Beyond accommodation: reconstructing the insanity defense to provide an adequate remedy for postpartum psychotic women.

• Author: Manchester, Jessie

1. INTRODUCTION

   Victorian psychologist Dr. Henry Maudsley wrote in 1892 when questioning why mothers kill their children: "[a] mother, worn down by anxiety and ill-health," can become "very low-spirited and desponding" and "imagin[ing] perhaps that her soul is lost, or that her family are coming to poverty," might "one day, in a paroxysm of despair, kill[] her children in order to save them from misery on earth, or because she is so miserable that she knows not what she does." (1)

   On the morning of June 20, 2001 Andrea Pia Yates was feeding her children cereal for breakfast when her husband Rusty left for work in Clearwater, Texas. (2) However, the morning was hardly typical, as Yates drowned her five children in the family bathtub and then calmly called the police and her husband to tell them that something was wrong with the children (3) As she drank a Diet Coke, Yates told police officers who arrived at her house that her children were not "developing correctly" and that she had "not been a good mother to them." (4) Perhaps, as Dr. Maudsley phrased it, Yates had become "so miserable that she knows not what she does," (5) as is suggested from Yates' substantial mental illness history. (6) Since 1999, Yates had been hospitalized four times, attempted suicide twice, and her doctor for a time had prescribed Haldol, a medication designed to control hallucinations and other psychotic symptoms. (7)

   The media onslaught surrounding the Yates case is typical of American press coverage involving mothers who kill their children. (8) Unlike almost any other criminal defendants, mothers who murder their children evoke sympathy, confusion, and abhorrence. (9) Society is tom between wanting to protect the helpless child and recognizing that perhaps the very act of child murder suggests that the mother was severely ill or demented and therefore deserving of sympathetic sentencing, (10) In modern American society, childcare and other household tasks, still remain ultimately the woman's responsibility, (11) Thus, when mothers kill children, the women's typical role as child nurturers and primary child care givers is contradicted and challenged. (12) Societal ambivalence towards mothers who kill is reflected in the disparate sentencing of maternal infanticide offenders, ranging from the death penalty to more lenient sentences of one to two years in prison. (13)

   A number of other countries have passed infanticide statutes that mandate consideration of a woman's mental state in infant murder cases that occur within a year after a woman gave birth. (14) But American courts have not adopted similar statutes, (15) In all states, mothers who kill their children are prosecuted under homicide statutes. (16) Many researchers have pointed out the inconsistency in the American courts in responding to infanticides, and some have suggested statutory reform similar to those statutes adopted in other countries. (17) In the United States, courts continue to evaluate postpartum depression defenses and other mental illnesses under the existing insanity defense, (18) The prevailing insanity defense test (19) applied across United States jurisdictions is extremely narrow and makes proving legal insanity exceptionally difficult for even the most severely postpartum psychotic women. (20) Therefore, the Yates case is most significant because it demonstrates the pressing need for insanity defense reform to address the realities of postpartum psychosis and other mental illnesses. (21)

   Most state jurisdictions currently use a version of the narrow M'Naghten insanity test (22) developed under English common law in 1843 to assess whether defendants have met the burden of establishing a complete insanity defense to murder. (23) Despite extensive criticism of the M'Naghten test and state attempts at reform, most states reverted back to a narrow insanity defense in the aftermath of John Hinckley, Jr.'s acquittal for reason of insanity after he attempted to assassinate President Ronald Reagan. (24)

   Some scholars have suggested that a statutory remedy is necessary to address the unique circumstances typically surrounding infanticide crimes. (25) However, a gender-specific, carve-out exception to promote consistent sentencing of infanticide offenders is unnecessary and could potentially perpetuate inequality for women. (26) A statutory remedy in infanticide cases would generalize female offenders based upon assumed mental incapacity after childbirth and would ignore recent scholarship that has suggested that there are as many as five distinct motives why women kill their children. (27)

   This comment argues that the best solution for ensuring that postpartum psychotic women can adequately present evidence of their mental illness is for states to return to a broader insanity test. (28) A broader insanity test would allow the judges and the jury greater leeway in assessing whether women diagnosed with postpartum psychosis meet the statutory requirements of the state's homicide laws. (29) Returning to an insanity defense test based on the American Law Institute (ALI) test developed in 196230 would create a more flexible means for assessing the culpability of postpartum psychotic infanticide offenders. (31) This comment asserts that there are three main reasons why United States jurisdictions should return to a version of the ALI insanity test. (32) First, the M'Naghten test for legal insanity is antiquated and does not reflect modern understanding of human psychiatry. (33) The M'Naghten test is particularly obsolete when applied to postpartum psychotic women, because the test was developed within Victorian England when women's status within the law was vastly different than today. (34) Second, the test is too narrow because it confines the legal insanity test to a consideration of whether the individual knew the difference between right or wrong and not other aspects of mental illness that are equally relevant. (35) Finally, the failure of United States jurisdictions to adopt an insanity test that incorporates postpartum psychotic women reflects the criminal justice system's perpetual inability to accommodate female criminal offenders. (36)

   Part II of this comment provides the historical background of infanticide and traces the development of postpartum depression research. (37) Part III analyzes the development of the insanity defense in the United States and the original M'Naghten case on which this test was modeled. (38) This section also assesses the status of women in Victorian England and indicates why the M'Naghten standard is obsolete when applied today? Finally, Part IV explains why the insanity defense test should be broadened and looks at specific postpartum psychotic infanticide cases that illustrate the M'Naghten test's insufficiency. (40)

2. BACKGROUND

   1. POSTPARTUM DEPRESSION OVERVIEW

      Understanding why the current insanity defense is too narrow to adequately incorporate postpartum depression defenses requires a basic understanding of the mental illness known as postpartum depression. (41) Moreover, recent research supports the assertion that the clinical aspects of postpartum depression, particularly seen in post-partum psychosis cases, may help to explain why women kill their children in some cases, and that these conditions could potentially serve to mitigate sentences in infanticide cases. (42) Depressive symptoms relating to childbirth occurred as early as the fourth century B.C., when Hippocrates described a "severe case of insomnia and restlessness that began on the sixth day in a woman who bore twins." (43) However, the documentation of postpartum depression only escalated during the last ten years, (44) Researchers separate postpartum depression into three different categories during the postpartum period in relation to the degree of the women's symptoms, including postpartum blues, postpartum depression, and postpartum psychosis. (45)

      Women experience postpartum blues most frequently. (46) Studies have estimated that approximately 25% to 85% of women have experienced postpartum blues symptoms, including irritability, diminished appetite, crying, mood swings, anxiety, and disorientation, sometime during the first two weeks after giving birth. (47) The number of women diagnosed with postpartum blues, however, ranges between 26% to 85%, depending upon the standards used in diagnosis. (48) Postpartum blues typically begin "within a few days of delivery and last from a few hours to a few days," but rarely continue past twelve days. (49)

      The second category is postpartum depression, a "clinical depression occurring during the weeks and months following childbirth." (50) Psychiatrists diagnose postpartum depression according to standard mental health criteria or the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). (51) Postpartum depression is characterized by "loss of interest in usually pleasurable activities, loss of appetite, sleep disturbance, fatigue, difficulties in making decisions, excessive guilt, and suicidal thoughts." (52) Researchers have estimated that as many as 5% to 20% of women experience postpartum depression after childbirth, and it usually emerges within the first six months after giving birth. (53) Other studies have further defined the symptoms as including anxiety and nervousness, compulsive thoughts, an inability to concentrate, "loss of interest in sexual activities, and an absence of feelings for the baby." (54)

      A very small percentage of the women who develop postpartum depression will experience postpartum psychosis, the most severe of the three categories. (55) Approximately 0.2% of childbearing women will have psychotic episodes in which they will have "hallucinations or delusions, severe depression, and thought disorder." (56) The psychosis typically emerges within the first two weeks after birth and usually requires hospitalization, (57) The rarity of postpartum psychosis is apparent...