Judging Gender: The Sentencing of South African Mothers Who Murder Their Children

Abstract

Women who commit filicide are not only judged for their crime but also for their compliance/deviation from societal expectations of motherhood. Motherhood is interpreted through a specific set of socio-cultural norms with mothers needing to be loving, warm, selfless, and protective at all times. Any deviation from these norms can result in harsher sentencing. This article explores the complexity of maternal filicide and, the extent to which gendered constructions of motherhood are used in the South African criminal justice system to sentence women who murder their children. It examines how the dominant narrative identities of the bad/mad/sad mother influence the sentencing of these women and leads to inconsistent sentencing practice within the South African legal framework. By highlighting the disparities in sentencing and the importance of considering contextual information, it calls for reforms to ensure that sentencing aligns with the circumstances of these women, rather than reinforcing stereotypical perceptions of motherhood. It further highlights the need for reform to protect children from filicide.

Introduction

Sentencing offenders is a complex task, especially when a parent is accused of murdering their child. Filicide, the general term used to describe the deliberate act of a parent murdering a child, is considered unthinkable in most societies, and even more so when a woman is accused of the crime that contradicts stereotypical gender norms of femininity and motherhood.¹ The murder rate of children in South Africa is shockingly high, with 1194 child murders recorded by the South African Police Service between April 2022 and March 2023, with the rate consistently high in the preceding years.² Despite the availability of generalised murder statistics, there are no discernible statistics of how many of these murders can be attributed to filicide. Presenting the statistics to the South African Parliament, the police service highlighted the reasons for child murders as domestic and social disputes, gang-related incidents, and vigilantism.³

Ordinarily, filicide is perceived as a crime that is mostly perpetrated by women as few crimes cause greater public reaction than a mother murdering her child,⁴ despite men (fathers) being mostly responsible for these murders.⁵ This perception is fuelled by the intense media scrutiny that follows cases of maternal filicide, which contributes to a distorted account of the crime.⁶ Maternal filicide is more newsworthy and seen as particularly provocative as it challenges deep seated assumptions about women and motherhood.⁷ Although the media often treats maternal filicide as inexplicable, there is an attempt to find an explanation through “stereoty**, simplification and rationalization’.⁸

Milne notes that the representation of women in the media and criminal justice system is closely tied to how their character and behaviour aligns with gender norms.⁹ For women who murder their children, these norms are constructed in line with the ideals of motherhood and the expectation that all mothers are naturally caring, nurturing, and self-sacrificing at all times, which Weare refers to as the “motherhood mandate”.¹⁰ Women who transgress these gendered constructs are judged harshly by the criminal justice system. “Bad mothers”, when convicted of murdering their children, receive harsh sentences, whereas “good mothers” are treated more leniently, with their transgression often attributed to a mental anomaly.¹¹ To this extent, the dichotomous bad/mad framework forms an integral part of sentencing women who murder their children. However, reliance on these gendered constructions undermines the wider structural context of understanding why these murders occur and establishes sentencing inconsistencies based on stereotypical gendered presumptions.¹²

Although the focal point of the discussion is not the media representation of women who murder their children, it should be acknowledged that the media is an important source through which we gather information on social issues and through which society responds in attributing blame.¹³

This article explores the complexity of maternal filicide and, the extent to which gendered constructions of motherhood are used in the South African criminal justice system to sentence women who murder their children. It highlights the disparities in sentences handed down in these matters and, questions the relevance of contextual information in paving a way forward in sentencing these women in line with their digression and not in accordance with stereotypical perceptions of motherhood.

It should be noted that although the focus is on sentencing disparities in sentencing women who murder their children, the analysis does not negate the seriousness of the crime of murder, especially against particularly vulnerable individuals – children. There is both a constitutional and statutory duty on parents to care for and protect their children and a definite need to address violence against children.¹⁴

South Africa has extensive legislation and policies aimed at the protection of children; however, despite this framework, the continued high levels of violence perpetrated against them and, murder statistics, indicate that there is no clear strategy that systematically acknowledges and aims to address the contextual factors that address child survival. A report by the Human Sciences Research Council of South Africa (HSRC), researching the perpetration of filicide in the country, referred to the need to consider the interconnectedness between violence perpetrated against women and violence against children, with intimate partner violence reverberating through families, with victims often becoming perpetrators.¹⁵ Combined with contextual factors, which the HSRC refers to as “patriarchy, gender inequality and discrimination embedded in social and legal institutions, poverty including its feminised nature, high rates of single parenthood and lack of social support for parents, unemployment, child living arrangements that may involve cohabiting of reconstituted families with non-consanguineal kinship, and structural violence that bars young people from accessing public reproductive health services”, indicate that addressing violence against children remains complex, especially in relation to filicide.¹⁶ The analysis will highlight the need to not only consider the contextual realities of women when sentenced for the murder of a child, but also reform of the current legal framework to protect children from filicide.

Maternal Filicide: Complexities and Context

Categorising Filicide

In 1969, Resnick, a psychologist, developed a filicide classification system to better understand these murders with six broad categories that focussed on motive.¹⁷ The first category, altruistic filicide, involves an altruistic motive for the murder and is divided into two subgroups associated with suicide. First, when a parent murders a child with the belief that they cannot abandon the child, and second, when filicide is committed to relieve a child’s perceived suffering, whether it be real or imagined.¹⁸ The second category, acutely psychotic filicide, refers to murder because of severe mental illness. Third, unwanted child filicide relates to the murder of a child no longer wanted by the parent. Fourth, accidental filicide refers to the unintentional death of a child because of fatal child abuse.¹⁹ Fifth, spousal revenge filicide, describes, the murder of a child to deliberately cause a spouse/partner suffering. Finally, neonaticide refers to the murder of a newborn baby within the first twenty-four hours of birth.

Over the years, Resnick’s initial classification has expanded to not only focus on motive but also the, impulse behind these murders and different types of clinical situations.²⁰ Buiten comments that although different typologies are helpful, most cases of filicide do not neatly fit into a specific category, with the classifications often obscuring the complex social, structural forces, and power dynamics that underlie these murders.²¹

A further clear definitional distinction is evident in the literature with reference to the age of the victim: neonaticide refers to the murder of a newborn, infanticide refers to the murder of a child under one year of age, and filicide refers to the murder of an older child. Research indicates that women are mostly responsible for the murder of newborns and infants, and often the focus is on mental stability, with the thought of a mother murdering her young child evoking such horror and outrage that it could only be committed by an insane woman.²² Postpartum depression is frequently referred to as a possible cause for these murders, with the catch all phrase referring to the mental condition of mothers after childbirth, which ranges from “baby blues”, a low-level postpartum psychological disturbance, to postpartum depression, which includes persistent and debilitating depressive symptoms, to its most extreme form, postpartum psychosis, with a devastating impact and loss of contact with reality.²³

Certain countries have infanticide legislation that mandates the consideration of a woman’s mental state if a child under the age of one has been murdered, with the possibility of lesser sentences being prescribed.²⁴ In other countries, including South Africa, women are prosecuted for murder, with a defence of criminal incapacity having to be specifically pleaded. If found fit to stand trial, mental illness, such as postpartum depression, could be indicative of diminished criminal responsibility that may be considered as a mitigating factor during sentencing.²⁵

Scholars debate whether specific infanticide legislation is necessary. Some argue that this could legitimise the notion that women are inherently unstable as a result of their biology, solidifying harmful stereotypes and ignoring the different motives for these murders.²⁶ Others argue that there is a need for women specific defences, as substantive criminal law forces women to present their reality within the confines of a structure that excludes their life experience.²⁷

Although there is an overt focus on women’s mental state in the event of infanticide and neonaticide, research indicates that women in this category are often younger, unmarried, isolated, socially and economically disadvantaged, and conceal pregnancies because of cultural constraints.²⁸ Despite the reasons for these murders being far more complex than mere mental stability, the emphasis on mental capacity and definitional distinction between infanticide, neonaticide, and filicide creates a hierarchical construct in terms of attributing blame.²⁹ Society sees mental illness as a justification for an “unthinkable” act, and in the absence thereof, there is little through which the murder of a child by its mother could be justified.

The “Motherhood Mandate” and Sentencing Women Who Murder Their Children

Women who murder their children are not only judged for their infraction but also for their compliance/deviation from the stereotypical role of motherhood.³⁰ Motherhood is interpreted through a specific set of socio-cultural norms,³¹ with mothers needing to be loving, warm, selfless, and protective at all times. The expectations of motherhood encompass not just being a mother but also being a “good mother” placing the wellbeing of children before “everything, anything and anyone else”.³² The “motherhood mandate” is further rooted in class, race, and gender ideals with a “good” mother seen as white, middle-class, married, heterosexual, and able-bodied with the exclusive responsibility of mothering their biological children.³³ The result is that women who do not conform to these ideals face additional barriers to be classified as “good” within the criminal justice system, hindering access to possible defences such as criminal incapacity.³⁴

To this extent, filicidal women transgressing this mandate without any apparent justification, such as mental instability, are viewed as doubly deviant not only in breaking the law but, also in transgressing “their own female nature and their primary social identity as a mother” – the “bad mother”.³⁵ The narrative that emerges in criminal trials is that “bad” filicidal women are demoted from their status of mother and effectively woman, to a monster lacking any humanity.³⁶ Tomic comments, that public discourse surrounding filicidal women revolves around finding definitive answers for their actions; if not found in “ madness”, a societal “self-defence” mechanism conceptualises them as monstrous to protect the pervasive myth of motherhood:

the idea that an individual -a mother- who can commit such an unspeakable act is actually not a person at all, but rather a monster mimicking human form, is far more acceptable than the notion that the idea of a mother who is supposed to selflessly love and fiercely protect, can be overturned in such a way as to become its own dark and twisted negative.³⁷

Consequently, “bad” filicidal women are punished more severely than women whose behaviour conforms to appropriate gender roles or whose actions can be excused by an acceptable defence such as mental instability. “Mad” filicidal women maintain their humanity and femininity and are seen to act without any real intention or understanding – a victim of their own biology.³⁸ “Mad” filicidal women are often sentenced more leniently, with a focus on treatment and help rather than punishment.³⁹ Weare refers to a further category in sentencing narratives, that of the “sad” filicidal woman, which emerges in cases where there is no identifiable psychiatric disorder but the women did not act in a particularly cruel or calculated manner.⁴⁰ In cases where this narrative emerges, the inclination is to be more lenient in sentencing based on empathy, which focuses on the mother’s wider personal circumstances, pitying her for being unable to cope – a victim of her circumstances.⁴¹

The overt focus on the mental health of women who murder their children provides a means by which to disassociate these women from their own context and socio-economic factors that influence their actions.⁴² Africa, refers to the “psychiatrisation” of women who murder their children as denying them agency, which, as Weare’s comment, denies these women the ability to make any degree of choice in relation to their filicidal actions as the mad/bad/sad narratives construct a new identity that actively denies agency.⁴³ Oberman states that at the most basic level, maternal filicide is a reflection of the individual mother’s experience of the conditions under which she has been expected to raise her children:

By focusing on the circumstances surrounding the mother who kills her child, it becomes clear that maternal filicide is not a random, unpredictable crime committed predominantly by mentally ill women. Instead, it is deeply embedded in and responsive to the societies in which it occurs. As such, the circumstances that surround maternal filicide in different cultures vary widely. Nonetheless, a careful analysis of contemporary cases confirms one fundamental similarity: in virtually every instance, maternal filicide is committed by mothers who cannot parent their child under the circumstances dictated by their particular position in place and time.⁴⁴

The key to understanding maternal filicide is understanding the individual’ life circumstances at the time of the act and the, unique interaction between social, environmental, cultural, and individual variables.⁴⁵

Khoele et al. researched the psychiatric and personal profiles of South African women who were referred for psychiatric evaluation to establish their fitness to stand trial for murdering their child/ren, and found that many had multiple and severe stressors, including financial difficulties, housing problems, ongoing domestic violence, worsening mental illness, limited social support, conflict with family members, and were mostly the primary caregivers of their child/ren.⁴⁶ The study concluded that a high percentage of the women did not have an identifiable mental illness, but postpartum depression was overall a possible factor that predisposed women to commit child murder. Importantly, they highlighted that the context behind these murders should be understood and further researched.⁴⁷ It is evident that the mental capacity of women who murder their children should not be the only decisive factor in attributing blame.

Shalleck notes that contextualising within a legal framework can mean many things and refers to context as “ways of thinking about the law as existing not in isolation, but in connection with something else that is essential to its meaning”.⁴⁸ She further highlights key aspects when contextualising from a feminist viewpoint:

First, contextualizing involves focusing on the particularity and uniqueness of each situation by attending to the richness and complexity of detail found within it. Second, it relies upon the recognition of multiple perspectives for understanding any particular situation, both at the level of individual participants, as well as the communities those participants belong to. Third, contextualizing involves identifying the different norms, practices and values that the multiple communities have. Fourth, it acknowledges that the interests of individual participants and their communities might be different. Fifth, disparities in power among the participants and their communities are acknowledged. Sixth, it recognizes that individuals exist not in isolation, but in multiple relationships. Those relationships are important in understanding not only a particular event, but also in the structure of law. Seventh, it considers the ways that individuals exist within and in opposition to institutions. Eighth, it draws upon knowledge from other disciplines to help interpret the meaning of particular actions. Psychology, sociology, economics, literature, history may all be used.⁴⁹

Shanaaz and Abrahams, who researched filicide in South Africa, commented that one is unable to consider violence against children in the country without considering its broader context.⁵⁰ Excessive levels of violence are experienced in everyday life in South Africa, which can be attributed to multiple and intersecting factors rooted, in the country’s colonial and apartheid past.⁵¹ Particularly complex are the living arrangements of South African families, which are influenced by socio-economic need in relation to job-seeking, employment, and access to basic services such as schools and healthcare.⁵² Single-parent families with women-headed households are widespread and have associated financial and parenting stressors.

Others such as Dekal et al. note that although context enables and produces crime, its consideration should not negate agency and responsibility.⁵³ Brennan observes that criminal law in general excludes social-economic and political contexts that focus on individual transgression.⁵⁴ However, she further highlights that it remains important within its current constructs to be cognisant of how gendered constructions of filicidal women produce and reproduce the gendered subject.⁵⁵ Classifying women as “mad” or “bad” within the constructs of motherhood solidifies the patriarchal construct of criminal law and denies women’s agency:

these identities and the subsequent agency denial which occurs – reinforce pejorative gender stereotypes which are damaging for all women, constructing them as pathological, weak, passive, and pitiful, as well as deviant in failing to adhere to the expectations associated with motherhood.⁵⁶

Oberman does not question whether women who murder their children should be held accountable, but rather the level of accountability.⁵⁷ She highlights that the criminal justice system and media treat maternal filicide as exceptional, negating the patterns that link them and the extent to which they are tied to social expectations of motherhood.⁵⁸ What remains important in considering the accountability of women who murder their children is the extent to which they are not only judged for their infraction but also for their compliance/variance with stereotypical female behaviour and the expectations of motherhood.⁵⁹

Drawing on Weare’s work, which explores how the dominant narrative identities of the bad/mad/sad mother influence sentencing decisions of women who murder their children, the following discussion focuses on the prominence of these identities in South African case law. The analysis questions how this gendered construction influences the sentencing discretion of South African courts, which negates the wider social and individual context that leads to these crimes. Before such an analysis is undertaken, it is important to consider the sentencing framework of South African courts as it relates to filicidal women.

The South African Sentencing Framework

In line with its common law heritage, South African judicial officers have broad discretion in considering an appropriate sentence.⁶⁰ A court will consider which sentence may be imposed, gather all information deemed relevant, and exercise its discretion in selecting the most appropriate sentence.⁶¹ The discretion is not exercised anew and is influenced by a number of principles established through precedent.⁶² Seminal case law in considering an appropriate sentence includes the decision of S v Zinn,⁶³ which requires the crime, offender, and interests of society to be considered, known as the Zinn triad.

The South African sentencing framework is further regulated by prescribed minimum sentences for specific offences unless substantial and compelling circumstances requires deviation.⁶⁴ The prescribed sentence for murder includes life imprisonment under certain circumstances or a sentence of 15 years imprisonment.⁶⁵ An accused can only be held accountable for a crime if it can be proved, beyond a reasonable doubt, that the person had the necessary capacity and intention to act.⁶⁶ If an individual suffers from a mental illness or defect at the time of the offence, they may not be fit to stand trial – a defence know as pathological criminal incapacity.⁶⁷ In terms of the South African Criminal Procedure Act 51 of 1977 (CPA), an inquiry into an accused’s fitness to stand trial can be raised by the prosecution, defence or court with the accused referred for medical evaluation.⁶⁸ Every person is presumed not to suffer from a mental illness or defect until the contrary is proved on a balance of probabilities.⁶⁹

Section 78 (7) of the CPA further stipulates that if the court finds an accused criminally responsible but their capacity to appreciate the wrongfulness of the act or, to act in accordance with an appreciation of the wrongfulness of the act was diminished because of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused. To this extent, diminished responsibility presupposes criminal capacity but reduces culpability by considering all available evidence, including possible expert evidence.⁷⁰ In the case Director of Public Prosecutions, Transvaal v Venter,⁷¹ the Supreme Court of Appeal noted that diminished criminal responsibility is not a definite condition, referring to it as “a state of mind varying in degree that might be brought about by a variety of circumstances.” The court referred to alcohol use, jealousy, distress, and provocation as factors that could be considered to establish diminished responsibility.

A woman who murders her child would be subject to the prescribed minimum sentence unless substantial and compelling circumstances exist to deviate. If she was not able to appreciate the wrongfulness of her act because of a mental illness/defect at the time of the murder, she would have to specifically plead pathological incapacity or be referred for mental evaluation by the court. If a mental illness/defect was present but she was able to appreciate the wrongfulness of her act, her accountability could be diminished, which could be considered a mitigating factor during sentencing.

Although not a focal point of the analysis, the South African sentencing regime has been severely criticised for many years, especially in relation to the minimum sentencing legislation and wide discretionary powers that give rise to inconsistent sentencing practise.⁷² The South African Law Reform Commission (SALRC) tasked in 1996 to review all aspects of sentencing, cautioned against the implementation of minimum sentencing legislation, and proposed several options for sentencing reform, including presumptive sentencing guidelines, voluntary sentencing guidelines, and the adoption of legislative guidelines to assist in determining the choice and length of punishment, among others.⁷³ Despite these recommendations, Parliament, in an attempt to placate public outcry against rising levels of crime in the country, continued to implement minimum sentencing legislation, which initially was only meant to be a temporary solution but has remained in force ever since.⁷⁴ Although sentencing courts can depart from prescribed sentences if “substantial and compelling circumstances” exist, this criteria has been inconsistently applied, as the below case law illustrates, and has led to arbitrary results.⁷⁵ There is little evidence that the legislation has had any impact on crime in the country, and in the words of Justice Cameron “minimum sentences simply do not work’.⁷⁶ The case law analysis that follows focuses, on South African court judgments in which women who have murdered their children have been sentenced. The analysis seeks to establish the extent to which these women have been judged for their deviation from the prescribed gender norms in relation to motherhood, and whether the dichotomous identities of the bad/ mad/sad mother influenced the sentencing discretion of the relevant courts.

Reported case law relating to the sentencing of filicidal mothers in South Africa is few and far between, despite research indicating that these matters appear before our courts regularly and in accordance with child murder statistics in the country.⁷⁷ The cases selected are representative of available case law (reported and unreported) in which women who murdered their child/ren were sentenced by South African courts and indicative of sentencing practises followed by judicial officers.

Sentencing the “Bad Mother”

The S v Daya,⁷⁸S v Matjane,⁷⁹ and S v Labi,⁸⁰ cases illustrate the “bad mother” narrative employed by South African courts in handing down a sentence. A court is expected to arrive at a reasonable decision regarding an appropriate sentence based on all the facts of a case, which include aggravating and mitigating factors.⁸¹ In these matters, the extent to which these women transgressed their role as mothers was viewed as an aggravating factor, although not explicitly stated. The language used and the narrative that emerges indicate that they were judged for their failure to protect their children, depicting them as selfish and uncaring.

In S v Daya, a woman murdered her two children aged four and one years with an overdose of pills and attempted suicide herself. The murders were preceded by a fight with her husband, with the court noting a tumultuous relationship. She had a history of depression and a previous suicide attempt. After being referred for mental observation by the court to establish her fitness to stand trial, she was declared fit, but it was noted that her ability to appreciate the wrongfulness of her action was diminished by virtue of an “adjustment disorder with depressed mood”.⁸²

The trial court found the murders to have been premediated and planned with only a minor degree of diminished responsibility that warranted a deviation from the prescribed minimum sentence of lifetime imprisonment. A sentence of 20 years imprisonment for each murder was handed down running concurrently.⁸³

The accused appealed the sentence and argued that the trial court overemphasised the findings of the state appointed expert at the cost of her own, who indicated a far greater degree of diminished responsibility based on her history of depression.⁸⁴ The state expert testified that she did not suffer from a major depressive episode before the murders but rather after.

The appellate court referred to the murders as “stark and terrible” and found that the trial court did not overemphasise the state’s expert testimony.⁸⁵ The court referred to her actions as “conscious” and “deliberate” with little remorse as she continued to blame her husband “for being the sole cause of her problems”.⁸⁶ The appellate court confirmed that the murders were planned and premeditated; that she misdirected the anger she felt towards her husband towards her children, and that “they [the children] were innocent and vulnerable, dependant on her for their safety and well-being.”⁸⁷

In S v Matjane, the accused was found guilty of murdering her two children after fatally shooting them (ages not mentioned in the sentencing judgment). She claimed that her primary objective was to commit suicide but decided to murder her children so as not to leave them behind without her.⁸⁸ After shooting them, she wanted to shoot herself but realised there were no bullets left in the revolver. From the outset, the court noted the following:

It goes against the grain of humanity for a mother to kill her own children. Simply by observing nature as a whole, one will notice that it is the mother who will nurture and protect her children, often against overwhelming odds, and will defend them, if necessary, with her own life. It goes completely against nature for a mother to kill them for almost any conceivable reason, let alone a reason that selfishly only relates to the quality of her marriage, or the lack of such quality.

The court, referring to the accused’s personal circumstances, noted that the accused was highly educated, emotionally stable, and in a seemingly happy and stable marriage, which resulted in the birth of another child after the incident.⁸⁹ The court referred to her actions as “callous” citing the fact that the eldest had to witness the shooting of his younger brother before being shot himself.⁹⁰ Sentencing proceedings were postponed to obtain expert evidence to establish whether the accused acted with diminished responsibility.

An expert report by a forensic psychiatrist stated that there was no evidence of any psychopathology in her past or post offence. The expert referred to the murders as “completely out of character and quite inexplicable”.⁹¹ The expert did highlight certain factors that could have played a role, including her history of suffering from migraine headaches and possible marital factors that cumulatively could have diminished her capacity to make reasonable and rational decisions.⁹² She and her husband had a verbal altercation on the morning of the murders concerning the building of a new home for which the accused acted as project manager.⁹³ As to the degree of diminished responsibility, the expert commented that it was difficult to determine with seeming small factors that in isolation would point to mild diminished capacity, but cumulatively a greater degree.⁹⁴ A further report by a forensic criminologist pointed to probable marital discord with the “possibility of being left alone with the children, or that her children may be taken from her and given to another woman to raise” as a triggering factor for her actions.⁹⁵

Throughout the judgment, there is reference to the fact that there might have been marital problems, however, the accused and her husband refuted this and were unwilling to provide any details of their marital relationship except for referring to the marriage as a “happy” one; a term which the court itself employed in reference to the relationship accepting it as such.⁹⁶ The forensic psychologist highlighted that she could not explain why the accused and husband denied that there were marital problems and, that there was a possibility that not all facts were disclosed to the court.⁹⁷ A further expert noted that the accused was clearly protecting her husband to her own detriment but could not provide any reason as to why.⁹⁸ The court rejected these arguments, referring to them as speculation and accepted the marriage as “happy”.⁹⁹

The court found the accused unremorseful as she failed to testify and take the court into her confidence about the true reasons for her actions.¹⁰⁰ As an aggravating factor, the court referred to the murders as “cold blooded” and “violent” and referred to them as being committed by “their mother who was supposed to care for them and nurture them’.¹⁰¹ In conclusion, the court noted:

The picture that emerged from the accused’s evidence, and all the evidence seen holistically, was that the accused was strong-willed, selfish and of a jealous disposition, with a mind-set that she should not be “messed with”. There were no reasons for her to have left her husband, the evidence was that they were in a happy marriage and there was no room for finding anything else. It was therefore submitted that there was no reason or excuse of an acceptable nature tendered why the accused killed her children other than an explanation relating to selfishness, jealousy and self-centeredness.¹⁰²

The accused was sentenced to life imprisonment on both counts, with the sentences running concurrently.¹⁰³

In S v Labi, the accused was sentenced to 22 and a half years imprisonment for each count of murder of her two children aged six years and 18 months, having suffocated them and attempting suicide herself. The court found that the murders were pre-meditated after having had an altercation with her mother the day before towards whom she had feelings of extreme anger.¹⁰⁴ At the outset, the court referred to her failure as a mother:

The victims were your own defenceless children, aged 6 and 1 ½ years at the time of their deaths. It is hard for one not to have an exaggerated sense of this tragedy or not be angry and vengeful toward you for ending the lives of your own trusting, vulnerable children who you were responsible as a mother and guardian to protect from harm at all costs.¹⁰⁵

Throughout the judgment, the wording illustrates the court’s strong indignation for the accused, referring to the murders as “shocking” and “outrageous” depicting her as unfeeling and uncaring, and referring to her choices as “selfish” and “sadistic”.¹⁰⁶

The above matters illustrate Weare’s interpretation of the construction of the “bad mother” as a singular dominant identity that overpowers relevant micro-narratives that might be relevant in a case.¹⁰⁷ In all three cases, there is a clear pattern of the mitigating factors being usurped as aggravating within the dominant framework of bad mothering. This is especially evident in the Matjane matter, in which the micro-narratives of possible marital discord and fear of a failed marriage were used to reinforce the macro-narratives of jealousy and self-centredness.¹⁰⁸ In Matjane, the court focussed on the supposed “happy” marriage that resulted in the birth of another child after the incident; the fact that the accused and her husband were financially well off with no specific diagnosis of depression which led, it to conclude that there was no “real” reason for the accused to have murdered her children; except for being a “bad mother”.

Weare comments that the singular narrative identity of the “bad mother” in legal discourse is an attempt to nullify the challenge that these women pose to appropriate feminine behaviour, especially in relation to motherhood.¹⁰⁹ She argues that this dominant identity not only reinforces gendered norms but also fails to acknowledge the ability of all women and mothers to choose to be violent and murder their children, which denies women their agency.¹¹⁰

Further important is, the fact that all three matters resemble Resnick’s classification of altruistic and revenge filicide, with the murders a supposed extension of their own attempted suicide and as possible revenge as they were preceded by altercations with partners/family members. In all three matters, their attempted suicide was seen as aggravating rather than mitigating. In Daya, the appellate court confirmed the trial court’s interpretation that the accused was more successful in murdering her children than herself and that her attempted suicide, even if “genuine”, should be regarded as a “relatively insignificant mitigating factor”.¹¹¹ In Matjane, the court accepted that there was no motif for her suicide, with the murders being ascribed to her own selfish behaviour.¹¹² In Labi, the court confirmed the state’s arguments that referred to the accused as:

That is that you are selfish, self-centred and attention-seeking, maybe even jealous, that your acts were sadistic, spiteful, that you appear cold and unfeeling. It would have been better, he said [the state], if you had taken your life and spared the children’s lives.¹¹³

Research indicates that individuals accused of revenge filicide are sentenced harshly, with the crimes viewed as premediated, planned, and malicious because of an earlier altercation.¹¹⁴

In all three matters, the women’s apparent lack of remorse was also considered aggravating. In Daya, the court referred to the accused as unremorseful, not accepting responsibility for murdering her children.¹¹⁵ The fact that the accused did not testify in Matjane was seen as a lack of remorse, despite the relevant experts testifying that she felt intense remorse having also participated in traditional ceremonies to apologise to the deceased children.¹¹⁶ In Labi, the court referred to the accused’s articulated remorse as “superficial” referring to her as unfeeling, unsentimental, unempathetic and unable to connect to someone’s feelings of pain.¹¹⁷ Wilczynski observes that women are expected to show remorse and guilt over crimes, preferably through emotional outbursts, and will be seen as “callous” and “unfeminine” if they do not.¹¹⁸ The need for emotive reactions to indicate remorse is often absent in filicidal women who exhibit dissociative reactions as a psychological defence mechanism.¹¹⁹ The reasoning employed by the respective courts in Daya, Labi, and Matjane illustrate that these women’s digression from the “motherhood mandate” was a key factor in considering an appropriate sentence. This consideration is not necessarily present in sentencing “mad” and “sad” filicidal women, as indicated below.

Sentencing the “Mad” and “Sad” Mother

“Mad” and “sad” filicidal women are often sentenced more leniently than their “bad” counterparts. Weare describes the narrative construction of “mad” and “sad” filicidal women as less problematic with a more accurate reflection of the multiple micro-narratives in the wider context of the case.¹²⁰ However, she notes that these micro-narratives are often considered through a gendered lens, which results in the macro-narrative reflecting and reinforcing gendered norms associated with appropriate feminine behaviour. These constructs refer to weakness, acting on emotions, and in the case of postnatal depression, being a victim of your own biology. Brennan ascribes the lenient sentencing of mad/sad women to the fact that if a woman offender can be constructed within the legal discourse as continuing to meet the feminine ideal, she might, despite the seriousness of the offence, be considered able to be reoriented back into normative femininity.¹²¹ In S v Mtshali,¹²²S.R.D v S,¹²³ and S v Mphahlele,¹²⁴ it is evident that the women maintained their femininity and humanity with more empathetic sentencing employed by the relevant judges that focussed on their wider personal circumstances.

In S v Mtshali, the accused strangled her two children, aged eight and three years, attempting suicide herself by drinking various pills. The events preceding the murders were a violent altercation between herself and the children’s father. The accused pleaded guilty with the court, requesting a probation report for the purpose of sentencing. The accused’s counsel appointed an expert clinical psychologist, who found the accused to be of below average intelligence and suffering from extreme stress because of her dysfunctional relationship with the children’s father, which was violent and oppressive. The report further noted that she suffered from a form of “battered woman syndrome” and highlighted her personal circumstances, in that she was unemployed and lived in poverty with her maternal grandmother, on whom she was dependent for financial support.¹²⁵ The report further advised that the accused required intensive mental health care, which, although it should be available in prison, was not the reality in practise.¹²⁶ The report recommended a non-custodial sentence as there was no history of violence or aggression with a need for intensive treatment.¹²⁷

The state requested the appointment of its own expert who confirmed the findings of the defence but differed on the prognosis of “battered woman syndrome” as this could not be proved with the scant evidence available. The state expert further advised that a suspended sentence would not be suitable as the accused was a risk to herself and her fiancé and needed close supervision, which, according to her, would be provided in prison.¹²⁸

The court, in sympathetic terms, noted the accused’s sense of helplessness and depressive state.¹²⁹ It rejected the state’s recommendation that she would receive the necessary treatment in prison, stating that she could receive mental health care outside the prison system. The court sentenced the accused to ten years imprisonment on both counts, wholly suspended, and placed the accused under correctional supervision for three years, which included house arrest, community service, and obligatory mental health treatment.¹³⁰ In handing down the sentence, the court noted the “tragic” nature of the offence and that although the crimes were “very serious” had to view them “in the context of the specific facts before the court”.¹³¹

In S.R.D v S, the accused was sentenced to ten years imprisonment for the murder of her newborn baby. The accused, already a mother to a six and four-year-old, gave birth in the bathroom of her parent’s home, after which she inflicted several stab wounds on the baby’s neck.¹³² She was sent for psychiatric evaluation, which found her fit to stand trial but also indicated that she suffered from depression at the time of the offence.¹³³ It was noted that her depression was related to the pressure over a further unwanted pregnancy, after repeatedly being told by her family that she should not fall pregnant again.¹³⁴

The accused appealed the sentence, arguing that the trial court overemphasised deterrence as a form of punishment and did not attach any weight to her depression diagnosis. Although the probation officer recommended correctional supervision, the trial court imposed a sentence of ten years imprisonment stating the following:

All in all the facts call for punishment of the [appellant] for the gruesome murder of the helpless new born baby. The facts are even calling for deterrence for it would be quite useful that even the would be offenders would refrain from embarking on a similar offence. They further call for deterrence so that the concerned, that is the [appellant], who is an adult, has to own up in bringing up the child to life.¹³⁵

The appellate court found the sentence unwarranted under the circumstances with reference to the relevant probation and correctional report recommending correctional supervision. The appeal was upheld with a sentence of three years imprisonment, suspended for five years, and placed her under correctional supervision.¹³⁶

In S v Mphahlele, the accused was found guilty of murdering her 18-month-old child. The accused was in a tumultuous relationship with the father of the child with whom she shared a five-year-old and was pregnant with a third child at the time of the offence.¹³⁷ On the day of the murder, there was a physical altercation with the father.

In sentencing, the court factored in both mitigating and aggravating factors, clearly highlighting each. In mitigation, the court considered the accused’s personal circumstances; the fact that she appeared emotionally immature, was young when she committed the offence (18 at the time), had a low level of education, was not employed, and lived in poverty.¹³⁸ Aggravating factors were the fact that she consumed alcohol on the day and the seriousness of the offence of poisoning her own child.¹³⁹ The correctional officer supported a non-custodial sentence of correctional supervision, considering her circumstances.¹⁴⁰ However, the court found that a non-custodial sentence would not be appropriate considering the serious nature of the offence and handed down a custodial sentence of five years that provided for imprisonment but from which a person could be placed under discretionary correctional supervision.¹⁴¹

From the above, it is evident that the women in Mtshali, S.R.D, and Mphahlele were sentenced much more leniently than those in Daya, Matjane, and Labi. The sentence in Mtshali is especially relevant as it is in stark contradiction with the sentences of Daya, Matjane, and Labi, despite factual similarity and being classified as an example of altruistic/revenge filicide. Prominent in Mtshali is the extent to which the court focussed on the personal circumstances of the accused, referring to her sense of “hopelessness” and her failure to cope with her situation.¹⁴² In Mtshali, S.R.D and Mphahlele there was a greater balance in considering both mitigating and aggravating factors without the mitigating factors being usurped as aggravating.

The S.R.D case specifically illustrates how the different constructs of women as bad/mad/sad influence sentencing outcomes. The trial court, in constructing the accused as “bad” and having to bear responsibility for her choice in not acting as a “good” mother to her newborn, imposed a lengthy prison sentence bearing stark contrast to the appellate court that focussed on the personal circumstances of the accused and the reasoning behind her choices (depression and fear) imposing a sentence of correctional supervision. The Mphahlele case further illustrates that being more receptive to the wider contextual circumstances of an accused leads to a more lenient sentence, with the accused not being punished for her deviance of the “motherhood mandate” but only to the extent that she transgressed the law. In all three matters, the serious nature of the offences were recognised with the respective courts imposing custodial sentences, albeit suspended with correctional supervision or discretionary correctional supervision. This reiterates Oberman’s sentiments that filicidal women should be held accountable with the questions to which extent, considering their specific circumstances.

In South Africa, there seems to be no reported case in which a woman raised a defence of pathological criminal incapacity for murdering her children. Research indicates that most South African women who murder their children and are referred for mental evaluation to establish their fitness to stand trial are held accountable for their actions.¹⁴³ Oberman notes that courts generally struggle to determine the extent to which mental conditions, such as postpartum depression, should excuse a mother’s failure to comply with legal standards expected of the general population.¹⁴⁴

With reference to the South African context, Mathews and Abrahams comment that although it is established that poor mental health is a definitive contributor to the incidence of filicide, mental health disorders are poorly detected in South Africa with limited community-based mental health care services, especially in relation to antenatal care.¹⁴⁵ They advise that not only reproductive and maternity services should be prioritised for women but also mental health services, which could be a potential risk factor for filicide.¹⁴⁶ They further highlight that further research is needed in relation to the link between filicide and intimate partner violence. To this extent, there is a need to understand the unique context within which violence is experienced in South African family structures and, that filicide presents differently in the country than it might in developed settings.¹⁴⁷

Concluding Remarks

Women who murder their children are not only judged for their infraction but also in certain instances for their deviation from gendered norms, especially in relation to motherhood. With South Africa’s sentencing framework allowing for a great deal of discretion, the impact of this “double judgment” is far reaching, with women who do not conform to these norms receiving harsher sentences. Milne notes that judging women in accordance with their transgression from the “motherhood mandate” negates, the wider social factors that lead women to act violently and ultimately to understand the real causes of this violence.¹⁴⁸

It is crucial in considering a sentence for a mother who murdered her child/ren to understand her relevant context, which intrinsically operates within the specific society in which she finds herself. In South Africa, this requires an understanding of the broader context of violence in the country uniquely linked to its Apartheid past, with high levels of violence experienced in interpersonal relationships and extreme levels of poverty.¹⁴⁹ Recent newspaper reports have highlighted the deaths of two families in which mothers murdered their children and committed suicide, with poverty cited as a motivating factor.¹⁵⁰ This highlights the need to understand the unique character of violence in this country, which can be ascribed to complex inter-relationships characterised by violence and social-psychological factors.¹⁵¹

It is highly unlikely, considering the dysfunction of the sentencing framework in South Africa, that the gendered context within which filicidal women are sentenced will receive any attention. Addressing this inconsistent practise would require an overhaul of the sentencing regime in South Africa, as indicated by the SALRC years ago. As Justice Cameron has overtly stated, it is high time that we acknowledge the failure of the minimum sentencing legislation and do away with it.¹⁵² A good starting point would be to review the suggestions made by the SALRC and consider its implementation. However, this still does not address the gendered context through which filicidal women are judged and sentenced.

Filicidal women not only stare down a double barrel in being judged for their infraction and deviation from gendered norms, but addressing sentencing inconsistency is also two-pronged; the overhaul of the current sentencing regime and addressing the gendered context through which women are judged. Not only is contextual awareness of the lives of the women who murder their children and the intricate contributing factors needed in sentencing, but also an awareness of how the gendered construction of these women and the ideals of motherhood in these judgments filters through to the public and acts as a powerful ideological tool that entrenches norms concerning appropriate gender behaviour.¹⁵³ As Reece states “the most serious problem female criminal defendants encounter is the law itself”.¹⁵⁴ With the criminal justice system framed from a masculine discourse, women’s experiences as perpetrators are often discounted, leaving them devoid of agency.¹⁵⁵

Urgent attention is also needed in relation to the perpetration of filicide in the country. In its study, the HSRC highlighted the scarcity of research on the topic and the failure to recognise filicide as a distinct category in reporting child deaths, hindering multi-sectoral intervention and discernible findings.¹⁵⁶ It has further highlighted the necessity to recognise the intersections of violence against women and children to enable integrated preventative responses.¹⁵⁷

Especially relevant is the extent to which the HSRC highlighted relationship dissolution as a high-risk factor leading to filicide in South Africa.¹⁵⁸ Important developments on this front include the recent judgment in Centre v Child Law v TS and Others,¹⁵⁹ where the Constitutional Court ruled that specific sections of the Mediation in Certain Divorce Matters Act 24 of 1987 was unconstitutional as it failed to provide families equal access to the services of the Office of the Family Advocate as it was only available to married parents and not parents who were never married, or married and separated but not divorced. The judgment will enable the Family Advocate’s Office to assist in resolving disputes irrespective of the status of a relationship and could provide valuable protective support to high-risk families.¹⁶⁰ Parliament was granted 24 months within which to amend the legislation and, provided for an interim reading in the legislation to allow unmarried parents to approach the Office of the Family Advocate if needed.

The HSRC further recommended the need to bridge the policy implementation gap by shifting from a current reactive model in relation to filicide to a proactive and preventive model and to develop appropriate and robust interventions. This would entail multi-sectoral collaboration, which would not be an easy task considering governmental constraints and challenges.¹⁶¹ There is a need to understand the vulnerabilities of children and the contextual factors that drive parents to murder their children.¹⁶²

Sentencing is complex considering the wide range of factors that must be taken into account to determine the severity of a sentence.¹⁶³ The murder of a child is a serious offence, and repeating Oberman’s statement, there is little doubt that mothers who murder their children should be held accountable.¹⁶⁴ The challenge of these cases is determining the “appropriate level of accountability to attribute to these women” and for courts to do so cognisant of possible stereotypical notions of motherhood that could influence its discretion.¹⁶⁵ It is important for sentencing courts in South Africa to openly acknowledge the structural causes of violence and crime, specifically in the context of filicide. As Brennan argues, understanding the contribution of socio-political factors would provide for a more open and thorough account of the crime and reasons for mitigation, and help shift the focus from placing blame solely on the individual women and their compliance with gender norms.¹⁶⁶