< Return to index
Infanticide: Mercy or Justice?
Interplay of Psychiatry and the Law
Anne Buist*
In the postpartum period there is a significant increase in mental illness – the risk of
psychosis and psychiatric admission increases 35 fold, and in the Western world at
least, there is a rate of about 13-15% of depression.
In the United Kingdom and Australia suicide is the leading cause of maternal death.
As the infant is totally dependent, increasing concern and research attention has been
directed to what impact this maternal mental illness has on the child; numerous studies
conclude an increased likelihood of poor attachment, poor parenting and emotional,
cognitive and behavioural concerns for the children, and later increased rates of mental
illness and conduct disturbances as teenagers and adults.
In addition however, it is noted that the highest risk of being murdered is in your first year
of life, and child abuse is also highest in younger children. Not all these cases are
associated with parental mental illness, but there is a correlation between higher rates of
parental mental illness and substance abuse in those families reported to protective
services and in mothers who kill their children.
The legal approach to parents who kill vary enormously, from country to country and
state to state. As well, there are different approaches according to the gender of the
parent who has committed the act.
Infanticide as a defence is available in most States of Australia and the United Kingdom
but not the USA, where perpetrators face a charge of murder but can be found not guilty
by reason of insanity if determined to be mentally ill.
Infanticide was originally introduced as a solution to the power differential in Victorian
England, where women’s rights were minimal and single mother’s pensions nonexistent.
Whilst the terminology suggestions a biological cause – “not being of sound mind
because of effects of birth or lactation” there also seemed an implicit recognition of the
social stress of poverty without childcare or other supports.
Current research suggests that whilst the act of giving birth may trigger postpartum
psychosis (1 in 600 births) there is little evidence to connect the biology to “dissociative
psychoses” which are associated with most neonaticides (killing within the first 24
hours), or lactation to any significant mental illness.
Given also the advent of single mother’s pensions and contraception, it could be argued
that the infanticide defence is no longer applicable.
In Victoria, Australia, where infanticide is the usual charge when a mother kills an infant
under the age of one year, the usual result is a compassionate Court and frequently a
good behaviour bond rather than a custodial sentence.
Helen Garner wrote of one trial judge in a case of neonaticide that he:
“showed the distress of all those present” when he faced “a slip of a
girl....scarcely out of her childhood....who had endured an anguish so
unimaginable that even the thought that she had killed a helpless infant with her
fists could not make people want to punish her”.
The trial is indeed traumatic enough for all concerned, but with both the reality and the
lay perception being that the charge is a lesser one than murder.
In Victoria, the maximum penalty is five years, and as in the case described by Helen
Garner, many escape all but a night or so at most in prison. That said, even that one
night has haunted one of my patients for years; the taunts and spit that she was
subjected to by other female prisoners on the way to the bail hearing left her in fear of
her life; it is also still a conviction and one that along with intense guilt, in many cases
haunts these women throughout their lives.
A man killing the same infant, however, will be charged with murder or manslaughter.
On conviction, he usually receives a jail sentence (13 years for a man who beat his de
facto’s child repeatedly in a recent case; nine years for another – in this latter case the
biological father).
In these cases the woman can be charged with failing to protect her child, whereas the
reverse is rare. Our practice of the law then seems at a number of levels to be
influenced by our societal conditioning.
Is there a difference between the father above and these cases?
In neonaticide (killing an infant in the first 24 hours), where women are often thought to
suffer a dissociate psychosis, they are usually not consciously aware they were pregnant
and go through labour and delivery alone. They are usually unusually naïve for their age,
poor, often had poor sex education and come from rigid upbringings.
At the very least young women or girls from this background, enduring labour on their
own, would suffer physiological effects of shock – the dissociation is a mental
mechanism to help them deal with the unimaginable. Often these girls do little to hide the
infant with little sense of planning or awareness of the circumstances and their role.
They may be at risk of doing the same thing to future pregnancies conceived in the
same circumstances, but if have been “found” and the issues dealt with, can go on to
become mothers with no evidence of on-going mental illness.
For many of these women, the crime is incident based, at a time out of keeping with their
maturity rather than characterological. Conversely, for many of the men there are issues
of childhood exposure to violence as a model for behaviour, and a history of domestic
violence and substance abuse; that is, the child has triggered rage but the response is
character driven primarily.
Cases of postpartum psychosis or other psychotic disorders, where the child is
incorporated into delusions and the mother is not of “sound mind” are easier to argue.
Some 75% of these women have had previous mental health treatment.
Their psychosis are usually amenable to treatment and these women, when well, are
remorseful and not at risk. If charged with infanticide their path through the courts is less
likely to be protracted and traumatic. And more sensitive to the mental illness than it
appears is a court when the mother is charged with murder. This same option is not
open to fathers who whilst psychotic kill their infant.
In the infamous case of Andrea Yates who drowned who five children in Texas and was
charged with murder (and given four of the five children were over the age of one, other
countries may have dealt with similarly), though both defense and prosecution
psychiatrist agreed she had a mental illness, their was disagreement about whether she
knew what she was doing was wrong.
The McNaughton Rule, established in 18431, states that the person
“.....is labouring under such a defect of reason, from disease of the mind, as to
not know the nature and quality of the act... and whether the accused knew the
difference between right and wrong in respect to the act”.
The US moral penal code (1955) specifies this further:
“as a result of mental disease or defect lacks the substantial capacity to
appreciate the wrongfulness of his conduct or to conform his conduct to the
requirements of the law”.
This then includes both a cognitive and volitional component, allowing for one or the
other.
From a psychiatric point of view the delusional belief that the devil will make your
children suffer and burn in hell unless you kill them, is likely to be more convincing and
compelling than the law you were taught as a child.
But in Texas the jury is not directed to consider the aspects of “appreciate” versus
“know”, and “lacking substantial capacity”. Andrea Yeates was found guilty. A second
trial however (brought about by a protest led by psychiatrists, and granted on the
grounds of the false testimony of the prosecution psychiatrist) – with a less conservative
(non death qualified) jury- chose to do so, finding her not guilty by way of insanity.
In another Texas case, of a woman with severe psychosis who battered her three
children, two of whom died, both defence and prosecution psychiatrists (five in all)
agreed not only that she was mentally ill but also that she didn’t know the difference from
right and wrong. Because the prosecutor aroused such emotion in the court, the jury
initially voted guilty and it seemed that the final verdict of not guilty by reason of insanity
was at least part influenced by the fact that it was easy to believe she was mentally
unwell because she had believed God had told her to kill them and that no sane person
would have believed this.
Andrea Yates, conversely, had been conversing with the devil – something a deeply
conservative religious jury would have found harder to forgive.
Again we return to the moral imperatives of our societies, where mental illness is poorly
understood and where mercy is often hard to conceive of, particularly without this
understanding. Yet justice is also hard to dispense fairly and in the area of infanticide,
gets side-lined by the same human failings and inconsistent legislature.
Better education is a long road to better management of these cases, needing shifts in
attitudes. Prevention conversely is the best outcome for all concerned. Without the
societal shift, identifying those with denial of pregnancy who commit neonaticide is
difficult, though attempts have been made historically, and more recently in Japan with
“baby drops” – well publicized discretely placed holes in walls of hospitals or church
homes that rotate and send off an alarm, with no questions asked. Identification of those
with mental illness who are pregnant is easier to address and requires training of
accessible and identifiable health professionals and ideally mother-baby inpatient
facilities. These are all easier to achieve than that of the bigger picture and are within
our grasp to prevent at least some of these tragedies.
__________________
* MBBS,MMed,MD,FRANZCP
Professor/Director Women’s Mental Health, University of Melbourne
Northpark and Austin Health
|