Commentary on Article 97. Murder of a Newborn Child by the Mother of the Criminal Code of the Republic of Kazakhstan
Murder by a mother of her own newborn child, both during childbirth and in the subsequent period, committed under circumstances of a traumatic psychological situation or in a state of mental disorder that does not exclude criminal responsibility, -
shall be punishable by restriction of liberty for a term of up to four years or imprisonment for the same term.
The public danger of this criminal act is expressed in the violation of the absolute human right to life, which belongs to every person from birth.
Although this form of offence as a privileged type of crime is new, the issue of distinguishing it as a separate offence has been raised repeatedly in legal literature. The killing by a mother of her own newborn child is referred to as infanticide; however, this is not entirely accurate, since infanticide is a broader concept (in terms of the subject, the possible characteristics of the victim, and the subjective element).
The object of this crime is the life of a newborn child, which, in pediatrics, is understood to mean a child under four weeks of age.
The objective element of the offence is expressed in the killing by a mother of her own newborn child, both during childbirth and in the subsequent period, committed under circumstances of a traumatic psychological situation or in a state of mental disorder that does not exclude criminal responsibility.
The condition of a woman during childbirth and immediately after childbirth (this occurs when the act is committed at the moment the physiological process of childbirth begins or during the process of the child's separation from the mother's body).
According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007, "On the Qualification of Certain Crimes Against Human Life and Health", a traumatic psychological situation is recognized as significant circumstances that negatively affect the psychological state of a woman who has given birth (for example, the child's father refusing to accept the child, relatives condemning the birth of a child out of wedlock, the child's father or the woman's relatives refusing to provide financial assistance for the maintenance of the mother and child, etc.).
A woman's mental disorder after the birth of a child is generally characterized by negative processes in her mental activity (depression, feelings of fear, manic moods, etc.). In order to establish whether the woman is legally sane or insane in connection with the above-mentioned disorders, a psychological and psychiatric examination must be conducted.
When qualifying an act under Article 97 of the Criminal Code, the newborn status of the child must be taken into account, which is determined by a forensic medical examination in accordance with pediatric criteria. The killing of a child after the expiration of the newborn period cannot be qualified under Article 97 of the Criminal Code. In such cases, criminal liability arises under Article 96 of the Criminal Code.
A traumatic psychological situation generally does not arise instantaneously but develops gradually and is associated with the accumulation of negative emotions in the mother of a newborn child against the background of the negative impact of external factors on her psyche (for example, informing a woman that the child will be abnormal for certain reasons, or informing her of the death of the child's father, or providing other information containing negative news).
A mental disorder of the mother that does not exclude criminal responsibility is a profound impairment of the mental state of a woman who has given birth, compared with her mental state in a traumatic psychological situation, in which she is not fully capable of understanding the nature of her actions and is not fully capable of controlling them.
In law enforcement practice, there is no difficulty in determining the meaning of the term "during childbirth", which cannot be said about the determination of the meaning of the term "in the subsequent period". In the science of criminal law of the Republic of Kazakhstan, there is no established definition of what should be understood by the "subsequent period". There is no answer to this question in judicial and investigative practice either. Meanwhile, the correct determination of this concept is essential for deciding how the committed act should be classified: either as murder under Article 96 of the Criminal Code or as murder of a newborn child by the mother under Article 97 of the Criminal Code.
The existing view in pediatrics that a newborn should be recognized as a child under four weeks of age is hardly acceptable for criminal legislation. A study of judicial practice shows that, in the overwhelming majority of cases, such murders are committed on the day of the child's birth. This provides grounds for raising the issue of improving criminal legislation, namely: replacing the words "in the subsequent period" in the wording of Article 97 of the Criminal Code with the words "immediately after childbirth", and for the Supreme Court to provide an appropriate interpretation.
The killing by a mother of her own child a considerable period of time after childbirth does not provide grounds for qualifying the act under Article 97 of the Criminal Code. In such cases, liability arises under subparagraph "c" of Part 2 of Article 96 of the Criminal Code.
Taking the life of a child in the mother's womb does not constitute murder; rather, it constitutes termination of pregnancy, and a woman who voluntarily terminates her pregnancy is not subject to criminal liability.
The crime is considered completed from the moment the death of the newborn child occurs.
The subjective element of this murder is characterized by intentional guilt. The intent may be direct or indirect.
The subject of this crime may be a woman who is the mother of the newborn infant and has reached the age of 16. Other persons, if they are co-perpetrators of such a murder, shall be held liable under Article 96 of the Criminal Code, since the circumstances that serve as grounds for mitigating the mother's liability do not apply to them.
The crime provided for in Article 97 of the Criminal Code of the Republic of Kazakhstan is classified as a crime of medium severity.
Commentary to the Criminal Code of the Republic of Kazakhstan dated 2007, by BORCHASHVILI I.Sh., Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Body that adopted the act: 180000000000
Registration number of the regulatory legal act assigned by the rule-making body: 167
Status of the act: new
Sphere of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
Criminal Code, Commentaries to the Criminal Code, Regulatory Resolution of the Supreme Court, Criminal Legislation, Regulatory Legal Acts of the Republic of Kazakhstan.
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