Infanticide
Single women who fell pregnant after a violent rape or after being pressured into sexual intercourse were, as we have already seen, considered to have consented. Such women, along with the many others whose partners refused to marry them when they conceived a child, found themselves in an extremely difficult position.
They belonged to households and communities that regarded sexual intercourse outside marriage as a sin warranting harsh punishment. The options for a woman in this situation were limited: she could attempt to force her reluctant partner into marriage by reporting him to the civil or church authorities; she could face down community disapproval, but then be condemned to live as a social pariah; or she could conceal the pregnancy, abandon the baby or try to farm it out to someone else. Killing the child was of course another option, and one taken by many desperate women throughout the period. Infanticide, or the murder of a newborn child, was a crime nearly always committed by women and the punishment for it throughout early modern Europe was death, often involving torture, drowning or impaling in order to highlight society's revulsion at such a crime.[507]Most legal theorists and legislators would have agreed with the German jurist Benedikt Carpzov who wrote in 1652: ‘What [is] more horrible than to turn one's pitiless hands on one's own children against affection, natural love and the rights of blood.'[508] Yet, the weight of the law against infanticide fell most heavily upon single women or women whose husbands were absent. Given the state of medical knowledge, married women living with their husbands in established households who wanted to limit the size of their families had options that single women did not enjoy to nearly the same extent. Deliberate overlaying, suffocation or failing to feed a newborn child could have occurred without anyone suspecting, let alone being able to prove, a crime.[509] But with single women too, it was often impossible to determine for certain whether a neonate had been born alive or dead.
In seventeenthcentury Nuremberg and Württemberg women could be tortured in an attempt to determine if a baby had lived; and, if it was decided that the baby had been born alive, then execution by beheading was the penalty for infanticide.[510] In recognition of the difficulties involved in determining the cause of death, the authorities increasingly criminalised the concealment of the pregnancy. This was on the basis that a woman who did not publicly acknowledge her pregnancy and make preparations for the child's care, must have intended to kill it. An English act of 1624 made it a crime for a woman to conceal her illegitimate child's death, unless at least one witness was ready to swear it had been a stillbirth.[511] In Württemberg an ordinance of 1658 required anyone suspecting a woman of concealing a pregnancy to report her to the authorities. She was then carefully watched so as to ensure witnesses were present at the birth.[512]It is possible that itinerant rural working women or single independent women living in large cities had more opportunities to conceal pregnancies and to dispose of infant bodies than single women living in regular households under the prying eyes of mothers, mistresses or neighbours. In 1721, when the drains of Rennes were repaired, the skeletal remains of some eighty infants were discovered, suggesting that urban drains offered an effective means of disposing of unwanted infants.59 The women who consigned their children's bodies to the drains of Rennes, and of other cities as well, were likely to have been servants or daughters living in households where they had been able to conceal their pregnancies, but were unable to hide a newborn child. Other women, who came to the attention of authorities after the deaths of neonates, had already given birth to illegitimate children or had been suspected of killing previous babies. This suggests that, whereas communities might have tolerated one sexual lapse, they were much less prepared to countenance continuing ones.
It is clear from testimony given in court, however, that neighbours, midwives or family members did on occasion help single mothers conceal births and ensure that the newborn did not survive.[513] All this means that the convictions for infanticide or concealment of birth recorded by courts cannot be considered at all an accurate measure of the extent of the crime.While the harsh penalties against infanticide enacted during the sixteenth and seventeenth centuries continued into the modern era in many places, in others they were eased as courts became more willing to give women the benefit of the doubt. In England, for instance, by the eighteenth century temporary insanity was being increasingly accepted as a plea in infanticide cases. This could still lead to a conviction, but it also held out the possibility of a pardon.[514]