Dr Emma Milne is Associate Professor in Criminal Law and Criminal Justice at Durham Law School. She is a feminist socio-legal scholar. The focus of her research is the social, legal, and cultural controls and regulation of all women, notably in relation to pregnancy, sex, and reproduction. Address: Durham University Durham Law School Palatine Centre South Road Durham DH1 3LE
Despite academic, policy and charity commissioned research giving considerable attention to the h... more Despite academic, policy and charity commissioned research giving considerable attention to the health of imprisoned women, significantly less research has considered the reproductive health and rights of this group. This shortfall is noteworthy since women who are imprisoned are often in very vulnerable positions, and so their ongoing healthcare in relation to gynaecology, obstetrics and sexual health and wellbeing, as well as access to such rights, should be a priority. These issues are exacerbated for the high number of women who are repeatedly imprisoned for short sentences. Presenting findings of a rapid evidence assessment, this article highlights the lack of attention to this aspect of imprisoned women’s health and rights, using the limited information available. The article argues that suitable reproductive healthcare needs to be seen as an essential aspect of women’s rights. Furthermore, the current nature of imprisonment in England and Wales results in multiple and frequent rights violations.
Risk and Substance Use: Framing Dangerous People and Dangerous Places, Feb 21, 2020
Debate rages over communicating messages to the public regarding alcohol consumption during pregn... more Debate rages over communicating messages to the public regarding alcohol consumption during pregnancy. This chapter considers how research-based evidence has been translated into risk communications through three key mechanisms: ‘official’ publications and guidance issued by government departments or health authorities in the UK; websites run by advocacy groups; and midwives at the front line in delivering advice to women. Concern over drinking in pregnancy is not new but over recent decades the ‘risk narrative’ around alcohol has strengthened and the ‘precautionary principle’ has dominated advice on drinking in pregnancy, although systematic reviews and longitudinal prospective studies have found no evidence of harm from low alcohol intake during pregnancy. Official guidance and advocacy sources have become increasingly consistent regarding the way in which alcohol consumption during pregnancy is framed in terms of risk to the foetus, whereas research studies indicate more diverse and nuanced views among midwives. The chapter considers how the issue is framed by different stakeholders and how official sources and advocacy are attempting to shift towards the ‘precautionary principle’. It also illustrates how moral frameworks and value judgements underpin attitudes and approaches towards alcohol consumption in pregnancy and pose questions regarding female autonomy in relation to the rights of the foetus and the responsibility of the mother.
The fetus-first mentality advocates that pregnant women and women who could become pregnant shoul... more The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetus before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavy over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where fetuses have been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article will conclude that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.
Feminists have long argued that women who offend are judged by who they are, not what they do, wi... more Feminists have long argued that women who offend are judged by who they are, not what they do, with idealised images of femininity and motherhood used as measures of culpability. The ability to meet the expectations of motherhood and femininity are particularly difficult for women who experience a crisis pregnancy, as evident in cases where women have been convicted of concealment of birth. The offence prohibits the secret disposal of the dead body of a child, to conceal knowledge of its birth. Traditionally used to prosecute women suspected of killing their newborn children, analysis of court transcripts suggests the offence is also used to punish women who fail to meet expectations of motherhood. This paper analyses three contemporary cases in light of the historical origins of the offence, illustrating the legacy of prejudice against ‘deviant’ mothers. Finally, it questions the continued existence of this archaic offence.
Several jurisdictions have special infanticide laws which allow for lenient treatment of women wh... more Several jurisdictions have special infanticide laws which allow for lenient treatment of women who kill their infants. These laws, based on the English legislative model, typically allow for an infanticide charge/conviction where women kill their infants in mitigating circumstances. The rationale for lenient treatment is medical, namely that the woman was suffering from a disturbance in the balance of mind caused by the effects of childbirth or lactation consequent upon childbirth. Historically, infanticide laws were enacted because widespread sympathy for unmarried women who killed their infants caused difficulties for the efficient and effective prosecution of this offender. Infanticide laws sought to address these difficulties by formalizing lenient treatment. In the contemporary context, several problems with these laws have been identified, not least of which is the dubious medical rationale. Some jurisdictions have reformed their laws to address these criticisms.
Children are most likely to be killed by their parents. Infants aged under one are at particular ... more Children are most likely to be killed by their parents. Infants aged under one are at particular risk of becoming victims of homicide. Men rarely commit neonaticide, but are more likely to kill older children and often within the context of fatal child abuse. Women's motivations for killing are often within the context of mental illness or altruistic reasons. Women are less likely to be convicted of murder than men and receive non-custodial sentences more readily than father who kill their children. It is often argued that women who kill their infants are pathologized, and perceived to be either mad or bad, ignoring the socio-economic reasons for their acts of filicide. Legal treatment of women who kill infants can be inconsistent and, in some instances, unsympathetic, particularly in jurisdictions that do not have specific infanticide legislation that allows for leniency, such as the United States of America.
Women and the Criminal Justice System: Failing Victims and Offenders?, 2018
Women's experiences of crime as both offenders and victims are different to their male counter-pa... more Women's experiences of crime as both offenders and victims are different to their male counter-parts. They commit less crime, and the crime they commit is generally different to men's, with less involvement in violent crime, criminal damage or professional crime. Women are much more likely to be victims of sexual and physical assault at the hands of a man they are acquainted with and in the context of relationships. However, women's involvement with the criminal justice system often results in their isolation, stigmatisation and inadequate support - whether they are victims, offenders or both. This volume attempts to consider women's involvement in criminal justice as a whole - to move beyond the silo of seeing two distinct groups by recognising that for many women there are similarities in both pathways to offending and pathways to victimisation. Furthermore, it aims to put women at the centre of the debate on crime and punishment. Too often in political discussions, academia and media reports, women's involvement in the system is marginalised, ignored or lost in the concerns about male crime. This introduction highlights the key areas of debate and introduces the contributions by the authors in this collection.
Women and the Criminal Justice System: failing victims and offenders?, 2018
This chapter considers the unusual case where a woman is suspected of killing her newborn baby fo... more This chapter considers the unusual case where a woman is suspected of killing her newborn baby following a secret pregnancy and birth. The research on what we know about the circumstances and incidence of what has been termed 'neonaticide' is explored. The complexities of these cases in terms of their circumstances and the vulnerability of women who conceal their pregnancies is highlighted. Following this, the difficulties, from a legal perspective, that arise when seeking to prosecute women for homicide when their babies die following an unassisted concealed birth are considered. What we know about current criminal justice practice in these cases is also explored. Unfortunately, there is limited research on current criminal justice practice in these cases, and little is therefore known about the approach taken by the police, prosecutors and the courts in cases involving suspected homicides of newborns. The need for further research on the criminal justice response is highlighted, and the appropriateness of criminalising women and girls in these cases, particularly given their unique circumstances of vulnerability, is questioned.
Women and the Criminal Justice System: failing victims and offenders?
Violent women pose a specific challenge for feminist scholars. Nevertheless, it is important for ... more Violent women pose a specific challenge for feminist scholars. Nevertheless, it is important for both the offender and her victims that feminists engage with this form of offending. This chapter considers some of the data concerning women's violence, the public and professional responses to violent women and how researchers have attempted to understand their behaviour. Focusing around 'extreme' deeds, we use two forms of offending - women who kill, and women who sexually abuse children - to explore what we know about female violence and the significance of gender in both social and legal contexts.
Despite academic, policy and charity commissioned research giving considerable attention to the h... more Despite academic, policy and charity commissioned research giving considerable attention to the health of imprisoned women, significantly less research has considered the reproductive health and rights of this group. This shortfall is noteworthy since women who are imprisoned are often in very vulnerable positions, and so their ongoing healthcare in relation to gynaecology, obstetrics and sexual health and wellbeing, as well as access to such rights, should be a priority. These issues are exacerbated for the high number of women who are repeatedly imprisoned for short sentences. Presenting findings of a rapid evidence assessment, this article highlights the lack of attention to this aspect of imprisoned women’s health and rights, using the limited information available. The article argues that suitable reproductive healthcare needs to be seen as an essential aspect of women’s rights. Furthermore, the current nature of imprisonment in England and Wales results in multiple and frequent rights violations.
Risk and Substance Use: Framing Dangerous People and Dangerous Places, Feb 21, 2020
Debate rages over communicating messages to the public regarding alcohol consumption during pregn... more Debate rages over communicating messages to the public regarding alcohol consumption during pregnancy. This chapter considers how research-based evidence has been translated into risk communications through three key mechanisms: ‘official’ publications and guidance issued by government departments or health authorities in the UK; websites run by advocacy groups; and midwives at the front line in delivering advice to women. Concern over drinking in pregnancy is not new but over recent decades the ‘risk narrative’ around alcohol has strengthened and the ‘precautionary principle’ has dominated advice on drinking in pregnancy, although systematic reviews and longitudinal prospective studies have found no evidence of harm from low alcohol intake during pregnancy. Official guidance and advocacy sources have become increasingly consistent regarding the way in which alcohol consumption during pregnancy is framed in terms of risk to the foetus, whereas research studies indicate more diverse and nuanced views among midwives. The chapter considers how the issue is framed by different stakeholders and how official sources and advocacy are attempting to shift towards the ‘precautionary principle’. It also illustrates how moral frameworks and value judgements underpin attitudes and approaches towards alcohol consumption in pregnancy and pose questions regarding female autonomy in relation to the rights of the foetus and the responsibility of the mother.
The fetus-first mentality advocates that pregnant women and women who could become pregnant shoul... more The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetus before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavy over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where fetuses have been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article will conclude that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.
Feminists have long argued that women who offend are judged by who they are, not what they do, wi... more Feminists have long argued that women who offend are judged by who they are, not what they do, with idealised images of femininity and motherhood used as measures of culpability. The ability to meet the expectations of motherhood and femininity are particularly difficult for women who experience a crisis pregnancy, as evident in cases where women have been convicted of concealment of birth. The offence prohibits the secret disposal of the dead body of a child, to conceal knowledge of its birth. Traditionally used to prosecute women suspected of killing their newborn children, analysis of court transcripts suggests the offence is also used to punish women who fail to meet expectations of motherhood. This paper analyses three contemporary cases in light of the historical origins of the offence, illustrating the legacy of prejudice against ‘deviant’ mothers. Finally, it questions the continued existence of this archaic offence.
Several jurisdictions have special infanticide laws which allow for lenient treatment of women wh... more Several jurisdictions have special infanticide laws which allow for lenient treatment of women who kill their infants. These laws, based on the English legislative model, typically allow for an infanticide charge/conviction where women kill their infants in mitigating circumstances. The rationale for lenient treatment is medical, namely that the woman was suffering from a disturbance in the balance of mind caused by the effects of childbirth or lactation consequent upon childbirth. Historically, infanticide laws were enacted because widespread sympathy for unmarried women who killed their infants caused difficulties for the efficient and effective prosecution of this offender. Infanticide laws sought to address these difficulties by formalizing lenient treatment. In the contemporary context, several problems with these laws have been identified, not least of which is the dubious medical rationale. Some jurisdictions have reformed their laws to address these criticisms.
Children are most likely to be killed by their parents. Infants aged under one are at particular ... more Children are most likely to be killed by their parents. Infants aged under one are at particular risk of becoming victims of homicide. Men rarely commit neonaticide, but are more likely to kill older children and often within the context of fatal child abuse. Women's motivations for killing are often within the context of mental illness or altruistic reasons. Women are less likely to be convicted of murder than men and receive non-custodial sentences more readily than father who kill their children. It is often argued that women who kill their infants are pathologized, and perceived to be either mad or bad, ignoring the socio-economic reasons for their acts of filicide. Legal treatment of women who kill infants can be inconsistent and, in some instances, unsympathetic, particularly in jurisdictions that do not have specific infanticide legislation that allows for leniency, such as the United States of America.
Women and the Criminal Justice System: Failing Victims and Offenders?, 2018
Women's experiences of crime as both offenders and victims are different to their male counter-pa... more Women's experiences of crime as both offenders and victims are different to their male counter-parts. They commit less crime, and the crime they commit is generally different to men's, with less involvement in violent crime, criminal damage or professional crime. Women are much more likely to be victims of sexual and physical assault at the hands of a man they are acquainted with and in the context of relationships. However, women's involvement with the criminal justice system often results in their isolation, stigmatisation and inadequate support - whether they are victims, offenders or both. This volume attempts to consider women's involvement in criminal justice as a whole - to move beyond the silo of seeing two distinct groups by recognising that for many women there are similarities in both pathways to offending and pathways to victimisation. Furthermore, it aims to put women at the centre of the debate on crime and punishment. Too often in political discussions, academia and media reports, women's involvement in the system is marginalised, ignored or lost in the concerns about male crime. This introduction highlights the key areas of debate and introduces the contributions by the authors in this collection.
Women and the Criminal Justice System: failing victims and offenders?, 2018
This chapter considers the unusual case where a woman is suspected of killing her newborn baby fo... more This chapter considers the unusual case where a woman is suspected of killing her newborn baby following a secret pregnancy and birth. The research on what we know about the circumstances and incidence of what has been termed 'neonaticide' is explored. The complexities of these cases in terms of their circumstances and the vulnerability of women who conceal their pregnancies is highlighted. Following this, the difficulties, from a legal perspective, that arise when seeking to prosecute women for homicide when their babies die following an unassisted concealed birth are considered. What we know about current criminal justice practice in these cases is also explored. Unfortunately, there is limited research on current criminal justice practice in these cases, and little is therefore known about the approach taken by the police, prosecutors and the courts in cases involving suspected homicides of newborns. The need for further research on the criminal justice response is highlighted, and the appropriateness of criminalising women and girls in these cases, particularly given their unique circumstances of vulnerability, is questioned.
Women and the Criminal Justice System: failing victims and offenders?
Violent women pose a specific challenge for feminist scholars. Nevertheless, it is important for ... more Violent women pose a specific challenge for feminist scholars. Nevertheless, it is important for both the offender and her victims that feminists engage with this form of offending. This chapter considers some of the data concerning women's violence, the public and professional responses to violent women and how researchers have attempted to understand their behaviour. Focusing around 'extreme' deeds, we use two forms of offending - women who kill, and women who sexually abuse children - to explore what we know about female violence and the significance of gender in both social and legal contexts.
Analysis of criminal cases reveals that women suspected of killing their newborn children are som... more Analysis of criminal cases reveals that women suspected of killing their newborn children are some of the most vulnerable in our society and that infanticide is not just a historical issue but one that has modern implications. While women are less likely to commit violent crime, maternal infant homicide is an enduring form of offending that needs to be understood in a wider social context.
In Criminal Justice Responses to Maternal Filicide, Milne provides a comprehensive analysis of conviction outcomes through court transcripts of 15 criminal cases in England and Wales during 2010 to 2019. Drawing on feminist theories of responsibilisation and 'gendered harm', she critically reflects on the gendered nature of criminal justice's responses to suspected infanticide.
This contemporary study makes a novel contribution to the fields of law, criminology and gender studies, arguing that through its inability to recognise the vulnerable position of accused women, and respond accordingly, the application of law reflects wider social judgments of pregnant women and mothers who challenge or fail to fulfil ideals of motherhood.
A comprehensive account of the myriad ways that sex and crime interact in contemporary social lif... more A comprehensive account of the myriad ways that sex and crime interact in contemporary social life, sensitively confronting topics such as nationhood, abortion, child sexual exploitation, war, disability, pornography, and digital cultures. To explain how sex and crime is composed by, and composes, our understanding of these issues, this book:
Draws on the authors’ research expertise, insightful case studies, and leading scholarship from across the globe. Develops students’ capacity to engage thoughtfully with diverse problems and to think critically, this is achieved with the help of creative learning exercises, empathetic questioning, and relevant illustrative examples. Encourages readers to be reflexive, open-spirited, and curious about how issues of sex and crime touch their lives and those of people around them.
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In Criminal Justice Responses to Maternal Filicide, Milne provides a comprehensive analysis of conviction outcomes through court transcripts of 15 criminal cases in England and Wales during 2010 to 2019. Drawing on feminist theories of responsibilisation and 'gendered harm', she critically reflects on the gendered nature of criminal justice's responses to suspected infanticide.
This contemporary study makes a novel contribution to the fields of law, criminology and gender studies, arguing that through its inability to recognise the vulnerable position of accused women, and respond accordingly, the application of law reflects wider social judgments of pregnant women and mothers who challenge or fail to fulfil ideals of motherhood.
Draws on the authors’ research expertise, insightful case studies, and leading scholarship from across the globe.
Develops students’ capacity to engage thoughtfully with diverse problems and to think critically, this is achieved with the help of creative learning exercises, empathetic questioning, and relevant illustrative examples.
Encourages readers to be reflexive, open-spirited, and curious about how issues of sex and crime touch their lives and those of people around them.