A number of bloggers have been drawing attention to the grotesque piece of proposed legislation in Virginia, which would have required all ‘fetal deaths’ to be reported to authorities within three days (the medical certificate had to be completed within 24 hours; in the case of a death without medical attendance the woman would have to report to law enforcement agencies within twelve hours), with a penalty of a fine of up to $2500 or up to a year in prison.
These bloggers and their commenters have discussed various implications of this proposal. I just want to explain why, as an early modernist who studies crime, and women’s history, it sent a particularly nasty shiver down my spine.
PZ Myers called it ‘medieval’, which is wrong. (A comment I haven’t got round to sending to Pharyngula yet: “Dear PZ, much as I enjoy this blog, I wish you and your readers would stop using ‘medieval’ as a blanket term to signify oppression-barbarism-irrationality-blind superstition-etc. It annoys me, and I’m not even a medievalist”.) Nope, if we’re going to apply any historical period to describe this one, it would in fact need to be: early modern.
In 1624, the English Parliament passed an ‘Act to prevent the destroying and murthering of bastard children’, which remained in force until the early 19th century (its replacement was not, however, greatly different). It wasn’t just English law: there were similar laws passed in other European countries around this time. This particular statute expressed concern that ‘lewd women’ who bore bastards, ‘to avoid their shame, and to excape punishment’, secretly buried or hid their children’s deaths, afterwards claiming, if the body were found, that the child had been still-born.
There was indeed a problem for law-enforcers in such cases, of proving that the death of a new-born infant was the result of violence rather than natural causes. It was just as much of a problem, though, with babies born to married women as unmarried ones (and frequently almost as difficult with older infants too, in a period of high levels of infant mortality, when natural death could come suddenly from many only half-understood sources). It was the ‘lewd women’ concealing their ‘shame’, not anxieties about cruelty and violence towards babies and small children, that was the primary issue with the law-makers.
So, the statute enacted that any woman who secretly gave birth to a illegitimate child and killed it, or procured its death, or attempted to conceal its death, ‘whether it were born alive or not’ (my emphasis), should ‘suffer death as in case of murther’. That is: the Act did not, quite, presume murder in such cases; it simply made the concealment of a death in itself a capital crime.
In practice, as it turns out, right from the start (but increasingly so in the 18th century) courts and juries interpreted the evidence in cases brought before them with considerably leniency; sometimes they subverted the intent of the law altogether.* Most defendants were acquitted; many of those convicted were pardoned; they were rarely (though I wouldn’t go so far as to say never) executed unless there was clear evidence of severe violence committed on the body of a child – in other words, where they’d probably have been convicted of common law homicide in any case.
But even if acquitted they still had to go through the trial; and given the hostile reactions of neighbours expressed in pre-trial depositions (it was those neighbours, mostly married women, whose efforts brought cases to trial in the first place), it might be wondered what happened to them after they were freed. Even if they escaped the worst penalties of the law, they had been publicly exposed and humiliated. Some historians have seen the trials as intended to warn all other unmarried women of the perils of unchastity as much as to punish those on trial. If so, it mattered little if there were few hangings and the law was in essence operating as its creators intended: to help control and discipline the sexual behaviour of unmarried women. (Whether the ‘warnings’ in fact deterred any women from extra-marital sexual activity is, of course, another matter.)**
I’m not suggesting that the 1624 infanticide statute directly resembles the recent Virginia proposal. But I can’t get away from the echoes. This was the rationale given by the politician in charge of the proposal, when explaining that they hadn’t really intended it to cover what it seemed to cover:
This bill was requested by the Chesapeake Police Department in its legislative package due to instances of full term babies who were abandoned shortly after birth. These poor children died horrible deaths. If a coroner could not determine if the child was born alive, the person responsible for abandoning the child could only be charged with is the improper disposal of a human body.
Back in the early seventeenth century, by the way, there was considerable suspicion (not to say panic) that there were many ‘lewd’ women getting away with their promiscuity, by means of murder, and that the known instances were probably just the tip of an iceberg. Hence the need for drastic action. We’ll never know if they were right about the numbers (my gut feeling is that they were wrong. It’s not that easy to hide a pregnancy). But they were certainly wrong about what kinds of women were likely to be desperate to conceal their ‘shame’: not disreputable ‘lewd’ ones – why would they care? – but women who had a reputation to lose, and whose livelihood depended on maintaining that reputation (a high proportion of women accused under the 1624 statute were servants).
Why do women perceive this new proposal as primarily an attempt to control them, their bodies and their sexual activity? Because the criminal law is not the way to solve a problem like this, any more than it was in the 17th century: if you’re really concerned to prevent the abandonment and death of newborn babies, what’s needed are not punishments but places where women can leave them safely and without stigma: the principle of Thomas Coram’s Foundling Hospital in the 18th century. A law that penalises concealment achieves little except to make women in those circumstances even more isolated and put them and their babies alike at even greater risk: if a woman is already desperate enough to hide her pregnancy, give birth alone and abandon (or kill) her child afterwards, a law like the one that was proposed in Virginia is irrelevant and is only going to make her even more desperate to cover up what’s happened to her. Ask more historians like me:*** this is old, old territory. We shouldn’t need to be going over it again in the 21st century.
Update: However, see this critical report on ‘safe havens’, which have been adopted recently in a number of US states. I think its writers would agree that punitive measures are not the way to deal with unsafe abandonments of newborn children, but they argue strongly that anonymous legal abandonment is not the solution either.
* By the 18th century, for example, women on trial often presented linen and other items as evidence that they had prepared for a live birth – therefore, they had not intended to kill their babies – and this was routinely accepted to produce acquittals. But strictly speaking it was entirely irrelevent to the wording of the statute.
** Despite the images of lewdness and promiscuity, it seems that many early modern single women who engaged in sexual intercourse did so in the context of established relationships, often only after promises of marriage; there is a good deal of statistical evidence that, while rates of illegitimacy were quite low during the period, rates of pre-marital pregnancy were much higher. But not all men kept their promises.