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When Infanticide Isn't Murder

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Jessica Farrar may be the bravest politician in America.

In the wake of a series of highly-publicized killings of young children by Texas mothers suffering from post-partum mental disorders--most notably Andrea Yates, Dena Schlosser and Otty Sanchez--Farrar, a state representative from Houston, has introduced long overdue legislation that will recognize the mitigating circumstances surrounding such acts.

Under Farrar's bill, first introduced in March, women who kill their children within 12 months of childbirth would be allowed to offer testimony regarding their postpartum mental health during the sentencing phases of their trials. Should jurors conclude that a mother's "judgment was impaired as a result of the effects of giving birth or the effects of lactation following the birth," they would be permitted to convict her of the crime of infanticide.

Unlike murder, which is a capital offense in Texas, the felony of infanticide would carry a maximum penalty of two years' imprisonment. While this bill may not go far enough to protect the welfare of these vulnerable and troubled parents, it is an essential first step toward post-partum justice.

The unique nature of infanticide by mentally impaired mothers has been recognized for much of human history, even if the medical data to buttress this understanding is of relatively recent origin. An estimated 10 percent of women suffer from severe depression or anxiety during pregnancy, and according to Postpartum Support International, up to 15 percent suffer from depression after giving birth. One or two women in one thousand will develop full-blown postpartum psychosis, a life-threatening disorder whose symptoms may include delusions, hallucinations and mania. Suicidal and homicidal thoughts are not infrequent. While the causes of this tragic disorder have not yet been fully unraveled, civilized nations across the globe have long recognized this phenomenon in their legal systems.

In Great Britain, the Infanticide Acts of 1922 and 1938 redefined such deaths as manslaughter. Imprisonment for these killings in the United Kingdom is now extremely rare. The disparity between British and American law flared in 1996, with the jailing of Caroline Beale, a British citizen, on charges of murdering her newborn in a New York City hotel room. Beale spent eight months jailed on Riker's Island and pleaded guilty to manslaughter before common sense finally prevailed and the troubled mother was allowed to receive psychiatric treatment in London.

Britain's approach is representative of our closest international allies. Canada recognizes infanticide as a distinct, lesser offense than homicide; offenders face a maximum of five years in prison. Twenty-seven other nations recognize the unique nature of maternal infanticide as a crime distinct from murder, a diverse group of nations that includes Australia, Brazil, Colombia, Germany, Greece, India, Italy, Japan, Norway, Sweden, the Philippines and Turkey. In making no legal distinction between troubled mothers who suffocate their children and professional assassins, the United States now stands as a glaring outlier among the enlightened democracies.

The reason that most advanced nations provide lesser penalties for infanticide than murder is that none of the traditional, widely-accepted justifications for punishment apply to these cases. Long prison sentences are highly unlikely to deter such acts, because these deaths are rarely plotted by rational or reflective minds. The vindication of the victim's survivors, frequently cited as a justification for draconian sentences for violent offenders, makes no sense when the closest survivors are the relatives of the perpetrator. More often than not, it is the deceased infant's father who pleads for his wife's freedom, and who suffers additional anguish as she is tried and imprisoned.

Even for those who believe in retribution, surely the loss of a child, and the ensuing guilt, must be punishment enough for any mother. Our penal system has long recognized that different varieties of killing entail distinct degrees of culpability. Some killings are not viewed as morally reprehensible at all: shooting an armed prowler, defending the nation in wartime. We treat vehicular homicide differently from acts of terrorism. Fatally injuring an opponent in a bar fight is a grave offense, but does not merit the same opprobrium as poisoning your grandmother for the insurance money. On a continuum of killings, maternal infanticide surely ranks with the most pardonable offenses.

So why is Representative Farrar's sponsorship so brave, if the law she has proposed reflects both international norms and evolving standards of decency? Needless to say, in the era of the partisan sound bite, extremists have tried to link this issue to the debate over abortion. Many have resorted to overt misinformation, such as right-wing blogger Cassy Fiano's widely disseminated and patently false claim that the bill "would decriminalize murdering an infant."

Some opponents would like to link this debate to the ongoing philosophical discussion surrounding the nature of personhood and to Princeton philosopher Peter Singer's controversial proposition that killing a newborn is not the same as killing a fully-developed human being. The reality is that--with the exception of certain medically-indicated cases, such as those infant deaths permitted under the Groningen Protocol in the Netherlands--our nation is not on track to legalize infanticide any time soon.

Even Representative Farrar finds it necessary to provide a lesser prison term for perpetrators of maternal infanticide, while I would prefer a sentence that embraced only psychological counseling and rehabilitation without incarceration. I would also rewrite the proposed law to include fathers, as sympathetic or vicarious postpartum mental disorders among men are extremely rare, but poorly studied, and it is only a matter of time before a male Andrea Yates or Dena Schlosser stumbles into the public eye.

A national infanticide statute is the sort of moderate, narrowly-tailored measure that should be able to unite people of good intentions. Such a law reflects both the rational Enlightenment ideals advocated by secular humanists and the fundamental Judeo-Christian principles of mercy and forgiveness. In a culture where calls for vengeance far too often drown out pleas for compassion, I am hopeful that Representative Farrar's wise initiative will be heard across our moral wilderness.

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