To mark International Women’s Day, this introduction from a new book by NELL MCCAFFERTY plots how the ‘medieval’ treatment of Joanne Hayes in the Kerry Babies case acted as a catalyst for change
IT WAS MEDIEVAL. A group of men put a young unmarried woman on the stand and questioned her about the exact circumstances of the conception and birth and death of her newborn baby. She came from a tiny village in the west of Ireland. They had come down from the capital, Dublin. The pope had just come and gone from Ireland. The men wondered aloud if the woman had in fact given birth to two newborn babies who had been found dead in Kerry, though blood tests showed that she could only have been mother to one. The men put forward and examined for six months a theory of superfecundation, which postulates that a woman can conceive of twins by two men if she has sexual intercourse with both in the space of 24 hours. “There were times when we all thought she had twins,” said presiding Justice Kevin Lynch.
The legal men and a succession of male doctors, psychiatrists and police officers – 43 in all – spent six months probing the young woman’s mind and body. A doctor gave the dimensions of her vagina during a previous birth. Ordnance survey maps were used to pinpoint the exact locations of the places where she had sexual congress with her married lover. The question was asked, “Did she love this man or what was he and other men prepared to do with her?” It was medieval, but it happened in 1985. The probing of the woman’s sexual history brought the men gathered around her to such a fever pitch that she collapsed. She was excused, temporarily, and could be heard retching and sobbing in the corridor.
The judge ordered that she be sedated and then brought back to testify. She gave evidence in a daze, her head bobbing off the microphone. The judge asked that her friends keep a suicide watch on her that night.
The country was sickened, and showed support for Joanne Hayes by sending her flowers and Mass cards. When the inquisition finally ended, the country rapidly changed, by constitutional vote, and a New Ireland came into being. It was forged on the anvil of Joanne Hayes’s suffering. Never again, the changes showed, would one woman be held to blame for the ills that had beset Ireland. Or, at least, never again would an exclusively male panel of men sit in judgment of one woman.
TO UNDERSTAND WHAT was done to Joanne Hayes and why, and how much has changed as a result of that, it is necessary to set a context. When John Paul II came to Ireland in 1979, he preached against contraception, divorce and women’s work outside the home. There had been stirrings of modernity on the island, thanks to the Irishwomen’s Liberation Movement, founded in 1970, and accession to the European Community (now European Union) in 1973. The IWLM demand for the legalisation of contraception had met with popular support, and opposition from State and church. The sale or advertisement of contraceptives was illegal and punishable by penal servitude. The legal prohibition on married women engaging in paid work outside the home had been lifted in exchange for massive European funding, though the enforced entry of women into the paid workforce was treated with reluctance by business, trades unions and parliament. At the time of the ending of the marriage bar in 1975, less than 10 per cent of married women were in the workforce, and single women were mostly confined to work in the unskilled service sector.
Still, the appetite among women for freedom from the kitchen sink was growing. There had been growing unease at State-sanctioned punishment of those women who had incurred State or church displeasure. The punishment had been aimed mainly at single mothers, whose children were deemed illegitimate in law, an official sanction of bastardy that the Catholic Church relished. It was normal to incarcerate single mothers in Magdalene homes run by the religious, usually until their children were adopted, but often for life. Thousands of Irishwomen, in succeeding generations since the foundation of the State, had thus been spirited away and forced to put their children up for adoption. Others escaped to England and came home childless. This seems medieval now. It was normal right up to the legal crucifixion of Joanne Hayes, who had defied sanction by giving birth to and rearing her first child at home, and holding down a paid job.
It seems ridiculous now that divorce was unobtainable in Ireland until 1996, though marital breakdown and separation had been steadily increasing. Even more puzzling, on face of it, is that the IWLM did not include a demand for divorce among the six demands published in their initial manifesto. It is not that we lacked courage. It is, simply, that the demand did not occur to us in Catholic Ireland, the Constitution of which expressed State approval of the special position of the Catholic Church.
We had little or no idea how a woman who was forbidden the right to work might survive, usually with children, after marital breakdown. At that time the children’s allowance was paid to the father. There was no welfare payment for separated wives.
Women in financial need relied on the discretionary judgment of a Poor Law Officer. There was no knowledge, much less recognition, even among us, of the extent of wife battering in the home. There were no refuges for such women. There was grim stoic acceptance of the adage that if you make your bed, you must lie in it. Romance and sex had little to do with marriage, within which, as the late Nuala Fennell put it, women faced a nightmare of unremitting pregnancy. Six children per marriage was the norm, often exceeded.
THOUGH OUR PLIGHT was ostensibly sad, all our feminist wars were merry. In the heyday of the 1970s, the laws against Irishwomen were so self-evidently silly that taking aim at them was like shooting fish in a barrel. Then the pope came. The Irish lived easily with the contradiction of adoring him while simultaneously breaking his edicts. So did some priests – an effective underground network made known which clerics would give absolution for what were, officially, mortal sins. It was in the aftermath of the papal visit that civil hell was visited on Catholic Ireland in the form of a constitutional referendum on abortion.
Scarcely had John Paul departed these shores than a tiny group of right-wing, ultra-conservative Catholic lay people, mostly medical practitioners, visited parliament to announce that abortion could and would be introduced into Ireland via a loophole in the Constitution. In the space of two hours, these people wrung astonishing commitments from a Fianna Fáil government and the main opposition, Fine Gael, that the constitutional loophole would be closed. The fight to save fertilised eggs was on.
The country was put through a crash course on such hitherto unknown facts as the existence of zygotes. In the space of two years, three governments came and went. Bishop Joseph Cassidy declared with smug certainty that the most dangerous place in the world was in a woman’s womb. The Constitution was amended in November 1983 to give the fertilised egg a right to life that was equal to that of the women in whose body it was growing. The era of the unborn was upon us.
Joanne Hayes conceived during that time of perfervid dictat. Her baby died after it. The men were sent to find out what had happened to the fertilised egg they had spent years theoretically defending. After they had filleted her to their satisfaction, the judge pronounced that she had hit her newborn baby with a bath brush, after giving birth, to make sure that it was dead. One cannot, of course, kill a dead baby, but damage to Hayes was done by the judicial implication that she wanted the child dead.
A measure of his temperament and attitudes to women in the Kerry Babies case is the judicial pronouncement made at its end by Justice Lynch. He asked, “What have I got to do with the women of Ireland in general? What have the women of Ireland got to do with this case?” He presumed to lecture Irish women on what he saw as their misguided support for Hayes in her agony, by sending her flowers and Mass cards. He found that the “most wronged woman” in the matter was Mary Locke, the wife of Jeremiah Locke, the man who had fathered Joanne’s babies. “Why no flowers for Mrs Locke?” he asked. “Why no cards or Mass cards. Why no public assemblies to support her in her embarrassment and agony? Is it because she married Jeremiah Locke and thus got in the way of the foolish hopes and ambitions of Joanne Hayes?” Mary Locke’s reply to his query was simple, dignified and devastating for Lynch. She declared: “Joanne Hayes was harshly treated.”
THE LEGALISATION of abortion, in severely restricted circumstances, was introduced in 1992 after the X case erupted. A 14-year-old girl, raped and impregnated by an acquaintance, was brought to England by her parents to secure an abortion.
The parents asked Irish police if DNA from the aborted foetus might be used to secure a conviction against the rapist. The State moved instantly to obtain a court order, which demanded that the parents return to Ireland, with the pregnant child, or face charges and possible imprisonment if they procured an abortion for her outside the jurisdiction. Frightened, they brought their pregnant, suicidal daughter home to face her doom.
In face of absolute citizen outrage against internment of the child in Ireland, the Supreme Court convened and found that abortion could be allowed when the life of the mother is threatened by suicide.
Threats to a mother’s health, as opposed to her life, are still not considered grounds for abortion. This cruelty to pregnant women obtains even where it is medically certain that a diseased foetus will not live seconds beyond birth.
In the wake of the X case and in exchange for a multimillion injection of funds from the EU, the people voted to allow freedom of travel abroad for an abortion, and freedom of information about abortion at home. That EU funding is generally acknowledged to have given birth to the Celtic Tiger era. The fate of eggs that are fertilised in Ireland and then exported troubles the Irish not at all. As ever, uncomfortable problems are exported to England and a blind Irish eye is turned to them. The men of medicine disgraced themselves again in the course of yet another referendum to refine and impose further limitations on the original amendment on fertilised eggs. The three masters of Dublin’s maternity gave a press conference in which they intended to throw their weight behind it. Under questioning from a now less subservient media, they admitted that their real preference was that termination should be allowed in cases where a damaged foetus would not long survive birth.
The proposed amendment failed. The Dáil has yet to act to bring legislation into line with the expressed national vote that abortion be permitted in limited circumstances.
The situation of Irishwomen is not, however, bleak. Where contraception is concerned, the change is startling. Where once, any reference to contraceptive practice was banned, television now carries happily and casually brazen narrative ads from the State-funded Crisis Pregnancy Agency. For instance, a young woman is seen going upstairs and into the bedroom with a young man. Her mother calls the daughter. “Have you taken your pill?” In another ad, a heterosexual couple are kissing heavily in a fish and chip shop. The waitress, delivering their order, asks, “Would you like a condom with that?” Condoms are displayed for sale in supermarkets, pubs and pharmacies, in varied flavours and sizes and strengths.
FINE GAEL MINISTER Nuala Fennell abolished the bastardisation of children in the aftermath of the Kerry Babies case, and homosexuality was decriminalised by Fianna Fáil Minister Máire Geoghegan-Quinn. Senator Mary Robinson, political adviser to the IWLM, was elected president of Ireland in 1992 and served two successive terms, as did her successor, Mary McAleese. Though women otherwise failed to make a breakthrough in parliamentary representation, and are fewer in number now than they were before the Kerry Babies case, Irishwomen have broken new territory in formerly barren places. Married or single, they now make up nearly half the workforce. The Magdalene houses are closed, and orphan placement agencies at an effective end. Creches for the children of working parents flourish, in a society where double income families are now the norm. The birth rate has shrunk to less than three children per family, and advances have been made in regards to equal pay and equal opportunity, which is now a trade-union mantra.
As against that, marital breakdown has increased and divorce is common. Divorce is not a sign of success in human relations, but it does herald an adult willingness to deal honestly and openly and legally with human failure. Abortion rates are high, albeit conducted elsewhere. Again, the rates do not signal success, but a mature acceptance that conception and birth does not always guarantee a happy or desired outcome. The fact that contraceptive practice is not yet the norm among sexually active teenagers signals that sex education still leaves much to be desired.
Women now do two jobs – working outside the home by day, and rearing a family by night, albeit men do a little more housework than they used to, and can be seen interacting with their children.
However, in sum, Irish people are in a much better state than they were at the time of the Kerry Babies case, if one takes sexual health as the norm against which we are to measure ourselves – and it seems an eminently reasonable measurement. To meet, mate, and make a nest, with or without babies, is precious – there are many forms of living together, in community, and these forms do not always include a partner in the home, or sexual congress. Friendship is precious. Joanne Hayes and her family were sustained in their ordeal by the friendship of neighbours and, especially, women friends.
Those days of barbarism are effectively over, though much remains to be done. A single startling example will suffice. It would be considered barbaric nowadays for a couple, heterosexual or gay, to walk down a wedding aisle as virgins; to commit themselves legally to a lifelong relationship, civil or religious, without first living together; to delude themselves that a certificate of marriage means certainty.
It is very much the norm nowadays, before making such a commitment, to first live together, and then make a baby. The old order of marriage, home and baby has been completely reversed to home, baby and commitment.
The nightmare that was an Irish honeymoon has vanished. It used to be that a couple brought a towel on honeymoon to absorb the blood that would allegedly flow after the woman had been penetrated by a battering ram known as the penis. Today, most sexually active people happily and enthusiastically engage in sexual congress, equipped with contraception. Horrific exceptions apart – and they are many – the day of the damaged cowboy is done, as is the day of the damaging cleric, doctor, lawyer and elected politician.
We are not fully healthy yet, but we are getting there, and it is wonderful.
This is an edited version of the introduction to A Woman to Blame: The Kerry Babies Case by Nell McCafferty, published by Cork University Press