Written by: Averroes
(1.0) Current Issues
In Malaysia, it was reported that 18,000 teenage girls in Malaysia get pregnant each year and 25% from them, 4,5000 cases involve pregnancies out of wedlock, citing the Ministry of Health's 2015 statistics. Malaysia's society still view teenage pregnancy as remorseful, instead they are targeted by society.
They believe that having a child out of wedlock brings shame and embarrassment to her family and society, therefore they have no choice but to end the lives of their babies. Another statistic reveals that 100 babies are dumped every year in Malaysia. Even the topic of safe sex is not properly discussed by using contraceptives or condoms, and considered a taboo in schools and the public.
As the peribahasa goes, "Biar mati anak, jangan mati adat'.
Recently, a 15-year old girl stabbed her newborn son to death and was charged for murder. In most jurisdictions, it could instead be considered as infanticide. The child was a result of rape. However, several parties express their concerns that the charge of murder should be switched to infanticide.
Charging her for murder is grave injustice as she was a victim of rape and a victim herself. She had to receive backlash from society and given psychological support during her pregnancy. It worsens her mental state and increased the risk to mental illness. She was already depressed during that time.
Therefore, should her charge of murder be switched to infanticide instead? Let's find out.
(2.0) Legal Analysis
(2.1) Provision
Section 309A of the Penal Code (PC) outlines the elements which are;
(i) Any Woman
(ii) Willful act or ommission
(iii) causes death of her newly-born child
(iv) Not fully recovered from effect of giving birth... balance of her mind was disturbed
(v) Charge of murder switched to infanticide
Section 309B of the PC outlines the punishment which are;
"At the discretion of the Court, imprisonment for a term which may extend to twenty years and shall also be liable to fine."
(2.2) Caselaw
(2.2.1) Defences
All of the cases below, the defence pleaded to switch charge of murder to infanticide and called psychiatric and and medical experts to prove that at time of act or omission, the accused was in a state of 'imbalance of mind'. Section 324 of Criminal Procedure Code (CPC) allows to call for psychiatric witness to evaluate and observe the accused condition.
The defence of unsound mind can also be applied for charge of murder, as seen under section 84 of the PC and the case of PP v. Muhamad Suhaimi Bin Abdul Aziz [2002] 5 MLJ 233 for hallucination and depression for a charge of murder.
(2.2.2) Infanticide
In Public Prosecutor v Zamihiyah [1987] 2 MLJ 649, the prisoner throwed her only child aged 2 years old out of a moving car. She suffered from puerperal psychosis for 2 months after the birth. Her diseases which caused her to act.
She pleaded guilty to the charge under section 309A of the PC and was later sentenced for punishment under section 309B of PC. The court changed the charge of murder to infanticide. This was because of her disease and that she waited 8 years to have a child and lost them.
Also, the prisoner was already imprisoned for 3 years, 2 months and 19 days before this. Hence, the court did sentence her to prison, but the said 3 years, 2 months and 19 days was considered the same as her imprisonment for infanticide.
That would hypothetically mean she already completed her imprisonment and was set free after the court was adjourned.
In Public Prosecutor v Norazwani bt Mohd Noh [2017] MLJU 776, the accused was charged for murder under section 302 of the PC by throwing her baby out of her 18th level home. The defence, stated that the accused was not in her right mind and was hallucinating when the offence was committed.
She was not aware of her act. The court accepted the defence and found that she was unsound mind. She was unable to determine whether her act of murder was committed against the law. The court acquitted her and ordered under section 348 of CPC that she placed at Hospital Bahagia Ulu Kinta, Perak at the pleasure of the YDPA.
She was not convicted under section 309A of PC and not sentenced under section 309B of PC to any imprisonment. The defence counsel proved the defence of unsound mind under section 84 of PC.
At the time of birth, it was the third time that it was born out of wedlock, it led to extreme depression and anxiety. She had heard voices telling her about the death and asked her to drive recklessly on the road. She also suffered from epilepsy and sudden unconsciousness.
In Public Prosecutor v Sri Rahmadini [2021] MLJU 2242, the 21 year old Indonesian woman was accused and charged for murder under section 302 of the PC by throwing her newborn baby out the toilet window at her Hostel in Hentian Kajang, Selangor. She gave birth inside the toilet.
The baby was not making any sound or moving. When her housemates knocked on the door, she was confused and threw the baby out. The umbilical cord was still intact.
However, the defence testified that the accused suffered from depression with symptoms of Adjustment Disorder with Depressed Mood, hence fulfilling the elements of infanticide under section 309A of PC. Court found that the accused committed infanticide rather than murder.
The accused had 'imbalance of mind' and adjustment disorder with depressed mood and poor coping skills. The accused also suffered from pre-eclampsia. Therefore, the accused is sentenced to 5 years of imprisonment. The act was impulsive, unplanned and there was no concealment of evidence.
She was depressed when her Nepali boyfriend was missing and was sent back to his country after his employment contract expired. Her illness is difficulty in handling or adjusting to sources of stress and major altering changes to life.
The child was born out of wedlock, she was in a poor social economic status, unmarried which contributed to her short-term adjustment disorder with depressed mood. She felt anxious, worried about the child, her future and hopeless at work, could not sleep and unable to concentrate.
(3.0) Conclusion
In such cases, most of the time, mothers who cause the death of their child are not pre-meditated and done impulsively and without rational thinking. They usually suffer mental illnesses in given situations or circumstances.
It usually involves mothers raped or given birth out-of-wedlock from their boyfriends who fail to take responsibility in raising a family or promise to get married. Therefore, it is wise to give the lightest sentence to the mother or send her to a psychiatric hospital for care until she recovers.
(4.0) References;
Salleh Buang. (February, 2022) Calling for justice in teen mum's case. Retrieved from, https://www.nst.com.my/opinion/columnists/2022/02/773098/calling-merciful-justice-teen-mums-case
Daily Express (January, 2019) 25pc of 18,000 teen pregnancies in Malaysia out of wedlock: Study. Retrieved from, http://www.dailyexpress.com.my/news/130099/25pc-of-18-000-teen-pregnancies-in-malaysia-out-of-wedlock-study-/
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