Abstract
Contemporary studies that focus on intimate homicide assume that patterns of policing, prosecution and punishment were uniformly disadvantageous to women before feminist activists intervened in the 1970s. This article tests that assumption by drawing on the Prosecution Project’s digitisation of Australian criminal trial records. Using this resource, we selected all prosecutions (n = 314) of men for murders of women and of women for murders of men in New South Wales, from Federation (1901) to 1955, the year the state abolished the death penalty. By coding victim–offender relationships and analysing them in relation to case outcomes, we found that men were far more likely than women to be convicted of murder, including seven men executed for intimate femicides. By contrast, women were more likely than men to be acquitted outright, rather than plead guilty to manslaughter of male intimates, a trend that feminist research has identified recently. This research provides new findings of use to critical appraisals of the charging and sentencing reforms that were meant to remedy ‘the laws of the fraternity’.
Keywords
Introduction
A considerable body of national and comparative data has been collected since the 1970s in the endeavour to analyse intimate partner homicide (IPH), its policing, prosecution, and the policies implemented to tackle it (Fitz-Gibbon & Walklate, 2016). In Australia, early feminist studies of domestic and family violence (Easteal, 1993; Mouzos, 1999; Scutt, 1980; Wallace, 1986) set the benchmark for subsequent studies that have established shifting patterns of offending and punishment, plus perturbing consistencies. Although the frequency of IPH has declined in Australia and many other jurisdictions in recent decades, women’s risk of homicide by partners continues to exceed men’s, and rates of IPH rates are disproportionately high in Indigenous and recent immigrant communities (Bricknell, 2020).
The National Homicide Monitoring Program, a wing of the Australian Institute of Criminology (AIC), began to publish its research in the late 1980s, and this has encouraged homicide researchers to study lethal violence from that starting point. This preference for the freshest data characterises criminological research more broadly. As Paul Lawrence (2019, p. 500) observes, most articles published in criminological journals since the 2000s analyse data from the past thirty years or less. The discipline of criminology, established to probe the present and mould the future, values history principally for perspective and background (Godfrey, 2017; Lawrence, 2012, p. 320; Yeomans, 2018). However, fully contextualised historical interrogation is the best means to raise questions of relevance to criminological inquiry. In this article we ask: was male homicidal violence towards female partners readily excused when the criminal justice system was exclusively masculine?
In Australia, several historical studies provide the groundwork for this inquiry. Wallace’s foundational analysis of IPH (Wallace, 1986) incorporated and analysed historical data on the prosecution and punishment of homicide, including violence between intimates. Although she relied on police and public prosecutors’ records of cases investigated from 1968 to 1981, she supplemented her research by drawing on census records and unpublished academic works to cover earlier decades. Prepared for the New South Wales Bureau of Crime Statistics and Research, Wallace’s report was the first to document distinctive gender disparities of homicide in post-Federation Australia, most evident in intimate and family homicides. Not only did the rate of homicide per 100,000 residents in New South Wales (NSW) vary over time, but so did the rate of lethal inter-gender (IG) violence and the proportions of men and women apprehended for intimate and non-intimate homicides. On the basis of this historical evidence, Wallace (1986) hypothesised that ‘changes in the social and political fabric can alter the nature of homicide even within the same jurisdiction’ (p. 25).
Although some criminologists have made use of historical data on gender and homicide, this research has moved toward the present, rather than dug further into the past. Working with Canadian data starting in the mid-1970s, Dawson (2012, 2016) evaluated whether changes in laws of evidence and criminal procedure, combined with broader shifts in the politics of violence in the late twentieth century, rendered the punishment of male perpetrators more certain or severe. Dawson found ambiguous evidence. The incidence of IPH declined and the punishment of femicide did become stiffer over time; yet, she also found that men’s killings of female intimate partners were treated less punitively. Studies of this nature raise a further question for historical analysis: did rates of IPH prosecutions vary prior to the 1970s, or was it consistently high before that point?
Gender and intimate partner homicide
Because IPH overwhelmingly involves men’s violence against women, scholars have highlighted female victimisation. The term femicide entered academic discourse in the mid-1970s (Russell, 1977), and subsequent studies of IPH turned to domestic and spousal homicide to describe the phenomenon (Scutt, 1980; Zimring et al., 1983). Researchers who included lethal conflict in non-marital relationships – de facto and informal partnerships, former partners, boyfriends and girlfriends – broadened the scope of scholarship while they continued to underscore women’s greater vulnerability to IPH. From the 1980s, the regular publication of homicide data allowed criminologists and government agencies to refine the interrogation of IPH’s unique drivers and the criminal justice system’s distinct responses to it (Fagan & Browne, 1994; Gartner & McCarthy, 1991). Despite the academic take-up of ‘intimate partner’ as a gender-neutral term by the 1990s, feminists continue to focus on men’s femicides and to criticise the law’s preparedness to excuse male partner violence while failing to take the defensive character of women’s IPH into account (Dobash & Dobash, 2015; Douglas, 2019; Sheehy et al., 2012).
Another field of research relevant to the analysis of gender and lethal violence is the feminist and pro-feminist research on masculinity. This scholarship, which began in the 1990s, highlighted entrenched patterns of male violence and misogynistic attitudes toward women (Bowker, 1998; Newburn & Stanko, 1994; Polk, 1994). Those interventions came at a point when the concept of multiple masculinities emerged, and this led scholars to identify hierarchies between men which transcended class and racial divisions (Connell & Messerschmidt, 2005; Messerschmidt, 2017; Strange, 2003; Whitlock, 2014). In activist circles, the White Ribbon campaign, launched in response to the Montreal Massacre in 1989, further demonstrated and encouraged men’s capacity to condemn criminal masculinities and to model positive, respectful relations toward women (Kaufman, 2012). Although that campaign has recently faltered in Australia, pro-feminist scholarship continues to advocate against the ‘toxic’ masculinities that underly violence, including IPH (Flood, 2019, pp. 20–23; Our Watch, 2019).
From its origin in nineteenth century campaigns over ‘wife torture’ and ‘marital cruelty’, feminist criticism of men’s violence has triggered defensive and hostile responses. This is also evident in criminological research. Since the 1990s, a body of scholarship has propped up the notion of gender symmetry in domestic conflict, drawing considerable criticism (Kimmel, 2002; Wangmann, 2010). Although some gender symmetry scholars have uncovered important evidence of women’s violence against children and partners, radical elements in the fathers’ rights movement have weaponised their findings to attack feminist-inspired domestic violence initiatives: they vilify all men, they excuse and glorify violent women, and they cover up male victimisation (Dragiewicz, 2011; Flood, 2010; Mann, 2008). Not even notoriously ultra-violent cases of male-perpetrated IPHs have stemmed the recent tide of alt-right protest (Nicholas & Agius, 2018).
At this fraught juncture in the politics of gender and violence, ‘does history still matter?’ (Buzawa & Buzawa, 2003, p. 64). The answer depends on the depth, breadth and pitch of historical criminological inquiries. In the 1990s, Rosemary Gartner and Bill McCarthy set a high standard when they used unpublished institutional and archival records from two Canadian cities from 1900 to 1988 to analyse IP and non-intimate homicide. Their landmark study (Gartner & McCarthy, 1991) challenged the prevailing belief that women’s growing independence provoked male resentment and increased lethal violence. In fact, employed women turned out to have a lower risk of victimisation, but only after the 1970s, when it became normative. As they concluded, ‘any search for a general explanation … must take account of historically specific contexts and contingencies’ (Gartner & McCarthy, 1991, p. 309).
In Australia, the first substantial historical study of crimes by and against women, including IPH, was Judith A Allen’s (1990) Sex and Secrets. Like Gartner and McCarthy, Allen used a wide range of sources to detect variations over time in the responses of police, jurors, judges and the general public to IPH in NSW. Conviction rates for males prosecuted for the murder of women were higher in the early twentieth century than they were in the 1920s and 1930s. In the inter-war period, Allen claimed, the masculinist criminal justice system showed ‘marked lenience’ to male perpetrators: when men were charged with the murder of wives and sweethearts they were usually convicted of manslaughter and given light sentences. Allen (1990) also found that male killers of female intimates were frequently judged not guilty by reason of insanity (p. 138). Once psychological explanations for aggression and loss of impulse control became more common after the 1920s, the ‘laws of the fraternity’ found more excuses for men’s murderous violence (Allen, 1990, p. 141). At the same time, patriarchal justice was less forgiving of women who killed husbands or paramours (Allen, 1990, p. 136).
Contemporary criminological studies of domestic violence history that refer to Australia’s history continue to rely upon Allen’s study (Stubbs & Wangmann, 2017). Yet, Allen herself acknowledged that she relied upon patchy sources. In fact, Sex and Secrets uses case studies but no data on IG homicide for the post-1919 period (Allen, 1990, p. 132). Consequently, her conclusions provide a shaky base for comparisons between current-day patterns of prosecution and punishment and past ones.
Fortunately, the PP project has filled most of the gaps that stymied earlier research on the prosecution of homicide in NSW in the early twentieth century. On top of that, the National Library of Australia’s Trove search engine has digitised a vast body of newspapers and police gazettes up to the mid-twentieth century. By drawing on these combined data sources, we tested responses to men’s and women’s IPHs in NSW from 1901 to 1955, focusing on cases of murder and attempted murder, both of which were mandatory capital offences in that period. By comparing the outcomes of capital IPHs cases with non-intimate IG and intra-gender capital murder cases, our study subjects the analysis of the pre-feminist reform era to closer scrutiny.
Murder and its punishment in early-twentieth-century New South Wales
The period and place chosen for this study – the state of NSW, from 1901 to 1955 – were selected to illuminate several factors of significance to the broader history of gender, homicide and punishment. From the late-eighteenth to the mid-nineteenth century, NSW was Australia’s principal destination for convicts. After that point, penal policy in NSW followed the pattern of Britain, North America and Western Europe, when it substituted imprisonment as the principal means of punishment and reduced the number of capital offences (Finnane, 1997, pp. 84–92). As of 1901, the terms of Federation allocated power to formulate criminal law and administer criminal justice to the states. In NSW, the death penalty was mandatory for nine offences (Crimes Act, NSW Government, 1900). However, capital punishment was more restricted and rarely inflicted after Federation. Aside from one man who was hanged for carnal knowledge (an assault on a nine-year-old girl) in 1901, the only individuals executed in NSW prior to abolition in 1955 were men convicted of murder – 21 in total (Kaladelfos, 2012).
By setting 1955 as our end date we confined our dataset to cases in which prosecutors, defence counsel, jurors and judges, plus the defendants themselves knew the mandatory penalty of death applied if the accused was convicted of murder. Hangings were rare events by the turn of the century, but so long as the death penalty remained in the state’s Crimes Act, a dark shadow hovered over every person charged with capital crimes, including femicides. The last man executed for murdering his wife was William Ball, hanged in 1912 (Strange, 2020). And in 1939, John Kelly became the last person executed in NSW, convicted of an IG murder (IGM) involving an attempted sexual assault. Those two convicted killers of women and five others were hanged in post-Federation NSW 1 . Yet, no woman was executed after the controversial hanging of Louisa Collins in 1889 for the poisoning murder of her husband (Kukulies-Smith & Priest, 2011). As late as 1955, jury service was restricted to men, and men alone sat on the bench and served as ministers in the state executive in NSW (Choo & Hunter, 2018). Thus, in every prosecution for IGM, men determined the fate of defendants – female and male – from the decision to charge to the grant or denial of clemency. However, this masculinist criminal justice system produced surprising disadvantages for men, as well as clear advantages for women prosecuted for IPH.
Sources
This article uses a dataset of prosecuted homicides in NSW, shared by the Prosecution Project (PP) team, to fill a significant gap in the analysis of historical responses to IPH (Finnane & Piper, 2016). Headed by Professor Mark Finnane (2020b), the PP digitised records from former colonial, state and territorial higher-courts, supplemented by police gazettes and prisoner registers, to document the prosecution of criminal offences from the late-eighteenth century to the mid-twentieth century. This longitudinal database allows researchers to address questions that could never have been contemplated, let alone answered through archival record research or published reports. 2 From the Project’s start, its goal was to germinate further studies. As its leaders projected, ‘it has the potential to test the learning of previous research based on small samples, usually shaped only by a narrow set of research questions’ (Finnane & Piper, 2016, p. 878).
The public face of the PP, like the Old Bailey Online, is an interactive website that allows users to search for individuals and cases based on court data. Some entries include links to police gazettes (mainly covering the mid-nineteenth to mid-twentieth century) and law reports in the AUSTLII online database (Finnane et al., 2018). Case entries that flag ‘more info’ lead researchers to newspaper coverage drawn from TROVE’s database of articles and other print material. However, fewer than one-quarter of entries include linked sources, and important case factors, such as the age of defendants and victims or their ethnicity are often missing. In addition, the PP replicates the criminal justice system’s focus on the offender, not the victim or the relationship between them (Finnane & Kaladelfos, 2016). Despite these limitations, the Project enables targeted searches newspaper searches, which is necessary to cross-check the official record and to add qualitative data (Finnane et al., 2018).
Approach and methods
To undertake our analysis of IGM and intimate partner murder and attempted murder, we began by selecting cases that fit that profile from the PP homicide dataset. Starting with all prosecutions for homicide in NSW from 1901 to 1955 (n = 1439) we removed cases prosecuted as manslaughter (n = 440), as that was a non-capital offence. We excluded murders that were abortion-related (n = 38), since these homicides were by-products of medical procedures. Murders of infants, sometimes prosecuted as ‘child murder’ (n = 106), were also extracted, since the gender of victims was not the principal dynamic of the crime. This selection approach conforms to most studies of IG homicide, which focus on adult relationships (Dawson & Gartner, 1998). After we eliminated multiple entries (for example, the same person bound over to appear or retried after jury disagreement), we determined the final outcome for the remaining 764 individuals prosecuted for murder and attempted murder (approximately 60% were men’s killings of men). In addition, our cross-check of prosecutions turned up a further 27 cases missing from the PP homicide dataset, bringing the grand total of capital homicide case outcomes to 791.
To distinguish male and female IGMs, including IPMs, from intra-gender and non-intimate capital cases required that we determine the gender and age of victims as well as defendants. Our definition of ‘intimate partner’ is commonly used in homicide studies, which no longer restrict their analysis to cases of legally married or de facto spouses (Rod, 1980). Following Dawson (2012) we searched for cases in which persons in their teens and older were accused of killing spousal, de facto, and romantic/sexual partners or former partners (after break-ups, separations, divorces). Unlike most studies of IPH, which focus on its disproportionate burden on women, we included all cases of women prosecuted for the murder or attempted murder of male intimates (n = 56). Over those five decades, 221 cases involved lethal violence between intimates, 165 of which were femicides.
Court records, such as those the PP relied upon, did not provide details about victim–offender relationships, but press coverage of inquests and trials proved a richer source. To incorporate that information, we augmented our sources and deployed further labour-intensive approaches. Since the NSW dataset did not include victims’ names for 95% of the entries, we conducted exhaustive searches in historical newspapers and police gazettes. Online prison records, plus births, deaths and marriage records (accessed through the State Records and Archives Authority of NSW and via Ancestry.com) provided further information to confirm the personal details of every offender and most victims. This broadened research base also made it possible to distinguish adult IPMs from child murder and to use age of offender as a variable.
By supplementing the PP’s homicide data with additional sources, we confirmed the number of murder and attempted murder prosecutions that involved IG homicides in NSW from 1901 to 1955 (n = 314). In the absence of trial transcripts, press accounts provided the best evidence of victim–offender relationships. Press coverage varied significantly from case to case in volume and tenor, but even highbrow papers, such as the Sydney Morning Herald, detailed the antecedents of homicides. The sensational press, notably Truth, painted lurid pictures of perpetrators’ and victims’ intimate lives, playing up real-life dramas, but they also included the information we required to sort murders between intimates from stranger homicides, killings of neighbours, employees, employers and robbery murders.
Determining the racial and ethnic profile of persons prosecuted for IG and their victims proved more challenging (Finnane, 2020a, p. 5). Criminologists have paid increasing attention to racial and ethnic disparities in the incidence of and responses to homicide, and recent studies affirm that Indigenous people and recent immigrants are disproportionately represented among perpetrators and victims of IG homicide (Cussen & Bryant, 2015; Domestic Violence Death Review Team, 2020). However, NSW in the period under discussion was populated overwhelmingly by white persons of British and Irish heritage. 3 The White Australia policy determined immigration patterns after Federation, and although the population of NSW included Asians and Europeans (the latter in greater numbers after the Second World War), few of NSW’s residents fell outside the white Anglo majority in the first half of the twentieth century. 4 The state’s officially recorded Indigenous population was also low, approximately 7000 persons in 1901 (when the overall population of NSW was 1.35 million), increasing to 17,500 by the mid-1950s, by which point the state population was over 3.5 million.
Racist press accounts rarely remarked on the colour or ethnicity of offenders and victims unless they were not Anglo-Celtic. Since British surnames of defendants and victims predominated, we conducted further research in vital records and news accounts to glean more information about persons with non-Anglo names. Among the 314 defendants, two were Asian, one was Indian and one was a South Sea Islander. Sixteen were Europeans, mainly from southern and eastern countries, and 12 were Indigenous. We found no defendants indicted under Aboriginal names, but by searching newspapers for the terms ‘Aboriginal’, ‘Indigenous’, as well as racist terminology (such as ‘Native’ and ‘Half-Caste’ and ‘gin’), we found 12 Indigenous males prosecuted for IGMs, plus 9 victims (all female). Thus, the vast majority of persons involved in prosecuted murders in NSW in the first half of the twentieth century shared the same heritage as the white male Britishers who policed, prosecuted and judged cases of murder and attempted murder. Those who did not stood out in ways that left them more vulnerable to punitive treatment.
Statistical methods
We began our analysis by charting broad trends in the overall rates of murder, IGM and IPM from 1901 to 1955 in NSW. Focusing on IGM, we compared bivariate distributions of frequencies between genders, by victim–offender relationship and over time periods. This was conducted using Pearson’s Chi-square tests, with Fischer’s exact test substituted in cases of null cells. We then used multivariate logistic regression to consider how time period and offender characteristics such as gender, age and ethnicity were associated with the likelihood of conviction. Following Auerhahn (2007) we tested to determine whether gender differences were evident in sentencing outcomes. 5
Time trends in NSW murders
Figure 1 displays the overall trend in per-capita rates of murder, IGM and IPM from 1901–1955 in NSW. Locally weighted nonparametric smoothing was used to clarify overall trends in murder rates and increase interpretability (Bowman & Azzalini, 1997). We found that the overall rate of murder prosecutions rose slightly in NSW between 1901 and 1918, before falling by 40–50% during the 1920s and 1930s. Rates of IG and IPMs prosecutions rose marginally between 1901 and 1918, followed by a decline over the 1920s. Yet, in proportionate terms, this decline was less steep – rates of IGM and IPM fell by only 20–30% between their peak in 1918 and their respective troughs in the 1920s and 1930s. All murder rates again increased markedly after Second World War.
Time trend in all murders, inter-gender murders and intimate partner murders, New South Wales, 1901–1955. Source: NSW population estimates from Australian Bureau of Statistics (2019) ABS report 3105.0.65.001.
Table 1 focuses on significant periods of early-twentieth-century history to further analyse how murder prosecutions involving IGMs varied over time. We grouped our cases into four broad time periods – Federation (1901) to the end of First World War (1918), the post-First World War period (1919–1929), the Great Depression (1930–1939), and the Second World War and post-war period (1940–1955). Across all periods, the vast majority of women’s murder prosecutions involved the killing of a man. Murder prosecutions for men were much more likely to involve killing another male, as continues to be the case (Bricknell, 2020, p. 15). However, we found that, as a proportion of all murders, men’s murders of women rose during both the post-First World War and Second World War time periods.
Per cent of all murders that were inter-gender, by gender of defendant and time period.
Bivariate analysis of inter-gender murders
Comparing characteristics of offenders, offenses and prosecution outcomes revealed surprising similarities between males and females (Table 2). For both men and women, approximately 70% of IG prosecutions involved an intimate partner, and no significant differences were found between genders (÷2 = 0.22, df = 1, p = 0.643). Age distributions of offenders were also similar in men and women (÷2 = 2.55, df = 2, p = 0.279). No significant differences were found in the distribution of IGMs by ethnic groups (Fischer’s exact = 0.057), although women were somewhat more likely to have an Anglo-Celtic background and no Aboriginal women were prosecuted for an IGM in NSW from 1901 to 1955.
Descriptive statistics of inter-gender murders, by gender of defendant.
Notes: p-values represent results from a Chi-square test, Fischer's exact test used in comparisons with null cells present.
aNine men and one woman plead guilty to manslaughter prior to trial
By contrast to the broadly similar characteristics of offenses and offenders, we found statistically significant differences in the outcome of prosecutions by gender (Fischer’s exact ≤0.001). While 73% of males charged with an IGM were found guilty (either of murder, manslaughter, attempted murder, or other charges), only 35% of women were found guilty. All but a few of these convictions were the result of jurors’ verdicts: over the 1901–1955 period, only nine men (4% of prosecutions) and one woman (1% of prosecutions) plead guilty to manslaughter prior to trial. A full 60% of females charged with an IGM were found not guilty, compared with only 17% of male offenders. Furthermore, only 4% of females charged with IGM during this period were found insane, and no woman was classified as unfit to plead. In comparison, 11% of males charged fell in these two categories (8% found insane, 3% unfit to plead).
In Table 3, we show that these gender differences in prosecution outcomes hold even when stratifying by intimate and non-intimate partner relationships. Large gender differences in the distribution of prosecution outcomes exist for both intimate (Fischer’s exact ≤0.001) and non-intimate (Fischer’s exact ≤0.001) IGMs. Comparing prosecution outcomes within gender, no differences were found by offender–victim relationship (males: Fischer’s exact = 0.239; females: Fischer’s exact = 0.478).
Prosecution outcomes of inter-gender murders, by relationship and gender of defendant.
Notes: p-values from Fischer's exact test.
aSeven men prosecuted for intimate partner murders plead guilty to manslaughter prior to trial; one woman and two men prosecuted for non-intimate partner murders plead guilty to manslaughter prior to trial.
Although dividing our overall period into four allowed us to test for associations between IGM prosecutions and the major turning points in NSW’s history, this approach left us with small sample sizes. To compensate, we increased the explanatory power of our analysis by combining our four periods into two – pre- and post-1939. This method revealed differences in time trends of both the offender–victim relationship and prosecution outcome for males. Table 4 shows that the percentage of men’s IGMs involving an intimate partner declined from 78% to 61% between these two periods (÷2 = 7.90, df = 1, p = 0.005), but there were no significant differences among women (÷2 = 1.14, df = 1, p = 0.286). Prosecution outcomes also differed over time periods for males, although an overall test of proportions was not significant (Fischer’s exact = 0.092). In particular, jury verdicts of manslaughter, versus murder, were much more likely for males after 1939, with 33% of prosecutions resulting in a manslaughter conviction, compared with only 22% in the earlier period. No significant time trend was found for females in or prosecution outcomes, although the percentage of women found not guilty rose from 57% to 66% between the two periods.
Inter-gender murder prosecution outcomes by time period and gender of defendant.
p-values from Chi-square test.
aNine men and one woman plead guilty to manslaughter prior to trial, all of these guilty pleas occurred in the 1940-1955 time period.
bp-values from Fischer's exact test.
Multivariate analyses of prosecution outcomes and sentences
In addition to the univariate and bivariate analyses described above, we used multivariate analyses to explore the relation of prosecution outcomes to offender characteristics and time period. These analyses use logistic regression on a simplified binary outcome variable – whether the offender was convicted of any offense (outcome = 0) or was found not guilty (outcome = 1). Because we excluded cases with other prosecution outcomes (found insane, unfit to plead, or other) the final analysis sample here is 280 cases.
Controlling for other offender characteristics and time period, we tested the association of prosecution outcomes with gender, ethnicity, age and homicide relationship. Table 5 shows that female offenders were substantially more likely to be found not guilty as opposed to being convicted. 6 Gender was highly significant, as female IGM defendants had more than an eightfold greater chance of being acquitted compared to men (OR: 8.57, SE: 2.73, p < 0.001). Again, these acquittal rates did not vary between the two periods controlling for other characteristics. Furthermore, whether the murder victim was an intimate partner or a non-intimate relation had no significant bearing on prosecution outcome. Younger offenders (both males and females aged less than 21) were significantly more likely to be found guilty than older offenders (OR: 0.11, SE 0.09, p < 0.01). No significant differences were found by ethnicity of offender, although the odds ratios suggest that those of Aboriginal, European and Other ancestry were somewhat more likely to be convicted as compared to Anglo-Celtic individuals. Controlling for individual characteristics, there were no significant differences in the likelihood of non-Anglo-Celtic offenders’ acquittal between the two studied time periods.
Predictors of prosecution outcome (not guilty vs. convicted), based on logistic regression.
Notes: * = p<.05, ** = p<.01, *** = p<.001
In addition to testing for factors associated with prosecution outcomes, we sought to understand whether the sentences of convicted males and females differed. Capital punishment was the mandatory penalty for murder and attempted murder in NSW up to 1955, but sentences of death could be commuted, usually to life imprisonment. For murder, this was up to the discretion of the state executive. Whenever jurors found defendants guilty of manslaughter, judges had the leeway to impose any sentence up to life. On some occasions, they ordered the release of convicted defendants, but this happened only in women’s trials.
Table 6 indicates that after convictions for murder, attempted murder, or manslaughter, sentences were substantially less punitive for women as compared to men. Of women convicted, 17% were released, and 45% were sentenced to less than 10 years of incarceration. By contrast, no men were released after a murder, attempted murder or manslaughter conviction, and only 22% received a sentence of fewer than 10 years. A life sentence was the most common outcome for convicted men (56%), whereas only 28% of women received a life sentence. And, most significantly, no women, but four per cent of men, were executed for IGM. Overall, the gender difference in sentencing outcomes among those convicted was highly significant (Fischer’s exact < 0.001).
Sentences for defendants convicted of IG murder, manslaughter, or attempted murder, by gender of defendant.
Notes: p-values from Fischer's exact test.
Discussion
Our univariate, bivariate and multivariate analyses confirm that outcomes for men prosecuted for IPM were significantly more punitive than they were for women, including the seven men executed for intimate femicide. Nevertheless, as earlier studies of homicide in NSW flagged (Wallace, 1986, p. 177), we also found that the incidence of IGM, IPM, and the prosecution and punishment of those offences, varied over time. Our evidence suggests these trends were linked to the social, political and economic transitions and shocks NSW experienced in the early twentieth century, foremost the two world wars. Overall, our findings contradict Allen’s (1990) contention that the ‘laws of the fraternity’ and NSW’s patriarchal culture produced adverse results for women accused of IGM and lenient responses towards men’s misogynistic violence, particularly men who differed from the state’s dominant white Anglo-Celtic population.
By comparing all prosecuted murders to men’s and women’s IGMs and IPMs, we found that the post-First World War years saw an uptick in men’s murders of women. For instance, between 1919 and 1925, there were no executions of men for killing adult females, but male jurors found 12 of 31 men tried for murdering women guilty of murder, and 13 were found guilty of manslaughter. Over the same years, just two women charged for murders of men were convicted (both of manslaughter) out of nine prosecuted. Of that number, six women were found not guilty and one was found insane. The punishment of the convicted women was also light. Compared with the commuted life sentences that each of the convicted male murderers received, the male judges sentenced the two women convicted of manslaughter to 5 and 12 years in prison. Although jurors and sometimes judges recommended mercy for male defendants they deemed responsible for killing women, especially men who had served in the war, the male conviction rate was significantly higher than it was for females. Despite public awareness of shellshock, jurors were not disposed to find ex-servicemen who killed women insane, with just one such murder trial ending in a verdict of not guilty by reason of insanity between the War’s end and 1925. There is no evidence of ‘marked lenience’ on the part of men who sat in judgement of other men and women charged with murdering women, whether intimates or non-intimates.
In the post-Second World War period, the rate of IGM rose again, and at a higher rate than the rise in the general murder in NSW. From 1940 to 1955, the overall rate of murder prosecutions per 100,000 population in the state rose by 24%, whereas the IGM rate jumped by 81%. Again, this suggests that lethal gender conflict was associated with the stresses for men and women of male combatants’ return to civilian life. It may also have reflected women’s growing resort to violence in intimate heterosexual relationships in the 1940s and early 1950s. The proportion of women’s murders of all IGM’s rose from 24% in the pre-1939 period to 27% from 1940 to 1955. Over the same time, the proportion of men’s murders that involved intimate partners sank. The state’s criminal justice system was more punitive toward women in the latter period as well, making females twice as likely to be convicted of murder (versus manslaughter) after 1940 than before. Although a spate of poison murder prosecutions of wives (seven tried for murder between 1944 and 1955, with three found guilty) may account for this, the rate at which men were found not guilty remained low and steady, at 17%. In comparison, the rate of acquittal for women rose from 57% to 66%. Thus, over the entire period of NSW history, 1901 to 1955, the exclusively male criminal justice system favoured women charged with murders of men.
Gender was clearly the most significant factor in verdicts and the severity of sentences of persons convicted of murder and manslaughter, but the ethnicity and race of male defendants was associated with more severe outcomes. This is consistent with earlier qualitative and descriptive statistical research (Strange, 2003), which showed that Anglo-Celtic barristers, jurors and judges often characterised non-British offenders and non-whites as brutish by nature. One of the seven men executed was of Indian heritage and another was an Indigenous man. After the period of de facto abolition from 1940 onward, no man found guilty of murder was hanged, but those identified as ‘new Australians’, mainly eastern Europeans, were cast in the press and courtrooms as prone to violence. Yet, the connection between discrimination and severe outcomes was not statistically significant.
In the first half of the twentieth century, men prosecuted for IGM and attempted murder were more likely than women to be found unfit to plead or not-guilty of murder. Most often these outcomes occurred in cases in which men attempted suicide after killing or attempting to kill a female intimate. By contrast, when women were charged with murdering men, male jurors were more inclined to acquit them outright. Judges also demonstrated their capacity take women’s circumstances into account, rather than to attribute their violence to insanity. In 1952, for instance, the judge in the trial of a woman charged with the stabbing murder of her husband, who had come home drunk and threatening, directed a verdict of acquittal. Jurors and judges evidently drew on social and cultural notions, not psychological explanations, when they appraised the culpability of female defendants charged with IGM in early-twentieth century NSW, and this applied in non-IPM as well as IPM cases.
Information extracted from court and police records provides key facts about the charges and outcomes of trials, and the large amount of time we invested in searching newspaper coverage affirmed the value of supplementing official sources. Although this is labour intensive, it is vital to determine the relationship between defendants and victims involved in prosecuted lethal violence. Our study further supports the use of a wide definition of ‘intimate partner’, since newspaper trial coverage revealed the frequency of men’s attacks on former sexual and romantic partners, consistent with current evidence of male-perpetrated violence against female intimates.
Our decision to focus on prosecutions for murder and attempted in a period when capital punishment was the mandatory penalty for both offences exposed wide differences in prosecution outcomes. The seven IGM male offenders who were hanged suffered the extreme penalty, while women experienced the lightest penalties. If access is granted to records after 1955, when NSW abolished capital punishment, it will be possible to test whether the absence of the death penalty led to higher conviction rates for murder, versus manslaughter. Further analysis of the PP database’s 440 prosecutions on the charge of manslaughter (using the same methods we used to determine which cases involved adult IG homicides) will highlight the impact of prosecutorial discretion. For instance, the dip in IGM prosecutions during the Depression may have been linked to Crown Attorney’s preference to prosecute on the non-capital charge if IG homicides appeared to be linked to economic hardship. However, our historical study’s greatest relevance is its capacity to enrich contemporary debates over mandatory penalties to combat domestic and family violence.
Conclusion
Since the 1970s, feminist legal and criminological critiques of the masculinist criminal justice system have been premised on the assumption that the status quo ante was uniformly disadvantageous to women, both those victimised by men and those who faced court for lethal violence against men (Fitz-Gibbon, 2012; Genovese, 1998). Researchers sought out and found many cases of egregious sexist judgements and press commentary to support that interpretation (Landsdowne, 1985; Rod, 1980), and lobbyists used that evidence to push NSW and other jurisdictions to treat women’s vulnerability to gendered violence more seriously. Women’s refuge activists urged NSW to commission a report on ‘Domestic Assaults’ in 1975 and the state set up a Task Force on Domestic Violence in 1980 (Ramsay, 2004). Reforms to the Crimes Act were introduced in 1982, designed to police and punish ‘domestic violence’ more effectively. However, the assumptions underpinning those efforts rest on sketchy historical evidence.
The PP has undertaken the work necessary to solidify the historical record, and our enhancements, using a wide variety of digitised primary sources, have further strengthened researchers’ capacity to compare past to present, and to evaluate the impact of feminist-inspired reforms, some of which may have left women charged with IGM more vulnerable to severe punishment (Crofts & Loughnan, 2013; Fitz-Gibbon, 2014; Howe, 2004; Stubbs, 2016).
This article demonstrates the need to question the consensus that domestic violence was trivialised in the past that men were readily excused for IG homicide, and that male criminal justice actors were unsympathetic to women charged with murders of men. Although there was no sustained feminist critique of the ‘laws of the fraternity’ before the 1970s, the unreformed masculinist criminal justice system was neither uniformly forgiving of men nor oblivious to the suffering of women earlier in the century. Despite finding numerous cases of men treated with lenience, our quantitative analysis of outcomes confirms that male jurors and judges were significantly more punitive toward men charged with IP murder than they were toward women. Women did not push or drive these decisions: men did. When female defendants faced the death penalty for murdering or attempting to murder abusive partners they were not persuaded to plead guilty to manslaughter; instead, male jurors weighed the evidence against them, and many were acquitted. The fate of the 314 persons in our longitudinal study indicates that women charged with the murder of intimate partners fared better earlier in the twentieth century than they did after the introduction of well-intentioned laws meant to protect them from undue punishment and to hold male perpetrators more accountable.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The author(s) received financial support from the Research School of Social Sciences, ANU.
