The Special Infanticide Provision in Spain's Former Criminal Code

The Special Infanticide Provision in Spain's Former Criminal Code made the killing of a newborn a separate offense when committed by a mother to conceal her dishonor, or by the child's maternal grandparents for the same purpose. Rather than treating the act simply as homicide, the law attached a reduced punishment to a narrowly defined family and social circumstance. Its history exposes a tension at the center of the book's legal inquiry: the criminal law could recognize that childbirth and the position of a mother mattered, while making the relief depend on a prescribed account of shame and circumstance.

Historical Background

The book places the provision within a longer history of legal exceptions for infanticide. Its account begins with the plight of servants in Victorian London: women who could lose their positions if they resisted their employers' sexual advances, and who might then be dismissed if they became pregnant. Facing exclusion, poverty, and public disgrace, they and their newborns were left in precarious circumstances. The narrative notes that Queen Victoria intervened so that women who had fallen into disgrace would not receive the death penalty for infanticide. This history presents the exception not as a declaration that killing was harmless, but as a recognition that the circumstances surrounding a mother's act could affect how it was punished.

The Spanish provision followed that logic through the language of dishonor. From 1822 until 1995, Spanish law distinguished infanticide from homicide where a mother killed her newborn to conceal her dishonor; maternal grandparents who killed the child for that purpose faced the same provision. The family relationship and the stated motive were therefore central to the rule. Its scope was specific: it did not describe a general exemption for parents who killed children, but a separate legal category tied to a newborn and to concealment of the mother's social disgrace.

Offense and Punishment

The provision assigned the mother, and the maternal grandparents covered by it, a lesser prison penalty than the ordinary treatment of homicide described in the book. The account emphasizes the gendered premise behind that distinction: infanticide, it argues, was not treated as the same kind of offense when committed by a mother. The law's leniency was conditional, however. It hinged on the motive of hiding dishonor, making social shame part of the legal test rather than recognizing every circumstance of childbirth or motherhood.

Later proposals to amend the law contemplated replacing dishonor as the motivating condition with the emotional tensions associated with childbirth and the puerperal state. Those proposals set a penalty of six months to six years in prison. They are presented as proposed revisions, not as the rule that ultimately remained in force. With the new Spanish Criminal Code of 1995, the separate offense of infanticide disappeared altogether. The book draws the consequence plainly: under the current framework it describes, a mother who kills her baby may be convicted of murder.

Relation to the Alice Espanet Case

The historical provision helps clarify the legal route taken in the case of Alice Espanet, but it was not the defense advanced for her. After the deaths of her twins, her lawyer, Carmela Basaguren, argued that Alice should be absolved on the ground of mental incapacity under Article 20.1 of the Spanish Criminal Code. That provision concerns a person's inability, because of a psychological anomaly or disorder, to understand the unlawfulness of an act or to act in accordance with that understanding. It is distinct from the former infanticide category, which depended on the victim being a newborn and on a specified motive of concealing dishonor.

The trial's medical evidence also makes the distinction significant. When the prosecutor pressed the psychiatrist on the basis for diagnosing Alice with postpartum psychosis, he acknowledged that his assessment relied on her conduct and her own account, rather than an official diagnosis. The legal question in Alice's case was thus framed around psychiatric responsibility, not the former law's particular account of maternal shame. After the jury's decision, the court substituted outpatient psychiatric treatment for imprisonment. That outcome belongs to the case's mental-health and sentencing framework, not to the abolished infanticide provision.

Legal and Social Significance

By setting the Spanish rule beside the contemporary Canadian provision discussed in the book, the narrative shows that jurisdictions draw the boundary between infanticide and other forms of homicide differently. The Canadian law described there concerns a child under one year old and a disturbance connected with pregnancy, childbirth, or lactation; the book also questions the use of the killing itself as evidence of such a disturbance. The comparison underscores how much depends on the legal category chosen: one framework centers dishonor, another a condition associated with reproduction, while the Spanish framework used in Alice's case centers capacity to understand and control conduct.

The former Spanish provision therefore matters both for what it recognized and for what it left outside recognition. It treated the circumstances of a mother's act as legally consequential, yet tied its special treatment to the concealment of dishonor; later proposals shifted attention toward the psychological pressures of childbirth, and the 1995 code removed the distinct offense. Against that history, the case of Alice Espanet illustrates a different present-day question: not whether a mother's dishonor warrants a lesser charge, but whether mental illness can exempt a defendant from criminal responsibility and what form of treatment should follow.