The Scholar: St. Mary's Law Review on Race and Social Justice


Infanticide is the most prevalent violent crime committed by women and has occurred throughout history for various reasons including sacrifice, birth control, eugenics, shame, and fear of punishment for adultery. Postpartum mood disorders have been recognized as a legitimate mental illness since the fourth century, and approximately fifty to eighty percent of new mothers experience some degree of depression after giving birth. Postpartum depression can progress into psychosis so quickly that new mothers may not even notice impairment of thinking skills. Defendants face many problems when using postpartum psychosis as a defense. One of the challenges of presenting postpartum psychosis as a defense is juries and factfinders likely have particular bias regarding motherhood, infanticide, and the mother’s fate. Additionally, postpartum psychosis afflicting the mother during commission of infanticide likely has worn off by the time she reaches trial, further complicating the defense of a debilitating mental illness. Use of the insanity defense in Texas is rare and often results in defendants spending more time in mental hospitals than they would have spent in prison compared to other defenses. Creating a statute to treat infanticide cases and postpartum psychosis based on an explicit justification considering factors involving individual blameworthiness on a case-by-case basis is a viable solution. Another solution includes allowing a “guilty but mentally ill” verdict as a supplement to the insanity defense, and the addition of mitigating factors and education about postpartum psychosis before reaching a verdict. These changes will prevent the uneven treatment and emphasis on punishment for mothers who commit infanticide and force society to examine their biases about the social construct of motherhood.

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The Scholar: St. Mary's Law Review on Race and Social Justice

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St. Mary's University School of Law



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