“Presumptive Testimony Only”: From Esther Davis to Patience Rousseau, Two Centuries of Criminalizing Pregnancy Loss

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In summer 1802, a Baltimore jury convicted Esther Davis of murdering her newborn child. The newspapers that carried the story assured readers that the evidence against her was “clear and concise,” so compelling that the jurors needed only minutes to deliberate before returning a guilty verdict. Davis, an unwed woman, was sentenced to death under Maryland law.^[1]

And then, within just twenty-four hours, something extraordinary happened: those same twelve jurors wrote to the governor of Maryland begging him to spare her life, citing Davis’s “good character” and the fragility of the evidence against her.^[2] Those jurors fulfilled what the law required of them, yet almost immediately tried to mitigate its consequences.

More than two centuries later, in 2018, a sheriff’s deputy in rural Humboldt County, Nevada, came across a Facebook post in which a woman named Patience Rousseau had written “I’m so sorry, Abel,” expressing grief over her stillbirth. That post prompted law enforcement to arrive at Rousseau’s home in tactical gear, dig up the remains of her baby from a cross she had planted in her yard, and arrest her for felony manslaughter. Rousseau, a single mother of two who was already struggling to afford diapers and milk, served more than two years in prison before a judge vacated her conviction in 2021.

The distance between Esther Davis and Patience Rousseau is 220 years, but the legal logic that ensnared them is nearly identical. Both women found themselves in a legal system willing to treat tragedy as evidence of criminality. In each case, conviction rested less on clear proof of wrongdoing than on the circumstances in which they were found and the assumptions those circumstances invited.

Nineteenth-century American infanticide laws descended from a 1624 English statute “to prevent the destroying and murdering of bastard children,” a law that turned unmarried motherhood into evidence of presumed criminality.^[3] Under the statute, unwed women who experienced stillbirths, miscarriages, or neonatal deaths could suddenly find themselves accused of murder, as any unmarried woman discovered with a dead infant was legally assumed guilty unless she could prove otherwise. The absence of witnesses during childbirth, combined with the limited medical knowledge of the period, meant that the absence of proof became proof of guilt. The law did not ask prosecutors to prove intent, cause of death, or even that a crime had occurred. It assumed guilt from the circumstance of being an unmarried woman alone with a dead child.

Early Americans understood this framework as a response to a social problem that was, at its core, a problem of poverty and illegitimacy. A bastard child represented a financial burden to the community, a stain on public morality, and evidence of sexual transgression. Yet far from resolving the community’s burden, the death of an illegitimate infant often intensified suspicion of the mother: that she had taken matters into her own hands to erase the evidence of her transgression and escape the financial and social costs the child would have imposed. The law treated unmarried mothers as uniquely suspect, not because they were more likely to commit violence, but because they were more likely to be poor, isolated, and without the protective structures of marriage and family that would have vouched for their respectability. As historian Cornelia Dayton has argued, fornication prosecutions in early America functioned as “warnings to low-status women that the gaze of justice was on them.”^[4]

Esther Davis entered that gaze the moment her infant’s body was pulled from a stream in Baltimore County. Her indictment thundered that she had acted “without the fear of God before her eyes, but being moved and seduced by the instigation of the devil.” Her plea of innocence appears in the same document, written in the careful legal language of the court: she was “in no wise guilty thereof.” It did not matter. Presumptive evidence was sufficient. Conviction followed.^[5]

What is striking about Davis’s case, and what makes it useful for thinking about the present, is that the law effectively instructed Davis’s jurors to assume her guilt. But nothing prevented them from immediately seeking mercy once the formal requirements were fulfilled. And ultimately, while the law dictated Davis’s guilt, her jurors found themselves unwilling to see a woman executed on evidence they themselves described as presumptive.^[6]

Patience Rousseau’s case proceeded through a different legal architecture but the same fundamental logic. She was charged under a Nevada statute from 1911, over a century old, and so broadly written that it criminalizes the use of any drug, instrument, or means undertaken with intent to terminate a pregnancy after the twenty-fourth week and that causes the death of the child. The charge of felony manslaughter under the statute depends on both proving intent and a resulting death. Legal experts have noted that almost any substance or strenuous activity, from marijuana to cinnamon supplements to heavy lifting, could theoretically be recast by a Nevada prosecutor as evidence of that intent if a stillbirth or fetal death occurred.

The prosecution’s theory rested not on physical proof that any specific act had caused the stillbirth, but rather on inference from Rousseau’s own words. Rousseau told the deputies she had been taking large quantities of cinnamon and was lifting heavy things while pregnant “to have a miscarriage.” The toxicologist who reviewed the case, however, found no causal link between any of Rousseau’s behaviors and the stillbirth. Even the medical examiner who performed the autopsy testified it was impossible to confirm the gestational age, cause of death, or whether the child had shown any signs of life after birth. Despite this lack of evidence, Rousseau was advised to enter a guilty plea by her attorney.^[7]

Laura Fitzsimmons, a lawyer who helped protect reproductive rights in a Nevada 1990 referendum, joined the effort to vacate Rousseau’s conviction in 2020. By 2021, Judge Charles McGee vacated Rousseau’s conviction. He wrote that Rousseau had been “portrayed as an antichrist” but that he believed she was “just a mother caught hopelessly in the web of poverty with a lack of any support system.”^[8] The state had reached for an antiquated law and used it to punish a woman not for what she had done, but for who she was and what she could not afford. Much as Esther Davis’s prosecution transformed reproductive uncertainty into evidence of guilt in 1802, Rousseau’s prosecution treated ambiguity itself as incriminating.

After her pardon was granted, Esther Davis disappears from the historical record, without any information on where she went or how she lived. That absence is not incidental. Early American record-keeping preserved Esther at the moment she became legally legible – when her body, her actions, and her alleged crime entered the jurisdiction of the court – but allowed her to disappear once she ceased to serve any judicial or moral purpose. Her life, whether on the margins of or at the center of another community, was perhaps not deemed worth recording.

Rousseau’s conviction came at the cost of more than two years of her life, the loss of her children’s stability, and the continued absence of her son’s remains, which were taken by the deputy who arrested her.

For both Davis and Rousseau, the state shaped the narrative of who they are and what they did. As CNN helps Rousseau reclaim her narrative, I aim to do the same with Davis. And what I take away from these stories is that infanticide prosecutions in America have proven remarkably durable in their legal logic over the past two hundred years. Women perceived as inadequate mothers are still expected to have something to answer for despite their innocence.

This is not merely a historical echo. Pregnancy Justice, a nonprofit that tracks pregnancy-related prosecutions, documented nearly 1,400 such cases between 2006 and the 2022 Dobbs decision, more than triple the prior period’s rate. It suggests states are increasingly willing to reach for criminal law – old statutes and new theories alike – to police pregnancy outcomes.

The question now is whether we are willing, as those Baltimore jurors were in 1802, to say that we have seen what the law demands, and we are not satisfied with it. This gap, in essence, is where women like Patience Rousseau have had to fight, and where we must continue to fight for them.

Notes

1. “IMPORTANT,” American Citizen, New York, July 26, 1802. ↑
2. Nathaniel Gibson, “Folder 9, Esther Davis, 1802,” Baltimore County Court, July 12, 1802, MSA S1061, Maryland State Archive. ↑
3. Josephine Billingham, ed., “The 1624 Infanticide Act,” in Infanticide in Tudor and Stuart England (Amsterdam University Press, 2019). ↑
4. Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789, HeinOnline Legal Classics Library (University of North Carolina Press, 1995). ↑
5. Gibson, “Folder 9, Esther Davis, 1802.” ↑
6. The Jurors on Esther Davis v State, “Folder 9, Esther Davis, 1802,” July 22, 1802, MSA S1061, Maryland State Archives. ↑
7. “Abortion Is Legal in Nevada, but a Stillbirth and Facebook Post Expressing Her Grief Landed Her in Prison | CNN.” ↑
8. “Abortion Is Legal in Nevada, but a Stillbirth and Facebook Post Expressing Her Grief Landed Her in Prison | CNN.” ↑

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Featured image caption: Five women prisoners convicted of infanticide at Woking Convict Invalid Prison. Process print after Paul Renouard, 1889. (Courtesy Wellcome Collection)