Infanticide dates back to ancient times--in Greek city-states, for instance, disabled newborns were left outside to die of exposure) Other ancient cultures--including Muslim, Hindu, and Chinese cultures--practiced infanticide for varying reasons. (2) In the middle ages, infanticide was common in Western Europe and different methods of killing infants, such as overlaying a child (suffocation), were considered merely venial or minor sins. (3) In the seventeenth century, the concern over infanticides of illegitimate children resulted in the 1624 English concealment law which provided that single women who concealed their pregnancies were presumptively guilty of infanticide unless they could prove the child was born dead. (4) In the eighteenth and nineteenth centuries in England, infanticide was so common as to be considered an epidemic. (5) In the United States, infanticide has been criminalized as murder and is not treated as a separate offense, as opposed to in England, where the Infanticide Acts of 1922 and 1938 treat infanticide as a lesser charge of manslaughter. (6)
At the current time, news reports of infanticide appear almost daily in the United States. (7) The actual incidence of infanticide is impossible to calculate because of reporting difficulties and problems in ascertaining the causes of death. (8) Some estimate that one infant is killed every day in the United States; (9) a jury in a recent Texas case was told that five-hundred women kill their children each year. (10) This essay focuses on recent Texas cases involving postpartum psychosis and asks whether the mothers or their criminal trials can be seen as subverting traditional notions about motherhood and violence. Are there trial strategies that overcome traditional stereotypes that the infanticidal mother is mad or bad? Are there trial strategies that provide juries with a more complete story of the mother's actions?
Before considering these questions, it is important to distinguish postpartum blues, depression, and psychosis. Postpartum blues--characterized by crying, mood swings, and anxiety--affects up to eighty percent of women after childbirth and lasts a brief period of hours or days. (11) Postpartum depression--a more serious illness--affects about seven to seventeen percent of new mothers and typically lasts several months. (12) Postpartum depression has the same symptoms as clinical depression including "loss of interest in usually pleasurable activities, loss of appetite, sleep disturbance, fatigue ... excessive guilt, and suicidal thoughts." (13)
Postpartum psychosis is much more severe and rare than postpartum depression, affecting 0.2 percent of new mothers. (14) The symptoms include "hallucinations or delusions, severe depression, and thought disorders." (15) Often, the hallucinations or delusions are commands to kill the child, or delusions that the child is possessed by the devil or evil spirits. (16) Postpartum psychosis is a long-term and progressive illness that waxes and wanes--in other words, the symptoms disappear and then reappear more intensely. (17) As experts comment, "[b]ecause moments of complete lucidity are followed by frightening psychosis.... [t]he illness may go unrecognized and untreated. Out of shame, guilt, or a paranoid delusional system, the new mother may not share her bizarre thoughts and fears." (18) Moreover, women suffering from mental illness before pregnancy are at greater risk for postpartum depression or postpartum psychosis. (19) And women with previous incidents of postpartum psychosis are at greater risk of recurrence with a subsequent pregnancy. (20) Some researchers believe that most cases of maternal infanticide involve postpartum psychosis or depression, although that claim is disputed. (21) Of these three postpartum mental disorders, postpartum psychosis places children at the greatest risk of death and is considered a psychiatric emergency. (22)
Over the past four years in Texas there have been four highly publicized cases of maternal infanticide involving postpartum psychosis. Andrea Yates drowned her five children in the bathtub; (23) Deanna Laney used rocks to crush her children, killing two and severely injuring one; (24) Lisa Diaz drowned her two children; (25) and Dena Schlosser sawed the arms off her toddler. (26) Yates, Laney, Diaz, and Schlosser were all tried for capital murder, although the prosecutors did not seek the death penalty in the Laney, Diaz, or Schlosser cases. (27) Yates was found guilty, but in January of 2005, her life sentence was reversed. (28) Laney and Diaz were found not guilty by reason of insanity. (29) Schlosser's trial ended in a mistrial after jurors deliberated four days. (30)
This essay focuses on cultural constructions of infanticide and psychosis, especially cases in which the mother heard delusional commands to kill her children. Part I examines the background of the Yates, Laney, and Diaz cases. Part II explores whether these mothers can be seen paradoxically as feminist subjects of empowerment rather than as victims. This essay argues that psychotic mothers have been disempowered and silenced, so their acts cannot be seen as subversive feminist gestures. Part III, however, argues that the legal trials of Laney and Diaz demonstrate a possible subversion through trial strategy. These two trials more fully told the mother's story than did the Yates trial and more fully educated juries about postpartum psychosis. These differences made it more difficult for the juries--even Texas juries (31)--to mete out retributive punishment and much easier for the juries to react with compassion. (32)
THE TRIALS OF YATES, LANEY, AND DIAZ
Background of the Yates case: The Voice of Satan
According to Yates's chilling confession, she had been married to "Rusty" Yates for eight years, and together they had five children--from the ages of seven years to six months. (33) On a morning in June of 2001, she fed her children breakfast, then filled the bathtub with water and drowned each child. (34) Afterward, she reported the incident to a 911 operator, then called Rusty at work. She said, "It's time," and told him to come home. (35)
Yates suffered from postpartum psychosis and perhaps bipolar disease. (36) Three years before the murders, at which point she had four sons, she tried to commit suicide by overdosing on her father's sedatives. (37) After a short stay in the hospital, she again tried to commit suicide by slitting her throat with a steak knife. (38) She was psychotic and said she had "a vision in my mind--get a knife, get a knife. I had a vision of this person being stabbed." (39) Although her psychosis was successfully treated with injections of the antipsychotic drug Haldol, and although she was warned that having additional children would increase her risk of psychosis, Yates did not like taking medications and had plans to have as many children as possible. (40)
After having four sons, Yates again became pregnant and delivered a daughter, Mary. (41) She suffered another depression three months later when her father died, and spiraled into a psychotic condition in a matter of weeks. (42) "She picked at spots on her scalp until they bled ... she held baby Mary in her arms nonstop, terrified to put her down. She stopped eating, drinking, and speaking, and was plagued by hallucinations.... She slept only an hour or two at night. She didn't eat. She didn't speak." (43)
Again, Yates was hospitalized in a very depressive state and was experiencing auditory hallucinations. (44) She was released ten days later, and then re-hospitalized. (45) Her doctor was reluctant to treat her with the Haldol injections and ordered her to taper off the anti-psychotic medicine. (46) Within a matter of weeks she sank back into a psychotic state and drowned her children. (47)
When she was interviewed by psychiatrists in jail, Yates told doctors that she was Satan. (48) She said she had to kill the children in order to save them because she was a bad mother. (49) She thought she was doing the right thing because by killing her children who were damned by her bad mothering--she was ensuring their lives in eternity at the expense of her own damnation. (50) Andrea thought that taking her children's lives would be a good thing, because, as she told another psychiatrist, "if the State of Texas executed [her], they would kill Satan because Satan was within [her]." (51) While in jail, she continued to have auditory hallucinations of Satan's voice "over the intercom system in her cell" as she had in the past from television cartoons and movies. (52) She was convinced that "Satan is in me" and that she could prove it by shaving her head to reveal the numbers 666 and "the mark of the beast." (53)
Although the defense witnesses, including the nationally-known Dr. Phillip Resnick, testified that Yates was severely mentally ill, psychotic, and did not know that what she was doing was wrong, (54) the state's expert witness, Dr. Park Dietz, rebutted the insanity defense. He testified that "Yates didn't do things ... he would have expected a loving mother to do if she believed she was saving her children from hell. 'She doesn't tell them they'll be with Jesus or God,' he said. 'She doesn't offer words of comfort.'" (55) Although experts testified about Yates's mental state, no videotapes were made of interviews occurring during the first weeks after her arrest. (56) The jury deliberated for three-and-a-half hours before deciding that Yates was guilty of capital murders. (57) After the punishment phase of trial, the jury deliberated for thirty-five minutes before deciding that Yates would not be a future threat to society and recommended a life sentence. (58)
Ultimately, the court of appeals reversed Yates's conviction on the grounds that Dr. Dietz gave false testimony; he described a Law & Order episode in which a mother with postpartum depression drowned her children in a bathtub...