Some approaches on the offense of murder or injury of the newborn committed by the mother, provided in article 200 of the new criminal code

• Author: Mihaela Rotaru
• Position: Assistant Lecturer, PhD Candidate, Faculty of Law, 'Alexandru Ioan Cuza' Police Academy, Bucharest
• Pages: 148-155

LESIJ NO. XX, VOL. 2/2013

SOME APPROACHES ON THE OFFENSE OF MURDER OR

INJURY OF THE NEWBORN COMMITTED BY THE MOTHER,

PROVIDED IN ARTICLE 200 OF THE NEW CRIMINAL CODE

Mihaela ROTARU

Abstract

In addition to the innovations included in the new Criminal Code, the legislator of this legal act makes

a number of amendments to the existing institutions and offenses in the criminal law. Such a situa tion is

encountered for the offense of murder or injury of the newborn committed by the mother provided in Art. 200

N.C.C., offense that pa rtly corresponds to the offense of infanticide described in Art. 177 of the Criminal

Code in force. The legislator considered it necessar y to also criminalize in the new Criminal Code the act of

injury of the newborn committed by the mother, along with the action of killing, a situation that rightly caused

the change of the marginal na me of the offense. Moreover, another interesting aspect that also c onstitutes

the focus of our appr oach is represented by the two phr ases which are different from those in the lega l text

in force, i.e. “immediately after birth but not later than 24 hours” and “state of mental disorder”, which are

designed to equalize the views expressed in the cr iminal literature regarding the ana lyzed crime a nd the

practice in the field.

Keywords: killing, injury, newborn, mother, disorder.

Introduction

The objective of this study is to analyze two very i mportant, even essential issues in order

to characterize the offense of murder or injury of the newborn committed by the mother, referred

to in Art. 200 of the new Criminal Code

1. The first aspect is related to the choice of the legislator

to limit the situation of being newborn for the passive s ubject of the crime to the first 24 hours

after his birth. The second aspect relevant in supporting our approach is related to the active

subject this time, represented by the mother of the new born child, which should be in “state of

mental disorder” in order to apply to her an attenuated punitive treatment, according to the legal

provisions of the Art. 200 N.C.C., if she kills or hurts her newborn child.

The starting point in this study is represented by the provisions of the new Criminal Code

and the issues raised in the Explanatory Memorand um2 to the new Criminal Code which

determined the form in which the text of the offense was written in the new Criminal Code, on the

one hand, and the provisions of the Criminal Code in force and the jurisprudence and doctrine, on

the other hand.

 Assistant Lecturer, PhD Candidate, Faculty of Law, “Alexandru Ioan űuza” Police Academy, Űucharest

(e-mail: mihaela.rotaru@academiadepolitie.ro).

1 Represented by Law no. 286/2009, published in „The Official Gazette of Romania" no. 510 of July 24,

2009 and most recently amended by Law no. 187/2012, published in „The Official Gazette of Romania" no.

757 of November 12, 2012. Further N.C.C.

2 “Explanatory Memorandum to the new űriminal űode”, accessed: August 4, 2009, http://www.

cdep.ro/proiecte/2009/300/00/4/em304.pdf.