Mad women and desperate girls: infanticide and child murder in law and myth.

• Author: Rapaport, Elizabeth

"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. We must wean ourselves from our excessive preoccupation with female deviance and attend to other causes of child homicide if we are to craft effective prevention policies and just criminal law responses.

I begin this article with a comparison between the stereotype-dominated understanding of infanticide and child homicide in the United States and the statistical landscape it obscures. I then turn to the history of the crime of infanticide, a history which confirms that a fascination with deviant women has long dominated the story of infanticide. The article concludes with the exploration of what I call the "Good Mother Defense." That exploration reveals the extent to which the fate of a woman tried for child homicide hinges on whether the jury sees her as a good mother, rather than on the prosecutors' ability to prove the elements of the crime charged.

1. INFANTICIDE AND CHILD HOMICIDE IN THE UNITED STATES IN MYTH AND FACT, WITH AN ILLUSTRATIVE LOOK AT TEXAS

   In 1997, a young Dallas County matron named Darlie Routier was convicted in the stabbing death of two of her young sons, aged five and six, and sentenced to death. (16) The Routier case did not achieve the degree of sustained national and international notoriety attained by that of Andrea Yates, the Houston mother who drowned all five of her children in 2001, (17) or Susan Smith, the South Carolina mother who rolled her car and with it her two young sons into a lake in 1996, then accused a fictional black stranger of kidnapping her children. (18) The eyes of Texas, however, were fixed on Darlie Routier, as hers was one of that class of maternal infanticide and child homicide cases that had the potential to captivate media audiences: those committed by middle class, married, typically white, women. (19) Unlike Yates, Routier did not defend on grounds of insanity, but instead, denied her guilt. Why, Texas mused, did Routier erupt in slaughter in the midst of her prosperous suburban life, anchored in a successful marriage? How could Routier, even though her skirts were short, (20) kill her children? Al though answers to these questions proved elusive, the state of Texas sought and obtained capital justice for the slain children. Prosecutors proclaimed at her trial,

   If you kill our children, we will come after you[.] ... When you take the life of a child in the state of Texas, you better get ready to pay the price[.] (21) I ask you to have as much compassion as she had for her children[.] ... I ask you to tell the nation that in Texas we protect our children. If you harm our children, you will feel the full extent of our laws. (22) These boasts, or promises, reflect Texas law, which has ample statutory grounds for severe treatment of child homicide. The murder of a child under six may on that account be prosecuted as capital murder. (23) Texas law also supplies a means of sentencing someone to life or as much as ninety-nine years imprisonment if he or she intentionally or knowingly engages in conduct that causes serious injury to a child; thus, someone who cannot be successfully prosecuted for murder because he or she lacked intent to kill can be severely punished under Texas law for child abuse that resulted in the death of the child. (24) Should the issue of insanity surface in a Texas child homicide case, the defendant is confronted with a particularly forbidding version of the M'Naghten or cognitive test; the sole question upon which the defendant's legal responsibility turns is whether he or she knew the act of killing was wrong. (25) There need be no inquiry into, or proof as to whether, mental disease or defect rendered the defendant incapable of either controlling his or her actions or appreciating the nature of the crime, as would be the case in more liberal jurisdictions. (26) Thus, in the case of Andrea Yates, a woman acknowledged by both defense and prosecution to be gravely mentally ill, it was possible for a jury to find her sane under Texas law even if they believed her own tormented account of her struggle to save her children from Satan. (27)

   In the wake of the Yates trial in 2002, Texas media gave extensive coverage to a small, shocking spate of child homicides committed by middle class, married mothers. Unlike Yates, whose sole taste of legal mercy was a life sentence where death could have been imposed, two of these women, Lisa Diaz (28) and Deanna Laney, were acquitted by reason of insanity, (29) and the third, Dena Schlosser, was initially found incompetent to stand trial. (30) Two of these mothers, Laney (31) and Schlosser, (32) like Yates, were intensely religious and obedient to command hallucinations. The third, Lisa Ann Diaz, suffered from the delusion that death would release her and her children from imagined disease. (33) All three cases, like that of Andrea Yates, were lurid, brutal, and reeked of madness. Schlosser severed her infant daughter's arms in a tortured, idiosyncratic submission to a charismatic preacher and a verse in the bible. (34) Laney bashed the heads of her six and eight-year-old sons with a rock in response to divine "signs." (35) Although it is possible that the leniency accorded these women is in some part a reaction to the outcry against illiberal Texas law in the wake of the Yates case, (36) deranged mothers had received leniency in Texas long before Andrea Yates became a synonym for injustice to this class of defendants in Texas and elsewhere in the United States. (37)

   The Laney, Diaz, and Schlosser cases provide Texas with a distorted prism through which to view the landscape of infanticide, just as the Yates case and the even more media-genic Susan Smith case misdirected the nation at large. Notorious cases such as these nurture myths, or misconceptions, about infanticide...