Middlesex University Research Repository An open access repository of Middlesex University research http://eprints.mdx.ac.uk Milne, Emma (2017) Suspicious perinatal death and the law: criminalising mothers who do not conform. PhD thesis, University of Essex. [Thesis] Final accepted version (with author’s formatting) This version is available at: https://eprints.mdx.ac.uk/22816/ Copyright: Middlesex University Research Repository makes the University’s research available electronically. Copyright and moral rights to this work are retained by the author and/or other copyright owners unless otherwise stated. The work is supplied on the understanding that any use for commercial gain is strictly forbidden. A copy may be downloaded for personal, non-commercial, research or study without prior permission and without charge. 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See also repository copyright: re-use policy: http://eprints.mdx.ac.uk/policies.html#copy Suspicious perinatal death and the law: criminalising mothers who do not conform Emma Milne A thesis submitted for the degree of Doctor of Philosophy Department of Sociology University of Essex 2017 Acknowledgements ii Acknowledgements There are a number of people who have made this PhD possible due to their impact on my life over the course of the period of doctoral study. I would like to take this opportunity to offer my thanks. First and foremost, my parents, Lesley and Nick Milne, for their constant love, friendship, care, commitment to my happiness, and determination that I will achieve my goals and fulfil my dreams. Secondly, Professor Jackie Turton for the decade of encouragement, support (emotional and academic) and friendship, and for persuading me to start the PhD process in the first place. To Professor Pete Fussey and Dr Karen Brennan, for their intellectual and academic support. A number of people have facilitated this PhD through their professional activity. I would like to offer my thanks to all the court clerks in England and Wales who assisted me with access to case files and transcripts – especially the two clerks who trawled through court listings and schedules in order to identify two confidentialised cases for me. Professor Sally Sheldon, and Dr Imogen Jones who provided advice in relation to theory. Ben Rosenbaum and Jason Attermann who helped me decipher the politics of abortion in the US. Michele Hall who has been a constant source of support, information and assistance. Viv and Ivan Newman for their help deciphering the English language. The following people have touched my life and made my achievements possible, I thank you all for your love, friendship and support, I’m here because of you: Andrew, Ruth, Kay, Sarah, Marie, Lexi, Lynsey, David and Simon (it might be polite for you to stop reminding me of your contribution!), Cat, Becky, Hannah, Nisan, Shane and The Kluges (you know who you are). Abstract iii Abstract How should the criminal justice system respond to women who conceal their pregnancies, resulting in the death of the foetus or baby? It is widely expected that a pregnant woman will act in the best interests of her unborn child, including submitting herself to medical examination. However, these expectations are not always met and this causes particular problems for vulnerable women who experience crisis pregnancies. In such situations women have hidden their pregnancies, given birth in secret, and are suspected of causing the death of the baby. Alternatively, their actions while pregnant, and during labour and delivery are deemed to have culminated in the stillbirth of the child. While there are no accurate statistics, every year approximately 7 babies/foetuses are known to die in such circumstances during the perinatal period. Through a detailed examination of transcripts from sentencing hearings of criminal cases heard 2010-2014, I explore how and why women involved in such cases have come to be dealt with through English criminal law. There appears to be a strong desire to criminalise women who are perceived to fail to put the foetus first. Criminal justice professionals use out-dated offences to capture these perceived criminal wrongs. I conclude that if the state wishes to punish women for harm caused to the foetus, then the enactment of foetal protection laws would be appropriate. However, as critical assessment of such law in the United States of America illustrates, such laws could have dramatic consequences on the rights of women. The cases analysed in this thesis provide a fascinating lens through which to examine a range of broader issues including, the expectation that women should put the needs of the foetus before their own, and the assumption that motherhood starts at conception and is natural and inherent. Table of contents iv Table of contents ACKNOWLEDGEMENTS II ABSTRACT III TABLE OF CONTENTS IV LIST OF FIGURES AND TABLES VIII ABBREVIATIONS AND DEFINITIONS IX CHAPTER 1 INTRODUCTION 1 AIM OF THE STUDY 2 INTENTION OF THE PHD 4 KEY AREAS OF DEBATE AND CONCEPTS 8 CRISIS PREGNANCY 9 NEONATICIDE 10 MYTHS OF MOTHERHOOD 18 CHAPTER 2 METHODOLOGY 28 SELECTION OF METHOD 28 DATA ACCESSED 36 SUMMARY OF CASES 40 ACCESSING COURT TRANSCRIPTS 41 AMERICAN CASE STUDY 44 ANALYSIS 46 LIMITATIONS 49 ETHICS 50 CONCLUSION 52 Table of contents v CHAPTER 3 SOCIAL REGULATION OF MOTHERHOOD 53 GOVERNING PREGNANCY 54 RISK: THE IMPACT ON WOMEN 64 CONCEALED/DENIED PREGNANCY 71 NEONATICIDE 75 CONCLUSION 83 CHAPTER 4 LEGAL REGULATION OF MOTHERHOOD 87 THE IMPLICATIONS OF CONCEALMENT 87 PROCURING A MISCARRIAGE 99 THE GAP BETWEEN SPONTANEOUS BIRTH AND LEGAL PERSONHOOD 107 INFANTICIDE 109 CHILD CRUELTY 119 HARM TO THE FOETUS 122 CONCLUSION 127 CHAPTER 5 GENDER EXPECTATION AND CRISIS PREGNANCY IN THE COURTROOM 129 CONFORMING TO THE MYTHS OF MOTHERHOOD 130 CRISIS PREGNANCY AND CULPABILITY 139 FIONA 140 TANYA 142 HANNAH 146 SALLY 150 THE ‘NORMALITY’ OF PREGNANCY 152 CONCLUSION 157 Table of contents vi CHAPTER 6 PUNISHING MOTHERS WHO DO NOT CONFORM 160 FOETUS AT RISK 162 FAILURE AS A MOTHER TO PUT THE FOETUS FIRST 168 PREVENTING THE FOETUS/CHILD FROM LIVING 172 CONCEALMENT OF BIRTH 186 UNPROVEN HOMICIDE 187 IMPROPER DISPOSAL OF A BODY 189 HIDING PREGNANCY AND BIRTH 193 FAILURE TO REGISTER A BIRTH 195 HINDERING A CRIMINAL INVESTIGATION 197 CONCLUSION 201 CHAPTER 7 PREGNANCY, POLITICS, RIGHTS AND LAWS IN AMERICA 205 FOETAL PROTECTION LAWS 207 CASE STUDIES 217 FETICIDE 218 RECKLESS HOMICIDE 223 CHEMICAL ENDANGERMENT 229 IMPACT 241 CONCLUSION 249 CHAPTER 8 CONCLUDING DISCUSSION 252 IMPLICATIONS OF RESEARCH 255 ROLE OF LAW 257 FUTURE DIRECTION OF THE LAW 262 REVISITING PERCEPTIONS OF MOTHERHOOD 269 Table of contents vii IMPLICATIONS FOR FUTURE RESEARCH 271 BIBLIOGRAPHY 273 APPENDIX 1 LIST OF CASES IDENTIFIED DURING FIRST STAGE OF DATA COLLECTION 304 APPENDIX 2 ACCESS TO COURT TRANSCRIPTS EMAIL 1 310 APPENDIX 3 ACCESS TO COURT TRANSCRIPTS EMAIL 2 311 APPENDIX 4 SUMMARY OF CASES 313 APPENDIX 5 CDC GUIDELINES ON ALCOHOL-EXPOSE DURING PREGNANCY 319 List of figures and tables viii List of figures and tables List of figures FIGURE 1 CONCEALMENT OF BIRTH RECORDED CRIME FIGURES 1989 TO 2013/14. ...................................................... 97 FIGURE 2 CENTERS FOR DISEASE CONTROL AND PREVENTION GUIDANCE ON ALCOHOL-EXPOSE DURING PREGNANCY, AS FIRST PUBLISHED. ........................................................................................................................................... 319 List of tables TABLE 1 OFFENCES CURRENTLY RECORDED AS HOMICIDE, VICTIMS ONE DAY OLD OR LESS 2002/03 TO 2015/16. .............. 14 TABLE 2 POLICE RECORDED DATA OF THE OFFENCE CONCEALING AN INFANT DEATH CLOSE TO BIRTH. ................................. 15 TABLE 3 RATES OF SUSPICIOUS PERINATAL DEATHS KNOWN TO THE AUTHORITIES. .......................................................... 16 TABLE 4 SCRS OBTAINED IN DATA COLLECTION ........................................................................................................ 37 TABLE 5 COST OF COURT TRANSCRIPTS .................................................................................................................. 44 TABLE 6 OFFENCE CONCEALMENT OF BIRTH IN ENGLAND AND WALES: POLICE RECORDED DATA, OFFENCE FIRST CHARGED AND REACHING A FIRST HEARING AT THE MAGISTRATES’ COURT, DEFENDANTS PROCEEDED AGAINST AT MAGISTRATES’ COURTS, AND DEFENDANTS FUND GUILTY AT ALL COURTS. ................................................................................ 98 TABLE 7 LIST OF CASES IDENTIFIED DURING FIRST STAGE OF DATA COLLECTION. ............................................................ 304 Abbreviations