Infanticide

It has been suggested that infanticide and abortion may be underreported in tribal societies because of the presence of missionaries and colonial governments who deem these practices to be illegal (Divale and Harris 1976). Reports of infanticide prosecution by colonial governments are virtually absent in HRAF records. When babies are born at home, infanticide laws are seldom enforceable.

Ethnographic reports of abortion and infanticide are considerably more frequent than reports of punishments for either action, suggesting that tribal law was frequently permissive about both practices. A study of seventy-eight societies found no information on punishment of abortion for sixty-seven of them, and information on punishment of infanticide was so rare that it could not be coded. The absence of punishment may be viewed as recognition of parental rights to dispose of unwanted infants. Some tribal societies explicitly recognize this right until the cord is cut, until after the birth ceremony, or in a few societies, until the infant is weaned (Minturn 1989a).

Although infanticide was a capital offense in many countries for centuries, there is evidence that courts frequently took measures to avoid or mitigate punishment and that a variety of beliefs supported acquittals. In many courts, infanticidal mothers might successfully plead insanity. Eighteenth-century courts greatly extended the scope of the insanity plea by citing, as reason for dismissal of infanticide cases, the belief that pregnancy itself may make women deranged (Boswell 1988). As infanticide became more frequent, courts became more lenient, particularly when defendants were poor, unwed mothers.

Penalties also varied according to the method of killing. In the early Middle Ages, infanticide by exposure, a widespread practice of poor parents, was not a criminal offense. Overlaying was punished by one year on bread and water and two more years without wine or meat. This three-year penance, which became the standard punishment for overlaying, was shorter than the penalty for the accidental killing of adults (Kellum 1974).