When you teach social theory to undergraduates, and do the whole “stages of history” thing, you talk to them about capitalism and modernity and then point out that earlier stages inhere. Look at a barbecue for friends and family, you say. You don’t charge people to attend. Nor do they bill you for helping out. People kind of work out what to do, and in some vestigial way an earlier form of human connection persists.
But what about feudalism, someone might ask. A few ceremonial offices aside, where’s that? (At that point you can point out the weirdness of rent, but that’s a mixed case.)
Instead, there are the courts.
Which memory is occasioned by the plight of Kathleen Folbigg? “Case” doesn’t really capture it. Nor do the news reports that convey her release, as if we had just rescued her from imprisonment by some insurgent group. But we were that group. And what is missing from the MSM commentary is: “My God, what have we done?”
There is a wider context to be considered in all this. But that done too early is to dodge the issue, which is simply to look it face on and say: “We have thrown this woman into hell. Condemned her to 20 years in the existential abyss of the incarceration system, named as the perpetrator of a crime that made solitary confinement and restricted circulation necessary for much of her sentence.”
Six hours after the announcement of her pardon and release, the story is already disappearing from the front pages, as more Ben Roberts-Smith material comes in. One wonders whether that is because the fate of Folbigg — who has had the whole middle of her life ripped out — is simply too awful to contemplate as something we have consented to. Or is it the opposite? That many regard it as they would a hideous traffic accident, as an act of fate they had nothing to do with?
One has to admit that was a dominant thought when news first broke in 2018 of evidence of a rare genetic mutation that could have played a role in the deaths of all four children. By that time, Folbigg had been in prison for 15 years. No, no, no, one’s thinking went. That’s one thing too much to deal with.
Folbigg’s story has come out of the past, a memory back to an earlier event. If we are all going to be honest, then it must be said that a lot of us were willing to believe a simple story at the time: that the deaths of four children were so wildly improbable as to be a reasonably safe one to treat as a story of horror and darkness.
There wasn’t really much division around that, though different social-cultural groups saw it in different ways. The mass version was one of inexplicable evil: Folbigg was a demon vomited up from hell. No further speculation was necessary. The case served as such cases do: a safe repository for the anger and frustration in individual lives.
Disordered culture
The knowledge class version saw it through the lens of the dominant psychological obsessions of the time. In a period before contemporary identity politics had recommenced, a final version of crucified depth psychology moved through the culture. “Personality disorder” had busted out of the psychiatrists’ manuals and into everyday discourse, people diagnosing their colleagues and acquaintances with one or another of a dozen variants.
Borderline personality disorder, a weird ghost category, was a dominant one, loosely suggesting that some people live in fantasy worlds and act out, hysterically and violently, when life gets real. It was a frame for violent outbursts, self-harm, self-defeat, retreat into fantasy and edgy quasi-psychosis. It was perfused through the culture by TV dramas and movies, rock stars who cut themselves, the “ana” pro-anorexic movement and more.
Add to that a renewal of multiple personality disorder — reframed as dissociative identity disorder — and serial killer mythos, and you have the context in which the Folbigg trial took place.
Folbigg’s birth father had murdered her birth mother; she had grown up in foster care. Folbigg had a somewhat mask-like rigid face, which news photographers made every effort to catch in full Medea/Medusa mode, chin jutting, mouth zip-lipped, and which damned her with the public. She also had diaries, dozens of them that she kept, like many people from friendless or storm-tossed childhoods, as semi-stream-of-consciousness repositories, a place to blat it all out.
The diaries were what did her in, in the public eye. Taken to the police by the estranged husband she had left — and whom police recorded saying, of Folbigg, “I’ll fuck your life, you fucked mine” — in the hands of the prosecution they were transformed from stores of wayward thoughts into statements of conscious intent or reflection on actions done.
It was 2003, the last period of the great network TV era, and its distinctive genre, the made-for-TV movie, which tended to feature the sort of crime of which Folbigg was accused. In Folbigg’s case, a reversal occurred. Real life was seen through the prism of the cheap aesthetic of these movies the networks still played endlessly, and which were written straight out of the DSM manual.
It is shaming to remember how little one questioned this at the time, as the trial popped up in the news — especially so for those of us who had some idea of how these cultural processes worked. I have the terrible feeling that, amid great divisions in Australia over refugees, 9/11, the organised hatred of Muslims by the right, and the Iraq War, some simple tale of individual mayhem fed by narcissism became a source of unity about the existence of evil.
Folbigg was even ill-served by feminism, which paid little heed to the structural misogyny on display, the relentless patriarchal construction of evil intent in Folbigg’s free-associating diaries. In some renderings, it seemed as if the case was being used as part of the “mommy wars”, Folbigg’s guilt helping to counter any notions of universal maternal instinct.
Forensic pathologies
But what makes this process truly medieval, a whirlwind of magical thinking, is the way in which these fly-by-night deep psychology categories were fused with a forensic science that had been lent a cultural authority it had not earned.
With no direct evidence of murder to present, the prosecution relied on joining the psychological and scientific ends of the spectrum to cover a missing middle. They relied on, and court and public believed in, “Meadow’s Law”, the proposition that three or more deaths in one family from SIDS (sudden infant death syndrome) is “murder until proven otherwise”.
Yet the work of the “law’s” proponent, distinguished UK pediatrician Roy Meadow, had, even in 2003, come under question for amateur errors in applying statistics and inductive reasoning — he had wrongly assessed the odds of a triple death as 730,000,000:1. The true figure is 8500:1. The big number was used in Folbigg’s trial.
In the year of Folbigg’s trial, several UK cases using Meadow’s evidence had been overturned. In 2005, the UK General Medical Council judged him guilty of “serious misconduct” (lessened on appeal to the High Court). By 2009, he had relinquished his licence. The 1999 case in which Meadow’s Law had been promulgated had been overturned on appeal in January 2003, before Folbigg’s case had even begun.
The pseudo-certainty of crucified psychological theories was thus buttressed by a naïve idea of scientific truth attached to abstract scientific processes, and the adversarial process of each side having their own scientific experts, resolutely asserting the truth of their interpretation. Each filled out the other’s missing component. What then seals this is the medieval hangover of our justice system: the implication that the process finds a truth beneath all appearances, no matter how chaotic, pompous, ad hoc and duplicitous the actual trial was.
Trial by ordeal
The capstone of all this is placed by the judge’s sentencing remarks. One stray not guilty vote in the jury room and someone walks free, their life uncommented on, uninterpreted. A guilty finding, by contrast, is the prompt for a judge to make a series of remarks that combine speculative interpretation, fashionable psychology, amateur theology, and whatever personal cultural orientations they may bring to their task, in telling the criminal and the court who that criminal “really” is, and the meaning of what they have done.
The purely legal judgment of guilty beyond reasonable doubt is then transmuted into how it was, and must have been.
Should that judgment be overturned on appeal — made vastly more difficult to access by the very judgment itself — that whole little novella is, bizarrely, suddenly and wholly rescinded. This has been going on for hundreds of years uninterrupted. In our era, the feudal power of the court buttresses the priestly power of the doctor’s white coat. Each profession has a political interest in supporting the asserted authority of the other, which is why people like Folbigg spend years rotting away as appeals —which should be applied rapidly, multiply and without prejudice — grind on for years, grinding their applicants down.
It took 15 years for Folbigg to get a proper appeal in 2019. Even though the new scientific evidence against her guilt was building every day, the appeal concluded the verdict was safe. The appeal judge concluded that the result was “even more certain”. Even more certain. What a nice Kafkaesque touch. A full-bench appeal confirmed this result in 2021. That year Folbigg was brutally bashed in prison.
The final medieval touch is by way of the most modern features: the imposition of endless, useless time as punishment. In a religious society, a public thrills to the separation of soul from body by quartering, gutting, etc. In a post-God era, it is the terror of decades-long sentences, in which all one can do with one’s single life on earth is contemplate the waste of it.
Thirty years, 35 years, 40 years… these sentences, the conditions they are served under, are as close to hell as we can manufacture from modern culture. They serve as catharsis, doing double duty in a society offering people less reward for ever-greater effort. However shitty things are, you ain’t hanging in the abyss of a 30-year sentence.
Out of the abyss
Folbigg’s pardon has occasioned calls for a separate criminal case review board within government, and a home-grown, well-funded innocence project on the outside.
Societies differ in the defects of their justice systems. In the UK, rigid class-caste status condemned thousands to false conviction; in the US, it is vicious racism, elected prosecutors, a residual puritan appetite for condemnation, and the occult of the death penalty.
Here? We can be slack and amateurish and complacent. Our racism is not dozens of innocent Black men on death row; it is thousands of Black people on perpetual lock-up and release for public order politics. Our botched trials are less cover-ups to protect the aura of the establishment than stuff-ups hidden so people can keep their super.
The most squalid truth of Folbigg’s 20 years in prison on an unsafe verdict is that it happened because a lot of people were a bit complacent at their job — media as well — and didn’t much care that they were, and no one cares still enough to create new offices to address it.
We need specific legal reform. But the Western world, and especially the Anglosphere, needs a de-medievalisation of both trial and punishment. The adversarial system needs to be further modified by European-style inquisitorial processes in which judges can call independent expert evidence. Verdicts need to be “de-metaphysicalised”, so that they are simply legal findings open to reflexive review and appeal, not damnations to purgatory.
Sentences of sequestration need to be rarer than they are now, prisons transformed from lotteries of death and violence, remand remade to reflect the presumption of innocence and cease to be a de facto sentencing. The class and social backgrounds of the pool of judges need to be broadened.
The hardest thing to master about all this is that Folbigg has been vastly wronged, simply on the basis of the initial unsafe conviction and without regard to what actually happened.
It seems very possible that she has been plunged into hell three times in one life, in a world where suffering can claim no absolute meaning, the last of those at our hands. Medieval? At best. At worst, we offered someone up to the fire, and it took them.
This is not an event to quickly pass by. It will be with us for some time yet. Whether or not we are willing to acknowledge it is there.
