Between punishment and absolution

Francesco Martin
Current events

«It is in pardon that we are pardoned»

St Francis of Assisi

The matter of the relationship between a mother and her child has, especially in the last months, caught the public eye fueling a cultural and television debate, as a consequence of the discussion on abortion, it has also been addressed by the Supreme Court in the United States.
Indeed, if this bond represents the highest, most unquestionable and absolute form of love, there have been cases in which all this has lead to death.
This brings us to the point in which the abstractness and tragedy of the Greek myth of Medea are put aside, in favour of the pragmatism, often too clear cut, of criminal law.

The connotations of this topic cannot be considered merely from a legal point of view; however, jurisprudence was recently invested with legitimacy.
The Court of Cassation was called to rule on the homicide case, committed by a mother, whose victim was her newborn son.
What has emerged through the reconstruction is that, after keeping the pregnancy hidden and giving birth at home, by taking advantage of her partner’s absence, the accused put her newborn son in a plastic bag and abandoned him behind a bush. 
The Court questioned the existence of a homicidal intention, as it was sentenced by the Courthouse and the Appeal Court, or if it was a mere child abandonment; these felonies, which could seem to be very similar under a moral judgment, can actually be deeply different according to the criminal system.

By examining the appeal presented by the defence attorney, the Court has recognised the following: «The Constitutional College considers to grant continuity to the hermeneutical option, which prevails in the jurisprudence of legitimacy, according to which the factual situation of abandonment, constitutes the case of an objective requirement to be however read “on its subjectivety” or, in any case, in an “individualizing” sense (Sec. 1, n. 40993 of 7th Oct 2010, Grieco, Rv. 248934 – 01; Sec. 1, n. 26663 of 23rd May 2013, Bonito, Rv. 256037 – 01 Sec. 1, n. 28252 of 22nd Jan 2021, Izzo, Rv. 281673 – 01). Therefore, the situation of “moral and material abandonment”, even when representing a particular element of the fact, should not be considered of an absolute nature, as it is sufficient to integrate it with “the perception of total abandonment perceived by the woman within a complex emotional and mental experience linked to pregnancy and labor”.  

Consequently, the case, is considered in art. 578 p.c., is appliable even when it is possible, in the territorial context in which the child’s birth happens, to obtain help from health centers and or institutions. The condition of existential loneliness, however, prevents the woman from seizing these opportunities, inducing her in giving birth in a state of factual dereliction.  (Sec. 1, 13th June 1991, n. 8489)».

The thought process brought on by the Supreme Court is built on consolidated precedents based on the matter that demands an evaluation not only litteral of the law but a necessary study of the social and psychological existential context of the woman.
Such a judgment does not merely concern the economic and social factor, defined as an unspecified poverty line, but it must consider the whole human sphere, characterising a pregnancy and the subsequent growth of a child.
The Court argues more in detail that: «Therefore, in determining the criminal event, many biological, social, as well as relational factors can have an active role in the measure in which they impact, on one side, the condition of severe psychophysical stress connected to childbirth and, secondly, the particularly adverse context of loneliness in which the whole gestation and labor were collocated.
Therefore, noting as indicators of the “abandonment” condition, to be in any case considered as “total” to condition the decision of suppressing the newborn completely, not only the cases of hidden or opposed pregnancy, resulting in material and emotional loneliness, of extreme poverty, of degraded social context, but also the insufficient cultural maturity of the mother or, in any case, an individual psychological condition severely altered by the emotional and mental experience of pregnancy and labor».
What must be correctly evaluated by the judge is not the event of death, which already represents a significant factor, but the underlying motivations behind the act.
It is necessary to highlight if there is a clear and precise will on behalf of the mother to kill her newborn son, or if it had been a choice, equally tragic, to abandon him because of economic, social as well as personal conditions which were such to push the mother towards a similar choice that, at least on a psychological level, is the opposite to every instinct.
Therefore, the Court of Cassation denied the Appellate’s Court decision and asked the same to review its judgement.
If criminal justice has taken its course, even if not permanently, we are left with relevant questions on which we, including the judge, must reflect and tackle.
The abandonment of a son perpetrated by the mother, as well as the mere silence of the pregnancy, the act that gives life, has instead created a state of psychological and physical discomfort as generating a tragic cause.
Keep in mind that this case cannot be dismissed as a psychological condition or an economic situation; it would be a sterile and mere simplification.
Similarly, we cannot blame the failure of a pregnancy interruption or the existence of doctors who are conscientious objectors and would have made this possibility more complicated if  not impossible; indeed, in this case, the solution to the problem would not be to make easier access to abortion that, independently from one’s choice, requires a deeper and more complicated understanding.
Finally, we cannot assert that the difficulty could be managed by abandoning the child in a hospital or any other clinic that guarantees anonymity for the mother and safety for the newborn. 
It is quite the opposite, these elements might suggest a reflection on why these social tools were not used.
Therefore, it’s necessary to focus on why, and, considering the statistics (which are not completely reliable because of the secrecy around these facts) and the specific laws on the matter, not even so seldom, the quintessential act of love could be hidden to one’s partner or, in more serious cases, escalate in homicide or total abandonment of a newborn child, which was kept in a womb for nine months.
What came to my mind, as my first thought after reading this verdict, was a sentence said by St. Francis of Assisi «It is in pardoning that we are pardoned».
Therefore, in doing so, there is the need to go beyond a mere juridical aspect that will be decided in a courthouse, and rather focus on the human and psychological point of view.
The act of killing one’s son, therefore, going against what is the natural relationship between mother and her newborn, is permeated with desperation, anguish, and emotions that cannot be comprehended nor imagined.
This act requires only one thing: absolution.
Lastly, besides psychological support and the economic issue, it could be enough to make sure that the woman feels understood, supported, and happy of being able to do something unique: give life.

For now, instead, she is simply condemned.

[1] Cass. Pen., Sez. I, 30 giugno 2022, n. 24949.

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