2 As my analysis of infanticide shows, gender norms are crucial for understanding this part of the mental incapacity terrain.Īs I discuss in Chapter 2, infanticide is a mental incapacity doctrine on my account of the mental incapacity terrain in criminal law. 1 Feminist scholars have pointed out the ways in which women offenders are depicted as doubly‐deviant, transgressing gender norms as well as legal norms. Like feminist studies of law more generally, the subject of gender, ‘madness’, and crime has been approached with a critical eye on the distribution of power. The subject of gender, ‘madness’ and crime has been of most interest to feminist scholars. This chapter addresses the gender dimension of ‘madness’ and crime via a study of the infanticide doctrine. Keywords: infanticide doctrine criminal law, infanticidal women, criminal responsibility, infanticide In the current era, the doctrine of infanticide is sustained by a lay or nonexpert knowledge about the interrelation of gender, childbirth, and ‘madness’, which over-determines the legal evaluation of infanticidal women and their acts in criminal law. A particular social type - the infanticidal woman - has come to determine the legal issue of the defendant's criminal responsibility, and the act of infanticide has come to be read as an instantiation of abnormality for criminal law purposes. It suggests that a dense network of meanings about the interrelationship between gender, ‘madness’, and crime has sustained what is widely regarded as a peculiar or strange legal doctrine into the current era, permitting women who rely on infanticide to slide between the categories of offence and defence, or, more precisely, between charge and plea.
A subject index and a recommended reading list with 17 entries are provided.This chapter takes up the issue of the relationship between gender, ‘madness’, and crime via an examination of the specific case of the infanticide doctrine. Attempts to revise the insanity defense, notably the development of the verdict of guilty but mentally ill, are considered, and attention is given to Oregon's effort to improve its system of handling mentally ill people in trouble with the law. Arguments for the continued use of the insanity defense are based in the concept of fairness and justice, which holds that a person whose mind is clouded by mental illness at the time of an offense cannot be said to have the criminal intent required for legal guilt. Arguments against the insanity defense are then presented, including the early release of dangerous persons from psychiatric facilities, a jury's inability to judge between conflicting psychiatric testimony about a defendant's mental state at the time of the offense at issue, the subjectivity of psychiatric opinion, and the fact that only rich defendants can afford to use the insanity defense, since it involves costly psychiatric testing and testimony. Attention is given to what happens to a defendant acquitted by reason of insanity, namely, the mental health treatment that may be required and the nature and length of confinement accompanying such treatment, along with procedures required for release. The current American Law Institute (ALI) insanity rule is then compared with the M'Naghton rule, with the ALI rule considered to be broader and more flexible, encompassing the use of the concept of diminished capacity within the insanity defense. Since the evolution of the principles of the insanity defense in American courts originated in the M'Naghton case in Great Britain, this case is reviewed along with the insanity-defense principles that emerged from it. This trial is considered the focal point of the renewed debate over the historic and current use of the insanity defense. The presentation opens with a description of John Hinckley, Jr.'s attempt to assassinate President Reagan and the key elements of Hinckley's subsequent successful insanity defense.