Texas mom's new defender: feminists

NOW, joining Yates's lawyers, says death penalty is too harsh in cases of postpartum depression.

Andrea Yates, the Texas woman who drowned her five children in a bathtub, has become a poster child for anybody with a cause: Her name is evoked frequently among mothers' support groups, mental-health advocates, and death-penalty opponents.

Now, the National Organization for Women has jumped into the debate. It is raising money on Mrs. Yates's behalf, saying the mother was mentally unstable and suffering from a severe case of postpartum depression. The feminist group's stance, coupled with the visibility of the case, is raising broader questions - both legal and ethical - about how far one can go in using illness as a defense for murder. It is also prompting incredulity in certain circles, as some wonder if this is how a respected organization should promote its ideals.

While NOW hopes to draw increased attention to Yates, who is charged with capital murder, its larger aim is to help more than just one woman. "The Andrea Yates case allows us to look at the many other women who suffer with this condition, and to use it as a compelling, credible basis for discussion of the issues," says Deborah Bell, Texas NOW state president. "The ultimate goal is education and awareness, so that another family never [has] to face a nightmare such as this."

But critics - particularly those who believe there is no justification for the murder of five children - are shocked by NOW's involvement in what they see as a desperate legal maneuver. And some experts question the use of postpartum depression as a defense - particularly in this case.

"That makes no more sense to me than the Twinkie defense, where a lawyer said his client had eaten too many Twinkies and was high on sugar from the junk food. That was ludicrous, and I think this is ludicrous," says Joshua Marquis, the district attorney in Astoria, Ore., and a National District Attorneys Association board member. "It's dangerous, because it says women who have children are somehow in a different class than the rest of us. Are they going to start saying that this class should be treated differently?"

Ms. Bell, with the Texas NOW, shoots back: "NOW has a history of looking at woman's role in society. And for a long time, women in this condition were written off as hysterical. We have a lot to learn about this mental condition, and we hope to facilitate that discussion and offer a forum to do something about it."

Postpartum depression was first described by Hippocrates in 700 BC, and according to doctors today, it affects between 10 percent to 15 percent of new mothers. But even more serious, they say, is postpartum psychosis, a rare condition that is believed to affect 1 in 1,000 women. It can include severe depression, suicidal thoughts, or attempts to harm the baby.

"We're not talking about reading the tea leaves here. This is real science from physicians," says Gerald Goldstein, past president of the National Association of Criminal Defense Lawyers. "But the question is: (1) whether it really applies to a particular situation, and (2) are the facts so gruesome that a jury will be unwilling or unable to accept the science."

Yates is hardly the first woman to employ the postpartum defense. In fact, England has allowed postnatal psychosis as a defense for infanticide since the 1930s. But in the US, defendants must prove insanity - a more stringent standard. Thus, testimony about postpartum depression, battered-wife syndrome, or post-traumatic stress disorder are presented to prove insanity.

"These kinds of things are often looked at as a defense of last resort. When nothing else works, claim you're crazy," says Mr. Goldstein, who practices law in San Antonio. "On the other hand, a mother who drowns all five of her children - the act itself raises serious questions about the person's competency."

Postpartum depression was first used in the US as a defense in the 1930s by an Ohio woman. Since that time, it has shown up rarely - only five or six times in the past 20 years. In many of the successful cases, it is a judge - not a jury - that accepts the defense. In 1987, for instance, a Vermont mother killed her 6-week-old son and then tried to shoot herself. A judge dismissed the murder charge on the basis that she was insane, suffering from a biologically induced depression.

That same year, Sheryl Lynn Massip drove a car over her 6-week-old son in Orange County, Calif. A jury found her guilty of murder, but a judge later reversed that conviction on the grounds that she was insane, suffering from postpartum psychosis.

"The jury has to believe that someone can live in a different universe, one where postpartum psychosis exists - if they even believe it exists at all," says Tim Bakken, a law professor at West Point military academy.

While stress defenses are rare, he says, the theory is the same: "That because of a unique experience - a woman giving birth, a veteran coming back from war - there is a psychotic break or a hormonal imbalance that occurs."

The first step in the Yates case, however, is for a court to decide whether she is mentally competent to stand trial. A hearing has been set for Sept. 12.