When Infanticide Isn't Murder

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.

Comments

[tatu123]

I am reading some of Mr. Appel's views. His essays don't appreciate the sanctity of human life. From mercy killing to infanticide to abortion, Mr. Appel devalues life, especially when it conflicts with convenience and human struggle. I still can't believe that this person is educated. In Mr. Apple's world, you are disposable and out of luck if you are an infant, ill, or elderly.

[Ivy Leung]

I wholeheartedly agree with Katherine Stone and Fudgefase. Thank you Mr. Appel for writing so intelligently about this topic. Katherine chose a good word to describe it...ENLIGHTENED. I cheer the progress being made in the states of NJ, IL and TX. What do you call people who have never suffered from major depression (inc. postpartum depression), postpartum psychosis, or postpartum OCD who choose to bash those who have? IGNORANCE. You suffer from any of those conditions and your life is completely and utterly changed. So, until you do suffer from any of those conditions, then you can say all you want, but it doesn't mean a thing. Those who are knowledgeable about such conditions­--scientis­ts, health practitioners, advocates, members of organizations like PSI, perinatal mood survivors, those who have suffered firsthand--all know better and we should collectively ignore such criticism and negative rants founded on nothing but...you got it, IGNORANCE.

[melodybroussard]

Actually, I have suffered postpartum depression... and I didn't kill any of my children! I got the help I needed and made sure my baby was safe! If it came to a point that I couldn't handle the stress of lack of sleep, screaming, sick babies I'd call someone to come sit with me or the baby until my stress level was under control. There are places a woman can turn if she feels out of control. I've been known to call the pastor of my local church, my mother, sisters and family friends. Heck, I've even called previous coworkers to ask them to help me through. I took the road less traveled by alot of women and even told my doctor about my thoughts! IGNORANCE IS SAYING IT'S OK TO KILL ONE'S CHILD BECAUSE YOU CAN'T HANDLE REALITY! Stop hiding behind your medical condition and take responsibility for your actions!

[Katherine Stone]

It is rare to read something so enlightened when it comes to the issue of postpartum psychosis and infanticide. Thank you, Mr. Appel.

And please, people on the right, don't bother giving me any crap. I'm a conservative. But I also understand that psychosis is a real illness and not an excuse.

[ockraz]

I don't see any reason to create a separate crime of infanticide. Killing an infant IS murder. If you want to argue that there are extenuating circumstances due to mental illness, then fine. That happens when a mentally ill person kills an adult, and it can happen when a mentally ill mother kills her infant. Creating a separate crime only makes infant killing something less than adult killing in the eyes of the law, and there is no justice in that. The mentally ill who commit crimes should always be able to argue that their illness be taken into account when they are sentenced, and this is just another instance of that.

[raechel]

Postpartum depression is in large part a function of culture. Yes, biology and the characteristics of the child -- sorry, but mothers of children with problems are more likely to be diagnosed with PPD -- play a role, but prevalance varies dramatically among countries. In Western cultures it is high, presumably due to social isolation and stress. We don't provide the kind of post-birth support other countries do, and it's especially important when the child has health or other problems. Maybe we should deal with the underlying causes instead of just giving these mothers a get-out-of-jail free card. Is that really the solution we want?

[RedDogBear]

"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..."
May not go FAR enough? I feel like a Republican (which I definitely am not) saying this but what about protecting the lives of innocent children? To me it sounds like any mother who kills her child within the first 12 months will be able to get away with only two years in jail. The truth that people in the psychiatric profession don't like to publicize or even admit to themselves is that psychology is a very immature science. We really don't have even a basic theory of what it means to be mentally competent and responsible for a crime. There aren't any reliable tests that can be performed to determine who does or does not kill because of post-partum mental illness. The idea of letting someone get away with killing their children with just a slap on the wrist is repugnant to me.

[mommadona]

SO, THE CHOICE OF ABORTION IS MURDER, BUT IF U CAN'T HANDLE THE HEAT IN THE KITCHEN DUE TO A 'EMOTIONAL PROBLEM' - IT'S OK FOR THOSE KIDS TO DIE WITH NO PUNISHMENT?

TEXAS - YOU ARE SO SCREWED UP.

PLEASE. LEAVE. NOW.

[kylennblack]

Texas conservatives are amongst the people who rail against comprehensive health reform. If these women could get adequate post-partum mental health care fewer babies would end up dead.

[RedDogBear]

But that would be socialism.

[BlackJAC]

Define "irony": a state dominated by a political wing that denounces abortion as "murdering babies" and has no problems with killing those who perform and seek it is making the murder of born babies only a two-year sentence.

[Fudgefase]

Yes to all - but an innocent child has still been killed, albeit in tragic circumstances. Once the deed is done, and as the woman's hormones sort themselves out afterwards, then yes, she'll have to live with that regret and pain for the rest of her life, but surely it would be better if some intervention was done BEFORE it got to that point? Once you're through the birthing period, very little really happens medically. You're left to get on with it. But having a new baby is scary at times. You can feel extremely inadequate, and if you combine that with the sleep deprivation that often accompanies a newborn, plus the hormonal imbalances, then it's a recipe for disaster - especially in these times when we don't all live near our mothers or extended families. A woman who has previously worked say, in an office, can suddenly find herself in almost solitary confinement with a squalling child, all day, every day, and any 'entertainment' usually involves other babies. I'm absolutely not condoning it, and I think it's an abhorrent crime. And yes, it is a crime, and should be punished somehow. But the psychiatric help that is plainly needed should be provided too. No punishment will ever be worse than how that woman will feel when she 'comes to' again.

[oustfan]

Couldn't you attribute most hate crimes to mental disorders?

[raechel]

It's a tautology. You would have to be crazy to do that. And the reason you do it is that you're crazy. Medicalization changes the words we use, and possibly the profession responsible for dealing with the people who behave in ways we don't like, but it adds nothing in the scientific sense.

[RedDogBear]

I don't think that's completely true. There are a few cases, for example when someone has a certain kind of brain tumor, where we can directly correlate an illness with a specific set of violent behavior. But the thing is those cases are very rare. The problem is that people in the psychiatric profession don't want to admit how little we know. At some point, in the very distant future, we may be able to do away with our current model of the penal system and replace it with an illness based model. But in the mean time almost all "not guilty by reason of insanity" or "only give a slap on the wrist because the perp had PPD" cases are much more speculation and BS (and excuses for shrinks to justify legal fees) than hard science. In the mean time we need to hold people accountable for their actions because that's the best we can do and to do otherwise is an insult to the victims.