Lawyer explains how misogyny saw Kathleen Folbigg wrongly imprisoned for two decades over deaths of her four babies

Once branded Australia's worst female serial killer, Kathleen Folbigg has walked free following 20 years behind bars. 

A lawyer, who has long believed Folbigg was wrongfully imprisoned, said misogynistic stereotypes of the early 2000s led to the miscarriage of justice.

The New South Wales woman was convicted in 2003 of killing her four children, Caleb, Patrick, Sarah and Laura, who all died aged between 19 days and 18 months. 

On Monday, following a judicial inquiry sparked after new scientific evidence emerged, Attorney-General Michael Daley pardoned Folbigg due to reasonable doubt as to her guilt over the deaths of her children. She was released from prison immediately.

While she is free, her convictions have not been quashed as that can only be done through the Court of Criminal Appeal. "

The news of her release will be welcomed by many supporters who have long thought Folbigg was wrongfully convicted.

Dr Emma Cunliffe, who is a professor at the Allard School of Law, University of British Columbia, wrote the 2011 book Murder, Medicine and Motherhood, where she argued Folbigg was wrongfully imprisoned.

Speaking to AM, Dr Cunlliffe described how 2003 was a time when doctors believed that multiple unexplained infant deaths in a family were inherently suspicious.

"The dogma was it should be considered murder unless proven otherwise," she said.

This led to multiple shortcomings in the case.

Kathleen Folbigg has walked free following 20 years behind bars.
Kathleen Folbigg has walked free following 20 years behind bars. Photo credit: Getty Images

Key scientific and medical evidence presented at the inquiry and expert opinions on Folbigg's diary was enough to convince Bathurst there was reasonable doubt in her case.

Genetic testing revealed her two daughters carried an extremely rare genetic variant known as CALM2-G114R, a heart signalling disorder that can silently kill.

Folbigg always maintained that her children died of natural causes.

Evidence was also uncovered that her sons possessed a different genetic mutation, linked to sudden-onset epilepsy in mice and it was known Patrick had suffered from epileptic seizures. 

During the most recent inquiry, psychologists and psychiatrists gave their expertise on Folbigg's diaries where she would write about her feelings of self-blame and guilt over the babies' deaths. This was previously taken as an admission of a sense of responsibility for her children's deaths.

"What the most recent commission heard was that the diary entries were really, very consistent with very normal, very expected expressions of maternal bereavement and guilt," Dr Cunliffe said. 

"Feelings of self-blame are very common for mothers who lose infants in these circumstances."

During Folbigg's trial in 2003, the prosecution suggested her occasional decision to leave a child with family while she went to an exercise class or out for dinner with her now ex-husband was her failing to cope with motherhood. 

"These are misogynistic stereotypes. They have no rational relationship with murder but at Kathleen's trial in 2003 they were pointed to as markers of suspicion," Dr Cunliffe said.

Dr Emma Cunliffe wrote the 2011 book Murder, Medicine and Motherhood, where she argued Folbigg was wrongfully imprisoned.
Dr Emma Cunliffe wrote the 2011 book Murder, Medicine and Motherhood, where she argued Folbigg was wrongfully imprisoned. Photo credit: AM

Prosecutors also claimed during the trial it was too much of a coincidence four children in her care all died from natural causes.

"The word 'coincidence' is in some ways a dangerous word in the criminal law," Dr Cunliffe said.

"I think the focus of the reasoning has been… what are the chances of losing four children in one family but really that puts it the wrong way around."

She said the question that should have been asked at trial was that given four infants died without any signs of physical harm:  "What are the chances that they may have died of something natural that we don't yet know about as of 2003, versus the possibility that she's killed them and gotten away with it without any signs at all for all these years - and that question was never squarely asked."

Folbigg's next step is to have her convictions formally cleared in the Court of Criminal Appeal.