A Mother's Crime to Her Newborn Child in the Iraqi penal Code and other countries. (comparative study)


Abstract The penalty for premeditated murder in the Iraqi Penal Code is death or life imprisonment. The legislator went further than that through the provision (D) of the Article (406), which states (Capital punishment shall be imposed on anyone who intentionally kills a soul in one of the following cases) (d / If the murdered is one of the killer's descents ); we see in this article that the legislator has emphasized the punishment and considers it an aggravating circumstance when committing the crime of murder, while we find that there is an explicit legal article that excludes the mother from the punishment for premeditated murder, which is the Article (407) that refers to (punishing with imprisonment for a period not exceeding ten years or imprisonment for a period of no less than one year انؼزاقجايؼح يٛظاٌ – كهٛح انمإٌَيجهح يٛظاٌ نهذراطاخ انمإََٛحانًمارَحISSN-2521-4675 562for the mother who kills her newborn child out of shame if she was pregnant with an incest child). So the legislator gave the mother a legal mitigating excuse and determined the crime of killing her newborn child to avoid shame in clear terms through the provision of the Article (407). So, he/she did not prevent her from fully criminal responsibility whereas the penal laws of many countries have indicated that the killing of a mother to her newborn child is a crime and set their own legal terms as they disagreed with certain details and reasons such as (Jordan, Switzerland, France, Lebanon, Syria, Morocco, and Iran). There was also another opinion by the Islamic jurisprudence in this case, as it sometimes gave the right to the father to kill the child and at other times it gave the right to the mother, and the third opinion included the two to kill the newborn. Here the penal laws also have different stances regarding different law sources. Some of them take jurisprudence and Islamic law as the main source, and others rely on situational sources.Key words: murder, mother, newborn baby, shame, mitigating excuse