Episode 187: Gender, Mental Health, and Intro to Listener's Choice Case


Jessa: Hey everybody. I’m Jessa.


Nick: I’m Nick.


Jessa: And this is the Getting Off podcast. We’re back.


Nick: We are. We concluded our long..


Jessa: Our opus.


Nick: Our opus. Our magnum opus regarding the Sandra Melgar case. We made it through the woods on that and we’re out the other side. And we’re gonna do something of a, more of a policy kind of episode today for ya.


Jessa: Now I’m singing ‘Like A Virgin’ in my head, by the way. ‘We made it through the wilderness.’


Nick: Oh. See, I was, like, how did you get there? Yeah. I got it.


Jessa: ‘Somehow we made it through.’ 


Nick: I mean. Somehow, we did make it through. Emphasis on the “somehow”. That was long. That was extensive.


Jessa: That was a trudge.


Nick: It was.


Jessa: I don’t think trudge is a word, but to the extent that it is onomatopoeiatic. That may also not be a word.


Nick: I feel like it’s a verb.


Jessa: Anyway. Before we dive into what we’re talking about next, I want to remind everyone about two places that you can meet us live and in person in the coming months. In June, we will be at Crime-Con in New Orleans. In July, we will be at the Chicago True Crime Podcast Festival. There, we will be having a live show. And that will be on Saturday, July 13th. It will be co-hosted by the folk at L.A. Not So Confidential, a podcast run by two psychologists who talk about all things true crime from a psych perspective. Shiloh and Scott are wonderful. You should check their show out if you haven’t already. So come meet us. We’re gonna be out. We’re gonna be probably consuming alcoholic beverages. Yeah. Do it. Show up.


Nick: Yes.


Jessa: So. Okay. We are free from whatever has happened in the last, I don’t know. Fourteen episodes?


Nick: I stopped counting at some point, but we are free of that.


Jessa: And we’re onto our introduction to our most recent listener’s choice which is the case of Andrea Yates. But before we do that, we have some things to talk about, writ large. Specifically, the criminal justice system, women, mental health, and NGI. So. Without further ado, let’s discuss.


Nick: What’d you want to start to peel this onion, to crack this nut?


Jessa: Well, I think I wanna start with historical notions of reasonable people.


Nick: Do tell.


Jessa: So. When affirmative defences, historically, have been raised, there’s been this standard that was originally referred to as “the reasonable man”. So jurors were instructed that they should consider what a reasonable man in the position of the defendant would have done. That comes up in self defence. It comes up in diminished capacity. It comes up in the criminal justice system on the regular. And the 20th century led to some reforms because feminists, largely, advocated for the idea that a “reasonable man” may look different than a “reasonable woman”. And I would refer everyone to our episodes on State v. Debra Head for a more in-depth discussion about this. But basically the point was you can’t make a decision without, about reasonableness without taking into account the specific characteristics of any given defendant.

And so, if, for example, as in Debra Head, the defence’s battered woman, you have to look at the specific psychology of what it means to be a person who is subjected to months and years of domestic violence to understand what their reasonable fears would be, to understand what their reasonable reaction would be, given their makeup. And so that’s an idea in which we generally frame conversations about affirmative defences. Does what this person did make sense, given what we know about them? And that’s true, certainly, in self defence cases. But I would suggest that it also happens to be true to some extent when we’re evaluating actions that are fueled by mental illness, or at least the allegation is that the action is fueled by mental illness. What do I mean by that?

Well. We’ve talked in the past about the NGI or NGRI standard which is where you can claim that you are not criminally responsible for the crime that you committed, and there are usually two phases to that trial. You can present evidence to suggest that based on your particular psychological makeup, you should not be held criminally responsible for those crimes. And our listener’s choice case, to me, okay. This is my framing. Actually is a very gendered case because what we’re talking about is fundamentally what postpartum depression may or may not excuse, in terms of behaviour. And excuse is probably a loaded word. But it’s the way that I’m choosing to articulate, does being in the throes of postpartum depression with potentially psychotic features allow you to assert that you are not criminally responsible for the actions that you take in that state of being?

And I say that that is gendered because men, spoiler alert, can’t experience postpartum depression. So we necessarily have to look at this from a view that is not the historical view of the criminal justice system. The criminal justice system was designed by men here in America. It’s the founding fathers for a reason in all the stories it was the founding fathers. And 300 years of jurisprudence talk about the reasonable man or talk about the point of view of the hypothetical male defendant. And part of what happens in these cases. Andrea Yates is one of them. Susan Smith is another. There are several others that we could come up with. But part of what happens when a mental health defence is raised necessarily requires us to look at the way that we view gender in the criminal justice system, with regard to defendants. And I want to start by talking about that because I think that’s an interesting way to frame this conversation.

Nick: Keep going. You’re on a roll. Tell me what you think about that.

Jessa: Well. Okay. For starters, one of the things that has always been interesting to me is that when we frame a system with one viewer in mind, here meaning sort of the male gaze and I’m borrowing an art history term there.

Nick: Not only an art history, but right. And we’re talking about a system that was constructed, historically, by men and the world continues to be. We were just talking about in our last episode about, you know, the arc of the moral universe and things changing over time and hopeful progress, and the world certainly has changed from a gender perspective. But it has the background. It has the history that it does.

Jessa: Yeah. And. So one of the things that happens, right, is that if you trace historically famous trials with female defendants, some weird shit happens. The most obvious example of this is Lizzie Borden, right? Because Lizzie Borden was accused of murdering her parents with a goddamn axe, which is one of the more brutal homicides a person could commit. And at the time, in the societal context in which she was tried, an available argument to the defence was “She could not have committed this crime because of her sex. Because she’s a woman and this crime was so brutal, it is unlikely that she was the perpetrator.”

That’s rooted in all sorts of problems. It’s rooted in all sorts of stereotypes. But it’s an example that is a famous one of ways that our criminal justice system is influenced by sociological and psychological understandings of sex and gender. Another area that this comes up is in hate crime legislation. And our decision to punish more severely people who have motives that are discriminatory.

So we do this in lots of places, right? Then we have this weird issue when we look at conviction data for female defendants. And they have disproportionately incidences of being victims of domestic violence, having a history of sexual trauma, having mental illness issues. And by the way, when we look at false convictions for women, the number one thing that results in a false conviction for a woman, statistically, is that there was really no crime committed at all.

And in the next series of episodes, not just Andrea Yates, but beyond there, we’re gonna talk about some of the ways that that manifests itself in the criminal justice system, where assumptions about women and motherhood and actions of appropriate women or appropriate mothers are slanted and called into question when we get to criminal prosecutions of infant death and child abuse. And Andrea Yates is a case that fundamentally talks about child death.

Nick: True.

Jessa: So what I’m interested in because I am interested, primarily, in two things in life which is the law and gender theory. Like, those are, you know, my two passions. This intersection is particularly engaging for me to talk about because the way that we choose to view women in the justice system is sort of a microscope of the way that we view women more broadly. And the way that we analyze women’s psychological makeup, in the context of responsibility, is a reflection of both the gender of scientific conclusion, which is something I anticipate talking quite a bit about when we get to the expert testimony in Andrea Yates. And also, the way that we view women’s motives, dating all the way back to Eve, her apple, and her lack of fear of snakes.

Nick: Rock ‘n roll. So we’re gonna keep going with that theme. But as we do, before we do, before we take another step forward, let’s talk to you about one of our sponsors. That is Care/of. Who is Care/of? What is Care/of? Care/of is a monthly subscription vitamin service that delivers completely personalized vitamin and supplement packs right to your door. They can help you develop a healthy routine. Here in Wisconsin, the winter is finally, grudgingly coming to an end. We don’t really get much in the way of spring in Wisconsin. But spring has sprung here and Care/of can help you with the winter blues coming to an end. They can help you get back into a routine that empowers you to feel your healthiest. You can give yourself an extra boost this season, whether you’re looking for more energy, better sleep, to maintain stress, or something else to help you feel your healthiest.

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Nick: Where were we?

Jessa: Well, we were talking about women in the justice system and I’d actually like to hear you wax poetic for a minute because you were a DV prosecutor.

Nick: Yes.

Jessa: So I’d like you to talk about some of the differences between how a victim presents. Let me rephrase that. Oftentimes. Let me back up. Let me lay some foundation, to use the court words. Oftentimes in the criminal justice system, someone who is a victim one day can be a perpetrator the next. Specifically, there are serious ties between traumatic experience and inability to conform conduct with the law.

Nick: Sure. Many people who are in the criminal justice system as you indicated a moment ago, there are certain experiences or themes or conditions that are quite common. Mental health. Substance abuse, which are oftentimes connected themselves. And being victims of traumatic experiences themselves.

Jessa: And so what I think would be interesting for listeners, and this is just me, is to talk about some of the ways that that connects. And this is broader than just Andrea Yates. But what you’ve seen in your career are people that are both victims and flaun. And I’m hoping that you can say something about how that works in terms of witness credibility and how it works in terms of the approach to this person.

Nick: I think my biggest observation is oftentimes, the system tries to simplify things in a way that I don’t think is fair and I don’t think is accurate. And the system suffers as a result. You and I have both seen cases where we talk about the life experiences of our client, and that’s usually in a sentencing context, right?

That’s most often, it might be in the context just with the prosecutor, negotiating the case up front, sharing relevant information about this person’s condition, their life story, all of that, to humanize them. But really, to talk about what the, try to convince the prosecutor about what the appropriate outcome is in the case, and to influence that by trying to present a complete picture of who this human being is.

And you and I both have many examples that we can talk about from our own careers, where someone who the prosecutor was viewing as a victim, some relatively short time ago, is now viewing them as a defendant, and too often, I think, that becomes, it’s part of this simplification theme that I’m referring to.

It’s sort of all or nothing. It’s black or white. And it’s just more complicated than that and we can’t, it drives me nuts and I know it drives you nuts when prosecutors will talk about something, an experience, that may have been a part of a defendant’s life, and they will talk about it in a wholly different way than if they were prosecuting the person who in fact did those things to that person. All of a sudden, they talk about it and look at it completely differently. And I think that undercuts their moral authority.

I also just don’t think it’s honest. And what’s most interesting to me about the subject that we’re on right now is that this black and white simplification we have basically in every state. We’ve got, you’re either criminally responsible or you’re not. And one thing that I think about frequently is, should the system be different?

Should it not, should the line where we allow mental health for one, but maybe not only mental health to, where should the line be where we treat people in this strictly criminal way as opposed to some other way? And I think it should shift. I think that we, the history behind all of this is actually pretty fascinating. And it’s changed over time. The way we use the criminal justice system has changed over time.

And it has changed over time in the 20th century, specifically vis-a-vis mental health. Because in the middle of the 20th century, we deinstitutionalized the whole mental health system. And we did that, the belief was, the expectation was there was going to be more community-based mental health treatment and that was supposed to be funded by the government at multiple levels that never really happened.

A big part of what has happened in this country is we use the criminal justice system in all sorts of different ways as a repository, as a means of dealing with mental health in this country. And that doesn’t make any sense. That’s not appropriate. I don’t think that’s fair for law enforcement. I don’t think that’s fair for corrections folks. I certainly don’t think it’s fair for people who, in fact, have mental illnesses.

So the system at the back end could be significantly different than it is now, and in fact, it used to be different. Now, it changed because there was massive problems with that system, the way it was. It changed for legitimate reasons. But is the way that we engage in and I’m using air quotes here “corrections”, department of corrections. That’s a word that we use when we talk about incarcerating people. That’s really sort of an Orwellian euphemism in my opinion. It’s not, there are minimal efforts

Jessa: At correcting anything?


Nick: To actually correcting anything. It’s really more incapacitating, warehousing, than anything else. But could the line for that be different? Could we, it used to be the McNaughton standard. Now states have different versions of what we talked about, the NGI standard. Then I really don’t like the idea. I can’t remember what phrase you used earlier, but people aren’t quote-unquote “getting away” really with anything with that because those people are still going to be under the control of the government for many years, typically, when that happens.

Jessa: It’s very difficult to be found NGI, and we’ve done previous episodes on that. We explained the standards, so I don’t wanna..

Nick: No, I don’t wanna. But what I’m saying is, could the standard move? Could the line between those two things be different than it is? And I think that melds with what we’re talking about with gender because that would be a recognition of less of a black and white standard, and it would require of us acknowledging more differences than we do. It would, you know, because the system, I think, does reject some of these things with women because of stereotypical gender roles, especially regarding mothers and motherhood, right? And where do those stereotypical notions come from? Well, they come from a patriarchal view of the world and of gender.

Jessa: And it doesn’t just happen there.

Nick: I’m certainly not suggesting that it only happens there.

Jessa: That’s a part of what I find particularly interesting. But a very easy example of this is how many child sexual assault sentencings have you sat through?

Nick: Who knows. Many.

Jessa: Hundreds.

Nick: Lots.

Jessa: Okay. Every single time we hear about how child sexual assault is this life traumatic event. Over half of my clients that commit child sexual assault were sexually abused as children. That becomes background information once they turn into a perpetrator. Now maybe you think that’s the right decision and I think there’s an honest debate about that. Like, I think that your personal experience only gets you so far in terms of explaining behaviour.

However, the irony that I see in sentencings on a day to day basis is the same prosecutor that argues the damage is irreparable to their victim refuses to acknowledge that this same level of damage that was inflicted upon our defendant.

And in my view, it actually becomes worse, objectively worse, when we look at female defendants because while I see prosecutors zealously advocate for the prosecution of domestic violence, something I don’t disagree with. When a woman commits a crime, and her mental status has been grossly and meaningfully affected by sustaining years of physical, sexual, and emotional abuse, that is often written off. And we expect defendants to overcome things that we don’t ask victims to.

Nick: Right. This is not a slag on prosecutors only because..

Jessa: No!

Nick: We probably all have a human tendency to do this. Certainly people who are engaging in advocacy, they use what they’ve got. But that’s exactly what I was referencing before. We have seen, you and I, many many times where, right. A person experienced whatever it was, whatever traumatic, whatever form of trauma, earlier in their life. And as you said, that is described by prosecutors more often than not, male prosecutors, as something irreparable. Right? Which, you and I have talked about this in the past about having a problem with that. But then, yes. That becomes background noise to when they are advocating to hold that same person responsible, for something they have done subsequently. And this again is what I’m saying. Could the line move? And I don’t just mean with mental health, but with all sorts of life experiences. Do we need to have a system that is so binary? Or could the system have more stages where we do take into account trauma and the other variables that we know that do impact people who wind up in the corrections system? For example, it is simply a fact that a significantly higher percentage of people who are incarcerated in both jails and prisons have diagnosed serious mental illnesses than the general population does.

Jessa: And substance abuse issues.

Nick: And a very high percentage of people who have one have the other in incarcerated settings. So we know that is true. And I believe the data also shows, and it certainly is anecdotally our experience, that as you said, people who have been the victims of traumatic experience or we can use different terminology. There is increasing appreciation and understanding about what is called ACE. Adverse childhood experiences. And the likelihood of criminality in the future of people who have been the victim of ACE or have experienced ACEs and, you know. The more they have, the more likely it is that they are going to have a troubled future. So what do we do about all of that? Are we going to simply continue, and I think actually, the answer is yes. I don’t have really any confidence that this is going to change. But are we, must we simply continue to use the blunt instrument of the criminal justice system to address that moving forward? I think the answer is yes.

Jessa: And there are some states that have sort of, an in between. They have, like, a mental health court where you first get your treatment, and then you serve a sentence. But that’s a minority of states, and certainly, our state doesn’t have that. You know, but that’s the tension, right? Is if we acknowledge that some things are so horrible that they scar you, whether it’s recoverable or not is a separate question. But if we acknowledge that scars are real, why don’t those scars matter once you’ve transgressed against society?

Nick: Right.

Jessa: And should they? And maybe there’s an argument that they shouldn’t. Maybe it’s “Look, at the end of the day, whatever hand you’re dealt, you have to deal with it.”

Nick: It matters. It’s not like it’s ignored. It’s not like it’s not discussed. But it is generally discarded. Because the system is so binary, right? You’re either criminally responsible or you’re not. And when we get to the point you’re talking about, yes. The perspective is generally “I’m sorry that happened to you. Many people have adverse childhood experiences or have difficult childhoods..”

Jessa: “But they don’t all become criminals.”

Nick: “So that’s on you, so sorry.” But okay fine. But then again, we warehouse folks if that’s what we do with them if they’re sentenced to prison or we put them on probation and we create enormous obstacles to success. There is not an effort in any meaningful, significant way to do that. And so what is the benefit to that? I mean, this is a theme that runs throughout this show, but can we do better? And I think we can. One of the ways we do it is by being more honest. Really more empathetic. Opening up the system to really honestly taking that kind of stuff into account. And I think there are small baby step signs of that. For example, prosecutors are getting educated more and that’s who we need to be educated about ACEs. Now, I think they use it in their own particular way, but we have this binary system, and so, there are limited options currently. There are diversion courts, treatment courts of various sorts and those are fantastic. If those are signs of the possibility of change, that’s to be applauded. I’m in favor of all sorts of things like that. They just affect a relatively small number of people.

Jessa: Right. So let’s talk about our one other sponsor and then I wanna offer some additional thoughts on that. Our other sponsor for today is HelloFresh which is a meal kit delivery service that chops, plans, and delivers step-by-step recipes and pre-measured ingredients so you can cook, eat, and enjoy.

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Nick: The pesto was fantastic. It is, I love HelloFresh because if you are busy, and you and I certainly are, meal planning is a challenge. Finding time for meal planning is a challenge. Getting to the grocery store is a challenge. Finding time to cook is a challenge. And that means eating healthy becomes a challenge and these folks, HelloFresh, solve these problems for you. They make it so easy. The food is fantastic, and it shows up right at your door.


Jessa: So we have a stellar opportunity for you. You can get $80 off your first month of HelloFresh. Go to hellofresh.com/off80 and enter OFF80. It’s like receiving eight meals free or getting $20 off your first four boxes. That is hellofresh.com/off80 and enter OFF80. Alright. So. What we were talking about, though, right, is where, how do we incorporate people’s particular life experiences into culpability? And one of the reasons that I like our listener’s choice case is that we have to look, like. There’s not really a dispute as to who killed these kids. Spoiler alert. Andrea Yates killed her kids. The question is why. And how punishable is that? And does it matter that this is a particularly horrific crime versus a low level crime? Should her experiences and her mental health and etcetera influence us more or less, based on the severity of the offence she’s accused of?


Nick: Well, I think it’s inevitable that it does. And I think that’s particularly so in, as you referenced a minute ago. I think we have, crimes against children are viewed differently than other crimes, with good reason, of course. We need to, we must protect the most vulnerable among us. That’s not hard to understand. I think it is particularly hard for people to understand and particularly, when mothers hurt their own children, right? Crimes committed by mothers in particular. Fathers, as well, but even more so, mothers, so I, you know. As we talked about with the Debra Head episodes, these are particularly challenging things to open ourselves up to because of morays, because of traditional notions of gender roles. But it’s also tied into, you know, our notions of mental health, which has both a gendered component to it, but it’s also just got, you know, a societal and, you know, medical component to it. So. Where were you, what were your thoughts specifically vis-a-vis Andrea Yates?


Jessa: Well, I’m interested to see how we evaluate the claim of NGI in the context of motherhood, and if that evaluation would change, if it changed at all, if we were evaluating it in the context of fatherhood. And part of that is biological because the defence here is postpartum depression and there are chemical reasons for that. But part of it is sociological and how we define motherhood versus fatherhood and the roles that we expect mothers and fathers to play. And I am interested in talking more about how that influences decisions in the criminal justice system, particularly because, and again, spoiler alert, we get two different outcomes for Andrea Yates. And I’d like to talk about why that is. And so that’s what we’re setting up to do.


Nick: We are, indeed. We’ll be exploring exactly those things because as you indicated, what I’m excited to learn about, what I’m excited to explore is exactly that. How did we wind up with two totally different results in the two trials that this woman had? There are only two options. And it happened twice and we got, you know, yin and yang, and I’m very curious to explore how that went.


Jessa: So. In the meantime, I am Jessa.


Nick: I’m Nick.


Jessa: And this was Getting Off.