Abstract
Feminist legal scholars have recognized for quite some time that women who kill provide an important space for the deconstruction of representations of gender. Moreover, the ensuing socio-legal response often provides valuable insight into wider social and cultural tensions. Both Lizzie Seal and Emma Cunliffe contribute significantly to the existing literature in this area, providing valuable insight as to the hegemonic power of law in perpetuating and maintaining representations of gender.
Lizzie Seal’s Women, Murder and Femininity: Gender Representation of Women Who Kill deconstructs typologies that are commonly found in discourse surrounding women who kill. Seal focuses on women who have committed ‘unusual’ murders, murders that occur outside of the context of heterosexual relationships or motherhood, as she suggests that these are both more disruptive and unsympathetic, and therefore wanting in feminist engagement. Following a very comprehensive overview of the literature surrounding women who kill, this concise text is then divided into two parts. Throughout Part I five typologies are developed, namely: the masculine woman; the damaged personality; the respectable woman; the witch; and the muse or mastermind dichotomy. Firmly grounded in sociology, Seal appears mindful to not only discuss each typology in terms of its implication for the construction of appropriate femininity, but also considers the impact of heterosexual norms, familial ideology, socioeconomic status and age. Furthermore these tropes are not left as abstract theories but are fully developed and illustrated by applying them to high-profile cases from England and other jurisdictions. It is suggested that transgressive women such as Myra Hindley and Rose West pose a threat to social order, thus tropes may be used to ‘recuperate’ women back towards desirable notions of femininity, or, alternatively to distance them further from it.
In concluding Part I Seal emphasizes how the significance of these tropes goes far beyond women who kill, but rather they regulate gender by reinforcing the importance of normative gender performativity and the boundaries of ‘appropriate’ femininity (p.84). This assimilation of subjective experience into a culturally recognizable ‘stock story’ is necessary in order to quell the inevitable anxiety generated by transgression in times of social and cultural uncertainty, and thus restores and reinforces the boundaries of adequate gender performativity.
In Part II, these tropes are applied to a very specific context: 12 ‘unusual’ murders committed by women in England and Wales between 1957 and 1962. This time period is favoured due to it being such a transformative period, spanning the transition from post-war austerity to the flourishing of modernity. In justifying her methodology Seal places great emphasis upon the sociological and cultural significance of this time, particularly highlighting how changes in society shaped notions of idealised femininity and how this cultural regeneration was reflected in legislation, most notably the Homicide Act (1957). This latter part of the monograph also examines how discourse surrounding each of these 12 murders may be ascribed to one of her typologies, dependant on factors such as socio-economic status, age, sexuality and race.
Upon finishing this engaging text what strikes the reader is that almost all of these typologies invert the cause of these transgressions – most overtly through the ‘damaged personality’ discourse, but also the masculine woman kills because she is masculine (and possibly homosexual), the witch as a consequence of her inherent malignancy, the muse as a catalyst for male misdemeanour and finally the mastermind is pathologically abnormal on account of her dominance. The exception is the respectable woman whose elevated social and moral standing and adherence to heterosexual norms means that, even in spite of her transgression, she remains within the vicinity of appropriate femininity. It is noted, for example, that Edith Chubb escapes pathologization on account of her spinster victim being farther removed from appropriate gender performativity, thus mitigating (or even justifying) Edith’s actions. Moreover, Seal concludes that whilst such discourse is of enormous symbolic value in that it reflects contemporary cultural anxieties and provides a fertile space for the exploration of contested meanings, in practice it is ‘patchily’ applied due to disparity in social status. As a consequence, discourse surrounding factually similar cases may differ considerably, as shown in the discourse analysis surrounding that of Mary Bell and Doreen Baird. Both were highly transgressive as minors who murdered other children, and yet, whilst both are broadly discursively construed as damaged personalities, Bell is portrayed as ‘evil’ and as posing risk, whereas Baird is seen as tragic and to be pitied rather than feared.
Whilst containing some inevitably similar concepts, Emma Cunliffe’s Murder, Medicine and Motherhood examines how media, medicine and law are all complicit in regulating gender and perpetuating sacrificial maternal ideology. These themes are explored in the context of the trial and appeals of Kathleen Folbigg, an Australian woman who is currently imprisoned for the murder of her four children, despite a lack of medical evidence that any of the children had been murdered. Cunliffe seeks to explore why this conviction still stands despite similar convictions being quashed in both Australia and England. Cunliffe compiles a compelling case regarding the validity of Folbigg’s conviction and the way in which (hetero) normative notions of maternity influence the outcome of cases where infants have died for medically uncertain reasons. Indeed, a motif of both monographs is how competing discourses of femininity may be mobilized by both the prosecution and defence in an attempt to resonate with both judges and juries. She begins by setting R v Folbigg in its socio-legal context – suggesting that there has been a cultural shift to the effect that when children die for medically inexplicable reasons the burden of proof is effectively reversed; mothers are presumed to be guilty until they are exonerated. Cunliffe explores the reasons behind this change and attributes it to the symbiotic dynamic between the law, medicine and popular culture, and how this dynamic had been altered by changing attitudes towards child abuse, as well as the legal landscape which was particularly fraught following the confession of Waynetta Hoyt and the decision in the British case of R v Cannings ([2004] EWCA Crim 1).
‘Knowing’ and anxiety of the unknown is at the core of this beautifully written monograph; Cunliffe proceeds to discuss the scientific case against Folbigg, with particular regard to the fluidity between what is ‘known’ in medicine, law and society. The inability of pathologists to distinguish between murder and Sudden Infant Death Syndrome (SIDS) when very young children die unexpectedly provokes anxiety, and discourse provides a way of creating a reassuring illusion of certainty. Chapter 2 challenges the pathologization of mothers such as Kathleen, and the tendency to attribute a perceived ‘inability to cope’ squarely upon the inadequacies of the individual rather than as of a result of their circumstances, thus reiterating the privatization of care and the individualization of responsibility. Through the lens of this case it becomes apparent that inadequate performance of/adherence to maternal ideology may be used to condemn women such as Folbigg in two ways: firstly to resolve uncertainty where a pathologist struggles to determine a cause of death; and then secondly by the prosecution who portray non-normative mothering as akin to a confession. Notably, Folbigg did not testify in her trial or the subsequent appeals and so remains elusive and ‘unknowable’. As a consequence of this, Kathleen’s former husband Craig Folbigg’s testimony is privileged as ‘knowing’ Kathleen as a mother, despite his making contradictory statements regarding the events surrounding the deaths of their children. Resonating with the conclusion of Seal, this fascinating deconstruction of the multiple narratives surrounding this case emphasizes the dangers of decontextualizing facts; for example the prosecution in this case draws inferences of guilt from the fact that Kathleen discovered all four children in their beds failing to breathe. Cunliffe ,however, suggests that when analysed in context of the Folbigg’s relationship, rather being a demarcation of guilt this was simply inevitable, as Kathleen was the primary caregiver even at times when Craig was present. As a result ‘Kathleen Folbigg is rendered dangerous while the normalcy of private gendered caring is reinforced’ (p.109).
Cunliffe also examines the significance of Kathleen’s diaries being admissible evidence and particularly their literal interpretation. To this end she observes that this area of scholarship remains underdeveloped and consequently pleads for further feminist engagement – particularly with diaries of female defendants rather than diaries of female victims. Cunliffe convincingly argues that the prosecution’s interpretation of Kathleen’s expressions of guilt, responsibility and anger lacked both complexity and emotional context. As a consequence male experience is one again mapped onto female subjectivity; for example, expressions of anger are presumed to denote an inclination towards physical violence rather than an emotional outpouring of frustration. It is suggested that, rather than being a confession to murder, these diaries simply reflect the power of maternal ideology – what Kathleen is doing is individualizing responsibility for the death of her children and expressing her sense of guilt and remorse at failing to attain appropriate maternity. Moreover, in keeping with the work of Seal, Cunliffe argues that the desperation for Kathleen’s confession went beyond what was required in law but was desirable to satiate anxiety that flows from where a mother transgresses and thus threatens social order.
The role of the media is particularly crucial in that it disseminates law’s hegemonic discourse, which is then negotiated by the public. Cunliffe compares the media response in two major Australian newspapers and suggests that media portrayal has a very tangible impact in cases such as R v Folbigg, as jurors favour the narratives that reconcile with their pre-existing ideas. It is suggested that this may account for why Kathleen’s conviction is upheld, despite many similar cases being overturned; she remains indefinable and thus unsympathetic due to her aforementioned failure to testify and to conform to any of the acceptable tropes of mothers who murder their children, thus creating an ‘explanatory vacuum’ (p.155).
One of the key strengths of this book is that whilst it is clear from the outset that Cunliffe finds the conviction of Kathleen Folbigg highly problematic, at no point does this monograph descend into a tirade against the gendered nature of the Australian criminal justice system. Whilst certainly presenting a compelling argument, Cunliffe writes in very measured tones, taking care not to romanticize or victimize Folbigg, but rather highlighting the precarious nature of her conviction. She sensibly makes no glib statements as to Kathleen’s innocence but rather very honestly reflects that she is wrongfully convicted, as despite several appeals there remains too much uncertainty to draw firm conclusions – particularly conclusions that are ‘beyond reasonable doubt’, in order to justify the denial of liberty.
As with Seal, the aim of this book is not necessarily to resolve all of the aforementioned issues but rather to highlight, discuss and deconstruct them. It satisfyingly draws all of the themes together serving as a stark warning against the oversimplification of science in law, and also as a reminder that science is not an infallible source of truth. Both texts convincingly show how narratives of sacrificial motherhood are mobilized by both the defence and prosecution in order to create a narrative which resonates with jurors.
Perhaps the most important message that one gets from reading both of these texts is the significance of context; that it is imperative that actions or omissions are considered not only in their own context, but also with regard to the wider social, cultural and political backdrop.
Women, Murder and Femininity: Gender Representations of Women Who Kill and Murder, Medicine and Motherhood also demonstrate the power of discourse, to the extent that it can obscure and indeed eclipse material facts such that Aileen Wuornos was suffering from mental health problems, Wanda Jean Allen had diagnosed learning difficulties, and the lack of evidence that the Folbigg children had died from unnatural causes.
It is significant that whilst discourse is fluid to the extent that it is constantly renegotiated in line with society’s ever evolving norms and values, the hegemonic power of legal discourse means that tropes remain relatively constant. For example, Seal’s description of the idealized 1950s/60s ‘mum’ as ‘ … a woman past attractiveness, she was not glamorous or sexual and was therefore unthreatening’ (p.143) is reflected decades later in Folbigg, where the prosecution draw upon Kathleen’s vanity to undermine her ability to mother and construe her as a woman incapable of the sacrifice inherent in discourses of ‘good’ mothering: ‘when she could get away from her kids, such as to the gym, she was on top of the world and she was very eager … to resume her social life, her sporting life, her working life and her sexual life that she had when she didn’t have children’ (p.124).
Finally, both books also highlight a major ‘gap’ in this area, and that is subjectivity; it is noteworthy that, as Cunliffe concedes in the multi-vocal narratives surrounding Folbigg, the only voice you do not hear is that of Kathleen Folbigg herself. Similarly, Seal acknowledges that the narratives provided in case files are discursively shaped by both the criminal justice system and medical health professional, but never by the defendants themselves. Women are ‘recuperated’ or vilified by discourse, but are never at the heart of it. To this end both texts add depth to feminist debates surrounding truth and knowledge or, more poignantly whose truth or knowledge is privileged when women kill. As a consequence, both books will appeal to those of us who have a particular interest in the intersectionality between gender and the criminal law, but are also so compellingly written that they would be a welcome addition to any law library.