Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth
Rapaport, Elizabeth, Fordham Urban Law Journal
"Can a mother forget the baby at her breast and have no compassion for the child she has borne?" (1)
Scarlet the Cat of Brooklyn, NY: "In a motherly show of courage, a cat raced into a burning building to rescue her five kittens, one by one. And then with her eyes blistered shut and her paws burned, she made a head count of her young ones, touching each one with her nose to make sure they were all safe." (2)
In the United States, unlike the United Kingdom and many other countries, there is no distinctive legislation addressing the killing of infants and young children by their mothers. While our British cousins embarked upon a course of special legislation in 1922 that evolved into a policy of partial decriminalization and medicalization of maternal infanticide, (3) the United States has no distinct law or even settled policies on infanticide. As a result, outcomes in cases raising similar mental health defenses can vary radically, from medical diversion to capital punishment. (4) Yet, in the United States, as in the United Kingdom, two figures, or archetypes, dominate representations of infanticide in popular media and in scholarship: the mad woman and the desperate girl. (5) In the United Kingdom, settled law and policy reflect the conception of maternal infanticide as the work of women who are victims of biology gone awry, and of women and girls who, due to immaturity or adverse circumstances, are not able to accept the maternal role. (6) In the United States, lacking settled law, the dynamic in high profile infanticide cases such as those of Andrea Yates (7) in Houston, and Susan Smith (8) in South Carolina, often propel prosecutors to seek severe sentences and to exploit the counter-narrative of evil. While both explanations--evil and biology--have cultural resonance, the biological explanation may have more traction. Prosecutors have learned that infanticide defendants have powerful allies in prevalent conceptions of motherhood. (9) That a mature woman could be both a sane and lethal mother is not an easy sell. Indeed, prosecutors have difficulty convincing juries that lethal fathers are evil as well, (10) but cases about fathers rarely attract the notoriety that cases about mothers spawn.
The mad woman and the desperate girl are beguiling stereotypes that distort the social facts of infanticide and child homicide in the United States. Men commit more homicides of infants and children than women. (11) Why, then, do treatments of infanticide in the popular media, and in legal and forensic scholarship, amplify the role of women and mute the role of men? Why is the mental health of male killers of relatively little interest, despite the fact that the population of fathers who kill includes substantial numbers of men suffering from psychosis and severe depression? (12) The majority of homicides of infants and children are committed in the course of child abuse by parents and other household intimates who do not suffer from severe mental illness. (13) Why is our attention attracted to the cases where a biological explanation is offered for maternal lethality and not the larger class of child abuse homicides committed by both sexes? (14) When the subject is infanticide and child murder, in sum, mothers who kill are brought to the foreground, the role of men is obscured, and the focus is not on intra-family violence, but rather on the piquant question, "Is the mother mad or bad?" (15)
My answer to the questions propounded above, in brief, is that infanticide, from the dawn of the criminalization of this ancient practice to the present, has been less about the protection of children than the regulation of women. We profess our commitment to children, but our practice reveals an unimpressive record of child protection and abiding anxieties about female sexuality and motherhood. Our attention slides from the nominal subject--protecting children--to the interesting subject of motherhood. Thus, while the legal regime in the United Kingdom recognizes the links between maternal mental illness and child homicide, it does not provide a beacon that can lead us to a comprehensive policy addressing infanticide and child homicide. …