Arlie Loughnan | Kathleen Folbigg's pardon puts society's presumptions in the spotlight

It has taken too long for Kathleen Folbigg to be recognised as a normal grieving mother. While law and science are in constant dialogue, this case was a prime example of the impact that rapidly developing science can have on criminal procedures, forcing revision of evidence that had previously reached the beyond reasonable doubt standard of proof.

The high-profile inquiry into Folbigg's convictions for three counts of murder and one count of manslaughter following the deaths of her four babies, and the spectacular unconditional pardon she received earlier this week, is the latest evidence of the extreme notoriety of women who are alleged to have killed their children. Women such as Folbigg, Kelli Lane, Akon Guode and Lindy Chamberlain, feature prominently in the media, social discourse, popular culture and elsewhere.

Our fascination with these rare cases seems to be based in a heady mix of abhorrence, disbelief, pity and condemnation. How can a mother kill her own child? How could she do it more than once? Was she victimised herself? Is there mental illness involved?

These questions seem to haunt legal processes, sometimes coming to dominate matters such as sentencing that follows criminal conviction.

No sentence brings the children back, and, as former Justice Lex Lasry stated in sentencing Guode, this case is an "all-encompassing tragedy", including for the defendant herself.

Social condemnation of women alleged to kill their children was overlaid onto the legal process that saw Folbigg convicted of the murder and manslaughter of her children. Like the other women aforementioned, Folbigg's actions in court, her demeanour and seeming lack of remorse, and all the evidence that was presented against her was evaluated according to stereotypical ideas about gender, femininity, and motherhood.

These ideas find most women like Folbigg severely wanting, with only those who present as ideal victims or entirely pitiable defendants escaping social condemnation.

The interpretation of Folbigg's diaries throughout her trial came under careful scrutiny in the inquiry.

Their initial interpretation was key to her guilt, damning proof Folbigg had killed her children, "proof" that was heavily relied upon to secure her conviction.

During the inquiry, however, another interpretation came to light, not admissions of guilt but rather the writings of a woman in the throes of deep instability. Former Chief Justice Bathurst found them to be the writings of "the writings of a grieving and possibly depressed mother, blaming herself for the death of each child".

He continued: "The evidence given by Ms Folbigg as to the circumstances of and motivation for writing the diaries was supported by the psychological and psychiatric evidence adduced at the inquiry, none of which was substantially challenged and which I accept."

The criminal law has specific provision for leniency in some cases where women do kill their own child. In jurisdictions such as NSW, the offence/defence of infanticide carves women out from the law of murder and manslaughter, and provides for lenient sentencing in such cases.

But this provision is based on problematic and outdated notions about women's biology and mental illness, and it is rarely used in Australia. It is unavailable where a woman denies responsibility for the death of the child, as Folbigg did, and it has taken 20 years for the legal system to recognise that, just as she always claimed, her children likely died of natural causes, and her homicide convictions were unsafe.

Infanticide requires expert medical evidence to support the woman's claim of limited responsibility for the killing. In effect, this medical evidence must testify to the defendant woman's disordered or abnormal state. In sharp contrast, in his findings, former Chief Justice Bathurst stated Folbigg's diaries revealed a "mother, feeling guilt at the unexplained deaths of her four children, and were typical cognitions of parents of children who have died from SIDS or other unexplained or accidental cause."

In the two decades since Folbigg was convicted, our understanding of SIDS has advanced significantly. The now discredited Meadow's Law was referred to in her trial, as it held that two or more sudden infant deaths in one family was murder. Now, we know that this was a misuse of statistics, and it has been completely discredited. It is possible for more than one sudden death to occur in one family, and scientists are still learning about the complex factors involved in infant death.

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Other advances in knowledge about the stresses new mothers face show that there is a large category of women's lethal conduct that does not amount to "madness" but may not be culpable behaviour either. So, many women are neither "mad" nor "bad", having neither a psychiatric illness nor showing criminal intent or recklessness.

Women in this category create significant challenges for prosecution agencies and courts, which must rely on psychological and other evidence to inform legal decision-making.

Although it was not science alone that have determined the outcome, Folbigg's case exposed the importance of scientific evidence to the process of her pardoning. This case is a prime example of when law and science are brought into interaction, with law is forced to revise earlier conclusions in light of new evidence that only came to light after all Folbigg's avenues for appeal had been exhausted.