Convenient Villains: Kathleen Folbigg’s Miscarriage of Justice

They – being the howling press, the screeching vox populi, and anybody else wishing to weigh in – were very clear about it. Kathleen Folbigg was guilty as hell and deserved her special place in it. For two decades, she spent her time behind bars in New South Wales, condemned by a jury for killing her four children, Caleb, Patrick, Sarah and Laura.

The prosecution’s approach in 2003 was glacial, instrumental and without nuance. Crudely, it was suggested that Folbigg’s diaries, given to police by her then husband, had revealed an admission of guilt for the murder of three of her children, infliction of grievous bodily harm on one child and the manslaughter of her first born. The methods: smothering or various other harmful applications.

Guilt can hardly ever count as a confession. Those blood hounds on the prosecution tend to ignore that fact. They went for the obvious point: the oddity of having four children dying in natural circumstances, and the words “guilt about them all haunts me”.

That Folbigg supposedly confessed became the stuff of literature and criminal folklore. It made its way into such works as Secret Mothers’ Business, authored by Joanne Fedler. “I was startled by her [Folbigg’s] confessions,” she reflects. “Partly because they so closely resembled those I had penned during some gruelling times when my children were little.” You dirty confessional failed child killer.

The spear in the case had already been fashioned by community sentiment, the hungry expectations of the tribe. The mother cannot ever be assumed to hate her children, or feel resentment towards them. The nurturing symbol is all powerful, and anything designed to challenge or malign it must be quashed. The rearing figure must love and be congratulated for doing so. The mother is destiny, security, and reassurance. The impregnator – Daddy, Father, carefree Fucker – is the one who either stays, moves on, or watches over his shoulder for the son who might depose him. Judgment on that score is less stern.

For all such cheap Freudian assumptions, the scientifically minded did not give up the ghost on Folbigg’s case. Those empirical crunching types came knocking with meaty fists. They insisted that something else was afoot. An entire picture had been omitted.

Clinical geneticist Carola Vinuesa of the Francis Crick Institute played the starring, brilliantly meddling role. In 2018, the case, prompted by the urgings of a former student, drew her interest. Only one month prior, she, along with her colleagues, had identified a genetic mutation behind infant deaths in a family in Macedonia. Vinuesa’s mind clicked: given that a third of deaths in infants and children more broadly might be put down to genetic predispositions, the Folbigg case loomed large. Far from being unnatural, the instance of having four infant deaths in a family could be put down to natural causes.

Patterns started emerging for this daring hypothesis. There were underlying illnesses in all four children, including respiratory infections. Vinuesa, her interest tickled and piqued, tasked her colleague Todor Arsov to pay a visit to the incarcerated Folbigg. A DNA sample was secured. On examination, the mutation in a gene, CALM2 G114R, stood out. That particular gene has a rather nasty resume of bodily mischief, encoding calmodulin, a protein with a misfunction responsible for infancy deaths and a number of disorders, including heart arrythmias.

This finding, while remarkable, was not deemed conclusive, at least initially. Vinuesa’s crew proceeded to test samples from the daughters. They identified that the mutation had been inherited. That did not answer the issue as to whether mutation was pathogenic or harmless. Certitude evaded the investigators.

In 2019, the inquiry into Folbigg’s conviction was unmoved. Undeterred, an incensed Vinuesa pursued the matter. More studies were made and gathered to make the case that the CALM2 mutation was pathogenic, culminating in a 2020 publication that concluded that “calmodulinopathy emerges as a reasonable explanation for a natural cause” of the infant deaths in the Folbigg case.

What tipped the scales in favour of a finding of pathogenic effects was the intervention of Peter Schwartz of the Italian Auxological Institute. An expert on the links between calmodulin mutations and cardiac effects, he noted a similar family to that of Folbigg: healthy mother afflicted with the calmodulin mutation; two children; two heart attacks, one fatal. The Australian Academy of Science was also more than willing to put its oar into the matter.

In April, the former New South Wales Chief Justice Tom Bathurst made a submission to a second inquiry concluding that Folbigg’s conviction was marred by reasonable doubt. Lawyers, this time representing the resentful, unforgiving father Craig Folbigg, kept up the show. To have four children in one family dying from natural causes was a “fundamental implausibility”.

NSW Attorney-General Michael Daley begged to differ, as did the governor of the state, who signed a full pardon. “It’s a day to celebrate that science has been heard and has made a difference,” stated Vinuesa. “And not just to this case, I think.”

The matter will interest those concerned by the effects of crushing legal systems, brought to bear upon the ritually demonised. To kill children is seen as atrocious, even by law systems that tolerate their incarceration, molestation and slow burn murder. But to have a woman supposedly do a Medea is simply unacceptable for the nauseatingly righteous. The tribe’s heads shake vigorously; justice must be seen to be done; however unjust it be.

On this occasion, justice was done, though delayed by two decades. It is unlikely to change the focus of the legal system. The contributors to Folbigg’s pardon were right in insisting that science, on this occasion, won out, limping through though devastatingly relevant. But for those facing the brute realities of a prosecution now, that is hardly reassuring. Societies crave convenient villains, and they will always be found.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: Read other articles by Binoy.