Reviewed by Renee Ann Cramer, Program in Law, Politics, and Society at Drake University. Email: renee.cramer [at] drake.edu
If Professor Emma Cunliffe (Faculty of Law, University of British Columbia) had been Kathleen Folbigg’s lawyer on appeal, Folbigg likely would not be serving thirty years in prison in New South Whales, for the murder of her four children. Cunliffe is convinced that Folbigg was wrongly convicted; and, by the end of Murder, Medicine, and Motherhood so, I would guess, would most readers be.
However, “wrongly convicted,” as Cunliffe readily acknowledges, is not the same as “not guilty,” or “innocent.” And, perhaps Cunliffe should have made a bit more of that distinction. I argue this not because the distinction has any direct bearing on the outcome of the Folbigg case, but because it is where many astute readers will end up, as they finish this incredibly well executed piece of research: wishing Cunliffe would turn her attention to the deconstruction of that interesting binary in criminal law.
As it stands, Cunliffe’s book is an exhaustive examination of the Folbigg trial, and, more importantly, of the medical, evidentiary, and journalistic context within which that trial played out. Never sensationalistic, Cunliffe treats the tragedy of the unexplained deaths of four children with sensitivity; she also treats with sensitivity the difficult subject matter of “A Mother Who [we presume] Would Kill Her Children” (Chapter 6).
In 2003, Kathleen Folbigg was sentenced to forty years in prison, after being convicted of “three counts of murder, one of manslaughter and one of inflicting grievous bodily harm” in the previously unexplained deaths of her four infant children. The children’s ages at the time of their deaths ranged from 19 days to 19 months, and occurred in succession over a period of ten years (p.14). Cunliffe argues that the conviction of Kathleen Folbigg was wrongly based on contested medical evidence, and commonplace supposition, about Sudden Infant Death Syndrome (SIDS). She also argues against the decontextualized use of Folbigg’s journals at trial, and maintains that media coverage of the trial rendered Folbigg monstrous and evil in the public imagination. The three arguments made in the book could easily, each, fill one manuscript, but Cunliffe does a nice job of explaining how they hang together – and hinge, ultimately, on societal expectations of what a “good” mother does and looks like.
Readers interested in the way that motherhood, class, and moral culpability intersect should read this book, as should those interested in the way that medical-scientific knowledge about SIDS has [*152] changed over the past fifty years, and how those changes have impacted criminal law. Feminists of all variations should read this book, for the challenges it makes to understandings of motherhood, morality and monstrosity. And, anyone interested in unpacking the role of narrative – both journalistic and diary – in criminal processes should pick it up.
There is so much nuance and complexity in this book, that a review isn’t sufficient to cover it. A thorough, yet sufficiently brief, synopsis, is not possible. This review will distill the three main points that Cunliffe makes, with heavy emphasis on the one most germane to what she will call a wrongful conviction, the argument about SIDS.
In this first section, Cunliffe turns to an extensive examination of the medical profession’s understanding of SIDS events. She traces the development of the concept of maternal culpability in previously unexplained deaths, arguing that by the late 1990s, mothers were suspected whenever an unexplained death occurred – which was a substantially different stance than was taken in the 1950s, 60s, 70s, and 80s. She traces, with great facility, the changing medical understandings of SIDS during this period, as it dovetailed with a “generalized trend toward criminalization” in the 1990s (p.37).
The most important part of Cunliffe’s legal argument comes here: the court should not, as a matter of doctrine, have considered the four deaths as cumulative, nor should it have allowed prosecution to proceed “when reputable experts disagree about whether a natural cause of death can reasonably be excluded” (the Cannings principle) (p.71). Expert medical testimony could not rule out natural, though unexplained, causes of death for each child individually; thus, each death should have been treated as natural though unexplained. Judges in five previous cases on appeal had made that decision. As Cunliffe writes, “th[ose] judgments are unanimous that when medical knowledge is unable to provide certain answers about cause of death, the benefit of doubt must go to the accused unless other evidence compensates for that uncertainty” (p.11). In Folbigg’s case no medical examiner had raised any alarms (until the final death, of Laura Folbigg) about the potential causes of death for each child, and “in no instance did the investigator identify physical signs of foul play” (p.14). Indeed, evidence was presented at trial that in the cases of Sarah and Laura Folbigg, both parents (Kathleen and Craig) tried to resuscitate the girls with CPR. And, though the Crown alleged that Folbigg had smothered all four of her children, there was, as Cunliffe writes, “almost no physical evidence of smothering except a suggestion (resisted by the autopsying pathologist) that two unphotographed ‘pinpoint abrasions’ on Sarah’s upper lip could have occurred when the child’s mouth and nose were covered” (p.26).
Cunliffe is clear; it might indeed seem like common sense that four infants in one family do not simply die. Her point is even simpler, yet it holds incredibly complex consequences: the rules of medical testimony governing this trial do not allow the experts to deploy “common sense,” they must use only their “medical opinion” and not “lay reasoning” (p.11) – yet at trial, the medical experts for the government [*153] routinely smudged the boundary between their medical knowledge and their common sense.
Second, Cunliffe’s examination turns to the use of Folbigg’s journals at trial. The journals, in conjunction with media coverage, Cunliffe argued, allowed jurors and the public to see Folbigg as “a mother who would kill her children…” for such selfish and immature reasons as a desire to “go to the gym” or “go dancing” (p.96). This certain type of mother, Cunliffe powerfully notes, is a complex and contradictory figure. She is someone with “few coping skills and relatively little support, but also one who was sufficiently organized and intelligent to murder her children and almost get away with it” (p.96).
Taken out of context, Folbigg’s journals appear to be confessions; Cunliffe asserts that taken in proper context, and using feminist tools of analysis, they also appear to be the normal maternal feelings of guilt and regret attendant four unexplained deaths (p.135). The journals were read aloud at trial, by the prosecution and police witnesses, in ways that elided official response with Folbigg’s narration; taken away from the author, they seemed damning evidence of depraved indifference and murderous intent.
Finally, Cunliffe examines the journalistic coverage of Folbigg’s trial. Cunliffe focuses on two areas, in particular: the sympathetic treatment of Craig Folbigg (the father of the four children, and Kathleen’s estranged husband), and the portrayal of Kathleen Folbigg as monstrous in her disregard for her children’s needs. The press, and the witnesses at trial, focused on Kathleen’s deep desire to return to her pre-pregnancy figure, her need to dance and go to the gym, and the fact that she had female friends. They emphasized her short temper, the stress she felt at having a sick child (one of the children was diagnosed with epilepsy), and the feelings of being overwhelmed that she expressed, via her journals, by housework and childcare. These traits were set against an implicit norm of a doting, caring, “proper, self-sacrificial” mother – a normative conception that Kathleen clearly did not fit (p.123). As such, it was easier for the press (and the jury) to construct her as resentful enough to kill her children.
Even if we accept that Folbigg was an angry, impatient, resentful mother, Cunliffe asks:
Is it true that an impatient or angry mother who is not physically abusive is more likely to kill a child by smothering that child without a trace of physical harm? There is nothing in the medical literature to suggest that this is so … Rather, using even the broadest and most contested set of published works, the behavioural risk factors for filicide include past assaultive behaviour; fabricated illness in a child; a diagnosed maternal history of
fabricating her own illness; a diagnosed personality disorder or mental illness in the allegedly filicidal parent; parental incompetence; financial difficulties or a crisis at the time of the child’s death; and a poor bond
between mother and child ….
… none of the behavioural risk factors was present in Folbigg” (pp.131-132). [*154]
Rather, Kathleen Folbigg was convicted by “common sense.” When four children die in one home, in a period of ten years, something, common sense tells us, must be afoot and foul. It is the basis of the conviction in common sense that, Cunliffe explains, makes it a “wrongful” conviction.
Cunliffe does a very nice job of discussing the relationship between common sense knowledge and medical-scientific knowledge, and arguing against “common sense” as a determining factor in Folbigg’s conviction. Her discussion of this relationship is a useful and interesting one, and her conclusions should be grappled with. As Cunliffe notes, there is contingency and ambiguity here, “the boundaries between scientific expertise, legal procedure and lay knowledge do not remain fixed” (p.76). As I noted at the outset of this review, I would like to have seen Cunliffe parse the distinctions made, in law and common sense, between conviction and guilt, between “not guilty” and “innocent.” I would have appreciated her discussion of these distinctions not because I think she has any moral necessity to do so, but because the analysis she brings to the Folbigg case – and its renderings of motherhood, of medical evidence, and of media coverage – is so astute and powerful, that I imagine her analysis of the more basic, uncontested, yet deeply contextual, roots of criminal law would be so, as well.
Copyright 2013 by the Author, Renee Cramer.