In her first 1994 Reith Lecture on the monster in mythology, Marina Warner entertained the idea of the monstrous mother. Such a figure is, in myth, uncontrollable, blameworthy, dangerous. ‘Ungoverned energy in the female always raises the issue of motherhood’. No figure characterises the aberration of such maternal energy more than the child-killing Medea, made famous by Euripides. ‘Among bad mothers of fantasy she is the worst: as such she speaks to our times, when the bad mother is always present as an issue, as a threat, as an excuse, as a pleasurable self-justification and as a political argument.’
In 2003, the myth of ungoverned female energy found itself demonstrated in the case of Kathleen Folbigg. Here was, in the popular imagination, a modern Medea figure, accused of having betrayed her maternal duties. For two decades, she spent time in a New South Wales prison, found guilty by a jury for killing her four children, Caleb, Patrick, Sarah and Laura. The prosecution had alleged that she had smothered the children, murdering three, and inflicting manslaughter on the fourth.
What was striking in the case was the use of science, ever problematic in the annals of law. The field can serve to acquit and to convict. But its pretensions to cool, clear veracity, as that of the legal process, is not necessarily absolute. The prosecution, taking one side of the argument, insisted that the fourth deaths could not have been natural. To find such instances in the same family was highly improbable. Much use was made of Folbigg’s diaries, surrendered by her husband to police. Her admissions of trauma, shock and grief were taken as confessions of guilt.
The appeals train commenced. A 2003 appeal made to a single judge of the NSW Court of Criminal Appeal to have the charges tried separately failed, enabling the prosecution to use tendency and coincidence evidence. Appeals to overturn her convictions were made in 2005 and 2007, both failing. The NSW Court of Criminal Appeal remained unmoved by previous case law in which three or more infants in one family had died suddenly.
In 2011, Emma Cunliffe’s Murder, Medicine and Motherhood openly challenged the verdict. Her masterful study noted the uncertainty in medical research at the time on unexplained infant deaths in a single family. Importantly, she noted the assumptions made by trial experts that theories showing that such deaths could not be natural were stated as fact. Doing so could have the effect of misleading the jury in criminal trials, suggesting a bias on perceptions of motherhood on their part.
The science community began weighing in. The Australian Academy of Science thought the matter significant enough to warrant intervention. Clinical geneticist Carola Vinuesa, currently of the Francis Crick Institute, was also drawn to the case in 2018. That same year, she and her colleagues had identified a genetic mutation behind infant deaths in a family in Macedonia. Given that a third of deaths in infants and children more broadly might be put down to genetic predispositions, in other words, natural causes, the Folbigg case stood a good chance of beeing reappraised.
'What was odd in this case was the refusal by the prosecution, its witnesses, and the courts, for whatever reason, to entertain the fact that extant medical literature on infant deaths in one family might cast reasonable doubt on a verdict.'
As things transpired, all four children had underlying illnesses, including respiratory infections. Todor Arsov, who was also working with Veinuesa, visited the incarcerated Folbigg to secure a DNA sample. On examination, the mutation in a gene, CALM2 G114R, stood out. The gene in question encodes a protein known as calmodulin, one responsible for various disorders, including heart arrythmias, and even infant deaths. Vinuesa’s team then tested samples from the daughters, making the telling discovery that the mutation had been inherited.
These discoveries were not conclusive, as they did not answer the question as to whether the mutation was benign or pathogenic. In 2019, the inquiry into Folbigg’s conviction led by former NSW district court chief judge Reginald Blanch found that ‘her guilt of these offences even more certain’. The genetic mutation had done nothing to raise reasonable doubt, a curious finding given the existence of other case law which had reached the opposite conclusion. On challenge, the NSW Court of Appeal agreed. ‘This was not a case in which the judicial officer’s conclusion was at odds with the scientific evidence.’
Vinuesa, with a terrier-like determination, continued to build the edifice towards a finding that the CALM2 mutation was pathogenic. Such work culminated in a 2020 paper finding that ‘calmodulinopathy emerges as a reasonable explanation for a natural cause’ of infant deaths in Folbigg’s case. Her work had sufficient force to convince Michael Toft Overgaard, an expert on cardiac conditions resulting from CALM genes, and Peter Schwartz of the Italian Auxological Institute, that the Folbigg case had to be reopened.
The latter’s work, which focuses on the links between calmodulin mutations and cardiac effects, examined a family fitting Folbigg’s profile: a healthy mother possessing the calmodulin mutation; two children; two heart attacks, one fatal.
In April, a second judicial inquiry led by former New South Wales Chief Justice Tom Bathurst, found reasonable doubt on all four offences. In his words, ‘the coincidence and tendency evidence which was central to the (2003) Crown case falls away’.
Lawyers representing the father, Craig Folbigg, recapitulated the old arguments: To have four children in one family dying from natural causes was a ‘fundamental implausibility’. But Bathurst could not be convinced of Folbigg’s worn Medea image: he was ‘unable to accept […] the proposition that Ms Folbigg was anything but a caring mother for her children.’ NSW Attorney-General Michael Daley was happy to accept the findings of the second inquiry. The Governor of the state followed suit, granting a full pardon.
While Folbigg’s pardon is testament to the field of science in the service of law, care should be taken in attributing to it all conclusive powers. What was odd in this case was the refusal by the prosecution, its witnesses, and the courts, for whatever reason, to entertain the fact that extant medical literature on infant deaths in one family might cast reasonable doubt on a verdict.
In her Reith lecture, Warner reminds us of the counter-mythology, those valiant efforts to revise the legend of the murderous Medea. One such figure was the poet and historian Christine de Pizan. In 1405, the young widow, needing to support her family through her writings, compiled a formidable rejoinder to a number of stereotypes about women. In the allegorical masterpiece Book of the City of Ladies, she had a special place for Medea. ‘Medea was very beautiful, with a noble and upright heart and a pleasant face.’ At least in Folbigg’s case, the Pizan treatment can be said to have won out.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University.
Main image: A screen grab taken from supplied video obtained on Tuesday, June 6, 2023, of Kathleen Folbigg addressing media, supporters and friends. (PR Handout)