FILICIDE: Document with references

The United States has one of the highest rates of filicide with an estimated two-hundred

and fifty to three hundred children murdered by their parents each year.

belief perpetuated by media coverage, fathers kill their children nearly as often as mothers.

1 Contrary to popular2

While fathers tend to be more violent, both mothers and fathers commit filicide by using highly

physical acts, such as beating, drowning, poisoning, shaking, stabbing, or suffocating their

children.

“certain ‘craziness’ in both genders—they betray an intense passion and a lack of planning.”

3 Regardless of how a parent ultimately engages in filicide,4 their methods reveal a5

I. SOCIAL RESPONSES TO FILICIDE

Despite the similarity between genders, society shows more outrage and disdain towards

mothers who commit filicide, often brushing aside the fathers who commit the same heinous

act.

which define women’s roles as “passive, ‘saintly stoics who never succum[b] to fury, frustration,

or greed.”

to reconcile this discrepancy, the media portrays maternal filicide as a “freak occurrence” and

explains away the mother’s actions by her classifying as “mad” (mentally ill) or “bad”

(evil/unfeminine).

6 This gendered reaction is fueled by traditional notions of motherhood and femininity,7 Filicidal mothers, however, are antithetical to these traditional notions. In an attempt8

Historically, society has responded to mothers who kill their children in one of three

ways – denial,

adopted a hybrid approach of punishment and denial.

9 punishment,10 or prevention.11 Meyer and Oberman note the United States has12 First, society “studiously ignore[s]” both

1

http://www.denverpost.com/news/ci_18151310; Susan Donaldson James,

Psychotic

psychotic/story?id=13366937

Electra Draper, Parents Who Kill Their Kids Not Always Insane, Experts Say, DENVER POST, May 27, 2011,Mommy Murderers: Often Altruistic or, ABC NEWS, Apr. 13, 2011, http://abcnews.go.com/Health/leshawn-armstrong-case-mom-murderersaltruistic-

2

3

4

dispose of their children’s bodies hundreds of miles away from the home, mothers dispose of their children’s

corpses in or near the home and do so in a "womblike" fashion by swaddling, submerging in water, or wrapping the

body in plastic.

Draper, supra note 1.Dahlia Lithwick, When Parents Kill, SLATE, March 12, 2002, http://www.slate.com/id/2063086/Research also shows mothers and fathers differ in the way they dispose of their children’s corpses. While fathersId.

5

Id.

6

F

See Elizabeth Rapaport, Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth, 33ORDHAM URB. L. J. 527, 529 (2006).

7

Disorder in Cases of Maternal Infanticide and Filicide

Heather Leigh Stangle, Murderous Madonna: Femininity, Violence, and the Myth of Postpartum Mental, 50 WILLIAM & MARY L. REV. 699; 706 (2008); HILARY

N

ERONI, THE VIOLENT WOMAN: FEMININITY, NARRATIVE, AND VIOLENCE IN CONTEMPORARY AMERICAN CINEMA

59 (2005).

8

CHERYL L. MEYER & MICHELLE OBERMAN, MOTHERS WHO KILL THEIR CHILDREN 169 (2001).

9

efficient way of dealing with women who were unable to cope with the stress and struggles of motherhood.

176.

Throughout history, denial has proven to be the most popular approach because ignoring filicide is the most costId. at

10

such, perpetrators deserve swift and severe punishment; however, juries and judges are often reluctant to adopt and

enforce this approach.

Societies that adopt the punishment approach believe filicide is no different from any other violent crime, and asId.

11

availability of social programs. Although this approach has proven to be successful, the extremely high cost may

make it impractical.

The prevention approach is aimed at developing policies to prevent filicide by increasing awareness and theId.

the frequency of infanticide and the underlying patterns prevalent in contemporary cases.

However, when a parent actually commits filicide, society seeks the harshest punishment.

Over time, as the facts of the case evolve, our collective anger subsides, and we are satisfied with

the “just punishment” handed out by the judge or jury hearing the case.

II. LEGAL RESPONSES TO FILICIDE

Gender stereotypes and traditional notions of motherhood also affect the legal system’s

responses to mothers who kill their children. Mothers are less likely to be prosecuted than

fathers

psychiatric treatment after the offense but before trial.

psychiatric pleas, while the majority of fathers plead involuntary manslaughter– a plea which

does not require an abnormal state of mind.

commit filicide suffer equally from psychological disorders.

women is also prevalent in sentencing. Mothers are more likely to be committed to a mental

facility, while fathers are more likely to be executed or sent to prison.

sentenced to prison tended to have shorter sentences than fathers.

16 and more likely to be released on bail.17 They are also more likely to be offered18 Likewise, a majority of mothers utilized19 Yet, studies indicate mothers and fathers who20 The more lenient treatment of21 The mothers who were22

In support of differential treatment for men and women, some countries have passed

Infanticide Acts.

avoidance of the death penalty when a mother commits filicide.

similar protections to fathers who commit filicide. Modern debate on Infanticide Acts centers

around whether postpartum mental illness is sufficiently different from other mental illness

suffered by men and nonpregnant women (e.g., affective psychosis, schizophrenia), such that

postpartum mental illness deserves special treatment within the legal system. The United States

legal system has been hesitant to adopt such a legal view, and mothers are required to assert a

defense of postpartum mental illness within the framework of traditional defenses.

a.

To negate the intent based on insanity, involuntary act, or diminished capacity. Although there is a gender

1

16

al,

P

23 Such acts provide for the lower charge of manslaughter as well as the24 However, no act providesFramework of Defensesmens rea of homicide, men and women alike must prove lack of criminalId.Only forty-six percent of mothers were prosecuted, while ninety percent of fathers were prosecuted. Orthwein, et.Filicide: Gender Bias in California Defense Attorneys’ Perception of Motive and Defense Strategies, 17SYCHIATRY, PSYCHOL. & L. 523, 527 (2010).

17

Fifty percent of mothers were granted bail, while no fathers were granted bail. Id.

18

Fifty-four percent of mothers were offered psychiatric treatment compared to thirty percent of fathers. Id.

19

children within one year of birth are temporarily deprived of self-control by mental illness induced by childbirth.

Critics argue the Infanticide Act is based on the inaccurate assumption that all mothers who kill their young children

suffer from mental illness. In reality, empirical research indicates few filicidal mothers suffer from postpartum

mental illness. Furthermore, the gender-specific approach ignores that filicidal fathers are just as likely as mothers

to suffer from mental illness. Abigail Wong,

10 M

http://www.legislation.gov.uk/ukpga/Geo6/1-2/36 (last visited Oct. 30, 2011).

The British Infanticide Act formalizes the view of filicidal mothers as “mad.” It presumes mothers who kill theirFilicide and Mothers Who Suffer From Postpartum Mental Disorders,ICH. ST. J. MED. & L. 570, 587 (2006). For full text of the British Infanticide Act, see Infanticide Act 1938,

24

1098, 1108 (2000).

Velma Dobson & Bruce D. Sales, The Science of Infanticide and Mental Illness, 6 PSYCHOL., PUB. POL’Y & L.

3

disparity between the number of mothers and the number of fathers utilizing the insanity defense,

the two insanity defense standards—the

are gender-neutral on their face. Under

from a mental disease or defect at the time of the killing and as a result (1) did not know the

nature of the act being committed or (2) did not know the act was wrong.

focuses on cognition, and critics of the

whether the accused knew right from wrong during the commission of the crime.

M’Naghten test and the Model Penal Code (MPC) test–M’Naghten, the accused must show he or she suffered25 This approachM’Naghten approach argue it is too difficult to determine26

The MPC takes a similar but slightly different approach. Rather than focusing solely on

the cognitive aspects of the accused’s behavior, the MPC also incorporates volitional aspects of

behavior.

the time of the killing and as a result lacked the substantial capacity to (1) appreciate the

criminality or wrongfulness of the act or (2) conform his or her conduct to the requirements of

the law.

recognizes mental illness may affect the mind in numerous ways.

defendants may understand the criminality of the act but still be found insane because of an

inability to control their actions.

27 The accused must demonstrate he or she suffered from a mental disease or defect at28 This approach is thought to be more flexible than the M’Naghten Test because it29 Under the MPC test,30

In addition to the insanity defense, defendants may also assert an Involuntary Act

Defense. Under an Involuntary Act Defense, defendants must demonstrate (1) they suffered

from a mental or physical disability, and (2) their conduct was not the product of their deliberate

actions.

a level that the accused no longer had control of his or her body or actions.

31 The critical aspect of this defense is proving the severity of the disability arises to such32

Finally, the accused may assert a Diminished Capacity Defense. Under this defense,

defendants must prove their mental illness made it impossible for them to possess the intent

required under the criminal statute.

is mitigated to a lesser offense.

culpability of the accused is eliminated, and the conviction is prevented.

33 If the defense is successful, the culpability of the accused34 In the rare instance where there is no lesser offense, the35

b.

Fitting Postpartum Mental Disorders into the Framework of Defenses

Theoretically, postpartum mental illness easily fits into the existing paradigm of defenses.

However, in practice the use of postpartum mental illness as a defense against filicide is not so

clear cut.

defense to be supported with a “recognized” disorder.

however, has yet to recognize postpartum mental illness as a codeable mental disorder.

36 All three defenses – insanity, involuntary act, and diminished capacity – require the37 The American Psychiatric Association,38 Thus,

25

Judith Macfarlane, Criminal Defense in Cases of Infanticide & Neonaticide, in INFANTICIDE: PSYCHOSOCIAL AND

L

EGAL PERSPECTIVES ON MOTHERS WHO KILL 133, 145 (Margaret G. Spinelli, ed. 2003).

31

Macfarlane,

Wong, supra note 26 at 584.For example, the involuntary act defense would be used when an individual commits murder while sleepwalking.supra note 28.

postpartum mental illness alone is not sufficient to trigger any of the traditional defenses.39

Macfarlane notes these women must rely on other disorders, which may not provide a full and

complete picture of their mental state at the commission of the crime.

are rarely successful.

40 In general, such defenses41

c.

Alternative Approaches

If the traditional framework of defenses does not seem like a viable option, filicidal

parents may still have other choices available to them. For example, some states may allow the

accused to prove Extreme Mental and Emotional Disturbance (EMED). Under this doctrine, the

fact finder takes an objective-subjective view of the actor’s circumstances as the actor believed

them to be.

an immediate passionate and violent reaction, then the charges will be reduced from murder to

manslaughter.

arguably acting with EMED, even if they understand the illegality or wrongfulness of their act at

the time.

Alternatively, mothers may choose to utilize the Good Mother Defense. The Good

Mother Defense is not a recognized defense, but rather a strategy articulated by Elizabeth

Rapaport, a University of New Mexico law professor. This approach preys on the tendency of

jurors to find “madness” as the most plausible and least upsetting explanation for a virtuous

mother’s behavior.

“mad” even if she doesn’t meet the rigid insanity defense standards, and the jury will in turn

mitigate the punishment as a result of the perceived madness.

filicidal mother’s fate rests more on the defense’s ability to prove she was a good mother, rather

than the prosecution’s ability to prove the elements of the alleged crime.

CONCLUSION

Social judgments of mothers who kill their children are often paradoxical. While juries

and the general public rarely give credence to a mother’s insanity defense, mothers who commit

filicide often receive less harsh sentences then fathers who commit filicide. Some commentators

attribute this phenomenon to society’s anxiety about female sexuality and motherhood.

42 If the accused can show he or she was provoked by external stimuli that prompted43 Thus, parents who are convinced they have been possessed by Satan are44 When confronted with a “good” mother, the jury will find the mother is45 Thus, Rapaport urges that a46

Filicidal mothers threaten traditional notions and values of motherhood and femininity, and

society’s stereo-type driven understanding of filicide fuels a media frenzy obsessed with whether

the mother is “mad” or “bad.” However, this excessive preoccupation with female deviance

shifts the focus of the discussion from protecting children to notions of motherhood. The

question of how society can best protect children who find themselves at risk of being harmed by

their own parent is strikingly absent from the discussion.

the defense).

in Ohio the insanity defense is only successful fifteen percent of the time due to the general public’s skepticism ofPhillip Resnick, The Andrea Yates Case: Insanity on Trial, 55 CLEV. ST. L. REV. 147, 153--54 (2007) (noting that

42

Wong, supra note 26, at 584.

Rapaport, supra note 6, at 559.http://familylaw.uoregon.edu/docs/mothersbackgroundpaper.pdf>Id. at 530.

“Mad” or “Bad”: Judging Mothers Who Kill Their Children