1. Victorian responses to mothers killing their children. Teaching law in context: Insanity to partial insanity.

2. M’Naghten’s Case (1843) Jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction and that to establish a defence on the ground of insanity, it must be clearly proved that, (1) at the time of the committing of the act, (2) the party accused was labouring under such a defect of reason, (3) from disease of the mind as (4) not to know the nature and quality of the act he was doing, or (5) if he did know it, that he did not know he was doing what was wrong. Volitional and emotional disorders are outside of this definition.

3. Social norms Application of these legal rules cannot been seen in isolation from the social norms. What is deemed illogical or unexplainable is subject to change. Something rarely considered by law students. The Victorian reception of mothers who killed their (infant) children demonstrates why we can’t effectively address socially bound defences in isolation from the social context. Precedent?

4. The defence of Insanity It was women who ‘benefited’ most from social and medical understandings of insanity. Understood as instinctively moral creatures making it easier to depict their forays into crime as yielding to temptation. Morally purer, but vulnerable and weaker than men, women were then placed into a position where an act of murder, particularly against a child could be related as an illogical act. Moreover female ‘conditions’ translated well into a disease of the mind. Depressive disorders, pregnancy, post natal depression, pre-menstrual tension, menstruation, menopause and those conditions that we recognise today as forms of schizophrenia were all subsumed under the broad umbrella of insanity.

5. Child Murder While in many cases while the disease of the mind was readily related to a female malaise it was the very act of child murder itself that was offered as proof of insanity. Here they were looking (contrary to the test) to the legal act as insane rather than state of mind of the accused. Child murder was considered so extraordinary that clinicians held it to be closely linked to an imbalance of the mind. For example, in the early nineteenth century Dr Pritchard set down a number of criteria for identifying murderous homicidal impulses grounded in insanity. He stipulated that the actions of the homicidal lunatic are without motive and “are in opposition to the known influences of all human motives”. Given the strong social presumption of the female as a nurturing caregiver, the use of the insanity defence in cases where mothers killed their children is unsurprising. For women sympathy often came by way of the insanity defence in a number of guises. For example, infanticide (commonly understood to arise from puerperal insanity) was a defence recognised in law and readily used by juries.

6. Examples Esther Lack slit the throats of her three children in an offence that the Pall Mall Gazette termed a ‘typical example’. Her defence relied partially upon ‘cessation of lacteal secretion’ and a number of fits she had suffered, despite the fact Esther had originally gave her motive for murder as an unwillingness to leave her children with strangers while she attended the local hospital - the trial was stopped once the jury were satisfied her mind was imbalanced. Adelaide Freedman was also initially understood to have had motivation for murdering her child, the child the issue of a liaison with a man other than her husband. Adelaide’s husband had been away at sea for five years and upon hearing of his return Adelaide had poisoned herself and the child. However, at trial the surgeon who tended to her upon her confinement testified Adelaide had suffered ‘mania, which is a well-recognised form of insanity with women about the period of their confinement—it affects them when they are not able to give milk to a child.’ Martha Brixey, aged 18-years, founded her assertion of insanity partially upon the stoppage of her menses. She had slit the throat of a child whose family she was employed. Such a stoppage was reported by Martha’s examining surgeon to ‘derange the general constitution’. The jury believed her deranged and found her not guilty by reason of insanity. Do these cases follow the ‘rules?’

7. Conditions The Victorian willingness to excuse mothers killing children had an unanticipated effect. By looking to deny the responsibility of these women an array of conditions - depressive disorders, pregnancy, post natal depression, pre-menstrual tension, menstruation, menopause, a history of family lunacy and those conditions that we recognise today as forms of schizophrenia were all subsumed under the broad umbrella of insanity and were unquestionably held (socially and then in case law) to be a disease of the mind. As well as hormonal motivations the emergence of moral insanity or irresistible impulse (per Prichard) where actions are involuntary, instinctive, irresistible and without delirium had ben used with some success – and was certainly part of Brough’s defence.

8. Mary Anne Brough (Ann Brough) George, Anne’s husband told her he was leaving her because he suspected she had been cheating on him. He also intended to take their children away. On June 10 1854 a man walking by their home spotted a bloody pillow in the window. Neighbours found Anne inside, alive, but with her throat slit. The bodies of 6 of her children lay scattered throughout the house, their throats cut. Anne survived and confessed, telling investigators that she had used a razor on each child – some were awake and struggled. She had then attempted suicide. She made a very detailed confession.

9. Anne Brough Anne related “there was something of a black cloud over my eyes”. Forbes Winslow testified that Brough was suffering from a "diseased brain," and pointed to the crime itself as ample proof of her madness "The act itself bears insanity stamped on its very face." He spoke of her “homicidal mania” caused a fit of temporary insanity (the black cloud) and as a result of organic brain disease caused by paralysis that had been suffered in 1852 (and from which she had recovered). The Times were so aggrieved by the jury finding of insanity that they saw fit to launch an attack upon the verdict and the ‘vindictive woman’. Anne had, as The Times pointed out, a least one affair, probably more, and her husband had separated from her, leaving her alone in the family home with the children. Her confession was detailed (a fact The Times rightfully stated should have destroyed her insanity plea) and the best evidence the medical authority in the case could offer was that Anne suffered from ‘blood to the head’ and strong and uncontrollable homicidal impulses.

10. Reception - Anne The Times comment this case illustrated that if an insanity defence could be sustained on such weak evidence then no murderer could be brought to justice. The Medical Times and Gazette was overt in its condemnation of the jury verdict, disregarding the medical testimony and referencing the credence given to the ‘black cloud’ as ‘puerile in the extreme’. ‘Unless all immorality be evidence of insanity, Anne Brough was sane..’

11. What does the Brough case show? The effect the social concept of insanity had upon female culpability perpetuated and supported the conception of the female child killer as mad; rendering this a socially, if not legally, rebuttable presumption. The defence has never been medically grounded – in that disease of the mind and the knowledge and cognitive limbs of the defence are not psychiatric concepts. Despite this Victorian jurors were using a very broad medico/social test – certainly an irresistible impulse without delirium was outside of the common law principles. Could she be anything but insane? But not an entirely popular estimation.

12. So where did this broad interpretation leave the defence? The M’Naghten rules failed to transform the popularity of the insanity plea, and in 1856 The Era declared the insanity defence could be satisfied by scant evidence including; blow on the head, insanity or relatives or epilepsy. More pointedly they asserted; ‘Eccentricity of manner and habits or moodiness of disposition, exculpate murderers in these days from the penalty of hanging’. The loose definition of insanity (or more often the rejection of the legal definition) not only allowed juries to exercise sympathy but meant the crime could not be related as a fault of society, nor of the woman herself. This denial of responsibility remains the crux of the defence today but is understood – as it should be by a proper reading of the M’Naghten rules - as a lack of legal capacity.

13. Suggestions for change The Times had broadly agreed with the Lord Chancellor’s proclamations regarding the legal limits of the defence of insanity in 1843 but argued those who came under a temporary excitement of their senses should perhaps be afforded a partial defence (an idea which did not come to partial fruition until the enactment of the Homicide Act 1957). This was such an important issue that The Times took it upon themselves to draft questions to the judiciary to address how they understood the current state of the law.

14. James Fitzjames Stephen, A history of the criminal law of England 1883 Suggested the law should allow; Where madness is proved, to allow the jury to return any one of three verdicts : Guilty ; Guilty, but his power of self-control was diminished by insanity ; Not guilty on the ground of insanity. Recognition of an inability to exercise self control.

15. How has this impacted upon modern conceptions of insanity? The insanity defence continues to include psychiatric, neurological and physical disorders. No tightening up of the M’Naghten rules legally speaking (although scoping paper published). The very idea of a jury accepting Anne as insane in the modern day is… The arbitrary nature of decisions made by defence teams, clinicians and juries – shaped by social shifts – have dictated the breadth of the M’Naghten rules.

16. Interestingly the 2012 scoping paper suggests insanity is being underused as a defence. Already evident: At the Royal Commission on Capital Punishment (1949 – 1953) a number of medical witnesses said limiting the defence to certain cases of psychosis and otherwise severe and manifest mental and physical disorders was, “judged by modern clinical standards, a purely arbitrary limitation”

17. Although we have continued to recognise partial insanity by way of conditions such as pre- menstrual syndrome (through diminished responsibility) and post-natal depression (through dim resp and infanticide) the legal rules and medical evidence demanded in the modern period make these defences more stringent. Moreover there is not such a ready acceptance of women as less culpable due to their biology, a view propounded in the modern press.

18. Diminished Responsibility However, typical Victorian ‘insanity’ cases have found expression in modern dim resp cases. Felicia Boots – suffocated her two children. Suffered postnatal depression and a paranoid fear her children would be taken from her. Per Mr Justice Fulford: "This is an almost indescribably sad case.” "Although the results of Mrs Boots's actions were profoundly tragic given the loss of two young lives, what occurred was not criminal activity in the sense that expression is normally understood. I unreservedly accept that what she did to the two children, that she and her husband loved and nurtured, were the results of physical and biological factors beyond her control.“ Cf. Esther Lack

19. Fiona Donnison Murdered her two young children ‘to get back at her husband’ Described as a narcissist with an overdeveloped sense of self-importance and entitlement. Diminished responsibility rejected. Cf. Anne Brough.

20. What can Victorian approaches tell us about the insanity defence? The use (and abuse) of the defence of insanity is illustrative of the dangers and benefits of allowing jurors broad discretion by virtue of a poorly worded legal ‘test’. In many cases it has seemed fitting that women should be relieved of culpability (perhaps not through insanity) – and these women would, in many cases be unable to use the modern (medically centred) DR defence – but still a manslaughter conviction...

21. Why is important for students of law to look at the history of the offence? Is the modern interpretation of mental capacity/incapacity a better reflection of female culpability - denying that women are emotionally weak. Have we properly dealt with partial insanity by way of diminished responsibility? What of the illogical crime? The Brough and Donnison cases. Can we deal with this legally? In the modern period two ‘causes’ commonly cited, domestic violence and depression (often related to DV) which if medically recognised can be DR and hence manslaughter. But highly unlikely to be insanity on a strict application of the principles – would Victorian juries have imported these into their decision making – raising a ‘socially rebuttable presumption’.? Precedent (again). Should we be using M’Naghten? Can always rely on precedent?