Analysis: US law and infanticide

Yates said his wife suffered postpartum depression

By BBC News Online's Kevin Anderson in Washington

The United States differs from many other Western countries in how it handles mothers who kill their infants, such as the case in Texas where a woman said she killed her five children.

In England, post-natal psychosis is a defence for infanticide until a child is the age of two.

In Texas, almost all of the discretion lies with the prosecutor

Texas legal expert

In the US, no such defence exists, and in many states, including Texas, those women can be tried for murder and could face life prison terms or death.

Like much of the legal and political system in the US, there are no uniform federal laws governing infanticide by a mother. Instead, laws differ on a state-by-state basis.

Texas does not have a specific infanticide statute, according to Eric Nielsen, with the Texas District and County Attorneys Association.

Andrea Yates could be tried for murder

"And in Texas, almost all of the discretion lies with the prosecutor, the district attorney," he said.

In this case, the district attorney could decide to try the mother for anything from negligent homicide to capital murder, which carries with it the possibility of the death penalty.

Illness not understood

With the lack of a national standard, the decision on what charge to pursue varies in almost every single case, according to Ryan Rainey, an assistant US district prosecutor in Washington who specialises in child homicides.

Post-natal psychosis, an extreme form of post-natal depression that affects less than 1% of mothers, has been blamed for some two dozen babies' deaths in the US in the last 20 years.

Susan Smith admitted to drowning her two sons

Unlike the UK and other countries, the US and the state of Texas does not include post-natal depression as a defence for murder, though it does include insanity.

"They realise there is something unique and different about these crimes, that they are the product of some sort of disease or illness such as depression," said Michelle Oberman, a law professor at DePaul University who has written about infanticide in the US.

Defendants in the vast majority cases in other countries receive probation and counselling instead of jail terms, but she says that law in the US fails to understand post-natal illness.

Mr Nielsen said that Andrea Yates' lawyers would have to prove that she had a severe mental disease or defect such that she did not know right from wrong, he added.

For that reason, any trial would be a battle of experts, Mr Rainey said.

Leniency

However, even though laws in the US allow women who kill their infants to be tried for murder, he says that often prosecutors have difficulty getting the maximum sentences allowed by law.

Susan Smith told South Carolina authorities in 1995 that a carjacker had stolen her car with her two young sons in it.

Later, she admitted to rolling her car into a lake and drowning her two sons. Prosecutors had sought the death penalty, but a jury sentenced her to life in prison.

In 1987, Sheryl Lynn Massip drove her car over her 6-week-old son. She was convicted of murder, but a judge later set aside her conviction on the grounds of post-natal psychosis.

A Texas jury also showed leniency in the recent case of Evonne Rodriguez. In 1998, she was found innocent by reason of insanity in the 1997 death of her 4-month old son.

She told police she strangled the baby with a rosary because she thought he was possessed by demons.