Newfound Religion: Mothers, God, and Infanticide
Ayres, Susan, Fordham Urban Law Journal
Infanticide dates back to ancient times--in Greek city-states, for instance, disabled newborns were left outside to die of exposure) Other ancient cultures--including Muslim, Hindu, and Chinese cultures--practiced infanticide for varying reasons. (2) In the middle ages, infanticide was common in Western Europe and different methods of killing infants, such as overlaying a child (suffocation), were considered merely venial or minor sins. (3) In the seventeenth century, the concern over infanticides of illegitimate children resulted in the 1624 English concealment law which provided that single women who concealed their pregnancies were presumptively guilty of infanticide unless they could prove the child was born dead. (4) In the eighteenth and nineteenth centuries in England, infanticide was so common as to be considered an epidemic. (5) In the United States, infanticide has been criminalized as murder and is not treated as a separate offense, as opposed to in England, where the Infanticide Acts of 1922 and 1938 treat infanticide as a lesser charge of manslaughter. (6)
At the current time, news reports of infanticide appear almost daily in the United States. (7) The actual incidence of infanticide is impossible to calculate because of reporting difficulties and problems in ascertaining the causes of death. (8) Some estimate that one infant is killed every day in the United States; (9) a jury in a recent Texas case was told that five-hundred women kill their children each year. (10) This essay focuses on recent Texas cases involving postpartum psychosis and asks whether the mothers or their criminal trials can be seen as subverting traditional notions about motherhood and violence. Are there trial strategies that overcome traditional stereotypes that the infanticidal mother is mad or bad? Are there trial strategies that provide juries with a more complete story of the mother's actions?
Before considering these questions, it is important to distinguish postpartum blues, depression, and psychosis. Postpartum blues--characterized by crying, mood swings, and anxiety--affects up to eighty percent of women after childbirth and lasts a brief period of hours or days. (11) Postpartum depression--a more serious illness--affects about seven to seventeen percent of new mothers and typically lasts several months. (12) Postpartum depression has the same symptoms as clinical depression including "loss of interest in usually pleasurable activities, loss of appetite, sleep disturbance, fatigue ... excessive guilt, and suicidal thoughts." (13)
Postpartum psychosis is much more severe and rare than postpartum depression, affecting 0.2 percent of new mothers. (14) The symptoms include "hallucinations or delusions, severe depression, and thought disorders." (15) Often, the hallucinations or delusions are commands to kill the child, or delusions that the child is possessed by the devil or evil spirits. (16) Postpartum psychosis is a long-term and progressive illness that waxes and wanes--in other words, the symptoms disappear and then reappear more intensely. (17) As experts comment, "[b]ecause moments of complete lucidity are followed by frightening psychosis.... [t]he illness may go unrecognized and untreated. Out of shame, guilt, or a paranoid delusional system, the new mother may not share her bizarre thoughts and fears." (18) Moreover, women suffering from mental illness before pregnancy are at greater risk for postpartum depression or postpartum psychosis. (19) And women with previous incidents of postpartum psychosis are at greater risk of recurrence with a subsequent pregnancy. (20) Some researchers believe that most cases of maternal infanticide involve postpartum psychosis or depression, although that claim is disputed. (21) Of these three postpartum mental disorders, postpartum psychosis places children at the greatest risk of death and is considered a psychiatric emergency. (22)
Over the past four years in Texas there have been four highly publicized cases of maternal infanticide involving postpartum psychosis. …