Mother's murder of a newborn baby
The corpus delicti provided for in Article 100 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity against a person.
The composition of this crime belongs to the privileged. The urgency of combating crimes that infringe on the life of a child lies in the fact that the state is called upon to protect the life and health of a child as a future citizen of the country.
Previously, the existing criminal legislation classified the murder of a newborn child by a mother as murder (infanticide), and these actions were qualified under Article 88 of the Criminal Code of the Kazakh SSR. For the first time, the legislator specified the independent composition of the crime "murder by the mother of a newborn child" in the Criminal Code of the Republic of Kazakhstan dated 07/16/1997 (entered into force on 01.01.1998). Today, the Criminal Code of the Republic of Kazakhstan dated 07/03/2014 (effective from 01.01.2015) is in force, which also contains the corpus delicti "murder of a newborn child by a mother" provided for in Article 100 of the Code.
The separation of a crime into a separate structure is related to the personality of the subject and the circumstances of its commission. If infanticide can be committed by any subject of the crime and for any motive, then according to art.100 of the Criminal Code of the Republic of Kazakhstan, the mother of a newborn child is solely guilty. She can only be a woman who has borne and given birth to a child, who has reached the age of 16 and is sane. For example, if the perpetrator has not reached the age of sixteen, then there is no such crime.
The object of the crime under Article 100 of the Criminal Code of the Republic of Kazakhstan is the life of a newborn child.
The objective side of the crime is characterized by an act in the form of actions (infliction of fatal injuries, strangulation, drowning) or inaction (refusal to feed, leaving in the cold, etc.), the consequence in the form of the death of a newborn child and a causal relationship between them.
Childbirth is a long process that begins at the moment of contraction of the uterine muscles (when the baby is still in the birth canal) and ends at the moment the placenta leaves the mother's body. The duration of labor for first-time mothers can reach nine hours.
Artificial childbirth begins with the opening of the amniotic membranes and ends with the extraction of the baby through a tissue incision.
In medicine, a child is recognized as a newborn only after being expelled from the mother's body and showing signs of life (independent breathing, palpitations, muscle contractions, etc.), until then it is recognized as a fetus.
Distinguishing between killing a fetus (which in itself does not entail criminal liability) and causing death to a newborn is a difficult task, since the Criminal Code of the Republic of Kazakhstan does not contain a legal definition of the moment from which the criminal protection of human life begins.
There is no consensus on this issue in the science of criminal law. There are at least six approaches of criminologists to determining the moment of the beginning of criminal law protection of life:
1) The beginning of human life should be recognized as the independent life of a human being outside the mother's body after the complete expulsion of the baby from the mother's womb, and the beginning of life can be judged by the moment of the manifestation of various signs that are not limited to any one, for example, the beginning of heartbeat, breathing, movement, etc.;
2) The beginning of human life should be recognized as the moment of the complete expulsion of the baby from the mother's womb at the beginning of breathing;
3) The beginning of human life should be recognized as the moment of the appearance of any part of the child's body from the mother's womb, for example, the cutting of the head, the appearance of a handle or leg of a child- the prevailing scientific point of view today;
4) The beginning of human life should be recognized as the moment when a child is born from the mother's womb, even if it does not show signs of independent extrauterine life.;
5) The beginning of human life should be recognized as the moment when the birth process begins;
6) The beginning of human life should be recognized as the moment when the child (fetus) is ready to continue life outside the mother's womb — after 22 weeks of pregnancy.
The time period specified in the article "during childbirth" begins depending on the chosen point of view on the issue of the beginning of criminal law protection of life and ends at the moment of the release of the placenta.
The qualification of the culprit's act as "the murder of a newborn child by a mother in the subsequent period after childbirth" also requires the definition of a specific time interval. The time interval immediately after delivery corresponds to the early postpartum period of the mother (2-4 hours after the end of labor), after which the maternity hospital is recognized as healthy in the absence of complications. There are also opinions in the literature according to which the time interval "immediately after delivery" corresponds to 24 hours after the end of labor. In the case of the murder of a newborn child by a mother during childbirth or in the subsequent period, the deed is always qualified under Article 100 of the Criminal Code of the Republic of Kazakhstan, regardless of the time of the murder intent.
When considering cases of this category, it is necessary to be guided by the explanation given in paragraph 25 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 05/11/2007 No. 1 "On the qualification of certain crimes against human life and health" that when qualifying the murder of a newborn child by a mother, it should be borne in mind that responsibility under this article comes in the case of murder the mother of her newborn child during childbirth or immediately after childbirth or in the subsequent period.
When qualifying an act under Article 100 of the Criminal Code of the Republic of Kazakhstan, the newborn child should be taken into account, which is determined in accordance with pediatric criteria by a forensic medical examination. The murder of a child after the expiration of his newborn period cannot be qualified under Article 100 of the Criminal Code, responsibility in such cases comes under Article 99 of the Criminal Code.
As can be seen from this explanation, courts need to take into account the newborn baby, which is determined in accordance with pediatric criteria by a forensic medical examination.
The subjective side of the crime is characterized by guilt in the form of direct or indirect intent. The murder of a newborn child by a mother is always only an intentional crime.
A traumatic situation is a set of objective negative circumstances (for example, lack of livelihood, loss of breadwinner, etc.) and negative emotions caused by these circumstances in the mother. Negative circumstances must necessarily be related to pregnancy, childbirth, and the fate of the mother and child.
A traumatic situation is a set of signs, both the objective side and the subjective side of the composition. A traumatic situation in such cases should be recognized as significant circumstances that negatively affect the mental state of the woman who gave birth (for example, the father's rejection of the child, the condemnation by relatives of the birth of a child out of wedlock, the refusal of the child's father or the woman's relatives to provide financial assistance for the existence of the mother and child, etc.).
A woman's mental disorder after giving birth to a child is characterized, as a rule, by negative processes in her mental activity (depression, feelings of fear, manic moods, etc.). A mental disorder does not necessarily have to be caused by childbirth or pregnancy, since this is a biological, not a social circumstance. To establish the sanity or insanity of a woman in connection with these disorders, it is necessary to conduct a forensic psychological and psychiatric examination.
However, in order to qualify the act as guilty, as the murder of a newborn child by the mother in the period following childbirth, a conclusion of a forensic medical examination on the recognition of the deceased as a newborn is necessary.
It seems that in cases of this category, expert opinions on whether the child was a newborn at the time of the murder are mandatory.
The victim can only be a newborn child. In medicine, a child is considered to be born (from the moment of birth until one month of life). Physiological childbirth is considered in obstetrics as a process, therefore, a child who is born but is still connected to the mother by the umbilical cord can be considered a newborn. It seems that such a child is indicated in the disposition of Article 100 of the Criminal Code, which refers to murder during childbirth.
When considering cases in this category, it should be borne in mind that the concept of a newborn in medicine is defined in different ways. In forensic medicine, a newborn is considered to be a child within one day from the moment of birth. In obstetrics - within one week, in pediatrics – up to one month from the moment of birth. Taking into account the division of the child's age into the specified periods is necessary to more accurately determine the type of murder, during childbirth or in the subsequent period.
In law enforcement practice, it is not difficult to define the concept of "during childbirth," which cannot be said about the definition of "in the subsequent period."
The qualification of the act depends on the correct definition of the "subsequent period": either as murder (Article 99 of the Criminal Code) or the murder of a newborn child by a mother (Article 100 of the Criminal Code).
It seems that such a "subsequent period", which makes it possible to consider a child as a newborn, should be considered from the first day after birth to one month.
The murder of a mother of her child after a long time after giving birth does not give grounds to qualify what she did under art.100 of the Criminal Code. Responsibility in these cases comes under art.99 part 2 of the Criminal Code.
Taking the life of a child in the womb is not murder, but constitutes termination of pregnancy, and a woman who voluntarily terminated her pregnancy is not subject to criminal liability.
The crime is considered completed from the moment of the newborn's death.
The courts do not clearly indicate which circumstances are recognized as a traumatic situation, whether the murder occurred during childbirth or the subsequent period, whether the murder occurred in a traumatic situation or a mental disorder.
Example: By the verdict of the Maktaralsky District Court of the South Kazakhstan region dated 04/10/2015, the actions of convicted T., born in 1991, were qualified under Article 100 of the Criminal Code of the Republic of Kazakhstan as the murder of her newborn child by a mother, both during childbirth and in the subsequent period, committed in a traumatic situation.
According to the circumstances of the case, she committed the murder immediately after giving birth, when she threw a live male baby into a toilet cesspool, and the live-born and viable baby died there from hypothermia.
Similarly, by the verdict of the Ural City Court of the West Kazakhstan region dated 03/19/2015, K.'s actions, born in 1995, were qualified as the murder of her newborn child by a mother, both during childbirth and in the subsequent period, committed in a traumatic situation. In this case, the murder was committed immediately after giving birth and in a traumatic situation, when she gave birth in the toilet and threw away a viable baby in a garbage bag.
In both of these cases, the actions of the convicts were qualified as the murder of a mother of her newborn child, both during childbirth and in the subsequent period. Unnecessarily, both convicts are charged with murder "during childbirth."
In addition, K.'s criminal act was subject to qualification under Article 97 of the Criminal Code of the Republic of Kazakhstan (07/16/1997), and not under Article 100 of the Criminal Code of the Republic of Kazakhstan (07/03/2014), since the murder of a newborn child by a mother in this case took place on December 8, 2014. The court violated the requirements of Article 5 of the Criminal Code of the Republic of Kazakhstan, according to the rules of which, the criminality and punishability of an act are determined by the law in force at the time of the commission of this act. The time of commission of a criminal offense is the time when a socially dangerous act (inaction) is performed, regardless of the time when the consequences occur.
The sentencing is motivated and also corresponds to the general principles of punishment. Both were sentenced to restriction of freedom because they had no previous convictions, admitted guilt, repented, are positively characterized by their place of residence, and have a permanent place of residence.
In both cases, the representatives of the victim in the case were the district (city) education departments.
The concept of "the subsequent period after childbirth" requires the definition of specific time limits for the correct qualification of the perpetrator's act: either under art.99 of the Criminal Code (murder) or art.100 of the Criminal Code (murder by the mother of a newborn child)..
When considering cases of this category, it is necessary to be guided by the explanation given in paragraph 25 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated 05/11/2007 No. 1 "On the qualification of certain crimes against human life and health" that in order to establish the sanity or insanity of a woman in connection with a traumatic situation or mental disorder, a forensic psychological and psychiatric examination is necessary..
When qualifying an act under Article 100 of the Criminal Code of the Republic of Kazakhstan, the newborn child should be taken into account, which is determined in accordance with pediatric criteria by a forensic medical examination.
Due to the existence of surrogacy, in order to properly qualify the acts of the perpetrators, a regulatory regulation of the definition of the subject of the crime provided for in Article 100 of the Criminal Code of the Republic of Kazakhstan (surrogate mother and biological mother) is required
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