Lindsay Clancy and America’s Canadian Future

On September 4, the judge declared a mistrial in the Lindsay Clancy case, the result of one holdout juror who prevented a verdict of not guilty by reason of insanity. Given the 11–1 split, it is hard to imagine a future where Lindsay Clancy goes to prison. This outcome threatens to send America on the same legal trajectory that in Canada has made it all but impossible to convict mothers who slay their children.

This trial was never about whether Clancy killed her three children. Her defense conceded that right off the bat. The question they raised was whether she could be held criminally responsible for the acts she committed. Jed Rubenfeld, a professor of constitutional law at Yale, explains in the Free Press that in most of the country, and in federal court, a defendant who pleads insanity has to prove it. Massachusetts is one of about a dozen states that do it the other way around. Once the defense raises the question, the burden is on the Commonwealth to prove beyond a reasonable doubt that she was criminally responsible. As Rubenfeld put it in an interview, “How do you prove a negative?” Both sides had experts. Some were certain she was psychotic. Others were certain she was not.

This stacked the deck in favor of acquittal. The more brutal the act, the easier it is to argue that no sane person could have done it. Clancy’s lawyers never had to prove she was insane. They had to make only one person wonder. Turns out they got eleven.

This is backward. A woman who confesses to killing her children should carry the burden of showing she was not criminally responsible. Most states and the federal government agree. And Massachusetts did not inherit its rule from some distant century. Its highest court adopted its current insanity test in 1967.

But here’s what worries me more than the Clancy outcome. Almost nobody outside that courtroom knows that Massachusetts flips the burden of proof. What the country will remember is that eleven Americans heard the evidence in the worst case imaginable and said Clancy could not be held responsible. The women who lined up outside the courthouse, and those who vociferated in her defense around the country, now celebrate the court’s protecting the one they view as the primary victim.

Within hours of the mistrial, Postpartum Support International, which calls itself “the nation’s leading nonprofit dedicated to perinatal mental health,” pledged to keep pushing “for laws in every state that treat these mothers as patients.” And it named its models: “more than two dozen countries, including England, Canada, and Australia,” whose infanticide laws “direct these mothers toward psychiatric care rather than prison.” The Maternal Mental Health Leadership Alliance made the same case four days later.

The decline of Canada’s legal system reveals what happens when we create our laws around the wrong victim. In 1948, Canada’s Parliament created a special category for the mother who kills her child while her mind is “disturbed” by childbirth. The thought of jailing a poor young mother for the entirety of her natural life was too much for juries. John Diefenbaker, a member of Parliament who would later become prime minister, said it plainly: “Over and over again juries have refused to convict, regardless of the evidence. I presume that the reason for this amendment is to make it easier to get a conviction.” Rather than find jurors who would apply the law as written, Parliament rewrote the law to match what jurors were already willing to do.

Faced with a mother who was genuinely broken in the weeks after birth, Parliament tried to carve out an exception. But they built it badly, and they set the penalty nowhere near the gravity of a dead child: five years maximum, and in practice often none at all. Revisions in the decades that followed meant virtually any mother could receive this lesser charge, even where there was no evidence her mind was disturbed.

Kirsten Kramar, a sociologist who defends the law, told the Edmonton Journal in 2006 that no Canadian woman had been jailed for longer than a year for murdering her child since 1948. Convicted mothers, she said, usually get no jail time at all. Kramar was responding to an Alberta case, where Katrina Effert offered to plead guilty to infanticide, but the Crown refused and tried her for murder. She was convicted by two separate juries of murder for strangling her newborn son with her underwear, then tossing his body over a fence. She was sentenced to life imprisonment. Then in 2011, an appeals court substituted infanticide, and Justice Joanne Veit handed down a suspended three-year sentence.

“Canadians also grieve for the mother,” Veit wrote. Then she turned to abortion: “While many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support.” Once a court decides the mother is also a victim, the case ceases to be about justice for the dead child.

In 2016, Canada’s Supreme Court held that disturbed is “not a legal or medical term of art” and means only “mentally agitated.” It “need not constitute a defined mental or psychological condition or a mental illness,” and it did not even have to cause the killing. The court called the result “a very low threshold.” The standard went from loose, to low, to gone.

Canada’s own prosecutors eventually tried a workaround. Statistics Canada recorded eighty-six women charged with infanticide between 1977 and 2006, and then none. Crown attorneys began charging murder instead. It did not work. That 2016 Supreme Court case began when Alberta’s Crown appealed the case of a woman who had put three newborns in a dumpster, asking for a murder retrial and a real medical standard. Seven judges said no, unanimously. By the time the prosecutors wanted out, the courts would not let them go.

Which brings us back to Clancy. Massachusetts built a law that makes convictions in these cases next to impossible, and then a case came along that put the result on national television for months. This fateful confluence of events will undoubtedly become a cultural catechesis, encouraging blind support of all postpartum women in cases of infanticide, with no consideration of whether psychosis was truly at play.

In a society dependent on the worldview of our neighbors, who fill our jury pools, this should scare all of us. If that contagion does its work, we will end up where Canada is now: with a category of cases in which juries refuse to convict, and, if Postpartum Support International gets its way, new laws that start us down the slippery slope toward a world that makes justice impossible for the murdered child.

Instead, we should demand that Massachusetts reckon with a legal standard that requires the state to prove a woman responsible for a murder she confesses to committing. It is an inversion that treats her as the presumptive victim and asks her children to earn a verdict, when the one fact nobody disputes is that she killed them.

We should center the child instead. Make justice for the child the default. Then let the woman who was truly psychotic prove it and receive the relief she deserves. Mercy earned through proof is justice. Mercy by default, after a murder confession, is immunity. However we respond after this decision, our choice of victim will determine our future.

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Image by Josh Reynolds via AP. Image cropped.