O infanticídio no código penal de 1940: crítica à aplicação do critério fisiopsíquico

Abstract

lnfanticide is described in the Brazilian Penal Code of 1940 as follows: "The killing by the mother of her newborn child during or soon after the birth under the influence of puerperal state". "Penalty: two to six years of prison". This law grants the mother who kills her newborn child a lighter punishment than that given to homicides in general. For this to occur, however, it is necessary that the crime be committed in a special state of mind, resulting from the "influence of puerperal state". By principle, modern Psychiatry refuses a pathogenetic role to birth and puerperium wherefore we decided to study 55 cases in which a woman was prosecuted for infanticide in the city of Rio de Janeiro, between the first of January of 1900 and December 31 of 1993, in order to delineate the role that psychiatric disturbances might have played in the genesis of such cases. We found that, although 36% of the infanticide stated having committed the crime under the influence of some psychopathological disturbance, generally amnesia, the analysis of the cases revealed that in all of them this disturbance was a feigned one. On the other hand, we found that infanticides were mainly young, single, poorly educated women, generally working in non-qualified jobs, for whom an illegitimate child would represent for various reasons an additional burden. In conclusion we affirm that infanticide is a motivated act, not the consequence of any psychiatric disorder and that the privileged legal treatment enjoyed by these women is based on moral factors and not on scientific evidence.