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Concealment of Birth: Time to Repeal a 200-Year-Old “Convenient Stop-Gap”?

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Abstract

Feminists have long argued that women who offend are judged by who they are, not what they do, with idealised images of femininity and motherhood used as measures of culpability. The ability to meet the expectations of motherhood and femininity are particularly difficult for women who experience a crisis pregnancy, as evident in cases where women have been convicted of concealment of birth. The offence prohibits the secret disposal of the dead body of a child, to conceal knowledge of its birth. Traditionally used to prosecute women suspected of killing their newborn children, analysis of court transcripts suggests the offence is also used to punish women who fail to meet expectations of motherhood. This paper analyses three contemporary cases in light of the historical origins of the offence, illustrating the legacy of prejudice against ‘deviant’ mothers. Finally, it questions the continued existence of this archaic offence.

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Notes

  1. Offences Against the Person Act 1861, s 60; R v Rosenberg [1906] 70 JP 264.

  2. Since 2000 only one man was convicted of the offence alongside the birth mother. All other convictions have been of the birth mother (Milne 2017).

  3. In 2017 a woman was jailed for 1 year (Corken and Naylor 2017).

  4. Concealment was excluded, despite the offence containing the same flaws identified with the statute more generally as the offence “raise[ed] issues going well beyond the law of offences against the person” (2014, 53–54).

  5. OAPA, s 58; Abortion Act 1967. See Sheldon (2016).

  6. In R v Berriman [1854] 6 Cox CC 388 and R v Hewitt, R v Smith [1866] 4 F & F 1101 it was ruled that a child born before the seventh gestational month would be unlikely to be born alive and so concealment had not been committed. Medical advances have resulted in the point of viability in the UK being classified as 24 gestational weeks. As such, while there is no legal authority on this point, it is probable that the law of concealment would not come into effect prior to this point in pregnancy. This assessment would be in line with the legal definition of a stillbirth (Still-Birth (Definition) Act 1992, s 1). If the foetus dies before being fully born prior to the pregnancy reaching 24 gestational weeks this is considered to be a miscarriage rather than a stillbirth. As it is not necessary to register a miscarriage, it seems unlikely that concealment could be applied in such instances of foetal death.

  7. R v Brown [1870] LR 1 CCR 244. See also R v Waterage [1846] 1 Cox CC 338; R v Sleep [1864] 9 Cox CC 559; R v George [1868] 11 Cox CC 41; R v Cook [1870] 11 Cox CC 542.

  8. R v Higley [1830] 4 C & P 366; R v Morris [1848] 2 Cox CC 489.

  9. OAPA, s 58.

  10. Infant Life (Preservation) Act 1929, s 1.

  11. Massachusetts General Law c 272, s 22. The offence has not been committed if the child is born to a married woman.

  12. Ethical approval for the study was obtained from the Department of Sociology at the University of Essex and the research conformed to the guidelines outlined in the British Sociological Association's Statement of Ethical Practice.

  13. Review evaluating individual and agency practice where a child has died, and abuse or neglect are known or suspected.

  14. Lack of information to locate the cases meant three were excluded, and a further four were excluded as the transcripts were unavailable due to the tapes being destroyed.

  15. In the other four cases, women were convicted of Infanticide, Procuring a Miscarriage and Child Cruelty. A further case of concealment was identified in the initial sample but could not be included due to the tapes of the transcripts having been destroyed.

  16. Due to the analysis being conducted over all seven cases, it is not possible to present the themes identified only in relation to concealment cases, as the themes would have limited meaning outside the context of the wider project.

  17. Abortion Act 1967, s 1(1)(a).

  18. A common law offence discussed below.

  19. I was only granted permission to view the judge’s sentencing remarks for Sally’s sentencing hearing. Therefore, I have fewer details of this case than Hannah’s and Lily’s.

  20. It is estimated that, in England and Wales, approximately 280 pregnancies are concealed/denied each year, with at least seven of those cases resulting in the death of the child around the time of birth (Milne 2017).

  21. There is dispute in the literature as to whether a person can be unaware of their pregnancy, and therefore whether it is indeed a denial or a conscious decision to conceal. Analysis of this literature would suggest that concealment and denial cannot be easily separated, and that women may experience both during pregnancy (Amon et al. 2012; Beier et al. 2006; Brezinka et al. 1994; Spinelli 2001). I find it more helpful to refer to the experience as ‘concealed/denied pregnancy’, as this captures the blurred boundaries in terms of terminology and the lived experience.

  22. With thanks to Professor Sally Sheldon for this important point.

  23. Marshall goes on to argue that women who decide to give up a child for adoption are often confronted with arguments that they will regret their choice, or that the choice is not natural. On this basis, Marshall argues that women’s decisions are perceived as inauthentic and therefore impermissible. While the circumstances of giving a child up for adoption are different from the process through which a pregnancy is concealed/denied, and I do not wish to conflate the two, there are striking similarities in terms of societal responses to women’s choices in these circumstances; perceptions that concealment/denial of pregnancy, or giving a child up for adoption, for selfish reasons stem from ideologies relating to motherhood and women’s roles as mothers, see Douglas and Michaels (2005) and Silva (1996).

  24. R v Poullton [1832] 5 C&P 329; R v Enoch [1833] 5 C&P 539; R v Reeves [1839] 9 C&P 25; R v Brain [1834] C&P 349.

  25. House of Lords Sessional Papers (1714–1805). A Bill, intituled, an Act for the further prevention of malicious shooting, stabbing, cutting, wounding, and poisoning, and also the malicious setting fire to buildings; and also for repealing a certain Act, made in the first year of the late King James the First, intituled, an act to prevent the destroying and murthering of bastard children, and for substituting other provisions in lieu of the same. v1. 3 December 1802 to 1 July 1803. 117–120.

  26. No records exist of discussions that led to the changes to the Bill; Jackson (1996) concludes from his research that the precise origins of the final construction of the 1803 status are unknown.

  27. Offences Against the Person Act 1828.

  28. Hansard [HC Deb] 05 May 1828, Home Secretary, Sir Robert Peel. vol 19, col 353.

  29. OAPA, s 60. No debate about the change in the offence occurred in Parliament.

  30. Criminal Law Act 1967, s 2 13(1)(a).

  31. R v Clark [1883] 15 Cox CC 171.

  32. Woolmington v DPP [1935] AC 462; [1936] 25 Cr App R 72, at 95. European Convention on Human Rights, Art 6(2).

  33. Jones and Quigley (2016) make this point in relation to the offence of preventing lawful and decent burial, which they argue has also been used to criminalise suspected but unproven homicide.

  34. However, it does come with its difficulties, as argued by McGlynn et al. (2017) in their analysis of using voyeurism laws to facilitate prosecution of defendants engaged in revenge porn.

  35. This point is made with full awareness that gender is performative (Butler 2010), and that people who identify as male, or do not prescribe to the gender binary, can and do become pregnant (Halberstam 2010).

  36. See further Edwards (1984).

  37. This does not refer to the biological function of bearing and caring for a child, but how society has interpreted and given meaning to the activity (Arendell 2000).

  38. The influence of Lily’s abusive partner on her offending was perceived as further evidence of her good character.

  39. Re F (In Utero) (Wardship) [1988] 2 FLR 307; Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) (British Pregnancy Advisory Service and others intervening) [2014] EWCA Civ 1554.

  40. St. George’s Healthcare N.H.S. Trust v S and R v Collins and Others [1999] Fam 26; [1998] 3 WLR 936.

  41. Ibid, at 950.

  42. R v Knight [1860] 2 F&F 46.

  43. An offence of homicide only occurs if it is proven that the defendant was neglectful towards the child once it had been completely born and obtained legal personality, R v Izod [1904] 20 Cox CC 690. While not subject to criminal law, pre-birth neglect can result in child protection plans being implemented by the local authority (Masson and Dickens 2015).

  44. Infant Life (Preservation) Act 1929, s 1. Procuring a miscarriage criminalises the intentional ending of the pregnancy.

  45. Jones and Quigley (2016) outline the wrongfulness of inappropriate disposal of a body, and the criminal offences that capture this wrongful behaviour.

  46. Births and Deaths Registration Act 1953, ss 1–2 and 36, punishable by a fine of up to £200.

  47. R v Purcy [1934] 24 Cr. App. R. 70.

  48. R v Williams [1991] 92 Cr App R 158. See Jones and Quigley (2016) for detailed analysis of how both offences could be applied to individuals who conceal a dead body.

  49. Supra n 39.

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Acknowledgements

I would like to thank Imogen Jones, Angus Nurse and Sally Sheldon, and FLS anonymous reviewers and editorial board for their extremely helpful and insightful comments on previous drafts. The article was supported by a doctoral studentship awarded by the Consortium for the Humanities and the Arts South-East England (CHASE) Doctoral Training Partnership, funded by the Arts and Humanities Research Council (Grant No. AH/L503861/1).

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  1. Department of Criminology and Sociology, Middlesex University, The Burroughs, Hendon, NW4 4BT, UK

    Emma Milne

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Milne, E. Concealment of Birth: Time to Repeal a 200-Year-Old “Convenient Stop-Gap”?. Fem Leg Stud 27, 139–162 (2019). https://doi.org/10.1007/s10691-019-09401-6

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