Murder of a newborn by a mother: concept and corpus delicti, judicial practice and statistics, article and punishment under the Criminal Code of the Russian Federation

Features of the crime

Article 106 of the Criminal Code, within the framework of which a person guilty of killing a newborn is held accountable, is very laconic and does not contain any subtleties of committing this type of illegal act directed against human life.
The designation of such an article as privileged is due to the constant increase in the number of crimes committed against the life and health of a newborn child. And if previously various accompanying circumstances (mental state during childbirth, poor financial situation) were considered a mitigating circumstance in case of murder, now the application of such a norm is impossible.

Concept

The murder of a newborn child by its mother is a crime in which the mother takes the life of her newly born child. Responsibility for such a criminal act is provided for in Article 106 of the Criminal Code of the Russian Federation.

This crime has a separate element and entails less severe penalties applied to the perpetrator, due to significant hormonal and, as a result, emotional changes in the body of a pregnant woman.

Important! Under this article, not only the actions of the mother are subject to punishment, but also her inaction (refusal to feed the child).

Extenuating circumstances

The murder of a newborn child by a mother is considered committed under mitigating circumstances if at least one of three criteria is met:

the crime was committed during or immediately after childbirth;
the mother is subject to mental trauma;
The woman in labor is in a state of mental disorder that does not preclude sanity.

For the first condition, the legislator indicates, according to forensic medicine, that the child should be no more than a day old, since it is during this period that the mother is in a serious psychophysical condition and is not able to understand the meaning of her actions and manage them, unless the contrary is proven.

For the other two murders under mitigating circumstances, it is important that a psychotraumatic situation can arise before and after childbirth, as a result of the accumulation of negative emotions that the woman cannot cope with due to a malfunction in the psyche. In this regard, she cannot control and predict her actions, as well as their possible consequences.

Qualification and corpus delicti

Subject of a criminal act

The perpetrator of such an illegal act can only be the mother of a newborn child.
However, this article also defines the possibility of participation in the commission of a crime by an accomplice or instigator of murder (the father of a newborn). If the murder of a child was committed by another person, but even with the consent of his mother, then the crime is qualified according to the provisions of Article 105 of the Criminal Code (murder of a person who is in a obviously helpless state for the criminal).

Corpus delicti

Despite the fact that Article 106 of the Criminal Code of the Russian Federation does not provide for the division of the crime and the applicable penalties into separate subparagraphs, this unlawful act has 4 separate elements.

Murder committed during childbirth.
Murder immediately after childbirth.
Murder committed in conditions where there is a psychotraumatic situation.
A murder committed by a mother who was in a state of mental disorder in which her sanity is not excluded.

Attention! It is worth remembering that if all the elements of an unlawful act were not met, then this crime is classified as murder of a minor, which entails an increase in the amount of punishment applied to the perpetrator.

Criminal legal characteristics

This crime should not be confused with infanticide, as this concept is broader. In this case, the objects of the crime, subjects, age characteristics and the subjective side may differ. The crime has recently been classified as a privileged act.
The legislator recognizes a newborn as a child under four weeks of age. This is the first condition of the crime, which relates to the personality of the murdered person. If an attack was committed on a stillborn child, then the act is assessed as an attempt on a worthless object, according to neonatology.
The second condition regarding the signs of the objective side is the timing implied in the phrase “immediately after childbirth.” Obviously, we are not talking about days or even hours. The article describes two time categories - immediately and later.
The killing of a newborn by a mother later in time is expressed as one hour after birth until the newborn is four weeks old, anything less than this time is an immediate homicide.
A mother who killed a child more than a month after the end is classified under Article 105 - murder.
The third condition determines the personality of the mother. The subject of this article is a woman-mother who has reached 16 years of age. The legislator pays special attention to the mental state of the mother, using the phrase “psychotraumatic situation”, “mental disorder” in the article.
It is assumed that during and immediately after childbirth, a woman is in a state of severe mental overload, which reduces her ability to recognize the social danger of her actions and manage them, and this principle forms the basis of the article.
This condition is considered similar to limited sanity and also manifests itself in the postpartum period. The condition does not arise at once, but accumulates in the mother against the background of negative emotions against the background of the negative impact of mental stress. Taking into account the traumatic situation is the main condition of this article.
Earlier we talked about the presumption of severe mental stress during and after childbirth, which the legislator assumes. However, if in a particular case it turns out that the birth went smoothly and did not cause noticeable mental disorders in the mother, but nevertheless the mother, for certain reasons, killed the child before or during childbirth, then the act should be qualified on a general basis, according to Article 105 of the Criminal Code of the Russian Federation Federation is like murder.
Murder during and immediately after childbirth can be committed only by action (strangulation, hitting the child on the head), and at a later time also by inaction (refusal to feed, leaving the child without help).
Let's consider the subjective side of killing a newborn. A crime can be committed with direct or indirect intent, either suddenly or with premeditated intent.
The official commentary states that the emergence of a murder plot before childbirth should be considered by the court and affect the punishment, regardless of the chosen qualification.
The murder of a newborn child by a mother is a crime of moderate gravity.

Murder during childbirth

As statistics show, the wording “during childbirth” is used quite rarely in practice due to its controversial nature.
In particular, the difficulty lies in the fact that before its birth, a child in the mother’s womb is considered a fetus, and criminal law does not provide for liability for the murder of a fetus. Among criminologists, there are several opinions regarding exactly what moment can be considered the birth of a child:

Complete expulsion of the fetus from the mother’s womb, the appearance of a set of signs indicating independent existence.
Complete expulsion of the fetus from the mother's womb, the appearance of breathing.
The appearance of part of the fetus from the birth canal - this is the prevailing opinion and is most often used in court proceedings.
Emergence from the womb, even in the absence of signs confirming the possibility of independent existence.
The beginning of labor.
The moment when a child can exist outside the mother (it is believed that this ability occurs as early as 22 weeks of pregnancy).

Murder immediately after childbirth

As a rule, the interval after childbirth is considered to be 2-4 hours after the completion of labor, that is, from the moment the placenta is completely expelled from the mother’s body.
If during this period of time doctors are unable to identify any abnormalities, then the woman is considered healthy. In some cases, a period of 24 hours is considered. Consequently, if the murder was committed after 24 hours from the birth of the baby, this unlawful act is classified under the article - murder of a minor.

Murder committed in a psychologically traumatic situation

In the event of such an unlawful act, responsibility for the crime is in no way associated with any narrow periods of time. Statistics show that a traumatic situation can occur in the following time periods:

Before giving birth.
During labor.
Some time after the birth of the child.

Of course, childbirth is a process that is difficult for the child’s mother to understand at first. In addition, after it, the woman will have to constantly take care of the newborn. And if in total there are any family or household problems, all this can negatively affect the mother’s mental state.

Murder of a newborn child by a mother: qualification problems

This article discusses the main aspects of the criminal legal content of such a category of crime as the murder of a newborn child by a mother. The author also analyzes the main problems of qualification of this type of crime.

Key words : newborn child, traumatic situation, murder.

In the Russian Federation, the most dangerous and serious crimes should be recognized as attacks on human life, especially against a child. Violence against children can be considered one of the serious problems of our society. Modern criminal legislation provides for liability for the murder of a mother of her newborn child. This type of murder is contained in Article 106 of the Criminal Code of the Russian Federation and is a privileged offense.

An analysis of this norm indicates three situations in which liability arises under Article 106 of the Criminal Code of the Russian Federation, namely: the murder by a mother of a newborn child during or immediately after childbirth, in a psychotraumatic situation and in a state of mental disorder that does not exclude sanity.

In the first case, it is important to determine that the crime is committed during the specified time period (during or immediately after childbirth). In this situation, the presence of a special mental state in the mother is not necessary. Therefore, even if a woman planned the murder in advance, this will not affect her qualifications in any way. The legislator explains this mitigation of responsibility by the fact that after childbirth a woman is not always able to perceive the newborn person as an independent living being, but continues to feel him as a source of pain and suffering.

When a mother kills a newborn child in a psychotraumatic situation, the legislator does not associate responsibility with such a short period of time. A psychotraumatic situation can arise before childbirth, during and some time after. It must have a direct connection with pregnancy, childbirth, social factors, as well as the fate of the mother and child. The mitigating role in the commission of a crime here will be played not so much by the situation itself, but by the mental trauma that it directly causes.

In the case of a mental disorder that does not exclude sanity, a person cannot fully account for his actions (inaction) or cannot fully control his behavior. The circumstances that led to a state of disorder that does not preclude sanity can arise regardless of pregnancy and childbirth and, unlike a traumatic situation, are not of a social, but of a biological nature.

This criminal act, according to criminal law, is punishable by restriction of freedom for a term of two to four years, or forced labor for a term of up to five years, or imprisonment for the same term.

The object of the crime is the life of a newborn child for a period of up to one month. The murder of an older child is qualified under paragraph “c” of Part 2 of Article 105 of the Criminal Code of the Russian Federation.

The objective side of this crime is expressed in causing the death of a newborn child through action (for example, suffocation or infliction of wounds and bruises) or inaction - leaving the newborn without help and feeding [1, p. 38].

It should be noted that in this composition the subject of the crime is special. Only the mother of the injured child who has reached the age of sixteen can act as such a subject. The commission of murder by another person, even at the request of the mother, is charged on general grounds.

It should be noted that all women may be at risk, due to a biological factor. But, in accordance with research results published by the Academy of the Investigative Committee of the Russian Federation, the most typical subjects of these crimes are currently women who are not legally married, do not work, have previous convictions, suffer from alcohol and drug addiction, and lead an antisocial lifestyle [2, p. . 118].

The most common reasons for the commission of murder by the mother of a newborn child are the woman’s inability to raise a child alone, as well as the low social and material level of families.

It should also be noted that the process of qualifying this act can be difficult. The thing is that the disposition of Article 106 of the Criminal Code of the Russian Federation contains a whole complex of terms that are not fully disclosed. For example, in the legislation of the Russian Federation there is no legal concept of “newborn”. There are several scientific approaches to studying this phenomenon. The most common point of view is that the neonatal period is the time from the first seconds of a person’s birth until the moment the child’s body adapts to normal environmental conditions. On average it lasts 28–30 days. In obstetrics, this period is determined by one week, and in forensic medicine, the neonatal period is determined by one day [3, p. 74].

Another problem with the application of this article is the fact that the norm does not establish a specific period of time during which a child could be killed. Therefore, it would be advisable to establish the exact time, namely: “murder during childbirth or immediately after it, that is, within 24 hours.”

Thus, this issue continues to be controversial, since uniform criteria, both in legal and medical science, have not yet been defined.

Theorists highlight another significant problem contained in this norm. As already noted, in some cases the crime under analysis may be committed with premeditated intent, in a normal state, and not as a result of mental changes. This circumstance will not affect the qualification of the act. We can say that such regulation of the norm contradicts generally accepted moral principles. This point of view is confirmed by the fact that such murders, as a rule, are committed in cold blood, with particular cynicism. The majority of women who committed the murder of newborn children did not register their pregnancy, hid the pregnancy from others until the birth, gave birth independently in home (domestic) conditions, and after the birth and the murder itself, they took measures to hide the corpse of the newborn child [4, p. 2].

Therefore, when investigating criminal cases, important attention should be paid to the time of occurrence of intent. In my opinion, bear responsibility under Art. 106 of the Criminal Code of the Russian Federation can only be carried out by the mother of a newborn child, whose intent to kill arose suddenly and in the presence of a psycho-emotional or psycho-traumatic state. In other cases, the act must be qualified under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.

In conclusion, it is necessary to note a significant increase in the number of murders in this category. This indicates that this norm does not fulfill its purpose for general prevention, as well as the need for a more in-depth study of the problems of combating these crimes. In addition to tightening the law, it is advisable to carry out work to prevent crime. It is necessary to improve social guarantees to support families and single women who decide to become mothers, implement programs to work with families at risk, and provide measures to provide specialized medical care (including psychological) to women during pregnancy, during and after childbirth.

Literature:

Krivoshein P.P. Murder by a mother of a newborn child // Criminal law. Scientific and practical journal, M., ANO “Legal Programs”, No. 3. 2005. P. 38.
Dyadyun K.V. Murder of a newborn child by a mother: problems of distinguishing from illegal abortion // Materials of the III All-Russian scientific and practical conference “Current problems of jurisprudence in modern Russia”. Yoshkar-Ola, 2013. P. 118.
Grebneva N. N. Responsibility for the murder of a newborn child by a mother // International Journal of Experimental Education. 2021. No. 6–1. P. 74.
Asatryan D. A. On the issue of qualifying the murder of a newborn child by a mother // Humanitarian Research. 2021. No. 7

A crime committed in a state of mental disorder that does not preclude sanity

This unlawful act can only be recognized under the combination of the following conditions:

The child is considered a newborn - no older than 1 month.
The mother has been diagnosed with mental illness.
The woman is sane.

If the murder of a child occurred after he reached the age of one month, such a crime cannot be considered privileged and entails liability under Article 105 of the Criminal Code.

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Article 105. Murder of the Criminal Code of the Russian Federation