 893, 899.
171 Ten Voorde 2008.
172 Ten voorde 2008.
38
can prevent the person from committing the same crime in the future. In case it only
concerns the perpetrator, one can speak of specific prevention.173 The main difference in
effects can be best explained by stating that general deterrence is more a prevention by a
threat, while specific prevention might be the result of experiencing punishment by the
perpetrator.174 In conclusion, the interest of victims in prevention can be explained by two
reasons. First, they want to make sure that the perpetrator will not make new victims.
Furthermore, they want the perpetrator to learn from the harm he has done, in order to
prevent him from further crimes.
It is often believed that punishment and deterrence are positively related. One
believes that the harsher the punishment, the more it will deter crime. The deterrent effect of
punishment has been subject to many researches. However, most research has shown that
there is little or no evidence to support this statement.175 This was also concluded by the
National Research Council of America, which stated that threatening people with harsh
punishments, does not lead to discouragement of crimes.176
Filicide is punished by the law in which the severity of the punishment varies in
different jurisdictions. Thus, what relation does exist between those punishments and the
deterrent effect on filicide? The general feature of deterrence was that the perpetrator or
potential perpetrators would reconsider the crime. This rationale seems to be ridiculous when
concerning filicide. Killing one’s own child seems more of a spontaneous action in which the
perpetrator does not consider the crime. Therefore, the deterrent effect does not make sense
when it concerns filicide.177 It could be expected that the harshness of the penalty does not
affect the occurrence of filicide. When prevention is focused on the perpetrator in specific,
deterrence makes more sense, however, not to every type of filicide. In case of filicide as a
result of heavy abuse or neglect (see paragraph 2.4), it could be effective to punish the
perpetrator. This in contrast to the psychological types of filicide, in which deterrence would
have the same effect as described here above. Yet, also for these types of filicide
punishment could prevent future filicide.178 However, when this would be the rationale for
punishment, it would be more likely to include (medical) treatment in the sentence instead of
for example prison sentence.
173 Ten voorde 2008.

174 National Research Council 2014.
175 Doob & Webster 2003.
176 National Research Council 2014.
177 Spinelli 2003, p. 14.
178 Spinelli 2003, p. 15.
39
§6.2 The absolute punishment theory
In paragraph 6.1, the relative theory on punishment is explained. As noted in this paragraph,
the second theory is the absolute punishment theory. The rationale behind this theory is that
punishment can be justified because the perpetrator committed a punishable offence. The
punishment can be regarded as the retribution for the wrongdoing: pay-back. The retributive
theory is based on an old principle: a tooth for a tooth and an eye for an eye, which means
that the perpetrator receives punishment equal to the harm he has done.179
In contrast to the relative punishment theory, the theory of retributivism is looking
backwards. Instead of preventing the crime, this theory states that the crime already must
have happened.180 Rachels explains the retributive theory by considering four principles.
First, he argues that there must be guilt on the side of the perpetrator. Therefore, an innocent
person cannot be punished. Second, people should be treated equally, meaning that a
perpetrator must receive the same sentence for the same offence as other perpetrators who
commit the same offence. The third and one of the most important principles is
proportionality. This principle states that the perpetrator should be punished in proportion to
the harm he has causes by committing the offence. Although this principle can be tough to
apply in practice, it goes without saying that e.g. theft should not be punished with a lifetime
in prison and murder should not be punished with a fine of only a couple of euros. The last
principle explained by Rachels is the principle of excuses. When one has an excuse why he
or she should not be punished, they should not be punished or receive a milder sentence.
One can think of coercion or an accident.181
When this theory would be applied to the offence of filicide, the following can be
concluded. Retribution is the desire of society to punish the one that harms another human
being. For filicide, this would be the parent (or parental figure) harming the child. However,
one can argue that, of the above four principles, the principle of excuses might be violated
when it concerns filicide. It can be pointed out that a mother who kills her child because of
her mental state might have an excuse and is therefore not blameworthy. Spinelli outlines a
clear example in which excuse is the key issue. A woman who went to the doctor, telling she
is hallucination and is send home with the diagnosis of baby blues. Later, she killed her child
in a psychosis. When someone had stepped in earlier, she might not have killed her baby
boy.182
179Ten Voorde 2008.

180 Kant 1887.
181 Rachels 1997.
182 Spinelli 2003.
40
§6.3 Conclusion
The punishment of crimes can be approached from different points of view. On the one hand,
prevention might be the justification for punishment, while on the other hand wrongdoing
provides in this justification. When considered filicide in relation to prevention, it is unsure
whether or not punishment has the desired effect. Since many researchers have found no
solid evidence of a connection between the severity of punishment and the occurrence of
crimes, it has not been proved that the occurrence of filicide would reduce when punished
harsher. Furthermore, this offence is lacking preventive effects since the perpetrator does not
consider the crime before committing it. One can also argue that the type of (psychological)
rationale included in the filicide provisions discussed in this thesis, justifies a lenient sentence
since the perpetrator does not ‘deserve’ a harsh penalty because of her mental state.
However, prevention can be important for victims, to make sure the perpetrator learned from
his acts and will not make new victims in the future. Either way, the desired effects of the
filicide provisions depend on the approach of victims.
41
Chapter 7 Conclusion & Recommendation
This last chapter of this thesis concludes on this research. In paragraph 6.1, the research
question is repeated, along with a very brief description of what is used to provide an answer.
A comparison of the three jurisdictions of the Netherlands, Australia and New Zealand is
made in paragraph 6.2. This paragraph contains a summarizing overview of the filicide
provisions. The conclusion of the psychological view upon filicide is described in paragraph
6.3. These last two paragraphs lead to the answer on the research question, which is
explained in paragraph 6.4. Finally, a recommendation is provided on how the approach
towards filicide in the Dutch criminal justice system can be improved.
§7.1 Research question

The aim of this thesis was to provide an answer to the following research question: How
does the Dutch criminal law approach to filicide compare to that of Australia (New South
Wales) and New Zealand and which approach should be preferred from a victimological point
of view?
In order to provide a well-considered answer, existing literature and case law was
combined with the comparison of three jurisdictions. Furthermore, another scientific
discipline, namely psychology, contributed to a small part of this thesis.
§7.2 Filicide in the Dutch, Australian and New Zealand legal system
It can be concluded that the Dutch legal system approaches filicide quite differently when
compared to Australia and New Zealand. This statement is best explained by the comparison
of the three main elements in these provisions: the type of perpetrator, the age of the victim
and the rationale on which one will be charged with filicide instead of manslaughter or
murder.
The three jurisdictions included in this research all specify the offence to one type of
perpetrator: the mother. However, the New Zealand approach is slightly different in defining
‘mother’. The Netherlands and Australia both state that the biological mother must have
committed the offence. In New Zealand, it is explained that not only the biological mother can
benefit from this provision, but also others such as the legal guardian (not the father).
The main difference on which this research was based was the specified age of the
victims in the provisions. The Netherlands is the only country which does not have a fixed
limit for this age. Every child that has been killed ‘during or shortly after birth’ is included. The
current line of thought in doctrine is that this period lasts as long as the extraordinary frame
of mind of the mother is present. It is linked to the period the panic lasts. Australia extended
this age limit, when defining ‘newborn’ led to problems. By setting the limit on twelve months,
42
also babies of four weeks old could be included. For New Zealand, twelve months was not
enough. In the opinion of the legislator it was not logical that, based on the same disturbance
of the mind, the mother would be guilty of filicide towards one child and for murder on the
other, older child, in case the mental disturbance had caused the homicide of multiple
children.
Third, the rationale to apply the provision(s) on filicide are slightly different. A medical
explanation is used to excuse child homicide. Australia and New Zealand have the same
parent law, from which it can be derived that the balance of the mind must be disturbed
because of giving birth or lactation. A minor difference between the jurisdictions is that New
Zealand specifies that these effects might be the result of giving birth to any child, not just the
victim in the concerning case. The Netherlands does not necessarily focus on disturbance of
the mind, but it defines a narrower concept by stating that there must be fear of discovery of
the birth. It does not matter what caused the fear; when the woman acted as a result of that
fear, the provision will be applied. Thus a disturbance of the mind can cause the homicide,
but filicide provisions will only be applied when this disturbance leads to fear of the discovery
of the birth.
Worth mentioning is the different way of applying filicide provisions in Australia and
New Zealand, compared to the Netherlands. The Dutch legal system has only one way to
apply the filicide provisions as outlined by the law. The mother of the child will be charged
with either child manslaughter or child murder, which is penalised differently regarding the
prison sentence or the fine. Filicide as a defence is not possible; in case the elements of the
sections 290 or 291 DPC are not fully met, one can only use the (diminished) responsibility
as a defence. Australia and New Zealand both have the possibility to apply filicide provisions
as both an offence and a defence. When filicide is used as an offence, the prosecutor will
charge the defendant with filicide, with respectively a prison sentence of maximum 25 years
(NSW) and three years (NZ). However, both jurisdictions provide the opportunity to use
filicide as a defence. When the prosecutor charges the defendant with murder and during the
trial the defence can convince there is a case of filicide, the defendant can be found guilty of
manslaughter instead of murder, which reduces the sentence to respectively 25 years in
prison and a maximum of lifetime in prison. Both provisions provide in the possibility to acquit
the defendant due to reasons of insanity. Remarkable is that, of all jurisdictions, New
Zealand provides the lowest maximum prison sentence when used as an offence, but the
highest prison sentence when used as a defence.
43
Table 4: An overview of filicide provisions in the Netherlands, New South Wales and New
Zealand.
Jurisdiction Offence/Defence Perpetrator Age victim
The Offence Biological mother Not specified.
Netherlands ‘During or shortly after
birth’
Australia Offence/Defence Biological mother 12 months
New Zealand Offence/Defence Mother, which includes the defendant as 10 years
legal guardian
Jurisdiction Rationale Penalty

The Fear of discovery of the birth Child manslaughter
Netherlands 6 years or fine of maximum €16.740-
Child murder
9 years prison or fine of max €67.000-
Insanity
Not included183
Australia Disturbance of the balance of the mind by Offence filicide
- not having fully recovered from the effect of Maximum of 25 years prison
giving birth to that child
- reason of the effect of lactation Defence to murder
Manslaughter: maximum of 25 years
prison
Insanity
Not guilty
New Zealand Disturbance of the balance of the mind by Offence filicide
- not having fully recovered from the effect of Maximum of 3 years prison
giving birth to that or any other child
- reason of the effect of lactation, or by Defence to murder
reason of any disorder consequent upon Manslaughter: maximum of lifetime
childbirth or lactation, prison
Insanity
Acquittal
183The Netherlands included insanity in the DPC. However, it is not included specifically in the filicide
sections of the DPC.
44
§7.3 Psychology of pregnancy and childbirth
The mental state of the mother is subject of discussion when regarded in the context of
filicide. In literature it is argued that on the one hand, postnatal disorders can lead to the
commission of filicide, but on the other hand it is argued that postnatal disorders and filicide
have a marginal- or no connection at all. Yet, this connection is essential, since it can be a
justification for the application of filicide provisions and thus a lenient sentence.
Nevertheless, postpartum disorders are not unique in justifying lenient sentences.
Assuming this connection exists would lead to the question when it is likely to assign
filicide to a postnatal disturbance. As described in this thesis, postnatal disorders exist in
multiple forms with a difference in occurrence and a difference in symptoms. However, when
using postnatal disorders as a justification, then why are fathers (or other caregivers)
excluded from filicide provisions? After all, literature has shown that fathers can suffer
postnatal disorders as well.
Assuming that there is no connection between postnatal disorders and the
occurrence of filicide leads to the question whether or not filicide can be justified. The offence
is based on the medical situation of women, so when the connection would not exist, this
would harm the justification for filicide as known today. From a point of view of the child, this
would be a disgrace, since their perpetrator is punished more lenient, perhaps without a valid
justification.
§7.4 Answer to the research question

Having done this research, what can be concluded on the question which approach
(jurisdiction) should be preferred? The answer to this depends on the question whether one
prefers to protect the rights of the child or that of the defendant.
When one prefers to protect the rights of the victim(s), this could be argued from two
sides. On the one hand, one can argue that the Dutch legal system should be preferred. This
provision is the narrowest and thus in benefit of the child, since its right to life will be equally
treated as anyone’s other life. Relatives could argue that the killer of the child should be
punished to the most. Although Australia provides in the harshest penalty, this way of
conviction is hardly used. As discussed in this thesis, harsher penalties do not automatically
lead to a reduction in the occurrence of filicide. Furthermore, the perpetrator is often a family
member of the victims and thus it could not be desirable to apply a severe prison sentence.
One can prefer to protect the rights of the defendant. It could be argued that it is not
human to punish the perpetrator for acts she might not have deliberately committed. When
regarded from this point of view, the filicide provision of New Zealand has the preference.
This provision has the broadest scope and thus more opportunities to provide leniency
45
towards the perpetrator. First, it goes beyond the biological mother and thus other mothers
can benefit from this provision as well. Furthermore, it is not required to have the mental
disturbance due to birth giving of the victim of the case, this is extended to any child. Finally,
it provides in the most lenient sentence when used as an offence: a maximum of three years.
§7.5 Recommendation
I would recommend the Dutch government to reconsider the provision on child homicide in
the Netherlands. This is explained by the points of view from four possible victims of these
provisions.
From the point of view of the child, provisions on filicide should be abolished. Children
have no benefits of this provision at all. First, although infants had a lower status in the
past184, there is no use of remaining this thought in the contemporary child-focused society.
By prescribing milder penalties, the provision(s) suggest(s) that the life of an infant is worth
less than that of any other person.185 Its boundary has been drafted by setting a strict age
limit. Furthermore, one can argue that strict provisions can prevent the occurrence of filicide.
From the viewpoint of general and specific prevention, harsher penalties may be preferred by
victims (although it could be questioned whether in practice penalties actually have an effect
on for instance recidivism). Since the Dutch provisions only apply to the mother who kill hers
child out of fear, I have my doubts on the preventive effects. I wonder if a mother, who is
capable of killing her own child, is aware of the (legal) consequences her act will have.
From the point of view of the father, provisions on filicide should be abolished or
extended. The provisions are only available for the mother, which stereotypes both fathers
and mothers. In the judicial system, men have often been treated differently. Men were seen
as bad when they committed such crimes, while women were treated as being mad for
committing the same crimes.186 However, with today’s knowledge, it is safe to say that this
point of view should be changed. As described in this thesis, fathers can suffer the same
disorders as mothers and thus should be treated the same (unless a different treatment is
justified). Preserving the current provisions could, though arguable, lead to discrimination of
men.187
From the point of view of the mother, provisions on filicide should be retained. The
mother is the most important subject in filicide provisions, since it is her act and her mental
state which is subject to the charge. The current law provides milder penalties towards
184 Damme 1978.

185 Although this is not necessarily true, it is suggested by literature. See for example Brennan (2007)
and Damme (1978).
186 Wilczynski 1997.
187 Smart 2013.
46
women suffering heavy fears. Although the connection with filicide is arguable, there is a
slight possibility that mental disturbances lead to child killing. From this point of view it only
seems logical to be lenient towards the mother in certain circumstances. It is more a
recognition of the complex medical and social situations in which mothers find themselves
after they gave birth to a child. However, the existence of filicide provisions has a downside,
since it leads to stereotyping as described here above. A woman killing her child was seen
as mad, which enforces the premise that women are ‘irrational, weak, inferior and biologically
incapacitated individuals who are totally dictated to by their reproductive organs’.188 By
retaining the filicide provisions, women will continue to benefit from a sex-specific treatment
and the perception of women as mad will not vanish.
From the point of view of relatives of the primary victims, it can be concluded that they
have conflicting interests. On the on hand, severe punishment can prevent future victims
(though this is arguable) and provide them retribution. On the other hand, the perpetrator is
often a beloved family member. Therefore, relatives might prefer milder sentences or another
sentence than prison sentence. Therefore, the current provisions should be removed or
changed.
Based on these four points of view, I would suggest the following. The legislator
should abolish the sections of the DPC which concern filicide. A possibility would be to place
it elsewhere in the DPC, however, it could also be removed completely from the DPC. My
recommendation is to establish a connection with section 39 DPC, in which a person will not
be held responsible for the crime he or she committed due to defective development or a
pathological disorder of his intellect.189 This way, the problems as described within the three
views here above can be minimalized. First, the assumption that an infant’s life is worth less
can be changed. There will be no provision that sets a boundary to age and thus child
homicide will be treated equally as regular homicide. Second, there will be no discrimination
towards the father. The milder penalties will not be applied only to the subject of the
provision, in case of filicide the mother, but can be applied as well to the father who is
mentally disturbed (or possibly even to others than the biological parents). This will change
the concept of stereotyping as well, since fathers will be acknowledged as vulnerable as well.
Finally, from the point of view of the mother, this suggestion will not change the
consequences dramatically. Since section 39 DPC provides a diminished (or no)
responsibility as well, the mother can benefit leniency when meeting the requirements of this
section, which includes the mental state.
188Flick 1994.
189Niet strafbaar is hij die een feit begaat, dat hem wegens de gebrekkige ontwikkeling of ziekelijke
stoornis van zijn geestvermogens niet kan worden toegerekend. [Translation K.A.]
47
Filicide will remain an issue as long as mankind exist. It is up to the legislator how to
deal with it.
48
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The Netherlands
Rb. ‘s-Gravenhage 26 November 2004, NL:RBSGR:2004:AR6514.
Rb. Noord-Holland (location Haarlem) 24 October 2006, ECLI:NL:RBHAA:2006:AZ0775
Rb. Overijssel (location Almelo) 30 November 2009, ECLI:NL:RBALM:2009:BK4760.
Rb. Midden- Nederland (Location Utrecht) 12 July 2010, ECLI:NL:RBUTR:2010:BN0936.
Rb. Noord-Nederland (location Leeuwarden) 3 May 2011, ECLI:NL:RBLEE:2011:BQ3315.
Rb. Limburg (location Maastricht) 27 September 2011, ECLI:NL:RBMAA:2011:BT2687.
Rb. Noord-Holland (location Alkmaar) 12 May 2016, ECLI:NL:RBNHO:2016:3947.
Rb. Noord-Holland (location Haarlem) 24 October 2016, ECLI:NL:RBHAA:2006:AZ0774.
Hof Arnhem-Leeuwarden (location Leeuwarden) 11 October 2012,

ECLI:NL:GHLEE:2012:BX9891.
Hof ’s-Hertogenbosch 12 December 2013, ECLI:NL:GHSHE:2013:6001.
Parket HR, 9 January 2007, ECLI:NL:PHR:2007:AZ3307.
Australia
R v Hutty (1953) VLR 338.
New Zealand
R v P (1991) 2 NZLR (CA).
United Kingdom
O’Donoghue (1927) 20 Cr App R 132.
57
Appendix
Appendix 1
Source: West, 2007
58
Appendix 2
# Year Correspondi ECLI Court Perpetrator Verdict (Prison)sentence Age of the victim # Victims
ng case
1 2002 #22 Unknown190 Court Rotterdam Mother Child murder 4 years ‘Newborn’ 1
2 2002 ECLI:NL:RBAMS:2002:AF07 Court Amsterdam Mother Child manslaughter 12 months + DUHO Shortly after birth 1
17
3 2004 #4, #23, #29 NL:RBSGR:2004:AR6518 Court ’s-Gravenhage Mother (Complicity to) Child 3 years + DUHO Immediately after birth 1
manslaughter
4 2004 #3, #23, #29 NL:RBSGR:2004:AR6514 Court ’s-Gravenhage Father Complicity to murder 7 years Immediately after birth 1
5 2006 #6 NL:RBHAA:2006:AZ0774 Court Haarlem Mother Child manslaughter 3 year + DUHO Immediately after birth 4
by keeping them under
water
6 2006 #5 ECLI:NL:RBHAA:2006:AZ07 Court Haarlem Father Complicity to child Acquittal Unknown 4
75 manslaughter*
7 2008 NL:RBGRO:2008:BD0507 Court Groningen Mother Child murder 3 years of which 1,5 Immediately after birth 1
year conditional and (when she noticed the
a probation of 2 child was alive)
years.
8 2008 NL:RBMAA:2008:BD5264 Court Maastricht Mother Child murder/Child Acquittal No evidence the child 1
manslaughter* had been alive
9 2009 NL:RBALM:2009:BK4760 Court Almelo Mother 2x Child manslaughter 1 year and 6 months Immediately after birth 2
+ DUHO when the baby started to
cry (for both)
10 2010 NL:RBALK:2010:BN8013 Court Alkmaar Mother Child manslaughter 8 months juvenile ‘Newborn’ 1
detention191 with a
probation of 2 years
11 2010 NL:RBBRE:2010:BL8559 Court Breda Mother Child manslaughter Unconditional Immediately after giving 1
Juvenile DUHO192 birth
12 2010 #24 ECLI:NL:RBZUT:2010:BL52 Court Zuthpen Mother Child manslaughter 18 months from which Immediately after giving 1
39 6 conditional birth in the toilet
13 2011 #26 NL:RBMAA:2011:BT2687 Court Maastricht Mother Murder/ Child murder/ Acquittal No evidence the child 3
Child manslaughter* had been alive
14 2011 #25 NL:RBLEE:2011:BQ3315 Court Leeuwarden Mother Child manslaughter and 3 x 12 years “newborn” 4
Child murder
15 2012 NL:RBSGR:2012:BW2455 Court ’s-Gravenhage Mother Child manslaughter 8 months with After showering for 5 to 1
3 years probation 10 minutes after giving
birth
190 Prosecution number 10/090007-01.

191 Jeugddetentie. [Translation K.A.]
192 PIJ-maatregel. [Translation K.A.]
59
# Year Correspondi ECLI Court Perpetrator Verdict (Prison)sentence Age of the victim # Victims
ng case
16 2012 ECLI:NL:RBBRE:2012:BV96 Court Breda Mother Acquitted for child 13 months from which After giving birth, took 1
64 manslaughter, verdict for 12 conditional with 2 the car and left the child
abandoning year probation + 240 in a public place
hours of community
service
17 2013 #27 NL:RBGEL:2013:1807 Court Gelderland Mother Child murder 2 years and 2 years The day of giving birth 1
DUHO
18 2014 NL:RBMNE:2014:4603 Court Midden- Mother Child murder/Child Acquittal No evidence the child 2
Nederland manslaughter* had been alive
19 2014 NL:RBROT:2014:3332 Court Rotterdam Mother Acquitted for Child 9 months from which Immediately after birth 1
murder/child manslaughter, 3 months conditional by not taking care
verdict for abstaining care and 2 years probation
20 2014 ECLI:NL:RBGEL:2014:3826 Court Gelderland Mother Child manslaughter 12 months conditional Immediately after giving 1
with a probation of 5 birth by wrapping the
years. child
21 2016 ECLI:NL:RBNHO:2016:3947 Court Noord-Holland Mother Child manslaughter 3 years from which 1 Baby 1: 3 days old 3
conditional with a (according to the
probation of 10 years mother)
Baby 2: after several
hours
Baby 3: not known if had
been alive
# Year Correspondi ECLI Appellate Court Perpetrator Verdict Sentence Age of the victim Number
ng case of victims
22 2002 #1 NL:GHSGR:2002:AF0712 Appellate Court ‘s- Mother Child murder 4 years “newborn” 1
Gravenhage
23 2005 #3, #4, #29 ECLI:NL:GHSGR:2005:AU Appellate Court ‘s- Father Complicity to murder 9 years Immediately after birth 1
Gravenhage
2469
24 2010 #12 ECLI:NL:GHARN:2010:BN8 Appellate Court Mother Child manslaughter 12 months conditional Immediately after 1
479 Arnhem with a probation of 2 giving birth in the toilet
years
25 2012 #14 NL:GHLEE:2012:BX9891 Appellate Court Mother 4x Child manslaughter 3 years + DUHO “newborn” 4
Leeuwarden
26 2013 #13 NL:GHSHE:2013:6001 Appellate Court ’s- Mother Acquitted from child 8 months No evidence the child 3
Hertogenbosch murder/child homicide, had been alive
verdict for losing the
bodies
60
27 2014 #17 NL:GHARL:2014:5061 Appellate Court Mother Child murder 7 months + 2 years The day of giving birth 1
Arnhem- DUHO
Leeuwarden
28 2015 #30 ECLI:NL:GHARL:2015:9462 Appellate Court Mother Attempt to child Acquittal No evidence the child 2
Arnhem-Leeuwarden manslaughter had been alive
# Year Correspondi ECLI Supreme Court Perpetrator Verdict Sentence Age of the victim Number
ng case of victims
29 2007 #3, #4, #23 ECLI:NL:HR:2007:AZ33 Supreme Court Father Complicity to murder Affirmation of the Immediately after birth 1
verdict in second
07 instance
30 2016 #28 ECLI:NL:HR:2016:2761 Supreme Court Mother Child manslaughter Referred to second - 2
instance
*Charges instead of verdict, since the perpetrator was acquitted.
61

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15-6-2017

A comparative analysis of the Dutch, Australian and New Zealand

Katinka Ariëns LL.M.

§1.1 Introduction of the subject

10 Rb. Overijssel (location Almelo) 30 November 2009, ECLI:NL:RBALM:2009:BK4760.

§1.2 Research goals and research questions

What is filicide and can different types of filicide be distinguished?

15 Sections 290-291 DPC.

What psychopathology is related to filicide?

What is the perspective of victims on punishment?

§1.4 Outline of the research

§2.1 The history of filicide in general

20 Kaye, Borenstein & Donnelly 1990.

22 A. Steiner, ‘Consilium’, The Encyclopaedia of Ancient History, DOI:

§2.2 Definitions of the killing of a child

§2.3 Statistics on filicide

Table 1: Epidemiology child homicide, Netherlands 2009-2014 (N=74).38

Table 2: Victim characteristics child homicide in the Netherlands, 2009-2014(N=86).39

36 Section 1:233 of the Dutch Civil Code (DCC).

40 Liem & Haarhuis 2015.

§2.4 Classifications of filicide

44 Liem & Haarhuis 2015. [Translation K.A.]

§3.1 The Dutch history of filicide

This section outlined that:

scaffold, http://www.oxfordlearnersdictionaries.com (Search for: scaffold).

§3.2 Dutch Penal Code

Section 290 DPC outlines that:

69 It is unknown what the legislator had meant by such circumstances.

Section 291 DPC outlines that:

§3.2.1.2 During or shortly after birth

82 1 September 1886, Stb. 1881, 35.

§3.2.1.3 Fear of discovery of the childbirth

§3.2.1.4 Execution of a decision taken before the childbirth

§3.2.2 Participation in filicide

Section 292 DPC outlines:

98 Rb. Overijssel (location Almelo) 30 November 2009, ECLI:NL:RBALM:2009:BK4760.

§3.3 Filicide in practice

102 De strafverminderingsgrond is gelegen in de bedoelde bijzondere gemoedstoestand, die uit zijn

106 Rb. ‘s-Gravenhage 26 November 2004, NL:RBSGR:2004:AR6514, Rb. Noord-Holland (location

Noord-Nederland (location Leeuwarden) 3 May 2011, ECLI:NL:RBLEE:2011:BQ3315.

§4.1 The Australian and New Zealand history of filicide

109 The Australian Trade Commission (Austrade), 2016.

116 Lansdowne 1987.

Section 22A (1) Crimes act 1900 outlines that:

Section 22A (2) Crimes act 1900 outlines that:

Section 22A (3) Crimes act 1900 outlines that:

§4.2.2 The elements of section 22A Crimes Act 1900

131 R v Hutty [1953] VLR 338.

§4.3 New Zealand

Section 178 (1) Crimes Act 1961 outlines that:

137 Victorian Law Reform Commission 2004, par. 6.39.

Section 178 (2) Crimes Act 1961 outlines that:

Section 178 (3) Crimes Act 1961 outlines that:

§4.3.2 The elements of section 178 Crimes Act 1961

142 R v P (1991) 2 NZLR (CA) at 116.

143 New South Wales Law Reform Commission 1997 (A).

§5.1 Postnatal psychiatric disorders

146 Brennan 2007.

§5.2 Paternal postnatal disorders

152 Flick 1994.

§5.3 Relevance of psychology to filicide

168 De Bortoli & Coles & Dolan 2013.

§6.1 The relative punishment theory