Nowhere is the operation of power relations within legal practice more obvious than in the Report of Tribunal of Inquiry into the ‘Kerry Babies Case’, written by Justice Kevin Lynch. Among other things, Lynch takes it upon himself to define the truth of the events of the night Hayes’s baby was born. He prefaces his highly speculative account of that night with this remarkable passage:
This Chapter contains fewer references than most of the other Chapters in this Report, to the transcripts of the evidence given at the hearings of the Tribunal of Inquiry. The reason is that most of the facts found in this Chapter are found by inference from other facts found in this Report, or by inference from evidence not directly supporting such facts, but indirectly doing so to the satisfaction of the Tribunal. (Report of the Tribunal)
The judge’s finding, generated from the internal logic of his own narrative and contrary to the evidence presented to the Tribunal, was that Joanne Hayes had killed a baby who, according to the autopsy, had not survived his birth—that is, he convicted Hayes of a murder that, based on forensic evidence, had never taken place. He also convicted her of beating and abusing her baby, again contrary to the evidence presented: the autopsy performed on the only baby to which she had given birth at that time showed no evidence of such abuse or of foul play.
Only the fictional Azores baby could fit Lynch’s story. Only vague ‘evidence not directly supporting [his version], but indirectly doing so to the satisfaction of the Tribunal’ can justify his finding. No such ‘indirect evidence’ was cited.
This startlingly transparent example of the precedence of ‘official’ truth over all other evidence is echoed everywhere in Lynch’s finding. The gardaí, he found, were guilty of ‘gilding the lily’ when testifying under oath in ‘the elevation of honest beliefs or suspicions into positive facts’. As McCafferty puts it,
This gilding of the relatively perfect garda lily happens, he wrote, because ‘familiarity breeds contempt.’ Justice Kevin Lynch does not express undue upset at the contempt which the garda showed for the oath and for him and for the law when they presented their bunch of lilies to him during the tribunal.
At the same time, he describes the Hayes family as ‘barefaced liars’—literally in a parenthetic aside within the paragraph in which he introduces the gilding of the relatively perfect garda lily. He nevertheless found the controversial and highly discredited confessions they made to the gardaí concerning the death of Joanne Hayes’s baby to be true ‘with additions as to stabbing and a journey [to Slea Head]’. He does not speculate as to how these substantial ‘additions’, including details—such as the fact that the baby had been stabbed, or the description of the bags found near the baby—that they could not have known without prompting from the gardaí. And he does not speculate as to how these ‘additions’ came to be included in statements made simultaneously and independently by four people in separate rooms of the Abbeydorney garda station.
Justice Lynch exercised the power of law to name the truth of things, to assign meaning to events, and in the process to disqualify alternative accounts—that is, those accounts that contradicted the official ‘truth’ that preceded the events themselves.
Irish Women’s Forum chairperson Audrey Dickson wrote to Michael Noonan, then minister for Justice, on 6 October 1985. Quoting the text of a unanimous motion by 600 women from around the country, she stated that ‘As a result of the Kerry babies’ tribunal and its report, this forum has no confidence that women will receive justice from the Irish legal system.’ Thirty-four years later, that lack of confidence remains justifiable.
The two official narratives—the garda report and the report of the tribunal—and the shared assumptions they brought to bear on the case were not the only attempts to shape the facts to fit an already established ‘truth’. Apparently objective media commentators also came to the story with their own assumptions firmly in place. Barry O’Halloran, a reporter with RTE and author of one of the books written on the case, appears to see Joanne Hayes as a victim not only of her own sexuality and of societal attitudes to that sexuality, but of an inherent biological instability. O’Halloran presents himself as an objective observer bringing his journalistic standards and methodology to the case. And yet his book includes a chapter, ‘What Really Happened,’ in which he puts forward another highly speculative account of events on the night that Joanne Hayes gave birth to her baby. Like Justice Lynch he suggests, without any evidence other than the internal logic of his own narrative, that Joanne Hayes killed her baby:
After the trauma of the birth itself, the pressure which had built up over the months of silence erupted. Both Joanne and her family were in an intensely emotional and excited state. By then Joanne Hayes was verging on puerperal insanity.
It’s difficult to imagine how he arrived at such a diagnosis and, like Justice Lynch, he doesn’t offer any evidence.
Once again, a commentator is speculating about a murder that had not happened and for which nobody was charged, though Joanne Hayes was being convicted. In his telling of the story, although largely in agreement with Lynch’s findings—’The Report [of the Tribunal] broadly agrees with my own conclusions of what took place’—O’Halloran shows an apparently sincere sympathy for Hayes. He represents her as a symbol of woman as victim both of her own biology and the emotional instability inherent to it, and of societal attitudes toward female sexuality that made the birth of an ‘illegitimate’ baby a shameful tragedy. Within the logic of this narrative, he attributes blame but not responsibility for the baby’s death to Joanne Hayes.
Generally speaking, I am in sympathy with Nell McCafferty’s book, A Woman to Blame. McCafferty, another journalist, also brings her own set of cultural and moral assumptions to bear on the case. On the back cover of her book McCafferty is described as a ‘passionate witness,’ and such she proves to be in her telling of the story. Not making any attempt to hide her own sympathies, she asserts that during the Tribunal proceedings ‘the treatment of Joanne Hayes, who stood accused of no crime, was a paradigm for Irish male attitudes to women.’
Long before she met these men [the garda interrogation team] Joanne Hayes’ life had been controlled, as the lives of all Irish women had been controlled, almost exclusively by men. The preserves of Church and State were predominantly male. The country’s constitution spelt out the hope that women would always know their place: ‘The State shall endeavour to ensure that no woman shall be obliged by economic necessity to engage in labour outside the home’.
Hayes once again disappears behind another discursive construction as she becomes all women; McCafferty locates her understanding of the case within a larger context of male control of women, their sexuality, and their fertility.
In that context, she correctly brings attention to the fact that, of the many garda officers involved in the case, only one, Ursula O’Regan, was a woman; her function was mainly to escort Hayes as she was moved from one location to another. The tribunal itself was made up entirely of men. McCafferty points out that none of these fifteen legal men had ever witnessed childbirth, and yet, they would indulge in lengthy speculations about childbirth and its effects, physical and emotional. ‘Is it possible,’ McCafferty quotes Justice Lynch as asking, ‘for a woman to give birth standing up?’ as Joanne Hayes had claimed to have done. They would speculate on the mental, moral, and physical state of the mother before, during, and after birth. Joanne Hayes, according to McCafferty, ‘became the real live model of the biological trial and error experiments conducted by five all-male teams of lawyers’.
In the various versions of the events, Joanne Hayes is cast in an assortment of roles, either as victim or villain, as disempowered female or deranged infanticide. During the course of the garda investigation, the tribunal, and the many media investigations, an all-but unbridgeable gap emerged between Joanne Hayes, the woman at the centre of the Kerry babies case, and Joanne Hayes the woman who was born and spent her life on the farm at Abbeydorney and gave birth to two children, one of whom died at birth. What came out of the garda investigation and the subsequent Tribunal was not the Truth, or a truth, or even a plausible arrangement of facts. Indeed the ‘facts’ quickly became almost irrelevant beneath the weight of myth that was quickly loaded onto the case.
One way of understanding the mythology that was imposed on the events is to see a system intent on upholding a concept of ‘good’ Irish womanhood by demonizing Hayes as an infanticidal aberration. I have tried to suggest that the demon mother was always already at the heart of many of the assumptions that were brought to the case. A woman who has been impelled by law not to harm the foetus in her womb, cannot be trusted not to harm her baby after birth because of the inherent instability seen as already encoded within her biology. The wonder is, apparently, that so many babies do survive both gestation and birth.
This ‘truth’ was already in place when the body of the dead baby was found on the Cahirsiveen beach. We, as a culture, already understood it. We had a name for it—infanticide; we had an explanation for it—the inherent moral weakness and emotional instability of woman. As a culture, we chose to ignore the single most shocking piece of evidence to emerge from the tribunal: the dead babies in their secret burial places that Creedon claimed were an all-too-familiar element of Irish life—again due to the deranged women who gave birth to them. This shifting of responsibility away from the social and cultural and onto the individual, the personal—the ‘unstable’ Joanne Hayes, for instance—absolves us as a society. The event is enclosed within its mythical contours and loses its power to disrupt or disconcert.
The places at which the event overflows its agreed terms, however, represent the points of disruption, the spaces into which alternative perspectives can enter. Cultural discourses are not seamless structures, but rather are stitched together from a variety of elements; by attempting to unpack the codes in the ‘evidence of a mental kind’ that built the case against Joanne Hayes, my aim has been to exploit the points of rupture within the versions offered to the DPP and to the Tribunal, and subsequently, to us.
I am aware that in the process I have constructed one more narrative among the many that already existed around the ‘Kerry babies’ case and I have no illusions that this could in any way be definitive. On the contrary, I would hope to have established that no such definitive narrative is possible because of the murkiness created by the actions of the gardaí, the blatantly prejudicial account produced by Justice Lynch, and the differential understanding of the media commentators. I am also aware of the assumptions I have imported into this narrative and the ways in which those assumptions have shaped what I have found. Like the gardaí, I have not attempted to find out who killed the Cahirsiveen baby, only to account for the role that ‘woman’ is allotted in that killing and to open up that role for examination and potentially for change.
According to recently released official Cabinet papers, then Garda Commissioner Lawrence Wren believed gardaí were ‘grossly negligent’ in conducting the investigation into the murder of the Cahersiveen baby. Why did Wren not make his position clear at the time? Why did it only come to our attention three decades years later with the statutory release of Cabinet papers?
In January this year, then Acting Garda Commissioner Dónall Ó Cualáin offered a full verbal and written apology to Joanne Hayes, almost thirty-four years after the fact. In a statement, Superintendent Flor Murphy said it was ‘a matter of significant regret’ for An Garda Síochána that it had taken such a long time for it to be confirmed that Ms Hayes is not the mother of baby John but offered no explanation for the delay. He went on to apologise to Ms Hayes for the ‘awful stress and pain she has been put through as a result of the original investigation into this matter, which fell well short of the required standards.’
The Taoiseach, Leo Varadkar, also apologised on behalf of the State: ‘I absolutely want to reiterate the apology to Joanne Hayes made by the gardaí yesterday and do so on behalf of the State as well.’ Ms Hayes was, he went on to say, ‘badly treated by our State and by our society in a way that so many other women have been in the past and that needs to change.’
Mr Varadkar said learning about the Kerry Babies case had been ‘eye-opening’ for him. He went on: ‘I can’t offer compensation here now but it’s something that I think we can discuss with her representatives in the period ahead.’
The Minister for Justice, Charlie Flanagan, also offered an apology.
The promised re-investigation of the death of Baby John is underway. There has been no suggestion of a re-investigation of garda behaviour.