Infanticide

Infanticide according to § 79 StGB covers cases in which the mother kills her child during or immediately after the birth process. The law takes into account the mother’s extraordinary mental and physical state during childbirth. The penalty is significantly lower than that for murder or manslaughter because the act is considered the result of an extremely stressful situation. This special regulation serves to acknowledge that the exceptional psychological state during childbirth can diminish full culpability.

objective elements of the offence

The objective element describes the external act. It requires that the perpetrator kills her own child while the birth is still in progress or has just been completed. The decisive factor is the period in which the mother is still under the physical and psychological exceptional state of birth.

Steps of legal assessment

• Subject of the act: Can only be the mother of the child.
• Actus reus: Any action that leads to the death of the child, such as suffocation, failure to provide assistance after birth, concealment, or abandonment.
• Result of the act: Death of the live-born child.
• Causality: The mother’s behavior must have directly caused the death.
• Attribution: The result must be an expression of the psychological stress resulting from the birth.

Childbirth is considered complete when the child is fully born and separated from the mother’s body. If the killing occurs significantly later, § 79 StGB no longer applies.

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Distinction from other offences

On the classification of homicide offences:

• § 75 StGB – Murder: intentional, planned killing without the influence of special mental states.
• § 76 StGB – Manslaughter: Killing in a fit of passion, without the special circumstances of a birth.
• § 80 StGB – Negligent homicide: Death as a result of culpable negligence, without intent.
• § 81 StGB – Assistance in suicide: concerns completely different constellations, as there is no birth situation.

§ 79 StGB is a special offence: Only the mother can be the perpetrator. Other persons who participate in the act are to be punished according to the general homicide offences.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office

The public prosecutor’s office bears the full burden of proof.
Three key points must be proven:

• Live birth of the child
• Mother’s act as the cause of death
• Direct connection with the birth process

It must provide reliable medical and forensic findings. These include autopsy, breath sample, blood and tissue analyses, documentation of umbilical cord status and body temperature, the time of birth, the trace situation at the crime scene, as well as digital and personal traces.

If alternative sequences of events exist, the public prosecutor’s office must refute them, insofar as they seriously come into consideration.

Court

The court freely and comprehensibly assesses the totality of the evidence. The standard is the certainty required for conviction. Doubts are resolved in favor of the defendant.

Central questions are:

• Did the child certainly live?
• Was the established cause of death reliably determined?
• Was the act temporally and situationally still within the scope of the birth process?
• Is the assessment of the mental state based on a conclusive, methodologically sound expert opinion?

The court examines the quality of the expert opinions, the plausibility of chains of findings, the chain of custody of evidence and the compatibility of the statements with objective traces. Illegally obtained evidence is inadmissible. Contradictions between experts must be clarified openly. In case of remaining unclarities, the principle of doubt applies.

Defendant

The defendant has no burden of proof. She may remain silent and submit motions for evidence through the defense.

Permissible and appropriate are in particular:

• Naming alternative causes such as stillbirth, severe birth complication or postpartum disturbance of consciousness.
• Application for an additional specialist psychiatric or neonatological report.
• Complaint of documentation gaps, insecure securing of traces or faulty methodology.
• Submission of exculpatory documents such as emergency call logs, chat histories or medical records.

The aim is the reasoned undermining of the indictment thesis. Already concrete connecting facts are sufficient to trigger fundamental doubts about live birth, causality or temporal connection.

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Practical example

• A mother kills her newborn immediately after birth out of panic-stricken fear of social ostracism or family consequences.
• A woman secretly gives birth to a child and, overwhelmed, fails to provide any assistance, causing the child to suffocate.

In all these cases, it is crucial that the act is directly related to the birth and that the perpetrator was in an exceptional psychological state. If the killing occurs hours or days later, another offence (manslaughter or murder) exists.

subjective elements of the offence

Intent is required, i.e. the knowledge and will to kill the child. The intent can also be conditional if the perpetrator at least accepts the death. The special feature of § 79 StGB is that the intent is reduced in culpability by the psychological stress. The perpetrator does not act in cold blood, but under the influence of fear, shame, pain and exhaustion.

The case law emphasizes that this affective burden must be supported by objective circumstances. A mere motive such as rejection of the child or avoidance of responsibility is not sufficient to justify the privilege.

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Unlawfulness and justifications

As with all homicide offences, there are no justifications that could allow the death of a child. The element of the offence remains unlawful. The peculiarity lies exclusively in the culpability-reducing assessment.

The burden of proof for the exclusion of justifications lies with the public prosecutor’s office. The defense can use medical and psychological reports to demonstrate that the mother acted in an insurmountable exceptional mental state.

Culpability and mistakes

• Principle of culpability: only those who act with fault are punishable. The reduced ability to control the birth can reduce culpability.
• Insanity: If there is a severe mental disorder, culpability may be excluded.
• Mistake of prohibition: is rarely considered, as the illegality of the killing is generally known.
• Excusable emergency: practically excluded because no balancing in favor of one’s own life is permissible.

Extinction of punishment and diversion

A diversion in the offence of killing a child at birth is generally excluded because the culpability is reduced, but not minor.
A withdrawal from the attempt can only be assumed if the mother independently stops the act she has begun and saves the child.

Sentencing and consequences

The severity of the punishment depends on the individual culpability, the nature of the act and the mental circumstances. The court takes into account in particular the exceptional psychological and physical situation during childbirth, whether assistance was possible and omitted, the living conditions of the mother (social isolation, fear, family pressure) and whether the child was born alive and how long it lived.

Confession, cooperation and psychiatric care have a mitigating effect. Repeated or planned actions exclude the privilege of § 79 StGB.

The sentencing is always based on the guilt and the effects of the act. The court examines how serious the consequences are, how reckless or dangerous the behavior was and whether the action was spontaneous or planned. Likewise, personal circumstances such as previous convictions, life situation, willingness to confess or efforts to make amends are included.

Aggravating circumstances include a particularly reckless approach, multiple or prepared actions, or the targeted concealment of the birth to prevent help.

Mitigating circumstances exist if the mother is of good character, makes a full confession, undergoes psychological treatment or has acted out of an acute emergency and overwhelming situation. A long duration of the criminal proceedings can also have a mitigating effect.

Courts may additionally issue instructions, such as for reparation, therapy or contact restriction and order probation assistance. The aim is to reduce the risk of relapse and promote a stable lifestyle.

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Penalties § 79 StGB

Imprisonment from six months up to five years.
The penalty is significantly lower than that for manslaughter or murder because the act is committed under exceptional psychological circumstances.

Imprisonment and (partially) suspended sentence

Section 37 StGB: If the statutory penalty provides for imprisonment of up to five years, the court should impose a fine instead of a short prison sentence of no more than one year.

Section 43 StGB: A suspended prison sentence may be imposed if the sentence does not exceed two years and the convicted person is deemed to have a favourable social prognosis. The probation period ranges from one to three years. If it is completed without revocation, the sentence is considered finally suspended.

Sections 50 to 52 StGB: The court may also issue instructions and order probationary supervision. Typical instructions concern restitution, therapy, contact or residence prohibitions, and measures aimed at social stabilisation. The objective is to prevent further offences and to promote lasting compliance with the law.

Jurisdiction of the courts

Material: Regional Court as a court of lay assessors
Local: Court of the place of birth or finding of the child.
Instances: Appeal to the Higher Regional Court; appeal on points of nullity to the Supreme Court.

Civil claims in criminal proceedings

The relatives of a deceased child can, as private parties, assert claims for compensation for funeral expenses and emotional distress. In practice, such claims are rare, as these are usually isolated acts without family conflict.

Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

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Rights of the accused

• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.
• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.

Your Benefits with Legal Assistance

A procedure for killing a child at birth requires the highest legal and psychological sensitivity. The act is almost always committed in connection with an extreme physical and psychological exceptional situation. Without professional defense, there is a risk that the special circumstances will be overlooked and the act will be assessed too strictly.

Early legal support enables

• to apply for medical and psychiatric reports in good time,
• to present the psychological burden in a comprehensible way,
• to secure evidence and correct incriminating assumptions,
• and to achieve a fair legal classification.

An experienced defense ensures that human reactions under birth are legally correctly assessed and the special circumstances are not misinterpreted as ordinary killing.

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Frequently Asked Questions – FAQ

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