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‘Mother of Sorrows’: Post-Partum Mental Disorder and the Law across Five Jurisdictions

2012; Taylor & Francis; Volume: 19; Issue: 3 Linguagem: Inglês

10.1080/13218719.2011.585129

1934-1687

Rosanna Langer,

Grief, Bereavement, and Mental Health

Abstract Cases across the five common law jurisdictions of Canada, the United States, the United Kingdom, Australia and New Zealand featuring post-partum mental disorder include those where mothers have acted criminally in a psychotic state, but also many others where mothers have acted in the context of fragile mental health in combination with desperate social and economic circumstances. Mental health and legal professionals grapple in these cases with difficult determinations of rationality, intention, balance of mind and appropriate disposition. This article locates these cases within prevailing legal understandings of insanity and diminished responsibility, health sciences research on post-partum illness, and the social contexts within which early mothering occurs. It argues that post-partum mental disorder is treated in law with an ambivalent mix of compassion, dismissiveness and outrage. This incoherence with respect to the mentally disordered state of new mothers leaves women's actions and mental states open to severely restrictive interpretations of incapacity and the imposition of narrative authority by others. Key words: comparative lawinsanitymental disorderpost natalpostpartumwomen and mental health Acknowledgements This article had a sad conception and difficult gestation in the traumatic loss of dear family members to the horror of post-partum psychosis. It is dedicated to those now lost to us, Brian Langer, Andrea Labbé-Langer and Zooey Labbé-Langer, and to those who selflessly and with immense kindness and humility carry on in their absence, Greg and Sue, Nico and little Brigitte and Margot. Namasté. Thanks are also due to Jeff Langer who always exhorts me to keep it true and Rosalie Bellefontaine who has also struggled with this bleak tragedy in our midst. We have had many long and difficult talks in our efforts to process these topics. Dr Ron Roesch, Director of the Mental Health Law and Policy Institute at Simon Fraser University, Vancouver, Canada, welcomed me with a congenial institutional home during my sabbatical term in 2010 to complete a draft of this article. Thanks are also due to the Editor whose suggestions have made this article far more coherent than it would have been without such careful attention. Notes 1. Eg, one of the psychiatric experts testified in R v RF Richards ([2002] NSWSC 415 at [49]): ‘On the basis of the psychiatric assessment, my conclusion is that at the time of the offence, Ms Richards was suffering from an abnormality of mind, a Delusional Disorder, such that she was unable to understand exactly what she was doing in rational terms.’ In R v Pope ([2002] NSWSC 397 at [401]), the psychiatrist reporting to the court and summarizing the medical documentation, concluded that ‘her illness was such as might have totally deprived her of the capacity to know that she ought not to act towards her child as she did and that her capacity to know right from wrong was also likely to have been affected.’ 2. Caminero-Santangelo similarly describes criminal trials of infanticidal mothers as a silencing spectacle of the mad woman's ‘capitulation to the narrative of others’ (and, one might add, of ‘othering’), M. Caminero-Santangelo (1998: 16) as quoted in Ayres (2006: 349). 3. Dr Dietz almost always appears in court as a witness for the prosecution (Keiger 2004). 4. Dietz also remarked that the country needs ‘someone like Mrs Yates to be held responsible for an action that she knew was wrong, but be treated and confined until infertile, whether through natural biological effects or electively’ (Time Magazine (2002)). 5. This trend may also be reversing; see R v Effert [2009] ABQB 368 (Alta QB) (conviction quashed, conviction for infanticide substituted) where the 21-year-old accused was unsuccessful in an infanticide plea to a second degree murder charge in the death of her newborn infant. She was also unsuccessful in her objection to the Crown's insistence in proceeding by way of a jury trial. On appeal, the Court accepted her argument that expert psychiatric evidence had introduced reasonable doubt as to her state of mind. The Court held that ‘viewed through the lens of judicial experience’ the jury's murder verdict could not be supported, and substituted an infanticide conviction instead. R v Effert (2011) ABCA 134 (Alta CA). 6. Canada, Criminal Code, R.S.C. 1985, c.C-46 s. 233. Although there is an interesting history to these provisions and the difficulty of administering them, this article concentrates on contemporary laws and their application. For some additional historical perspectives see Grant, I. (2010) ‘Desperate Measures: Rationalizing the Crime of Infanticide’ 14 Can. Crim. L. Rev. 253; Backhouse, C. (1991) Petticoats and Prejudice: Women and Law in Nineteenth Century Canada (The Osgoode Society and Women's Press); Backhouse, C. (1984) ‘Desperate Women and Compassionate Courts: Nineteenth Century Infanticide in Canada’ 34 Univ. of Tor. L.J. 447; Durston, G. (2004) ‘Eighteenth Century Infanticide: A Metropolitan Perspective’ 13 Griffith L.Rev. 160. In addition, the term ‘infanticide’ may be used to refer to any killing of an infant, including ‘neonaticides’ – this is, infants killed shortly after birth, often to hide the fact of birth. Meyer and Oberman (2001) divide these killings into four categories: ‘abuse-related filicides’ where children killed during a physical assault (and of course, not solely by mothers); filicide due to neglect; ‘assisted/coerced filicides’ where the mother acts with or fails to intervene to stop partners; and filicides where the mother acts purposefully and alone, this final category of killings overwhelmingly perpetrated by mothers who are mentally ill. 7. Infanticide is a specific offence in three Australian states: New South Wales, Victoria and Tasmania. R. Lansdowne, R. (1990) ‘Infanticide: Psychiatrists in the Plea Bargaining Process' 16 Monash U. L. Rev. 41. At the recommendation of the Law Reform Commission of Western Australia, the infanticide provisions were repealed in that jurisdiction in 2008. Criminal Law Amendment (Homicide) Act 2008 (W.A.), s. 13. For an overview of recent law reform recommendations inEngland and Australia see R v LB, 2011 ONCA 153 (CanLII) para 104, fn.10. 8. UK, H.L., Parliamentary Debates, 5th series, vol 50, at [758] (25 May 1922) (The Lord Chancellor). 9. There are a few sad cases where death is caused by omission, usually when the mother simply abandons the baby and it succumbs to starvation and dehydration. In R v Fujii, a young mother, who overstayed her student visa, left her two infants in a Calgary apartment described as desolate and followed a new boyfriend to Cochrane, Alberta, for ten days. The judge described her circumstances in this way: ‘She had no partner, not even a true friend. She lived in a starkly barren apartment with two infants for whom she was ill equipped to care and she was in the country illegally, facing the risk of deportation. Finally, her parents knew nothing of her predicament and she feared telling them.’ In this case, the mother was convicted of manslaughter and sentenced to eight years imprisonment. R v Fujii [2002] A.J. No. 1089; 2002 ABQB 805; 2002 AB.C. LEXIS 2221. 10. E. Cunliffe (2009: 117) reasons that, as s. 663 relieves the prosecution of this burden, there must only be ‘an air of reality’ to the claim that the accused had not fully recovered from the effects of giving birth or lactation, but that this onus falls on the defence. 11. This element has recently been explored in R v Effert ([2009] ABQB 368 at [22]), where the court held that establishing the ‘air of reality’ is not a reverse onus provision falling on the defendant. The burden is on the Crown to prove that infanticide does not apply. 12. R v Morrow [2008] NBPC 4, 2008 NB.C. LEXIS 204. 13. UK Infanticide Act 1938 (c.36) 1 and 2 Geo. 6. 14. Victoria, Crimes (Homicide) Act 2005 (NO 77), s. 5. 15. UK Ministry of Justice (2008). Significantly, all 35 manslaughter defendants pled guilty, and three-quarters of the victims were older than one year; therefore, infanticide was not available. 16. R v L.B. (2008) CanLII 45550OnSC. 17. Ibid, (para. 40). 18. But see more recently, R v Effert (2009) which holds that the court must satisfy itself that there is an ‘air of reality’ to the disturbance of mind. This could be established, eg, by a court-ordered psychiatric assessment. The judge remained open to the possibility that the onus on the defendant would be greater if she refused to comply with the assessment. 19. Lord Chancellor, House of Lords Debates, May 25, 1922 at [762], quoted in R v L.B. (at [36]). 20. R v L.B. at [47]. 21. Ibid, (at [55]–[59]). 22. R v Coombs [2003] A.J. No. 1209; 2003 ABQB 818; 2003 AB.C. at [2]. 23. Ibid, (as per Veit, J. at [31]). 24. As summarized by the Ontario Court of Appeal in R v LB (2011), Infanticide had been considered by a number of law commissions in the Australian states, as well as the Law Commission in England. The Victorian Law Reform Commission first examined the issue of infanticide in (1990) Mental Malfunction and Criminal Responsibility (Report No. 34). The issue was considered again in (2004) Defences to Homicide: Final Report. In both reports, the Victorian Law Reform Commission recommended that infanticide be retained as an offence and as a partial defence. However, in its 2004 report, the Commission recommended that the reference to lactation be removed and the age limit of the child be raised to two years (266–67). The law in Victoria was changed in accordance with these recommendations in 2005: Crimes (Homicide) Act 2005 (Vic), s. 5. This ‘minimal reform’ approach was provisionally recommended by the Law Commission in England in (2005) A New Homicide Act for England and Wales? A Consultation Paper (Consultation Paper No. 177) at paras. 9.75–9.78. However, in its final report, (2006) Murder, Manslaughter and Infanticide (Law Com. No. 304) at para. 8.23, the Law Commission recommended that the ‘offence/defence’ of infanticide be retained in England without amendment.Conversely, the Law Reform Commission of Western Australia recommended that the infanticide provisions be repealed in Western Australia in its (2007) Review of the Law of Homicide (Final Report Project 97) at pp. 114–17. The infanticide provisions were repealed in Western Australia in 2008: Criminal Law Amendment (Homicide) Act 2008 (W.A.), s. 13. The New South Wales Law Reform Commission has also recommended that its state's infanticide provisions be repealed in (1997) Partial Defences to Murder: Provocation and Infanticide (Report 83) at para. 3.14. However, this recommendation was conditional on there being a defence of diminished responsibility available in some form in New South Wales. The infanticide provisions in New South Wales have not been repealed. As cited in R v LB, 2011 ONCA 153 (CanLII) para 104, fn.10. 25. Criminal Law Revision Committee (1980). 26. UK Law Commission (2005) at para 9.60. 27. See eg, R v Kai-Whitewind ([2002] EWCA Crim 1092), where the mother denied causing her infant's death, although medical evidence pointed overwhelmingly to his non-accidental death while in her care. She was convicted of murder. 28. See similarly T. Ward (1999). 29. M'Naghten's Case (1843) 8 ER; 10 Cl. & F. 200 (1843) (House of Lords). 30. Cooper v R [1980] 1 S.C.R. 1149 (S.C.C.). 31. R v Oommen (1994) 30 C.R. (4th) 195 (S.C.C.). 32. Clark v Arizona 126 S. Ct. 2709 (2006) at fn. 12 passim. 33. State v Jones 50 N.H. 369 (1871). 34. As summarized by Souter J. in Clark v Arizona, supra, at 9 passim. 35. L. Perry (2007). Note, infra, that the volitional prong has been eliminated by US federal legislation. 36. See, eg, Idaho Code s. 18–207 (1982); Utah Code Ann. s. 76–2–305 (1990); Montana Code Ann. s. 46–14–102 (1981). The American Bar Association opposes the abolition of a defence of mental non-responsibility and uses the example of a defendant who, under a delusion that he is the biblical Abraham, knowingly kills his son while thinking that he (the defendant) is the biblical Isaac. The Idaho, Utah and Montana enactments would deny a defence to such a defendant. American Bar Association (1989: 337). 37. 18 U.S.C. § 17 (2000). 38. American Bar Association (1989: 335). 39. In British law, the word ‘wrong’ in the M'Naghten Rules means ‘contrary to law’. R v Windle [1952] QB 826. See also, Halsbury's Laws of England, vol. 11(1) (1990: 36). However, the case law seems to indicate a broader interpretation of its meaning to encompass an extreme lack of rationality. See R.D. Mackay (2009). 40. New Zealand, Crimes Act 1961 (NO 43), s. 23. 41. R v Chaulk [1990] 3 S.C.R. 1303 (S.C.C.). 42. R v Elango (2008), O.J. No. 2264 (Ont. SCJ). 43. Ibid (para.10). 44. See similarly, Scottish Law Commission (2004: 19). 45. American Psychiatric Association (2000). 46. According to the research of Professor Barry Mitchell, out of 19 psychiatrists interviewed, only one did not hold the dominant view; see B. Mitchell (1997: 625), who was cited by the UK Law Commission (UK) Report (2006). 47. The UK Law Commission (2003: para. 7.64), emphasis added. 48. See American Bar Association (1989: 337). 49. Homicide Act 1957, 5 & 6 Eliz. II, c. 11, s. 2(1). 50. R v Smith [2000] UKHL 49 at [68] (per Lord Hoffmann). 51. R v Byrne [1960] 2 QB 396 (CA). 52. Ibid, at[403]. 53. NSW Crimes Act 1900, s. 23A. The defence was introduced in the Crimes Amendment (Diminished Responsibility) Act (1997). The primary change seems to be the explicit incorporation of the M'Naghten Rules of capacity to understand events, to judge whether one's actions were right or wrong, or to control oneself, and a shift to emphasise ‘substantial impairment’. 54. Conceptually, the common law defence of provocation, whereby murder is reduced to manslaughter, is a defence of diminished responsibility, and infanticide is a diminished responsibility offence. 55. One of the facts that supported the initial conviction of Andrea Yates was her seemingly calm 911 call after drowning her children, when she was convinced that she was evil and not raising them correctly. Deanne Laney who killed her two sons, ages 6 and 8, and attempted to kill the third, 14 months old, by smashing their skulls with rocks, claimed that she was divinely chosen to kill them as a test of her faith, and that they would rise from the dead. She moved the 6 year old's body so that his brother would not see him. After killing her eldest son she called 911 and calmly stated, ‘I've killed my boys’. Unusually, all of the expert mental health witnesses agreed that she was delusionally psychotic at the time, and she was found not guilty by reason of insanity. T. Worner (2004). 56. Psychosis occurs in one in 500 to one in 1,000 deliveries (DSM-IV: 386). 57. UK Law Commission (2005: para. 9.29). 58. Professor Oberman (2003a: 65), a leading American infanticide scholar, proposes an ‘extreme emotional disturbance’ perspective on post-partum legal violations, including filicides. See also, M. Oberman (1996–1997; 2003b; 2009). 59. This position is also seen in some case law, eg, in Brannon v Wilkinson Hardware Stores Ltd ([2000] UK Employment Appeal Tribunal Appeal No. EAT/712/98 (para 10)), where the court observes: ‘We cannot simply assume that a depression … which was post-birth, was in fact clinically regarded as a postnatal depression …’ 60. As cited in Negus, Jolley and Betrus (2007: 766). 61. (2008) CanLII 45550 (Ont Sup Ct) para 63. 62. R v Azzopardi [2004] VSC 509 at [22]. 63. Anfinson v The State of Iowa, 758 N.W.2d 496 (Iowa 2008). 64. UK Law Commission (2006). 65. The phrase comes from R. F. Schopp (1991), as used in B. Hannan (2005: 332). 66. Note that in British and Canadian law, insanity may also be raised by the prosecution. 67. See eg, R v Li [2000] NSWSC 1088 at [2]: the defendant ‘was at all times a caring and devoted mother, who killed her child whilst so severely depressed as to verge upon being insane … so that she would not leave him behind when she herself died’; R v Elango [2008] OJ No. 2264 (Ont SCJ) para. 12: defendant found not criminally responsible on account of mental disorder for drowning her two young daughters in the bath. She perceived her acts to be in the best interest of her children and ‘she hoped to be reunited with them in a better place … These thoughts were closely related to her own ongoing suicidality and beliefs that both she and her children would continue to suffer terrible lives if they continued in this world’; R v Valiquette (1990) QAC LEXIS 10 (Que. CA): mother attempted suicide, and was convicted of killing three year old, and sentence reduced to probation order; Yates v State of Texas 171 SW 3d 215 at [217] (2005): delusional mother's murder convictions, for drowning her five children to save them from the devil, were overturned based on her insanity. 68. R v R.F. Richards [2002] NSWSC 415. 69. R. Bradfield (2001–2002: 155) makes this same argument about representations of women who kill their abusive spouses. 70. Azzopardi at [21]–[22]). 71. See C. Meyers and M. Oberman (2001). Although this type of infanticide is fairly common, if there was no discussion of post-partum mental disorder, these cases have been excluded from the set discussed here. 72. R v Gorrill [1995] NSR (2d); 139 NSR (2d) 191; 397 APR 191. 73. R v Pope [2002] NSWSC 397. 74. R v Cooper [2001] NSWSC 769, 772. 75. US v Amielia Booe 252 F Supp 2d 584 (E.D. Tenn. 2003). 76. R v JAD (2003), BCPC 203 (CANLII) (BC Prov. Ct) at [15]–[17]. 77. People v Hulitt 361 Ill. App. 3d 634 (Ill. App. Ct. 1st Dist. 2005). 78. See also State of Michigan v Sandra Lea Brown ((1999) Michigan Court of Appeal, no. 208982, 22 June 1999), where a mother's insanity defence was rejected and she was convicted of first degree child abuse for the horrific and repeated injuries inflicted on her five-month-old son. The defendant had argued that post-partum depression, aggravated by caffeine and Fastin, a prescribed amphetamine, caused her to enter a psychotic state. 79. See similarly, A. Wilczynski (1997: 426). Eg, in Robeson v Roanoke City Dept of Social Services (2008 Va. App. (Va. Ct. App. 23 December 2008)), a mother appealed an order terminating her parental rights over her five-and-a-half-month infant who had been removed from her care due to abuse and neglect. The mother had been diagnosed with post-partum depression and severe bipolar disorder, and the child protection worker found her erratic, delusional and unstable. The mother had declined medication for four years as she didn't think she needed it, but did admit to using street drugs, had a history of verbal, physical and emotional abuse by her own father, and also as a perpetrator of violence: she once threw a knife at her partner. Her subsequent child was also placed in foster care. The psychologist opined that ‘she is an individual with a pattern of chronic psychological maladjustment … that [her] emotional instability, haphazard thinking, unpredictable behaviours, and self-centredness are detrimental when it comes to raising a child’ and would be unlikely to resolve themselves in the reasonable near future. The foster plan required her to get and maintain stable and appropriate housing, complete parenting classes, complete a substance abuse assessment, undertake counselling and attend a domestic violence program. However, Thornburgh J. opined that even if the mother complied with the plan, the mother's mental health would still prevent her from adequately parenting the child. Her housing did not remain stable and she moved numerous times. She reported attending counselling, but would not produce verification of her attendance. She completed parenting classes, substance abuse assessment and a domestic violence program. Her visits with the child were inconsistent, but improved and increased to allow community visits with the father present. Then the father tested positive for marijuana use and lied about his employment status. He was arrested for assault and felony abduction of the mother. The mother tested positive for marijuana several times and missed several drug screens. The judge's reasons in the decision were based largely on the psychological evaluation that was done on the mother when the child was first taken into care and not reassessed two years later when the care order was finalized. 80. PEI Dir. of Child Welfare v Guignard, [1987] PEIJ No.76 (PEI Sup Ct Fam Div). 81. This appears to be true whenever the mother's mental state is put in issue. Although not a child welfare case, see eg, R v Coombs [2003] AJ No 1209; 2003 ABQB 818; 2003 ABC (at [56]). The 18-year-old aboriginal defendant was charged with murdering her ten-week-old daughter, but convicted of the lesser offence of manslaughter. In reviewing the character of the accused, the Court noted: ‘Ms Coombs properly reminds me that, because the state has been her parent since she was 11 years old, there is an abnormal volume of evidence available about her activities: the state has created records, and notes, and files, and consolidated reports where an ordinary parent would have no record whatever, and perhaps very little memory.’ 82. Re TMB [1981] PEIJ No 2 35 Nfld & PEIR 468 26 RFL (2d) 60. See also Adoption of CLB v DGB 812 So 2d 980 (Miss 2002); In re JAB 744 So 2d 575 (Fla App 1999); In re Adoption of CJFT v JW 1999 WL 332446660 (Utah Ct App 1999). 83. KD v PH (No 2) [2003] FMCAFam 483 (Fed Magistrates Ct Aus). 84. The mother was a psychic and tarot card reader at psychic fairs. 85. Holmen v Farley [2008] FamCA 197 (Aus Fam Ct). 86. See similarly, Brannan v Smith ([1987] NSW; BC8701383), wherein an American man pursued custody of two children after a marginal relationship with the Australian mother; he isolated her in his parents’ home and then alleged her mental instability; In K.P. v E.P. (2004 Del. Fam. Ct. LEXIS 176 (Del. Fam. Ct. 1 September 2004)), while the father asserted the mother's mental instability in a custody contest, the mother rebutted that she was in a state of anxiety as the father had taken the child into hiding for three weeks. There was other evidence of the father's controlling behaviour, domestic rape, a driving under the influence conviction and conspiring with a neighbour to concoct evidence against the mother. 87. R v Mohan (1994) 89 C.C.C. (3d) 402 (SCC).