The Infanticide Article under Franco, 1937–1963: ‘Leniency’, judicial discretion and forensic knowledge

Abstract

The penal codes of the Francoist dictatorship included an article about the so-called crime of ‘infanticide’, which established a lower penalty, compared to the penalty set for other homicides, for cases where ‘a mother kills her newly-born child to conceal her dishonour’ or ‘the maternal grandparents commit the crime to conceal the mother’s dishonour’. How does the leniency of the Francoist infanticide article fit in the criminal law of the dictatorship with its tendency to high penalties and discretional criminal legal system, as well as with its emphasis on pro-natalist policies? This thesis analyses whether the Francoist infanticide article was accepted and applied, and how it was interpreted by jurists under Franco in the early decades of the Francoist dictatorship (1937–1963). Responding to this question, I conclude that the project of building a new law for the dictatorship, as well as the dominant ideas about women and the family promoted in a top-down fashion by the regime, led to disagreement and critiques amongst jurists regarding the infanticide article (and these interpretations and critiques, in some cases, were similar to those articulated by German and Italian jurists). This, in turn, had effects in practice regarding how often the article was applied. More concretely, Francoist prosecutors and judges attempted to limit the boundaries and scope of the lenient infanticide article in various ways: modulating the penalty within the scope they had for discretion, interpreting it strictly and making individual assessments of the perpetrators’ motives (based to a large degree on assumptions about gender and family roles). In sum, the infanticide article, and its leniency, was criticized and problematized under Franco, but it was also applied often by judges. This, I argue, reflected not only how the lower penalty of the infanticide article coexisted with the typical high penalties in the Francoist criminal law, but also points to a broader tension between law and judicial discretion that was characteristic of criminal law under Franco. Specifically, I arrive at the conclusion that the judgments were indeed examples of the interpretative discretion that Francoist judges had, which dovetailed neatly with the intrinsic ambivalence and dependence on moral assessments of the Spanish infanticide honoris causa article. In this regard, I have also shown that the notion of redemption, which was not original but was typical of the Francoist penitentiary discourses, shaped adjudication in infanticide trials. The findings of this thesis suggest that the international historiography of infanticide could give more attention the entanglement of lenient infanticide laws with Christian doctrines and understandings of punishment, leniency and forgiveness. It also calls for studies on the later developments of infanticide laws and legal opinions about them. More specifically, it would be relevant to study whether the critical arguments developed under fascist regimes contributed to the abrogation of special infanticide laws in the 1980s and 1990s in Spain (where the infanticide article was abrogated in 1995) and in other countries.